source: Caselaw Access Project

author: ROY NOBLE LEE, Presiding Justice, ROBERTSON, Justice,

license: Public Domain

text:
    George Wofford GALLASPY v. Linley Richter GALLASPY.
    No. 54414.
    Supreme Court of Mississippi.
    Oct. 31, 1984.
    Rehearing Denied Dec. 5, 1984.

      Howard Dyer, Dyer, Dyer & Dyer, Greenville, for appellant.
    Kay Farese Luckett, Luckett, Luckett, Luckett & Thompson, Clarksdale, for appel-lee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

George Wofford Gallaspy has appealed to this Court from a decree of the Chancery Court of Sunflower County, Honorable Willard L. Mcllwain, presiding, granting a divorce to Linley Richter Gallaspy, together with custody of children, alimony and support for her and the children. He has assigned three errors in the trial below, the first of which complains that the lower court erred in granting a divorce to Mrs. Gallaspy on the ground of habitual cruel and inhuman treatment, and the second and third set forth that the lower court erred in the amount of alimony and child support granted and in the requirement that Mr. Gallaspy pay for the college education of Mrs. Gallaspy. We think there is merit in the first assignment of error and reverse the decree of the lower court, consequently, it is unnecessary to address the second and third assignments of error.

The bill of complaint charges the appellant with habitual cruel and inhuman treatment, which entitled her to a divorce from the bonds of matrimony. The parties were married July 7,1971, and two children were born of that marriage, Audra Fox Gallaspy, age ten years, and William Harold Gallas-py, III, age 8 years. The parties were separated in November, 1981. Further, the bill of complaint alternatively charges that irreconcilable differences have arisen between the parties which would entitle either of them to a divorce. The appellant denied the allegations of habitual cruel and inhuman treatment, but admitted that there were irreconcilable differences between the parties. It is obvious that both appellant and appellee wanted a divorce, but it is also apparent from the record that they could not agree upon support, alimony and property rights, which negated a divorce on irreconcilable differences.

The appellee testified that in November, 1981, she and the two children went to church on a Sunday morning, and, upon their return home, the appellant was gone. She was not worried about his absence, but thought he was working at the airplane hangar. When appellant failed to return home, she attempted to locate him. Appel-lee was embarrassed to call appellant’s mother, who lived in Greenwood, their hometown, and inquire about his absence. She called the hangar three different times during the afternoon, and, on the third call, appellant answered the telephone. Appel-lee asked him why he left and appellant stated that they were both unhappy, and he thought it was best to leave. She said, “He was as scared as I was at having done it — having left like this.” Appellee stated that there had been no violent arguments; that there was not anything that led up to and provoked his leaving; and that there was nothing other than “natural troubles we had through the years.”

The facts appellee gave as constituting habitual cruel and inhuman treatment were appellant’s criticism of her being overweight; that his first priority was his work, where he spent long hours when he could have been at home; that his second priority was his mother and his father’s estate; that he was critical of appellee’s family; and that he did not praise or support the children enough and his discipline was too severe for them.

In order to justify a divorce on the ground of habitual cruel and inhuman treatment, such treatment must be so continuous and of such a nature that the offended spouse can no longer live with the other spouse on account of that treatment and, therefore, separates herself from such spouse. The facts of the case sub judice simply do not pass the test of habitual cruel and inhuman treatment. Under the facts, appellee could have waited for a period of one year, filed suit for divorce on the ground of wilful, continued and obstinate desertion for the period of one year, and, without question, she would have been entitled to a divorce from the appellant.

If habitual cruel and inhuman treatment is to remain the seventh ground for divorce under the divorce statutes of Mississippi, then when a complaint is filed charging that ground for divorce, the proof must sustain it. Otherwise, the ground should be repealed by the legislature, but not by the judiciary. We recognize that courts have become liberal in the application of proof on the habitual cruel and inhuman treatment ground. However, by no means have they made a farce and mockery of the requirement to prove the ground.

In Wires v. Wires, 297 So.2d 900, 902 (Miss.1974), although the evidence on the charge of habitual cruel and inhuman treatment was not strong, the Court said:

It is true these cases held that habitual cruel and inhuman treatment should be sustained by “clear and convincing evidence.” This conclusion was based upon the thesis that mental cruelty without violence required clear and convincing evidence to substantiate the charge. We have reexamined the authorities as to the degree of evidence required, and we are now of the opinion that habitual cruel and inhuman treatment may be established by a preponderance of the creditable evidence.

We agree, however, that the charge of cruel and inhuman treatment against one spouse means something more than unkindness or rudeness or mere incompatibility or want of affection. It has been said that:

“The conduct of the offending spouse must be so unkind as to be cruel, that is, so unreasonably harsh and severe as to be inhumane, so lacking in human qualities, so unfeeling or brutal as to endanger, or put one in reasonable apprehension of danger to life, limb, or health. And finally, such conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself.” Bunkley and Morse, Amis on Divorce and Separation in Mississippi § 3.14(3), at 114 (1957); cited in Burnett v. Burnett, 271 So.2d 90, at 92 (Miss.1972).

On the other hand, habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse may cause such mental suffering as to destroy health and endanger the life of an innocent spouse. Bunkley and Morse, Amis on Divorce and Separation in Mississippi § 3.14(3), at 122 (1957).

The testimony in this case is close and lacks corroboration in many respects. Nevertheless, the chancellor was of the opinion that there was sufficient testimony in the record to establish the ground of habitual cruel and inhuman treatment.

See also Burnett v. Burnett, 271 So.2d 90 (Miss.1972) and Richey v. Richey, 185 So.2d 431 (Miss.1966).

The case of Marble v. Marble, 457 So.2d 1342 (Miss.1984), involves a divorce on the ground of habitual cruel and inhuman treatment with facts similar to those, in the present case. There, the lower court declined to grant a divorce on that ground, and we said:

While the record indicates it is now impossible for John to resume cohabitation with Rebecca, we are of the opinion her behavior does not constitute “habitual cruel and inhuman treatment” as this Court has defined. [Citing Burnett v. Burnett, supra].

The record reflects that appellant is a man of considerable wealth and that he has a substantial yearly income. Appellee and the children of the parties are entitled to support in accordance with their stations in life and in accordance with the means of the parties. The lower court has adequate power and authority to adjudicate the rights of the parties and the decision here does not prejudice any of them in the enforcement of those rights.

REVERSED AND RENDERED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

WALKER, P.J., and ROBERTSON, DAN M. LEE, PRATHER and SULLIVAN, JJ., specially concur.

ROBERTSON, Justice,

specially concurring:

On July 1, 1976, the domestic relations laws of this state took a giant step forward into the real world as parties became authorized to obtain divorces on grounds of irreconcilable differences. See Miss. Laws of 1976, Ch. 451, now codified, as amended, as Miss. Code Ann. § 93-5-2 (Supp.1983).

Prior to 1976 mature and responsible people who found their marriages irretrievably broken were offered by our law absurd choices. If they wanted to get an “uncontested divorce” the complaining spouse had to choose between outright perjury and hoping that the chancellor would not strictly enforce the standards of proof legally required to establish one of the twelve grounds for divorce. The other choice, of course, was the “knock down, drag out” fight to which the adversary system invariably leads when applied to domestic relations cases, frequently creating more problems than are solved. Divorce had become a degrading, dehumanizing experience.

In this context the 1976 act of the legislature came as a breath of fresh air. Today’s decision and our recent decision in Marble v. Marble, 457 So.2d 1342 (Miss.1984), make apparent, however, that further improvements in our law are needed. As enlightened and desirable as was the enactment of the Irreconcilable Differences Act in 1976, the job has not yet been completed. Indeed, these cases reveal what I regard as a congenital defect in our Irreconcilable Differences Act — it facilitates, even encourages, financial blackmail.

I speak here of the requirement in the law that, before a divorce may be granted on grounds of irreconcilable differences, the parties must have voluntarily negotiated and entered into an agreement respecting the custody and maintenance of children as well as all matters touching alimony and the settlement of their respective property rights. Miss. Code Ann. § 93-5-2 (Supp.1983). While the chancery court retains the power and responsibility to assure that “adequate and sufficient provision” has been made for the custody and maintenance of children, See Tedford v. Dempsey, 437 So.2d 410, 419 (Miss.1983), the rule with respect to alimony and the settlement of property rights between the parting spouses is strictly freedom of contract. The chancery court has no authority to grant a divorce on grounds of irreconcilable differences unless the parties have reached agreement on all financial matters. What this means, of course, is that in that overwhelming majority of cases where neither spouse “has grounds” for divorce within the meaning of Section 93-5-1, the spouse wanting the divorce or feeling that he or she must obtain a divorce is subject to financial blackmail.

What happened between George and Lin-ley Gallaspy is typical. Bather obviously neither party has “grounds” for divorce. Yet after the dust settled following George’s decision to move out, Linley no doubt correctly decided that it was in her best interests to obtain a divorce. George had no objection — he just did not want to pay. He said in effect to Linley, if you want a divorce, you will agree to my terms or else you simply won’t get a divorce. Linley refused to agree to George’s terms and,, as a result of today’s decision, under the law she does not have the divorce which would no doubt be in everyone’s best interests.

Looking deeper at the facts of this case, it is obvious that, once George threw down the gauntlet and refused to agree to the financial terms Linley was asking, Linley had two choices: (1) knuckle under and accept less than favorable financial terms or (2) go to court and try to obtain a contested divorce and an accompanying alimony and support award, when, as she and her lawyers surely must have known, she really did not have “grounds.”

It is within the actual knowledge of every chancellor in this state and every lawyer who is in any way engaged in a domestic relations practice that this situation is repeated frequently. The spouse who will be providing the alimony and child support literally blackmails the other. Frequently, the spouse needing alimony and support is not as fortunate as Linley Gallaspy to have a stomach for litigation and a feisty lawyer to boot, as a result of which that spouse usually winds up giving in and accepting less than fair alimony and support terms. That knife is given an additional twist when we hold, as we routinely do, that the chancellor may make no modification with respect to a separation agreement made under Section 93-5-2 unless there has been a material change of circumstances since entry of the final decree of divorce incorporating the settlement agreement. Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983); Marascalco v. Marascalco, 445 So.2d 1380, 1382 (Miss.1984); Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983).

The Irreconcilable Differences Act of 1976 had clear purposes. The experience we have had with that act for the past eight years reflect that, in the particulars enumerated above, those purposes have not been fulfilled. Additional legislative surgery is appropriate.

What is needed is a simple amendment to Section 93-5-1 providing for a thirteenth ground for divorce: irreconcilable differences. That ground for divorce should be subject to proof as any other. The defendant’s denial should have no more effect than his or her denial in the case of any of the other twelve grounds for divorce. That one spouse out of blindness, obstinance or nostalgia refuses to recognize it hardly means that a marriage may not in fact may be irretrievably broken. As a matter of common sense, there can be irreconcilable differences within a marriage even when one spouse refuses to accept or recognize that fact. Most important, the defending spouse’s refusal to agree on financial matters would be no bar to the granting of the divorce because of irreconcilable difference.

Such an amendment would eliminate the financial blackmail sanctioned by our present law. If the spouse who is to be expected to provide financial wherewithal after the divorce becomes obstinate, the aggrieved spouse would be authorized to file a complaint for divorce in the appropriate chancery court, charging no “grounds,” but maturely alleging that the parties are experiencing irreconcilable differences and that the marriage qua marriage is irretrievably broken. With the kind and quality of evidence we have found inadequate today and in Marble, the chancellor could grant the divorce and then make such orders touching alimony, support and other matters as may be fair to all concerned.

Nothing said here should be taken to imply that the complaining spouse’s financial demands are always reasonable. Certainly there has been many a spouse, generally the husband, who has properly objected to the departing spouse’s wishes. The amendment proposed here would not leave these people helpless, at the mercy of the divorcing spouse actuated by anger, greed, desire for revenge and the like. Under the amendment proposed here, the chancellor would determine what' is fair and reasonable alimony, support, etc. and this would no doubt be done with the same fairness and equal consideration to each party as has always been the case.

As it stands today, however, our law is not fair. It unfairly favors the spouse expected to pay alimony and support and makes possible not insignificant financial blackmail. The amendment suggested here no doubt would in time be seen to have its own deficiencies and inadequacies — such is the case with any new law. Without doubt it would be consistent with the spirit and purposes of the Irreconcilable Differences Act of 1976 and move us substantially closer to their realization in this state.

I concur in today’s decision because I regard it as a faithful application, to the facts before us, of the law as it has been given us by the legislature. To vote my feelings would be inconsistent with my duty, as it may be said inconsistent with the legislators’ duties to long leave standing the law which sanctions injustices such as that we order today.

WALKER, P.J., and DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

      . Appellant was in the business of servicing aviation equipment, among other things.


author: PRATHER, Justice,

text:
    Guy B. HARVEY and Joseph A. Harvey v. Louis Valley MEADOR.
    No. 54351.
    Supreme Court of Mississippi.
    Nov. 7, 1984.

      Ronnie L. Walton, Williams, Glover & Walton, Meridian, for appellants.
    Thomas J. Lowe, Jr., Jackson, J.C. Martin, Jr., Waynesboro, for appellee.
    Before BOWLING, DAN M. LEE, PRATHER and SUGG, JJ.

      . Sitting pursuant to Mississippi Code Annotated Section 9-3-6 (Supp.1982).

   PRATHER, Justice,

for the Court:

This appeal addresses the appropriate legal standard to be applied when appointment of a conservator is sought. Guy B. Harvey and his brother, Joseph A. Harvey, petitioned for their appointment as co-conservators of the estates of their four elderly uncles. The Chancery Court of Wayne County dismissed the petitions, and the Harveys appeal to this Court.

The assignment of error is that the chancellor’s findings were manifestly wrong and against the overwhelming weight of the evidence.

I.

The appellees in this case are four unmarried elderly brothers who reside in Wayne County, MS. At the time of the hearing, Joe Meador was 93 years of age, Alec McCain Meador was 89 years old, Louis Valley Meador was 82 years old, and William Allen Meador was 80 years old. Subsequent to the filing of this appeal, Joe, Alec, and William died. The deceased Mea-dors’ only living relatives are their brother Louis, their sister Ruth Meador Harvey, and her three children. Two of these children, Guy B. Harvey and Joseph A. Harvey, are the appellants.

Each of the Meador brothers owns sever- • al hundred acres of land in Wayne County, MS. In addition, each owns an undivided one-eighth interest in 320 acres of farm and timber land in Kentucky. In April of 1982, Colon F. Bazor, Sam Kennedy, Jr., and Norman Triggs purchased the Meadors’ interest in the Kentucky property at the price of $5,000.00 to each of the four brothers, roughly $135.00 per acre. At trial, the farmer who rents the property testified that the land was worth between $800.00 and $1,000.00 per acre.

All of the Meador brothers have been plagued by health problems. Joe was essentially blind and suffered from senile dementia. William suffered from chronic heart disease and, because of inability to manage his medicine, suffered periodically from digoxin toxicity. Alec also had trouble administering his medicine; in April of 1982, he was admitted to an intensive care unit for eleven days because of excessive levels of digitoxin.

Louis Meador lives alone in a shabby house without electricity or running water. He keeps the windows boarded up because of his fear that people might break in.

The Meador brothers are represented in this action by J.C. Martin. Martin represented Bazor, Kennedy and Triggs in the purchase of the Kentucky property. According to Kennedy, he and Bazor were sharing the legal fees of J.C. Martin in opposing the conservatorship.

At the trial Louis Meador testified that Attorney J.C. Martin was not his lawyer. When shown a letter of employment to Mr. Martin, Louis said he didn’t know what it was. When shown the answer filed in his behalf in this action, Louis said he believed it to be a lease on the land in Kentucky.

Billy Meador testified that he didn’t know how much property he owned in Kentucky, and he had no idea what it was worth. He said that he thought that all he had sold was a power line easement across the Kentucky property.

Upon the chancellor’s finding that “the evidence was not sufficient to establish the need for a conservator for either [sic] of these four elderly gentlemen,” the petition for the appointment of conservators was dismissed.

II.

A conservator for the management of property may be appointed by the chancery court of the county of the residence of any person who “by reason of advanced age, physical incapacity, or mental weakness is incapable of managing his own estate.” Additionally, “if the court deems it advisable,” the conservator may have charge and custody of the person as well as the property. Miss.Code Ann. § 93-13-251 (1972). To make the determination of need for such an appointment, the “chancery judge shall be the judge of the number and character of the witnesses and proof to be presented, except that there shall be included therein at least two (2) reputable physicians_” Miss.Code Ann. § 93-13-255 (1972). The physicians must be authorized to practice medicine in this state and “shall have had at least three years actual practice and made a personal physical and mental examination of the party. Miss.Code Ann. § 93-13-255 (1972).

The statute specifies that a conservator of the estate may be appointed by reason of (1) advanced age, (2) physical incapacity, or (3) mental weakness, any of which three factors have rendered the person incapable of managing his own estate. In absence of a statutory definition of these three conditions, this Court first addresses the interpretation of the legal standard to be applied.

III.

Initially, it is appropriate to distinguish guardianships from conservatorships.

Guardians may be appointed for minors, Miss.Code Ann. § 93-13-15 (1972); or incompetent adults, Miss.Code Ann. § 93-13-121 (Supp.1983); a person of unsound mind, Miss.Code Ann. § 93-13-123, 125 (1972); alcoholics or drug addicts, Miss. Code Ann. § 93-13-131 (1972); convicts in the penitentiary, Miss.Code Ann. § 93-13-135 (1972); persons in the armed forces or merchant seamen reported as missing, Miss.Code Ann. § 93-13-161 (1972); or for veterans entitled to receive moneys from United States Veterans’ Bureau, Miss.Code Ann. § 35-5-5 (1972) or minor wards of a veteran, Miss.Code Ann. § 35-5-7 (1972). The guardian is the legally recognized custodian of the person or property of another with prescribed fiduciary duties and responsibilities under court authority and direction. A ward under guardianship is under a legal disability or is adjudged incompetent.

In recent decades there has been an increased number of older adults in our society who possess assets in need of protective services provided through guardianships. But modification of laws have broadened the definition of persons for whom assistance can be afforded by the courts, and such statutes do not restrict such protection only to the adult incompetent or insane.

Noting that trend in our society, the Mississippi Legislature incorporated into law in 1962 the conservatorship procedure for persons who, by reason of advanced age, physical incapacity, or mental weakness, were incapable of managing their own estates. Miss.Code Ann. § 93-13-251, et seq. (1972).

Thus . the Legislature provided a new procedure through conservatorship for supervision of estates of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the person non compos mentis. This additional procedure was intended to encompass a broader class of people than just the incompetent. See Uniform Probate Code § 5-304 Comment (1975). See also 18 J.Fam.L. 819 (1980). Family Law, Vol. 18, p. 819.

Therefore, the distinguishing feature of conservatorship from guardianships lies in part in the lack of necessity of an incompetency determination or the existence of a legal disability for its initiation. After establishment of such protective procedures, the duties, responsibilities and powers of a guardian or conservator are the same. Miss.Code Ann. § 93-13-259 (1972). See also 51 Miss.L.J. 239, 266 (1980).

However, the status of the ward in each arrangement is different. Lee v. Lee, 337 So.2d 713 (Miss.1976) (ward under a conservatorship may execute a valid will during lucidity, if possessed of the requisite understanding and mental capacity.)

IV.

Thus the question presented to this Court is the appropriate legal standard to be applied in determining the criteria for appointment of a conservator, a question not previously addressed as applied to the conservatorship statute.

At the outset it should be noted that the standard with which we are concerned is “a legal judgment to be made by the trier of fact.” Section 99-13-255 provides that two reputable licensed physicians with three years actual practice, who have personally examined the defendant, shall testify as to medical conditions. The physicians should not, however, testify as to the ultimate legal issue. Likewise, courts interpreting the various state statutes on this issue have recognized that a firm definition of the grounds named within a statute is difficult to enunciate. Rather, the courts generally have avoided prescribing the degree of acumen necessary to manage property, but left that determination to a factual analysis of the particular case based upon clear and convincing evidence.

Regarding advanced age that renders a person incapable of property management, this Court is of the opinion that mere advanced age alone is insufficient. Advanced age will naturally bring about decrease in physical prowess and mental efficiency. However, advanced age which renders an inability to manage property or which advanced age exhibits a serious degree of deterioration is contemplated by the statute.

The fact that physical incapacity exists is not in and of itself sufficient justification for the court taking jurisdiction of property involuntarily. A blind or deaf person may be capable of understanding matters of business and receiving communication on the subject. However, almost complete physical paralysis resulting from a cerebral hemorrhage rendering one incapable of managing the estate would qualify under the statute as physical incapacity. Loss v. Loss, 25 Ill.2d 515, 185 N.E.2d 228 (1962).

Mental weakness, as opposed to the more strict application of mental incompetency, is another statutory standard which also employs some vagueness. Mere lack of good business judgment, not amounting to some degree of wasted or dissipated property, is not a sufficient standard. Mental weakness which renders the subject incapable of understanding and acting within discretion in the ordinary affairs of life is sufficient. See Annot., 9 A.L.R.3d 796 (1966) (and cases cited therein).

This Court adopts a management competency test as the standard to be applied under the conservatorship statute. A test of management competency can be answered by considering the factors of: ability to manage, or improvident disposition, or dissipation of property, or susceptibility to influence or deception by others, or other similar factors.

V.

The next step is to determine whether the evidence by the petitioners was sufficient to establish need for a conservator under a management competency test. We address the only surviving defendant, Louis Meador. The facts previously enumerated establish that Louis, 82 years old at the time of hearing, suffered from advanced age and mental weakness which led to an improvident disposition of property. He lives as a hermit in a boarded-up house without electricity or water, but he did testify at trial. His responses evidenced no understanding of his estate or business. He denied that the attorney who purported to represent him was in fact his lawyer. In fact, attorneys’ fees for Meador in this proceeding were paid by persons who had secured the Kentucky land and who would benefit most by the nonappointment. When shown the alleged letter of employment, Louis said he had never read it. When presented with a copy of the answer filed on his behalf opposing the conserva-torship, Louis thought it was a lease on the land in Kentucky. Louis was unable to say what his land in Kentucky was worth.

This Court has held on repeated occasions that where the chancellor was the trier of facts, his findings of fact on conflicting evidence cannot be disturbed on appeal unless it can be said with reasonable certainty that his findings were manifestly wrong and against the overwhelming weight of the evidence. Richardson v. Riley, 355 So.2d 667 (Miss.1978). However, this Court has also stated that it would not hesitate to reverse a decree of the chancellor when his decision appears to be manifestly wrong. Scott v. Scott, 219 Miss. 614, 69 So.2d 489 (1954).

In this case we do not evaluate the chancellor’s conclusion regarding the three now-deceased brothers as that question is moot. However, this Court holds that the chancellor’s finding as to Louis Meador was manifestly wrong and against the overwhelming weight of the evidence. Clearly applying a management competency test to this case, the evidence supports the need for a conservator for Louis Mea-dor. Therefore, we reverse and remand for appointment of a qualified conservator in accordance with Miss.Code Ann. §§ 93-13-251, et seq.

YI.

Comment upon the appellee’s opposition is needful. The appellees argue that the chancellor had no choice but to dismiss the petition because the statutory prerequisite for the appointment of a conservatorship was not met. The contention is based upon the qualification of one of the two doctors who testified. It is contended that Dr. Dunbar had not had “at least three (3) years’ actual practice....” as required by Miss.Code Ann. § 93-13-255.

This point, not addressed to the trial court, was simply not sufficiently developed by the record for this Court to determine. The position is therefore rejected.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P. JJ., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.

      . This listing does not address temporary guardians, guardians ad litem, or others.


author: HAWKINS, Justice,

text:
    Michael BREWER v. STATE of Mississippi.
    No. 55140.
    Supreme Court of Mississippi.
    Nov. 7, 1984.

      Thomas J. Lowe, Jr., Burns H. McFarland, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BOWLING, HAWKINS and SULLIVAN, JJ.
   HAWKINS, Justice,

for the Court:

Michael Brewer appeals from his conviction of the crime of kidnapping in the Circuit Court of the Second Judicial District of Jones County and sentence to twenty years in the Department of Corrections.

The issues we address on this appeal are the sufficiency of the indictment, whether the district attorney made fair comment on Brewer’s refusal to answer certain questions on the grounds of self-incrimination, and the sufficiency of the evidence. Finding no error, we affirm.

FACTS

In the late afternoon of September 20, 1982, Gary Teel was driving home from work, and picked up Brewer, who was hitchhiking. According to Teel, he drove about 10 miles on Interstate 59 to the second Sandersville Exit, and as he approached the exit, he told Brewer he got off the interstate there. Teel proceeded to testify as follows: Brewer pulled a gun on him and told him to keep driving. Teel continued to drive, under threat of the pistol pointed toward him. When they got into Jasper County, Brewer told him to pull over to the side of the highway. Teel did so, and Brewer held the gun on him, got out of the car on the passenger side, and kneeling, directed Teel to crawl over on the floor board of the passenger side of the car. Teel did so, and saw the opportunity to either push or kick Brewer. Brewer then shot him three times. The pistol jammed, and Brewer whipped him with the pistol, and cut him with a pocketknife. Somehow Teel managed to get loose and start down the highway for help. Brewer drove off in Teel’s car.

Some acquaintances saw Teel on the side of the highway, stopped, and, having a short wave radio, radioed the law enforcement officers. A highway patrolman in Lauderdale County arrested Brewer in Teel’s car on the interstate in Meridian.

The state was permitted, over the objections of the defense counsel, to relate the events which transpired in Jasper County.

When the state rested, the trial court overruled motions to dismiss and for a mistrial.

Brewer testified in his own defense. He testified that Teel made homosexual advances towards him, and that he did nothing in the way of kidnapping Teel. It was apparently the strategy of defense counsel not to ask Brewer any question about the altercation in Jasper County. In objecting to testimony about the events in Jasper County, counsel had stated to the court that Brewer had been indicted on some charge (not precisely shown in this record) for what transpired in Jasper County, and there had been a hung jury.

Over the objection of defense counsel, on cross-examination the state asked Brewer how he happened to have Teel’s car, whether he had shot Teel, what happened when they stopped in Jasper County, and other questions. Brewer refused to answer on the ground his answers might tend to incriminate him, and stated further that they had nothing to do with kidnapping.

The district attorney then asked Brewer if he was telling the truth, and when Brewer answered he was, the district attorney commented, “Except for those parts where you have refused to answer.” Objection and motion for a mistrial were made by defense counsel, which were overruled by the court.

We have summarized the cross-examination. All essential parts are set forth as an appendix to this opinion.

LAW

Pertinent portions of the indictment are as follows:

... MICHAEL BREWER on or about the 20th day of September, 1982 in the county and district of aforesaid did unlawfully, wilfully and feloniously, without authority of law, forcibly seize and confine, a human being, GARRY [sic] TEEL, against his will and depriving him of his liberty, and all being against the peace and dignity of the State of Mississippi.

Brewer argues the indictment is fatally defective because it fails to charge unlawful asportation. Brewer was indicted under Section 97-3-53 of Miss.Code Ann. (Supp.1983), which defines the offense as follows: “Any person who shall without lawful authority forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned against his or her will ...”

It is to be noted this indictment tracks the statute in charging a forcible seizure and confinement. Prior to 1980 there were two statutes involving kidnapping, Miss. Code Ann. § 97-3-51, repealed Chapter 394, Laws 1980, and Miss.Code Ann. § 97-3-53, amended Chapter 576, Laws 1974. The pertinent provisions of these two statutes are identical. In Hughes v. State, 401 So.2d 1100, p. 1105 (Miss.1981), we stated:

... In order to clearly set forth the different elements which may constitute kidnapping under the statute, we restate the statute as follows:

Every person who shall, without lawful authority,

(1) forcibly seize and confine any other,
(2) or shall inveigle or kidnap any other
(3) with intent
(a) to cause such person to be secretly confined or imprisoned in the state against his will,
(b) or to cause such other person to be sent out of this state against his will,
(c) or to cause such other person
(1) to be deprived of his liberty,
(2) or in any way held to service against his will ...

Under the statute the state must prove that a person, without lawful authority, either (1) forcibly seized and confined another person, or (2) inveigled or kidnapped another person, intending to subject such person to either (a), (b) or (c) above. [Emphasis added]

In Wilcher v. State, 448 So.2d 927 (Miss.1984), the defendant contended there was no showing that he was involved in the crime of kidnapping his victims of murder. We stated: “Manifestly, if they [the victims] had been either physically forced to leave with him, or left at gunpoint, it would have been kidnapping.”

The statute does not require any allegation of transportation in the indictment. We therefore hold the indictment was sufficient in charging the crime of kidnapping when it charged Brewer with forcibly seizing and confining Teel against his will and depriving him of his liberty. The evidence supported this charge.

Brewer argues that Aikerson v. State, 274 So.2d 124 (Miss.1973), compels the inclusion of asportation in the indictment. In Cuevas v. State, 338 So.2d 1236 (Miss.1976), however, we held that asportation was not a necessary ingredient of the indictment, so long as the indictment charges the victim was imprisoned against his will. This indictment satisfies our holding in Cuevas, because it charges Teel was confined against his will and he was deprived of his liberty.

Moreover, under our holding in Hughes and Wilcher, supra, the indictment and evidence were sufficient.

COMMENT ON BREWER’S REFUSAL TO ANSWER QUESTIONS

The questions asked Brewer on cross-examination dealt with relevant surrounding circumstances of the crime for which he was on trial. Having voluntarily taken the stand as a witness in his own defense, he became subject to cross-examination as to the reason Teel was shot, cut, and why he had Teel’s car. Brewer had no right to invoke the 5th Amendment privilege against self-incrimination. See: Sanders v. State, 260 So.2d 466 (Miss.1972); May v. State, 211 So.2d 845 (Miss.1968).

Had he been questioned about totally unrelated criminal offenses, the case would be otherwise. See: Hawkins v. State, 228 Miss. 209, 87 So.2d 485 (1956). Even in that case, however, the question would be objectionable on the ground of irrelevance, and not a 5th Amendment guaranty.

When Brewer, without any right to do so, refused to answer relevant questions, it was the prerogative of the state’s attorney to make comment about the refusal. Indeed, the trial judge could have quite properly required Brewer to answer these questions.

SUFFICIENCY OF THE EVIDENCE

The jury had before it the testimony of Teel that at gunpoint he was forced to drive his automobile towards some destination unknown to him, and that when he had driven over into another county, stopped the car at the direction of Brewer, and attempted to escape, he was assaulted by pistol and pocket-knife. At gunpoint and as a hostage, he was forced to transport Brewer. Being forced to act under gunpoint manifestly constituted the “forcible seizure,” and being required to drive away from his own destination also at gunpoint constituted the “confinement against his will.” These facts constitute kidnapping under the statute. See: Ulmer v. State, 406 So.2d 828 (Miss.1981); Woods v. State, 393 So.2d 1319 (Miss.1981); and Johnson v. State, 288 So.2d 842 (Miss.1974).

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

APPENDIX

BREWER V. STATE — NO. 55,140 MR. CASEY:

Q. Where were you arrested?

A. In Jasper County, the first time. Q. In Jasper County?

A. I think they said it was Meridian. Q. Meridian? Okay, and were you driving the car at the time?

A. Yes, sir.

Q. And whose car were you driving? A. Gary Teel’s.

Q. And do you want to tell us how you came to have his car?

MR. McFARLAND:

Objection, your Honor, not relating to the charge of kidnapping.

MR. CASEY:

He is on cross examination, your Honor. THE COURT:

Overruled, but I again caution the jury that only — that’s the only issue that you are to decide is the guilt or innocence of the defendant on the charge of kidnapping.

MR. CASEY:

Q. Would you tell us how you came to have his car?

A. I refuse to answer that on the grounds that it may tend to incriminate me.

Q. Did you shoot Mr. Teel?

A. No, sir.

Q. Did you cut Mr. Teel?

A. Yes, I cut Mr. Teel.

* * * * * sjc

MR. CASEY:

Q. Do you own a gun?

A. No, sir.

Q. Have you ever owned a gun?

A. A shot gun and rifle, but I have never had a pistol.

Q. Have you ever had — have you ever seen that pistol before?

A. That’s the one they said that was out there at the scene?

Q. That’s the one they said was out there at the scene, and do you know how it got there?

A. No, I didn’t have a gun.

Q. What?

A. I didn’t have a gun.

* * * * * *

MR. CASEY:

Q. You don’t know where this gun came from?

A. It is the one Mr. Teel had.

Q. Did Mr. Teel shoot himself?

MR. McFARLAND:

We object, your Honor.

THE COURT:

Overruled.

# * * # * *

MR. CASEY:

Q. Would you answer the question?

A. I refuse to answer that on the grounds in [sic] may tend to incriminate me.

It is not with the kidnapping. I have been advised just to answer questions pertaining to the kidnapping.

* * % * * *

MR. CASEY:

Q. Mr. Brewer, where did you say Mr. Teel stopped when you were in the ear?

A. As far as I know, it was Jasper County.

Q. All right, and once he stopped, what happened after that?

A. I refuse to answer that on the grounds in [sic] may tend to incriminate me.

* * * * * *

MR. CASEY:

Q. You are not denying that you drove Mr. Teel’s car, are you?

A. No, sir.

MR. CASEY:

Q. Do you know how Mr. Teel got some bullet holes in him?

A. Yes.

Q. You do know how he got some bullet holes in him? How did he get bullet holes in him?

A. I have been advised not to answer anything that don’t pertain to the kidnapping.

$ * s}c * ⅜ ⅜:

MR. CASEY:

Q. Did you cut Mr. Teel’s throat?

A. I refuse to answer that on the ground in [sic] may tend to incriminate me.

Q. Well, you made a statement a few minutes ago that you did cut him.

A. I would have to go through all of the things that led up to that, and that don’t pertain to this.

Q. That is up to the Judge to decide and not for you to decide.

MR. McFARLAND:

Objection, your Honor, he is arguing with the witness.

THE COURT:

Overruled.

MR. CASEY:

Q. You stated before that you cut Mr. Teel, and I am asking you did you cut his throat?

A. At the time I cut Mr. Teel, I thought I had been shot in the mouth, and he was about to choke me to death inside the car.

Q. Is this the knife you used to cut Mr. Teel with?

A. Yes, sir, this is my knife.

Q. Is that the one you cut Mr. Teel with?

A. Yes.

Q. It is?

A. Yes.

* * * * * *

MR. CASEY:

Q. Mr. Brewer, you told the jury that you didn’t kidnap Mr. Teel, didn’t you? A. No, I didn’t kidnap him.

Q. How did you get his car then? If you didn’t kidnap him, how did you get his car?

MR. McFARLAND:

Objection, the question has been previously asked and answered.

THE COURT:

Overruled.

MR. CASEY:

Q. You may answer that.

A. I need a few minutes to talk to my attorney.

MR. CASEY:

Your Honor, we are going to object to him talking to his lawyer. He has had plenty of time to talk to his lawyer.

A. I refuse to answer that on the grounds in [sic] may tend to incriminate me.

MR. McFARLAND:

If it please the Court, I would like a ruling as to his request.

THE COURT:

Yes, you may confer with your counsel. I will give you one more chance to confer with your counsel, but we are not going to interrupt examination any more for that purpose.

MR. McFARLAND:

May we step into this room here?

THE COURT:

Yes, sir.

(WHEREUPON THE DEFENDANT AND HIS COUNSEL, MR. McFARLAND, DEPARTED THE COURTROOM FOR A FEW MOMENTS, FOLLOWING WHICH TIME THE WITNESS RESUMED THE WITNESS STAND)

THE COURT:

All right, you may proceed.

MR. CASEY:

Q. Mr. Brewer, did Mr. Teel let you have that car?

A. I was in the car at the time I was arrested.

Q. I know you were in the car at the time you were arrested, but what I am interested in is how you got the car from Mr. Teel.

A. I refuse to answer that on the ground that it may tend to incriminate me.

Q. You admit that you cut him, but you won’t tell me how you got the car; is that what you are saying?

A. I refuse to answer that on the grounds—

Q. —and you didn’t shoot him, either, did you?

A. No, I didn’t shoot him.

Q. And you don’t know where the gun came from either, do you?

A. I refuse to answer that on the ground it might incriminate me.

Q. Are you telling the truth?

A. Yes.

Q. Are you telling all the truth?

A. Yes, sir.

Q. Except for those parts where you have refused to answer.

MR. McFARLAND:

Objection, your Honor, and at this point we move for a mistrial, that being a comment of counsel with reference to the defendant’s taking of the fifth on a particular subject, and I believe that comment is grounds for a mistrial.

THE COURT:

Overruled.

MR. CASEY:

Q. You may answer that. You have told the truth except for those parts which you have refused to comment upon; is that correct?

A. The reason I refuse to comment on those is it don’t pertain to the kidnapping.

Q. It does not what?

A. It does not have anything to do with the kidnapping and has to do with other charges.

Q. Well, I will disagree with you on that, but I will not argue the point of law with you, but I am asking you particular questions and if you did something to get Mr. Teel’s car away from him? You did, didn’t you?

THE COURT:

I will sustain further questioning on that point.

I will sustain an objection to further questioning on that point.

MR. CASEY:

No further questions.

REDIRECT EXAMINATION

MR. McFARLAND:

Q. Michael, is this your gun?

A. No, sir, it’s not my gun.

Q. Did you buy that gun?

A. No, sir.

Q. Did you steal it?

A. No, sir.

Q. Did anybody give it to you?

A. No, sir.

Q. I will ask you one more time if you kidnapped Gary Teel?

A. No, sir. I have never kidnapped him; I have never even thought about it.

MR. McFARLAND:

Thank you. You may step down.

[Record, pp. 114-125]


author: ROY NOBLE LEE, Presiding Justice,

text:
    DEPENDENTS OF Woodrow Wilson TOWNSEND v. DYER WOODTURNINGS, INC. and Lumbermen’s Underwriting Alliance.
    No. 55166.
    Supreme Court of Mississippi.
    Nov. 7, 1984.
    C. Emanuel Smith, Starkville, for appellants.
    Dan McCullen, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellees.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

The dependents of Woodrow Wilson Townsend have appealed from an order of the Circuit Court, First Judicial District, Chickasaw County, dismissing this cause from the docket of that court. They have assigned two (2) errors in the lower court, but we discuss only the assignment of whether or not the lower court erred in dismissing the cause, which is dispositive of the case, and we affirm.

On March 31,1983, the Mississippi Workmen’s Compensation Commission entered an order denying death benefits to the claimants. On April 29, 1983, the claimants filed with the Circuit Clerk for the First Judicial District, Chickasaw County, a “Petition for Judicial Review” attempting to appeal from the Commission order. No notice of appeal was filed with the Secretary of the Commission within thirty (30) days of the date of the Commission order. Subsequently, claimants filed an “Application for Deviation from Rule” with the Commission to permit a deviation from Procedural Rule 11 for the reason that the rule changes the requirement of the state statute and the strict compliance with said rule under the facts of the case would tend to deprive the claimants of a substantial right. On September 13, 1983, the lower court entered an order dismissing the cause from its docket, sua sponte, on the ground that an order entered by the Commission on July 14, 1983, disposed of the cause.

The simple question presented to the Court is whether or not the claimants timely and properly perfected an appeal from the Commission order to the circuit court and whether that court erred in dismissing the attempted appeal from its docket.

Mississippi Code Annotated § 71-3-51 (1972), in part, provides the following:

The final award of the Commission shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of its filing in the office of the Commission and notification to the parties, appeal therefrom to the circuit court of the county in which the injury occurred.
Such appeal may be taken by filing notice of appeal with the commission, whereupon the commission shall under its certificate transmit to the circuit court of the county where the injury occurred all documents and papers on file in the matter, together with a transcript of the evidence, the findings, and award, which shall thereupon become the record of the cause.... Appeals may be taken from the circuit court to the Supreme Court in the manner as now required by law.

The Commission adopted Procedural Rule 11 following the statute, pertinent parts of which follow:

APPEAL FROM COMMISSION AWARD. Should either party desire to appeal from an award of the commission, the party desiring to appeal shall within thirty days of the date of the award file a notice of appeal with the secretary of the commission. The notice shall set out the style of the case, the grounds upon which the appeal is taken, certification that copies of the motion of appeal have been filed with the opposing parties.
When a motion for appeal to the Circuit Court is filed with the commission the secretary shall, with a proper letter of transmittal, place the matters possessed by this commission and pertaining to the appealed case in the hands of the Circuit Court within seven days after such notice for appeal is received by the commission....

It is undisputed that the claimants failed to comply with the statute and with Procedural Rule 11 and they have only attempted to relieve themselves by asking for a deviation from the Rule 11, citing Commission Rule 14, which states:

In any case, for good cause shown, the commission or the administrative judge may permit deviations from these rules insofar as compliance therewith may be found to be impossible or impracticable.
This Rule shall be in force and effect on and after November 1, 1980.

Relief was not granted by the Commission under Rule 14, and it is obvious from reading the rule that it was not applicable to the petition.

Claimants contend that the word “may” in the statute makes it discretionary as to the manner in which an appeal is taken and cite Leake County Coop. (AAL) v. Dependents of Barrett, 226 So.2d 608 (Miss.1969); Leflore Bank & Trust Co. v. Leflore, Co., 202 Miss. 552, 32 So.2d 744 (1947), and Gee v. Rimmer, 188 Miss. 460, 195 So. 342 (1940). Those cases are distinguishable from the present case and are not authority for their position.

The first paragraph of the statute states that the final award of the Commission shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of its filing in the office of the Commission and notification to the parties, appeal to the circuit court. That part of the statute is mandatory as to the time when the appeal must be taken. The second paragraph of the statute provides that such appeal may be taken by filing notice of the appeal with the Commission. There is no other statute which provides for an appeal from the Commission to the circuit court and the procedure set forth therein is jurisdictional of an appeal to the circuit court. Mississippi State Hwy. Comm’n v. First Methodist Church of Biloxi, 323 So.2d 92 (Miss.1975); Fisher v. Crowe, 289 So.2d 921 (Miss.1974); Shannon Chair Company v. City of Houston, 295 So.2d 753 (Miss.1974); Marlboro Shirt Co. (Reliance Mfg. Co.) v. Whittington, 195 So.2d 920 (Miss.1967). In discussing the statute and Rule 11, Dunn’s Mississippi Workmen’s Compensation § 386 (3d ed. 1982) states the following:

§ 386. Appeal to Circuit Court and review. An appeal to the Circuit Court from the final decision of the commission must be perfected within thirty (30) days of the • date of the award by filing a notice of appeal with the secretary of the commission. The notice must set out the style of the case and the grounds upon which the appeal is taken and must contain a certification that copies of the notice of appeal have been served upon the opposing parties. Thereupon the record is transmitted by the commission to the Circuit Court within due time after the notice of appeal is received by the commission.
When an appeal is perfected to the Circuit Court, the commission loses jurisdiction of the case and no controversy may be heard by the commission and no award of compensation may be made in the case while the same matter is pending in court on appeal or by original action.

As stated, there is only one method and procedure for appeal from the Mississippi Workmen’s Compensation Commission to the Circuit Court. Likewise, now there is only one method of appeal in eases from the trial courts of the state to this Court. Moran v. Necaise, 437 So.2d 1222 (Miss.1983). The claimants did not timely perfect their appeal from the Mississippi Workmen’s Compensation Commission to the Circuit Court of the First Judicial District, Chickasaw County, Mississippi, and that court properly dismissed the case from its docket. There being no error in the order of dismissal in the lower court, the judgment is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

HAWKINS, J., not participating.

      . An appeal was not properly and effectively taken from the Commission order entered March 31, 1983.


text:
    Ernest W. STONE v. Ernest W. STONE, III, Linda Diane Stone Haney, Clifford Hoge Stone, and Frank Henry Stone.
    No. 54496.
    Supreme Court of Mississippi.
    Nov. 14, 1984.
    Rehearing Denied Dec. 5, 1984.
    Stephen L. Thomas, Mansour & Thomas, Greenville, for appellant.
   Appeal from Chancery Court, Washington County; Willard L. Mcllwain, Chancellor.

H.L. Merideth, Jr., Jimmie D. Marshall, Robertshaw & Merideth, Greenville, for apPellee-

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

Affirmed.


text:
    MISSISSIPPI STATE BAR ASSOCIATION v. AN ATTORNEY.
    Conf. Misc. No. 103.
    Supreme Court of Mississippi.
    Nov. 14, 1984.
    Andrew J. Kilpatrick, Jr., Jackson, for appellant.
    James P. Cothren, Cothren & Pittman, Jackson, for appellee.
   Affirmed.


text:
    Mary K. CAREY v. Ralph Alan CAREY.
    No. 55170.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    Guy M. Walker, Laurel, for appellant.
    William E. Phillips, Laurel, for appellee.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

AFFIRMED.


text:
    James B. GRAHAM and Louise J. Graham v. L.C. McALPIN, A.D. Berry, Jerry Bridges, Jack D. Mullins and O.D. McAlpin, Simpson County Board of Supervisors.
    No. 54493.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    Charles H. Ramberg, Jackson, for appellants.
    William H. Smith, III, Williamson & Smith, Mendenhall, for appellees.
   Appeal from Circuit Court, Simpson County; L.D. Pittman, Judge.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    George BARNETT v. Marie Long WALTERS, Guardian of Julius Chad Long, a Minor.
    No. 55194.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    A.H. McRae, Jr., Laurel, for appellant.
    Thomas Gene Clark, David Massey, Clark & Massey, Laurel, for appellee.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    James Henry SHELBY v. STATE of Mississippi.
    No. 55197.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    F. Kent Stribling, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.

PATTERSON, C.J., ROY" NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


text:
    Milton DIGGINS v. STATE of Mississippi.
    No. 55272.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    Sidney J. Martin, Greenville, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B.B. Wilkes, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


text:
    Alma J. FARMER v. STATE of Mississippi.
    No. 55257.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

A.E. (Gene) Harlow, Grenada, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


text:
    Ricky Gail PIERCE v. STATE of Mississippi.
    No. 55196.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    Charles E. Webster, Wood & Twiford, Clarksdale, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Coahoma County; John L. Pearson, Judge.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    George WRIGHT v. STATE of Mississippi.
    No. 55144.
    Supreme Court of Mississippi.
    Nov. 28, 1984.
    T.K. Moffett, Moffett & Thorne, Tupelo, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Monroe County; Neal Biggers, Jr., Judge.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

Affirmed.

WALKER and ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, PRATHER and SULLIVAN, JJ., concur.


author: EHRLICH, Justice. BOYD, Chief Justice, ADKINS, Justice,

text:
    Melvee TUCKER, Petitioner, v. The STATE of Florida, Respondent.
    No. 62683.
    Supreme Court of Florida.
    Oct. 25, 1984.
    Rehearing Denied Dec. 19, 1984.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., Miami, for respondent.
   EHRLICH, Justice.

This cause, reported at 417 So.2d 1006 (Fla. 3d DCA 1982), is before the Court on a question certified as being of great public importance. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.

On December 15, 1977, Tucker was charged with first-degree murder in the death of Harold Rosenbaum, which had occurred on June 11, 1974, more than three years earlier. At the close of the state’s case, Tucker moved to dismiss the indictment on the grounds that it failed to allege venue. The motion was denied. Tucker also requested jury instructions on lesser-included offenses. The trial court denied the request because the statute of limitations had run on all lesser-included offenses.

Tucker was convicted and sentenced to life imprisonment with a minimum mandatory term of twenty-five years. The Third District Court of Appeal affirmed the conviction and sentence, but it certified as a question of great public importance the following:

Is the error in the failure of an indictment to specify the place where the crime allegedly occurred so fundamental that it may be urged on appeal, though not properly presented at the trial court, where the defendant is not hindered in the preparation or presentation of his defense and the situs of the crime is proved at trial?

417 So.2d at 1013, 1020 n. 1. We answer the question in the negative and approve the result reached by the district court.

The district court properly acknowledged this Court’s ruling in State v. Black, 385 So.2d 1372 (Fla.1980), holding that venue was an essential element of the crime charged, thus an indictment which failed to allege venue was so fundamentally defective as to be incapable of supporting a conviction. Nonetheless, the district court distinguished this case from Black on the grounds that in Black the insufficiency of the indictment was timely raised by a pretrial motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b). In Tucker, the issue was first raised when the state rested its case. Subsequent to this ruling of the district court, the Supreme Court of Florida issued State v. Gray, 435 So.2d 816 (Fla.1983), reiterating the axiomatic proposition that fundamental error may be raised at any time, “before trial, after trial, on appeal, or by habeas corpus.” Id. at 818. Rather than attempt to draw any distinctions among degrees of fundamental error, we revisit Black to determine whether it is in the best interests of justice to continue to define the allegation of venue to be a “fundamental defect which renders the indictment void.”

Black relies primarily on a decision of this Court, Rimes v. State, 101 Fla. 1322, 133 So. 550 (1931). In Rimes, the defendant had been charged with desertion of and failure to support his wife and child. The indictment had failed to specify in what county the alleged crimes had occurred. The Court, in holding the defect to be “one of substance and not of form,” 101 Fla. at 1324,133 So. at 551, focused on the facts of the case and the policy underlying the requirement of an allegation of venue. “The indictment as framed would not protect the defendant against another prosecution for the same offense, as no county is named as the place of commission of the alleged offense.” Id.

That the ruling of Rimes was dependent upon the facts of the case is apparent from the fact that seven years later a panel of the Court consisting largely of the same justices who had concurred in Rimes addressed the same issue on facts directly on point with those in Tucker. In Brown v. State, 135 Fla. 30, 184 So. 518 (1938), the Court was asked to reverse a trial court’s refusal to quash an indictment for first-degree murder which failed to allege the venue of the crime. There the Court held:

The test of the sufficiency of an indictment under the law of Florida is whether or not it is so vague, inconsistent and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

135 Fla. at 34, 184 So. at 519-20. On the facts of that case, the Court found no error in the trial court’s denial of the motion to dismiss.

The same language used by the Court in Brown, statutory in origin, see, e.g., section 8369, Compiled General Laws of Florida (1927), was incorporated into Florida Rule of Criminal Procedure 3.140(o):

No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoin-der of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

(Emphasis supplied.)

No argument has been raised that Tucker was in any way embarrassed in the preparation of his defense, nor is there any threat of double jeopardy. Those facts alleged in the indictment indicate a specific date and a specific victim; other details were provided in a bill of particulars. Finally, the evidence adduced at trial was more than adequate to sustain a Blockbur-ger defense to any possible future prosecution. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Nor is the allegation of venue properly considered to be a jurisdictional requisite, as we held in Black. The issue is, as the Third District noted, solely one of venue, not affecting the power of the court to hear that case but rather addressing the propriety of that particular trial court to hear that particular case. This Court, in the same year it decided Black, discussed the difference between the two concepts in Lane v. State, 388 So.2d 1022, 1026 (Fla.1980).

Venue should not be confused with jurisdiction although some of the original common law cases appear to concern venue_ Jurisdiction is the very power of the state to exert the influence of its courts over a criminal defendant, and it cannot be waived. Venue on the other hand is merely a privilege which may be waived or changed under certain circumstances.

This is not to gainsay the constitutional guarantee of defendant’s venue privilege contained in article I, section 16 of the Florida Constitution. We would not fail to preserve Tucker’s constitutional right “to be informed of the nature and cause of the accusation against him” and to be tried “in the county where the crime was committed.” But Tucker has never claimed that venue was laid in the wrong county, nor has he claimed any misunderstanding of the nature and cause of the accusation against him. Had Tucker been able to show that the crime of which he was convicted was not committed in Dade County, or that the prosecution had not presented sufficient proof that the crime occurred in the county where the trial was held, the conviction clearly could not stand. Woodward v. Petteway, 123 Fla. 892, 168 So. 806 (1935); McKinnie v. State, 44 Fla. 143, 32 So. 786 (1902). Nonetheless, the Florida constitution does not mandate an allegation of venue in an indictment.

Any requirement that venue be alleged in an indictment is a procedural rule stemming from common-law applications of due process considerations. In Florida, this requirement arose as a judicial interpretation of a statute which merely required adequate notice. See, e.g., § 8363, Compiled General Laws of Florida (1927). As in Rimes, under earlier pleading standards, lack of a venue allegation raised the danger of inadequate protection from double jeopardy. This common law requirement is made a part of the modern procedural rules in Florida Rule of Criminal Procedure 3.140(d)(3), but it is also to be read in pari materia with subsection (o) of that same rule, quoted above.

Nor does any policy argument support absolute adherence to that archaic rule of pleading. Modern discovery procedures have vitiated the danger of prejudice in the preparation of a defense and have led to a relaxation of strict pleading requirements. See, e.g., York v. State, 432 So.2d 51 (Fla.1983); Sparks v. State, 273 So.2d 74 (Fla.1973). Double jeopardy safeguards are a part of both procedural rules, see, e.g., Florida Rule of Criminal Procedure 3.190(e)(2), and substantive law. Amend. Y, U.S. Const; art. I, § 9, Fla. Const.; Blockburger v. United States.

We therefore hold that failure to allege venue in an indictment or information is an error of form, not of substance and such a defect will not render the charging instrument void absent .a showing of prejudice to the defendant. In so doing, we recede from Black.

Petitioner also raises the question of whether trial counsel’s request for instructions on lesser-included offenses was an effective waiver of the statute of limitations defense against conviction for such time-barred offenses, so that the trial court erred in refusing to give the requested instructions. To address the issue, we must first determine whether a defendant may waive the statute of limitations defense. For the reasons so clearly and persuasively set forth by the Third District, we hold that the defense is a waivable one.

We also agree with the district court that the mere request for instructions on time-barred lesser-included offenses is not an effective waiver. Petitioner argues that under Ray v. State, 403 So.2d 956 (Fla.1981), he would be estopped from later challenging a conviction on the basis of such a requested instruction. This may be so, but it misses the central concern of the courts.

The statute of limitations defense is an absolute protection against prosecution or conviction. Before allowing a defendant to divest himself of this protection, the court must be satisfied that the defendant himself, personally and not merely through his attorney, appreciates the nature of the right he is renouncing and is aware of the potential consequences of his decision. We agree with the state’s position that an effective waiver may only be made after a determination on the record that the waiver was knowingly, intelligently and voluntarily made; the waiver was made for the defendant’s benefit and after consultation with counsel; and the waiver does not handicap the defense or contravene any of the public policy reasons motivating the enactment of the statute.

Granting a waiver on the bare request for instructions contained in the record before us would certainly fail to protect a defendant’s best interests and might leave the conviction on otherwise time-barred offenses vulnerable to collateral attack.

Accordingly, the certified question is answered in the negative because we hold that failure to allege venue is not a fundamental defect in an indictment. We also approve the district court’s ruling that the request for jury instructions on lesser-included but time-barred offenses did not effect a valid waiver of the statute of limitations defense and that therefore the trial court did not err in refusing to give such instructions.

It is so ordered.

ALDERMAN, McDONALD and SHAW, JJ., concur.

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

ADKINS, J., dissents with an opinion.

OVERTON, J., dissents.

BOYD, Chief Justice,

concurring in part and dissenting in part.

I concur with that portion of the majority opinion which holds that under the facts of this case, the failure of the indictment to allege facts indicating that venue was proper did not constitute a fundamental defect rendering the indictment fatally invalid and that therefore the lack of prejudice and the lack of a pre-trial objection combine to preclude appellate relief on the issue. I dissent, however, to that portion of the majority opinion which holds that the trial court was not obliged to, instruct the jury on lesser included offenses.

I would hold that the trial court erred in refusing to instruct the jury on the elements of the less serious, included offenses of first degree murder and that because of the error the petitioner is entitled to a new trial.

At the time of petitioner’s trial, Florida Rule of Criminal Procedure 3.490 provided:

If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.

Florida Rule of Criminal Procedure 3.510 at that time provided as follows:

Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.

These two rules gave the petitioner the right to have the jury instructed on the less serious, included offenses of the crime charged. Under a long line of judicial precedent, the improper failure to follow these requirements must result in a new trial. As recently as March, 1983, we again made it clear that reversible error results from the failure to recognize this important procedural safeguard. State v. Bruns, 429 So.2d 307 (Fla.1983). See State v. Abreau, 363 So.2d 1063 (Fla.1978); Lomax v. State, 345 So.2d 719 (Fla.1977); Brown v. State, 206 So.2d 377 (Fla.1968); Hand v. State, 199 So.2d 100 (Fla.1967). Under Rules of Criminal Procedure 3.490 and 3.510, the court was required to instruct the jury on the lower degrees of unlawful homicide and any other necessarily included offenses that might have been applicable depending on the kinds of evi-dentiary questions the jury was called upon to resolve.

In State v. Bruns, 429 So.2d 307 (Fla.1983), this Court said:

Whether the evidence is susceptible of inference by the jury that the defendant is guilty of a lesser offense than that charged is a critical evidentiary matter exclusively within the province of the jury. Lomax v. State, 345 So.2d 719 (Fla.1977); Hand v. State, 199 So.2d 100 (Fla.1967). Fundamental trial fairness requires that a defendant being tried for robbery should be permitted to have an instruction on a lesser-included offense upon timely request. 199 So.2d at 102-03.

Id. at 309-10. Fundamental fairness requires that one charged with first-degree murder receive the same protection. The purpose of the instructions when the evidence supports the existence of both the greater and lesser crimes is not, as the district court below opined, to allow a “jury pardon.” The practice is followed because the determination of which crime the evidence shows is not the province of the judge but is that of the jury. State v. Terry, 336 So.2d 65 (Fla.1976).

The fact that under the applicable criminal statute of limitations there could be no convictions on any of the less serious, included offenses should make absolutely no difference in deciding whether to afford the accused this fundamentally necessary protection. As every jury serving in the Florida courts is told, the responsibility of the judge is to determine the law and the responsibility of the jury is to determine the facts. “Thus, the province of the jury and -the province of the court are well defined, and they do not overlap. This is one of the fundamental principles of our system of justice.” Florida Standard Jury Instructions in Criminal Cases, Instruction 1.01 (1981). So, it is the function of the jury to decide whether the accused committed the criminal conduct charged, whether the conduct constituted commission of one of the applicable less serious offenses, or whether he is guilty of no crime at all. If the jury finds that the accused is guilty of an offense upon which the statutory limitations period has run, then the trial judge must of course rule that no conviction may be entered upon such a verdict and must therefore acquit and release the defendant. Such a ruling by the judge may properly be viewed as “a separate, legal matter with which the factfinder need have no concern.” Holloway v. Florida, 449 U.S. 905, 908, 101 S.Ct. 281, 283, 66 L.Ed.2d 137 (1980) (Blackmun, J., joined by Brennan and Marshall, J.J., dissenting from denial of certiorari) (emphasis in original, footnote omitted), denying cert. to, Holloway v. State, 362 So.2d 333 (Fla. 3d DCA 1978), cert. denied, 379 So.2d 953 (Fla.1980).

The jury need not and should not be told that the statute of limitations applicable to the less serious, included offenses has expired. To so instruct the jury might prejudice the right of the accused to a fair trial. Such knowledge might distract the jury from concentration on their fact-finding duties and might improperly cause them to find guilt on the highest charge, upon which the statute has not run, rather than returning a verdict for a lower offense proven by the evidence.

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the United States Supreme Court reversed a conviction for capital murder because the statutory procedure under which the conviction was obtained did not allow for instructions on lesser included offenses and under the evidence the jury might have believed the defendant was guilty only of the lesser included offense of felony murder. Without holding that such instructions are required by the due process clause, the Court reasoned that the prohibition on jury consideration of a lesser included offense supported by evidence created an enhanced risk of an unwarranted conviction which was intolerable in a death penalty case. Although the petitioner here is not under a sentence of death, it should be remembered that he was accused and convicted of a capital crime and that it was the jury verdict of guilt of first-degree murder that subjected petitioner to the possibility of being sentenced to death. The fact that petitioner was instead sentenced to life imprisonment without eligibility for parole for twenty-five years does not denigrate his fundamental interest in receiving the benefits of this important procedural safeguard. I would hold that such instructions on lesser included offenses are required not only by our criminal procedure rules but also by principles of due process.

In Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), an Indian had been convicted in federal court of assault with intent to inflict injury under a statute giving federal courts jurisdiction over certain serious crimes committed by Indians on Indian reservations. The defendant claimed he was entitled to an instruction on a lesser included offense but the instruction was refused because the lesser offense was not among those covered by the limited statutory conferral of jurisdiction. (Therefore, presumably a verdict on the lesser offense would have been a nullity since the court had no power to enter judgment thereon). The United States Supreme Court held that the instruction should have been given. Although this ruling was grounded on a statutory directive that defendants in trials under the act were to have the same procedural rights as all other accused persons in the federal courts, the Court went on to say that to read the statute otherwise “would raise difficult constitutional questions.” 412 U.S. at 213, 93 S.Ct. at 1998. The Court explained the importance of lesser included offense instructions as follows:

[I]f the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction— in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly quilty of some offense, the jury is likely to resolve its doubt in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option — convicting the defendant of simple assault— could not have resulted in a different verdict.

412 U.S. at 212-13, 93 S.Ct. at 1997-98.

In addition to the due process grounds discussed above, I believe that the refusal to instruct the jury on lesser included offenses because such lesser offenses were not subject to prosecution due to the statute of limitations was a violation of petitioner’s right to equal protection of the laws. Petitioner was denied a procedural right widely agreed to be of substantial benefit to the criminally accused. Other persons accused of first-degree murder are routinely granted this procedural right. Thus it is clear that persons similarly situated are being treated differently. The only factor distinguishing the cases is the fact that in petitioner’s case the lesser included offenses are not themselves viable offenses in the sense of being subject to prosecution. In the general field of criminal justice, courts should be especially sensitive to differential treatment of different categories of accused persons. See, e.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The denial of a valuable procedural right on the grounds relied upon here is an arbitrary discrimination and should not be allowed. Holloway v. State, 379 So.2d 953, 954-55 (Boyd, J., dissenting to denial of certiorari).

A number of authorities, including the authors of the majority, special concurring, and dissenting opinions in the district court below, have suggested resolution of the due process and equal protection problems presented by this case by allowing the instructions to be given when the accused waives the statute of limitations as a defense to conviction of one of the lesser included offenses should the jury return a verdict thereupon. Petitioner’s counsel very ably argues that waiver of the expiration of the limitations period on the lesser included offenses should be permitted and that petitioner’s request for the instructions was impliedly such a waiver. For several very important legal and policy reasons, I would hold that the accused need not tender such a waiver in order to claim the benefit of full instructions, and I dissent to the contrary suggestions in the majority opinion.

In the first place, the statute of limitations not only creates a right of the accused to be prosecuted within a time certain after the commission of the alleged crime, it also expresses a substantive policy of the state against the bringing of stale prosecutions. See Lane v. State, 337 So.2d 976 (Fla.1976); State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974). Normally an accused is not placed in the position of having the choice of whether to waive the statute, because the statute simply provides that prosecutions after the expiration of a certain time shall not be brought. Thus the commencement of prosecution within the applicable time period measured from the commission of the crime is a jurisdictional fact which must appear on the face of the accusatory instrument. Mead v. State, 101 So.2d 373 (Fla.1958). The burdens of pleading and proof are on the state. Lowe v. State, 154 Fla. 730, 19 So.2d 106 (1944).

As was stated above, petitioner himself argues that the accused should be allowed to waive the statute of limitations in order to receive the benefit of instructions on lesser included offenses. Petitioner’s counsel must of course argue for an outcome that may be the best his client can hope for in the situation even though it may not be best for the criminal justice system at large. I would hold that the instructions should be given without such a waiver and, indeed, that such a waiver cannot be effective. In Mitchell v. State, 157 Fla. 121, 25 So.2d 73 (1946), our Court dealt with this situation in the context of a legislative provision in the statute of criminal limitations and explained the danger inherent in the approach argued for by petitioner and suggested by the district court judges below. There the statute specifically provided, in capital cases commenced by indictment, for verdicts and convictions on lesser included offenses even though the limitations period might have run on such lesser offenses. The appellant was indicted for first-degree murder and convicted of second-degree murder after the statute of limitations for second-degree murder had expired. The Court held that this statute improperly ordained differential treatment of persons guilty of such lesser offenses depending on whether they were charged by indictment or information. To enforce the statute as written, the Court said, “would be tantamount to allowing the prosecuting officer to determine whether or not the statute of limitations should or should not be applicable.” 157 Fla. at 125, 25 So.2d at 75. The Court explained as follows:

A jury has said this man is not guilty of murder in the first degree and, therefore, he is entitled to every benefit to which any one else can be entitled who is also only guilty of murder in the second degree. This right of equal protection may not be taken away by the State choosing to proceed with the prosecution by some method which will deprive him of the benefit of the statute of limitations while others guilty of the like offense may have the benefit of the statute of limitations because the State has eho-sen to proceed with the prosecution by a different method.

Mitchell v. State, 157 Fla. at 125-26, 25 So.2d at 75. If this Court at some future time holds that the accused must waive the statute of limitations in order to receive jury instructions on lesser included offenses, it will allow overzealous prosecutors in cases of second-degree murder and manslaughter upon which the statute has run to circumvent the statute of limitations by seeking indictments for first-degree murder and then forcing the accused to waive the statute of limitations defense.

For the foregoing reasons I believe we should overrule Blackmon v. State, 88 Fla. 188, 101 So. 319 (1924), and Perry v. State, 103 Fla. 580, 137 So. 798 (1931), and their progeny, including Spaziano v. State, 393 So.2d 1119 (Fla.), cert. denied, 454 U.S. 1037, 102 S.Ct. 581, 70 L.Ed.2d 484 (1981). Due process and equal protection are evolving concepts and the time has come to correct this defect in our criminal jurisprudence. I therefore dissent. I would reverse the conviction and remand for a new trial, with directions to the trial court to instruct the jury on all lesser included offenses as required by Florida Rules of Criminal Procedure 3.490 and 3.510.'

ADKINS, Justice,

dissenting.

I respectfully dissent.

The smoke of the battle in our fight on crime has blacked out constitutional rights causing this Court to swing the sword of justice so blindly that it cuts down some of these fundamental rights in its efforts to behead a criminal. State v. Black, 385 So.2d 1372 (Fla.1980), is nearing the age of five years. The majority says the well established rule of law set forth in Black outlived its usefulness and should be discarded. I would safeguard this rule in an effort to protect one of the old fashioned constitutional rights our forefathers proudly gave us.

I adopt my opinion in State v. Black as the dissenting opinion in this case.

       Florida Rules of Criminal Procedure 3.490 and 3.510 have been amended since the time of petitioner’s trial. See In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981). Also, the categories of "lesser included offenses” have been modified. In the Matter of Use by Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 596 (Fla.1981). But the essential principles upon which I rely remain unchanged as will be seen.


author: PER CURIAM.

text:
    DEPARTMENT OF CORRECTIONS, Petitioner, v. Ivia Jean NEWSOME, Respondent.
    No. 64268.
    Supreme Court of Florida.
    Nov. 8, 1984.
    Jim Smith, Atty. Gen., and Pamela Lut-ton-Shields and Louis F. Hubener, Asst. Attys. Gen., Tallahassee, for petitioner.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, and Wagner, Cunningham, Vaughan & McLaughlin, Tampa, for respondent.
   PER CURIAM.

We originally accepted jurisdiction in this cause, reported below as Newsome v. Department of Corrections, 435 So.2d 887 (Fla. 1st DCA 1983), on the basis of conflict with Mastrandrea v. J. Mann, Inc., 128 So.2d 146 (Fla.3d DCA), cert. denied, 133 So.2d 320 (Fla.1961). After hearing oral argument, however, we find that there is no express and direct conflict and, consequently, there is no basis for this Court to accept jurisdiction in this cause. The petition for review is denied.

It is so ordered.

OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., and ADKINS, J., dissent.

NO MOTION FOR REHEARING WILL BE ENTERTAINED BY THE COURT. SEE FLA.R.APP.P. 9.330(d).


text:
    THE FLORIDA BAR, Complainant, v. Jeffrey L. MELDON, Respondent.
    No. 65443.
    Supreme Court of Florida.
    Nov. 15, 1984.
    John F. Harkness, Jr., Executive Director; John T. Berry, Staff Counsel and John A. Boggs, Director of Lawyer Regulation, Tallahassee, for complainant.
    John A. Weiss of Anderson & Weiss, Tallahassee, and Samuel S. Jacobson of Datz, Jacobson & Lembcke, Jacksonville, for respondent.
   PER CURIAM.

Jeffrey Meldon, a member of The Florida Bar, pled guilty in federal district court to a charge of conspiring to defraud the federal government by impeding, impairing, obstructing, and defeating the lawful function of the Internal Revenue Service in the ascertainment, computation, assessment, and collection of income taxes. The charges stemmed from Meldon’s assisting another person in his willful failure to file income tax returns and to pay income taxes due the federal government. The court sentenced Meldon to five years’ imprisonment, but suspended that sentence and placed him on five years’ probation conditioned upon Meldon’s compliance with the following conditions: 1) comply with all probation office rules and regulations; 2) obey all local, state, and federal laws; 3) perform 2,000 hours of pro bono legal services in eighteen and one-half months or, if prohibited from practicing law, perform 2,000 hours of community service within that time period; and 4) not represent anyone charged with a drug law violation.

The Florida Bar has filed a notice of felony conviction, requesting that Meldon be suspended from the practice of law until further order of this Court. Meldon, on the other hand, argues that the federal court adjudicated him guilty of only a misdemeanor rather than a felony and that an indefinite suspension is unwarranted. He contends that a public reprimand would be sufficient and that he has demonstrated his rehabilitation. In support of this contention Meldon has submitted numerous letters commending him for his community service and for his current work, without compensation, as supervisor of the county court division for the eighth circuit’s office of the public defender.

We commend Meldon for his community service. We find, however, that we cannot agree to the disciplinary action he proposes.

To support his claim that he pled guilty to a misdemeanor, Meldon directs our attention to 26 U.S.C.A. §§ 7203 and 7207 (West Supp.1984). These sections provide, respectively, that the willful failure to file a return, supply information, or pay tax and the willful delivery of fraudulent returns, statements, or other documents are misdemeanors. These same actions, however, are felonies under 26 U.S.C.A. §§ 7201 and 7206 (West 1967 & Supp.1984). These crimes contain different elements, and, when the elements of the crimes alleged against Meldon are compared with those in the statutes, we are convinced that Meldon pled guilty to felony charges.

Article XI, rule 11.07(4), Florida Bar Integration Rule, provides, in part:

Unless the Supreme Court permits an earlier application for reinstatement, the suspension imposed on the conviction shall, after final conviction, remain in effect for three years and thereafter until civil rights have been restored and until the convicted attorney is reinstated under

rule 11.11. As stated previously: “All events in an attorney’s life ... are, in effect, overwhelmed by a felony conviction. The purpose of [rule 11.07] is to cleanse the profession of those who cannot themselves abide by the law.” The Florida Bar v. Prior, 330 So.2d 697, 702 (Fla.1976) (Overton, C.J., & England, J., concurring specially). We deem it improper for a person whose civil rights have been forfeited because of a felony conviction to be allowed to practice law. To encourage respect for and confidence in the evenhanded administration of justice, we find we must suspend Meldon. The suspension will be effective until Meldon is either pardoned or has his civil rights restored and until he complies with rule 11.11. The suspension will be effective thirty days from the filing of this opinion.

It is so ordered.

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

ADKINS, J., dissents.


text:
    THE FLORIDA BAR, Petitioner, v. Frank W. PETERMAN, Respondent.
    No. 65787.
    Supreme Court of Florida.
    Nov. 21, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needel-man, Fort Lauderdale, for petitioner.
    Frank W. Peterman, Lauderdale Lakes, in pro. per.
   PER CURIAM.

This matter is before the Court on respondent’s Petition for Leave to Resign Permanently Without Leave to Reapply, pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Florida Bar filed its response supporting the Petition and stating:

1. That Mr. Peterman is endeavoring to make restitution to his clients as noted in the Petition;

2. That Mr. Peterman has agreed to cooperate with any client security fund investigation made by The Florida Bar;

3. That Mr. Peterman has waived confidentiality of all disciplinary matters mentioned in his Petition for Resignation; and

4. That the Petition is without leave to apply for readmission permanently. Pursuant to article XI, Rule 11.08(6), of the Integration Rule, such condition shall preclude any readmission.

The Court having reviewed the Petition for Leave to Resign and the response of The Florida Bar and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign Permanently Without Leave to Reapply is hereby approved, effective immediately.

Costs in the amount of $184.40 are hereby taxed against respondent.

It is so ordered.

ADKINS, A.C.J., and OVERTON, ALDERMAN, McDonald and SHAW, JJ., concur.


text:
    Gary Eldon ALVORD, Petitioner, v. STATE of Florida, Respondent.
    No. 66176.
    Supreme Court of Florida.
    Nov. 21, 1984.

      Wm. J. Sheppard and Elizabeth L. White of the Law Offices of Wm. J. Sheppard, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., and Ann Garrison Paschall and Peggy A. Quince, Asst. Attys. Gen., Tampa, for respondent.
   PER CURIAM.

Gary Eldon Alvord petitions for a writ of extraordinary relief and requests that this Court require a judicial determination of his competency to be executed. Alvord also seeks a stay of execution. This Court has jurisdiction under the all-writs provision of article V, section 3(b)(7), of the Florida Constitution.

This is the fourth time this cause has been before this Court for review. Alvord was convicted of three counts of first-degree murder and sentenced to death in 1974. This Court affirmed those convictions in its decision reported as Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226, rehearing denied, 429 U.S. 874, 97 S.Ct. 195, 50 L.Ed.2d 157 (1976).

In a subsequent collateral attack on his conviction, Alvord sought a reduction of sentence under Florida Rule of Criminal Procedure 3.800(b). The trial court denied relief and Alvord petitioned for writ of mandamus. This Court denied relief in an unreported order on March 10, 1977.

Alvord subsequently filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The trial court, after an exhaustive evidentiary hearing, denied the motion. This Court affirmed the trial court’s order deifying relief. Alvord v. State, 396 So.2d 184 (Fla.1981).

The petitioner then sought relief by a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. The court denied relief with respect to his conviction, but directed the State of Florida to conduct a new sentencing hearing. Alvord v. Wainwright, 564 F.Supp. 459 (M.D.Fla.1983). On appeal, the Circuit Court of Appeals for the Eleventh Circuit affirmed the district court’s denial of relief with regard to Al-vord’s conviction and reversed the district court’s granting of relief with regard to Alvord’s sentence. Alvord v. Wainwright, 725 F.2d 1282 (11th Cir.), rehearing denied, 731 F.2d 1486 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). The competency of the defendant at both the time of trial and the time of the offense was in issue in these proceedings as is reflected in the reported opinions.

In 1979, during the pendency of Alvord’s 3.850 proceeding, the Governor of Florida invoked the provisions of section 922.07, Florida Statutes (1979), and directed that Alvord be examined by three psychiatrists to determine whether he understood the nature and effect of the death penalty and why it was to be imposed upon him. Al-vord, through his counsel, objected and refused to cooperate in this procedure.

On November 16, 1984, five days before oral argument in this cause, counsel for Alvord advised the governor of his belief that his client is presently insane and requested the governor to examine Alvord pursuant to section 922.07. On November 20, 1984, the governor issued Executive Order No. 84-214, granting this request and directed that a panel of psychiatrists examine Alvord on Monday, November 26, 1984.

In this proceeding, Alvord argues that, separate and apart from the procedure outlined in section 922.07, he is entitled to a judicial determination of whether he is competent to be executed. Alvord asserts that a judicial determination of competency is necessary to protect his right to due process and to avoid the imposition of cruel and unusual punishment. We resolved this issue in our recent decision in Goode v. Wainwright, 448 So.2d 999 (Fla.1984). See also Goode v. Wainwright, 731 F.2d 1482 (11th Cir.1984); Ford v. Wainwright, 451 So.2d 471, 472 (Fla.1984). In our decision in Goode, we relied upon Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950), and specifically rejected the contention that the statutory process set forth in section 922.07 was unconstitutional because due process was not provided through a judicial determination of competency in an adversary proceeding. We held that Hysler v. State, 136 Fla. 563, 187 So. 261 (1939), was no longer applicable given our present statutory process that places in the executive branch the authority to determine competency to be executed. 448 So.2d at 1001-02.

We reject Alvord’s contention that our decisions in Goode and Ford are factually distinguishable from the instant case. Al-vord claims that his prior adjudication in Michigan of not guilty by reason of insanity, his resulting commitment, and the fact that there has not been a subsequent judicial restoration of sanity result in a continuing presumption of insanity. We find that this factor does not control our determination of the issue presented in this proceeding and note that, when Alvord was found competent to stand trial, the trial court had full knowledge of his previous adjudication of not guilty by reason of insanity and his subsequent commitment.

The governor is proceeding to make a competency determination under section 922.07 and we find neither an abuse of his authority nor a denial of due process. The petition for writ of extraordinary relief and the petition for stay of execution are denied.

It is so ordered.

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