author: HATCHETT, Justice. SUNDBERG, Justice,

text:
    David MALDONADO et al., Petitioners, v. JACK M. BERRY GROVE CORP. et al., Respondents.
    No. 48560.
    Supreme Court of Florida.
    Sept. 22, 1977.
    Rehearing Denied Dec. 6, 1977.
    Ira H. Leesfield and Larry S. Stewart, of Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami, for petitioners.
    James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, for respondents.
   HATCHETT, Justice.

By petition for writ of certiorari, we review a decision of the Second District Court of Appeal, reported at 322 So.2d 608. That decision directly conflicts with Hix v. Billen, 284 So.2d 209 (Fla.1973). We have jurisdiction pursuant to Article V, Section 3(b)(3). We reverse.

Petitioner, a three-year-old child, was taken by his parents to the place of their employment, a citrus grove owned and operated by the respondent. The child was put into a large empty tub while his parents filled other tubs with fruit. According to the usual procedure, after the tubs were filled, they were emptied into a truck by means of a mechanical hydraulic lifting device known as a “goat.” The driver of the “goat,” operating the vehicle in reverse gear without a rear view mirror, backed over the child, who had climbed out of the tub, and severed his spinal cord.

The operator of the “goat” was a member of a fruit picking crew which had been hired by the Jack M. Berry Grove Corporation to perform fruit picking and related chores. Although the Berry Corporation was aware of the fact that its employees brought their minor children upon the premises, they had taken no precautions to protect the safety of the children.

The landowner attempted to discourage pickers from bringing their children into the groves, but there is evidence from which a jury might determine that such efforts were insufficient and unreasonable in light of the dangerous situation created by the presence of small children in the work areas.

The trial court granted a motion for summary judgment on behalf of Jack M. Berry Grove Corporation and its insurer, relying upon the decision of this Court in Wood v. Camp, 284 So.2d 691 (Fla.1973). The Second District Court of Appeal affirmed, determining that the injured chilli in the present case was an “uninvited licensee,” as defined in the Wood decision. The District Court noted .that a landowner owes a licensee a duty to refrain from wanton negligence or willful misconduct which might cause injury, to refrain from intentionally exposing the licensee to danger, and to warn of any dangerous latent defect or condition known to the landowner, but not open to ordinary observation to the licensee. There was no showing that Berry Grove failed to carry out this duty. However, Wood v. Camp, supra, involved negligence based upon a negligent condition of the premises, and the duty of the landowner in that regard. The present case involves alleged personal negligence on the part of the landowner. In Hix v. Billen, supra, 284 So.2d at 210, this Court held:

Where the presence of the injured person is known to the landowner and the injury is caused by the active conduct or affirmative negligence of the landowner as distinguished from the condition of the premises, ordinary negligence is the measure of care as in other negligence situations. (Emphasis supplied)

Only when liability is predicated upon an alleged defective or dangerous condition of the premises is the injured person’s status relevant. Wood controls the liability of a landowner for injuries arising out of a defect in the premises, whereas the standard of ordinary negligence set forth in Hix governs the liability of a landowner to a person injured on his property unrelated to any defective condition of the premises.

Here the grove itself was not dangerous. However, the operation of the “goat” among children present in the grove created a dangerous situation. In the presence of a known danger, the fact that a dangerous condition was created or partially caused by an independent contractor will not shield an employer/landowner from legal liability, if the employer/landowner was negligent in failing to take sufficient precautions to alleviate the dangerous situation.

Therefore, since there exists evidence upon which a jury might find Berry Grove negligent, resulting in the present injury, it was improper to have granted summary judgment in favor of Berry Grove. The District Court’s opinion is quashed, and the cause remanded for a jury trial.

It is so ordered.

ADKINS, BOYD and KARL, JJ., concur.

SUNDBERG, J., dissents with an opinion.

OVERTON, C. J., and ENGLAND, J., dissent and concur with SUNDBERG, J.

SUNDBERG, Justice,

dissenting.

I must respectfully dissent from the majority’s conclusion that this Court has jurisdiction in the instant case. It is asserted that the decision under review conflicts with Hix v. Billen, 284 So.2d 209 (Fla.1973), thereby vesting jurisdiction in this Court under Article V, Section 3(b)(3), Florida Constitution. Although the District Court of Appeal concluded that this case was controlled by Wood v. Camp, 284 So.2d 691 (Fla.1973), this Court maintains that the status of the child on the premises of the appellee is immaterial in determining the duty owed by the appellee to the child. This is so because “the standard of ordinary negligence set forth in Hix governs the liability of a landowner to a person injured on his property unrelated to any defective condition of the premises.” Conceding that Hix is an exception to the rule respecting the duty of the owner of land to persons who enter thereon, nonetheless the facts of this case are not like those in Hix in a very critical particular and, hence, there is no conflict in the decisions.

In Hix, the defendant was guilty of active, personal negligence. As pointed out in the opinion:

There is a distinction to be noted between active, personal negligence on the part of a landowner and that negligence which is based upon a negligent condition of the premises. (Emphasis supplied) Hix v. Billen, 284 So.2d 209, 210.

In this case, appellee’s liability, if any, is vicarious arising as it does out of the conduct of an employee of an independent contractor.

Although the District Court of Appeal expressly held that this case does not come within the principle “that where an employer gains knowledge of a dangerous situation created by an independent contractor, it may incur liability through its failure to halt the operation or otherwise remove the danger” the majority of this Court upon review of the same record and citation of the same authorities reaches the opposite conclusion. Apart from the question of the propriety of our reweighing the evidence in this regard, I suggest that even if this Court’s conclusion be correct, still there is no conflict either with the cases cited to support this principle or with Hix, supra. In neither Maule Industries v. Messana, nor Peairs v. Florida Publishing Co. was the dangerous situation created on the land of the defendant. Consequently, those cases cannot stand for the proposition that a landowner owes a higher duty of care to an uninvited licensee where his injuries result from a dangerous condition thereon created by employees of an independent contractor. Likewise, no conflict can arise from Warren v. Hudson Pulp & Paper Corp., 477 F.2d 229 (2d Cir. 1973), for two reasons. First, it is not the decision of a Florida court. Second, the plaintiff in Warren was expressly stated to be a business invitee to whom a higher degree of care is owed. As stated by the Circuit Court of Appeal:

In Florida, a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care. (Citations omitted) 477 F.2d 229, 233.

Even more important, as pointed out above, the liability imposed on the landowner in the instant case is vicarious and, therefore, passive. A clear distinction in the law is drawn between active and passive negligence and the results which flow from such conduct. The distinction is pointed up in cases involving indemnity as between joint tort-feasors. Where the active negligence of several tort-feasors concurs to cause injury to a claimant one tort-feasor is not entitled to indemnification against another. However, if the negligence of one is active and that of another is passive (vicarious) the passive tort-feasor may obtain indemnification from the active tort-feasor. See Seaboard Air Line Railway Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Armor Elevator Co., Inc. v. Elevator Sales & Service, Inc., 309 So.2d 44 (Fla.3d DCA 1975); Florida Power & Light Co. v. General Safety Equipment Co., 213 So.2d 486 (Fla.3d DCA 1968); Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla.1st DCA 1963).

For several reasons the reference in Hix, supra, to active, personal negligence cannot be ignored as non-thoughtful, loose phraseology. To begin with, in Wood v. Camp, supra, a decision concerning the liability of landowners filed eight days prior to Hix and authored by the same judge, the Court distinguished the latter case in the following terms:

The case of active negligence not related to the premises is of course a valid exception. Hix v. Billen, 284 So.2d 209. (Emphasis supplied) Wood v. Camp, 284 So.2d 691, 695.

In addition, it will be observed that the cases expressly overruled in Hix all involved active negligence as opposed to passive negligence or vicarious liability.

It may well be that passive negligence or vicarious liability should be included within the principle of the Hix case. But, the decision here under review simply is not in conflict with Hix in its failure to so extend the doctrine of that case.

Accordingly, I would discharge the writ of certiorari as having been improvidently granted.

OVERTON, C. J., and ENGLAND, J., concur.

      . Berry Admitted that injuries resulting from the operation of the “goats” were a frequent occurrence.

      . This is applicable to liability based upon either the active or passive negligence of the landowner, unaffected by those special duties created by a person’s “status” as set forth in Wood v. Camp, supra.

      . We do not hold that harvesting citrus is an inherently dangerous operation creating a non-delegable duty on the employer to exercise reasonable care to prevent harm to third persons when the independent contractor is performing inherently dangerous work, see Florida Power & Light Co. v. Price, 170 So.2d 293 (FIa.1964).

        . Maule Industries v. Messana, 62 So.2d 737 (Fla.1953); Peairs v. Florida Pubiishing Co., 132 So.2d 561 (Fla.1st DCA 1961); Warren v. Hudson Pulp & Paper Corp., 477 F.2d 229 (2nd Cir. 1973).

      . The majority does not fault the determination by the District Court of Appeal that the child occupied the status on appellee’s land of an uninvited licensee.

      . 62 So.2d 737 (Fla.1953).

      . 132 So.2d 561 (Fla.1st DCA 1961).


source: Caselaw Access Project

author: KARL, Justice.

license: Public Domain

text:
    Wesley Anthony HOSTZCLAW, Petitioner, v. STATE of Florida, Respondent.
    No. 50431.
    Supreme Court of Florida.
    Sept. 22, 1977.

      J. Michael Burman of Montgomery, Ly-tal, Reiter, Denney & Searcy, West Palm Beach, for petitioner.
    David H. Bludworth, State’s Atty., and Stephen R. Koons, Asst. State’s Atty., West Palm Beach, for respondent.
   KARL, Justice.

This cause is before us on certiorari granted to review the decision of the District Court of Appeal in State v. Hostzclaw, reported at 351 So.2d 1033 (Fla. 4th DCA, 1976), which conflicts with State v. Cunningham, 324 So.2d 173 (Fla. 3rd DCA, 1975), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner was indicted for the first degree premeditated murder of a Delray Beach police officer. He moved to suppress several statements made by him during and subsequent to the grand jury investigation of the murder.

The trial court granted in part and denied in part the motion to suppress certain designated statements. Respondent appealed, and petitioner cross-appealed this order. The District Court affirmed in part and reversed in part the order of the trial court under review and expressly determined, inter alia, relative to suppression of petitioner’s statements to the polygraph operator after the polygraph was concluded, that there is no difference between an incriminating statement made to a polygraph operator after completion of a polygraph examination and an incriminating statement made freely and voluntarily to any other officer and that, therefore, the voluntary statements made to the polygraph operator after completion of the polygraph examination should not have been suppressed. The District Court concluded that petitioner’s cross-assignments of error were "without merit and that the trial court’s finding that immunity was not granted is supported by the record.

This Court granted certiorari because of apparent conflict with State v. Cunningham, supra, as to suppression of statements made to the polygraph operator after examination. The only issue warranting discussion involves whether appellee’s admissions to the polygraph operator should be suppressed.

In Cunningham, supra, the Third District Court of Appeal held that, although the results of a polygraph may be admitted into evidence upon stipulation between the state and defense counsel, generally polygraph tests and information gleaned therefrom are not admissible in criminal proceedings.

Petitioner submits that the same rationale applied to statements made during the tests disallowing admissibility should be applied to statements made immediately thereafter and as a direct result thereof. We do not agree with petitioner but, rather, find that the District Court, in the instant cause, decided the question correctly.

The Second District Court of Appeal, in Johnson v. State, 166 So.2d 798, 801-802 (Fla. 2d DCA, 1964), opined:

“The established rule that neither the result of a polygraph examination nor any allusion to such an examination to imply a certain result is admissible or proper, Kaminski v. State, Fla.1953, 63 So.2d 339, does not, in our view, label the polygraph a tree whose every fruit is forbidden.
“Perhaps the most frequent instances of a jury being advised of a defendant’s having taken a lie detector test are in cases involving confessions or admissions procured in anticipation of, during or subsequent to administration of a lie detector examination. It is well established that the mere fact that a lie detector examination may have been involved in procuring a confession does not render the confession inadmissible. [Cases cited.] However, if the defendant is forced to submit to the examination or if the methods of examination are such as to constitute actual or psychological coercion the resulting confession may well be found involuntary. . . . ”
“Necessarily, when a confession procured during or as a result of a lie detector examination is challenged, the facts surrounding the confession will be disclosed. If the court determines the evidence competent, these same facts — including the fact that the defendant was subjected to a lie detector — may be disclosed to the jury as bearing on the confession’s credibility. . . . ”

This Court’s recent decision in Burch v. State, Fla., 343 So.2d 831, filed March 10, 1977, supports the state’s contention that voluntary post-polygraph statements to the polygraph operator are admissible. Burch, supra, involved a situation where the defendant, upon being told that he failed a polygraph examination (which turned out to be a pretended examination) and that he lied when he denied the killing, confessed in detail to the killing. His confession was held to be admissible by this Court.

We have considered the other points raised by petitioner and find them to be likewise without merit.

Accordingly, the decision of the District Court is approved; to the extent that Cunningham, supra, is inconsistent herewith, it is overruled; and the writ heretofore issued is discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND and HATCHETT, JJ., concur.


author: ENGLAND, Justice. BOYD, Justice,

text:
    Nadean O. McARTHUR, Appellant, v. STATE of Florida, Appellee.
    No. 49526.
    Supreme Court of Florida.
    Sept. 30, 1977.
    Rehearing Denied Dec. 6, 1977.

      Chester Bedell, Jacksonville, Eugene P. Spellman, Miami, and Raymond E. Ford, Fort Pierce, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Harry M. Hipler and Basil S. Diamond, Asst. Attys. Gen., West Palm Beach, for appellee.
   ENGLAND, Justice.

By direct appeal we have before us for review the 1975 conviction of Nadean McArthur for the first degree murder of her husband, Charles McArthur. We have jurisdiction because the trial court upheld the validity of two statutes, Sections 40.-01(1) and 775.082(1), Florida Statutes (1975).

Appellant argues that, in addition to the two constitutionally infirm statutes, reversal of her conviction is required by six errors which occurred during her trial. After careful examination of the record, we find that five of these contentions require neither reversal nor extensive discussion. Appellant’s constitutional challenges require more detailed analysis, but similarly do not warrant reversal.

Appellant’s challenge to the jury selection statute, Section 40.01(1), Florida Statutes (1975), essentially asks that we reconsider Wilson v. State, 330 So.2d 457 (Fla.1976), in which we sustained this statute, in light of the United States Supreme Court’s decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). That ease held unconstitutional a Louisiana jury selection statute which operated to exclude women from jury service, since they were exempt unless requesting to serve, on the ground that the statute deprived defendants of their right to a jury selected “from a fair cross section of the community”. At the time of trial the Florida statute provided in relevant part that

“expectant mothers and mothers with children under eighteen years of age, upon their request, shall be exempted from grand and petit jury duty.”

The record fairly depicts the operation of the statute. Several mothers with children under the age of 18 were excused from jury service on the representation that hardship would be suffered if they could not be at home to care for their children. Some mothers were excused under the statute simply “upon their request”, even though they held jobs outside the home and made no plea of hardship. One father asked to be excused because of the hardship to his seven motherless children if he could not earn his $110 weekly income. His request was denied by the court; however, counsel for both sides later requested that he be excused and the trial judge acceded. No expectant mothers were present to request exemption from jury duty.

Since mothers with children under 18 were exonerated from jury duty simply on request, our concern is whether their absence denied defendants the opportunity to select a jury from a fair cross section of the community. We think not. The sixth amendment to the United States Constitution requires that no “large, distinctive groups are excluded from the [jury] pool”. This standard establishes two tests, and although the excluded group here appears sufficiently large to pass the “size of group” test, it fails what may be called the “nature of the group” test.

To evoke constitutional concern, the group excluded must be sufficiently “distinctive” to eliminate “the subtle interplay of influence” or the “distinct quality [which] is lost if either sex is excluded” totally. Mothers of young children are not, we believe, so distinctive a class as to evoke sixth amendment concerns. Those eligible for jury service include mothers of older children, women without children, and fathers with children of all ages. No distinctive quality of parenthood or sex is lost by the exclusion of mothers who presently have children under 18. Thus, while the legislative exclusion does not require hardship and may therefore operate automatically to exempt from jury service mothers who have no more compelling need to tend young children than fathers or the parents of older children, the class excluded is not constitutionally significant.

Appellant’s second constitutional challenge asserts the invalidity of Section 775.-082(1), Florida Statutes (1975), which requires a person convicted of a capital felony and sentenced to life imprisonment “to serve no less than 25 years before becoming eligible for parole . . . We have already upheld this statute against an assertion that it is an impermissible legislative usurpation of executive branch powers. Appellant here contends that the statute imposes a cruel and unusual punishment, since it operates without regard to the circumstances of individual defendants or the crimes for which the defendants have been convicted. The state argues that the severity of the penalty is commensurate with the severity of the crime.

This very issue was recently addressed by the Second District Court of Appeal in Quick v. State, 342 So.2d 850 (Fla. 2d DCA), aff’d per curiam, No. 51,246 (Fla. Sept. 29, 1977), in which a majority of the court upheld the statute. Judge Mc-Nulty filed a forceful dissent analogizing the situation to Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), where the United States Supreme Court ruled that a mandatory death penalty for first degree murder is cruel and unusual punishment. We believe the Quick majority was correct, for in Woodson the Court recognized that term sentencing minima are significantly different from death sentences as regards federal constitutional criteria. The Court said:

“While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long.” (Emphasis Supplied.)

Relevant to the same concerns under Florida’s Constitution is O’Donnell v. State, 326 So.2d 4 (Fla.1975), in which we upheld a statute imposing a mandatory minimum sentence of 30 years imprisonment for kidnapping. In O’Donnell we reaffirmed the time-honored principle that any sentence imposed within statutory limits will not violate Article I, Section 8 of the Florida Constitution, and the reasoning used there is persuasive here. The correlation in seriousness and potential deterrent value between a minimum 30 year sentence and the crime of kidnapping is similar to the correlation between the minimum mandatory sentence imposed by Section 775.082(1) and the palpably more serious crime of premeditated murder. All this, of course, was at the heart of Banks v. State, 342 So.2d 469 (Fla.1976), in which we rejected the very contention which appellant now raises. We held in Banks that this statute did not impose constitutionally proscribed cruel and unusual punishment, and we now reiterate that view.

We come to appellant’s last and principal contention before us, that as a matter of law there was insufficient evidence of her guilt to support her conviction. Appellant and the state agree as to the legal standard to be applied in cases where a conviction is based on circumstantial evidence, as here, but they sharply disagree as to the application of that standard to the record in this case.

A review of prior decisions of this Court in similar cases is not helpful to the analysis required here, since the nature and quantity of circumstantial evidence in each case is unique. Moreover, while we have examined all of the evidence in the record before us, we can see no jurisprudential value in a lengthy recitation of that evidence in this opinion. A lengthy summary will suffice.

In general, the jury received two categories of circumstantial evidence — scientific and non-scientific. Our study of both types leads us to conclude that, on balance, neither is inconsistent with innocence.

The non-scientific evidence in the record, consisting of witness testimony from the funeral home owner, ambulance drivers, police officials, and a local merchant, is reasonably consistent with the version of events which appellant conveyed to investigating officers when they first arrived at the scene of her husband’s death. She had told the officers that her husband had been concerned about her and their child’s safety during his many absences, and that he had asked her to take out and check a gun which had been purchased two years before, in order to be sure she could handle it. While her husband lay in bed on his left side, she sat with the gun indian-style on the bed facing him, half on a pillow and half off. She told the officers that she had forgotten how the gun functioned and was fumbling with it, apparently while it was still inside a cloth bag. Her husband became impatient, grabbed for the gun, it went off, and he was shot in the head.

Appellant related the same outline of events to each other person who inquired as to what had occurred, except to one officer who stated that he was told the “gun fell, hit her knee, and went off”. Although this officer was present at the scene of death with others who received a different explanation, no inquiry was made as to the conflict in statements, and the one officer’s recitation is the only conflicting explanation in the record. Another witness to the same conversation in fact had no recollection of this statement by appellant.

All attempts by the state and by the defense to elicit from witnesses more details of appellant’s statements at the time of death were unsuccessful. Based on the non-scientific conflicting evidence, we cannot accept the state’s view that all reasonable hypotheses of innocence are incompatible with the record.

Both sides introduced fairly complex scientific evidence to explain or defeat appellant’s hypothesis of an accidental shooting. Experts testified that it would have been possible for the gun to fire accidentally if Mr. McArthur had grabbed for the gun and any one of three alternative acts had occurred: (1) he had hit the trigger while the hammer was in a full-cocked position, (2) he had caused the hammer to be released while the gun was held partially cocked by appellant, or (3) he had hit against the hammer, pushed it to a partially cocked position and then it automatically fell back. The gun also might have fired accidentally if it had been held upside down in the bag with portions of the cloth wrapped around the hammer or trigger in a particular manner, and if Mr. McArthur had grabbed and pulled the bag. There is no evidence that the gun had been or had not been in the full-cocked position when appellant was fumbling with it.

The gun was fired at a distance of about seven inches from Mr. McArthur, which is consistent with appellant’s theory that Mr. McArthur leaned forward to grab for the gun. The presence of smudge marks (cylinder flare) on the underside of one pillow shows that the gun was fired when very close to the pillow, another fact consistent with appellant’s contention that she was sitting partially on the pillow, thereby causing the other half to rise slightly. (The location of these marks, we recognize, is also consistent with the state’s suggestion that she was holding the gun close to the pillow when she intentionally murdered her husband.) The presence of barium and antimony on Mr. McArthur’s hands is consistent both with the gun having been fired intentionally while his hands were raised in a defensive posture, as the state suggests, and with the gun having fired accidentally when one of Mr. McArthur’s hands hit the hammer as he braced his weight and leaned forward to grab the weapon.

The angle by which the bullet entered Mr. McArthur’s head, and the pattern of blood on the wall, are consistent both with his leaning forward to grab the weapon and appellant’s having shot him while his head was raised at least one foot off the bed. Similarly, the pattern of blood on the pillow was consistent with appellant’s version of the pillow’s placement where she was sitting.

Prom the totality of scientific and non-scientific evidence at appellant’s trial, we are forced to conclude that the prosecution’s proof of Mr. McArthur’s intentional murder was not inconsistent with his accidental death. The jury could reasonably have concluded, and obviously did conclude, that it was more likely that appellant murdered her husband than that she did not. Yet “even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence”. On this record appellant’s innocence has not been disproved. Only she knows the truth, and it was and is her constitutional right not to offer her explanation, her demeanor, her candor and her credibility to the jury. The state simply did not carry its burden of proof. Our jurisprudence and the justice of the cause require that the conviction entered below be reversed and that appellant, if the state so elects, be afforded a new trial.

It is so ordered.

OVERTON, C. J., and HATCHETT and KARL, JJ., concur.

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

ADKINS and SUNDBERG, JJ., dissent.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in that part of the majority opinion quashing the murder conviction of appellant. If a new trial is to be held, the venue should be changed.

In Griffis v. Hill, 230 So.2d 143 (Fla.1969), this Court held that whenever an appellate court concludes that a jury of reasonable people could not have reached the verdict under consideration without a mistake of law or fact, it is the duty of the court to quash the judgment. A careful review of all of the evidence in this case leads me to conclude that the quantum of proof against appellant at the trial was inadequate to prove appellant’s guilt beyond and to the exclusion of any reasonable doubt.

Although some jurisdictions permit a new trial of an accused person by the government when convictions are reversed due to insufficient evidence, it is my opinion that such action constitutes double jeopardy, in contravention of the Fifth Amendment to the Constitution of the United States and Article I, Section 9 of the Florida Constitution. I therefore would dissent to that portion of the opinion requiring a new trial.

      . Appeal was first taken to the Fourth District Court of Appeal, but pursuant to Fla.App. Rule 2.1(a)(5)(d) that court on its own motion transferred the appeal here.

      . First, the exclusion of lay opinion regarding appellant’s emotional state immediately after her husband’s death, though technically error, was not so prejudicial as to require reversal in light of other testimony which was adduced as to her conduct and statements. Second, the requested jury instruction on circumstantial evidence was generally repetitive of an instruction which was given, and though it would not have been error to give the instruction to the jury by the same token its rejection was not an abuse of the trial court’s discretion. Third, the pretrial publicity which attended appellant’s trial did not make it impossible to select an impartial jury as a matter of law or fact. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Dobbert v. State, 328 So.2d 433 (Fla.1976), aff'd, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Fourth, the limitations placed on defense counsel’s voir dire examination of prospective jurors were carefully drawn to avoid tainting the jury panel with the substance of rumors which some prospective jurors might have heard. Accord, Jones v. State, 343 So.2d 921 (Fla. 3d DCA 1977). In fact, the record quite clearly shows that the jurors were not preconditioned to find for or against appellant, and that they were able to reach their conclusions solely on the basis of the evidence presented at trial. Finally, the trial judge did not abuse his discretion by refusing to sequester the jury. Fla.R.Crim.P. 3.370(a). On the contrary, he made a careful and determined inquiry into the need for sequestration and found that the fears of defense counsel, and his own preliminary concerns, were without basis in fact.

      . Taylor v. Louisiana, 419 U.S. at 530, 95 S.Ct. at 697.

      . The 1975 Legislature lowered the statutory age from 18 to 15. Ch. 75-78, Laws of Florida.

      . No suggestion is made in this case that the state lacks a justification for providing expectant mothers with an exemption. In Taylor, the Supreme Court said:
      “The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community’s welfare.” 419 U.S. at 534, 95 S.Ct. at 700.
      See also Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).

      . Taylor v. Louisiana, 419 U.S. at 530, 95 S.Ct. at 698.

      . Ballard v. United States, 329 U.S. 187, 193—94, 67 S.Ct. 261, 264, 91 L.Ed. 181 (1946), cited With approval in Taylor v. Louisiana, 419 U.S. at 531-532, 95 S.Ct. at 698.

      . Although mothers of young children in contemporary society may have different attitudes or experiences than mothers of older children, our concern is a constitutional imperative. That there is an arguable sociological distinction of importance is a matter for the Legislature to consider.
      “The fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reásonable exemptions so long as it may be fairly said that the'jury lists or panels are representative of the community.”

        Taylor v. Louisiana, 419 U.S. at 537-38, 95 S.Ct. at 701.

      . Owens v. State, 316 So.2d 537 (Fla.1975); Dorminey v. State, 314 So.2d 134 (Fla.1975).

      . Woodson v. North Carolina, 428 U.S. 283, 304, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944, 961 (1976).

      . § 775.082(4)(a), Fla.Stat. (1973).

      . Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. Davis v. State, 90 So.2d 629 (Fla.1956); Mayo v. State, 71 So.2d 899 (Fla.1954); Head v. State, 62 So.2d 41 (Fla.1952). (The meaning of “not inconsistent” may be sufficiently different from “consistent” as to prevent a substitution of terms.) In applying the standard, the version of events related by the defense must be believed if the circumstances do not show that version to be false. Mayo v. State, above; Holton v. State, 87 Fla. 65, 99 So. 244 (1924).

      . This case is not similar to those in which a particular circumstance is consistent only with one conclusion. In Davis v. State, n. 12 above, for example, the state’s own witness in a murder trial placed the time of the victim’s death at a time when the accused was assisting law enforcement officers in a search for the victim. In Dewey v. State, 135 Fla. 443, 186 So. 224 (1938), the accused’s pretrial story that his wife’s death was caused by a single self-inflicted gunshot was totally discredited by proof that two shots had been fired. Nor is this case in any way similar to those in which the only hypothesis of innocence is wholly incredible. In Kersey v. State, 73 Fla. 832, 74 So. 983 (1917), for example, the only hypothesis of innocence was a suicide so bizarre in contrivance as to be inherently unbelievable.

      .Minor inconsistencies between appellant’s statements and acts at the scene of the death and the proof relied upon by the state to evidence appellant’s guilt create ambiguities in the tenor of proof, at best. Two examples will indicate the nature of these inconsistencies. Evidence was adduced regarding appellant’s emotional state following the shooting. That evidence is consistent both with the state’s theory that she was a calm murderess, calculating how to conceal her guilt, and with the defense’s theory that she was in a state of shock. The state also presented evidence that appellant did not wait on her front doorstep for the ambulance to arrive and that she made coffee for the ambulance driver when he requested it. Both alone and with other facts, however, the damning effect of this evidence can be classed as ambiguous, if not explainable. The state, of course, draws from these bare facts a behavioral sketch of calm calculation, consistent with cold-blooded murder. The defense would explain them as being a product of shock. The defense also contradicted the adverse implication of the coffee facts by the testimony of the operator of the ambulance service who received Mrs. McArthur’s call for assistance. The operator testified she had told appellant not to go into the bédroom where her husband’s body lay, but rather “to go out to the kitchen and be busy making coffee, do something and our attendant would be there in a few minutes.”

      . Appellant herself did not testify at the trial.

      . The prosecution took conflicting positions on this point before the trial court and jury. In closing argument the prosecution theorized that appellant held the pillow over the gun when she murdered her husband in order to muffle the sound, but when the defense attempted to elicit expert testimony that the pillow could not have been wrapped over the gun without causing “double” cylinder flare marks, the state conceded to the trial judge that the first theory was untenable. As a consequence the expert was allowed to testify that the pillow could not have been held over the gun.

      . The evidence is uncontradicted that the pillow was moved at least once before police photographed the scene, so it became impossible to prove how the pillow was positioned at the time the gun was fired. However, the bloodstains and tissue on the pillow indicate that, at least very shortly after the shot, the pillow was positioned where appellant said it had been. The state argued to the jury that appellant moved the pillow to the place on the bed where it was found when the police photographed the scene. This suggested a theory itself inconsistent with her guilt because it assumed a murderess would rearrange physical evidence so that it would be inconsistent with her story. Obviously, no inference relevant to appellant’s guilt can be drawn from the fact that the pillow may have been negligently moved by one of the police officers or one of the ambulance attendants.

      . Davis v. State, n. 12 above at 632.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Bernard J. PENN, Respondent.
    No. 50437.
    Supreme Court of Florida.
    Oct. 20, 1977.
    Rehearing Denied Dec. 6, 1977.
    Norman A. Faulkner, Staff Counsel, Tallahassee, David G. McGunegle, Asst. Staff Counsel, Tallahassee, and Robert P. Gaines, Pensacola, for complainant.
    Bernard J. Penn, pro se.
   PER CURIAM.

We are asked to review a referee’s report in Bar discipline proceedings, wherein it was recommended that respondent Penn be suspended from the practice of law for twelve months and thereafter until he proves his rehabilitation, and for an indefinite period until he submits satisfactory medical evidence that he is physically and emotionally capable of resuming the practice of law. The referee also recommended that he be placed on the inactive list and not be reconsidered for removal therefrom until he submits satisfactory medical evidence that he is physically and emotionally capable of resuming the practice of law.

On November 12,1974, Penn sent a letter on his legal stationery to the Tenneco Chemical Company seeking assistance in intervening in a bond validation proceeding. The letter stated in part:

“1. The Public and You need to make contributions to keep your defenses from Governmental Center Authority falling on its face. $500 to $1500 court costs and $5000 ‘reputable attorney’ fees or expenses are needed to stop this continuing raid and competition by Government upon Production. Bernard J. Penn is serving as Intervenor-Appellant on behalf of the individual taxpayer and citizen, and stands ready to coordinate and to do any legal thing to win the legal and political battle.
“8. I urge you to consult your own attorney promptly with reference to paying part of the costs of defending and then let me have $500 or one percent of your 1973 tax bill toward above costs and expenses, . . .

This letter was also sent to the local offices of Southern Bell, Chemistrand, Gulf Power, St. Regis Paper Company and Armstrong Cork Company.

Penn did not deny sending the letter but stated he did so as an individual citizen. Penn has insisted that he was not acting as an attorney seeking a case, but was soliciting funds to be used in retaining an attorney with experience in bond validation proceedings. He concedes that the letter was improper but denies bad faith or improper motives.

Penn does not and has not maintained a separate trust account, although he does have an office account. This is a joint checking account with his wife, constituting joint tenancy with right of survivorship. Penn insists that he handles no trust funds, but he did handle cases which involved trust funds. Funds were deposited which should have been placed in a “trust account.” There is no charge or evidence which shows misappropriation of funds.

The Florida Bar also attacked the competency of Penn, contending that Penn did not limit his practice to simple uncontested matters as claimed by him. Admittedly, Penn was suffering from physical and emotional problems, but Penn blames this condition upon the grievance machinery of the Bar. The record does not contain any complaint by Penn’s clients.

We have carefully examined the record and the report. It is our judgment that the referee’s finding of fact and recommendations of guilt are not, in all respects, supported by clear and convincing evidence in the record. We consider first the letter sent by Penn, which could be construed as either a solicitation for funds for Penn himself, or solicitations of funds for the purpose of retaining another attorney. In our opinion the record is clear that Penn intended to bring other counsel into the case and use the solicited funds for that purpose. The letter was improper, but not of such impropriety as to warrant a suspension.

Also, the failure to maintain a trust account and placing trust funds in an account which would be payable to his wife upon death was improper. Nor do we believe that this impropriety, under the circumstances of this case, was sufficient ground for suspension.

Finally, we reach the question of competency. There has been no proven theft or criminal misconduct by Penn shown in the record. It is true that an attorney may be placed upon the inactive list because of “incapacity or other infirmity” even though no misconduct on his part is alleged or proved. Florida Bar Integration Rule 11.01(4).

The primary complaint of the Bar was that Penn handled legal matters “beyond his capabilities,” and that he should be placed on the inactive list. The referee based his findings upon the testimony of three judges. The judges testified that Penn’s attitude had improved and indicated he was capable of satisfactorily handling simple domestic, collection, or property matters. He often exhibited a persecution complex, according to the judges, which hampered his work. Penn says his problems with the grievance committee were sufficient to cause him to exhibit such a persecution complex.

Assume that a person who is trained in the civil field inexpertly handles a criminal case. This would not necessarily subject such attorney to disciplinary proceeding. As stated by one of the judges in his testimony,

“I believe he is competent to handle some matters. Some complicated cases, I don’t think he would be as competent. Of course, that’s true of many lawyers.
“He seems to do an adequate job in domestic relations cases. He’s had some success in criminal matters. However, in some criminal cases, I believe he failed to make use of criminal rules which would have been of benefit to his clients.”

There is no clear and convincing evidence that Penn is incapable of practicing law because of incapacity or other infirmity. Because of the improprieties of circulating the letter and failing to maintain a proper trust account, Penn should be disciplined. It is the judgment of this Court that this opinion shall constitute a public reprimand of respondent Bernard J. Penn, and further that, respondent shall create and maintain a trust account in accordance with the provisions of Florida Bar Integration Rule 11.02(4).

The costs of these proceedings in the amount of $730.50 are hereby assessed against the respondent.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and HATCHETT, JJ., concur.