author: BOYD, Justice.

text:
    B. A. A., a juvenile, Petitioner, v. STATE of Florida, Respondent.
    No. 49992.
    Supreme Court of Florida.
    March 9, 1978.

      Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., Miami, for respondent.
   BOYD, Justice.

This cause presents an issue of the application of Florida’s loitering and prowling statute, Section 856.021, Florida Statutes. We have conflict certiorari jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution. Conflict in this cause is with State v. Ecker, 311 So.2d 104 (Fla.1975).

The juvenile in the instant case was arrested for loitering and prowling after a police officer observed her, a number of times, approaching cars stopped at a traffic light and engaging the drivers in conversation. The arresting officer observed the juvenile acting in this manner on approximately forty previous occasions, and on the night of her arrest had earlier warned her to leave the streets.

Following a delinquency hearing in the Juvenile Division of the Circuit Court of Dade County, the juvenile was found to have violated the “loitering” statute. Adjudication of delinquency was withheld and she was placed under the supervision of the Division of Youth Services. The District Court of Appeal, Third District, upheld the decision of the trial court. B. A. A., a juvenile v. State, 333 So.2d 552 (Fla. 3rd DCA 1976).

In State v. Ecker, supra, we construed Section 856.021, Florida Statutes, as requiring that “ ‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ a finding that a breach of the peace is imminent or the public safety is threatened.” 311 So.2d 104, 109. See also Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). In Ecker, the elements of the offense which must be satisfied for conviction of loitering and prowling were set forth as:

“(1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; (2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. This alarm is presumed under the statute if, when the law officer appears, the defendant flees, conceals himself, or refuses to identify himself. Prior to any arrest, the defendant must be afforded an opportunity to dispel any alarm or immediate concern by identifying himself and explaining his presence and conduct. If it appears at trial that the explanation is true and would have dispelled the alarm or immediate concern, then the defendant may not be convicted under this statute.” 311 So.2d 104, 106.

In the instant case, there are no specific and articulable facts which would reasonably warrant a finding that the public peace and order were threatened or that safety of persons or property was jeopardized by the actions of the juvenile. If the finding of loitering is upheld under the facts of this case it could be upheld against anyone at street intersections lawfully seeking donations, for charitable purposes, from drivers of automobiles.

The statute is not to be used as a “catchall” provision hereby citizens may be detained by police and charged by prosecutors when there is an insufficient basis to sustain a conviction on some other charge. Rather, it is a specific prohibition against specific conduct. All elements of this crime must be satisfied. We reaffirm these elements as set forth in Ecker, supra. In utilizing these elements and examining the juvenile’s conduct, we must conclude that the statute may not be applied here. The decision of the District Court of Appeal, Third District, is quashed and the cause remanded.

It is so ordered.

OVERTON, C. J., and ENGLAND, SUNDBERG and KARL, JJ., concur.

       The District Court found a threatened breach of peace because the arresting officer believed the juvenile was offering to commit prostitution, a misdemeanor, if there was evidence of such solicitation, it should have been charged against her. But the record here does not establish that there was a reasonable alarm for the safety of persons or property in the vicinity, the second element necessary to sustain a charge of loitering.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Appellant, v. John DeLEO, Appellee. STATE of Florida, Appellant, v. George W. JOHNSON, Appellee.
    Nos. 50577, 50830.
    Supreme Court of Florida.
    March 9, 1978.

      Robert L. Shevin, Atty. Gen., and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellant.
    John W. Conness of Fields, Bookstein, Conness & Zack, Fort Lauderdale, for John DeLeo.
    J. Leonard Fleet of Fleet & Packar, Hollywood, for George W. Johnson.
   BOYD, Justice.

We have before us two direct appeals from the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County. The appeals have been consolidated because both place in issue the constitutional validity of Section 839.25(l)(c), Florida Statutes.

John DeLeo and another person were indicted by the Florida Grand Jury inquiring in Broward County for Official Misconduct, outlawed by Section 839.25, Florida Statutes. The indictment charged that the two, while employees of the City of Hollywood, knowingly violated, with corrupt intent to obtain benefit for themselves, a statute relating to their office: Section 112.313(7), Florida Statutes, in that they had employment or held a contractual relationship with a business entity subject to the regulation of or doing business with the City. Such action constitutes official misconduct as defined by the statute. Section 839.25(l)(c). DeLeo moved to dismiss the indictment. After hearing DeLeo and the State Attorney on the motion, the trial court ordered that the indictment be dismissed. In the order, Section 839.25, Florida Statutes, was declared vague, indefinite, uncertain, arbitrary, and subject to capricious whim in violation of the due process and equal protection guarantees of the Florida Constitution. The state took a direct appeal to this Court. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

In a separate action George W. Johnson was indicted by the Florida Grand Jury inquiring in Broward County for official misconduct committed while he was a Commissioner of Cooper City. Just as the De-Leo indictment, the Johnson indictment charged Official Misconduct by a knowing violation of a statute relating to the office of the accused. But, in contrast to DeLeo’s alleged official misconduct through conflicting employment or contractual relationships, Johnson’s official misconduct was charged to have occurred when he misused his public position, contrary to Section 112.-313(6), Florida Statutes. The misuse of public position was charged to have been the diversion of City property and labor of City employees to the construction of - a carport, for Johnson’s personal use, at his home. In keeping with the dismissal order in the DeLeo cause, the trial court, upon Johnson’s motion, ordered the dismissal of the indictment against Johnson and declared Section 839.25(l)(c), Florida Statutes, vague and susceptible to arbitrary application in violation of the Constitutions of the United States and Florida. The state, again, appealed directly to this Court. We have jurisdiction of this appeal, too. Article V, Section 3(b)(1), Florida Constitution.

The pertinent part of the statute follows: 839.25 Official Misconduct.—
(1) “Official Misconduct” means the commission of one of the following acts by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another:
* * * *. * *
(c) Knowingly violating, or causing another to violate, any statute or lawfully adopted regulation or rule relating to his office.

We declare that the statute is unconstitutional under the due process guarantees of the federal and Florida Constitutions because it is susceptible to arbitrary application.

“Official Misconduct” under subsection (c) is keyed into the violation of any statute, rule or regulation, pertaining to the office of the accused, whether they contain criminal penalties themselves or not, and no matter how minor or trivial. And any public servant may commit such misconduct. Public servant is not defined in Chapter 839, but in Chapter 838, a related Chapter, it is defined for purposes of that Chapter as any public officer, agent or governmental employee, whether elected or appointed. Theoretically, then, using this definition an appointed employee could be charged with official misconduct, a felony in the third degree and punishable by up to five years in prison or a fine up to $5,000, for violating a minor agency rule applicable to him, which might carry no penalty of its own.

Of course, the violation must be proven to have been committed with corrupt intent. This element of the offense might prevent its arbitrary application, but it does not. All that it is necessary for intent to be corrupt is that it be “done with knowledge that the act is wrongful and with improper motive.” This standard is too vague to give men of common intelligence sufficient warning of what is corrupt and outlawed, therefore, by the statute. The “corruption” element, as defined, does nothing to cure the statute’s susceptibility to arbitrary application.

While some discretion is inherent in pros-ecutorial decision-making, it cannot be without bounds. The crime defined by the statute, knowing violations of any statute, rule or regulation for an improper motive, is simply too open-ended to limit prosecu-torial discretion in any reasonable way. The statute could be used, at best, to prosecute, as a crime, the most insignificant of transgressions or, at worst, to misuse the judicial process for political purposes. We find it susceptible to arbitrary application because of its “catch-all” nature.

Affirmed.

ADKINS, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., and ENGLAND, J., dissent.

      . Fourteenth Amendment to the U.S. Constitution.

      . Art. I, § 9, Fla.Const.

      . § 838.014(4), Fla.Stat.

      . § 839.25(l)(c), Fla.Stat.

      . § 775.082, Fla.Stat.

      . § 775.083, Fla.Stat.

      . § 839.25(2), Fla.Stat.

      . See State v. Llopis, 257 So.2d 17 (Fla.1971) for the test of vagueness. Recently we struck a portion of a companion statute, § 839.11, Fla.Stat., for vagueness in State v. Wershow, 343 So.2d 605 (Fla.1977).

      .It would be better for the Legislature to assign criminal penalties to each statute or rule or regulation whose violation is serious enough to warrant criminal prosecution, than to have a statute of such broad application.


author: ENGLAND, Justice.

text:
    The DIVISION OF BEVERAGE, DEPARTMENT OF BUSINESS REGULATION, an agency of the State of Florida, Appellant, v. BONANNI SHIP SUPPLY, INC., Appellee.
    No. 51582.
    Supreme Court of Florida.
    March 9, 1978.

      Richard E. Gentry, Staff Atty., Tallahassee, for appellant.
    Robert V. Williams of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellee.
   ENGLAND, Justice.

The circuit court for the Thirteenth Judicial Circuit entered final summary judgment in favor of appellee in a declaratory action brought against the Department of Business Regulation, in which it held Section 561.14(4), Florida Statutes (1975), to be in violation of the Commerce Clause of the United States Constitution. That provision of the statute required Bonanni Ship Supply, Inc. to obtain an exporter’s license from the State of Florida in order to engage in the business of importing and exporting “in-bond” merchandise for distribution and use solely in foreign commerce. Under Article V, Section 3(b)(1) of the Florida Constitution, the Department asks us to review the trial court’s declaration of invalidity. The sole issue for review is whether the state’s regulation of Bonanni’s import-export activity constitutes an unreasonable burden on interstate commerce under the federal constitution.

There is no controversy as to either the facts in this case or the applicable standard of law. Both parties agree that the Commerce Clause of the United States Constitution permits a state to exercise reasonable police powers necessary to protect local interests, and that in this case the sole interest of the state is to prevent a diversion of liquor from foreign commerce into the stream of state distribution. Both parties also agree that the federal government has entered the regulatory field with respect to Bonanni’s business, having imposed extensive procedural requirements which govern Bonanni’s activities in transferring liquor through the port of Tampa.

The ultimate question we are called upon to answer is whether the state’s supplementary regulations, as set forth in Chapter 561 of the Florida Statutes, constitute an unreasonable burden on interstate commerce within the limitations established by the federal courts. This state’s regulatory scheme with respect to Bonanni and like exporters consists of a $500 license fee, a $5,000 bond to protect against tax loss in the event merchandise is diverted into state commerce, monthly reports on the transfer of liquor into and out of the bonded warehouse in Tampa, and a semi-annual physical inspection of the bonded warehouse at which a customs employee must be present.

Relying on Duckworth v. Arkansas, 314 U.S. 390, 62 S.Ct. 311, 86 L.Ed. 294 (1941), and Carter v. Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605 (1944), the Department argues that a reasonable state regulation of foreign commerce is permissible to achieve the state’s legitimate objective of preventing diversion to in-state commerce. Bonanni contends that Duckworth and Carter are not relevant in this case because both involved state regulation in areas devoid of any federal regulatory activity, and that Epstein v. Lordi, 261 F.Supp. 921 (D.N.J.1966), aff’d, 389 U.S. 29, 88 S.Ct. 106, 19 L.Ed.2d 29 (1967), is more to the point. Epstein was a Commerce Clause case involving competing state and federal regulations.

Epstein is persuasive here, and we hold that the state’s regulatory activity is not reasonably necessary to protect against diversion. On the record here,- the federal regulatory scheme is more than adequate to detect any diversion from the importation, storage, and exportation of wholesale liquor passing through the State of Florida.

Obviously, the license fee and bonding requirement provide no protection for the state against diversion. Similarly, the filing of monthly reports offers nothing to the state which the federal government does not already have; indeed, Bonanni attaches to the state’s form each month a copy of the report it files with the federal government for the same purpose. The one state activity that has no counterpart in the federal scheme of regulation is the semi-annual physical inventory. Since we can discern no information regarding diversion that might emerge from the state’s physical inventory which would not also be revealed by the paper and physical inventories provided by the federal government, we must conclude that the state’s attempt to monitor for diversion is merely duplicative of the federal effort. Under these circumstances, the federal regulatory activity and the Commerce Clause of the United States Constitution preclude state regulation. Section 561.14(4), which requires exporters such as Bonanni to obtain a license and to comply with the bonding, filing, and inventory requirements we have described, violates the Commerce Clause of the United States Constitution and is invalid.

Nothing in our decision today should be construed as prohibiting the state from requiring exporters to register with the state for identification purposes. A reasonable registration requirement would not, in the words of the federal constitution, interfere with congressional power “[t]o regulate Commerce with foreign Nations, and among the several States . . .

The decision of the trial court is affirmed.

OVERTON, C. J., and BOYD, SUND-BERG and HATCHETT, JJ., concur.

ADKINS and KARL, JJ., dissent.

      . U.S.Const. art. I, § 8, cl. 3.

      . Bonanni’s business is subject to the Tariff Act of 1930, 19 U.S.C. § 1311 et seq., the Alcoholic Beverage and Tobacco Products Provisions of the Internal Revenue Code of 1954, 26 U.S.C. § 5001 et seq., and various regulations promulgated by the Department of the Treasury for the U. S. Customs Service, 19 C.F.R. §§ 1.1— 177.11 (1977). In practice, these regulations translate into strict and pervasive controls over Bonanni’s operations, as indicated by the following descriptive excerpt from the affidavit of the Assistant District Director of the Bureau of Customs in Tampa:
      “When a shipment arrives in the port of Tampa the merchandise is off-loaded from the ship into a dock storage building which is under the control of the Bureau of Customs. The merchandise may not be removed from the dock storage building until a warehouse bond is filed by the importer at the United States’ Customs House. .
      After the warehouse bond is filed by the importer, authority is then given for the merchandise to be removed from the dock of arrival and is then transferred by a customs’ bonded cartman, under strict customs supervision. This customs supervision includes an inventory of what leaves the dock storage building and what is delivered to the cartman.
      The imported merchandise is off-loaded from the bonded cartman to the bonded warehouse (which warehouse must meet specified construction requirements) again under strict customs’ supervision. The bonded warehouse itself is under customs’ lock and key and the importer, in this case Bonanni Ship Supply, Inc., does not have a key to the lock.
      Before the importer may obtain any release of the merchandise in the bonded warehouse, certain documentation must be filed with the customs’ house and approved before withdrawal is allowed. If the documentation is approved a customs’ warehouse officer is sent to the bonded warehouse where he unlocks the warehouse premises and permits the importer to withdraw the prescribed goods from the bonded warehouse. At the time of such withdrawal, the customs’ warehouse officer accounts and verifies the actual merchandise being withdrawn against the withdrawal documentation previously filed with the customs’ house.
      Upon withdrawal from the bonded warehouse, the merchandise again goes to a bonded cartman where it is transported to the ship for delivery outside the territorial limits of the United States. Again this loading process is under customs’ supervision and a receipt is always required from a responsible officer of the vessel certifying the merchandise that has been delivered.
      In addition to the above supervisory controls as to the importation and exportation of liquor and bond, the Bureau of Customs also conducts an annual inventory of the importers business the results of which are cross-checked against all records previously filed with the Bureau of Customs. The annual inventory results must, of course, coincide with the documentation which has been filed through the year by the importer regarding each shipment of liquor.”

      . These requirements appear specifically in Sections 561.14(4) (license), 561.37 (bond), 561.41 (inspections), and 561.55 (reports), Florida Statutes (1975). When the Department conducts its semi-annual inspections Bonanni must pay a customs officer $50.00 per day, which amount is not reimbursed by the state.

      . The federal government apparently conducts an annual physical inventory against which Bo-nanni’s reports are verified. See note 2 above. The record on this point is not entirely clear, but we can assume for purposes of this issue that the annual federal inventory differs to some extent from the state’s semi-annual inventory.

      . In United States v. State Tax Comm’n, 412 U.S. 363, 377, 93 S.Ct. 2183, 2192, 37 L.Ed.2d 1 (1973), the Court indicated that
      “a State may, in the absence of conñicting federal regulation, properly exercise its police powers to regulate and control [liquor] shipments during their passage through its territory insofar as necessary to prevent the 'unlawful diversion’ of liquor ‘into the internal commerce of the State’ . . . (Emphasis added.)
      See also Texas Liquor Control Bd. v. Ammex Warehouse Co., 384 S.W.2d 768 (Tex.App.1964), cert. denied, 382 U.S. 977, 86 S.Ct. 547, 15 L.Ed.2d 468 (1966).

      . Bonanni concedes that a reasonable registration requirement is not an unreasonable burden on interstate commerce.


author: PER CURIAM. SUNDBERG, Justice,

text:
    Sylvester GAINER, Appellant, v. STATE of Florida, Appellee.
    No. 51951.
    Supreme Court of Florida.
    March 9, 1978.
    Randolph Murrell, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Affirmed. Johnson v. State, 351 So.2d 10 (Fla.1977).

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

ADKINS, J., dissents.

SUNDBERG, Justice,

dissenting:

I dissent on the basis of Spears v. State, 337 So.2d 977 (Fla.1976).


text:
    GAZIL, INC., American Food Services Corporation, Joseph Gazil and Sadie Gazil, Appellants, v. SUPER FOOD SERVICES, INC., Appellee.
    Nos. 51962 and 51970.
    Supreme Court of Florida.
    March 9, 1978.
    Jeffry R. Jontz and James B. Barnes of Young, Turnbull & Linscott, Orlando, for appellants.
    Ronald L. Sims, Orlando, for appellee.
   ENGLAND, Justice.

By direct appeal from two final judgments entered in the Fifth and Ninth Judicial Circuits of Florida, we are asked to invalidate Florida’s pre-judgment replevin statute on the ground that it fails to provide due process of law under the United States and Florida Constitutions. We hold that this statute is constitutional and affirm the judgments of the two trial courts.

Super Food Services, Inc. brought actions to obtain pre-judgment writs of replevin against Gazil, Inc. and others in order to recover certain inventory which had been secured by Gazil’s debt to Super Food. The writs were issued in accordance with the procedures set forth in Section 78.068, Florida Statutes (Supp.1976), and Gazil filed motions to dissolve them on the ground, among others, that the replevin statute is unconstitutional. Each trial court determined the question adversely to Gazil, and this appeal followed.

The due process requirements which surround a pre-judgment taking of property have been considered in great detail in recent years both by the United States Supreme Court and by this Court. It would serve no useful purpose to discuss these principles again here, in light of their ample analysis in Ray Lein Construction, Inc. v. Wain wright, involving Florida’s former pre-judgment garnishment statute, Phillips v. Guin & Hunt, Inc., involving Florida’s former distress for rent statute, and Unique Caterers, Inc. v. Rudy’s Farm Co., involving Florida’s former pre-judgment attachment statute. Each of these cases applied the guiding principles of federal due process which have been evolved in recent years by the United States Supreme Court, and which are set forth most explicitly in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

The statute at issue here, Section 78.068, Florida Statutes (Supp.1976), meets the five part test for minimum due process requirements articulated in Mitchell, in that:

(1) the law requires plaintiffs to show facts indicating a right to the property sought to be replevied, and the allegations must be verified;

(2) an application for replevin without notice must be presented to a judge, as opposed to a ministerial court official;

(3) the facts alleged must show the necessity for replevin, which is sufficiently shown if the debtor is in possession of the property and the applicant establishes that there is a possibility of waste, concealment or transfer of the property, or that the debtor is in default on his payments;

(4) the plaintiff must post a bond to protect the debtor from mistaken repossession; and

(5) the debtor must be entitled to an immediate hearing on the issue of possession.

Since the replevin statute complies with the Mitchell standards, it is constitutional.

In Ray Lein Construction, Phillips, and Unique Caterers we intimated that due process “requires” an immediate post-seizure hearing if there is no opportunity for a hearing before the taking. The Mitchell decision does not require such a hearing; it merely requires an opportunity for a hearing at the request of the injured party immediately after a seizure. To the extent that our previous decisions suggest that a seizure statute violates due process unless a post-seizure hearing is “required”, we recede from that position and declare that due process only requires an opportunity for a prompt post-seizure hearing.

The orders of the Fifth and Ninth Judicial Circuit Courts are affirmed.

OVERTON, C. J., and BOYD and SUND-BERG, JJ., concur.

HATCHETT, J., dissents.

      . 346 So.2d 1029 (Fla.1977).

      . 344 So.2d 568 (Fla.1977).

      . 338 So.2d 1067 (Fla.1976).

      . Gazil argues that the legislation impermissi-bly allows a mere default in payments as a ground for replevin. See § 78.068(2), Fla.Stat. (Supp.1976). We do not see in Mitchell or any subsequent Supreme Court decision a limitation on the state’s right to identify the circumstances which are appropriate for replevin. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975).


author: KARL, Justice.

text:
    STATE of Florida, Appellant, v. Robert GAYLORD, Appellee.
    No. 52331.
    Supreme Court of Florida.
    March 9, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellant.
    Charles Holcomb, Cocoa, for appellee.
   KARL, Justice.

We have for review by direct appeal an order of the trial judge finding Section 827.03(3), Florida Statutes (1975), unconstitutionally vague and overly broad and dismissing the information against appellee. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellee was charged by information with aggravated child abuse in that he maliciously punished Harold Wilmore, a child thirteen years of age, by beating the child with a hose. Appellee moved to dismiss the amended information on the grounds that Section 827.03(3), Florida Statutes (1975), is unconstitutionally vague, indefinite and overbroad, and that the undisputed facts do not, and cannot, constitute a crime under the laws of the State of Florida. In his motion to dismiss, appellee alleged that he was Harold’s stepfather and custodian and that as a result of Harold’s repeated disobedience, insolence and intentional disregard of appellee’s instructions, appellee administered corporal punishment to Harold using a length of garden hose. The trial judge granted the motion to dismiss on the basis that Section 827.03(3), Florida Statutes (1975), is unconstitutionally vague and over-broad.

This Court has recently upheld the constitutionality of Section 827.03, Florida Statutes (1975), in Faust v. State, 354 So.2d 866 (Fla.1978), against the attack of vagueness and overbreadth. Therein, this Court held that Section 827.03, Florida Statutes (1975), conveys a sufficiently definite warning to those subject to its provisions as to what conduct on their part will render them liable to its penalties. See also Jordan v. State, 334 So.2d 589 (Fla.1976).

Contrary to appellee’s assertions, we find that the term “maliciously” does provide a definite standard of conduct understandable by a person of ordinary intelligence. Malice means ill will, hatred, spite, an evil intent. Cf. Huntley v. State, 66 So.2d 504 (Fla.1953).

Accordingly, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent herewith..

It is so ordered.

' OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Roger A. COE, Respondent.
    No. 53169.
    Supreme Court of Florida.
    March 9, 1978.

      David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

Respondent, Roger A. Coe, has submitted a conditional guilty plea to the grievance committee report filed in this case in exchange for a consent judgment for disbarment from the practice of law. Respondent has also agreed to pay the costs of the proceeding. The Second Judicial Circuit Grievance Committee found probable cause justifying further disciplinary proceedings against the respondent following the filing of a two-count felony information against him dated March 7,1977, in State of Florida v. Roger A. Coe, in Circuit Court, Leon County, Case No. 77-174. The information charges respondent with two violations of Section 800.04 Florida Statutes (1975), lewd and lascivious assault on a child under the age of 14 years, and that the felony acts were committed on two separate individuals at separate times in 1976.

On April 1, 1977, the respondent entered a plea of nolo contendere to both counts of the information. On June 23,1977, his plea resulted in imposition of two ten year sentences to be served concurrently. In the grievance case filed by The Florida Bar, the committee found that in their report that respondent’s conduct violated Rule 11.-02(3)(a) of The Florida Bar’s Integration Rule and Disciplinary Rule 1-102(A)(3) and 1-102(A)(6) of the Code of Professional Responsibility of The Florida Bar.

The conditional guilty plea is approved and the respondent disbarred from the practice of law, effective immediately, pursuant to Integration Rule 11.10(4) and costs are taxed against him in the amount of $175.60.

It is so ordered.

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


author: HATCHETT, Justice.

text:
    STATE of Florida, Appellant, v. Sarah S. HARRIS and Fanny Mae Woodberry, Appellees.
    Nos. 51073, 51074.
    Supreme Court of Florida.
    Feb. 23, 1978.

      William E. Whitley, Asst. State’s Atty., Gainesville, and Raymond Markey, Asst. Atty. Gen., Tallahassee, for appellant.
    C. Richard Parker and John J. Kearns, Asst. Public Defenders, Gainesville, for ap-pellees.
   HATCHETT, Justice.

The circuit court declared Section 812.-021(3) unconstitutional in that it deprived defendants of due process and equal protection of the law and destroyed the historical presumption of innocence by the inclusion of prior convictions in the charging information. The State of Florida brings these appeals pursuant to Article V, Section 3(b)(1), Florida Constitution. We construe the statute so as to make it constitutional.

Appellees, Harris and Woodberry, were charged with petit larceny, having twice previously been convicted of that offense. The trial court held the statute unconstitutional in orders granting the appellees’ motions to dismiss.

Section 812.021(3) provides in pertinent part, that upon the third or subsequent conviction for petit larceny, the offender shall be guilty of a felony in the third degree (rather than a misdemeanor in the second degree). This statute creates a substantive offense and is thus distinguishable from Section 775.084, the habitual criminal offender statute. While both sections provide for the enhanced punishment of a repeat offender, under Section 775.084 the prior offense serving as the basis for the increased sentence need not be related to the present offense (as long as it is “qualified” under Subsection (3)) and enhanced punishment is sought in a separate proceeding following conviction or adjudication of guilt. Under Section 812:021(3), as interpreted by the State, prior convictions are considered an element of the offense and must be specifically alleged and proved. State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228 (1924). The jury must decide on the guilt or innocence of the defendant and on the historical fact of the prior conviction or convictions and return a verdict as to both. Barnhill v. State, 41 So.2d 329 (Fla.1949). This procedure was most recently approved in Nichols v. State, 231 So.2d 526 (Fla. 2nd DCA 1970), wherein the Second District Court stated:

We have examined Barnhill and the other cases and find that they abundantly support the action of the trial Judge in the case sub judice in submitting to the jury not only the guilt or innocence of Nichols as to the latest offenses charged but also as to the historical fact of his previous conviction of a beverage law violation. Indeed, the cited cases make it the duty of the trial Judge to not only make known to the jury the alleged fact as to such former conviction, but that the jury must make a specific finding thereon, (at 527)

Appellees argue that this procedure constitutes a deprivation of due process and equal protection of the law. Section 812.-021(3) and Section 775.084 are essentially identical, with similar purposes, and should afford to a defendant the same procedural safeguards. Under Section 775.084 the State must proceed against a defendant in a separate proceeding, by a separate writing, following conviction or adjudication of guilt. No evidence is presented concerning a defendant’s prior conviction and thus, there can be no possibility of prejudice. Under Section 812.021(3), the State must specifically allege and prove the fact of prior conviction. The jury is directly confronted with evidence of defendant’s prior criminal activity and the presumption of innocence is destroyed. In support of their position, appellees cite Shargaa v. State, 102 So.2d 809 (Fla.1958) wherein we held:

Regardless of the views of some other courts our view is that by the enactment of our habitual criminal statute, as well as by our traditional concepts of due process in the administration of the criminal laws, the State should not be permitted merely to charge an accused with the commission of a crime and buttress its current charge with a simultaneous allegation that the accused had previously been convicted of a totally unrelated crime committed years before. It appears to us that the product of such a procedure would substantially destroy the-historical presumption of innocence which clothes every defendant in a criminal case and in the mind of the average juror would in a measure place upon the accused the burden of showing himself innocent rather than upon the State the responsibility of proving him guilty, (at page 816)

We are thus faced with conflicting holdings between Shargaa and Nichols. The State attempts to distinguish Shargaa on the ground that in that case enhanced punishment resulted from the consideration of a “wholly unrelated felony offense,” while in the present case the prior convictions are that of the same offense, petit larceny. This is a distinguishing feature. But, from a constitutional point of view, it makes the deprivation even more serious. If the presumption of innocence is destroyed by proof of an unrelated offense, it is more easily destroyed by proof of a similar, related offense. The arguments of ap-pellees are well taken. We therefore reaffirm our holding in Shargaa and overrule the holding in Nichols v. State, supra, to the extent that it conflicts with Shargaa.

The Legislature had the right to create the substantive offense of “felony petit larceny,” but we have the right to dictate the procedure to be employed in the courts to implement it. Article V, Section 2, Florida Constitution. We therefore hold that Section 812.021(3) creates a substantive offense to be tried in the circuit court when felony petit larceny is charged, without bringing to the attention of the jury the fact of prior convictions as an element of the new charge. Upon conviction of the third petit larceny, the, Court shall, in a separate proceeding, determine the historical fact of prior convictions and questions regarding identity in accord with general principles of law, and by following the procedure now employed under Section 775.-084.

Accordingly, the order of the trial court is reversed and the case remanded for proceedings consistent with this opinion.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and KARL, JJ., concur.

ADKINS, Acting C. J., dissents.

      . Larceny of property not described in subsection (2) is petit larceny, which constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second conviction of petit larceny, the offender shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, or s. 775.083. Upon a third or subsequent conviction of the offense of petit larceny, the offender shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Section 775.084(3)(c), Florida Statutes (1975) provides:
      Except as provided in paragraph (a), all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel.


author: PER CURIAM. ADKINS, Justice,

text:
    THE FLORIDA BAR, Complainant, v. John L. PEARCE, Respondent.
    No. 52009.
    Supreme Court of Florida.
    Feb. 23, 1978.

      David G. McGunegle, Asst. Staff Counsel, Tallahassee, and Brian T. Hayes, Bar Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against John L. Pearce, a member of The Florida Bar, is presently before us on a complaint of The Florida Bar and report of the referee. Pursuant to Fla. Bar Integr. Rule, art. XI, Rule 11.06(9)(b), the referee’s report and record were duly filed with this Court. No petition for review, pursuant to Fla. Bar Integr. Rule, art. XI, Rule 11.09(1), has been filed.

We summarize the referee’s findings of fact as follows:

1. Respondent Pearce is and was at all times hereinafter mentioned a member of The Florida Bar.
2. Respondent was charged with knowing of and participating in plans for witnesses to perjure themselves.
3. On or about September 20, 1973, Ronald W. Brooks, Robert Rahme, David Rahme, David Pfaff, Karen Tenney, and Donald Spicer went to the Brent Wildlife Reserve in Liberty County, near Hosford, Florida, to camp and hunt. Respondent John Pearce was to join them the next morning.
4. At a distance from the campsite was a hog pen on the land of Mr. Duncan Hosford. In the evening after setting up camp, Ronald Brooks, Robert Rahme, and David Pfaff drove to the hog pen, apparently intending to turn the hogs out. While they were at the pen, the men heard a vehicle approaching. Brooks and Pfaff fled into the woods. Rahme tried to escape in the jeep. The incoming vehicle was driven by Hosford who shot and killed Robert Rahme. Pfaff made his way through the woods to the highway and got a ride to Tallahassee.
5. Brooks was picked up the next morning by respondent Pearce on his way to the campsite. Brooks then related to Pearce the previous night’s experience concerning the events at the hog pen, the shots, and the escape of Brooks and Pfaff into the woods.
6. Later that morning, the members of the hunting party, respondent Pearce and his girlfriend Trudy Letton met at Brooks’ home. Both Brooks and Pfaff were anxious to avoid involvement in the shooting. Therefore, the group agreed to change the testimony which they would give at any proceeding which might be held in connection with the shooting incident. They agreed to testify that Rahme, the deceased, was driving the jeep when the three men left the hunt camp that evening. Rahme put Pfaff out to look for tracks while he drove Brooks home. Thereafter, it would be said, Rahme went on to the hog pen alone. Respondent Pearce was present at this conspiracy or agreement to commit perjury.
7. On September 27, 1973, an inquest was held and respondent Pearce represented Brooks and Pfaff during the proceedings. Tenney, Brooks and Pfaff appeared and testified to the concocted story. The coroner’s jury exonerated Hos-ford in the killing of Robert Rahme. The witnesses’ version of Brooks’ and Pfaff’s participating was not questioned.
8. By letter dated January 7, 1975, Karen Tenney wrote The Florida Bar regarding the false testimony, agreeing to furnish names of persons present the morning “when Mr. Pearce persuaded the witnesses to falsely testify.”
9. Investigation was made and Mr. Brooks, Mr. Pfaff and Mr. Pearce were indicted by the grant jury of Liberty County. All have been found not guilty.
10. At the disciplinary proceeding, the witnesses’ testimony varied on the extent of respondent’s participation in the preparation of the false story. The referee made no specific finding of fact on this issue. However, the existence of an agreement to commit perjury has not been denied by any of those involved. Ronald Brooks admits it. (As a member of The Florida Bar, Brooks’ discipline case has been disposed of. 336 So.2d 359 [Fla.1976]) Spicer, Tenney, and Letton testified to it. Respondent Pearce admits the concocted story in his testimony in the instant disciplinary proceedings.

The referee recommends that respondent be found guilty of violation of Fla. Bar Code Prof. Resp., D.R. 1-102(A)(3)(4)(5) and Fla. Bar Integr. Rule,' art. XI, Rule 11.-02(3)(a). The referee further recommends that respondent receive a public reprimand. This is consistent with the discipline received by Ronald Brooks whose culpability appears to be equal to that of respondent.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, John L. Pearce, is hereby disciplined by public reprimand to be published in the Southern Reporter.

Costs are assessed against respondent in the amount of $1,420.89.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting:

I respectfully dissent. Respondent Pearce was not involved in the problems of Ronald Wilson Brooks and the others until they approached him concerning representation by Pearce in the event criminal charges were brought. After the findings of the coroner’s jury, which exonerated everyone, Karen Tenney, “apparently unhappy over the representation by Mr. Pearce’s of Mr. Rahme’s ex-wife in Mr. Rahme’s estate”, complained to The Florida Bar stating that false testimony had been given and that Mr. Pearce “persuaded the witnesses” to testify falsely.

A perjury charge was brought and submitted to a grand jury. Pearce was compelled to attend and testify at grand jury proceedings under a subpoena issued by the State Attorney. Pearce had not been advised that the grievance committee, at the time, was investigating his conduct. By motion to abate, Pearce says that the provisions of Section 914.04, Florida Statutes (1975) grant him immunity. The Bar took the position that the immunity would be applicable only to Count 5 of the complaint and this Count was dismissed. The referee improperly denied the motion to abate which was based upon the statutory immunity given Pearce.

Admittedly, the grievance procedure ended up in a “swearing match”. The real culprits said in effect, “we did it, but Pearce made us do it”.

One of the principals, Ronald Wilson Brooks, received a public reprimand and costs in the amount of $296.14 were taxed against him. See The Florida Bar (In re Brooks), 336 So.2d 359 (Fla.1976).

On the other hand, Pearce, who was only indirectly involved, if at all, also received a public reprimand and costs in the amount of $1420.89 were taxed against him.

In my opinion, the charges should be dismissed.


text:
    Maria Bruno THOMAS, Appellant, v. Paula KRAMER, a widow, Appellee.
    No. 76-2293.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Donald L. Brooks and L. M. Taylor of Ryan & Taylor, North Palm Beach, for appellant.
    Louisa Smith-Adam of Montgomery, Ly-tal, Reiter, Denney and Searcy, West Palm Beach, for appellee.
   PER CURIAM.

We have considered the briefs of the parties and the appendix and find that appellant has failed to demonstrate an abuse of the wide judicial discretion with which the chancellor is vested in matters of this kind. Lane v. Clein, 137 So.2d 15 (Fla. 3rd DCA 1962); 17 Fla.Jur., Injunction, § 16.

Accordingly, the order appealed from is affirmed.

CROSS, DOWNEY and DAUKSCH, JJ., concur.


author: PER CURIAM. PEARSON, Judge PER CURIAM. HUBBART, Judge

text:
    Theophilus A. MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1035.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Rehearing Denied March 17, 1978.
    Law Offices of Joe N. Unger and Mark King Leban, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and Paul Mendelson, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Theophilus Martin appeals his conviction for aggravated assault and unlawful possession of a firearm and raises three points on appeal, of which only the second is necessary to consider, to wit: the trial court erred in overruling defendant’s objection and in failing to declare a mistrial when the prosecutor persistently cross-examined the defendant about his failure to make an exculpatory statement to the police after being advised of his rights to remain silent. We find this point has merit.

During the prosecutor’s recross examination of the defendant, the following colloquy occurred:

“RECROSS EXAMINATION
“BY MR. MCHALE:
“Q Mr. Martin, you never fired at Mr. Bryant?
“A I told you, I disabled the vehicle.
“Q Did you tell the police at the scene you did not fire at Mr. Bryant?
“A I may have recall telling the policeman. I was highly emotional, but, I walked out towards Mr. Bryant’s car. ***** *
“Q [By Mr. McHale] Mr. Martin, why did you not tell anyone this story before today?
“MR. GOULD: I object to that question, also, as being argumentative.
“THE COURT: Overruled, sir.
“THE WITNESS: Are you saying why didn’t I tell anyone this story?
“Q Before today.
“A This is where I assume it should be to tell. Everybody is witnesses that comes up.
“Q You waited until the trial to tell this story?
“A What story?
“Q What actually happened, according to you?
“A I was advised of my rights at the police station.
“Q Were you told you could make a statement if you wanted to?
“A He advised me, the detective who was — the detective advised me of my rights.
“Q Did he tell you not to say anything?
“A He said if I wished to I could. If I didn’t, I didn’t have to.
“Q Why did you not tell him actually what happened?
“MR. SOBEL: I object.
“THE COURT: Sustained.
“MR. MCHALE: I have nothing further.
“THE COURT: Anything else from the defendant.”
******

The principle of law is now well established that any comment upon an accused’s exercise of his right to remain silent is reversible error without regard to the harmless error doctrine. Bennett v. State, 316 So.2d 41 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976). Recently this legal principle has been extended to the point that a deprivation of due process results when a prosecutor is permitted to use the silence of an accused at the time of his arrest to impeach his explanation subsequently offered at trial. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Davis v. State, 342 So.2d 987 (Fla.3d DCA 1977); Smith v. State, 342 So.2d 990 (Fla.3d DCA 1977); Thomas v. State, 342 So.2d 991 (Fla.3d DCA 1977).

The prosecutor’s cross-examination of the defendant concerning the defendant’s pretrial silence was improper and, accordingly, defendant’s convictions and sentences are reversed and the cause remanded to the trial court for a new trial.

Reversed and remanded.

PEARSON, Judge

(concurring specially).

I think that it should be mentioned that we are here dealing with a trial before the court without a jury. The State urges that we should apply a more liberal rule in determining whether the cross-examination of the defendant to bring out the fact of his silence after receiving the Miranda warning was reversible error, relying on Prince v. Aucilla River Naval Stores Co., 103 Fla. 605, 137 So. 886 (1931); and Belcher Towing Co. v. Board of County Commissioners, 233 So.2d 456 (Fla.3d DCA 1970). I cannot agree with the State’s argument because I feel that a defendant has the same constitutional rights in every trial. Nevertheless, because other courts may disagree with this decision on these circumstances, I think our holding must be clear.

The State’s argument that this is a retroactive application of the holding of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), is not factually true in view of the fact that the opinion in Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967), held that the admission of evidence of a defendant’s silence after being informed of his Miranda rights was fundamental error. I, therefore, concur in the opinion and the decision to reverse.

Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.

ON PETITION FOR REHEARING

PER CURIAM.

In this petition for rehearing, the issue has surfaced as to whether the error complained of (i.e., the admissibility of the defendant’s post-arrest silence) is fundamental as well as constitutional as a result of the State’s contention that the defendant did not properly preserve this error for appellate review. Contrary to this contention, we believe that defense counsel made sufficient objection to the admission of evidence concerning defendant’s post-arrest silence as to properly preserve this issue on appeal. Therefore, it is unnecessary to resolve the issue of whether such error is fundamental as well as constitutional.

Petition denied.

HUBBART, Judge

(dissenting).

I respectfully dissent. I would grant the state’s petition for rehearing and affirm the conviction herein. In my judgment, the error complained of concerning the admissibility of the defendant’s post-arrest silence was not properly preserved for appellate review and the admission of such evidence was not fundamental error.

The error complained of herein was the admission of the defendant’s post-arrest silence elicited from the defendant on cross examination by the state. This testimony was not objected to by defense counsel except on three occasions and then only after some or most of the evidence complained of had been submitted.. Two of these objections were sustained. The third objection was made on the sole ground that the question was argumentative and that ground has been abandoned on appeal.

It has long been the established law of this state that the admissibility of evidence received without objection in the trial court cannot be reviewed on • appeal absent an error of fundamental dimensions. The same rule applies when the evidence is objected to at trial on grounds which are abandoned on appeal. Ashford v. State, 274 So.2d 517 (Fla. 1973); Jalbert v. State, 95 So.2d 589, 591 (Fla. 1957); Walker v. State, 152 Fla. 455, 13 So.2d 4 (1943); Sims v. State, 59 Fla. 38, 52 So. 198 (1910); Ferrell v. State, 45 Fla. 26, 34 So. 220 (Fla. 1903); Jones v. State, 35 Fla. 289, 17 So. 284 (Fla. 1895); Koran v. State, 213 So.2d 735 (Fla. 3d DCA 1968); Shea v. State, 167 So.2d 767 (Fla. 3d DCA 1964).

Under well-settled principles of Florida law, this court is accordingly precluded from considering whether the admission in evidence of the defendant’s post-arrest silence constitutes reversible error because the error was not properly preserved for appellate review. In addition, the admission of such evidence does not constitute fundamental error. Porter v. State, 356 So.2d 1268 (Fla. 3d DCA 1978) (Hubbard, J. dissenting) and authorities collected; Gillian v. State (Fla. 1st DCA 1977) (case no. FF-59, opinion filed August 18, 1977); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Farmer v. State, 326 So.2d 32 (Fla. 4th DCA 1976).


text:
    Roy Eugene CRADDUCK, Appellant, v. STATE of Florida, Appellee.
    No. 76-2037.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    Rehearing Denied Feb. 14, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Larry S. Weaver and Marc E. Kirk, Asst. Public Defenders, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

ON PETITION FOR REHEARING

On petition for rehearing appellant says the principal question here is the same as in State v. Lewis, Fla. 4th DCA, Case No. 76-2712, 352 So.2d 93 and therefore the issue resolved by us is one of great public interest and should be certified to the Supreme Court which has accepted jurisdiction in State v. Lewis, supra.

We agree and hereby certify to the Supreme Court the decision in this case passes upon the same question of great public interest as in State v. Lewis, our Case No. 76-2712, 352 So.2d 93, Supreme Court Case No. 52,610 which is:

Whether the speedy trial time provisions of Fla.R.Crim.P. 3.191 (b)(1) applies to a defendant who, after being arrested or charged, is thereafter imprisoned on an unrelated charge?

The petition for rehearing is otherwise denied.

CROSS, DOWNEY and DAUKSCH, JJ., concur.


author: SMITH, Judge. McCORD, Chief Judge,

text:
    STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF PERSONNEL, Petitioner, v. Patricia B. HARVEY and State of Florida, Department of Administration, Division of Administrative Hearings, Respondents. DEPARTMENT OF ADMINISTRATION, DIVISION OF PERSONNEL, Petitioner, v. Patricia B. HARVEY and State of Florida, Department of Administration, Division of Administrative Hearings, Respondents.
    Nos. EE-131, FF-168.
    District Court of Appeal of Florida, First District.
    Dec. 27, 1977.
    Rehearing Denied April 12, 1978.

      David V. Kerns, Gen. Counsel, and Mary E. Clark, Asst. Gen. Counsel, Tallahassee, for petitioner.
    Patricia B. Harvey, for respondents.
   SMITH, Judge.

Respondent Harvey applied to the Division of Personnel to be included in the Division’s register of persons eligible for career service employment as Administrative Assistant I and Information Specialist II. Her applications were denied because the Division found she did not meet the Division’s statement of “minimum training and experience requirements” for those positions. Harvey petitioned the Division of Administrative Hearings (DOAH), pursuant to Section 120.56, Florida Statutes (1975), for a determination that the Division’s “minimum training and experience requirements” are invalid because, having the effect of rules as defined in Section 120.-52(14), they have not been adopted in rule-making proceedings under Section 120.54. Harvey later filed a similar petition to invalidate 28 other “minimum training and experience requirements” on the same ground. After a hearing, the DOAH hearing officer held: (1) a hearing officer has jurisdiction under Section 120.56 to determine whether the agency statements are rules; (2) Harvey is a “substantially affected person” and has standing to challenge agency policy for which rulemaking is required; and (3) the “minimum training and experience requirements” have the effect of rules and are invalid because they were not adopted pursuant to Section 120.54. The Division seeks judicial review. Section 120.68.

We disposed of the first issue in State, Dep’t of Admin. v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977), holding that a DOAH hearing officer is authorized to determine, in a Section 120.56 rule challenge proceeding, whether an agency statement is a rule. See also Dep’t of Environmental Regulation v. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977).

The effect of the Division’s action is that Harvey is not eligible for employment by State agencies in any of the 30 job classifications in which she expressed interest. Fla.Admin. Code Rule 22A-7.02(9). The hearing officer held, and we agree, that the denial of avenues of employment substantially affected Harvey, who therefore has standing to institute rule challenge proceedings.

Section 120.52(14), Florida Statutes (Supp.1976) defines “rule,” with certain exceptions not pertinent here, as

each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule.

The Division contends that the “minimum training and experience requirements” do not assume the dignity of rules and need not be adopted as rules. Section 110.022, Florida Statutes (1975) provides:

(1) [The Division shall] adopt and amend rules and regulations necessary to implement the purposes of Chapter 110, which rules and regulations shall provide for:
(f) the establishment and maintenance of minimum qualifications for each class of positions .

Thus, asserts the Division, the legislature provided for a three-tiered body of authority for maintenance of the career service employment register: a statute granting authority to adopt rules and prescribing standards for those rules; rules providing for the establishment and maintenance of minimum qualifications; and nonrule qualification statements.

Whether an agency statement is a rule turns on the effect of the statement, not on the agency’s characterization of the statement by some appellation other than “rule.” The breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it “purports in and of itself to create certain rights and adversely affect others,” Stevens, 344 So.2d at 296, or serves “by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.” McDonald v. Dep’t of Banking & Fin., 346 So.2d 569, 581 (Fla. 1st DCA 1977). See also Straughn v. O’Riordan, 338 So.2d 832 (Fla.1976); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977).

The Division’s Rule 22A-4.03(4), Fla. Admin.Code, provides that the State Personnel Director may reject an application for employment if the applicant does not meet the minimum training and experience requirements for a class of position, or for other reasons including physical or mental inability to perform required duties, use of narcotics, or alcoholism. Here, Division staff examined Harvey’s application and resume and determined that her education, training and experience do not satisfy the Division’s statement of “minimum training and experience requirements” for any class of positions for which she applied. Thus the Division used its statement of minimum requirements as a rule of decision.

Harvey could have requested, pursuant to Rules 22L-7.01-.03, that the State Personnel Director determine that her training and experience are equivalent to the “minimum requirements” and register her notwithstanding her failure to satisfy prescribed requirements. We do not consider that the Director’s discretion mitigates the decisive effect, as rules, of the minimum training and experience requirements. To warrant the exercise of his discretion, the Director must find as a fact that the applicant’s training and experience are “equal to or higher than those required in the class specification.” Fla.Admin.Code R. 22L-7.03. Thus the prescribed minimum requirements contained in the “class specifications” remain the yardstick by which the applicant’s qualifications must be measured.

Harvey could also have appealed the Division’s denial of her application to the Career Service Commission. Fla.Admin. Code Rule 22A-4.03(6). Failure to pursue that remedy does not make the Section 120.56, Florida Statutes (Supp.1976) rule challenge proceeding inappropriate. Rule challenge proceedings are available to a substantially affected person who desires to challenge rules on which an agency’s decision is based, regardless of whether he also challenges the factual basis of the agency decision. By the same token, a determination in this proceeding that the Division’s minimum training and experience requirements are invalid rules does not require the Division to place Harvey on the employment register. The Division still must decide whether Harvey is qualified for employment in particular positions, but may not use the prescribed minimum training and experience requirements as a rule of decision. Since that decision will determine Harvey’s substantial interests, the Division’s proceedings must comply with the requirements of Section 120.57. McDonald, supra; General Development Corp. v. Division of State Planning, 353 So.2d 1199 (Fla. 1st DCA, 1977).

The Division has urged that requiring adoption of the minimum training and experience requirements as rules would place an intolerable burden on the Department. The Division now maintains approximately 2900 requirements for state job classifications and it must add, delete or amend several hundred each year. Even if we could agree that the “minimum requirements” are statements of Division policy not having the effect of rules, we suspect that the Division’s administrative burden would be substantially greater if it does not adopt minimum requirements as rules. To the extent Division policy is not incorporated in regularly adopted rules, the Division may be required by any disappointed applicant to defend its policy in a Section 120.57 proceeding where the Division will be required to present evidence and argument and to “expose and elucidate its reasons for discretionary action.” McDonald, supra, 346 So.2d at 584. If the Division’s policy is regularly adopted as a rule within the agency’s authority, the agency need not defend its policy in each case. Id. at 583-84; Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977).

The petitions for review are DENIED.

RAWLS, J., concurs.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

§ 120.52, Florida Statutes (1975) — the Definitions section of the Administrative Procedure Act — defines “rule” as used in that act as follows:

“(14) ‘Rule means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes the amendment or repeal of a rule . . .” (Certain exceptions are listed which are not pertinent here.)

It may be readily seen that this is an extremely broad definition, which if applied literally, would appear to encompass the job class specifications with which we are here concerned. There are other factors, however, which should be considered and which show a legislative intent that the foregoing definition was not meant to include job class specifications. We must consider the rule definition of Chapter 120 in pari mate-ria with Chapter 110, Florida Statutes (1975), relating to the State Career Service System. § 110.022 empowers the Department of Administration, Division of Personnel:

“(1) To adopt and amend rules and regulations necessary to implement the purposes of chapter 110, which rules and regulations shall provide for:
sf: sf: s{! sp
(f) the establishment and maintenance of minimum qualifications for each class of positions, . . . ”

Career Service Rules have been adopted to accomplish what is mandated by the above statute. They are contained in Chapter 22A-1, Florida Administrative Code. The rules contained in that chapter outline the procedure for developing and maintaining the classification plan and provide a description of what the class specification must include. Thus, the Career Service Rules, in compliance with the foregoing statute, provide for the establishment and maintenance of minimum qualification for each class of positions. The rules themselves are implemented by class specifications which are published by the Division of Personnel in a continuing process to meet the needs of the state’s employing agencies. The State Career Service work force consists of approximately 87,000 positions which have been placed in approximately 2,900 job classifications with a class specification developed for each class. These class specifications are maintained as accurately and currently as possible to reflect the functions of the positions in each classification and the minimum qualifications required for proper performance. The end purpose in this operation is to enable the agencies to receive applicants with the qualifications they want and to enable applicants to know whether they have the qualifications desired by the employing agencies. During the fiscal year 1975-76, 347 new classes were established with the class specification prepared for each. During the same period, 106 classes were abolished, giving a net gain of 241 total classes under the Career Service System. During the same year, the specifications for 455 classes were revised in the continuing effort to maintain the currency and accuracy of the system. It would be a mammoth and cumbersome undertaking to go through rule adoption procedures for the approximately 2,900 present job classifications and to go through these procedures with each new job classification- that is established and each classification that is revised. I do not believe the legislature intended that job class specifications be treated as individual rules to be adopted with the formality of the statutory rule-making procedures.

When we consider the definition of a “rule” as contained in the Definitions section of the Administrative Procedure Act [§ 120.52(14)], quoted supra, in pari materia with the definition of “classification plan” as contained in the Definitions section of the State Career Service System Act [§ 110.042(10)], it seems apparent that the legislature did not intend for job class specifications to be so structured in their promulgation and revision as would be the result if they are classified as “rules.” “Classification plan” was defined to mean:

“A document which formally describes the concepts, rules and regulations and class specifications utilized in the classification and reclassification of position in the career service.” § 110.042(10).

By the above statute, “classification plan” is a three-part document composed of (1) the concepts, (2) the rules and regulations, and (3) the class specifications. Thus, in this definition there is confirming evidence that the legislature intended the specifications to mean something different and apart from the rules and regulations. I would reverse.

      . Harvey did challenge the Division’s factual conclusion that she was unqualified for the position by requesting a hearing pursuant to § 120.57(1), Fla.Stat. (Supp.1976). We are not concerned in this proceeding with the results of that hearing.

      . Job titles and descriptions, like the minimum training and experience requirements, are included in the “class specifications,” Fla.Admin. Code Rule 22A-1.04. While those titles and descriptions may also be rules requiring adoption under § 120.54, Harvey has not challenged the job titles and descriptions in this proceeding. The Division may continue to register applicants under the class specifications until they are properly challenged in a § 120.56 or § 120.57 proceeding, if the Division has not by then adopted the class specifications as rules.


author: LETTS, Judge.

text:
    Betty Jean KILEY, Appellant, v. STATE of Florida, Appellee.
    No. 76-375.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Rehearing Denied March 14, 1978.
    Louis V. Cianfrogna, Titusville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This is an appeal from a conviction of manslaughter. We affirm.

There are six points on appeal, but only one is of concern to us.

Specifically, we refer to a jury request for reinstruction on the “guilty charges”, whereupon the judge obliged on all degrees of homicide, including manslaughter, but excluded a repetitive instruction on excusable and justifiable homicide. We agree with appellant that this was error and note the following language in Henry v. State, 350 So.2d 512, 514 (Fla. 4th DCA 1977):

“While a court cannot give a complete instruction on manslaughter without defining excusable and justifiable homicide and murder, we conclude that a court can certainly define first and second degree murder fully without also defining manslaughter. The reason for this conclusion is that, unlike the definition of manslaughter, which definition specifically excludes murder, the definitions of first and second degree murder do not by definition specifically exclude manslaughter. Therefore, a court may
completely define first degree murder and second degree murder without making any reference to manslaughter and excusable and justifiable homicide.”

Notwithstanding, we also note our holding in Jackson v. State, 307 So.2d 232 (Fla. 4th DCA 1975) which held that failure to rein-struct on excusable and justifiable homicide does not constitute fundamental error. In the case at bar no objection was raised, nor reinstruction requested. This being so, the conviction is

AFFIRMED.

MOORE, J., concurs.

CROSS, J., concurs only in conclusion.


author: MOORE, Judge.

text:
    A. N. ABRAMOWITZ, Appellant, v. BARNETT BANK OF WEST ORLANDO and John L. Maynard, Appellees.
    No. 76-2276.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    Rehearing Denied April 4, 1978.
    Darryl M. Bloodworth and Janice S. Burton of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando, for appellant.
    C. Brent McCaghren of Winderweedle, Haines, Ward & Woodman, P. A., Winter Park, for appellee-Barnett Bank of West Orlando.
   MOORE, Judge.

This is an appeal from a final summary judgment entered in favor of the defendant, Barnett Bank.

Abramowitz, the plaintiff-appellant, had filed a complaint against Barnett Bank for exacting a usurious interest rate in violation of Chapter 687, Florida Statutes. Abramowitz obtained a loan from Barnett Bank on November 23, 1973, and signed a promissory note for $400,000.00, secured by a mortgage on real property. The principal and interest, at the annual rate of 9%, were due on November 23, 1974.

Several charges for making the loan were assessed against Abramowitz by Barnett Bank. Among these charges was a $4,000.00 “mortgage loan discount” which had the effect of reducing the principal of the loan to $396,000.00 because the $4,000.00 charge was withheld from the loan proceeds. The interest actually paid on the one-year loan was $36,347.78. Abramowitz contends that the $4,000.00 mortgage loan discount should also be treated as interest making the total interest $40,347.78 on a principal loan of $396,000.00 and a rate of interest of 10.19%. At the time the loan was executed, the maximum interest chargeable to an individual was 10%. Fla. Stat. § 687.03 (1973). Treating the $4,000.00 as interest, therefore, would render the transaction usurious and would subject Barnett Bank to the large monetary penalties provided for under Fla.Stat. § 687.04.

A determination of whether the $4,000 mortgage loan discount was interest ultimately rests upon a factual determination of the purpose for the charge. Loan-related costs incurred by the borrower are not interest if they compensate the lender for out-of-pocket expenses or for services rendered by the lender. Financial Federal Savings and Loan Assn. v. Burleigh House, Inc., 305 So.2d 59 (Fla.3d DCA 1974); 91 C.J.S. Usury § 48.

In the instant case, the issue of whether the $4,000 constituted interest arose in the context of a summary judgment motion. We hold that genuine issues of material fact precluded the entry of summary judgment in favor of Barnett Bank.

The following response to an interrogatory by the President of Barnett Bank clearly reveals the genuine issue of material fact which still exists:

“The $4,000.00 item designated as a mortgage loan discount was not, in fact, a mortgage loan discount, but was service charge. The designation ‘mortgage loan discount’ was in error, reflected as such in the closing statement. The income was credited to Commercial Loan Fees and was treated as service charge income to the bank.
A portion of the service charge was to defray expenses involved as a direct result of the loan. The loan was viewed as a construction loan by the bank and it was therefore necessary for bank personnel to make on site inspections. Such inspections were numerous”.

Charges for on site inspections would compensate the bank for out-of-pocket expenses or for services rendered by the bank and would not be deemed interest. However, the amount received for the inspections must be reasonably related to the quality and quantity of the inspections actually performed. Williamson v. Clark, 120 So.2d 637 (Fla.2d DCA 1960). In the bank president’s own words only a “portion” of the $4,000 was used to defray the bank’s actual expenses. This raises a genuine issue of material fact. If only a portion of the $4,000.00 was used for the costs of the inspections, for what was the balance of the $4,000.00 used? It appears that a portion of the $4,000.00 may constitute interest and in order to determine whether the interest rate usuriously exceeded 10%, it is necessary to know precisely how much of the $4,000.00 compensated the bank for out-of-pocket expenses or for services rendered for inspection or otherwise. Such information cannot be discerned from the record. Therefore, summary judgment was improper because of the existence of a genuine issue of material fact.

An issue of fact apparently exists as to whether the $4,000.00 was a mortgage loan discount or whether it was “service charge income.” This would be immaterial, however, since the purpose of the charge, rather than its nominal title, should determine whether the charge was interest.

If, on remand, the court concludes that a portion of the $4,000.00 should be deemed interest, and that the interest rate exceeds 10%, the transaction is still not usurious unless the bank possessed the requisite “corrupt intent” which is essential for a violation of the usury statutes. Dixon v. Sharp, 276 So.2d 817 (Fla.1973). Corrupt intent, like malice in a defamation action, is a highly subjective element, and generally should not be dealt with on summary judgment. Firestone v. Time, Inc., 231 So.2d 862, 865 (Fla.4th DCA 1970).

Further interrogatories, documentary exhibits, etc., could provide a detailed analysis of the $4,000.00 charge and could thereby render summary judgment proper if such information conclusively established that a sufficient portion of the $4,000.00 compensated the bank for services rendered (inspections) or for other out-of-pocket expenses. In such case, it would still be possible for the trial court to conclude, on summary judgment, that the interest rate did not exceed 10%, thereby avoiding the need to determine the issue of corrupt intent.

We find that appellant’s remaining points relative to charging in excess of 10% on renewal notes have no merit.

Accordingly, the final summary judgment is REVERSED and this cause REMANDED for further proceedings consistent with this opinion.

ANSTEAD, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Rocco Anthony CONTI, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-585 and 76-1436.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Rehearing Denied April 4, 1978.
    Emmett A. Moran, Winter Park, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky and Glenn H. Mitchell, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have reviewed the evidence and find, as a matter of law, that it is insufficient to convict the appellant. The judgment and sentence are reversed.

REVERSED.

DOWNEY ■ and DAUKSCH, JJ., and BURNSTEIN, MIETTE K., Associate Judge, concur.


author: ALDERMAN, Chief Judge.

text:
    Larry LIGHTFOOT, Appellant, v. STATE of Florida, Appellee.
    No. 77-378.
    Rehearing Denied April 4, 1978.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Rehearing Denied April 4, 1978.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, and Joseph R. Atterbury, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., and Charles A. Stampelos, Legal Intern, West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The defendant, charged with the unlawful manufacture of cannabis, pled nolo con-tendere, reserving the right to appeal the trial court’s denial of his motion to suppress marijuana plants that had been seized without a warrant. We affirm because the marijuana plants were in plain view of an officer who observed them from a location where he had a legal right to be.

The defendant’s next door neighbor saw plants in the defendant’s backyard. Suspecting that they were marijuana she reported her suspicions to the police. Officer McDaniel came to her home, where, from her yard, he could see three pots in the defendant’s backyard containing plants, which, based upon his training and experience, he believed to be marijuana. The two yards were separated by a chain link fence. The marijuana plants were in open view, two near the rear of defendant’s house and the other up against the fence. Officer McDaniel, accompanied by two other officers, walked over to the defendant’s residence and knocked. No one answered. He then walked around to the backyard and seized the plants. Shortly after the plants were seized the defendant showed up at the residence and was arrested. The officer had no warrant authorizing the seizure of the plants.

The defendant claims a violation of his Fourth Amendment rights, contending that absent exigent circumstances the police could not seize the plants without a warrant. In determining whether the marijuana plants were subject to Fourth Amendment protection we think the appropriate test is whether the defendant had a reasonable expectation of privacy, and, if so, whether that expectation was violated by an unreasonable governmental intrusion. Applying that test to the facts of this case we conclude that a person who keeps marijuana plants in open view in his backyard in plain view of a neighbor has no reasonable expectation of privacy and that seizure of the plants without a warrant by a police officer who has seen the plants from the neighbor’s yard, where he has a legal right to be, is not an unreasonable governmental intrusion.

Our conclusion is consistent with the decisions of other appellate courts in Florida. In Boim v. State, 194 So.2d 313 (Fla. 3d DCA 1967), a police officer while standing in defendants’ neighbor’s yard observed marijuana plants in a flower bed alongside defendants’ house. The officer went to defendants’ home to arrest them and upon there being no response when he knocked on their door, he took one of the plants to the police laboratory for examination. Thereafter a warrant was obtained for the arrest of the defendants. When the defendants were subsequently taken into custody under the warrant additional contraband was seized incident to their arrests. The court held that the arrest warrant was valid and that there was no impropriety in receiving the plant into evidence.

Our Supreme Court in State v. Ashby, 245 So.2d 225 (Fla.1971), recognized that a search and a seizure are separate and distinct legal actions. A search is an inspection or examination of places closed from public or general view, and requires some measure of force or intrusion. A seizure, on the other hand, is the act of taking custody of evidence or contraband. The court held that it is not a search to observe, and to seize, what is placed where it may be seen by an officer who is where he has a legal right to be. Nor is it an unreasonable search without warrant for an officer to move to a position where he has a legal right to be, and look for things he may have reason to believe will be seen. In Ashby the officers from the street observed a car in the defendants’ yard which they had probable cause to believe was stolen. The officers then went into the yard to seize the evidence and to arrest the defendants. Before making the arrests, they looked about. Without intruding into or opening the garage, the officers looked in through a cracked door and observed a boat and motor that were also stolen. The court held that there was no unreasonable seizure of the stolen car which was visible in the yard, nor was there an unreasonable seizure of the stolen boat and motor which was observable through an existing portal to officers who exerted no force and who were legally on the premises.

State v. Belcher, 317 So.2d 842 (Fla. 2d DCA 1975), is another case involving seizure of contraband in plain view. Officers who were proceeding to the scene of a burglary drove past a residence and observed three men sitting on a couch on the porch. One of the officers suspected a drug transaction was taking place. The other officer, from the police cruiser as it passed the house, saw the defendants handling jewelry. They stopped their patrol car and then walked to the front porch. There, both officers observed a red jewelry box and jewelry scattered about on the couch. They were then advised by radio from the burglary scene that jewelry and a red jewelry box had been taken. The defendants were arrested and the jewelry seized. The court found that the defendants’ “expectation of privacy,” if any, was not “reasonable” and held that the officers did not violate defendants’ Fourth Amendment rights by committing an “unreasonable governmental intrusion.”

In State v. Detlefson, 335 So.2d 371 (Fla. 1st DCA 1976), the court held that entry into the yard and onto the porch of defendant’s residence to identify marijuana plants plainly visible in less detail from the street did not violate Fourth Amendment standards because the defendant did not have a reasonable expectation of privacy in the front porch of his home where, presumably, delivery men and others were free to observe the plants.

The next case, Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977), is an example of a seizure that did violate a defendant’s reasonable expectation of privacy. Police officers, acting on a tip that the defendant was growing marijuana, drove to the defendant’s residence. Arriving at about 11:30 p. m., they walked into the defendant’s backyard, and approached a hothouse that was draped with sheets of plastic, where, through a tear in the plastic they observed marijuana plants that were subsequently seized. The court held that the defendant’s hothouse was deserving of constitutional protection and directed the trial court to grant the defendant’s motion to suppress.

And most recently, the Supreme Court in Hornblower v. State, 351 So.2d 716 (Fla. 1977), again recognized the “Plain View” doctrine as an exception to the warrant requirement. The court said “. materials that are seized because they are in plain view of an officer who observes from a location where he had a legal right to be are not subject to Fourth Amendment protection because their exposure implies that the possessor has no expectation of privacy regarding those articles.”

In the present case the defendant kept marijuana plants in open view in his backyard. These plants were clearly visible to anyone who might have occasion to be in his neighbor’s yard. Their exposure implies that the defendant had no expectation of privacy regarding these plants. Officer McDaniel had the legal right to be in the neighbor’s yard and to look across the fence and see what there was for him to see. Having observed the marijuana plants, and having been informed by the neighbor that the defendant was the one that lived in the house and took care of the plants, the officer had probable cause to believe that the defendant was committing a felony. Consequently the officer had the right to arrest the defendant without a warrant. Section 901.15, Florida Statutes (1975). The fact that the defendant was not at home when the officers went to his house did not prevent the officers from seizing without a warrant the marijuana plants that were in the backyard. The plants were contraband and were initially observed in plain view by Officer McDaniel from a location where he had a legal right to be. There was no search and no unreasonable governmental intrusion on the defendant’s privacy. The plants, under the circumstances of this case, are not subject to Fourth Amendment protection. The trial court properly denied the defendant’s motion to suppress.

AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    Kenneth BLYTHE, Appellant, v. R. W. WILLIAMS and Dorothy Williams, his wife, d/b/a Peace Valley Campgrounds, and Florida Farm Bureau Insurance Company, a Florida Corporation, Appellee.
    No. 76-786.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Rehearing Denied April 6, 1978.

      Gary H. Neely, Peter Keating, Daytona Beach, for appellant.
    Robert K. Rouse, Jr. of Smalbein, Eu-bank, Johnson, Rosier, & Bussey, P. A., Daytona Beach, for appellees.
   PER CURIAM.

This is an appeal from a summary judgment entered against the appellant, Kenneth Blythe, on his claim against the appel-lees, R. W. Williams and Dorothy Williams, his wife, d/b/a Peace Valley Campgrounds, and Florida Farm Bureau Insurance Company, for injuries sustained when Blythe struck his head while diving into a “swimming hole” located in the Peace Valley Campgrounds. Blythe charged the campgrounds with negligence in the erection and maintenance of a cable swing provided at the swimming hole for the use of campground tenants such as Blythe. Specifically, it was claimed that the swing was unsafe in that it extended over an area of shallow water; and further, that no warnings were provided as to the possible danger involved in diving from the swing into the shallow waters near the shore. The appel-lees claim that Blythe is precluded from recovering because he concedes that he checked the depth of the water near the swing before using the swing. Blythe testified in deposition that he did not know where in the water he landed when he was injured. He contends that he had little control as to where he could dive into the water because of the nature of the swing and that it was unsafe to provide the swing at all. We believe that reasonable persons could differ on these factual issues as to whether the campground was negligent in providing the swing or in failing to provide warnings as to its use, and the issue of Blythe’s negligence in using the swing after checking the water depth. We do not believe it was proper to resolve these issues by summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Accordingly, the judgment of the trial court is hereby reversed with directions for further proceedings consistent with this opinion.

REVERSED WITH DIRECTIONS.

DOWNEY and ANSTEAD, JJ., and FO-GLE, HARRY W., Associate Judge, concur.


text:
    Jean S. McArthur CONKLIN, Petitioner, v. FLORIDA STATE BOARD OF NURSING, Respondent.
    No. 76-2089.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Rehearing Denied April 4, 1978.

      David S. Wieder and Edward A. Sirkin, Miami, for petitioner.
    Julius Finegold, Jacksonville, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari DENIED.

ALDERMAN, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    Robert Goodwin CONNER, Appellant, v. STATE of Florida, Appellee.
    No. 76-2135.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Rehearing Denied April 4, 1978.
    Curtis L. Witters of Glickman and Witters, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   CRAWFORD, GRADY L. (Ret.), Associate Judge.

Appellate, accompanied by his son, Robert, and another man arrived at 11:00 P.M. at a VFW Post bar where they were denied drinks. A fight began between appellant and a man named Lyons who had refused to identify appellant as a member of the Post. A second fight began between the son, Robert, the bartender and a Mr. Conner. At some point, Robert, made the statement to the occupants of the bar that “you better watch out, my dad’s a killer.”

Robert withdrew from the fray and appellant continued the fight with the bar patrons until he ended the matter by producing a gun and shooting William C. Lyons and Hugh M. Murphy.

Convicted of aggravated battery upon two men, attempted aggravated battery upon a third and carrying a concealed firearm, appellant appeals asserting error in admitting the son’s statement as inadmissible hearsay and irrelevant.

Irrelevant it may have been to prove the victim’s apprehensive state of mind but that factor was proven when appellant pulled his gun and subsequently shot two of the men. Admissible it was under a res gestae or excited utterance theory. In any event, in light of the testimony, it was harmless to the appellant’s case.

Appellant now challenges the prosecutor’s closing argument in part, but no such objection was made at the time of trial. There is no suggestion that the questioned statement reaches the status of fundamental error.

The judgment of the trial court is

AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    COLONNADES BEACH HOTEL, Petitioner, v. Wade E. WILLIAMS, Jr., and the Florida Industrial Relations Commission, Respondents.
    No. 77-1614.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Rehearing Denied April 7, 1978.
    Alan A. Meltzer, Lake Park, for petitioner.
    No appearance for respondents.
   PER CURIAM.

Certiorari denied.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.


author: DOWNEY, Judge.

text:
    Edward McCREADY, Appellant, v. Lois Miriam McCREADY, Appellee.
    No. 76-505.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1978.
    Rehearing Denied April 6, 1978.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., and J. Kaylor Young, Fort Lauderdale, for appellant.
    Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for appellee.
   DOWNEY, Judge.

This dissolution of marriage suit proceeded to final judgment in August 1972. Being dissatisfied with that judgment, the wife appealed. This court reversed the judgment in an opinion published at 301 So.2d 804 (Fla. 4th DCA 1974). The primary basis for the reversal was that the trial court had attempted to effectuate a property settlement for the parties without authority to do so. We were concerned that the trial court’s attempted division of the property may have had an effect upon the monetary awards for child support, alimony and attorney’s fee. Therefore, we vacated that portion of the judgment also and remanded the cause for further proceedings in accordance with the opinion.

Upon remand the trial court took additional testimony in what it termed a trial de novo. Appellant contends on this appeal that the trial court had no authority to take further testimony. We disagree. While we did not direct the taking of further testimony, nor did we expressly authorize it, if the trial court in the interest of justice felt it would be appropriate and helpful, we can not conceive of any harm to the parties. After all, a just and proper resolution of the issues should be the ultimate aim of all concerned.

We did not, however, intend that the trial court should hold a trial de novo. Rather, if the trial judge considered additional evidence necessary that additional evidence should have been considered in conjunction with the evidence adduced at the final hearing prior to the initial appeal.

At the conclusion of the additional testimony, the trial judge entered the judgment now under review in which he states the case was tried de novo. Thus, based upon that evidence adduced after remand, the trial judge found that the wife’s mother had loaned substantial sums of money to the wife with which the wife had purchased various properties. The title to some of those properties were placed in the joint names of appellant and appellee. The court found that the wife did not intend to make a gift to her husband and thus it was the wife’s money alone which bought the properties, since the loans from her mother were made solely to the wife. Therefore, the court decreed that all of the jointly held property belonged to the wife.

Contributions between husband and wife during coverture toward jointly held property are presumed to be gifts. Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971). That presumption can only be overcome by clear and convincing evidence, Abbott v. Abbott, 297 So.2d 608 (Fla. 2nd DCA 1974). We have read all of the testimony in this case from both final hearings and conclude that there is inadequate support in the record for the trial judge’s conclusion. Without attempting a complete resumé of the evidence, suffice to say that the testimony of the wife’s mother after remand was contradictory in many respects to the testimony she gave at the original final hearing. During the taking of additional testimony after remand she contended all the money she furnished, much of which was used to purchase the property jointly held by appellant and ap-pellee, was a loan to her daughter. Yet at the first hearing she testified:

“Q. You thought they both would pay you back the money?
“A. Yes.
“Q. So you were loaning the money to both of them?
“A. Yes.
“Q. But it wasn’t a gift to both of them?
“A. No, no, look.
“Q. But it wasn’t a loan just to your daughter?
“A. No.
“Q. It was a loan to both of them? “A. Right.
“Q. And both of them were to pay you back?
“A. I presume.” (R. 97)

At that first hearing the mother testified that when she loaned the money to her daughter and son-in-law they were to pay her interest and they were to both pay her back. In addition to the numerous contradictions on this vital point, it is of more than passing interest that during the colloquy between the judge and counsel at the initial final hearing, when the judge was discussing a division of the jointly owned properties, there was no protest from the wife that any of the mother’s money used to buy the properties was loaned to her alone, thus entitling her to the lion’s share of the property.

We do not believe the totality of the evidence will support any other conclusion than that the mother’s money used to purchase the jointly held property was a loan to both appellant and appellee. That being true, we are not really concerned with a gift from the appellee to appellant. They bought the property jointly. The money from her mother was a joint loan and they are both indebted for whatever amount the mother can prove. In conclusion, we hold that the appellant and appellee should become tenants in common of their jointly held properties. The amount they owe the mother should be determined in separate litigation. Howard v. Howard, 310 So.2d 430 (Fla. 4th DCA 1975).

There is some indication that there may have been some additional money belonging to the appellee alone which went into the purchase of some of the jointly owned properties. However, we hold the evidence insufficient to overcome the presumption of a gift as to that money. The appellee’s only explanation to overcome the presumption was that she thought it was necessary to put the title in their joint names in order to get a mortgage. We find that excuse too fragile from a woman holding a Master’s Degree and one who has had substantial experience in property transactions., The foregoing is also applicable to the stock in McCready Investments Corporation.

Appellant also contends the trial court committed reversible error during the taking of additional testimony when he allowed the wife’s mother to be represented by counsel who filed a written appearance, examined the mother as a witness and participated in the closing argument. In addition, the mother was not excluded from the hearing room under the rule of exclusion as was requested by the husband. When counsel for the husband objected and requested the mother be excluded because she was not a party to the suit, the trial judge stated:

“She certainly is. It is a 60 or $64,000 special equity. She can’t hear him say T didn’t do it.’ Overruled.”

We agree with appellant that this procedure was aberrant to say the least. The wife as a party to the dissolution proceeding contended that her mother had loaned her money during the marriage to purchase certain properties held by the husband and wife jointly. Thus, the mother’s interest (other than the natural maternal desire to see her daughter prevail) was that of a creditor. But she was not a party to the litigation and had no right to participate therein with her own counsel. We would condemn such a practice. All other things being equal, we would not reverse the judgment appealed from on this point alone. However, we feel this unusual procedure probably contributed to the erroneous result reached. Had the mother been excluded from the hearing room the evidence she gave at the second final hearing might have been different, i. e., consistent with their prior testimony.

In view of the foregoing, we reverse paragraphs three and four of the judgment appealed from and remand the cause with directions to enter an amended judgment providing that the property jointly owned by appellant and appellee shall henceforth be held as tenants in common, and all property solely owned by either husband or wife shall remain the sole property of that spouse. In all other respects the decretal part of the judgment of February 12, 1976, shall remain in full force and effect.

REVERSED IN PART AND REMANDED.

ANSTEAD, J., and FOGLE, HARRY W., Associate Judge, concur.