author: HARRIS, Judge.

text:
    Willie Edd HARDIN v. STATE.
    8 Div. 931.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.

      Gary L. Rigney, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree, and the jury fixed his punishment at life imprisonment in the penitentiary. With counsel present at arraignment appellant pleaded not guilty. After conviction he gave notice of appeal. The trial judge determined appellant to be indigent and he was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

The sufficiency of the evidence to support the judgment of conviction is not presented to this Court. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge or any other written charges; there was no motion for a new trial and no exceptions were reserved to the oral charge to the jury.

The evidence presented by the State made out a clear-cut case of murder with no mitigating or extenuating circumstances. Appellant claimed self-defense stating that just before he fired the shotgun toward the deceased, he saw what appeared to be a pistol in his hands as he started to get out of his automobile when both were stopped on the road.

O. D. Fletcher, who lived in the Harvest Community of Madison County, testified that on May 9, 1976, the deceased came to his home driving his automobile. After being there for a while they decided to go and get some beer. The deceased was driving and Fletcher was in the front seat on the passenger’s side and one Robert Sumners was in the back seat directly behind the deceased. On the way to get the beer, they met appellant in his automobile and he stopped and flagged the deceased down. Appellant got out of his automobile with a .20 gauge shotgun and pointed it at the head of the deceased and ordered him out of the car. The deceased refused to get out. Both Fletcher and Sumners got out and walked to the back of the car and Fletcher started pleading with appellant not to shoot the deceased. Then appellant pointed the gun at Fletcher and he stepped back out of the way. Appellant then told the deceased, “I have been looking for you all day to kill you. I told you last night I was going to kill you when I saw you.” Again he ordered the deceased out of his car. Instead of getting out of the automobile the deceased started pulling off slowly and appellant hollered at him and told him to stop but he would not stop, and appellant ran up beside the automobile and put the gun in the window of the car and shot one time. The deceased drove on down the road to Lockhart’s, some short distance away, stopped his automobile and fell out onto the parking lot of the store. Fletcher went to his home nearby to get his car to pick up the deceased to take him to the hospital. When he got back to where the deceased was lying, there were several people present and some of them had cut one of the pants legs of the deceased and had tied it around the wound to try to stop the bleeding. Fletcher was told not to move the deceased as an ambulance had been called.

While waiting on the ambulance Fletcher saw appellant drive by the store where the deceased was lying, on two occasions, but he did not stop. Fletcher remained at the scene until the ambulance came and also the police. He observed the ambulance attendants administering to the deceased inside the ambulance but he did not know what they were doing.

The police officers asked him what had occurred and he told them that appellant had shot the deceased and he went with the police to the ball park where they found appellant. He was present when the officers arrested appellant and read him his constitutional rights.

Fletcher further testified that there was no weapon of any kind in the automobile of the deceased, nor did he have a weapon on his person. He stated that no one went around the automobile driven by the deceased after he parked it at the grocery store. He stated that while appellant was ordering the deceased to get out of the car, the deceased reached over and picked up a cigarette lighter and lit a cigarette and appellant hollered at him not to pick up a gun and the deceased told appellant he did not have a gun and to please go on and let him alone.

Dr. Tom R. Key testified that he was a practicing physician in Guntersville, Alabama, but on May 9, he was working in the emergency room of the Huntsville Hospital when the deceased was brought in by the ambulance. He testified that he had been in communication with the ambulance attendants by radio and had advised them to start I.V. or saline solution en route to the hospital. He said that he first saw the deceased in the emergency room at 2:22 p. m. on May 9, 1976, and in the emergency room with him at the time was Dr. Rao Kakani, who was a vascular surgeon in Huntsville and that both of them administered treatment to the deceased but that he had lost so much blood from the time that he was shot until he reached the hospital that they were not able to save his life. He further testified that the deceased was shot in one of his legs near the knee area and that the wound was so traumatic and extensive that he would have lost his leg even if he had lived. He said that the deceased died as the direct and approximate consequence of the gunshot wound to his leg causing him to bleed to death. He said the entrance wound was on the medial aspect and the exit wound was actually behind the knee so that this whole area behind the knee in the bend of the knee was gone.

Annie Miller testified that she was an eyewitness to the shooting and stated that she lived on the road near the place where appellant stopped the deceased’s car; that she heard the deceased tell the appellant that he didn’t want any trouble but that she saw appellant put the shotgun inside the window of the car and fire one time, that she saw the deceased slowly drive away from the place of the scene of the shooting and saw appellant get back in his automobile and drive away.

Earl Williams testified that he was an Investigator with the Madison County Sheriff’s Department and on May 9, 1976, around 1:40 p. m., he went to the scene to investigate the shooting; that he talked to O. D. Fletcher and to Robert Sumners. He stated that he checked the automobile driven by the deceased and did not find a weapon of any kind and he also checked the victim and found no weapon of any kind on his person. That O. D. Fletcher told him that appellant had gone to the ball park and he and some other officers, including Investigator Crowell, went to the ball park and arrested appellant.

Frank Crowell testified that he investigated the shooting and took several photographs of the scene of the shooting, the body of the victim and the victim’s automobile, and that he found no weapons of any kind in or around the victim or in or around the victim’s car; that he arrested appellant at the ball park and read him his Miranda rights from a card and asked him if he understood his rights and he answered in the affirmative by nodding his head up and down. The appellant’s father was present at the time he was arrested and when the officers asked where the gun was, appellant’s father stated that the gun was in the automobile and that he was part owner of the automobile. Investigator Crowell got the shotgun, tagged it, and put it in the evidence room under lock and key where it remained until the day of trial where it was produced in court, identified, and admitted into evidence.

Crowell further testified that on May 10, 1976, Officer Leon Greene in his presence gave appellant the Miranda rights and warnings again. That there were no threats of any kind made; neither were there any promises, .inducements, rewards or hopes of rewards made to appellant to get him to make a statement and that he gave a statement concerning the shooting. He further stated that a waiver of rights form was given to appellant and it was read to him and appellant said he understood his rights and he signed the waiver and he subsequently signed and initialed each page of the confessory statement.

A voir dire hearing was held out of the presence and hearing of the jury and at the conclusion of this voir dire hearing the Court determined that the confession was knowingly, voluntarily and intelligently made and it was admitted into evidence.

The confession is as follows:

“VOLUNTARY STATEMENT (UNDER ARREST)
“DATE 10 Mav 1976 TIME 2:49 PM PLACE Huntsville. Ala.
“I, Willie Edd Harden. AM 38 YEARS OF AGE AND MY ADDRESS IS Rt 1. Box 977. Harvest. Ala. I HAVE BEEN ADVISED AND DULY WARNED BY Leon Greene. WHO HAS IDENTIFIED HIMSELF AS Investigator. Sheriff Dent. OF MY RIGHT TO COUNSEL BEFORE MAKING ANY STATEMENT, AND THAT I DO NOT HAVE TO MAKE ANY STATEMENT AT ALL, NOR INCRIMINATE MYSELF IN ANY MANNER. I HEREBY EXPRESSLY WAIVE MY RIGHT TO THE ADVICE OF COUNSEL, AND VOLUNTARILY MAKE THE FOLLOWING STATEMENT TO THE AFORESAID PERSON, KNOWING THAT ANY STATEMENT I MAKE MAY BE USED AGAINST ME ON THE TRIAL OR TRIALS FOR THE OFFENSE OR OFFENSES CONCERNING WHICH THE FOLLOWING STATEMENT IS HEREIN MADE. I DECLARE THAT THE FOLLOWING STATEMENT IS MADE OF MY OWN FREE WILL WITHOUT PROMISE OF HOPE OR REWARD, WITHOUT FEAR OR THREAT OF PHYSICAL HARM, WITHOUT COERCION, FAVOR OR OFFER OF FAVOR, WITHOUT LENIENCY OR OFFER OF LENIENCY, BY ANY PERSON OR PERSONS WHOMSOEVER.
“W.E.H. Friday night, 7th of May, I went to get some parts for my car. L. B. Fletcher, Jackie Jones and Emma Mae Leslie were in my car with me. Emma Mae is Alan Leslie’s ex-wife. After I got the parts, I drove to Nathan Fields shop by Toney to get my car fixed. Alan Leslie was there at the shop and saw his ex-wife in the car with us. Alan didn’t say anything to me or anyone else in the car. I didn’t see Alan any more until Saturday evening at the same shop when I went back to get my car fixed again. Alan began cussing me out, I guess because of his ex-wife. Alan left, saying he was going to get his gun. Fields told him not to come on his property any more if he was going to bring a gun. I saw Alan again that night about nine or nine-thirty at Robert Mathews’ house. Alan began cussing at me again and told me if I wanted that damn woman I could go on and have her. I just got up and left out. W.E.H.
“W.E.H. I didn’t see Alan any more till Sunday morning. I figure it was about eleven or eleven-thirty, I didn’t look at my watch but I know it was early. I met Alan in his car going the opposite direction on a road right off Lockhart Rd., there ain’t no name for this road. I was easing through some ears parked on this road and when I was passing Alan, he started cussing me again. I stopped my car and got out, I told him ‘that’s the third time you cussed me out, I don’t want to hear it no more,’ to cut it out. I got my shotgun out of the car cause I figured he would move on and leave me alone. I had a single barrel 20 gauge shotgun. I told him to go on and leave me alone, Alan said, ‘Nigger, you ain’t bad just cause you got a gun.’ Alan reached up under his seat like he got something out but I couldn’t see nothing. I told him not to come out of the car with nothing. There were two boys W.E.H. W.E.H. sitting in Alan’s car, crossed in front of my ear and went in ‘Bee’s’ yard. Alan opened the door to get out and I shot him in the leg. Alan didn’t get plumb out of the door, I guess when I hit him it knocked him back. Alan shut the door and took off in his car and stopped at Lockhart’s Grocery and I haven’t saw him no more. I got in my car and went to the ball diamond. After I shot Alan, I reloaded my shotgun right there. I played cards till the ballgame started about four and I was there when the officers came, one was Mr. Grubbs and another, I didn’t know his name. W.E.H. “I HAVE READ THIS STATEMENT CONSISTING OF 3. PAGE(S), AND I AFFIRM TO THE TRUTH AND ACCURACY OF THE FACTS CONTAINED THEREIN.
“THIS STATEMENT WAS COMPLETED AT 3:24 PM. ON THE 10 DAY OF May. 1976.
“WITNESS: Leon Greene
“WITNESS: Frank Crowell
Willie Edd Harden
Signature of person giving voluntary statement”

Appellant testified that he had seen the deceased on Friday and Saturday before the shooting took place on Sunday and that they had had some words, that he did not know why the deceased was upset unless it was because he saw his ex-wife in the car with appellant. He denied making any threats to kill the deceased the next time he saw him. He further testified that at the time the shooting occurred he saw a pistol in the hands of the deceased and it appeared to him to be a .22 caliber.

Several other witnesses testified as to the events leading up to and culminating in the shooting death of the deceased but none of them testified to ever seeing a weapon of any kind on the person of the deceased or in his automobile.

Appellant contends that his confession should not have been admitted into evidence because he did not understand the waiver of rights form and did not understand the statement he signed. He admitted that he could read and write and admitted that he was given his constitutional rights before he was interrogated and admitted he signed the confession and also initialed each page and that no threats, promises, rewards or other inducements were made to him by the officers at any time prior to or during the time he gave and signed the statement.

An extrajudicial confession is prima facie involuntary and inadmissible, and the duty rests in the first instance on the trial court to determine whether the confession is voluntary, and unless it so appears, it should not be admitted. The trial court made that determination in this case and the confessory statement was properly admitted into evidence. Myhand v. State, 259 Ala. 415, 66 So.2d 544; Duncan v. State, 278 Ala. 145, 176 So.2d 840; Humphrey v. State, 54 Ala.App. 62, 304 So.2d 617.

The law is well settled that when one kills another by the intentional use of a deadly weapon, malice, design and motive may be inferred without more and are presumed, unless the evidence which proves the killing rebuts the presumption; and casts on the defendant the burden of rebutting it, and to show self-defense or other justification, if he can. See Kemp v. State, 278 Ala. 637, 179 So.2d 762, and the many cases therein cited.

In this case the trial court charged the jury on all four degrees of homicide and this, under the facts presented by this record, was more than appellant was entitled to under the circumstances.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SUNDBERG, Justice.

license: Public Domain

text:
    WALKER & LaBERGE, INC., and Bituminous Casualty Corporation, Appellants, v. Jack HALLIGAN, Appellee.
    No. 49056.
    Supreme Court of Florida.
    March 17, 1977.
    Ronald S. Webster, of Whittaker, Pyle & Stump, Orlando, for appellants.
    Paul R. Stern of Stern & LaRue, Daytona Beach, for appellee.
   SUNDBERG, Justice.

This cause is before us by virtue of a notice of appeal to review an order of the Circuit Court for Volusia County denying a motion for summary judgment. In denying the motion for summary judgment, the trial court held, inter alia, that Sections 440.10 and 440.11, Florida Statutes (1971), were unconstitutional. Since the court’s order was interlocutory in nature, we review this matter by certiorari pursuant to Article V, Section 3(b)(3), Florida Constitution.

On October 6, 1972, appellee was an employee of Economy Electric, the electrical subcontractor on a large condominium project. While working on this project, ap-pellee was injured when struck by a two-ton crate of glass which was either in the possession of appellant Walker & LaBerge, Inc., the glazier subcontractor on the job, or of Terminal Transport, a delivery company. Appellant is accused of negligence in tying together and loading the glass, or in maintaining the dolly upon which the glass was situated. Although the contracts themselves have never been produced, both parties have assumed that Economy Electric and Walker & LaBerge were both subcontractors under Wiggs & Maale, the general contractor which is not a party to this litigation.

Appellee filed a complaint for personal injury damages against appellant alleging that the latter had been negligent in the manner described. Appellant answered that it was immune from liability under Sections 440.10(1) and 440.11(1), Florida Statutes (1971), which were in effect on the date of the accident.

In 1974, prior to the filing of the complaint in the instant action, Section 440.10, Florida Statutes (1973), was amended by addition of the following sentence:

“A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness of liability provisions of § 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.”

Appellant moved for summary judgment, relying on the law as it existed at the time the alleged tort was committed. The trial judge denied the motion, holding specifically that the 1974 amendment was remedial and therefore should be applied retroactively. Further, he found that if the amendment was not retroactive, the statute would have been unconstitutional as it existed on the date the cause of action accrued. It is from this decision that Walker & LaBerge, Inc. and their insurance carrier have prosecuted an appeal in this Court.

It is a well-established rule of construction that in the absence of clear legislative expression to the contrary, a law is presumed to operate prospectively. Keystone Water Co. v. Bevis, 278 So.2d 606 (Fla.1973); U. S. v. Donnelly’s Estate, 397 U.S. 286, 90 S.Ct. 1033, 25 L.Ed.2d 312 (1970); Bruner v. United States, 343 U.S. 112, 72 S.Ct. 581, 96 L.Ed. 786 (1952); Claridge Apartments Co. v. C. I. R., 323 U.S. 141, 65 S.Ct. 172, 89 L.Ed. 139 (1944); Haggar Co. v. Helvering, 308 U.S. 389, 60 S.Ct. 337, 84 L.Ed. 340 (1940); Hassett v. Welch, 303 U.S. 303, 58 S.Ct. 559, 82 L.Ed. 858 (1938); Miller v. United States, 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977 (1935); Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521 (Fla.1973); H. K. L. Realty Corp. v. Kirtley, 74 So.2d 876 (Fla.1954); Indemnity Insurance Co. of N. America v. The Brooks-Fisher Insulating Co., 140 So.2d 613 (Fla.2d DCA 1962). We have recently had the opportunity to reiterate this rule in the cases of Foley v. Morris, 339 So.2d 215 (Fla.1976), and Fleeman v. Case, 342 So.2d 815. In Foley, petitioner filed a malpractice suit against his physician alleging that respondent left a rubber drain in his body during surgery. Subsequent surgery was necessary to remedy the original negligence. Respondents sought dismissal contending that petitioner’s cause of action was barred by the two-year statute of limitations, Section 95.11(6), Florida Statutes (1973), which was effective ten months after the cause of action accrued, and was the law when the case went to trial. Respondents contended that the four-year statute of limitations, Section 95.-11(4), Florida Statutes (1975), in effect when the cause of action actually accrued, was not applicable. We looked to the wording of the act itself to find possible support for its retroactive application. That search proved futile. There was nothing in the language of the statute which manifested an intention by the Legislature to do otherwise than prospectively apply the new two-year statute of limitations.

In Fleeman, five condominium unit owners joined by the lessee condominium association, of which they were members, brought suit against the lessor. Their complaint requested a declaratory judgment that an escalation clause in their lease was void under Section 711.236, as created by Chapter 75-61, Laws of Florida [now codified as Section 711.231, Florida Statutes (1975)]. It was asserted that the statute was enacted to curb a practice which the Legislature thought inimical to this state’s economy because of its inflationary nature. That practice was to insert in leases, for condominium recreation facilities or management contracts, rental escalation clauses tied to commodity or consumer price indexes. The lessor attacked the statute insofar as it operated retroactively, both as being without the ambit of the statute and as an impairment of the obligation of contract in violation of the United States and Florida Constitutions. Article I, Section 10, United States Constitution; Article I, Section 10, Florida Constitution. In finding for the appellant-lessor, we stated:

“. . . Appellees urge us to discern an intent for retroactive application (i) from the statute’s proscription against the ‘enforcement’ of escalation clauses as well as their mere inclusion in leases and management contracts, and (ii) from the action of the House of Representatives in tabling a substitute amendment to the proposed legislation which would have expressly made the law prospective in operation. We decline to divine legislative intent for an issue as important as retroactive operation either from one ambiguous reference in a declaration of legislative purpose or from one attempt to amend the proposed law in one chamber of the Legislature. We can restrict the debate on a legislative ‘intent’ for retro-activity to the floor of those chambers, as well as avoid judicial intrusions into the domain of the legislative branch, if we insist that a declaration of retroactive application be made expressly in the legislation under review. By this means the forward or backward reach of proposed laws is irrevocably assigned in the forum best suited to determine that issue, and the judiciary is limited only to determining in appropriate cases whether the expressed retroactive application of the law collides with any overriding constitutional provision.
“There being no express and unequivocal statement in this legislation that it was intended to apply to leases and management contracts which antedate its enactment, we hold the statute inapplicable to the contracts in these consolidated proceedings.” (Footnote omitted)

In the case sub judice, we again look to the language of the statute to determine whether a clear legislative mandate exists. We find no such mandate on the face of the statute; consequently, we must reverse the decision of the trial court.

Appellee points to two cases in which this Court gave retroactive effect to statutory provisions where no clear legislative intent was indicated. Summerlin v. Tramill, 290 So.2d 53 (Fla.1973), and Tel Service Co. v. General Capital Corp., 227 So.2d 667 (Fla.1969). In Tel Service Co., supra, suit was brought by a corporate borrower to recover usurious interest from the lender. The circuit court entered a final decree in favor of plaintiff, holding certain transactions between the parties to be criminally usurious loans in violation of Section 687.07, Florida Statutes (1967), and directing that plaintiff recover from defendant the aggregate principal amount of the loans and interest charged thereon pursuant to the statute. Defendant appealed this decree to the district court. While the appeal was pending, the Florida Legislature enacted Chapter 65-299 [now appearing as Section 687.11, Florida Statutes (1975)]. Chapter 65-299 allows a corporate borrower to recover only interest and not principal on a usurious loan. Because of this enactment, the district court deemed it appropriate to remand the case to the circuit court for reconsideration. The circuit court then entered its amended final decree reaffirming its earlier findings and holding that Chapter 65-299 was inapplicable to the plaintiffs, who were individuals and not a corporation. Defendant again appealed to the district court. That court held that Chapter 65-299 was applicable to the litigation and therefore allowed plaintiff to recover only interest on the usurious loan. On appeal this Court affirmed the district court’s conclusion sustaining the applicability of Chapter 65-299. We stated:

“. . .As noted by the District Court, authority is legion to the effect that an action predicated on remedies provided by the usury statutes creates no vested substantive right but only an enforceable penalty. Accordingly, such penalty or forfeiture possesses no immunity against statutory repeal or modification and the enactment of legislation to this effect abates such penalty or forfeiture pro tan-to even during the pendency of an appeal from a final judgment predicated on such statutory penalties or forfeiture.”

Having concluded Chapter 65-299 was applicable to the controversy, the effect of the Chapter 65-299 act on the remedies provided by Chapter 687, Florida Statutes (1975), was then considered. It was determined that Chapter 65-299 repealed all penalty and forfeiture provisions embraced in Section 687.07, Florida Statutes (1967), as to usurious loans to corporations. Thus, the only penalty recoverable in the case under consideration was the forfeiture of all interest paid by the borrower. In so holding, it was expressly stated that “the enactment of this kind of act is retrospectively applicable to the appellate proceedings in this Court.” Id. at 673.

Summerlin, supra, involved the issue of which standard of care to apply under a guest statute. Shortly after an automobile accident in which the guest-passenger sustained injuries, the statute requiring gross negligence to hold a host-driver liable was repealer!. At the time of trial, gross negligence was not statutorily mandated to support recovery by a guest-passenger. In the trial court, defendant filed a motion to dismiss for failure to state a cause of action for gross negligence. That motion was denied. Plaintiff then proved her case on the basis of gross negligence, and judgment was entered for her upon a jury’s finding of gross negligence. The host-driver appealed, and the district court reversed, holding the trial court erred in denying appellant’s motion to dismiss. On petition for writ of certiorari, this Court reversed the district court and applied the statutory provision retroactively. Since the guest-statute requiring gross negligence had been repealed prior to trial, the case should have been tried upon simple negligence. Because a judgment for petitioner was entered upon her proof, and a jury’s finding of gross negligence, a new trial based upon simple negligence would have yielded a similar judgment. Therefore, it was unnecessary and improper for the district court to have reversed and remanded the cause for a new trial.

Appellee’s reliance upon Tel Service Co., supra, and Summerlin, supra, is misplaced. In these cases, the nature of the statutes involved was inherently procedural or affected only the measure of damages for vindication of a substantive right. The issue in Summerlin concerned the application of a proper standard of care. The new statute modified plaintiff’s burden of proof requirement, but it did not abrogate a substantive statutory right. Burden of proof requirements are procedural in nature. Maryland Cas. Co. v. Williams, 377 F.2d 389, 394 (5th Cir. 1967); 6 Fla.Jur. Conflict of Laws § 41 (1959); 15A C.J.S. Conflict of Laws § 22(9). The procedural rights granted by the act could be abrogated retroactively because “no one has a vested right in any given mode of procedure.” Ex parte Collett, 337 U.S. 55, 71, 69 S.Ct. 944, 953, 93 L.Ed. 1207 (1949); Denver and Rio Grande W.R.R. v. Brotherhood of R.R. Trainmen, 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954 (1967). Concomitantly, the question in Tel Service Co. involved the measure of damages to be recovered. Alteration of such measure of damages did not work any modification of fundamental substantive rights.

In contrast, the question in the instant case is whether a substantive statutory right (immunity from suit) can be retroactively withdrawn. Appellants are entitled to rely on this substantive right which vested before the passage of the new statute. The parties contractually agreed to the statutory provision as of the time of injury. A subsequent enactment should not disturb the substantive rights and duties created by this contractual relationship. Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964). That rights under the Workmen’s Compensation Act are substantive is established in Sullivan v. Mayo, 121 So.2d 424, 428 (Fla.1960):

“. . . It is well established in Florida that the substantive rights of the respective parties under the Workmen’s Compensation Law are fixed as of the time of the injury to the employee. This is so because the acceptance of the provisions of the Workmen’s Compensation Law by the employer, the employee, and the insurance carrier constitutes a contract between the parties which embraces the provisions of the law as of the time of the injury. Consequently, a subsequent enactment could not impair the substantive rights of the parties established by this contractual relationship. . . .”

Appellee alternatively submits and the trial court held that Sections 440.10 and 440.11, Florida Statutes, as they existed in 1972, were unconstitutional by virtue of recent case law. He argues there was no constitutional basis for immunity because no benefits ran from the glazier to the electrician’s employee, and therefore there could have been no substitution of rights for the common law rights already in existence.

This Court consistently upheld the constitutionality of Sections 440.10 and 440.11, Florida Statutes (1975), prior to 1974, as granting immunity to subcontractors. Miami Roofing & Sheetmetal Co., Inc. v. Kindt, 48 So.2d 840 (Fla.1950); Carter v. Sim’s Crane Serv., Inc., 198 So.2d 25 (Fla.1967). The constitutionality of that statute was not disturbed by such recent cases as Kluger v. White, 281 So.2d 1 (Fla.1973), and Sunspan Eng’r & Constr. Co. v. Spring-Lock Scaffold Co., 310 So.2d 4 (Fla.1975). Those cases stand for the proposition that a statute cannot abolish a right of action without providing a reasonable alternative to protect the rights of the people for redress of injuries. In Kluger v. White, supra, this Court found a portion of the no-fault statute to be unconstitutional because a claimant was denied access to the court for recovery of property damage without being supplied with any commensurate remedy. In Sunspan Eng’r & Constr. Co., supra, we questioned the constitutionality of Section 440.11. That case dealt with the rights of a third-party tort-feasor against the claimant’s employer and the confiscation of the third-party’s right to sue an employer for the employer’s negligence. Our rationale was that a third-party tort-feasor should be entitled to file a third-party action for indemnification against a subcontractor whose employee sued the third-party tort-feasor. This remedy was deemed necessary because the third-party tort-feasor gained nothing by the statute which granted immunity to the subcontractor, and he was, therefore, denied access to the courts.

In the case sub judice, the claimant was not deprived of a remedy but, in fact, was supplied with an alternative remedy of compensation for injury without regard to proof of negligence. Appellee has received workmen’s compensation benefits for an injury allegedly sustained due to the negligence of a co-subcontractor. This remedy is a reasonable alternative for appellee’s relinquishing his right of action against other subcontractors under the then-existing law.

For the reasons stated herein, the decision of the trial court is reversed, and the cause is remanded for further proceedings not inconsistent herewith.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, HATCHETT and DREW (Retired), JJ., concur.

ADKINS, J., dissents.

      . Walker & LaBerge, Inc. will be referred to below as appellant.

      . § 440.10(1), Fla.Stat., provides as follows:

        “Liability for compensation. — Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees of the compensation payable under §§ 440.13, 440.15 and 440.16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.”

      . § 440.11(1), Fla.Stat., provides as follows:

        “Exclusiveness of liability. — The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all other liability of such employer to any third party tort-feasor and to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee or his legal representative, in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.”

      . § 687.07, Fla.Stat., provided for forfeiture of both principal and interest upon a loan where the interest wilfully and knowingly charged is more than 25% per annum irrespective of whether the lender or borrower is an individual or a corporation. In 1969, § 687.071 was enacted, repealing § 687.07.


author: PER CURIAM.

text:
    Wayne Edward WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 49319.
    Supreme Court of Florida.
    March 24, 1977.

      David LaCroix and Aaron A. Green, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

After the trial of this cause, the Court decided Roberts v. State, 335 So.2d 285 (Fla.1976), in which we adopted the “Lyles rule” which requires the trial judge to instruct the jury as to the consequences of a verdict of not guilty by reason of insanity. Defense counsel requested such an instruction in the present case, and the trial judge, who did not have the benefit of our opinion in Roberts v. State, supra, refused to give the instruction. The decisional law in effect at the time an appeal is decided governs the issues raised on appeal, even where there has been a change of law since the time of trial. Evans v. St. Regis Paper Co., 287 So.2d 296 (Fla.1973); Williams v. Wainright, 325 So.2d 485 (Fla. 4th DCA 1975); Cosby v. State, 297 So.2d 617 (Fla. 1st DCA 1974). In these circumstances, we are required to reverse appellant’s conviction.

Because this case must be tried again, we reach the question of what standards should apply when an insanity defense is raised. The trial judge instructed the jury as follows:

Under the law a person is sane and responsible for his crime if he has sufficient mental capacity to understand what he is doing and to understand that his act is wrong. If at the time of an alleged crime a defendant was by reason of mental infirmity unable to understand the nature of his act or its consequences or was incapable of distinguishing that which is right from that which is wrong he was legally insane and should not be convicted.
Insanity may be permanent, temporary or intermittent. It is for you to determine the question of the insanity of the defendant at the time of the alleged commission of the crime.
* * * * * *
Unrestrained passion or ungovernable temper is not insanity and is no excuse for the commission of a crime even though the normal judgment of the person is overcome by passion or temper.

Counsel for the defendant invites us to abandon the M’Naghten rule, as set forth in Anderson v. State, 276 So.2d 17 (Fla.1973), and urges us to adopt the test agreed on by the American Law Institute. We are told that psychiatry has progressed to the point that the rules should be altered to facilitate greater participation by psychiatrists in deciding who should be held criminally responsible.

For many of the reasons advanced by appellant, this Court recently adopted the modified jury instruction on insanity set forth in Florida Standard Jury Instructions in Criminal Cases, approved by this Court’s order in In re Standard Jury Instructions In Criminal Cases, 327 So.2d 6, filed February 4, 1976.

The new formulation adopts the “disease or defect” elements of the ALI test. We decline to adopt the so-called “irresistible impulse” portion of the ALI test which excuses' from criminal responsibility the defendant who “lacks substantial capacity . . . to conform his conduct to the requirement of the law.” We hold that the revised jury instruction on insanity correctly states the law of Florida and direct that it shall be utilized in all trials beginning after the day on which this opinion becomes final.

The judgment of conviction and the sentence are reversed, and the case is remanded to the trial court for a new trial.

OVERTON, C. J., BOYD, SUNDBERG, HATCHETT and DREW (Retired), JJ., concur.

ADKINS and ENGLAND, JJ., dissent.

      . Section 4.01 of the American Law Institute’s Model Penal Code (1962) provides:
      (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
      (2) The terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

      .
      The law does not hold a person criminally accountable for his conduct while insane, since an insane person is not capable of forming the intent essential to the commission of a crime. A person is sane and responsible for his crime if he has sufficient mental capacity when the crime is committed to understand what he is doing and to understand that his act is wrong. If at the time of an alleged crime a defendant was by reason of mental infirmity, disease or defect unable to understand the nature and quality of his act or its consequences or, if he did understand it, was incapable of distinguishing that which is right from that which is wrong, he was legally insane and should be found not guilty by reason of insanity.
      Insanity may be permanent, temporary or may come and go. It is for you to determine the question of the sanity of the defendant at the time of the alleged commission of the crime.

      Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person be overcome by passion or temper.


author: SMITH, Judge. PER CURIAM. SMITH, Judge

text:
    JAX LIQUORS, INC., a corporation, et al., Appellants, v. Eric HALL, Appellee.
    Nos. X-340 and X-374.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.
    Rehearing Denied Dec. 3, 1976.
    William S. Burns, Jr., and Mattox S. Hair of Marks, Gray, Conroy & Gibbs, Charles Cook Howell, III, of Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, and Sam Spector, Tallahassee, for appellants.
    Grant F. Spinner of Dawson & Spinner, Jacksonville, for appellee.
   SMITH, Judge.

Each appellant raises the pivotal question of whether it or they can be held liable for the parking lot shooting of an unruly bar patron of appellant Jax by an armed and uniformed guard, the employee of a security service operated by appellants Clark and Moore.

The firing of the pistol, viewed as an isolated event, was entirely unnecessary to any legitimate purpose of appellants and of the guard’s employment. However, both Jax and the security service operated by Clark and Moore were served by the guard’s armed presence in the bar. The confrontation began when the guard intervened, as he was expected to do, to prevent the patron from removing one of Jax’s drinking glasses from the bar. The altercation grew from that event with unbroken continuity. The wound was inflicted while both parties were still on Jax’s property. We conclude that the guard had not departed the scope of his employment when he shot the patron. Compare Columbia By the Sea, Inc. v. Petty, 157 So.2d 190 (Fla.App. 2nd, 1963); Sixty-Six, Inc. v. Finley, 224 So.2d 381 (Fla.App. 3rd, 1969). Contrast Reina v. Metropolitan Dade County, 285 So.2d 648 (Fla.App. 3rd, 1973), cert. disch. 304 So.2d 101 (Fla.1974).

There being evidence that Jax had and exercised a right of control concerning the manner in which the guard performed his duties, the jury could properly have found that the guard and appellants Clark and Moore were not independent contractors for whose tort Jax would be immune. See Farmers & Merchants Bank v. Vocelle, 106 So.2d 92 (Fla.App. 1st, 1958). The same finding forecloses the crossclaim of Jax for indemnity against the guard service. Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla.App. 1st, 1963).

Each of appellants’ points has been reviewed and found unavailing. See Parker v. Maule Ind., Inc., 321 So.2d 106 (Fla.App. 1st, 1975).

Affirmed,

BOYER, C. J., and RAWLS, J., concur.

ON PETITIONS FOR REHEARING

PER CURIAM.

The petitions for rehearing are

DENIED.

BOYER, C. J., and RAWLS, J., concur.

SMITH, J., concurs with separate opinion.

SMITH, Judge

(concurring):

I join in the court’s denial of appellants’ petitions for rehearing. Our disposition of those petitions has been delayed by lengthy reconsideration of the basic position advanced by Jax Liquors in this case, that it did not have and exercise a right to control the manner in which Williams, the guard, performed his duties. The court has been unable to agree upon an opinion on rehearing which elucidates further our decision as originally announced. However, I think it appropriate to express in terms of the evidence my own reasons, not approved by the other members of the court, for denying rehearing:

In contrast with the facts of Williams v. Wometco Ent., Inc., 287 So.2d 353 (Fla. 3d DCA 1974), cert. den., 294 So.2d 93 (Fla.1974), and Brien v. 18925 Collins Ave. Corp., 233 So.2d 847 (Fla. 3d DCA 1970), guard Williams was subject to the control of Jax not only in selecting “the result to be obtained” but also in respect to “the means to be employed.” Farmers & Merchants Bank v. Vocelle, 106 So.2d 92 (Fla. 1st DCA 1958). See also Fruehauf Corp. v. Aetna Ins. Co., 336 So.2d 457 (Fla. 1st DCA 1976).

This is not a case in which a merchant simply hired a guard service to patrol his premises. Jax, in order to preserve order and deal with unruly patrons, sought and obtained armed, uniformed guards for its dozen establishments in the Jacksonville area. Jax, not Clark and Moore, was the source of instructions that guard Williams station himself inside the door of the lounge, which Jax’s supervisor characterized as the “hot zone,” that the guard disperse crowds from the door, that the guard “try to talk” with rowdy or intoxicated patrons, that the guard exclude minors and, most significantly for present purposes, that the guard prevent patrons from walking out of the bar with Jax’s glass tumblers. I am satisfied Jax did more than simply requisition law and order from a guard service, and that there was a jury issue whether Jax assumed important aspects of control over the means to be employed by the guard in accomplishing the desired result.


author: NcNULTY, Chief Judge.

text:
    Richard T. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1430.
    District Court of Appeal of Florida, Second District.
    July 16, 1976.

      Philip W. Dann of Baird, Robinson & Dann, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   NcNULTY, Chief Judge.

Appellant assails an order denying his motion to quash and suppress certain marijuana and paraphernalia seized pursuant to a warrant. Specifically, he urges that the warrant was invalid. We agree.

Police Lt. Schmelter of the St. Leo Police Department presented his affidavit and application for search warrant to the presiding circuit judge. An original typewritten document entitled “SEARCH WARRANT”, presumably sufficient on its face, was prepared. This original document was, however, never signed nor dated by the trial judge. Several photocopies of the document were made and one such photocopy was presented to the judge for his signature. At the left hand corner thereof the judge’s signature appears over a rubber stamp reading “true copy,” and the blank provided for the day of the month was filled in by hand with the number 7. No signature appears over the line designated for the judge’s signature nor was his signature “conformed” in this space. The record further reveals that this “true copy” was the document in possession of the officer when the warrant was executed and that a second photocopy unsigned at any place, was delivered to appellant during the execution of the warrant.

Section 933.07, F.S.1973, requires that, upon sufficient application, a committing magistrate shall “issue a search warrant signed by him with his name of office.” (Italics supplied.) Section 933.11, F.S.1973, requires that all search warrants be issued in duplicate and that a copy be served on the occupant of the premises to be searched upon the execution of the warrant by the proper officer. While it may be argued that the omission to issue a duplicate copy or the failure to serve an unsigned duplicate on the person in charge of the premises to be searched may not be fatal, we are of the view that the failure of the issuing magistrate to sign an original warrant pursuant to § 933.07, supra, is.

It is rudimentary that the statutes relating to the issuance of search warrants should be strictly complied with; and it is clear that the constitutional prohibitions against unreasonable searches and seizures contemplate that the generally required issuance of a search warrant be the solemn, deliberative and reflective judicial act of a neutral and detached magistrate. It cannot and need not be assumed that the execution of a “true copy,” a mere minis terial act, is done with the same solemnity, deliberation and reflection. Here, simply, no warrant was ever “issued.” The search pursuant to the purported “warrant,” therefore, was void.

In view whereof, the order denying appellant’s motion to quash and suppress should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith,

HOBSON and BOARDMAN, JJ., concur.

      . Nee State v. Henderson (Fla.App.4th, 1971), 253 So.2d 158.

        . See Pell v. State (1929) 97 Fla. 650, 122 So. 110.

      . Id.


author: MILLS, Judge.

text:
    Darlene McCOY, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. EE-18.
    District Court of Appeal of Florida, First District.
    April 7, 1977.
    Rehearing Denied May 2, 1977.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury found McCoy guilty of third degree arson. Judge Booth presided. Subsequently, McCoy was sentenced to ten years in the state prison by Judge Swigert. McCoy contends that Judge Swigert failed to comply with Fla.R.Crim.P. 3.700(c) which provides:

“In those cases where it is necessary that sentence be pronounced by a judge other than the judge who presided at trial, . the sentencing judge shall not pass sentence until he shall have acquainted himself with what transpired at the trial or the facts, . . .”

Although the transcript of the sentencing indicates Judge Swigert had some knowledge of the trial or the facts, how much knowledge Judge Swigert acquired of the trial or the facts before sentencing and its source are difficult to determine. The transcript does reflect that McCoy failed to object or to call the alleged violation of the rule to Judge Swigert’s attention. In addition, the record fails to show that McCoy suffered any prejudice because of Judge Swigert’s alleged violation of the rule. It does show that Judge Swigert could have imposed a fifteen year sentence on McCoy but only imposed a ten year sentence.

Caplinger v. State, 271 So.2d 780 (Fla. 3d DCA 1973), which holds that a sentence is invalid when imposed by a judge who did not preside at the trial and did not familiarize himself with the case before imposing sentence, is distinguishable from this case. The Caplinger case does not indicate whether the defendant’s attorney objected or otherwise brought the violation to the judge’s attention, and it was decided before Williams v. State, 316 So.2d 267 (Fla.1975), in which our Supreme Court stated:

“We hold that the violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant. . . . ”

Because the record reflects that Judge Swigert had some knowledge of the facts before sentencing, because the record fails to show that McCoy’s attorney objected or called the alleged violation of the rule to Judge Swigert’s attention and because McCoy has failed to demonstrate any prejudice or harm, we must affirm.

We have considered the other arguments made by McCoy and find them to be without merit.

For future guidance of trial judges, we suggest that they comply with Rule 3.700(c) and affirmatively state in the record that they have complied and what they did to comply.

The judgment and sentence are affirmed.

BOYER, C. J., and McCORD, J., concur.


text:
    Larry STEADMAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-773, 74-1001.
    District Court of Appeal of Florida, Second District.
    July 14, 1976.
    Appeals closed February 7, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was originally placed on probation for grand larceny under the first count of an information, and for aggravated assault under the second count, on September 15, 1972.

Thereafter, he was found guilty of violation of probation. Probation was revoked as to the grand larceny count and a sentence of one year imprisonment was ostensibly imposed therefor. Probation under the aggravated assault count was apparently continued, to run concurrently with a subsequent order of probation entered for the offense of robbery. This latter probation was subsequently revoked and sentences were imposed on the aggravated assault count included in the original order of probation and on the robbery charge included in the second order of probation.

Appellant now argues double jeopardy as to the aggravated assault charge contending that, in effect, he had been once sentenced therefor in that such sentence was necessarily included in the original one year sentence imposed for the grand larceny count at the time of the first violation of probation. He may be right but we can’t tell.

It affirmatively appears from the record before us that no proper judgment was entered in open court, that is, in writing and signed by the judge, as required by Rule 3.670, RCrP, with respect to the initial two charges of grand larceny and aggravated assault. We can’t say, therefore, which sentences applied to which “judgments” or, for that matter, vice versa.

Whereupon the cause is remanded with directions to enter appropriate judgments on said charges, in the presence of appellant if necessary, and to clarify the sentences imposed thereon with appropriate credit. It is further directed that, upon compliance herewith, the trial court cause to be returned to us copies of the judgments and sentences so entered for further consideration of the matters raised on this appeal.

McNULTY, C. J., and GRIMES and SCHEB, JJ., concur.

It appearing that the trial court has entered an order, dated January 18, 1977, which complies with the mandate of this court temporarily remanding the cause on July 14, 1976, upon consideration, it is

ORDERED that the above-styled appeals be and they are hereby closed.


author: PEARSON, Judge.

text:
    PALM CORPORATION, Appellant, v. 183RD STREET THEATRE CORPORATION, Appellee.
    No. 76-575.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.
    On Rehearing Feb. 10, 1977.
    Lapidus & Hollander, Miami, for appellant.
    Dubbin, Schiff, Berkman & Dubbin and Evan J. Langbein, Miami, for appellee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

Palm Corporation was the defendant below in an action brought by the 183rd Street Theatre Corporation to enjoin a cause in the county court wherein Palm Corporation, as landlord, sought the eviction of its tenant, the 183rd Street Theatre Corporation. The circuit court issued an injunction, without notice, enjoining the prosecution of the action in the county court and, upon Palm Corporation’s motion to dissolve the injunction, denied the motion and continued the injunction. This appeal is from that order.

We hold that the denial of the motion to dissolve the injunction was error because the allegations of the complaint in the circuit court set forth as equitable defenses and grounds for the injunction only those facts which could be pleaded as defenses in the county court action.

The landlord brought the action in the county court to evict the tenant pursuant to Section 51.011, Florida Statutes (1975). It alleged the forfeiture of the tenancy due to a default in the payment of rent. The lease agreement between the parties allegedly waived the three day notice requirement under Section 83.20(2), Florida Statutes (1975). The tenant’s complaint in the circuit court consisted of two counts. The first sought to enjoin the county court from proceeding in the suit because the landlord had waived his right to claim forfeiture on the grounds of the late tender of a rental payment. Count 2 sought a declaration of rights under the lease agreements and a declaration of whether the waiver of the three day notice was effective.

Under the law prior to the 1954 Florida Rules of Civil Procedure, it was held that the only defense on a petition to remove a tenant for non-payment of rent was proof of the payment of the rent. See Masser v. London Operating Co., 106 Fla. 474, 145 So. 79 (1932). It is clear from subsequent holdings that the trial court, in landlord and tenant proceedings, may now consider all equitable defenses. See Filaretou v. Christou, 133 So.2d 652 (Fla.2d DCA 1961); and Avvenire College for Women, Inc. v. G.B.D., Inc., 240 So.2d 191 (Fla.4th DCA 1970). Therefore, any facts constituting an equitable defense such as those alleged in the complaint in the circuit court are available to the defense in the landlord and tenant proceeding. The circuit court is the appellate court in which county court judgments are reviewed on appeal. It, therefore, appears that the circuit court here has taken jurisdiction to declare defenses which it would ordinarily be called upon to review in an appellate proceeding. The county court has exclusive jurisdiction in landlord and tenant actions. See Section 34.011(2), Florida Statutes (1975). We, therefore, hold that the injunction was wrongfully entered and should have been dissolved upon motion when it was made to appear to the circuit court that the facts alleged in the complaint before it as equitable defenses were available as defenses in the county court.

The order appealed is reversed and the cause remanded with directions to dismiss the complaint in the circuit court.

Reversed and remanded.

Pursuant to rehearing granted, the court has reconsidered the record in light of briefs and argument of counsel for the appellee and has concluded that our opinion and judgment filed January 11,1977 should be adhered to.

      . See also Fla.R.Civ.P. 1.110 and 1.140.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Sampson CYRUS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1253.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Rehearing Denied April 25, 1977.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

In an attempt to impeach the court’s witness, who denied any knowledge of the case being tried, the state was permitted to read from the alleged prior statement of the witness establishing in detail the defendant’s participation in the crime charged. This testimony violated the rule set out in Rankin v. State, 143 So.2d 193 (Fla.1962) and should not have been admitted. However, I am convinced that the admission of such testimony was harmless error and agree the judgment should be affirmed. Oliver v. State, 239 So.2d 637 (Fla. 1st DCA 1970).


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    R. Emmett McTIGUE, Trustee, and Edgar G. Hamilton, Bond Indenture Trustee, Appellants, v. AMERICAN SAVINGS & LOAN ASSOCIATION OF FLORIDA, a Florida Savings and Loan Association and C.D.I. Corp., et al., Appellees.
    Nos. 75-1623, 76-564, 76-843 and 76-844.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Rehearing Denied March 31, 1977.
    Joe Easthope of Ferrero, Middlebrooks & Houston, Fort Lauderdale, for appellant McTigue.
    Edgar G. Hamilton of Hamilton, James, Merkle & Young, West Palm Beach, for appellant Edgar G. Hamilton, Bond Indenture Trustee.
    Broad & Cassel, Bay Harbor Islands, and Larry A. Klein, West Palm Beach, for ap-pellee American Sav. and Loan Ass’n.
   SCHWARTZ, ALAN R., Associate Judge.

The central issue on the main appeal in this case — which is determinative also of the satellite cross-appeal and interlocutory appeals — concerns the question of whether the multi-million dollar mortgage loan given by American Savings & Loan upon a Broward County apartment complex called the Essex House was usurious. We agree with the trial court’s determination that it was not.

When the loan, which had an interest rate of 10%, was initially negotiated in August, 1972, American, a domestic savings and loan institution, exacted various discount, commitment and modification “fees”, at least some of which would surely be considered interest and subject to being “spread over the stated term of the loan for the purpose of determining the rate of interest”, under F.S. § 687.03(2); Financial Federal Savings and Loan Assn. v. Burleigh House, Inc., 305 So.2d 59 (Fla.3rd DCA 1974), cert. discharged, 336 So.2d 1145 (Fla.1976). Since even with all the fees added to the 10% rate, the effective rate did not exceed 15%, no question of usury arose in the first instance.

By the middle of 1973, however, the loan went into default and the following provision of the mortgage and note became effective:

“While in default, this obligation shall bear interest at the highest lawful rate for corporations in the State of Florida.”

In September, 1973, American filed a foreclosure action in the Broward County Circuit Court; a few days later, the owner filed a Chapter X reorganization proceeding in the United States District Court and obtained a stay of the state foreclosure action. In the Chapter X proceeding in the Federal Court, American filed two separate statements as to the amount of its claim against the debtor. Both stated the amount of claimed interest at $1,572.46 per day. It is undisputed both that this sum amounts to a rate of 15% actual interest on the unpaid balance due, without any point spreading whatsoever, and that the effective rate of interest represented by this claim was thus in excess of the 15% statutory corporate maximum. The issue before us is whether the mere fact that usurious interest was at one time claimed, though not paid, received, or awarded is sufficient to render the transaction itself usurious in law and effect.

The reasons that the issue may be accurately posed in this manner arise from the fact that after American had secured permission from the federal court to pursue the Circuit .Court foreclosure action — and was met with a usury defense by the bankruptcy trustee — it no longer claimed a usurious interest rate. It contended, instead, that a proper view of the default interest clause we have quoted was that it was entitled to 15% including the amounts of any fees required to be spread as interest over the life of the loan. In accordance with this interpretation, the final foreclosure judgment which it secured, and which is now here on appeal, does not, in fact and without dispute, involve an interest allowance of more than 15%.

Upon close questioning from the bench at the oral argument of this appeal, counsel for the appellant-trustee stated clearly that his client’s position here does not involve a claim that, on its face, or even upon its proper interpretation, the interest upon default clause requires or permits the payment of 15% interest without spreading; that, standing alone, the clause does not render the transaction usurious, even though a default has in fact occurred; and that American’s second, and the trial court’s initial interpretation of the clause to involve 15% with spreading, is correct. Counsel stated unequivocally that the sole basis of his contention that usury was involved lies in American’s fruitless and bare claims to usurious interest in the Chapter X proceeding. We cannot agree with this position, which, we think, is in conflict both with the decided cases and with common sense.

A holding that a mere demand for usurious interest unjustified by any contractual requirement to pay it, renders the loan usurious, would mean, for example, that an utterly baseless claim for 17% interest upon a simple note which plainly provides for only 9% would invalidate the transaction itself. This cannot be and is not the law. In Connecticut Mut. Life Ins. Co. v. Fisher, 165 So.2d 182 (Fla.3rd DCA 1964), for example, the court overturned a finding that usury was involved even though the lender had actually charged and accepted excessive interest, when the overpayments were caused only by a mistaken computation as to the interest required by the agreement. The court said at 165 So.2d 184, 186:

“The promissory note made provision for payment of no more than lawful interest, and, as the appellant correctly contends, neither the note on its face nor its performance would violate the usury law . . .”
* * * * * *
“. . . There were, however, overpay-ments of interest made in two instances, as conceded by Connecticut. These were involved in the fifth and sixth items listed in paragraph seven of the decree, and came about when interest was charged at the end of a period during which a payment had been made for a partial release. The error occurred through collecting the interest on the amount paid for a partial release and erroneously collecting that interest again on the same sum by not excluding it from the principal in computing interest at the next interest payment date. The overpayment of interest in those two instances appears to have been due to inadvertence rather than the result of corrupt intent.”

See cases collected at Annot., Usury—Mistake, 11 A.L.R.3d 1498. As the Second District held, in dealing with a converse situation in which the contract was usurious upon its face, in First Mortgage Corp. of Vero Beach v. Stellmon, 170 So.2d 302, 305 (Fla.2d DCA 1965), cert. den., 174 So.2d 32 (Fla.1965):

“. . . the usurious nature of the contract depends upon the liability of the borrower under its terms, or, to put it another way, upon what may be demanded of the borrower, under the terms of the contract, rather than what is demanded from him. This is, of course, consonant with the well-settled principle that the usurious nature of a contract is to be determined as of the date of its inception. Carter v. Leon Loan and Finance Company, 108 Fla. 567, 146 So. 664; Shorr v. Skafte, Fla., 90 So.2d 604; Kay v. Amendola, Fla.App., 129 So.2d 170; Home Credit Company v. Brown, Fla., 148 So.2d 257, 55 Am.Jur. 387.”

The Supreme Court held to like effect in Home Credit Corp. v. Brown, 148 So.2d 257, 260 (Fla.1962):

“In any event, we think computations under the usury law must be based on a determination of the scope of acceleration rights which a note or contract purports to give a lender or holder and not upon the sums actually claimed by him. This follows necessarily from the principle that the vice of usury is one which inheres in the parties’ agreement itself.”

In accordance with these authorities, we hold that an otherwise non-usurious loan does not become usurious merely because usurious interest is claimed or demanded under it. The judgment and orders below are therefore

Affirmed.

ALDERMAN, J., and BERANEK, JOHN R., Associate Judge, concur.

      . American purchased and modified an existing mortgage loan between the owner and Atlantic Federal Savings and Loan of Fort Lauderdale, which had been taken in 1969, and which bore an interest rate of 8.75%.

      . Therefore, we express no opinion on this issue.

      .Our conclusion that the transaction was not usurious pretermits consideration of the difficult questions of whether American, which operated as an “ordinary” domestic savings and loan association, qualifies for the exemption from the usury statutes provided by Fla.Stat. § 665.395 for “building and loan association[s]”, see Skinner v. Southern Home Building and Loan Assn., 46 Fla. 547, 35 So. 67 (1903), Spinney v. Winter Park Building & Loan Assn., 120 Fla. 453, 162 So. 899 (1935); and whether, if it does, such a blanket exclusion of a class of lenders which seems not to differ, as to the subject regulated (that is, lending money), from other non-exempt institutions, can be constitutionally justified.
      Moreover, since the price realized when American bid in at the foreclosure sale which followed the final judgment below, did not even satisfy its first mortgage lien, much less a large and outstanding second mortgage, we find it unnecessary also to reach the equally difficult question as to whether the cross-appealing “Bond Indenture Trustee” was entitled to an equitable third lien on the property despite Sec. 70(c) of the Bankruptcy Act.

      . We find no error as to the fees awarded to American’s counsel below.

      . As the appellant-trustee concedes, our affirmance of the final judgment renders moot the interlocutory appeals, Case Nos. 76-564, 76-843, and 76-844, he has taken from several post-final judgment orders.


author: NATHAN, Judge.

text:
    NORTH SHORE HOSPITAL et al., Appellants, v. Dr. Wayne B. MARTIN, Appellee.
    No. 77-171.
    District Court of Appeal of Florida, Third District.
    March 18, 1977.
    Rehearing Denied April 13, 1977.

      Corlett, Merritt, Killian & Sikes; Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, and Richard A. Sherman, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard, and Steven R. Berger, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   ON MOTION TO DISMISS

NATHAN, Judge.

Dr. Wayne B. Martin, appellee, moves to dismiss the appeal by North Shore Hospital, David Whelehan, The Fidelity and Casualty Insurance Company and United States Fire Insurance Company, who were codefend-ants with Dr. Martin in a medical malpractice action. A jury verdict was rendered at trial against all of the appellants, but in favor of Dr. Martin. The record reflects that no cross claims were filed by any of the defendants to the action and that the plaintiff did not take an appeal from the judgment in favor of Dr. Martin.

The issue before us, then, is whether the appellants can complain of the exoneration of Dr. Martin. We are of the opinion that they cannot, under the facts of this case.

The appellee contends that a codefendant cannot challenge a verdict rendered in favor of another codefendant. While this rule appears to be firmly established in Florida case law, see O’Brien v. Francis, 231 So.2d 13, 14 n. 1 (Fla.3d DCA 1970), our examination of decisions bearing on this point has disclosed that such cases were bottomed on the premise that there was no common law contribution among joint tort-feasors. See Jackson v. Florida Weathermakers, Inc., 55 So.2d 575, 577 (Fla.1951), citing Crenshaw Brothers Produce Co., Inc. v. Harper, 142 Fla. 27, 194 So. 353, 359 (1940). Since contribution among joint tortfeasors is now authorized by Section 768.31, Florida Statutes (1976 Supp.), it is necessary to re-examine the doctrine which prohibits a defendant from challenging the exoneration of a codefendant in light of the instant circumstances.

Although it appears that no Florida appellate decisions have been rendered directly on this question, the courts in several other states have considered it in the face of contribution statutes. A split of authority has developed in this area.

The Supreme Court of Appeals of West Virginia has held that a defendant is prejudiced by an erroneous jury instruction favoring a codefendant, and that therefore the adversely affected party should have a right to complain on appeal as to the exoneration of the codefendant who benefitted from the improper instruction. Hutcherson v. State, 105 W.Va. 184, 142 S.E. 444 (1928). Similarly, the Supreme Court of Minnesota has held that a judgment defendant is aggrieved by the exoneration of a codefend-ant, and should thus be entitled to appeal. Bocchi v. Karnstedt, 238 Minn. 257, 56 N.W.2d 628 (1953); Muggenberg v. Leighton, 240 Minn. 21, 60 N.W.2d 9 (1953).

On the other hand, more recent decisions from other states have denied the right of defendants to complain of errors which result in verdicts that are favorable to code-fendants.

The Supreme Court of Missouri has held that a defendant cannot complain of an instruction given at the request of a code-fendant on the grounds that the instruction prevented a finding of joint liability. Eller v. Crowell, 238 S.W.2d 310 (1951 Mo.); Nix v. Gulf, Mobile & Ohio Railway Co., 362 Mo. 187, 240 S.W.2d 709 (1951); Ciardullo v. Terminal Railway Ass’n of St. Louis, 289 S.W.2d 96 (Mo.1956). The Missouri high court has also held that a defendant in a tort action cannot complain of the direction of a verdict in favor of a codefendant. May v. Bradford, 369 S.W.2d 225 (Mo.1963).

Directly addressing the impact of a contribution statute on the right of appeal by a codefendant, several California decisions have held that no such right exists. The supreme court of that state determined in Augustus v. Bean, 56 Cal.2d 270, 14 Cal.Rptr. 641, 363 P.2d 873 (1961), that the statutory cause of action for contribution would only arise where one of several tort-feasors had discharged the common liability after entry of judgment. This language was referred to in the later decision of Guy F. Atkinson Co. v. Consani, 223 Cal.App.2d 342, 35 Cal.Rptr. 750 (1964), wherein the court definitively ruled that the contribution statute had not changed the existing rule that a party has no right of appeal from a judgment favoring a codefendant. The Atkinson court noted that there was no common law right of contribution among tortfeasors and that the right of contribution was therefore dependent upon the presence of specific statutory conditions. Whereas contribution was authorized in certain well-defined factual situations, the court clearly felt that any extension of the right to enforce contribution was a matter of legislative concern. Atkinson, supra at 752. See also Swails v. General Electric Co., 264 Cal.App.2d 82, 70 Cal.Rptr. 143 (1968).

The courts of New York have drawn essentially the same conclusion. See Ward v. Iroquois Gas Corp., 258 N.Y. 124, 179 N.E. 317 (1932); Wolfson v. Darnell, 12 N.Y.2d 819, 236 N.Y.S.2d 67, 187 N.E.2d 133 (1962). In Baidach v. Togut, 7 N.Y.2d 128, 196 N.Y.S.2d 67, 164 N.E.2d 373 (1959), the Court of Appeals of New York found that contribution was authorized by statute only where two conditions had been met: (1) the rendition of a joint money judgment against two or more tortfeasors and (2) payment by one tortfeasor of more than his pro rata share of the judgment.

We are of the opinion that long-standing rules of statutory construction require that we adopt an approach similar to those taken in New York and California. Like those states, Florida did not recognize contribution between joint tortfeasors at common law, but the legislature has now enacted a statute allowing contribution in certain specified instances. According to Section 768.31, Florida Statutes (1976 Supp.), contribution is to be allowed where “two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death ..” Further, the right of contribution exists only to the extent that one tort-feasor has paid more than his pro rata share “of the common liability.” Section 768.-31(2)(b), Florida Statutes (1976 Supp.). Of particular importance herein is the fact that “common liability” is a necessary precondition to the right of contribution. That is to say that the right to contribution only arises after liability has been established. If the legislature had intended to allow a defendant to appeal the exoneration of a codefendant whose liability was not actively pursued by the complaining party, it would have done so clearly, given the prevailing policy which denies such appeals. See Allstate Mortgage Co. of Florida v. Strasser, 277 So.2d 843 (Fla.3d DCA 1973), aff'd, 286 So.2d 201 (Fla.1973). Thus, defendants in this case should not be allowed to appeal the rendition of a judgment favorable to their eodefendant. Accordingly, the motion is granted and this appeal is dismissed.

Dismissed.

      . But see Liberty Mutual Insurance Co. v. Curtiss, 327 So.2d 82 (Fla. 1st DCA 1976).