Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975). · Go Syfert
Search
Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975). Cases Citing This Book View Copy Cite
“substantive law prescribes the duties and rights under our system of government. . . . procedural law concerns the means and method to apply and enforce those duties and rights.”
101 citation events (38 in the last 25 years) across 9 distinct courts.
Strongest positive: Matthew Dettle v. State of Florida (fla, 2024-10-24)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 46 distinct citers.
discussed Cited as authority (verbatim quote) Matthew Dettle v. State of Florida
Fla. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
substantive law prescribes the duties and rights under our system of government. . . . procedural law concerns the means and method to apply and enforce those duties and rights.
discussed Cited as authority (verbatim quote) Emma Gayle Weaver, etc. v. Stephen C. Myers, M.D. (2×) also: Cited as authority (rule)
Fla. · 2017 · quote attribution · 1 verbatim quote · confidence high
he statute must prevail over our rule because the subject is substantive law.
discussed Cited as authority (verbatim quote) RJA v. Foster (2×) also: Cited as authority (rule)
Fla. · 1992 · signal: see · quote attribution · 1 verbatim quote · confidence high
substantive law prescribes the duties and rights under our system of government... . procedural law concerns the means and method to apply and enforce those duties and rights.
discussed Cited as authority (rule) In Re: Amendments to the Florida Evidence Code
Fla. · 2019 · confidence medium
Co., 439 So. 2d 880, 883 (Fla. 1983)); Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975) (“The responsibility to make substantive law is in the legislature within the limits of the state and federal constitutions . . . .
cited Cited as authority (rule) STATE OF FLORIDA v. TASHANE M. CHANTILOUPE
Fla. Dist. Ct. App. · 2018 · confidence medium
Procedural law concerns the means and method to apply and enforce those duties and rights.” Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975).
discussed Cited as authority (rule) North Broward Hospital District v. Kalitan
Fla. Dist. Ct. App. · 2015 · confidence medium
The Florida Supreme Court “has the sole power to determine whether [its] decision should be prospective or retroactive in application.” Benyard v. Wainwright, 322 So.2d 473, 474 (Fla.1975) (citing Linkletter v. Walker, 381 U.S. 618 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965)).
discussed Cited as authority (rule) fladistctapp 2015
Fla. Dist. Ct. App. · 2015 · confidence medium
The Florida Supreme Court “has the sole power to determine whether [its] decision should be prospective or retroactive in application.” Benyard v. Wainwright, 322 So. 2d 473, 474 (Fla. 1975) (citing Linkletter v. Walker, 381 U.S. 618 (1965)).
cited Cited as authority (rule) Adhin v. First Horizon Home Loans
Fla. Dist. Ct. App. · 2010 · confidence medium
Procedural law concerns the means and methods to apply and enforce those duties and rights.” Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975).
discussed Cited as authority (rule) In Re Amendment to Rule of Juv. Proc. 8.165 (A)
Fla. · 2008 · confidence medium
Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975); see also Allen v. Butterworth, 756 So.2d 52, 60 (Fla.2000) (citing In re Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla. 1972) (Adkins, J., concurring)). [5] The magnitude of a problem with unrepresented juveniles is highlighted in the June 2002 Final Report of the Florida Bar's Commission on the Legal Needs of Children.
discussed Cited as authority (rule) Massey v. David
Fla. · 2008 · confidence medium
See, e.g., Boyd v. Becker, 627 So.2d 481, 484 (Fla.1993) ("While the Florida Constitution grants this Court exclusive rule-making authority, this power is limited to rules governing procedural matters and does not extend to substantive rights."); Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975) ("In our opinion, the statute must prevail over our rule because the subject is substantive law."); *950 Hines v. State, 931 So.2d 148, 150 (Fla. 1st DCA 2006) ("When a statute confers a substantive right, a conflicting procedural rule is invalid as a violation of separation of powers under article …
cited Cited as authority (rule) Childers v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975).
cited Cited as authority (rule) Childers v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975).
discussed Cited as authority (rule) Chandler v. Crosby (2×)
Fla. · 2005 · confidence medium
Cf. Tascano v. State, 393 So.2d 540, 541 (Fla.1980) (determining in certiorari proceedings that rule change requiring jury instruction on minimum and maximum authorized sentences upon request would be prospective only); Benyard v. Wainwright, 322 So.2d 473, 474 (Fla.1975) (determining in mandamus proceedings that decisions prohibiting deferral of effective date for parole revocation and requiring first sentence imposed to be served first would be applied retroactively).
discussed Cited as authority (rule) Johnson v. State
Fla. · 2005 · confidence medium
See, e.g., the following cases decided before this Court's decision in Witt , in which this Court also applied a rule of law retroactively: Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975) (holding that decision in Brumit v. Wainwright, 290 So.2d 39, 42 (Fla. 1974), which held that the Parole Commission may not delay the effective date of a parole revocation until the new sentence for the offense causing the revocation is completed, warranted retroactive application); State v. Statewright, 300 So.2d 674 , 677 @ (Fla.1974) (acknowledging a limited retroactivity of Miranda v. Arizona, 384 U.…
discussed Cited as authority (rule) Hughes v. State
Fla. · 2005 · confidence medium
See e.g., the following cases decided before this Court's decision in Witt , in which this Court also applied a rule of law retroactively: Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975) (holding that decision in Brumit v. Wainwright, 290 So.2d 39 (Fla. 1974), which held that the Parole Commission may not delay the effective date of a parole revocation until the new sentence for the offense causing the revocation is completed, warranted retroactive application); State v. Statewright, 300 So.2d 674, 677 (Fla.1974) (acknowledging a limited retroactivity of Miranda v. Arizona, 384 U.S. 436 ,…
discussed Cited as authority (rule) Kerr Const., Inc. v. Peters Contracting, Inc. (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 2000 · confidence medium
Substantive laws, on the other hand, are those laws which prescribe "duties and rights." See Alamo Rent-A-Car v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (citing Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975)).
discussed Cited as authority (rule) Kerklin v. Godwin
Fla. Dist. Ct. App. · 1999 · confidence medium
See § 921.16, Fla. Stat. (1997) (sentences for offenses not charged in the same indictment, information, or affidavit are consecutive unless affirmatively designated concurrent during sentencing); Benyard v. Wainwright, 322 So.2d 473, 476 (Fla.1975). .
discussed Cited as authority (rule) Serna v. Milanese, Inc.
Fla. Dist. Ct. App. · 1994 · confidence medium
As we stated in Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975), substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.
discussed Cited as authority (rule) Alamo Rent-A-Car, Inc. v. Mancusi
Fla. · 1994 · confidence medium
As we stated in Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975), substantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.
discussed Cited as authority (rule) Moreland v. State
Fla. · 1991 · confidence medium
NOTES [1] Thus, we disapprove the conclusion in Nova v. State, 439 So.2d 255 (Fla. 3d DCA 1983), that infringements on sixth amendment rights necessarily constitute error which can be raised in collateral proceedings despite lack of objection at trial. [2] We cannot fault the district court for reaching what we now find to be an erroneous conclusion because "retroactive application is not constitutionally required and ... this Court has the sole power to determine whether our decision should be prospective or retroactive in application." Benyard v. Wainwright, 322 So.2d 473, 474 (Fla. 1975). […
cited Cited as authority (rule) Hart v. State
Fla. Dist. Ct. App. · 1981 · confidence medium
As stated in Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975): Substantive law prescribes the duties and rights under our system of government.
discussed Cited as authority (rule) Wait v. Florida Power & Light Co.
Fla. · 1979 · confidence medium
In Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975), we distinguished substantive law from procedural law, stating: Substantive law prescribes the duties and rights under our system of government.
discussed Cited "see" State of Florida v. J.A.R., etc.
Fla. · 2021 · signal: see · confidence high
See Beynard v. Wainwright, 322 So. 2d 473, 476 (Fla. 1975) (noting that a statute controls over an inconsistent rule of procedure); see also Kuhajda v. Borden Dairy Co. of Ala., 202 So. 3d 391, 395-96 (Fla. 2016).
cited Cited "see" WILLIAM J. BRYAN, IV v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2018 · signal: see · confidence high
See Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975); Fox v. State, 827 So. 2d 377 (Fla. 3d DCA 2002).
discussed Cited "see" Kenz v. Miami-Dade County
Fla. Dist. Ct. App. · 2013 · signal: see · confidence high
This Court has explained, “[S]ubstantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994); see Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975).
discussed Cited "see" Sottilaro v. Figueroa
Fla. Dist. Ct. App. · 2012 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975) ("Substantive law prescribes the duties and rights....
cited Cited "see" Fox v. State
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473 (Fla.1975).
discussed Cited "see" Shaps v. Provident Life & Acc. Ins. Co.
Fla. · 2002 · signal: see · confidence high
This Court has explained, "[S]ubstantive law prescribes duties and rights and procedural law concerns the means and methods to apply and enforce those duties and rights." Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla. 1994); see Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975).
cited Cited "see" Hall v. State
Fla. · 2002 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473 (Fla.1975).
cited Cited "see" Brannon v. State
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473, 474 (Fla.1975); Tascano v. State, 393 So.2d 540, 541 (Fla.1980).
cited Cited "see" Webb v. Webb
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See generally Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975).
cited Cited "see" Office of the Public Defender v. State
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975).
discussed Cited "see" Griffin v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473 (Fla.1975). 2 In State v. Garcia, 229 So.2d 236, 238 (Fla.1969), the Supreme Court stated: As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor, while procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.
discussed Cited "see" Sweat v. State
Fla. Dist. Ct. App. · 1984 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975). *751 Moreover, I note that the initial guidelines adopted by the Supreme Court as set forth In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla. 1983), were not adopted by the Legislature.
discussed Cited "see" State v. Inman
Fla. Dist. Ct. App. · 1977 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975); In Re: Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973); In Re: Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1973); Heberle v. P.R.O.
discussed Cited "see" Clark v. Walton
Fla. Dist. Ct. App. · 1977 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473 (Fla. 1975); State v. Garcia, 229 So.2d 236 (Fla. 1969); In re: Clarification of Florida Rules of Prac. & Pro., supra. Since we have determined the question of whether or not the Clerk need obtain a stay order is procedural than the Rule of the Supreme Court must take precedence over the Statute.
cited Cited "see" State, Department of Health & Rehabilitative Services, Division of Youth Services v. Golden
Fla. · 1976 · signal: see · confidence high
See Benyard v. Wainwright, 322 So.2d 473 (Fla.1975). .
discussed Cited "see, e.g." Ralph Waldo Emerson, IV v. State of Florida
Fla. Dist. Ct. App. · 2025 · signal: see also · confidence medium
See Williams v. State, 324 So. 2d 74, 80 (Fla. 1975) (noting its “philosophy that procedural practices should not be permitted to frustrate substantive rights”); Boyd v. Becker, 627 So. 2d 481, 484 (Fla. 1993) (“While the Florida Constitution grants this Court exclusive rule-making authority, this power is limited to rules governing procedural matters and does not extend to substantive rights.”); see also Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975) (opining that “substantive law” necessarily prevails over the court’s rules); cf. Fla. R.
discussed Cited "see, e.g." State of Florida v. Terry Hubbard
Fla. Dist. Ct. App. · 2024 · signal: see also · confidence medium
The Florida Supreme Court has explained that “substantive law is that which declares what acts are crimes and prescribes the punishment therefor, while procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.” Love v. State, 286 So. 3d 177 , 185 (Fla. 2019) (quoting State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969)); see also Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975).
discussed Cited "see, e.g." REBECCA HUGHES v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY
Fla. Dist. Ct. App. · 2023 · signal: see also · confidence medium
See also Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975) (stating that “[s]ubstantive law prescribes the duties and rights under our system of government,” while “[p]rocedural law concerns the means and method to apply and enforce those duties and rights”).
cited Cited "see, e.g." Luis Born-Suniaga v. State of Florida
Fla. · 2018 · signal: see also · confidence low
III, § 1, Fla. Const.; see also Benyard v. Wainwright , 322 So.2d 473 , 475 (Fla. 1975).
discussed Cited "see, e.g." In Re Commitment of Cartwright
Fla. Dist. Ct. App. · 2004 · signal: see, e.g. · confidence low
See, e.g., Benyard v. Wainwright, 322 So.2d 473 (Fla. 1975) (holding that statute prescribing circumstances under which sentences could be served consecutively was substantive measure which prevailed over inconsistent rule of court).
discussed Cited "see, e.g." Caple v. Tuttle's Design-Build, Inc.
Fla. · 2000 · signal: see also · confidence medium
See also Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975) (stating that "[s]ubstantive law prescribes the duties and rights under our system of government," while "[p]rocedural law concerns the means and method to apply and enforce those duties and rights").
discussed Cited "see, e.g." Bruce v. State
Fla. Dist. Ct. App. · 1996 · signal: see also · confidence medium
Contrary to the assumption made by the sentencing judge below, the legislature has vested the trial court with discretion in criminal cases to impose either concurrent or consecutive sentences in independent cases. § 921.16(1), Fla. Stat. (1993); see also Benyard v. Wainwright, 322 So.2d 473, 475 (Fla. 1975); State v. Hull, 545 So.2d 510 (Fla. 3d DCA), cause dismissed, 549 So.2d 1014 (Fla. 1989); Snell v. State, 438 So.2d 1038 (Fla. 2d DCA 1983); McNamara v. State, 324 So.2d 702 (Fla. 3d DCA 1975), cert. denied, 337 So.2d 809 (Fla.1976).
cited Cited "see, e.g." Livingston v. State
Fla. · 1983 · signal: see also · confidence low
See also Benyard v. Wainwright, 322 So.2d 473 (Fla. 1975); In re Clarification of Florida Rules of Practice & Procedure, 281 So.2d 204 (Fla. 1973).
cited Cited "see, e.g." Teffeteller v. State
Fla. Dist. Ct. App. · 1981 · signal: see also · confidence low
See also Benyard v. Wainwright, 322 So.2d 473 (Fla. 1975).
Johnny C. BENYARD, Petitioner,
v.
Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
46506.
Supreme Court of Florida.
Oct 29, 1975.
322 So. 2d 473
Overton.
Cited by 78 opinions  |  Published

[*474] Johnny C. Benyard, in pro per.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.

OVERTON, Judge.

Petitioning prisoner, by mandamus, seeks recalculation of his release date. We issued our alternative writ of mandamus.

The chronology of the criminal proceedings applicable to the petitioner is as follows:

(1) On February 24, 1967, petitioner was sentenced to a term of six months to ten years for the offense of manslaughter.

(2) On June 9, 1970, petitioner was paroled.

(3) On February 24, 1972, petitioner was sentenced to a term of six months to five years for breaking and entering with intent to commit a felony. The trial court was silent on whether the sentence was to be consecutive or concurrent to the existing manslaughter sentence.

(4) On March 27, 1972, the petitioner's parole was revoked by reason of the aforementioned breaking and entering conviction. The effective date of said parole revocation was deferred by the Commission's order until the petitioner completed the sentence for the breaking and entering offense.

Petitioner contends the manner of computation of his sentence violates the principles of Brumit v. Wainwright, 290 So.2d 39 (Fla. 1974), and Voulo v. Wainwright, 290 So.2d 58 (Fla. 1974). These cases hold that the Commission is prohibited from delaying the effective date of a parole revocation until the completion of the new sentence for the offense causing the revocation. They require that the first sentence imposed must be the first served. The petitioner further contends he is entitled to a recomputation of his release date in a manner that allows both sentences to be served concurrently.

The respondent, on the other hand, contends Brumit should be applied prospectively and not retroactively.

Numerous petitions have been filed with this Court for mandamus or habeas corpus to require a recomputation of a prisoner's sentence in accordance with the principles of Brumit v. Wainwright and Voulo v. Wainwright, supra. We have previously rendered decisions applying those principles. See Joseph v. State, 301 So.2d 772 (Fla. 1974), and Segal v. Wainwright, 304 So.2d 446 (Fla. 1974).

It is necessary that we clearly set down principles applicable to computation of sentence concerning (1) the prospective or retroactive application of the rule adopted in Brumit v. Wainwright, supra, and (2) where the sentencing court is silent, whether the sentence is consecutive or concurrent to a previously imposed sentence.

We recognize that retroactive application is not constitutionally required and that this Court has the sole power to determine whether our decision should be prospective or retroactive in application.[*475] Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). It is our opinion that the formula for computation of a prisoner's sentence should be the same for all prisoners. Therefore, the principle of Brumit prohibiting a deferred effective date for a parole revocation and requiring the first sentence imposed to be the first served shall be applied retroactively.

In so holding, we emphasize that this determination does not affect sentence computations where there is no prejudicial effect on the release date nor does it affect the legislative grant of authority to the judiciary to impose concurrent or consecutive sentences. The legislature has authorized concurrent and consecutive sentences in accordance with the provisions of Section 921.16, Florida Statutes (1973). The statute reads as follows:

"When sentences to be concurrent and when consecutive. — A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits, shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively. Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently."
[Emphasis supplied]

Pursuant to this statute, a sentence for a separate offense not charged in the indictment or information is consecutive to a previously imposed sentence when the sentencing court is silent.

We recognize direct conflict exists between Rule of Criminal Procedure 3.722, adopted February 1, 1973, and Section 921.16, Florida Statutes (1973). Our Rule of Criminal Procedure 3.722 directs that sentences are concurrent unless affirmatively designated as consecutive by the sentencing court. In our opinion, the statute must prevail over our rule because the subject is substantive law.

Substantive law prescribes the duties and rights under our system of government. The responsibility to make substantive law is in the legislature within the limits of the state and federal constitutions. Procedural law concerns the means and method to apply and enforce those duties and rights. Procedural rules concerning the judicial branch are the responsibility of this Court, subject to repeal by the legislature in accordance with our constitutional provisions. See In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla. 1973); In re Florida Rules of Criminal Procedure, 272 So.2d 65, amended 272 So.2d 513 (Fla. 1973).

The prescribed punishment for a criminal offense is clearly substantive law. State v. Garcia, 229 So.2d 236 (Fla. 1969). An argument can be made that the manner of the imposition of the sentence is procedural; however, it is our opinion that whether a sentence is consecutive or concurrent directly affects the length of time spent in prison and, therefore, rights are involved, not procedure. A judge should affirmatively state whether a sentence is consecutive or concurrent; when he fails to do so, it necessarily follows that the legislature has the primary authority to determine if the sentence should be consecutive or served concurrently with another sentence.

We recognize that it can be contended that Rule 3.722 does not control the situation in the instant case since the second sentence was imposed one year prior to its effective date. We have previously determined in this cause that there should be one formula for the computation of[*476] prison sentences, and we have applied Brumit retroactively in order to accomplish that purpose. Leaving Rule 3.722 in force would result in confusion and two alternative means of sentence computation because of the contention that it repealed Section 921.16 effective February 1, 1973. Our Rule of Criminal Procedure 3.722 is not controlling because of its substantive nature and must be revoked or amended to conform with the statute.

In the instant case petitioner contends that the two sentences should be served concurrently. This contention is without merit. From the record before us, the sentences in issue were for offenses not charged in the same indictment or information and the sentencing court did not direct that they be served concurrently. Under these facts, the provisions of Section 921.16, Florida Statutes (1973), require the sentence for breaking and entering to be consecutive to the sentence imposed for manslaughter. Because the second sentence is properly considered consecutive, the failure of the respondent to apply the Brumit rule would appear to have no prejudicial effect on the release date of the petitioner. The mathematical computation should be the same. We suggest, however, that the respondent review the entire record of this petitioner and recalculate his release date in accordance with the provisions of this opinion to ensure that he has not been denied proper credit for each day spent in jail subsequent to his initial conviction and sentence.

Petition is denied.

It is so ordered.

ADKINS, C.J., and ROBERTS and ENGLAND, JJ., concur.

HATCHETT, J., concurs in the result of opinion.