author: HATCHETT, Justice.

text:
    Fred FULTON, Petitioner, v. STATE of Florida, Respondent.
    No. 48090.
    Supreme Court of Florida.
    July 8, 1976.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., for respondent.
   HATCHETT, Justice.

Petitioner has been convicted of second degree murder and sentenced to life imprisonment. The case is here on petition for writ of certiorari to the District Court of Appeal, Fourth District. The decision under review, affirming the conviction, conflicts with this Court’s decision in Jordan v. State, 107 Fla. 333, 144 So. 669 (1932). Our jurisdiction is predicated upon Article V, § 3(b)(3) of the Florida Constitution (1975).

The evidence at trial indicated that petitioner and Louise Fuller lived together some twenty years before separating in 1971. After the separation, petitioner continued to see Ms. Fuller and their eight children. Over petitioner’s objection, one M. C. Banks became a regular visitor at the Fuller residence. On January 20, 1974, M. C. Banks was sitting in his car in front of the Fuller house, conversing with Ms. Fuller through an open window, when petitioner drove up. Accounts of ensuing events are conflicting. According to Ms. Fuller, petitioner got out of his car with a gun in one hand and a beer in the other, approached Banks, who was also armed, and said, “You son-of-a-bitch, didn’t I tell you not to be caught hanging around here ?” Ms. Fuller testified that she grabbed the petitioner and told him to let Banks go, but a gun battle between the two men broke out. Banks later died of gunshot wounds.

Shortly after the shooting, petitioner turned himself in. He claimed that he was unarmed when he first approached Banks’ car, that he saw the gun between Banks’ legs, and heard Louise Fuller tell him to run. According to petitioner, Banks picked up his gun at this point and fired. Petitioner testified that only then did he crawl back to his own car and get his gun from the glove compartment.

At trial the petitioner relied on self-defense. Ulysses Bartee, Jr., a defense witness, testified that the victim Banks had a violent reputation in the community. On cross-examination, the prosecutor brought out, over objection, that Bartee was charged with second degree murder (an entirely unrelated offense). On appeal, the District Court of Appeal, Fourth District, affirmed, Judge Downey dissenting. Fulton v. State, 318 So.2d 511 (Fla.App. 4th 1975). The majority concluded that allowing the State to cross-examine a defense witness concerning pending criminal charges was, at most, harmless error. We granted petition for writ of certiorari, and dispensed with oral argument.

The great weight of authority is to the effect that evidence of pending charges against a witness is inadmissible for impeachment purposes. See, e. g., United States v. Alvarado, 519 F.2d 1133, 1135 (5th Cir. 1975); Truman v. Wainwright, 514 F.2d 150, 152 (5th Cir. 1975); United States v. Madden, 482 F.2d 850 (8th Cir.), cert. denied, 414 U.S. 1026, 94 S.Ct. 453, 38 L.Ed.2d 318 (1973); Hudson v. United States, 387 F.2d 331, 332 (5th Cir. 1967). (“A witness may not be impeached by showing wrongful conduct or the commission of an offense for which there has been no conviction”); State v. Coxe, 16 N.C.App. 301, 191 S.E.2d 923, 926, cert. denied, 282 N.C. 427, 192 S.E.2d 840 (1972); People v. Smith, 74 Ill.App. 2d 458, 221 N.E.2d 68, 71 (1966). Cf. Gaines v. State, 481 S.W.2d 835 (Tex.Cr. App.1972); Wharton’s Criminal Evidence § 444 (13th ed. 1972); Jones, The Law of Evidence, § 25:14 (1972); 3A Wigmore, Evidence § 980a (6th ed. 1972). Contra, People v. Brown, 34 Mich.App. 45, 190 N.W.2d 701, 703 (1971) (“witness may be questioned about prior arrests and convictions for the purpose of testing credibility”). Cf. State v. Torres, 97 Ariz. 364, 400 P.2d 843 (1965). The majority view re-fleets various considerations. The admission of such evidence might unduly prejudice a jury against the witness; an unproven charge does not logically tend to affect a witness’ credibility; and a person is presumed innocent until guilt United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), the Court recognized the basic irrelevance of such evidence:

Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness. Id. at 482, 69 S.Ct. at 222.

This Court in Jordan v. State, 107 Fla. 333, 144 So. 669 (1932) stated the Florida view, as follows:

It is only permitted to interrogate witnesses as to previous convictions, not mere former arrests or accusations, for crime.
107 Fla. at 335, 144 So. at 670 (emphasis added).

Under the principle inclusio unius exclusio alterius, Section 90.08, Florida Statutes, buttresses the conclusion reached in Jordan v. State, supra, because the statute speaks exclusively in terms of “convictions.”

The State contends that the issue should be left to the “sound discretion” of the trial court, citing Wallace v. State, 41 Fla. 547, 26 So. 713 (1899) and Dennis v. State, 214 So.2d 661 (Fla.App. 3rd 1968). See also State v. Ralls, 213 Kan. 249, 515 P.2d 1205; State v. Hozer, 19 N.J. 301, 116 A.2d 193, 199 (1955). In Wallace this Court stated:

[Cjross-examination of a witness as to indictments or charges before conviction against him, of criminal offenses, is a matter of discretion in the trial court, not subject to review on writ of error or appeal, unless the discretion is abused. 41 Fla. at 556, 26 So. at 719.

Only a very narrow discretion was contemplated by the Wallace Court, however. The Court went on to say:

Inquiry into collateral matters should not be permitted, unless there is reason to believe it may tend to promote the ends of justice, and it seems essential to the true estimation of the witnessf testimony by the jury.”
Id. at 576, 26 So. at 722. (emphasis supplied).

The Wallace case indicates that the ban against interrogation of a witness as to pending charges is the general rule, although not an absolute one; it does not confer authority on the trial court to disregard the ban at will.

The prohibition against evidence as to charges pending against a witness does not apply, for example, where the pending charges arise out of the same episode giving rise to the charges on which the defendant is being tried. See, e. g.; Herzig v. State, 213 So.2d 900 (Fla.App. 4th 1968). When a prosecution witness is under criminal charges at the time he testifies, the defense is entitled to bring this fact out.

[I]t is clear that if a witness for the State were presently or recently under actual or threatened criminal charges or investigation leading to such criminal charges, a person against whom such witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination . Morrell v. State, 297 So.2d 579, 580 (Fla. App. 2nd 1974).

See also Lee v. State, 318 So.2d 431 (Fla. App. 4th 1975). Similarly the Court in Alford v. United States, 282 U.S. 687, 51 S. Ct. 218, 75 L.Ed. 624 (1931), stated:

Even if the witness were charged with some other offense by the prosecuting authorities, petitioner was entitled to show by cross examination that [the witness’] testimony was affected by fear or favor growing out of his detention. Id. at 693, 51 S.Ct. at 220.

In Moore v. State, 308 So.2d 563 (Fla.App. 2nd 1975), the court permitted the State to question defense witnesses regarding their presence in jail in order to identify the place and time where the witnesses learned of the facts of which they were testifying. See Alford, supra.

In the present case, the State apparently offered evidence of the charges pending against the witness in an effort to show general bias. A defense witness’ supposed bias, attributable to charges concerning a totally distinct offense, is not a proper subject for impeachment. Cf. Williams v. State, 110 So.2d 654 (Fla.1959); Watson v. Campbell, 55 So.2d 540, 541 (Fla.1951) (“evidence of another and distinct crime committed by defendant, in no way connected by circumstances with the one for which he is being tried, is inadmissible”) ; Whitehead v. State, 279 So.2d 99, 100 (Fla.App. 2nd 1973). The probative value of such inquiry is outweighed by the likelihood of prejudice to the accused. The trial court erred in overruling defense objections to testimony concerning a defense witness’ pending criminal charges, since there was no substantial connection between the pending charges and the charges for which the defendant was on trial.

It is also established that “evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness.” Watson v. Campbell, 55 So.2d at 541. See also Nelson v. State, 99 Fla. 1032, 128 So. 1 (1930); Squires v. State, 42 Fla. 251, 27 So. 864 (1900); Roberson v. State, 40 Fla. 509, 24 So. 474 (1898); Williams v. State, 324 So.2d 672 (Fla.App. 4th 1975). When there has been a prior conviction, only the fact of the conviction can be 'brought out, unless the witness denies the conviction. See McArthur v. Cook, 99 So.2d 565 (Fla.1957); Mead v. State, 86 So.2d 773 (Fla.1956). If the witness denies ever having been convicted, or misstates the number of previous convictions, counsel may impeach the witness by producing a record of past convictions. Even if a witness denies a prior conviction, the specific offense is identified only incidentally when the record of the conviction is entered into evidence. Irvin v. State, 324 So.2d 684, 686 n. 1 (Fla.App. 4th 1976); Lockwood v. State, 107 So.2d 770, 773 (Fla.App. 2nd 1958) (“The proof of a prior conviction under Section 90.08, supra, is limited to the record of such conviction. Any description of the crime involved, not shown by such record, is improper.”) See also Mead v. State, 86 So.2d 773, 774 (Fla.1956). If the witness admits the conviction, “the inquiry by his adversary may not be pursued to the point of naming the crime for which he was convicted.” McArthur v. Cook, 99 So.2d at 567.

In the present case the witness did not deny the existence of pending charges, but the prosecutor nevertheless specifically referred, within the jury’s hearing, to the charge of second degree murder, then pending against the witness. No record of the charges pending against the witness was ever produced or admitted into evidence. Reference to the specific charge pending against the witness was clearly improper and the trial court’s overruling of defense objection was error.

We reject the State’s contention that the error was harmless, inasmuch as Bartee’s testimony went to the heart of petitioner’s claim of self-defense. Banks’ reputation for violence, to which Bartee testified, tended to corroborate petitioner’s version of events, viz., that Banks fired first and that the fatal shots were only fired by the petitioner to save his own life. Cf. Williams v. State, 324 So.2d 672 (Fla. App. 4th 1975) (cross-examination as to “various specific arrests and criminal charges” constituted harmful error). There is also the possibility of a “spill-over” effect. The jury’s perception of the defendant might have been colored by the knowledge of a friend’s involvement in a collateral matter. The danger of “guilt by association” is a real one, which ought to be minimimized whenever possible. The fact that the defendant and the witness were each charged with second degree murder, although the crimes were unrelated, enhances the danger of a possible “spill-over” effect. Cf. Williams v. State, 110 So.2d 654 (Fla.1959).

This court in McArthur v. Cook, 99 So. 2d 565 (Fla.1957), in reversing the defendant’s conviction stated:

[If the witness] had been sufficiently discredited ... in the minds of the jurors, the ultimate result of the case could have been entirely different. We do not say that it would or should have been different; we merely hold that if the correct rule of evidence had been applied, it could have been.

Id. at 568 (emphasis added).

Here, too, the verdict might reasonably have been affected by the improper discrediting of a defense witness’ testimony. We adopt the view expressed by Judge Downey in his dissent in the present case:

While of course it is possible that the improper testimony adduced to impeach the witness in question was harmless, I am unable to reach that conclusion with sufficient certitude to let stand a conviction of the highest charge contained in the information and a sentence of life imprisonment. Cf. Pitts v. State, Fla. App.1975, 315 So.2d 531 (Second District). We really cannot say that had this testimony not been adduced the jury would not have found appellant guilty of one of the lesser included offenses
Fulton v. State, 318 So.2d 511, 513 (Fla. App. 4th 1975).

Accordingly the decision below is quashed with directions for a new trial.

OVERTON, C. J., and ROBERTS, ADKINS and BOYD, JJT., concur.

      . Q. Isn’t it a fact that you have been charged by the State of Florida—
      MR. RODERMAN: I object, your Hon- or. That is totally irrelevant. I move and ask that the jury be taken out.
      THE COURT: Overruled. I think it goes to the credibility. Your motion is denied to have the jury removed. You may answer the question, sir.
      THE WITNESS: Yes.
      Q. (By Mr. Garrett) What charge are you charged with by the State of Florida?
      MR. RODERMAN: I object again, your Honor. I believe it’s outside the scope of direct examination.
      It’s irrelevant and immaterial, and it doesn’t go to his testimony whatsoever.
      THE COURT: I think it may go to the credibility of the witness. Overruled.
      THE WITNESS: Do you want me to answer the question ?
      Q. (By Mr. Garrett) Yes. What charge are you charged with?
      A. I have been charged so many times, so many different things about this case. I don’t know what they have got me charged with now.
      Q. Let me refresh your recollection. Weren’t you, in fact, scheduled for trial today on a charge of murder in the second degree?
      A. Yes.
      Q. Now, you have professed your innocence in that; is that correct?
      A. Yes, sir.
      Q. Now, you are telling us that you have no prejudice against law officials, or the State of Florida, at this point when you are testifying, even though you assume that they are falsely charging you?
      A. Yes, I have none whatsoever.
      (T. 260-262).

      . In relevant part, § 90.08, Fla.Stat. (1975) provides:
      Evidence of such convictions, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility of the said witness, and such conviction may be proved by questioning the proposed witness or, if he deny it, by producing a record of his conviction. Testimony of the general reputation of said witness may likewise be given in evidence to affect his credibility.

      . In Irvin v. State, 324 So.2d 684 (Fla.App. 4th 1976), the failure to produce such a record and enter it into evidence resulted in reversal of the conviction. The District Court concluded that the defendant was “improperly and harmfully prejudiced,” Id. at 687.


source: Caselaw Access Project

author: SUNDBERG, Justice.

license: Public Domain

text:
    Steven Henry ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 46468.
    Supreme Court of Florida.
    July 8, 1976.

      Phillip A. Hubbart, Public Defender, and Mark King Leban, Elliot H. Scherker and Bennett H. Brummer, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   SUNDBERG, Justice.

This case is before us on appeal from the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution, in that the trial court initially and directly passed upon the validity of Section 39.02(5) (c), Florida Statutes.

Appellant, a 15-year-old boy, was tried as an adult and convicted of rape in the Circuit Court in and for Dade County. The trial court sentenced him to a 30-year prison term.

Appellant was arrested on February 22, 1974, and was taken to Youth Hall. On that day, after being advised repeatedly of his Miranda rights, he confessed to having committed the aforementioned offense. On March 21, 1974, he was indicted by a grand jury as an adult pursuant to Section 39.02(5) (c), Florida Statutes, which provides as follows:

“A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set out in § 39.06(7) unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult. No adjudicatory hearing shall be held within 14 days from the date that the child is taken into custody unless the state attorney advises the court in writing that he does not intend to present the case to the grand jury or that he has presented it to the grand jury but that the grand jury has declined to return an indictment. Should the court receive such a notice from the state attorney, or should the grand jury fail to act within the 14-day period, the court may proceed as otherwise required by law.”

Motions for disclosure of grand jury proceedings and to dismiss grand jury indictments predicated on the unconstitutionality of 39.02(4) (c) (sic) were denied by the court.

At trial Roberts pleaded not guilty by reason of insanity. Several expert witnesses testified on the matter of defendant’s sanity at the time he committed the rape, and opinion was sharply divided on this issue. Defense counsel requested a jury instruction describing the consequences of a verdict of not guilty by reason of insanity. The trial judge refused to so instruct. In the course of defense counsel’s closing argument to the jury, the following colloquy occurred:

“MR. AARON: I ask you to find the defendant not guilty by reason of insanity because that’s what the evidence shows, and then, he will be ordered treated in an institution.
“MR. McGUIRK [prosecutor]: Now, I object to that. As a matter of fact we might as well have a sidebar.
“THE COURT: No. Sustained.”

At the conclusion of the jury charge, another exchange transpired:

“MR. AARON: May it please the Court, prior to the jury retiring, I am compelled by law to reserve my right to appeal about not giving the instruction about treatment for the defendant in the event he is found not guilty by reason of insanity.
“MR. McGUIRK: I would, therefore, ask that the Court now instruct the jury that the Court has no control over whether the defendant walks free when something like that occurs.
“MR. AARON: That’s absolutely incorrect.
“THE COURT: The instructions have been given to the jury. Your objection is noted, and the jury will go into the jury room to deliberate.
“(Thereupon the jury left the courtroom to deliberate their verdict at 4:10 p. m.)”

At a sentencing hearing held October 8, 1974, defense counsel presented to the court extensive testimony dealing with appellant’s mental problems. These expert witnesses provided evidence tending to show that Roberts needs psychotherapeutic treatment which cannot be provided in the state prison system. The trial judge disagreed with the contention of appellant’s counsel that the court possessed authority to place the defendant on probation and, pursuant to Section 775.082(3) (a), Florida Statutes, sentenced him to the 30-year term noted above.

In seeking reversal of the judgment below, Roberts has on this appeal raised five issues. The constitutional issue which vests jurisdiction in this Court, i.e., validity of 39.02(5) (c), Florida Statutes, has been disposed of by our decision in Johnson v. State, 314 So.2d 573 (Fla.1975). Of the remaining issues raised by appellee, the only contentions which we find to require discussion are the trial court’s refusal to instruct the jury on the consequences in this State of a verdict of not guilty by reason of insanity and its apparent failure to consider probation or other means of sentencing as an alternative to a mandatory sentence of 30 years in prison.

We agree that the failure to instruct on the consequences of a verdict of not guilty by reason of insanity constitutes error and reverse appellant’s conviction.

The consequences of such a verdict are described in Rule 3.460, Fla.R.Cr.P.:

“Acquittal for Cause of Insanity
“When a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to be cared for as an insane person and such person shall be held in custody until released by order of the committing court, or may give him into the care of his friends, on their giving satisfactory security for the proper care and protection of such person; otherwise he shall be discharged.”

McClure v. State, 104 So.2d 601 (Fla.App. 3rd 1958), held that, while the trial court may instruct the jury as to those consequences, a refusal to do so does not constitute error.

The facts of the instant case provide a compelling argument for modification of the position taken in McClure. The jury was instructed as to the possibility that the defendant might be given probation or parole following a guilty verdict. Yet they must have been left wondering as to the consequences of a verdict of not guilty by reason of insanity. The efforts by counsel for both sides to supply partially accurate information as to those consequences must have served further to confuse the jury. The trial judge should have reduced this confusion by charging the jury in the manner requested by appellant’s trial counsel.

But we decline to limit our holding to the facts of this case. In so doing we expressly adopt the so-called “Lyles rule,” which is followed in an increasing number of state jurisdictions. In Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), appellant was indicted for robbery, grand larceny and unauthorized use of a motor vehicle, and he relied on a defense of insanity. After dismissal of the grand larceny charge by the prosecution, the jury returned a verdict of guilty on the other two counts. On appeal, the United States Circuit Court of Appeal for the District of Columbia Circuit had to consider the propriety of this charge given by the trial judge:

“If a defendant is found not guilty on the ground of insanity, it then becomes the duty of the Court to commit him to St. Elizabeths Hospital, and this the Court would do. The defendant then would remain at St. Elizabeths Hospital until he is cured and it is deemed safe to release him; and when that time arrives he will be released and will suffer no further consequences from this offense.”

In an opinion co-authored by the present Chief Justice of the United States, the Circuit Court of Appeal took the position urged by appellant’s counsel in the case at bar:

“This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reasons of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. ... It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.”
* * * * * *
“Sometimes a defendant may not want such an instruction given. If that appears affirmatively on the record we would not regard failure to give it as grounds for reversal. Otherwise, whenever hereafter the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity in accordance with the view expressed in this opinion.” (footnote omitted)

The court went on to say that, while the language used by the trial judge in charging the jury on this matter was “not as precise as it might have been in stating the content of the statute,” it did not “require or justify” a reversal.

We think the Lyles decision makes eminent good sense and are supported in this view by the appellate courts of other jurisdictions. See, e.g., Commonwealth v. Mutina, — Mass.-, 323 N.E.2d 294 (1975); People v. Cole, 382 Mich. 695, 172 N.W.2d 354 (1969); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964). The State argues that to inform the jury of the consequences of its verdict would tend to draw the attention of jurors away from their chief function as triers of fact and would lead to compromised verdicts. This argument loses much of its force when it is realized that Rule 3.390(a), Fla.R.Cr.P., states:

“The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.”

But see Johnson v. State, 308 So.2d 38 (Fla.1975). If letting jurors know the consequences of their guilty verdicts does not lead to an impermissible focus upon the results of their finding rather than on the finding itself, how can it be said that knowledge of the consequences of an acquittal by reason of insanity will have this undesirable effect? As in the instant case, where the trial judge instructed the jury fully on the possible ramifications of a guilty verdict (including probation and parole), the State would like to have it both ways. Calling the consequences of a not guilty-insanity verdict “procedures” rather than a “penalty” (as did the McClure court) does not change the resulting unfairness to the defendant who has fairly raised the insanity defense. Freed from confusion and wonderment as to the possible practical effect of a verdict of not guilty by reason of insanity, jurors will be able to weigh the evidence relating to the factual existence of legal insanity in an atmosphere untroubled by the distracting thought that such a verdict would allow a dangerous psychopath to roam at large.

Since we reverse on the issue of refusal to give the requested instruction, we need not treat in detail the appellant’s argument that the trial court’s alleged failure to consider probation or other alternative means of sentencing constituted an abuse of its discretion in this area. It is sufficient to note that Section 959.115, Florida Statutes, expressly provides for sentencing alternatives applicable to the instant case. This section, along with the general probation statute, is controlling and so the 30-year prison term for rape established by Section 775.082(3)(a), Florida Statutes, is not a “mandatory minimum” sentence in the sense for which the State contends. If on retrial Roberts is found guilty — a subject about which we express no opinion — the trial court should consider the alternatives posed by Section 959.115 as well as the sentencing provisions of Section 775.082(3) (a) in determining appellant’s future.

Accordingly, the judgment of the circuit court is reversed and the case remanded for a new trial at which the court will give the instruction requested by the appellant.

It is so ordered.

ADKINS, BOYD, ENGLAND and HATCHETT, JJ., concur.

OVERTON, C. J„ and ROBERTS, J., dissent.

      . In his brief on this appeal counsel for appellant erroneously refers to the statute in question as § 39.02(4) (c).

      . At time of trial, this subsection was numbered (4) (a) ; the renumbering was effected by passage of Chapter 74-383, Laws of Florida.

      . “Probation or commitment of minors by courts other than circuit courts

      “(1) A minor found guilty of an offense in a court not exercising juvenile jurisdiction may, as an alternative to other dispositions, be committed to the department for treatment in a youth program outside the correctional system as defined in section 944.02, Florida Statutes, or be placed on probation to the department, if the department is willing and if the offense is a felony or a misdemeanor of the first degree as defined in chapter 775.
      “(2) Upon a plea of guilty or a finding of guilt, the court may refer the case to the department for investigation and recommendation as to the amenability of the minor to treatment in its programs.
      “(3) In order to utilize this section, the court shall stay and withhold adjudication of guilt and instead shall adjudge the defendant to be delinquent. Such adjudication shall not be deemed a conviction, nor shall it operate to impose any of the civil disabilities ordinarily resulting from a conviction.
      “(4) The court shall have the power by order to:
      (a) Place the minor on probation to the Department of Health and Rehabilitative Services for an indeterminate period of time until the minor is * twenty-one or until sooner discharged by order of the Court.
      (b) Commit the minor to the Department of Health and Rehabilitative Services for treatment in a youth program for an indeterminate period of time until the minor is * twenty-one or until sooner discharged by the department.
      “(5) (a) If a minor proves not to be amenable to treatment under the provisions of subsection (4) (a), the court shall have the power to commit the minor to the department as described in subsection (4) (b).
      (b) If a minor proves not to be amenable to treatment under the provisions of subsection (4) (b), the court shall have the power to revoke the adjudication of delinquency, impose the withheld adjudication of guilt, and impose any sentence which it may lawfully impose, giving credit for all time in the department. “ *Note-Ch. 73-21, Laws of Florida, removed the disability of nonage for persons 18 years of age and older.”

      . Fla.Stat. § 948.01.


author: MILLS, Judge.

text:
    AUTO SPECIALTIES MANUFACTURING COMPANY and the Travelers Insurance Company, Appellants (Defendants), v. Roy BOUTWELL and Geraldine Boutwell, Appellees (Plaintiffs).
    No. Y-330.
    District Court of Appeal of Florida, First District.
    June 25, 1976.
    Rehearing Denied Aug. 9, 1976.

      John M. Green, Jr., of Green, Simmons, Green & Hightower, Ocala, for appellants.
    Eric E. Wagner, Ocala, for appellees.
   MILLS, Judge.

The Boutwells filed a complaint alleging negligence on the part of Auto Specialties in the manufacture, design and sale of a hydraulic jack which exploded, causing injury to Boutwell. Auto Specialties denied negligence, and affirmatively alleged comparative negligence and assumption of the risk on the part of Boutwell. A jury returned its verdict in favor of the Boutwells, and Auto Specialties appeals from the adverse judgment.

Auto Specialties contends that the trial court erred in allowing the Boutwells to adduce evidence of the occurrence of prior accidents in which similar hydraulic jacks manufactured by it exploded, and erred in giving the jury an instruction on the doctrine of res ipsa loquitur. The Boutwells contend that the trial court erred in granting Auto Specialties’ motion for a directed verdict on their claim for punitive damages.

The character of negligence necessary to sustain an award of punitive damages must be of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.” Cannon v. State, 91 Fla. 214, 107 So. 360 (1926).

The evidence in this case indicates that Auto Specialties was guilty of no more than simple negligence. The court correctly directed a verdict in favor of Auto Specialties on the Boutwells’ claim for punitive damages.

The doctrine of res ipsa loquitur is available in products liability cases. It may be used when (1) the instrumentality involved was within the exclusive control of the defendant at the time of the act of negligence, both as to operation and inspection; (2) the injury was not the result of any voluntary action or contribution on the part of the plaintiff; and (3) the accident ordinarily would not have occurred had the defendant used due care. Holman v. Ford Motor Co., 239 So.2d 40 (Fla.App. 1st, 1970); Yarbrough v. Ball U-Drive System, 48 So.2d 82 (Fla. 1950).

Although the facts in this case were conflicting, the Boutwells were entitled to have the jury instructed on their theory of the case which included the doctrine of res ipsa loquitur. However, the court incorrectly instructed the jury.

The court did not give Florida Standard Jury Instruction 4.6 which is as follows:

“If you find that the circumstances of the occurrence were such that, in the ordinary course of events, it would not have happened in the absence of negligence, that the instrumentality causing an injury was in the exclusive control of the defendant at the time the negligent act or omission, if any, must have occurred and that the instrumentality, after leaving the defendant’s control, was not improperly used or handled by others or subjected to harmful forces or conditions, you may infer that the defendant was negligent unless, taking into consideration all of the evidence in the case, you conclude that the occurrence was not due to any negligence on the part of the defendant.” (Emphasis added).

Instead, the court gave the following instruction :

“If you find that the circumstances of the occurrence was such that in the ordinary course of events it would not have happened in the absence of negligence, design, manufacture, construction or assembly and that the defect causing the injury existed at the time of the negligence, act or omission occurred, and that the instrumentality after leaving the control of Auto Specialties Manufacturing Company was not improperly used or handled by others or subjected to harmful forces or conditions, you may infer that the defendant, Auto Specialties Manufacturing Company was negligent.” (Emphasis added).

The court failed to instruct the jury that for it to infer that Auto Specialties was negligent it had to find that the instrumentality causing the injury to Bout-well was within the exclusive control of Auto Specialties at the time the negligent act or omission, if any, must have occurred. In addition, the court failed to instruct the jury that if, after taking into consideration all of the evidence in the case, it concluded that the occurrence was not due to any negligence on the part of Auto Specialties, it could not infer negligence on the part of Auto Specialties. That part of the instruction given by the court, “design, manufacture, construction or assembly and that the defect causing the injury existed at the time of the negligence, act or omission occurred”, was both legally incorrect and misleading. The court committed prejudical error.

Evidence of the occurrence of prior accidents is admissible only if it pertains to the use of the same type of equipment under substantially similar conditions. Railway Express Agency, Inc. v. Fulmer, 227 So.2d 870 (Fla.1969).

In this case, all of the prior accidents involved jacks of the same model and type, the jacks exploded and tore apart in the same manner as the jack here, and they were caused by load loss and improper use. However, the evidence did not reveal the circumstances surrounding the prior accidents. Also the admission of the evidence raised collateral issues which only confused the issues in an already complicated case. The court erred in admitting the evidence. However, upon retrial, if adequate and proper evidence concerning the circumstances surrounding the prior accidents is adduced, the trial court may reconsider this issue.

The judgment is reversed and this case is remanded for a new trial.

RAWLS, Acting C. J., concurs.

SMITH, T., dissents.


author: McCORD, Acting Chief Judge. MILLS, Judge

text:
    GULF LIFE INSURANCE COMPANY, a Florida Corporation, Appellant, v. S. Perry PENLAND, Appellee.
    No. W-461.
    District Court of Appeal of Florida, First District.
    June 25, 1976.
    Rehearing Denied Aug. 9, 1976.

      William H. Maness, Jacksonville, for appellant.
    Lacy Mahon, Jr., of Mahon, Farley & Vickers, Jacksonville, for appellee.
   McCORD, Acting Chief Judge.

This is an appeal from a final judgment following a jury verdict, the sole issue being whether or not a promissory note given by S. Perry Penland to Gulf Life Insurance Company was usurious. While considerable time has elapsed since oral argument of this case, it is a case in which we have a divided court, and it did not reach the writer of this opinion until June 23, 1976, for the preparation of a majority opinion. Gulf contends that the trial court erred in denying its motion for a directed verdict.

Penland applied to St. Johns River Bank for a loan of $225,000 which he needed to purchase a valuable coin collection which was located in Texas. Claude Spink, the bank’s president, advised Penland that the money was available, but it was clearly understood that the loan would not be made until the lender was satisfied with the coin collection as collateral and had it as security for the loan. Spink stated that he would have to go with Penland to Texas where he would have the collection appraised. Thereafter, if satisfied with the collateral, Penland would execute a promissory note for $225,000, plus interest thereon at 10%, all payable in three years. The bank had arranged for Gulf to make the loan, but this was unknown to Penland at the time.

Penland purchased airline tickets, and he and Spink flew to Texas. Gulf had deposited $225,000 in an account in Penland’s name at the bank, but this was unknown to him. The $225,000 was then transferred by telegram to an account in a Texas bank opened in the name of St. Johns River Bank. In Texas, Spink withdrew $140,000 in cash from the account. That amount was to be the purchase price for the collection. ($65,000 of the remaining $85,000 was to be a finder’s fee which was to be paid by Penland to one Jack Truitt upon completion of the transaction.)

After Spink withdrew the $140,000, Pen-land placed it in an overnight bag and they subsequently joined two individuals who were seated on the front seat of an automobile. The two individuals reportedly were nephews of two old people who owned the coin collection. Penland and Spink entered the automobile and sat on the back seat. One of the individuals asked to see the money and Spink held it up. The individual then pulled it over into the front seat and proceeded to count it into another bag that the individual had with him. Upon completion of the counting, he snapped the bag shut, handed it to Penland on the back seat, and Penland placed the bag in his overnight bag. During the money counting on the front seat, the money had been switched to “play money,” but Penland and Spink did not learn of the switch until late that night. Following conferences with officials of Gulf and in consideration of Gulf’s fore-bearance to sue, Penland, on October 17, 1969, signed the three year note to Gulf Life in the principal sum of $225,000 with interest at 10%. The face of the note carried a notation as follows:

“Plus a FINANCE CHARGE (constituting) an ANNUAL PERCENTAGE RATE OF 10%) $67,500.00.”

$67,500 is interest for three years at 10% per annum on $225,000. The note was backdated to October 6, 1969, the date the money was transferred by the lender to the Texas bank for Penland’s convenience so that it would be available there for his purchase of the coin collection. It was on the day following this transfer that Pen-land received possession of $140,000 of the money and the flim-flam occurred. As to the amount and date of the note, the record shows from Penland’s testimony the following:

“The date is what came to my attention . . . so I asked about the date and he (Spink) or Mr. McCauley, both of then said no, that date had to be like it appeared on this note, as did the $225,000, which was the original amount of the asked for monies so that it would be in continuity . . . with their books and keeping with their books and records . . . that would be to keep the records straight.”

On October 21, 1969, (four days after the note was signed) upon retransfer of the $85,000 from the Texas bank to Gulf, Pen-land was credited with a payment on principal in that amount, which reduced the principal to $140,000.

To purchase the coin collection, it was necessary that Penland have the required $225,000 in cash in Texas, the place where the purchase was to be consummated. It is immaterial that he did not know that Gulf Life was furnishing the money for the loan through St. Johns River Bank. Pen-land obviously knew when he made the trip to Texas with Spink that the money would be available there. The entire $225,000 of the loan for which Penland had applied was transferred to him on the books of the lender and as above stated, was transferred by telegram to a Texas bank on October 6, 1969, for Penland’s use in making the purchase.

Other than the note recitation that it was for the principal amount of $225,000 at 10% interest and the above quoted notation thereon, there is no evidence whatsoever that Gulf ever claimed or sought interest in excess of 10% (the maximum legal rate) on any amount in excess of the $140,000. The evidence is clear that Gulf never intended to charge more than 10% interest per annum on $140,000. Penland, an attorney, upon advice of his attorney, executed the note knowing that it was backdated to the date the money was transferred by telegram to Texas for his use in purchasing the coin collection. Gulf billed Penland annually for the interest though it was not due until the maturity date of the note) and in each instance the amount billed was $14,000, which is 10% of $140,000. Gulf’s books and records and reports filed with the Insurance Department of the State of Florida (as well as with those of other states in which it operates) showed the principal amount of the loan to be $140,000 at 10% interest. This suit was filed by Gulf December 4, 1972, alleging an unpaid principal balance of $140,000 plus interest at the rate of 10% per annum since October 6, 1969. After numerous pleadings and arguments thereon and after a number of Penland’s defenses had been stricken, on December 10, 1973, over a year after the suit had been filed, Penland filed an additional affirmative defense alleging usury.

The Supreme Court in Dixon v. Sharp, Fla., 276 So.2d 817 (1973), in discussing the four requisites of a usurious transaction, pointed out that there must exist a corrupt intent to take more than the legal rate for the use of the money loaned; that “[h]e who alleges usury to avoid or to defeat an obligation to pay money must establish his charge by clear and satisfactory evidence.” The record here not only fails to establish by clear and satisfactory evidence that Gulf had a corrupt intent to take more than the legal rate of interest for the $140,000, but it contains no evidence which supports such corrupt intent. Penland argues that the fact that the note was made for $225,000 rather than $140,000 supports such an intent. In this, Penland overlooks the circumstance that such was obviously done for accounting purposes; that he was given credit on principal for the $85,000 as soon as it was returned from the Texas bank a few days after the execution of the note and that Gulf has not claimed of him interest in excess of 10% on the $140,000. The trial court erred in not granting Gulf’s motion for a directed verdict.

It has occurred to us that usury may not be a defense to this note since the consideration for it was forebearance to sue and no usury appears upon the face of the note. That question has not been raised, and, we, therefore, give it no consideration.

REVERSED.

SMITH, SAMUEL, S., Associate Judge, concurs.

MILLS, J., dissents.

MILLS, Judge

(dissenting) :

The usurious character of a contract must be determined as of the date of its inception, and if usurious at that time, no subsequent transaction will purge it. Coral Gables First National Bank v. Constructors of Florida, 119 So.2d 741 (Fla.App.3d, 1960).

When the lender intentionally does that which results in a contract for usurious interest, an argument by the lender that it is not shown that the lender intended to violate the usury statute is without merit. Curtiss National Bank v. Solomon, 243 So.2d 475 (Fla.App.3d 1971).

It is error for a trial court to direct a verdict unless there is no evidence, nor any reasonable inference which may be drawn from the evidence, which would support a verdict in favor of the party moved against. In passing on a motion for directed verdict, the court must accept as true all of the evidence and reasonable inferences therefrom which tend to support the position of the party moved against. National Bank of Melbourne & Trust Co. v. Batchelor, 266 So.2d 185 (Fla.App.4th, 1972).

The court correctly denied Gulf’s motion for a directed verdict. The note which was executed on 17 October provided that Penland would pay to Gulf, three years from 6 October, $225,000.00 principal plus ten percent interest per year amounting to $67,500.00. This required Penland to pay interest in excess of ten percent because he was required to pay ten percent interest for an eleven day period before he executed the note. In addition, the $85,000.00 which was not used in the transaction should not have been included in the principal of the note. The note should have been for $140,000.00 principal plus ten percent interest per year amounting to $42,000.00 payable three years from 17 October. The usury issue was properly submitted to the jury and the jury resolved this issue against Gulf.

I would have no quarrel with the majority opinion if it had reversed the trial court on the ground that it erred in striking Penland’s defense of lack of consideration. This logically follows the majority’s reasoning, because although there was consideration for the note on 17 October, Gulf’s forebearance to sue, the conflicting facts presented by the record raise the issue of whether there was consideration on 6 October to which the note was back dated. The jury should have determined this disputed issue.

I would affirm the judgment.


text:
    James W. COOK and Dezzie Lee Cook, Appellants (Plaintiffs), v. John Robert MERRIFIELD and Francis E. Merrifield, Appellees (Defendants).
    No. W-493.
    District Court of Appeal of Florida, First District.
    June 25, 1976.
    Rehearing Denied Aug. 9, 1976.
    Dale E. Rice, Crestview, for appellants.
    George Ralph Miller, Andrews & Miller, DeFuniak Springs, for appellees.
   MILLS, Judge.

The Cooks filed a suit against the Mer-rifields seeking to cancel a contract for deed or to foreclose the contract. The Mer-rifields answered the complaint by admitting or denying the material allegations. After a non jury trial, the trial court entered a final order in favor of the Merri-fields, and dismissed the Cook’s complaint with prejudice. The Cooks appealed.

The issue which is determinative of this appeal is whether the contract provided for absolute acceleration.

On 12 February 1967, the Cooks entered into a contract with persons not parties to this suit for the sale of certain real property. On 28 March 1968, those persons assigned their rights in the contract to the Merrifields.

The contract provided that after the Merrifields had made all of the payments and performed all of the covenants in accordance with the contract, the Cooks would convey the property to the Merri-fields by warranty deed. The Merrifields agreed to pay the Cooks $141,250.00 in installments due each year on the first of November. The Merrifields also agreed to pay all taxes and assessments imposed upon the property during the term of the contract. It was agreed that the time of payment would be an essential part of the contract. The contract also contained the following clause:

“. . . In the case of failure of the said parties of the second part to make any of the payments or any part thereof . . this contract shall, at the option of the parties of the first part, be forfeited and terminated, and the parties of the second part shall forfeit all payments made by them on this contract; and such payments shall be retained by the said parties of the first part in full satisfaction and liquidation of all damages by them sustained. . . . Failure to pay any installment herein promptly when due shall cause the entire indebtedness to become immediately due and payable, and the parties of the second part agree, in the event of any default, to pay all costs incident to said collection including a reasonable attorney’s fee.”

The Merrifields were late in making the payment which was due on 1 November 1968, as well as the payment which was due on 1 November 1969. The payment for 1970 was not made until 14 December, after both the Cooks and the Merrifields had retained attorneys. At that time, a letter was sent to the Merrifields warning them that if they were late on anymore of their payments suit would be filed. The payments for 1971 and 1972 were paid on time. The payment for 1973 was not made on time, and when payment was tendered on 27 November, the Cooks filed their complaint requesting the court to cancel the contract and to order the Merrifields to vacate the property or, in the alternative, to foreclose. After hearing testimony, the court dismissed the complaint with prejudice, concluding “. . . that equity dictates that the plaintiffs should not be allowed to accelerate the payments due because the defendants tendered payment before any acceleration occurred or before notice of intent to accelerate the balance occurred.”

At the outset, it should be noted that a contract for the sale of land, like the one here, is considered to be a mortgage. In Mid-State Investment Corporation v. O’Steen, 133 So.2d 455 (Fla.App. 1st, 1961), this court found that a contract containing almost the identical language as the contract now before us must be deemed to be a mortgage under the provisions of Section 697.01, Florida Statutes, and therefore is “. . . subject to the same rules of foreclosure and to the same regulations, restraints and forums as are prescribed in relation to mortgages. . . .” See also H & L Land Company v. Warner, 258 So. 2d 293 (Fla.App.2d, 1972).

The Cooks urge that the court erred in failing to recognize the absolute acceleration called for in the contract when the payment was missed on 1 November 1973.

In Baader v. Walker, 153 So.2d 51 (Fla.App.2d, 1963), the court discussed at length the difference between an absolute acceleration clause and an optional acceleration clause. If an acceleration clause is absolute, the entire indebtedness becomes due immediately upon default of the defendant, but if the acceleration clause is optional, acceleration of the payments does not occur unless the option is exercised. The court stated:

“ . . . We are inclined to the view that when the contract does not in terms make the maturing of the entire indebtedness optional with the payee, but does expressly provide that upon a default the entire sum should at once become due and collectible, such words should be given effect according to their plain import and the intent of the parties as expressed thereby. The decided cases which hold this view, it seems to us, are supported by the better reasoning. No doubt exists where the contract is clearly optional on the part of the creditor. But to hold that a contract is optional which by its express terms is plainly absolute is unwarranted by any known rule governing the construction of contracts.”

The pertinent portion of the contract before us provides as follows:

“Failure to pay any installments herein promptly when due shall cause the entire indebtedness to become immediately due and payable . . . ”

There is nothing in these words to indicate that acceleration is optional with the mortgagees or the Merrifields. The clause is self-executing. When there is a default, acceleration occurs automatically and the entire indebtedness is immediately due.

There are two situations in which foreclosure on an accelerated basis can be denied by the trial court: (1) when acceleration has been waived by the parties; (2) when the conduct of the mortgagee is such that he will be estopped to assert acceleration. Guynn v. Brentmore Farms, 253 So.2d 136 (Fla.App.1st, 1971). In this case, acceleration clearly was not waived by the parties, and the Merrifields were quite aware that if they did not make their payments when due, suit would be instituted by the Cooks. Therefore, in our opinion, the court erred in ruling that "... the defendants tendered payment before any acceleration occurred or before notice of intent to accelerate the balance occurred”, since acceleration occurred immediately upon default and there was no need for any notice of intent to accelerate since the acceleration clause was not optional with the mortgagee.

Neither waiver nor estoppel was pled by the Merrifields as an affirmative defense. In addition, Merrifield did not affirmatively allege tender of payment, but merely denied that a default occurred.

The final order is reversed, and this case is remanded for the entry of a judgment of foreclosure in favor of the Cooks which will include the appropriate assessment of attorney’s fees and costs in favor of the Cooks.

McCORD, Acting C. J., and SMITH, J., concur.


author: RAWLS, Judge. BOYER, Chief Judge

text:
    NORGE LAUNDRY COMPANY, a subsidiary of Fedders Corporation, a Foreign Corporation, Appellant, v. Willie Wesley PRESTRIDGE, Deceased, by his next friend and personal representative, Ida Prestridge, Appellee.
    No. X-497.
    District Court of Appeal of Florida, First District.
    June 29, 1976.
    Rehearing Denied Aug. 9, 1976.
    William M. Howell, of Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, for appellant.
    Roy Lewis and Harry Katz, Jr., of Katz & Katz, Jacksonville, for appellee.
   RAWLS, Judge.

Appellee-plaintiff Prestridge is the surviving widow of her deceased husband. She instituted this suit individually and as the administratrix of the estate against appellant-defendant Norge seeking damages for the wrongful death of her husband. Pursuant to a jury verdict, the trial judge entered a judgment in her favor in the sum of $412,500.00 individually and $1,538.-70 as administratrix.

The point posed by Norge that requires reversal for a new trial is the abuse of discretion by the- trial court in permitting plaintiff’s expert economist, Dr. Joseph Perry, to testify as a witness.

The case came on for trial on Monday, December 9, 1974, at 9:30 a.m. A pre-trial conference was held at 3:15 p.m. on the Friday afternoon preceding the Monday trial date, and on this occasion, for the first time, plaintiff advised the court and defense counsel that Dr. Perry would be utilized as an expert economist in proving plaintiff’s damages. At trial, plaintiff called Dr. Perry to testify, whereupon defense counsel strenuously objected on the grounds that defense counsel received Dr. Perry’s report about S :00 p.m., Friday (preceding Monday morning trial date), thus depriving Norge the opportunity to analyze Dr. Perry’s proposed testimony and secure an expert to counter same. Plaintiff’s counsel countered stating that he had offered defense counsel the opportunity to depose Dr. Perry over the weekend, which offer was declined. The trial judge, in considering the propriety of this witness testifying, stated:

“. . . There is no excuse now that you can offer me for not furnishing him that man’s name, because you knew you were going to use him.
“As I say, I am doing this with reluctance and I am cautioning counsel that you may have given a legitimate cause for ground for appeal, you see, in this case by not furnishing.
“These witness surprises, we have done away with that in the new rules that we have for civil procedure.
“All right, I am going to permit this testimony over the objection and we will note your objection in the record.”

A trial judge is vested with broad discretionary power for the proper conduct of litigation. Although we do not reach the conclusion that decedent’s death resulted from his sole negligence, this record discloses that decedent’s actions constituted far more than the 25 percent comparative negligence apparently found by the jury to be chargeable to decedent. The damages awarded by the jury, which to a great extent was founded upon Dr. Perry’s testimony, are far out of line. The trial judge abused his discretion in permitting this essential expert witness to testify when Norge had not been afforded sufficient opportunity to depose Dr. Perry and to prepare any defense to his testimony. The action of the trial judge in permitting this witness to testify constituted such harmful error that the cause must be reversed.

Reversed and remanded for a new trial.

McCORD, J., concurs.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(concurring specially) .

I concur in reversal on the procedural ground discussed in the majority opinion. However, I am not of the view that it is our prerogative to determine that the damages awarded by the jury “are far out of line”. I therefore concur in the result reached.

      . Norge’s motion for new trial alleged, inter alia:
      “ • • . The Court erred and abused its discretion in permitting plaintiff’s expert, Dr. Joseph Perry, an Economist to testify over objection made by the Defendant on the grounds that his name was not provided to defendant’s counsel pursuant to pre-trial instructions wherein counsel were directed to exchange witness lists, but in fact his name was only provided to defendant at 3:15 o’clock P.M. on Friday, December 6, 1974, before the case went to trial on Monday, December 9, 1974, and further that defendant was not given a copy of the proposed testimony of Dr. Perry until approximately 5 :00 o’clock P.M. on December 6, 1974, prior to the start of the trial on Monday, December 9, 1974, and that the defendant then was given absolutely no opportunity to prepare for the testimony of Dr. Perry or was not given the opportunity to secure expert testimony with which to rebut the testimony given by Dr. Perry at the trial.”

      . Henningsen v. Smith, 174 So.2d 85 (Fla.App. 2nd 1965).

      . Green v. Shoop, 240 So.2d 85 (Fla.App. 3rd 1970).


author: McNULTY, Chief Judge.

text:
    Graham Charles GARNER and Sydney Morris, as Official Liquidators of the British-American Bank, Ltd., a Bahamian banking company (In compulsory liquidation), Appellants, v. Robert M. THOMPSON, Jr., Appellee.
    No. 75-1448.
    District Court of Appeal of Florida, Second District.
    July 7, 1976.
    Rehearing Denied Aug. 11, 1976.
    James G. Stephenson and James A. Dixon, Miami, Dixon, Shear, Brown & Stephenson, Tampa, for appellants.
    Theodore C. Taub and Robert C. Gibbons, Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellee.
   McNULTY, Chief Judge.

Appellants, as official liquidators of a defunct Bahamian bank, appeal a declaratory judgment denying them the right to certain interest payments claimed due under a certain letter “agreement” entered into in September 1973. We reverse.

Prior to the letter agreement aforesaid, appellee Thompson had been indebted to the defunct bank on a promissory note which was executed on October 30, 1971 to consolidate two earlier notes. The bank went into compulsory liquidation before November 1, 1972, the date on which certain payments were due on the consolidation note. Apparently confused because of disarray in the bank’s records due to the liquidation, and still prior to the aforesaid November 1 due date, appellants prematurely demanded payments (inaccurate payments, at that) on appellee’s obligation to the bank. As a result of this confusion, appellee made no payments on the November 1 due date and a series of negotiations ensued between appellants’ attorneys in Tampa and the appellee which culminated in the subject September 1973 letter agreement herein.

This agreement provides that it was mutually agreed that the true indebtedness was $137,656.40, the precise amount of the November 1971 consolidation note, as contended for by appellee all along. It further provides that upon the execution thereof appellee was to pay certain principal and interest payments due on the note to that date (which were in fact paid) and that a specified portion of the accrued interest payable was to be deferred until January 2, 1974. Since the letter agreement was executed in September 1973, the principal and interest figures referred to therein relate only to the amounts accrued to that time from the execution of the note in 1971. There is, however, an express reference to an amount of principal which was to become due on the ensuing November 1, but no reference was made to any interest payment payable on that date. The only mention of interest payable in the future was the above-referred to interest payment which was deferred until January 2, 1974.

Appellants contend that the failure to mention the interest payable on November 1, 1973 was inadvertent and did not constitute a waiver thereof; and even if it did, they say, it was unsupported by consideration. Appellee, on the other hand, contends that there was a waiver of that interest, that the omission was not inadvertent at all and that the subject letter agreement was in effect a binding novation settling out differences in a bona fide dispute as between the parties.

We agree with appellants. The record is simply devoid of any evidence establishing legally sufficient consideration to support the alleged new contract between the parties. The letter agreement constitutes no more than a consolidation or summarization of what appellee’s obligations were in fact, together with a gratuitous agreement on the part of appellants to defer certain interest payments (at ap-pellee’s request and obviously for his tax benefit) until the next ensuing tax year. It did not amount to a legally binding contract as between the parties merely because a presumably good faith dispute necessitated clarification negotiations to spell out the true obligation of appellee.

Appellee suggests that the dispute, allegedly resolved by the letter agreement, included certain credits due from the bank to appellee. Specifically, he refers to a savings account in the bank in the sum of some $500. Nowhere does it appear, however, that this “credit” was settled out by the letter agreement nor does it, indeed, appear that appellee is precluded from claiming it as a setoff against his remaining obligation to the bank. We cannot find, therefore, where the dispute surrounding this particular credit was consideration for the agreement.

Appellee further points out that, there having been a bona fide dispute (brought about by the disarray of the bank’s records as aforesaid) which was resolved by the letter agreement, substantial payments were made to the bank as a result thereof at a time when the bank was in distress and obviously needed the money. This cannot constitute sufficient legal consideration either, however, for the clear reason that such sums were already due, owing, unpaid and payable to the bank. It sought and got nothing more than it was entitled to. Moreover, that’s what liquidation proceedings are all about anyway — to marshal existing or accrued assets of the bankrupt.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN and SCHEB, JJ., concur.


author: BOYER, Chief Judge. McCORD, Judge

text:
    Henry Isaac POWELL, Appellant, v. STATE of Florida, Appellee.
    No. Z-224.
    District Court of Appeal of Florida, First District.
    June 29, 1976.
    Rehearing Denied Aug. 9, 1976.
    Richard W. Ervin, III, Public Defender, and Gary M. Delohery, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   BOYER, Chief Judge.

Appellant appeals a judgment of guilt and resulting sentence based upon an adverse jury verdict following a trial on a charge of possession of a firearm by a convicted felon proscribed by F.S. 790.23. That statute makes it unlawful for a convicted felon “to own or to have in his care, custody, possession, or control any firearm or to carry a concealed weapon.”

Two police officers sought to serve a search warrant, authorizing a search for the fruits of a robbery, at an apartment in Tallahassee where they found appellant and one Henry Dupree. Appellant responded to the initial knock on the door by the police officers and, upon being informed of the purpose of their presence, told the officers that he wanted to let his wife know of their presence. He then went to the northwest bedroom and, after being gone for approximately two minutes, was brought back to the living room by one of the officers. A pistol was found in the pocket of a sportscoat in the bedroom clothes closet. Bullets were discovered in the adjoining bedroom. No fingerprints were found on the pistol. At trial, appellant’s wife stated that eight or nine months prior to the trial she and the defendant were at a nightclub where she found a gun which she took home with her and put in the coat pocket in her bedroom closet. She further testified that about a week later she told appellant about the gun and where she had put it whereupon he told her to do whatever she wanted to with the weapon. Appellant testified to substantially the same events but claimed that he had told his wife to do whatever she wanted to with the gun but to get it out of the house. Appellant also testified that on the day of the search his wife had moved out of the apartment and that Henry Dupree was living there with appellant at the time.

Appellant’s sole point on appeal relates to sufficiency of the evidence. It is un-contradicted that appellant was, at all material times, a convicted felon.

In Davis v. State, Sup.Ct.Fla.1956, 90 So.2d 629, a murder case, the late Justice Thornal succinctly stated the law regarding presumption of innocence and circumstantial evidence as follows:

“At the same time we must not lose sight of the basic proposition that one accused of a crime is presumed innocent until proved guilty beyond and to the exclusion of a reasonable doubt. It is the responsibility of the State to carry this burden. When the State relies upon purely circumstantial evidence to convict an accused, we have always required that such evidence must not only be consistent with the defendant’s guilt but it must also be inconsistent with any reasonable hypothesis of innocence. Head v. State, Fla.1952, 62 So.2d 41; Mayo v. State, Fla.1954, 71 So.2d 899.
“Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence. * * *” (90 So.2d 631, 632)

In Frank v. State, Fla.App. 1st 1967, 199 So.2d 117, a case in which the appellant had been convicted of unlawful possession of narcotic drugs, this Court was primarily interested in whether scienter or knowlege was a requisite ingredient of a crime of illegal possession. In that case Judge Wig-ginton, speaking for the court, said:

“From the foregoing it appears to be established in this state that before one charged with unlawfully possessing narcotic drugs may be convicted, the State must establish beyond a reasonable doubt that the accused knew of the presence of the narcotic drugs on premises occupied and controlled by him either exclusively or jointly with others. If the premises on which the drugs are found are in the exclusive possession and control of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over them may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused, the inference of knowledge is re-buttable and not conclusive. If the premises on which the drugs are found is not in the exclusive but only in the joint possession of the accused, knowledge of the drugs’ presence on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the drugs’ presence on the premises. In any event, the question of scienter or knowledge is one which must be resolved by the jury under the evidence in the case and upon proper instruction by the court embodying the principles discussed above.”
?}« * >K * *
“Proof of either actual or inferred knowledge by the accused that the contraband articles were on the premises occupied by him at the time they were discovered is an essential and indispensable element of the offense which must be established. Scienter constitutes a factual issue to be resolved by the jury upon proper instructions as to the legal principles pertinent to its consideration. This is not a mere technicality in the law, but a legal principle which must be observed in order to safeguard innocent persons from being made the victims of unlawful acts perpetrated by others, and of which they have no knowledge. It is a safeguard which must be preserved in the interest of justice so that the constitutional rights of our citizens may be preserved. * * *” (199 So.2d 120, 121)

This Court, in Walker v. State, Fla.App. 1st 1971, 248 So.2d 491, a moonshine case, quoting from an early Supreme Court of Florida case, Reynolds v. State, Sup.Ct. Fla.1927, 92 Fla. 1038, 111 So. 285, reversed, saying:

“There is no evidence that this Defendant had any control, ownership, or interest in the whiskey. Neither is there any evidence that the same was ever in his constructive possession.” (248 So.2d 492)

Sub judice, the State relies upon an opinion of our sister court of the Second District, Maloney v. State, Fla.App.2d 1962, 146 So.2d 581, in which the court affirmed a conviction of an appellant accused under the same statute. We have carefully examined that case and find that although it is analogous there are crucial distinguishing features. In the Maloney case, as observed by the court, one of the appellant’s companions testified at the trial that he had put the shotgun under the front seat of the car (where it was found by the police officers) and that “they” were going to sell it and the other gun discovered in the car.

Measuring the evidence adduced at the trial against the rule relative to circumstantial evidence above quoted, we conclude that while it may have been consistent with guilt, it is not inconsistent with any reasonable hypothesis of innocence. Accordingly, the judgment and sentence here appealed is

REVERSED.

RAWLS, J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

The firearm was found in appellant’s coat, in his closet, in his apartment. Appellant’s wife was not an occupant of the apartment at that time. It was the jury’s province to weigh the testimony of appellant and of his wife and to determine their credibility. In my view, the evidence is sufficient to sustain the conviction. I would, therefore, affirm.


author: RAWLS, Judge.

text:
    Homer Lee HARDWICK, Appellant, v. STATE of Florida, Appellee.
    No. Y-356.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Richard W. Ervin, III, Public Defender, David J. Busch, Asst. Public Defender, and Homer Lee Hardwick, in pro per., for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Judge.

Appellant-defendant Hardwick poses two points on appeal:

Did the trial court commit fundamental error by adjudicating appellant guilty of first degree murder and sentencing him to life imprisonment within the meaning of Section 775.082(1), F.S., where appellant was charged and found guilty of second degree murder within the meaning of Section 782.04(2), F.S.
Did the trial court commit fundamental error when it adjudicated appellant guilty of robbery and imposed a sentence for that crime where the robbery arose out of the same episode as the felony murder and therefore merged with the latter crime.

As to the first point, the Grand Jury of Taylor County returned an indictment charging appellant in Count I with murdering one Lloyd Walker while engaged in the perpetration of a crime, to wit: robbery, citing Florida Statute 782.04. A jury verdict was returned finding appellant guilty of the crime of murder in the first degree as charged in Count I of the indictment. Appellant’s Point I which assumed that appellant was charged and found guilty of murder in the second degree is without factual record basis. Appellant points out that Florida Statute 782.04 is divided into three subsections; the third subsection not having any applicability in this case. Subsection (1) dictates that murder in the first degree may be charged, inter alia, when the unlawful killing of a human being is committed by a person engaged in the perpetration of a robbery. Subsection (2) of the statute defines second degree murder, in part, as: “ . . . when committed in the perpetration of, or in the attempt to perpetrate . . . robbery . . . shall be murder in the second degree . ...” Appellant then reasons that the line separating first degree felony murder and second degree felony murder is extremely unclear, which requires the application of the doctrine annunciated in Gibbs v. Mayo, 81 So.2d 739, 740 (Fla.1955), wherein the Supreme Court held: “The accused must be ‘plainly and unmistakably’ within a criminal statute, and all doubts are resolved in his favor.” Appellant then reaches the conclusion that pursuant to Coe-Mortimer Co. v. State, 81 Fla. 701, 88 So. 475 (1921), the omission of a subsection in the indictment cannot be cured, and thus appellant could only have been convicted of second degree murder. The majority opinion in State v. Dixon, 283 So.2d 1 (Fla.1973), settles the matter. There, the Supreme Court expressly distinguished the two subsections and concluded that same were not illusory. Appellant was with specificity indicted for committing the crime of murder while perpetrating the crime of robbery; the indictment was sufficient to charge appellant with the crime of murder in the first degree.

Recent appellate decisions render appellant’s second point on appeal to be without merit. Count I of the indictment charged appellant with murdering Lloyd Walker. Count II charged him with committing the crime of robbery against Dianne Allen. The indictment and proof reveal that appellant committed separate and distinct crimes. Adkins v. State, 330 So.2d 809 (Fla.App.1st 1976); Rodgers v. State, 325 So.2d 48 (Fla.App.2nd 1975); and Robinson v. State, 323 So.2d 62 (Fla.App. 1st 1975).

AFFIRMED.

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

      . Florida Statute 782.04 (1973) states:

        “782.04 Murder.—

      “(l)(a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of seventeen years when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in § 775.082.

      “(2) When perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, or when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court.”


author: BOYER, Chief Judge. SMITH, Judge

text:
    SCHOOL BOARD OF LEON COUNTY et al., Appellants, v. John S. GOODSON, Appellee.
    No. Z-309.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Rehearing Denied Aug. 9, 1976.

      C. Graham Carothers of Ausley, McMul-len, McGehee, Carothers & Proctor, Tallahassee, for appellants.
    Robert J. Angerer and LeRoy Collins of Ervin, Varn, Jacobs & Odom, Tallahassee, Elizabeth duFresne, Miami, Charles E. Miner, Jr., Tallahassee, for appellee.
   BOYER, Chief Judge.

In its final judgment, the trial court ordered the Leon County School Board to grant appellee, a teacher in the Leon County School System, a fifth year continuing contract which was tantamount to an award of tenure. The case turns on whether the agreement, upon which the trial court based its final judgment, between appellee and the principal of the school at which appellee was employed was binding upon the Leon County School Superintendent and/or School Board.

Appellee, plaintiff in the trial court, asserted in his complaint that appellant School Board had wrongfully denied him a continuing contract in the 1974-75 school term. The record indicates that appellee taught for four years in Leon County, at Raa Middle School for the school years 1970-71 and 1971-72, and at Godby where he taught ninth grade Science in 1972-73 and 1973-74. In March of 1973, appellee received a memorandum signed by his principal (Mr. Coley), assistant principal John Lawrence, another assistant principal and the Chairman of the Science Department. The memorandum listed eight specific areas of improvement and was prefaced with the statement, “the following improvements must be observed in order to grant the priviledge [sic] of tenure in the Spring of 1974.” The next day, appellee delivered a signed memorandum to the principal in which he stated, “I hereby agree to waive my continuing contract for my fourth year of teaching in the Leon County School System, and agree to abide by, and be evaluated on the basis of the conditions set down in the adjoining memorandum.” By letter, Mr. Coley advised Leon County Superintendent of Schools, Dr. Lovell, of the agreement and attached copies of the two memoranda to the letter. Appellee was subsequently reemployed for the following school year (1973-74) and in June signed a standard form annual contract.

Principal Coley resigned his position and was replaced by Assistant Principal Lawrence. On March 29, 1974, Lawrence wrote appellee a letter advising him that he would not be recommended for a continuing contract because of his failure in observing deadlines for reports and the necessity of more evidence of long range planning. From the evidence presented at trial, the trial judge determined that neither of the two alleged deficiencies was sufficiently supported by the evidence to constitute a denial of continuing contract to appellee. The Court thereupon concluded that through its agents, the School Board had breached its agreement with ap-pellee and that appellee was entitled to relief.

The crucial issue is whether Principal Coley had the authority to enter into an agreement with appellee that would be binding upon the School Board. Under the statutory scheme devised by the legislature, the exclusive contracting agent for a District School System is the School Board. F.S. § 230.22. The Superintendent’s role in contract matters is to “confer with the principals and submit in writing to the School Board his nominations of all other persons to be appointed or reappointed as members of the instructional staff of the district school system.” F.S. § 230.33 (7) (d). He is also to “recommend to the school board terms for contracting with employees and prepare such contracts as are approved. Contracts for the members of the instructional staff are to be prepared, recommended, and executed as here-inbefore prescribed.” F.S. § 230.33 (7) (f). Finally, we examine the power of a public school principal to enter into contractual agreements. Prior to June 26, 1974, principals had no specific statutory power relating to contracts. On that date, Chapter 74-315 (Laws of Florida, 1974), became effective and directed each principal to “submit recommendations to the superintendent regarding the appointment, assignment, promotion, transfer, and dismissal of all personnel assigned to the school.” See F.S. (1975) Section 231.085(2).

A reading of the above-quoted statutes makes clear the legislative intent. The School Board is to have exclusive authority to form contracts with the instructional personnel of the school system. The Board may accept or reject the recommendations of the superintendent who, in turn, may accept or reject the recommendations of the school principals. Neither a superintendent nor a principal, acting individually or collectively, may enter into a contractual agreement with a teacher without the express approval of the School Board.

Sub judice, the record indicates that an agreement, manifested by two memoranda, was executed and signed by appellee and by Principal Coley and his three subordinates in March of 1973. Principal Coley dispatched a letter, with copies of the memoranda attached, to Superintendent Lovell who was thereby informed of the agreement. The record on appeal does not reveal, however, whether the School Board was ever notified of, or acted upon, the agreement. In the absence of a showing that the School Board approved the agreement in question, there can be no finding that the agreement had a binding effect upon the Board, Thus, the trial court erred at the outset when he framed the issue in the instant case as “whether the School Board breached its agreement .” Our conclusion is that the School Board could not breach an agreement to which it never agreed.

Our conclusion is buttressed by the presence in the record of the standard form contract which appellee signed in June of 1973, which, of course, is a time more than two months subsequent to the signing of the memoranda relied upon by appellee. Paragraph nine of the form contract states that appellee “. . . shall have probationary status and no legal cause shall be required of the school board in the event that the Teacher is not re-employed by the school board after June 14, 1974.” The foregoing provision directly contradicts the agreement entered into between appellee and Principal Coley. The fact that paragraph nine remained in ap-pellee’s contract with the School Board indicates that the Board intended to treat ap-pellee in the same manner as any teacher employed on annual contract status. Moreover, even assuming that the agreement between appellee and Principal Coley was binding on the School Board, the subsequent signing of the formal contract by appellee containing paragraph nine would have the effect of superseding or abrogating the initial agreement. See 17A C.J.S. Contracts Section 386, p. 458.

Consequently, the final judgment entered in favor of appellee is reversed, and the cause is remanded to the trial court with directions that judgment be entered in favor of appellant.

COX, JOHN S., Associate Judge, concurs.

SMITH, J., concurs with opinion.

SMITH, Judge

(concurring).

I concur in the court’s decision and with Chief Judge Boyer’s opinion concerning Goodson’s asserted contract with the Board. I would add only that Fourteenth Amendment considerations of substantive due process, asserted alternatively by Goodson and alluded to in the circuit court’s decision, do not avail Goodson’s claim for continuing employment.

The Board gave Goodson no reasons for denying him a tenured contract. Lawrence, the new principal, gave him two reasons for withholding a favorable recommendation to the Board:

“1. Not observing deadlines for submitting reports. (Monies collected in September of 1973 were not turned in until February of 1974.) This is contrary to school policy.
“2. More evidence of long range planning is needed.”

The circuit judge who tried the case without a jury found the first stated reason was “trivial” and the second was supported by “no evidence” and contradicted by “all of the evidence.” These explicit findings command respect. However, the disposition of Goodson’s constitutional claim rests on grounds other than the force of the Board’s evidence and the adequacy of its reasons for acting as it did.

Roth and Sindermann remind us that the Fourteenth Amendment prevents State deprivation of State-acknowledged property rights without due process and does not create for Goodson a federal property right to continued employment. It is therefore not enough for Goodson to claim that it was arbitrary, capricious and trivial for the Board not to grant him a continuing contract. Goodson must show also that, because of tenure existing by formal contract or de facto understandings and arrangements, he had a right when terminated not to be denied continuing employment arbitrarily.

Goodson’s constitutional argument fails because the State did not at any time foster in him a present legitimate claim to continuing employment, as distinguished from a fervent hope and expectation of imminent tenure. No promise was made to Goodson by the March 1973 memoranda which afforded to him de facto status as a tenured employee. Metropolitan Dade Co. v. Peterson, 311 So.2d 119 (Fla.App.3d, 1975).

In the final analysis, Goodson’s argument is predicated not on the Board’s arbitrary deprivation of an existing property right but on the Board’s capricious frustration of his expectancy. His real claim is not that he was tacitly granted tenure which was groundlessly taken away but that, because of the March 1973 memoran-da and his subsequent efforts, the Board’s future decision to grant or deny him tenure became the prisoner of his hope. Goodson is wrong. To have a constitutionally-protected right to continuing employment, he

“. . . must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, supra n. 1, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.

      . Goodson does not complain he was denied an opportunity to be heard by the Board on the question of his retention. Such a claim of procedural due process benefits would, necessarily be predicated on the same show-, ing which Goodson must make in order to invoke a substantive due process right of relief from arbitrariness. Board of Regents v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548, 657-58 (1972).

      . We may assume that Board action taken for a plausibly legitimate reason which is wholly unfaetual is arbitrary by Fourteenth Amendment standards. Lucas v. Chapman, 430 F.2d 945, 948 (5th Cir. 1970); Simard v. Board of Ed., 473 F.2d 988, 994 (2d Cir.1973).

      . Supra n. 1, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561: “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” See also Roane v. Callisburg Ind. School Dist., 511 F.2d 633, 638 (5th Cir. 1975).

      . Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

      . Here, as in Jeffries v. Turkey Run Consolidated School Dist., 492 F.2d 1, 3 (7th Cir. 1974), “ . . . plaintiff alleges that the Board decision was itself completely without basis in fact or logic, and argues that such an arbitrary and capricious action violates her constitutional right to ‘substantive due process.’ ” Judge (now Justice) Stevens wrote for the court that “the absence of any claim by the plaintiff that an interest in liberty or property has been impaired is a fatal defect in her substantive due process argument.” Id. at 4. Public employment may not be subjected to any conditions “regardless of how unreasonable,” but judicial intervention is ordinarily confined to instances in which the asserted “unreasonable” condition requires employee sacrifice of a constitutionally protected right and is unrelated to legitimate goals of the employer. Keyishian v. Board of Regents, 385 U.S. 589, 606, 87 S.Ct. 675, 685, 17 L.Ed.2d 629, 642 (1970). But see Johnson v. Board of Pub. Instr., 241 So. 2d 445 (Fla.App.2d, 1970).

      . Sindermann, supra n. 4, 408 U.S. at 600, 92 S.Ct. at 2700, 33 L.Ed.2d at 579; Wahba v. New York Univ., 492 F.2d 96, 98 n. 2 (2d Cir. 1974), cert. den. 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974) ; Simard v. Board of Ed., supra n. 2, 473 F.2d at 992. A present property right and legitimate claim to tenure may arise from “the surrounding circumstances including existing rules and understandings.” Powell v. Jones, 56 Ill.2d 70, 77, 305 N.E.2d 166, 170 (1973). It may emerge from the “common law” of a school district, “comprised of both written policies and actual practices.” Roane v. Callisburg Ind. School Dist., supra n. 3, 511 F.2d at 638.

      . See also the analysis by the Supreme Court of Idaho in Loebeck v. Idaho State Bd. of Ed., 96 Idaho 459, 461, 530 P.2d 1149, 1151 (1975), a case weaker on the facts than Good-son’s : “Nothing . . . conferred on appellant any legitimate entitlement to tenure. She had nothing more than a hope of receiving tenure. . . . Although appellant had been rehired in consecutive years that did not change her nontenured status. She had only come closer to the time at which a decision had to be made as to granting or non-granting of tenure.” See also LaBorde v. Franklin Parish School Board, 510 F.2d 590, 593 (5th Cir. 1975), in which an asserted property interest predicated on an encouraging statement by the assistant superintendent was rejected.

      . See Shaw v. Board of Trustees, 396 F.Supp. 872, 886 (D.Md.1975), in which, for Fourteenth Amendment purposes, the court expressly equated formal tenure with “a legitimate claim of entitlement to continued employment in the absence of just cause.”


author: PER CURIAM.

text:
    Thomas Fredrick NAGELIN, Jr., et al., Appellants, v. Albirto FISHER, Appellee.
    No. AA-171.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Rehearing Denied Aug. 9, 1976.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
    Roderic G. Magie, Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, James E. Hertz, Pensacola, for appellee.
   PER CURIAM.

Appellants, defendants in the trial court, seek reversal of an adverse judgment for damages following a directed verdict on the issues of liability in an action resulting from an automobile accident.

On a stormy September afternoon one Galit, while traveling in a southerly direction in the western-most lane of a curved four-lane road with no median strip, applied his brakes whereupon his vehicle skidded across the other three lanes of the road and into a slight ravine at the northeasterly approach to a bridge which enters the Naval Air Station in Pensacola. Observing Galit’s vehicle, Mrs. Shack, who was driving a vehicle behind the Galit vehicle in the eastern-most southbound lane of the same road brought her vehicle to a complete stop. Mrs. Shack testified that she brought her vehicle to a complete stop in her lane of traffic while Nagelin testified that her automobile was straddling the line dividing the two southbound lanes. Appellee Fisher was a passenger in the Shack vehicle at the time of the above mentioned events. Nagelin was driving his automobile in a southerly direction behind Mrs. Shack’s vehicle. He testified that he attempted to stop but that his car went into a skid, striking the stopped Shack vehicle. The relative locations of the vehicles, distances and times varied according to the several witnesses who testified.

The law is so well-settled as to render citations of authority superfluous that contested issues of material fact are to be resolved by the trier of the fact, in this case the jury.

REVERSED.

BOYER, C. J., RAWLS, J., and WARREN, LAMAR, Associate Judge, concur.