author: ENGLAND, Justice.

text:
    STUYVESANT INSURANCE COMPANY, a corporation, Petitioner, v. Royce S. BOURNAZIAN et al., Respondents.
    No. 46573.
    Supreme Court of Florida.
    Dec. 16, 1976.
    As Corrected On Denial Of Rehearing Feb. 23, 1977.
    James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, for petitioner.
    Anthony W. Cunningham, of Wagner, Cunningham, Vaughan, May & Genders, Tampa, and Robert Orseck, of Podhurst, Orseck & Parks, Miami, for respondents.
   ON REHEARING GRANTED

ENGLAND, Justice.

This case was certified to us by the Second District Court of Appeal as posing a question of great public interest. We accepted jurisdiction pursuant to Article V, Section 3(b)(3) of the Florida Constitution, considered arguments and briefs, and rendered an opinion on March 10, 1976 from which two of six members of the Court dissented. On consideration of respondents’ request for reconsideration we again heard oral argument. We now revisit our original opinion in its entirety.

This action arose from an accident between an automobile owned and driven by Royce Bournazian and an automobile owned by Paul Riley and driven by his wife Betty. Royce Bournazian filed a personal injury suit against the Rileys and Stuyvesant Insurance Company, the Rileys’ automobile liability insurer. Mrs. Bournazian filed a derivative claim as a result of the injuries to her husband. Betty Riley counterclaimed against Royce Bournazian and his liability insurer (Allstate Insurance Company) for the injuries sustained by her, and Paul Riley filed a derivative claim against them for the injuries to his wife.

Separate jury verdicts were returned for each litigant on his or her claim in a trial conducted under the doctrine of comparative negligence. Royce Bournazian was awarded $8,500, and his wife $1,500, against both Rileys and their insurer. Betty Riley was awarded $19,000, and her husband $1,000, against Royce Bournazian and his insurer. The trial court aggregated the personal injury verdicts for both Bournazi-ans and netted them against the aggregate awards for both Rileys, producing a net judgment of $10,000 for the Rileys. On appeal the district court reversed and awarded each verdict recipient the full amount of his or her individual award. The effect of that decision was to hold both insurance companies liable for the full amount assessed by the jury against their insureds, with no dollar off-sets between identical party-insureds. We now conclude that the result reached by the district court was correct.

In our initial opinion we began with a recognition of the legal principle that the liability of the insurers in this case is derivative only, representing a responsibility to pay an amount first determined to be owed by another. We then endeavored to determine how much each individual owed, and in doing so we held that the Hoffman principle of set-off should be applied when the identity of the parties would permit. As a result, we “netted” the individual liability of each party to the other before determining what the insurance company for each would pay, with the following results:

(1) Since Royce Bournazian was found to be liable to Betty Riley for $19,000, and she was found to be liable to him for $8,500, we found that the net amount he owed her was $10,500.

(2) Since Royce was found to be liable to Paul Riley for $1,000, and Paul was found to be liable (along with Betty) to Royce for the $8,500 award, we found that the net amount Paul would owe to Royce was $7,500. Because Paul’s liability is joint with Betty, however, and therefore subject to discharge by her payment or satisfaction, we found that payment of the entire $8,500 was discharged by Betty’s and Royce’s offsetting judgments, so that on balance Paul was entitled to receive $1,000 from Royce.

(3) Linda Bournazian was found to be entitled to $1,500 from Paul and Betty Riley jointly, without any offsetting liability by her to them.

By determining each insurer’s liability after applying offsets between identical parties, the insurance carriers became obligated by our original decision to pay $13,000 in claims.

We are now persuaded that our original view as to the amount to be paid among the parties themselves was correct for the reasons announced in Hoffman, but that the notion of set-off should have no effect on the contractual obligation of liability insurance carriers to pay the amounts for which their insureds are legally responsible. Stuyvesant argues that the amount legally owed by each party to the other is the net amount receivable after set-off has been applied rather than the total amount awarded to each by a jury after comparing relative fault and damages. This restrictive view of “liability” is defective in a case tried under comparative negligence, however. The effect of set-off as an antecedent to payment by each insurer is to abrogate the parties’ respective insurance contracts by providing an unwarranted second level of comparative recovery reductions— the jury’s award being the first.

The term “set-off” as used in Hoffman was obviously applied in a non-technical sense. Under the common law, a defensive plea of set-off would not exist in the compulsory counterclaim situation which arises in every comparative negligence case. In Hoffman we used the term “set-off” merely to explain to trial judges that they should enter a net judgment for the party predominantly prevailing in the particular lawsuit, just as is typically done in contract litigation where one party sues for failure to make payment and the other counterclaims for a failure to perform. A net judgment would be entered in such cases even though separate jury verdicts for each party were generated from separate causes of action, the promises of the parties not being regarded as mutually dependent at common law.

Hoffman established the principle of set-off as between injured parties liable to each other in order to avoid an unnecessary exchange of checks and the possibility of inequitable judgment executions. Set-off in comparative negligence cases, then, is no more than a mechanical device by which the court forces partial payment of an amount the jury has determined to be legally owing.

When the jury in this case fixed the dollar amounts owed by each party to the other, it had already reduced the full amount of each party’s actual damages by his or her respective degree of responsibility for the accident. The verdicts resulting from trial determined the “legal liability” of each party for purposes of Section 624.-605(l)(b), Fla.Stat. (1975). It was at that point that the terms of each insurance contract brought into effect the duty of each liability insurer to pay what its insured owed.

Were we to hold that each insurance carrier could “recoup” its insured’s financial liability to other parties, we would materially vary the terms of each liability insurance contract. For example, the jury here determined that Royce Bournazian was entitled to receive $8,500 from Betty Riley. If recoupment is allowed for the insurer to the extent of the $19,000 which Royce owed Betty, then (i) he would receive nothing from her carrier despite its contract liability to pay the amounts for which Betty became legally liable, and (ii) Betty would receive $10,500 from Royce’s carrier despite its contract liability to pay all amounts for which he became legally liable. The effect of so holding would be tantamount to our requiring Royce to pay to Betty $8,500 of the $19,000 which Allstate had contracted to pay as a result of the accident. Nothing in Hoffman, the insurance laws, or the public policy of this state justifies our reading into a standard automobile liability insurance contract a requirement that a partially-negligent but fully-insured person should absorb a portion of the cost of his negligence. The purpose of the contract is precisely to the contrary, being designed and paid for to relieve the insured of all such obligations (within policy limits and over agreed deductibles, of course).

We conclude, therefore, that the concept of “set-off” (more properly “recoupment”) as announced in Hoffman applies only between uninsured parties to a negligence action, or to insured parties to the extent that insurance does not cover their mutual liabilities. The doctrine has no effect on the contractual obligations of liability insurance carriers. The district court reached the correct result, and our previous opinion is withdrawn and superseded by this decision.

The judgment below is affirmed.

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

      . 1 Bournazian v. Stuyvesant Ins. Co., 303 So.2d 71 (Fla.2d DCA 1974).

      . Both the trial court and the district court attempted to apply the “set-off” theory which this Court announced in Hoffman v. Jones, 280 So.2d 431, 439 (Fla.1973). Their difficulty in applying Hoffman stems from the fact that the decision there involved a significantly different fact situation. Plaintiff and defendant there, both of whom were negligent, were the only parties to the litigation. The question of insurers’ liability was not involved in the case.

      . Section 624.605(l)(b), Fla.Stat. (1975). The fact that an injured person may proceed directly against the insurer as a third party beneficiary of the insurance contract, Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), in no way elevates the carrier’s responsibility to pay amounts for which the insured himself would not have been liable.

      . In offsetting Royce Bournazian’s $8,500 judgment against Betty Riley’s $19,000 judgment, the positions of the Rileys in this lawsuit would in no way be undermined since we are not here concerned with a dispute between persons jointly liable as to the impact of the joint judgment on separate judgments in favor of each.

      .See, for example, Metropolitan Cas. Ins. Co. v. Walker, 151 Fla. 314, 9 So.2d 361 (1942). If “set-off" were used in the technical sense, unrelated liabilities could be used to reduce the insurer’s contractual obligation. For example, if at the time of the accident, Linda Bournazian had been indebted to Betty Riley for $2,000 under a past due promissory note, Betty and Paul could “set-off” that debt against their new $1,500 liability to Linda. Not only would Linda go uncompensated for her loss in this accident, but the Riley’s insurer would be fortuitously relieved of its contract responsibility to pay an amount for which the Rileys had been found liable in negligence and Betty would have lost the right to recover $1,500 of her $2,000 promissory note. Hoffman never contemplated such a result. The set-off notion there announced is obviously applicable only to the mutual legal obligations of two or more persons arising from a single tortious event.

      . See, for example, Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72 (Fla. 4th DCA 1971).

      . 3A A. Corbin, Contracts § 709 (1960).

      . In this section, “liability insurance” is defined as “insurance against legal liability . . ..”


source: Caselaw Access Project

author: BY THE COURT.

license: Public Domain

text:
    SCHREIBER EXPRESS, INC., Petitioner, v. William T. MAYO et al., Respondents.
    No. 49381.
    Supreme Court of Florida.
    Jan. 6, 1977.
    Rehearing Denied March 10, 1977.
    James E. Wharton, Orlando, for petitioner.
    Prentice P. Pruitt and M. Robert Christ, Tallahassee, for respondents.
   BY THE COURT.

Upon a thorough consideration of the briefs of the parties, and the record, the petition for the writ of certiorari is denied.

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

ADKINS, J., dissents.


author: ADKINS, Justice. ENGLAND, Justice,

text:
    Levert LINDER and Emma Jean Linder, his wife, Petitioners, v. COMBUSTION ENGINEERING, INC., a corporation, Respondent.
    No. 47799.
    Supreme Court of Florida.
    Jan. 13, 1977.
    Rehearing Denied March 10, 1977.

      James M. McLean and Wayne E. Ripley, Jr., of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for petitioners.
    Mattox S. Hair, of Marks, Gray, Conroy & Gibbs, Jacksonville, for respondent.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, First District (Linder v. Combustion Engineering, Inc., 315 So.2d 199), which allegedly conflicts with a prior decision of the District Court of Appeal, Fourth District (Keller v. Eagle Army-Navy Department Stores, Inc., 291 So.2d 58), on the same point of law. Article V, Section 3(b)(3), Florida Constitution. As will more fully appear herein, we have jurisdiction.

The District Court of Appeal held, in the case sub judice, that the doctrine of strict liability in tort is not applicable in Florida. Thereafter, this Court in West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976), adopted the doctrine of strict liability.

The West case came to us from the United States Court of Appeals for the Fifth Circuit on a certificate as authorized by Section 25.031, Florida Statutes, and Rule 4.61. Therefore, it was not appropriate to consider the applicability of the newly adopted rule in pending negligence cases. In the absence of such a determination, the doctrine would be applied at the appellate level even though the question was not raised before the trial judge. We have held that on appellate review the issues must be resolved in accordance with the case law in effect at the time the appellate decision is rendered. Florida East Coast Railway Company v. Rouse, 194 So.2d 260 (Fla.1967); Clark v. Lowe, 261 So.2d 567 (Fla. 4th DCA 1972). To apply this rule would result in a general upheaval in many pending negligence cases. We therefore apply the principles as announced in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), in determining the manner in which the doctrine of strict liability should be applied in pending cases.

Under the circumstances, we hold that the doctrine of strict liability as announced in West shall be applied as follows:

(1) As to those cases in which the strict liability rule has been applied, West shall be applicable.
(2) As to those cases already commenced but in which trial has not yet begun, the strict liability rule shall be applicable.
(3) As to those cases in which trial has already begun or in which verdict or judgment has already been rendered, the strict liability rule shall not be applicable unless the applicability of the rule was appropriately and properly raised during some stage of the litigation.
(4) As to those cases on appeal in which the applicability of the strict liability rule has been properly and appropriately made a question of appellate review, the strict liability rule shall be applicable.
(5) The strict liability rule shall be applicable in all cases commenced after this decision becomes final.

In the case sub judice, plaintiffs’ complaint consisted of one count based upon negligence and one count based upon breach of implied warranty. The complaint did not seek recovery under the doctrine of strict liability nor did the plaintiffs make a motion at any time to have the pleadings amended so as to conform to the evidence. See Fla.R.Civ.P. 1.190(b).

Plaintiffs’ first attempt to rely on the theory of strict liability was by a requested instruction. Strict liability was not within the issues raised by the pleading and the court properly rejected such a charge. Under the circumstances the strict liability rule was not appropriately and properly raised during the litigation.

The decision of the District Court of Appeal is approved and the writ of certiorari is discharged.

It is so ordered.

OVERTON, C. J., and BOYD, HATCH-ETT, ROBERTS (Retired) and DREW (Retired), JJ., concur.

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice,

concurring.

I fully agree to the disposition of this case, but I would add my view that the Hoffman categories of prospective and retroactive applicability we have adopted for strict liability include our later constructions of those categories. See CNA Insurance v. Minton, 334 So.2d 257 (Fla.1976); Valdez v. Fesler, 335 So.2d 553 (Fla.1976); and St. Louis & San Francisco R.R. v. Wilson, 338 So.2d 192 (Fla.1976).


author: HATCHETT, Justice.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. 16.33 ACRES OF LAND IN the COUNTY OF DADE, State of Florida, and Sterling Investments, Inc., et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. 156.65 ACRES OF LAND IN the COUNTY OF DADE, State of Florida, and Sterling Investments, Inc., et al., Defendants-Appellants.
    No. 50243.
    Supreme Court of Florida.
    Jan. 13, 1977.
    Rehearing Denied March 10, 1977.

      Peter R. Taft, Asst. Atty. Gen., Washington, D. C., Robert W. Rust, U. S. Atty., Miami, and Jacques B. Gelin, Harry W. McKee and Eva R. Datz, Dept, of Justice, for plaintiff-appellee.
    Rollo E. Karkeet, and Robyn Greene, of Greene & Cooper, Miami, for defendants-appellants.
   HATCHETT, Justice.

Sterling Investments, Inc. (Sterling), sought to establish a compensable interest in condemned property in the course of condemnation proceedings in the United States District Court for the Southern District of Florida. Whether Sterling has an interest in the property is a question of state law, which was considered as such, and decided adversely to Sterling by the United States District Court. When the cause was appealed to the United States Court of Appeals for the Fifth Circuit, that court certified to us the question of what interest in the property, if any, Florida law gives Sterling. 537 F.2d 182 (5th Cir. 1976). The facts are stated in the Fifth Circuit’s certificate, prepared pursuant to Rule 4.61, Florida Appellate Rules, 1962 Revision, as follows:

Introduction. — This action was begun by a complaint filed by the United States to condemn certain real estate in the Elliott Shores Subdivision on Elliott Key, in Dade County, Florida. The record title holders of the subdivision lots were designated as the defendant-landowners. Sterling Investments, Inc. (Sterling), as successor-in-interest to the original developer, filed an answer alleging that it is the fee simple owner of all the avenues, roads and boulevards as shown on the plat of the subdivision. (R. 298).

The District Court, by its order of June 2, 1975, disallowed Sterling’s claim, holding, inter alia, that the conveyances by the original developer of “the lots abutting the streets and roads by reference to the plat carried title to the center of the abutting roadway subject to the rights in favor of the public all in accordance with the law of the State of Florida” (R. 627). Sterling appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit determined that issues of state law may be dispositive of this case and ordered that it be certified to the Supreme Court of the State of Florida.

A. Background. — The Biscayne National Monument was authorized October 18, 1968, and formally established June 12, 1970, 82 Stat. 1188 (R. 477). The United States instituted four proceedings to acquire the land needed for the establishment of the Biscayne National Monument:

Style of Lawsuit United States v. 95,064 acres of land. No. 70-477-Civ~CF [This was a proceeding against the State of Florida to condemn its interest in the project area.] United States v. 338.87 acres of land. No. 72-1311-Civ-CF [This was a proceeding to condemn land on Old Rhodes, Totten, Rubicon and Elliott Keys.] United States v. 16.33 acres of land, No. 72-1509~Civ-CF [The instant proceedings.] United States v. 156.65 acres of land, No. 72-1548-Civ-CF [The instant proceedings.3 Date Date Notice of Complaint Filed Lis Pendens Filed 4/8/70 4/13/70 (O.R. 6821, p. 232) 8/18/72 8/31/72 (O.R. 7872, p. 126) and amended 11/8/72 (O.R. 7970, p. 773) 9/20/72 9/22/72 (O.R. 7904, p. 137) and amended 12/17/72 (O.R. 8041, p. 52) 9/28/72 9/29/72 (O.R. 7915, p. 413)

B. Elliott Key is an island approximately eight miles long. Elliott Shores subdivision is approximately two miles north of the southern tip of Elliott Key. The subdivision is approximately one-third of a mile wide and extends from the Atlantic Ocean to Biscayne Bay.

C. Elliott Key has never been connected to the mainland of Florida and is accessible only by boat. The terrain consists of jagged coral rock covered with an almost impenetrable growth of salt water vegetation. The ocean shoreline is land and rock, and the bay shoreline is mangrove fringe. The island has no public utilities. There are no roads capable of vehicular use. A footpath, wide enough for a hiker or two, has been hacked through the vegetation, and periodic attempts are made to keep it open.

D. There is no evidence that Elliott Shores has ever been surveyed, cleared, or even staked. It is uninhabited. Elliott Key itself has a small municipal marina with no overnight facilities. The island attracts fishermen, boaters, nature hikers, and other recreational users interested in exploring undeveloped, virgin land (M. 2).

E. In 1926, Miami Bank, STERLING’S predecessor in title, recorded a plat of the property. The entire subdivision has been sold and resold from the plat as recorded in the Public Records of Dade County, Florida, in Plat Book 23, on page 24, as it has been impossible for anyone to determine visually the location of any of the lots or roads (R. 625, M. 3).

The plat filed by Miami Bank states (R. 626):

“That all avenues, roads and boulevards as shown on said plat attached are hereby dedicated to the perpetual use of the public for proper purposes reserving to ourselves, our heirs, administrators, executors, or assigns, the reversion or reversions thereof if ever discontinued by law.”

The plat goes on to state (R. 444):

“[Ejvery conveyance of any real estate in this subdivision which may be made hereafter shall be subject to the following restrictions:
“1. All lots shall be restricted to residential purposes only with the following exceptions * * * which shall be designated as business lots. This restriction shall not operate against the erection in the subdivision of apartment houses or hotels.
“2. All buildings in said subdivision shall be of fire resisting materials * *.
“3. No residence shall be erected at a less cost than Three Thousand Dollars
“4. No building shall be erected on a business lot at a less cost than One Hundred Dollars * * * per story for each front foot of the lot * * *.
“5. No residence * * * shall be constructed * * * closer than Fifty * * * feet to the centre line of the adjacent street * * *.
“6. No garage * * * shall be used for residential purposes * * *.
“7. A septic tank * * * shall be put on the * * * property * * *.
“8. No spirituous or intoxicating liquor shall be manufactured, bartered or sold in * * * said subdivision * *.
“9. No livestock shall be kept * * in said subdivision * * *.
“10. No unlawful or immoral use shall be made of the premises * * * nor shall any interest therein be sold * * to any person other than of the Caucasian race * * *.
“11. The privilege is hereby reserved to the said first party, its successors or assigns to erect and maintain electric and telephone poles, and suitable equipment for any other utilities and to lay water mains on or in the rear five feet of the land hereby conveyed, or on or in the three foot strip along the side line thereof, when necessary, to gain access to the five foot strip reserved along the rear lines of lots * * * f0r utility purpose and for such purposes as well as to repair, remove or replace said poles, equipment and mains, the said first party shall have the right for itself, its agents and employees to enter upon said premises in reasonable manner and at reasonable times.”

F.In 1960, the dedication in the plat was accepted by Dade County by a blanket resolution which accepted all previously unaccepted dedications in the county (R. 326-327). All of the tracts abutting the roads except for Tract 478 were the subject matter of tax deeds issued by the State of Florida through the Trustees of the Internal Improvement Trust Fund in or before 1944.

G. All conveyances of the lots in the subdivision were made by deeds which contained specific references to the plat (R. 627). No deed contained language showing an intent contrary to that evidenced by the plat. None of the conveyances made express reference to the fee title to the roads.

H. On February 25, 1972 (R. 488, 764), Dade County conveyed all of its interest on Elliott Key to the United States. This condemnation proceeding was instituted on September 20, 1972, and a notice of lis pendens was filed September 22, 1972.

I. Sterling traces its title to a quitclaim deed by the original subdivider dated March 3, 1959, to one J. A. Bechard, conveying unspecified tracts in Dade, Broward and Monroe Counties (R. 341, 328, 350-351, 511). Following mesne conveyances, the rever-sionary interest in the avenues, alleys, roads and boulevards in the Elliott Shores Subdivision was deeded to Sterling on August 16, 1972 (R. 341). There are no tax deeds in Sterling’s chain of title.

J. In November 1972, Sterling instituted an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, to quiet title to the avenues, roads and boulevards in the Elliott Shores Subdivision (R. 453, 318). Dade County, the only named party defendant, disclaimed any ownership interest in the land (R. 48,5). Thereafter on January 24,1973, the Florida court issued a judgment quieting title in Sterling (R. 505). The Florida court also found that “the dedication of all avenues, roads and boulevards to the perpetual use of the public for proper purposes has been discontinued by law and the use thereof reverts to the fee owners” (R. 505, J.A. 145).

K. Summary of proceedings before the district court. — No. 72-1509-Civ-CF was instituted by the United States by a complaint filed on September 20, 1972 (R. 1-2), and amended on November 6,1972 (R. 119), February 21, 1973 (R. 125, 179), April 13, 1973 (R. 225), and November 23, 1973 (R. 275), to condemn various lots in the Elliott Shores Subdivision on Elliott Key, including the fee to the road rights of way abutting the lots (up to the center line) but subject to “existing easements for public roads and 'highways, public utilities, railroads and pipelines, and free and clear of all encumbrances or liens.” The property was acquired for inclusion in the Biscayne National Monument.

L. By motion, the United States asked the court to determine the ownership of the roads and boulevards in the Elliott Shores Subdivision.

M. The federal district court found that there was nothing in the original plat and the subsequent deeds of conveyance to show an intention on the part of the original subdivider to retain a fee interest in the streets and roads. The court held that the conveyances of the lots by reference to the plat carried title to the center of the abutting roadway subject to an easement in favor of the public (R. 627).

N. In addition, the district court held that, to the extent that the lot owners’ chain of title showed tax deeds, these deeds would have extinguished the original subdi-vider’s reversion, even assuming such a reversion had been retained.

O. Finally, the district court held that the establishment of the national monument did not effect a discontinuance of the public use of the road rights of way (R. 627-628).

P. As regards the interest of the lot owners, final judgments have been entered and payments have been made to them. All of the judgments were entered pursuant to settlement.

Although some eight questions of law have been certified, we find it unnecessary to decide most of them, because of the view we take of the case.

When Miami Bank, Sterling’s predecessor in title, dedicated the platted roads “to the perpetual use of the public for proper purposes,” it explicitly reserved to itself any reversionary interest, as against the public. Thereafter, all the lots in the plat were sold; and the deeds described the lots by reference to the plat. Because there was no mention of any reversionary interest in these transactions, the present case falls under the rule stated in Smith v. Horn, 70 Fla. 484, 70 So. 435, 436 (1915):

Where the owner of land has it surveyed, mapped, and platted, showing subdivisions thereof, with spaces for intervening streets or other highways between the subdivisions clearly indicated upon the map or plat, and conveyances in fee of the subdivisions are made with reference to such map or plat, the owner thereby evinces an intention to dedicate an easement in the streets or other highways to the public use as such, the title to the land under the street remaining in the owner or his grantees; and, where such conveyances are made with reference to the map or plat, the dedication of the easement for street purposes cannot be subsequently revoked as against the grantees, and the title of the grantees of subdivisions abutting on such streets, in the absence of a contrary showing, extends to the center of such highway, subject to the public easement. And, where the highway is lawfully surrendered, the then holder of the title to abutting property and to the center of the street has the property relieved of the public easement.

This rule dates from the decision in Florida Southern Ry. Co. v. Brown, 23 Fla. 104, 1 So. 512 (1887), and was applied in Servando Building Co. v. Zimmerman, 91 So.2d 289 (Fla.1956). In the present case, we hold that the reversionary interest, retained by the subdivider, was subsequently conveyed, together with the lots, subject to the easement in favor of the public. The reversion-ary interest of Sterling’s predecessor in title was distributed among the lot owners, as the lots were sold. It follows that Sterling has no interest of any kind in the parcel; none of its property was taken in the condemnation action, and the road easements in favor of the public are preserved.

In these circumstances, we conclude that consideration of the remaining certified questions would serve no useful purpose.

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

ADKINS and ROBERTS (Retired), JJ., dissent.


author: ADKINS, Justice.

text:
    In re Preer BEVERLY.
    No. 47747.
    Supreme Court of Florida.
    Jan. 27, 1977.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for Preer Beverly.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for the State of Florida.
   ADKINS, Justice.

This is a direct appeal from the Circuit Court of Dade County which held that Section 394.467, Florida Statutes (1973), was constitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

The pertinent portions of the statute under attack read as follows:

“394.467 Involuntary hospitalization
(1) Criteria. — A person may be involuntarily hospitalized if he is mentally ill and because of his illness is:
(a) Likely to injure himself or others if allowed to remain at liberty, or
(b) In need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf.
(2) Admission to a treatment facility. — A patient may be hospitalized in a treatment facility, after notice and hearing, upon recommendation of the administrator of a receiving facility where the patient has been admitted for examination or evaluation. When a patient is not an inpatient in a receiving facility, the administrator of a designated receiving facility may make a recommendation for involuntary hospitalization of a patient who has been given an examination, evaluation, or treatment by staff of the receiving facility or a private physician. The hearing may be waived in writing by the patient. The recommendation must be supported by the opinions of two physicians who have personally examined the patient within the preceding five days that the criteria for involuntary hospitalization are met. . . . ”

On June 20, 1975, the designee of the Administrator of the Jackson Memorial Hospital Institution filed a petition for the involuntary hospitalization of respondent. A hearing on the involuntary hospitalization petition was held on June 26, 1975, and resulted in an order requiring respondent to be hospitalized involuntarily. The judge specifically upheld the constitutionality of Section 394.467(l)(b), Florida Statutes (1973).

Appellant first says that the statute is so vague that persons of ordinary intelligence must guess at its meaning, and therefore violates the due process clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 9, Florida Constitution. Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1925); State v. Barquet, 262 So.2d 431 (Fla.1972). Specifically, appellant says that under the statute a person who is “mentally ill” may be involuntarily hospitalized, and that this term is unconstitutionally vague. Appellant argues that the vagueness impediment is not overcome by the definition in Section 394.455(3), Florida Statutes (1973), which reads:

“ ‘Mentally ill” means having a mental, emotional, or behavioral disorder which substantially impairs the person’s mental health.”

Appellant also contends that the statute is overbroad in that it authorizes the involuntary hospitalization of the non-dangerous mentally ill person with no need of a showing that the individual cannot survive safely in freedom. Appellant says that the statute does not require the trial court to explore the possible alternatives to involuntary commitment. In other words, the court may require the involuntary hospitalization without satisfying itself that nothing less onerous than commitment would best serve the patient. This is known as the “least restrictive alternative” approach. Lake v. Cameron, 124 U.S.App.D.C. 264, 364 F.2d 657 (1966); Covington v. Harris, 136 U.S.App.D.C. 35, 419 F.2d 617, 623 (1969).

Appellant relies upon Commonwealth ex rel. Finken v. Roop, 234 Pa.Super. 155, 339 A.2d 764 (1975), which held that the language of the Pennsylvania involuntary hospitalization statute was unconstitutionally vague, in that it failed to give fair warning of the conduct proscribed by law and there was an absence of standard restricting the discretion of governmental authorities or courts in enforcing the law.

The Pennsylvania statute allowed a petition for commitment to be filed when “a person is believed to be mentally disabled and in need of care or treatment of such mental disability.” The Pennsylvania statute defined “mentally disabled” as:

“[A]ny mental illness, mental impairment, mental retardation, or mental deficiency, which so lessens the capacity of a person to use his customary self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under care as provided in this act.” 339 A.2d 764 at 775.

In holding that the definition was unconstitutionally vague, the Court said:

“Mental illness has been attacked as a criterion for commitment because it is usually defined in terms of deviation from the ‘norm’ and thus is dependent upon what the examining psychiatrist believes the ‘norm’ to be. If, however, the term ‘mental illness” is given sufficient legal meaning so as not to be unconstitutionally vague, . . . the difference of opinion among psychiatrists as to what constitutes the ‘norm’ becomes much less important. Thus, if the statute has only a vague standard, the trier of fact must rely almost totally on the expert opinions.
“The commitment procedure . has asked too much of psychiatrists. The psychiatrist is not merely asked to report his diagnosis and evaluation to the court, he is asked to draw legal conclusions — is the subject mentally ill and does he need confinement? These conclusions have severe legal consequences and should be answered by the judicial system. That can be accomplished by requiring a strict burden of proof, and by defining ‘mental illness’ in a manner which prevents the court from exercising unfettered discretion (i. e., blindly relying on the conclusion drawn by the examining psychiatrist) and which indicates the type of conduct for which commitment is an appropriate sanction. If the standards are sufficiently precise, confinement will be less dependent upon the examining psychiatrist’s personal conception of normal social behavior.
“The narrow issue presented by appellant’s vagueness argument, therefore, is whether the requirement that the subject’s mental illness render him ‘in need of care’ is sufficient to withstand a constitutional attack of impermissible vagueness. Clearly it is not. ‘In need of care’ is so broad as to be virtually meaningless. Furthermore, once a finding of mental illness is made, it would be impossible not to find that the individual is in need of care.” 339 A.2d 764 at 777-78.

It is elementary that statutes may properly authorize the involuntary commitment of the mentally ill when the term “mentally ill” is given a satisfactory legal meaning. Section 394.467(1), Florida Statutes, quoted above, imparts a sufficient legal meaning to the term “mental illness” by-setting criteria. Under the statute the pertinent inquiry is whether the person is mentally ill and because of his illness is (1) likely to injure himself or others if allowed to remain at liberty, or (2) is in need of care or treatment and lacks sufficient capacity to make a reasonable application on his own behalf. These statutory standards are more precise than those discussed in Commonwealth ex rel. Finken v. Roop, supra, as the Florida statutory language is adequate to warn that a person is subject to involuntary hospitalization only if he or she is likely to harm himself or others, or if he or she requires treatment and does not have the capacity to decide for himself. The appellant’s vagueness challenge to the statute is without merit.

The statutory authority for the judge to involuntarily hospitalize if the person lacks “sufficient capacity to make a responsible application on his own behalf” is grounded on the parens patriae power which is vested in the states. Hawaii v. Standard Oil Co., 405 U.S. 251, 257, 92 S.Ct. 885, 31 L.Ed.2d 184 (1971). The parens patriae doctrine is used as a basis for state laws which protect the interests of minors, establish guardianships and provide for the involuntary commitment of the mentally ill. See In re W., 29 Cal.App.3d 623, 105 Cal. Rptr. 736 (1972). Recent decisions have recognized the propriety of using the parens patriae power for involuntary commitment to include those who are incapable of making their own treatment decisions. As stated in Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974),

“Commitment on account of dangerousness to others serves the police power, while commitment for dangerousness to self partakes of the parens patriae notion that the state is the ultimate guardian of those of its citizens who are incapable of caring for their own interests. (Citations omitted). Valid exercise of the parens patriae power presumes an incapability to manage one’s affairs that approximates, if it is not identical with, legal incompetence to act. Consequently, in order to deprive a person alleged to be a danger to himself alone of the right to choose between treatment and liberty, the state must first demonstrate that, because of his mental illness, he lacks the capacity to weigh for himself the risks of freedom and the benefits of hospitalization.
“A finding of dangerousness indicates the likelihood that the person to be committed will inflict serious harm on himself or on others. In the case of dangerousness to others, this threat of harm comprehends the positive infliction of injury — ordinarily physical injury, but possibly emotional injury as well. In the case of dangerousness to self, both the threat of physical injury and discernible physical neglect may warrant a finding of dangerousness. Although he does not threaten actual violence to himself, a person may be properly commitable under the dangerousness standard if it can be shown that he is mentally ill, that his mental illness manifests itself in neglect or refusal to care for himself, that such neglect or refusal poses a real and present threat of substantial harm to his well-being, and that he is incompetent to determine for himself whether treatment for his mental illness would be desirable.” At 390-91.

Standards analogous to those in Section 394.467, Florida Statutes, have been expressly sanctioned by federal and state courts and upheld when attacked on the ground of vagueness. Bell v. Wayne County General Hospital at Eloise, 384 F.Supp. 1085 (E.D.Mich.1974); In re Williams, 297 So.2d 458 (La.3d Cir.Ct.App.1974). Cf. Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Lynch v. Baxley, supra; Fhagen v. Miller, 29 N.Y.2d 348, 328 N.Y.S.2d 393, 278 N.E.2d 615 (1972). For example, in referring to a section of the code similar to the Florida statute, the Louisiana court (In re Williams, supra), said:

“That section provides, in effect, that a person may be committed who is found to be ‘suffering from a mental illness which causes him to be dangerous to himself or others and/or incapable of caring for himself or his personal safety.’ We think that provision is clear and definite enough to apprise the person affected of the nature and degree of proof required to support the judgment demanded, and that it satisfies the constitutional guaranty of due process of law. We thus reject the argument that Section 53 is void because it is vague and indefinite.” 297 So.2d 458 at 461.

Appellant relies upon O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), to claim that the statute is overbroad because, according to O’Con-nor, mental illness, without more, is not a legal basis for the involuntary hospitalization of the mentally ill. In O’Connor, the court did not decide the issue of whether, when, or under what procedures a state may confine a mentally ill person. The court did hold that a state cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members and friends. Section 394.453, Florida Statutes (1973), provides that involuntary hospitalization is to be ordered only when it is determined to be necessary. If there were those capable of surviving safely in freedom either through their own efforts or with the aid of family or friends, hospitalization would not be necessary. The concurring opinion by Chief Justice Burger in O’Connor, supra, furnishes support to the validity of Florida standards, wherein the Chief Justice said:

“Analysis of the sources of the civil commitment power likewise lends no support to that motion. There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease. Cf. Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744; Jacobson v. Massachusetts, 197 U.S. 11, 25-29, 25 S.Ct. 358, 360-362, 49 L.Ed. 643 (1905). Additionally, the States are vested with the historic parens patriae power, including the duty to protect ‘persons under legal disabilities to act for themselves.’ Hawaii v. Standard Oil Co., 405 U.S. 251, 257, 92 S.Ct. 885, 888, 31 L.Ed.2d 184 (1972). See also Mormon Church v. United States, 136 U.S. 1, 56-58, 10 S.Ct. 792, 807-808, 34 L.Ed. 481 (1890). The classic example of this role is when a State undertakes to act as ‘ “the general guardian of all infants, idiots, and lunatics.” ’ Hawaii v. Standard Oil Co., supra, quoting 3 W. Blackstone, Commentaries * 47.” 422 U.S. 563 at 582, 95 S.Ct. 2486 at 2497, 45 L.Ed.2d 396.
“[A] particular scheme for protection of the mentally ill must rest upon a legislative determination that it is compatible with the best interests of the affected class and that its members are unable to act for themselves. Cf. Mormon Church v. United States, supra.” 422 U.S. 563 at 583, 95 S.Ct. 2486 at 2498, 45 L.Ed.2d 396 (concurring opinion).

Section 394.467, Florida Statutes (1973), has withstood the attack of vagueness and overbreadth. We hold the statute to be constitutional on its face.

Before entering an order requiring the involuntary hospitalization of a person, the judge must first conclude that the person is mentally ill. The judge must then conclude that, because of the illness the person is likely to injure himself or others if allowed to remain at liberty. In order to conclude that the person is likely to injure himself or others, the judge must conclude that there is such a threat of harm as to comprehend the positive infliction of injury. Ordinarily, this would refer to physical injury, but the judge may very well conclude that the person is likely to inflict emotional injury to another. The statute contemplates the latter as well as the former.

If the person is non-dangerous, the judge must conclude that he is in need of care and treatment and lacks sufficient capacity to make a responsible application on his own behalf. A mere conclusion that the person is “in need of care or treatment” is insufficient. The judge must further conclude that such person “lacks sufficient capacity to act for himself.”

If the judge concludes that the mental illness manifests itself in neglect or refusal to care for himself, that such neglect or refusal poses a real and present threat of substantial harm to his well being, and that he is incompetent to determine for himself whether treatment for his mental illness would be desirable, then the criteria of the statute have been met.

However, even though the other criteria are met, a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends should never be hospitalized involuntarily.

The trial court denied appellant’s motion to apply the standard of proof beyond a reasonable doubt. Instead, the court used the standard of clear and convincing evidence. Appellant says this was error.

Section 394.467(3)(a), Florida Statutes, merely provides that if “the court concludes that the patient meets the criteria for involuntary hospitalization, the judge shall order the patient to be transferred to a treatment facility.” The statute is silent regarding the burden of proof required.

Appellant relies upon In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973), which held that the “reasonable doubt” burden of proof was necessary. Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972); Denton v. Commonwealth, 383 S.W.2d 681 (Ky.1964); In re Andrews, 334 N.E.2d 15 (Mass.Sup. Jud.Ct.1975); U. S. ex rel. Stachulak v. Coughlin, 520 F.2d 931 (7th Cir.1975).

The vast majority of courts have adopted the standard of proof by clear and convincing evidence and a few courts have adopted proof by a preponderance of the evidence. Lynch v. Baxley, supra; Bartley v. Kremens, 402 F.Supp. 1039 (E.D.Pa.1975); Dower v. Director, Patuxent, 396 F.Supp. 1070 (D.Md.1975); Tippett v. Maryland, 436 F.2d 1153 (4th Cir.1971); Dixon v. Attorney General, 325 F.Supp. 966 (M.D.Pa.1971); United States v. Brown, 155 U.S.App.D.C. 402, 478 F.2d 606 (1973); In re Ward, 533 P.2d 896 (Utah 1975); State ex rel. Hawks v. Lazaro, 202 S.E.2d 109 (W.Va.S.Ct. of App.1974); People v. Sansone, 18 Ill.App.3d 315, 309 N.E.2d 733 (1974); People v. Ralls, 23 Ill.App.3d 96, 318 N.E.2d 703 (1974); People v. Bradley, 22 Ill.App.3d 1076, 318 N.E.2d 267 (1974); In re Sciara, 21 Ill. App.3d 889, 316 N.E.2d 153 (1974); Cf. Sas v. Maryland, 334 F.2d 506 (4th Cir.1964); Bush v. Director, Patuxent Institution, 22 Md.App. 353, 324 A.2d 162 (1974); State ex rel. Walker v. Jenkins, 203 S.E.2d 353 (W.Va.S.Ct. of App.1974); Commonwealth ex rel. Finken v. Roop, 234 Pa. Super. 155, 339 A.2d 764 (1965); State v. Valdez, 88 N.M. 338, 540 P.2d 818 (1975). In Valdez, supra, the court in discussing the New Mexico statute said:

“Nowhere is there mention of exactly what standard of proof must be met by the State in order to justify commitment. Since there has also been no previous New Mexico case law on this particular point, the courts have been without guidance. Undoubtedly, patients have been committed on the basis of a mere preponderance of the evidence, the typical standard for civil actions. This court is of the opinion that this standard- is definitely constitutionally unacceptable for civil commitment hearings, in view of the fact that fundamental liberties of the patient are so often at stake.
“Decisions in federal court and other state courts have been divided, though probably the majority have adopted the stricter reasonable doubt standard. See In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972); In re Pickles' Petition, 170 So.2d 603 (Fla.App.1965). For several reasons this court declines to accept this viewpoint, and instead adopts the standard of ‘clear and convincing’ evidence as the better rule.” 540 P.2d 818 at 822.

We agree with the New Mexico court and hold that the standard of proof to be applied in civil commitment proceeding is “clear and convincing evidence,” which shall be applied in this and all future civil commitment proceeding. This standard of proof was defined and described in Allstate Insurance Co. v. Vanater, 297 So.2d 293 (Fla.1974).

The District Court of Appeal, First District, reversed an adjudication of incompetency in the case of In Re Pickles’ Petition, supra. There the court pointed out that extreme care should be exercised in adjudicating one to be incompetent and held that a diagnosis of schizophrenia standing by itself, not classified as to type, was insufficient to support an adjudication of incompetency. In its opinion the court said:

“A person under restraint of his liberty is entitled to liberation where reasonable doubt exists as to his mental condition. An adjudication of incompetency is a partial deprivation of it. ” 170 So.2d 603 at 614.

Insofar as the case of In Re Pickles’ Petition, supra, may be construed to be in conflict with the views expressed herein, we overrule In Re Pickles’ Petition, supra.

The United States Supreme Court has yet to consider the standard of proof for involuntary hospitalization necessary to satisfy federal due process requirement. In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the court refused to impose on the states the lesser federal standard of proving an insanity defense. An Oregon statute requiring the accused to prove his insanity defense beyond a reasonable doubt was upheld even though it was materially different and more stringent than the standard set by the United States Supreme Court. This matter was left to determination by the individual states.

Leland, supra, is of little value as a precedent in a civil commitment case. However, it does bolster our reasoning that the states may determine the standard of proof without violating due process requirements.

While both civil commitment proceedings and criminal proceedings may result in confinement, a person involuntarily committed for mental illness is entitled to treatment, to review of his condition and to release when he is no longer in need of treatment. There is a differentiation between persons in need of mental treatment and persons who violated the criminal laws. The difficulty in proving an individual state of mind combined with a stringent reasonable doubt standard, may work a hardship on the individual who has a right to treatment and to society which has a right to protection.

Appellant contends that he was denied his rights under the United States Constitution Fifth Amendment in that he was not given the warnings required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda applies only to “in custody” interrogation by law enforcement officers and- bars the admissibility of any statement obtained in violation of its mandate at a subsequent criminal prosecution. The Fifth Amendment privilege is not designed to protect any disclosures which are made by a mental patient during a psychiatric examination and which will lead only to an assessment of his mental or emotional condition. The privilege has no application in commitment proceedings so long as the proceedings do not entangle him in any criminal prosecution. Dower v. Director, Patuxent, supra; In Re O’Neill, 536 P.2d 552, 554 (Or.App.1975); Sas v. Maryland, supra.

The exclusion, at any subsequent criminal prosecution, of any admissions, information or evidence divulged by the person being examined, would suffice to protect his constitutional rights.

Appellant also contends that he was denied his right to counsel, saying that the patient has the right to counsel at the interview with the examining psychiatrist. The subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process. Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974). By significant stages we mean all judicial proceedings and any other official proceeding at which a decision is, or can be, made which may result in a detrimental change to the conditions of the subject’s liberty. The right to counsel does not extend to preliminary stages, such as psychiatric interview where custodial decisions are not made. The presence of counsel at that stage would unduly interfere with the objective evaluation of the patient’s mental condition by the examining physician. Lynch v. Baxley, supra. We hold that a patient does not have a right to counsel at the psychiatric interview, as no such right is applicable at the psychiatric examination stage. We point out that appellant was adequately represented by court-appointed counsel at the hearing.

For the first time on appeal, appellant claims that the patient-psychiatrist statutory privilege set forth in Section 90.-242, Florida Statutes (1973), was violated when the psychiatrist testified concerning the conversations with the appellant during the psychiatric examination. This Court should decline the review of questions which the trial court did not have a full and adequate opportunity to consider. Silver v. State, 188 So.2d 300 (Fla.1966); Reinhard v. Bliss, 85 So.2d 131 (Fla.1956). Although counsel for appellant objected to the testimony of the psychiatrist, the objection was made on the ground that appellant had not been sufficiently advised of his right to an attorney. There was no objection raising the question of privilege under the statute.

The State, nevertheless, submits that an exception was created by subsection (3)(a), which reads as follows:

“There shall be no privilege for any relevant communications under this section:
“If a judge finds that the patient, after having been informed that the communications would not be privileged, has made communications to a psychiatrist in the course of a psychiatric examination ordered by the court, provided that such communications shall be admissible only on issues involving the patient’s mental condition.” Section 90.242(3)(a), Florida Statutes (1973).

Prior to the examination appellant was advised that anything be said at that time could be used against him at the subsequent hearing. Section 394.467(3)(a), Florida Statutes (1973), provides that in proceedings for involuntary hospitalization one of the physicians who executed the hospitalization certificate shall be a witness at the hearing on hospitalization. The Legislature contemplated that when proceedings turned upon the diagnosis and treatment of attending physicians for psychiatry, the testimony of the examining physician as to communications on the crucial issue of the physical and mental condition of the patient should not be barred as being privileged.

We now turn to the question of whether the evidence was sufficient under the standards set forth above to sustain the order of involuntary hospitalization.

The seriousness of the deprivation of liberty and the consequences which follow in adjudication of mental illness make imperative strict adherence to the rules of evidence generally applicable to other proceedings in which an individual’s liberty is in jeopardy. The court is required to strike a proper balance between the State interest in civilly committed persons who pose a danger to society or themselves and the individual’s interest in remaining free from unwanted restraint.

The petitioner in the trial court and the examining psychiatrist were seeking an order for the involuntary hospitalization of appellant for up to six months in spite of the fact that the examining physician stated that appellant would be ready to leave the hospital in one month. A psychiatrist testified that appellant was likely to injure himself or others and that he was in need of care but unable to make a responsible application on his own behalf. Another psychiatrist did not reach either of these conclusions. There was some testimony that appellant had been violent on two occasions preceding his hospitalization and had quit a job because of his religious beliefs. Appellant’s half-sister testified that appellant approached her on the day prior to his hospitalization and told her that Sandy (appellant’s own nickname) had died and gone to heaven and that he [appellant] was God. A psychiatrist testified that appellant truly believed he was God, Jesus Christ, and a fisherman of souls as powerful as God. Appellant testified and explained that he did not believe he was Jesus Christ in flesh but that he was a minister working through Jesus Christ. Appellant believed that he had the power of Jesus Christ.

The record of the trial court does not eliminate the possibility of successful treatment through some less restrictive alternative, as requested by appellant himself. Although the evidence is sufficient to show that appellant is mentally ill, the evidence is not clear and convincing that appellant would likely injure himself or others if allowed to remain at liberty. Appellant is mentally ill and in need of care or treatment, but it does not appear by clear and convincing evidence that he is dangerous or that he lacks sufficient capacity to make a responsible application on his own behalf.

Other points raised by appellant are without merit.

The order of the trial judge upholding the constitutionality of the statute is affirmed, but the order for involuntary hospitalization of appellant is reversed.

It is so ordered.

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


author: PER CURIAM.

text:
    In re James H. SCOTT, Jr.
    No. 47073.
    Supreme Court of Florida.
    Jan. 27, 1977.
    Phillip A. Hubbart, Public Defender, and Kurt Marmar, Bennett H. Brummer and Elliot H. Scherker, Asst. Public Defenders, for James H. Scott, Jr.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a direct appeal from the Circuit Court of Dade County which held that Section 394.467, Florida Statutes (1973), was constitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

We held the statute to be constitutional. In re Beverly, 342 So.2d 481, opinion filed January 27, 1977.

Other questions of law raised by appellant have been determined adversely to his contentions. In re Beverly, supra.

The judgment of the lower court is affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and ROBERTS (Retired), JJ., concur.


text:
    In re Edwin SMITH.
    No. 47617.
    Supreme Court of Florida.
    Jan. 27, 1977.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for Edwin Smith.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for the State of Florida.
   ADKINS, Justice.

This is a direct appeal from the Circuit Court of Dade County which held that Section 394.467, Florida Statutes (1973), was constitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

We have held the statute to be constitutional. In re Beverly, 342 So.2d 481, opinion filed January 27, 1977.

Other questions of law raised by appellant have been determined adversely to his contentions. In re Beverly, supra.

From an examination of the testimony of the medical experts and the father of the appellant, it appears that there is clear and convincing evidence that appellant is mentally ill. It also appears that he is in need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf. However, the record does not include any medical or judicial exploration of “less restrictive alternatives” to involuntary commitment. This case should be returned to the trial court for the purpose of determining whether appellant is capable of surviving safely in freedom with the help of willing and responsible family members and friends. See In re Beverly, supra.

The order of the trial judge is reversed and the cause is remanded so that the trial judge may consider the possibility of successful treatment of appellant other than by involuntary hospitalization and explore the possibility of “less restrictive alternatives” to involuntary commitment.

It is so ordered.

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


text:
    In re Barbara JACKSON.
    No. 47618.
    Supreme Court of Florida.
    Jan. 27, 1977.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for Barbara Jackson.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for the State.
   ADKINS, Justice.

This is a direct appeal from the Circuit Court of Dade County which held that Section 394.467, Florida Statutes (1973), was constitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

We held the statute to be constitutional. In re Beverly, 342 So.2d 481, opinion filed January 27, 1977.

Other questions of law raised by appellant have been determined adversely to her contentions. In re Beverly, supra.

It is shown by clear and convincing evidence that appellant was mentally ill and lacked sufficient capacity to make a responsible application on her own behalf. The doctor expressed serious doubt as to the ability or desire of appellant to take required medication in the event she was not hospitalized. Appellant made reference to places that she might stay, but the doctor testified that he did not feel them “to be viable alternatives to hospitalization.” In the doctor’s opinion, she was in need of hospitalization and “lacked the capacity to apply for treatment.” No member of appellant’s family was present at the hearing. The evidence was sufficient and the judgment of the trial court is affirmed.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG, HATCHETT and ROBERTS (Retired), JJ., concur.

ENGLAND, J., dissents.


text:
    In re Pedro ALVAREZ.
    No. 47708.
    Supreme Court of Florida.
    Jan. 27, 1977.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for Pedro Alvarez.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
   ADKINS, Justice.

This is a direct appeal from the Circuit Court of Dade County which held that Section 394.467, Florida Statutes (1973), was constitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

We held the statute to be constitutional. In re Beverly, 342 So.2d 481, opinion filed January 27, 1977.

On June 2, 1975, appellant's wife filed a petition for emergency admission of appellant on an ex parte order. On the same day the trial court entered an ex parte order for emergency admission, authorizing the emergency examination and care of appellant by the hospital. On June 4,1975, the assistant administrator of the hospital filed a petition for involuntary hospitalization. Another ex parte order directing a psychiatric examination was entered by the trial court on June 10, 1975, pursuant to the petition for involuntary hospitalization.

Appellant contends that the petition for involuntary hospitalization filed by the assistant administrator was fatally defective and did not confer jurisdiction upon the trial court because it did not contain two requisite medical opinions required by Section 394.467(2), Florida Statutes. The appellant did not attack the sufficiency of the petition in the trial court, and, therefore, waived any objection which he may have had to the petition. Silver v. State, 188 So.2d 300 (Fla.1966). See also Fla.App. Rule 6.7(g).

The petition for involuntary hospitalization contained a statement as to the opinions of two physicians, Dr. Arias and Dr. Castillo, but only Dr. Arias signed the document. That portion of the petition containing the medical opinion of Dr. Castillo was not signed by the doctor. This was not such fundamental error as to require a reversal of the order of involuntary hospitalization. See Hughes v. Blanton, 120 Fla. 446, 162 So. 914 (1935). Although the doctors were uncertain as to the date of the first examination, one doctor testified that he had treated appellant “since the time he was admitted” on “the day he came to the hospital.” Another doctor testified that he and the other physician told defendant on the “day of the admission” that anything he said could be used against him at the hearing. The evidence was sufficient to show that appellant was examined prior to the filing of the questioned petition. Deviations from statutory requirements as are alleged to exist in this case will not render the petition fatally defective or deprive the court of jurisdiction, particularly where no prejudice is shown to have resulted. See In re Guardianship of Marak, 59 Wis.2d 139, 207 N.W.2d 648 (1973); Coglan v. Coglan, 196 Miss. 492, 18 So.2d 149 (1944). This contention of the appellant is without merit.

Appellant was warned that the psychiatrists were going to testify concerning anything told them, and that he had a choice as to whether or not he would talk with the psychiatrists. During the examination, appellant did not express any desire not to talk to the doctors or request the doctors not to testify about anything told them. After the examination and on the day prior to the hearing, appellant attempted to withdraw any permission he had given and advised the doctors that he did not want them to testify in court. The doctors requested advice of court and the trial judge correctly ruled that there would be no violation of any privileged communication. Once the privilege is waived by the appellant, he cannot invoke the privilege after the examination is completed. There was no violation of Section 90.242, Florida Statutes (1973), creating the psychiatrist-patient privilege. See In re Beverly, supra.

There was clear and convincing evidence from appellant’s wife as to acts of violence on appellant’s part, as well as testimony of members of the hospital staff. His hostility was evidenced by refusal to take medication, together with an uncooperative and negative attitude. The evidence of acts of violence and hostility was buttressed by testimony of a doctor that without medication appellant was potentially dangerous. The evidence is sufficient to show that appellant was mentally ill, and that because-of the illness he was likely to injure himself or others if allowed to remain at liberty. In addition, appellant, though in need of care and treatment, lacked sufficient capacity to make a responsible application on his behalf. Because of the acts of violence directed towards his wife, it could not be shown that appellant could survive safely in freedom by himself or with the help of responsible family members and friends.

Other questions presented by appellant were without merit. See In re Beverly, supra.

The order of the trial judge for involuntary hospitalization of appellant is affirmed.

It is so ordered.

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


text:
    FLORIDA DEPARTMENT OF NATURAL RESOURCES and Harmon Shields, as Executive Director of the Florida Department of Natural Resources, Appellants, v. FLORIDA GAME AND FRESH WATER FISH COMMISSION et al., Appellees.
    No. 48739.
    Supreme Court of Florida.
    Jan. 27, 1977.
    Rehearing Denied March 9, 1977.
    Jack W. Pierce and Wings S. Benton, Tallahassee, for appellants.
    D. L. Middlebrooks, Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, Cynthia S. Tunnicliff and Guyte P. McCord, III, of the Law Office of Sam Spector, and David V. Kerns, Tallahassee, for appellees.
   ADKINS, Justice.

This case comes to us on direct appeal from a judgment of the Circuit Court for Leon County which passed upon the validity of a state statute. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

The parties will hereinafter be referred to as they appeared before the circuit court— appellee, Florida Game and Fresh Water Fish Commission as plaintiff or as “the Commission,” and appellant, Department of Natural Resources as defendant or as “the Department.”

The circuit court declared unconstitutional Section 17 of Chapter 75-22, Laws of Florida, which provides:

“Section 17. Subsection (17) of section 20.25 Florida Statutes, is amended to read:
“20.25 Department of Natural Resources. — There is created a Department of Natural Resources.
“(17) The Game and Fresh Water Fish Commission functions, prescribed by chapter 372, are transferred by a type one transfer to the Department of Natural Resources. The Department of Natural Resources shall have authority pursuant to the type one transfer to directly supervise, review, and approve the commission’s exercise of executive powers in the area of budgeting.”

The statute was found to violate Article IV, Section 9, Florida Constitution (as amended 1974), which provides:

“Section 9. Game and fresh water fish commission. — There shall be a game and fresh water fish commission, composed of five members appointed by the governor subject to confirmation by the senate for staggered terms of five years. The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute. The legislature may enact laws in aid of the commission, not inconsistent with this section. The commission’s exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the commission by the legislature for the purpose of management, protection and conservation of wild animal life and fresh water aquatic life.”

The circuit court held that the constitutional provision that the Commission’s “exercise” of certain of its executive powers shall be as provided by law did not mean that the legislature could, by making the exercise of these powers subject to the approval of the Department of Natural Resources, deprive the Commission of its authority. Defendant appeals from the judgment below, alleging that the statutory provisions for a type one transfer of Game and Fresh Water Fish Commission functions to the Department of Natural Resources and for Department review of the Commission’s exercise of executive powers in the area of budgeting are free of constitutional defect. For the reasons set forth below, we agree with the circuit court that the statute is unconstitutional.

A type one transfer is defined by Section 20.06, subsection (1), Florida Statutes, as follows:

“(1) Type One (1) Transfer. — A type one (1) transfer is the transferring intact of an existing agency or of an existing agency with certain identifiable programs, activities, or functions transferred or abolished so that the agency becomes a unit of a department. Any agency transferred to a department by a type one (1) transfer shall henceforth exercise its powers, duties, and functions as prescribed by law, subject to review and approval by, and under the direct supervision of, the head of the department.”

Section 20.06, subsection (1), Florida Statutes, authorizes the transferee department to review the exercise of the powers, duties, and functions of the transferred agency. It is clear that, absent qualification, a type one transfer places the transferred agency under the absolute control of the department head. Such an arrangement in the instant case is constitutionally impermissible. Article IV, Section 9, Florida Constitution. Defendant does not dispute the unconstitutionality of an unqualified type one transfer of plaintiff; it is instead defendant’s contention that Chapter 75-22, Section 17, Laws of Florida, effectuated a qualified type one transfer. Based upon a comparison of the statute presently under consideration and its predecessor law, we cannot agree.

The predecessor law, Section 20.25, subsection (17), Florida Statutes, provided:

“(17) The game and fresh water fish commission functions, prescribed by chapter 372, are transferred by a type one transfer to the Department of Natural Resources, except that the commission shall exercise its powers prescribed by §9 of Art. IV of the state constitution independently of the head of the Department of Natural Resources.” (Emphasis supplied.)

The second clause of the previous law clearly qualifies the type one transfer announced in the first clause so as to preserve all of the Commission’s constitutional authority. The statute in question contains no such saving clause, and, by giving the Department authority to “directly supervise, review, and approve the Commission’s exercise of executive powers in the area of budgeting,” the statute is inconsistent with the mandate of Article IV, Section 9. Since Chapter 75-22, Section 17, Laws of Florida, contains no language modifying the type one transfer set forth in the first sentence, it must be considered unconstitutional as an attempted unqualified type one transfer of a constitutional agency. Article IV, Section 9, Florida Constitution; Section 20.06(1), Florida Statutes (1976).

Article IV, Section 9, Florida Constitution (as amended 1974), specifically authorized the legislature to make laws concerning the Commission’s budgeting. The Department contends that if the trial court’s findings were correct, any law directing the processing of the Commission’s budget would be difficult to uphold since any mandatory budgetary process, even if performed directly by the legislature without involving any agencies, could be viewed as a diminishing of the Commission’s alleged absolute power. We are not prepared to say at this time that, under the present constitution, the legislature may not pass any law regarding the Commission’s budgeting which may result in some diminution of the Commission’s budgetary autonomy. However, Chapter 75-22, Section 17, Laws of Florida, renders the constitutional grant to the Commission of executive power in the area of budgeting totally meaningless. We hold that the statute is an impermissibly broad intrusion upon that grant.

The Constitution assigns to the Commission the executive power of the state with respect to wild animal life and fresh water aquatic life, with the exception of license fee and penalty determination, and provides that “the commission’s exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law.” Such laws cannot, however, be inconsistent with other provisions of this section. Article IV, Section 9, Florida Constitution. Thus, while the legislature may pass laws affecting the Commission’s exercise of its executive budgetary authority, it may not pass laws depriving the Commission of such authority. A statute placing final approval of the Commission’s budget out of the hands of the Commission itself is clearly a deprivation of constitutional authority, rather than merely a “law affecting the Commission’s exercise of its budgetary authority.”

Accordingly, the judgment of the circuit court is affirmed.

It is so ordered.

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


text:
    Johnny Paul WITT, Appellant, v. STATE of Florida, Appellee.
    No. 45796.
    Supreme Court of Florida.
    Feb. 3, 1977.

      Peter P. Behuniak, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky and Stephen W. Metz, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This is a direct appeal from a conviction for murder in the first degree and imposition of the death sentence. We have jurisdiction.

Appellant contends his conviction was erroneous (1) because of improper exclusion of prospective jurors, (2) admission of his confession, and (3) an assertion that our rule on competency is outdated. He further contends the imposition of the death penalty was improper under the facts of this case. We affirm the judgment of conviction and the imposition of the death sentence.

On October 20, 1973, the victim of this crime, an eleven-year-old boy, was reported missing by his parents. The circumstances leading up to the boy's death reflect that appellant Johnny Paul Witt and Gary L. Tillman lay in waiting near a road which formed a route between a housing area and nearby convenience store. Witt confessed that Tillman attacked the boy as he came by, striking him on the head with a star bit. With the boy struggling against them, Witt and Tillman wrestled him to the ground and bound and gagged him. They then placed him into their car trunk and drove to a secluded area. On arrival they discovered the boy was dead. They both apparently committed sexual acts upon his body, and appellant mutilated the boy’s body with a knife and left it buried in a shallow grave. An autopsy revealed the boy was strangled to death by the gag. Eight days later the wife of appellant contacted the sheriff’s department, informing it that her husband and another man had killed the boy. Appellant Witt was arrested, and two days later confessed to participation with Tillman in the boy’s murder.

Appellant Witt was tried by a jury and was convicted of first degree murder. The jury recommended the death sentence, and the trial judge, who later sentenced his codefendant to life imprisonment in return for the codefendant’s tender of a plea of guilty, followed the recommendation and imposed the death sentence.

Appellant Witt contends it was error to exclude for cause prospective jurors who held objections to capital punishment. During voir dire the trial court excluded six prospective jurors who stated they could not return an advisory sentence of death upon the weighing of extenuating and mitigating factors of the crime as required by Section 921.141(2), Florida Statutes, or stated they could not judge the guilt or innocence of the accused without the possible imposition of the death penalty interfering with that determination. It is proper to exclude prospective jurors who “state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt. . [or] who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them.” Witherspoon v. Illinois, 391 U.S. 510, 513-14, 88 S.Ct. 1770, 1772, 20 L.Ed.2d 776 (1968) (footnote omitted). The statements of the jurors in the instant case constitutionally warranted their exclusion. See, e. g., Portee v. State, 253 So.2d 866 (Fla.1971).

Appellant next asserts his confession, which was made subsequent to his request for counsel, should have been suppressed for failure of the State to provide proper representation. We disagree. The confession was not coerced, and the appellant voluntarily executed written waiver of counsel prior to making the subject confession.

The record reflects appellant was fully advised of his rights and requested counsel following his arrest on November 5, 1973. Questioning stopped and the sheriff’s department communicated his request to the public defender’s office. On November 6, 1973, appellant made his first appearance before a judicial officer with counsel. He contends, however, that he had no opportunity to consult such counsel at the appearance. On November 7, 1973, at 9:30 a. m., he indicated a desire to confess while conversing with a detective in appellant’s cell. The conversation was casual, with just one detective, and of no more than a few minutes’ duration. Appellant then was taken out of the cell and upstairs to the sheriff’s offices where he confessed orally and in a hand-written, thirteen-page account of the crime. Later in the day he drew a map to indicate the location of the corpse. It is uncontroverted that prior to this confession he was fully advised of his constitutional rights, specifically rejected an offer to consult counsel, and signed a written waiver thereof.

The sole issue is the voluntariness of the confession. The requirements of Miranda are prescribed to ensure voluntariness. The facts in this case are not in dispute as it concerns the written and oral confessions and how they were obtained.

We agree that right to counsel is among the most important criminal due process rights but that does not mean it cannot be voluntarily waived. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the accused had exercised his right to remain silent during station-house interrogation with respect to the charge of robbery for which he had been arrested. Two hours later he waived his right to remain silent and his right to consult counsel after, renewed Miranda warnings when questioned by a different officer on a separate and unrelated murder charge. During the later questioning he implicated himself in the murder, and his incriminating statement was entered, into evidence at the trial in which he was convicted. He objected to use of the statement, contending .his initial assertion of his right to silence barred its use. The United States Supreme Court held he had voluntarily waived his right to remain silent.

We recognize the majority opinion in Mosley indicates that Miranda places a strict limitation on police interrogation when the right to remain silent and request for counsel is exercised. In the instant case we feel, as did the majority in Mosley, the circumstances indicate appellant’s “ ‘right to cut off questioning’ was ‘scrupulously honored.’ ” The law does accord him the opportunity to voluntarily change his mind and confess. Michigan v. Mosley, supra, 423 U.S. 107-111, 96 S.Ct. 321, 326 (concurring opinion).

We hold the heavy burden of demonstrating that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel, and then voluntarily confessed, was met under the circumstances in this case. No contention has been made of coercive or overbearing State conduct.

Appellant lastly argues the application of our test for competency to his case is outdated, and a test should be established more in tune to modern psychiatry. The evidence presented in this cause reflects the appellant was properly found competent at the time of the offense. We reject the “irresistible impulse” doctrine asserted by the appellant. See Anderson v. State, 276 So.2d 17 (Fla.1973); Van Eaton v. State, 205 So.2d 298 (Fla.1967); Piccott v. State, 116 So.2d 626 (Fla.1959).

Our final and most difficult responsibility is to review the imposition of the death penalty and determine if it may be properly imposed in this case. Subsequent to appellant Witt being sentenced to death in February, 1974, the codefendant Gary Tillman on May 6, 1974, entered and had accepted by the same trial court, in a separate trial, a plea of guilty conditioned upon life imprisonment. The plea agreement was presented by the public defender and the state’s attorney, and agreed to by defendant Tillman after extensive inquiry by the trial judge. The case was appealed to the Second District Court of Appeal on other grounds and affirmed per curiam. Tillman v. State, 304 So.2d 161 (Fla.2d DCA 1974).

Under these circumstances we cannot judicially ignore the discretionary inconsistency in the life sentence given appellant’s codefendant Tillman in his severed proceeding. The trial judge agreed to sentence Tillman to life imprisonment in exchange for Tillman’s plea of guilty following a determination of competency to stand trial, yet the facts in this case on their face appear to justify the imposition of the death sentence for both the appellant and the codefendant.

After carefully reviewing the records of the two proceedings, we hold the facts and circumstances support the imposition of the death penalty on the appellant Witt and a life sentence for Tillman. Testimony of five psychiatrists who examined Tillman indicated Tillman had a severe mental or emotional disturbance and was subject to domination by Witt. Witt’s dominance was enhanced by his age of thirty years, compared to Tillman’s age of eighteen. These factors correspond to the provisions of Section 921.141(6)(b) and (e), Florida Statutes (1975), and constitute sufficient mitigation with respect to Tillman’s participation to justify a life sentence for Tillman and a death sentence for Witt for this otherwise aggravated murder.

Appellant’s conviction and sentence are affirmed.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, ROBERTS (Retired), and DREW (Retired), JJ., concur.

      . Art. V, § 3(b)(1), Fla.Const.

      . Id. at 104, 96 S.Ct. at 326.


author: SUNDBERG, Judge.

text:
    Oscar Milton MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 47343.
    Supreme Court of Florida.
    Feb. 3, 1977.
    David J. Busch, Asst. Public Defender, and Ted Mack, Sp. Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.
   SUNDBERG, Judge.

Petitioner seeks certiorari review of the decision of the District Court of Appeal, First District, which affirmed his conviction of third degree murder. We have jurisdiction of this cause under Article V, Section 3(b)(3), Florida Constitution, because the decision of the District Court, reported at 310 So.2d 747, conflicts with Appell v. State, 250 So.2d 318 (Fla. 4th DCA 1971), Elmore v. State, 291 So.2d 617 (Fla. 4th DCA 1974), and Herman v. State, 275 So.2d 264 (Fla. 4th DCA 1973).

On October 12, 1973, petitioner Martin was charged by information with second degree murder. This charge arose from the shooting death of one William Peck. At the close of the evidence at petitioner’s trial, petitioner’s attorney requested an instruction on aggravated assault as a lesser included offense of second degree murder. The court refused to give this instruction, and defense counsel duly objected. Martin was convicted of murder in the third degree. The District Court affirmed on appeal, and that decision is the subject of this review.

Petitioner asserts that under Rule 3.490, Fla.R.Crim.P., and Brown v. State, 206 So.2d 377 (Fla.1968) [hereinafter Brown I], the jury should have been instructed on aggravated assault as a lesser included offense of second degree murder. In Brown I, Justice Thornal enumerated the four categories of lesser included offenses. Category four, which the parties agree is the relevant category in this cause, includes offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence adduced at trial. If the accusation (allegata) contains the necessary elements of a specific lesser included offense, and these elements are supported by the evidence (probata), then the jury should be instructed on that offense. Id. at 383.

Both petitioner and respondent dedicate substantial portions of their briefs to argument regarding the sufficiency of the alle-gata and probata needed to support an instruction on aggravated assault. However, a careful reading of our decision in Brown v. State, 245 So.2d 68 (Fla.1971) [hereinafter Brown II] obviates such discussion. In this case, it is specifically held that in cases involving homicide, proper jury instructions are limited to those charges involving lawful and unlawful homicide. In reaching this decision, the Court quoted Sadler v. State, 222 So.2d 797, 799-800 (Fla. 2d DCA 1969), in part as follows:

“ ‘The trial judge did appropriately instruct the jury as to all degrees of murder, manslaughter, justifiable homicide, and excusable homicide, all having to do with the death of the victim.
******
“ ‘What we have here was either unlawful homicide or lawful homicide. The death of a human being at the hands of defendant Sadler was concededly involved. If defendant’s contention as to “lesser included offenses” is sound, then the trial Judge would have been required, upon request, to run down the gamut of the criminal lexicon to minor petty offenses such as disorderly conduct or disturbing the peace. This was a death case, not an assault case. We hold there is no merit to this point.’ ” (emphasis in the original) 245 So.2d at 75.

The above rationale, which was enunciated in the Sadler case, adopted by this Court in Brown II, and followed by the First District in the case sub judice, is eminently sensible. While aggravated assault may technically qualify as a category four lesser included offense of murder, no rational purpose is served by instructing on aggravated assault. We have in the past denounced the practice in which a trial judge unilaterally determines that there is such overwhelming evidence to convict on the crime charged, that he refuses to instruct the jury on a lesser offense. State v. Terry, 336 So.2d 65 (Fla.1976). As pointed out in Hand v. State, 199 So.2d 100, 102 (Fla.1967):

“In our opinion such judicial determination at trial level obviously takes a most critical evidentiary matter from the proper province of the jury and vests it improperly as a matter of law with the trial judge.”

However, in cases such as that under review the trial judge need not worry about invading the province of the jury if he restricts his instructions to those involving lawful and unlawful homicide. As pointed out by the District Court, “What we have here is the death of a human being which was either unlawful homicide or lawful homicide.” The death of the victim is not in issue; it is an incontrovertible fact. The jury’s duty is to ascertain whether the defendant caused the victim’s death, and, if so, whether the homicide was justifiable or unjustifiable. If the jury finds that an unlawful homicide has occurred, they must then determine what degree of murder or manslaughter is involved. Whether an aggravated assault occurred as part of a crime that culminated in the death of the victim is patently immaterial. The folly involved in making this determination is evidenced by the parties’ briefs in this cause. Petitioner argues that there is sufficient allegata and probata to support an aggravated assault instruction. Respondent counters that since there was no allegation or proof that the victim had a well-founded fear that violence was imminent, no instruction on assault is proper. This Court must question what possible relevancy there is in determining whether or not a victim was “put in fear” before he was shot to death. It is most certainly of no concern to the victim. In essence, the parties are arguing that if it can be shown that the defendant killed his victim after putting him in fear of violence, he may be convicted of a crime of a lesser degree than if it is shown that he killed his victim without first putting him in fear. There is obviously no rational basis for this argument.

In light of the above discussion, we hold that where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide. This is in accord with our previous decision in Brown II. To the extent that Appell, Elmore, and Herman, supra, conflict with this decision, they are overruled.

The judgment of the District Court of Appeal, First District, is approved, and the writ of certiorari is discharged.

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

HATCHETT, J., dissents.


author: BOYD, Justice.

text:
    STERLING DRUG, INC., etc., Petitioner, v. Francis E. WRIGHT, Respondent.
    No. 48603.
    Supreme Court of Florida.
    Feb. 3, 1977.
    Rehearing Denied April 12, 1977.

      Robert F. Nunez, St. Petersburg, and Henry P. Trawick, Jr., Sarasota, for petitioner.
    William F. Blews of Blews & Everhart, St. Petersburg, for respondent.
    John R. Bush of MacFarlane, Ferguson, Allison & Kelly, Tampa, for The Prentice-Hall Corp. System, Inc., amicus curiae.
   BOYD, Justice.

Francis Wright filed a complaint for damages against Sterling Drug, Inc., alleging that the corporation manufactured a drug which caused her blindness. Because the corporation has its main office in New York it has designated Prentice-Hall Corporation System as its resident agent in Florida. John Buchanan is the agent of Prentice-Hall who, at the time Wright’s complaint weis filed, initially received service of process on foreign corporations for whom Prentice-Hall was resident agent. Wright’s complaint and a summons were delivered to Buchanan, but due to a clerical error Prentice-Hall’s main office did not receive them and as a result Sterling did not receive personal notice of process and did not answer the complaint or appear.

On December 19, 1972, a default was entered against Sterling. The default was reduced to judgment and final judgment was entered, pursuant to jury verdict, in the sum of $500,000. As soon as Sterling received notice of the judgment it moved to vacate. After further litigation before the Circuit Court and the District Court of Appeal, Second District, the trial court granted Sterling’s amepded motion to vacate the default because Sterling had not been personally notified of the suit prior to entry of the final judgment and because the failure to transmit the process to Sterling was excusable, since it was due to the mistake of an employee of Prentice-Hall.

In its decision reported at 321 So.2d 460, the District Court of Appeal, Second District, reversed relying on Barnett Bank of Clearwater v. Folsom, 306 So.2d 186 (Fla. 2d DCA 1975). In Folsom the Court held that, if substitute service of process is made under Section 48.031, Florida Statutes (1973), a default judgment may not be set aside because of a showing that actual notice was not received by the defendant. The court reasoned from Folsom that personal notice to a foreign corporation would not be required if the resident agent is notified of the litigation. We have jurisdiction because of conflict with North Shore Hospital Inc. v. Barber, 143 So.2d 849 (Fla. 1962).

The District Court in its opinion stated the following:

“We have, as we should, carefully examined the order appealed in this case and we reach the conclusion that the said order is grounded on the failure of the resident agent, Prentice-Hall, to notify appellee, and that appellee was not personally notified of the pendency of the action against it.” 321 So.2d at 462.

However, as the court recognized earlier in its opinion, the motion was also granted because of the finding expressed in the order that,

“The failure to transmit the suit papers to Sterling Drugs, Inc., was not due to any fault of the Defendant, Sterling Drugs, Inc., but was due to a mistake among the employees of Prentice-Hall Corporation Systems, Inc., the service-of-process agent of Sterling Drugs, Inc.” 321 So.2d at 461.

In restricting the foundation of its decision to an analysis of the effect of lack of personal notice, the court failed to consider that the order might have been properly granted on the ground of “excusable neglect.”

In North Shore Hospital, supra, this Court stated:

“In Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9, and Coggin v. Morris, 150 Fla. 555, 8 So.2d 11, which were by implication relied on by the District Court as well as in Benedict v. W. T. Hadlow Co., 52 Fla. 188, 42 So. 239, this court held that a showing of gross abuse of a trial court’s discretion is necessary on appeal to justify reversal of the lower court’s ruling on a motion to vacate.” 143 So.2d at 852.

The Circuit Court in this case did not commit an abuse of discretion in vacating the default. It found excusable neglect to have been the cause of Sterling’s failure to answer and appear and was further persuaded by the size of the judgment and the defendant’s diligence in moving to vacate the default. Since there was no abuse of discretion by the trial court, its order should not have been disturbed.

The opinion of the District Court of Appeal, Second District, is quashed and the cause remanded for proceedings consistent with this opinion.

It is so ordered.

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

      . Art. V, § 3(b)(3), Fla.Const.


text:
    STATE of Florida, Petitioner, v. William R. OMASTA, Jr., Respondent.
    No. 48949.
    Supreme Court of Florida.
    Feb. 3, 1977.
    Robert L. Shevin, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., for petitioner.
    Sondra Goldenfarb of Joseph G. Donahey, Jr., Clearwater, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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

BOYD, SUNDBERG and HATCHETT, JJ., dissent.