author: HATCHETT, Justice. BOYD, Justice, ENGLAND, Justice,

text:
    Alphonso ALVAREZ, Petitioner, v. STATE of Florida, Respondent.
    No. 52291.
    Supreme Court of Florida.
    April 4, 1978.

      Michael J. Minerva, Public Defender, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for respondent.
   HATCHETT, Justice.

The district court has certified to us its decision, reported at 349 So.2d 688 (Fla. 4th DCA 1977), as involving a question of great public interest:

Is a sentence of imprisonment for a term of years greater than the life expectancy of the sentenced person lawful under Section 813.011, Florida Statutes (1973), and Section 812.13, Florida Statutes (1975)?

We have jurisdiction pursuant to Article V, Section 3(b)(3), and answer this question in the affirmative.

Petitioner was convicted of robbery and was sentenced to imprisonment for 125 years. Our present robbery statute, Section 812.13, Florida Statutes (1975, 1977), states:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in § 775.082, § 775.083, or § 775.084.
(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in § 775.-082, § 775.083, or § 775.084.
(c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

Petitioner challenged his sentence in the district court on the ground that the sentence exceeded the limit set by the statute, since 125 years is not a term of years less than “life.” The court affirmed the sentence, but certified this issue to us.

Petitioner argues that a sentence for a term of years in excess of life expectancy is unlawful under the statute. He also contends that the statute, which measures a definite sentence term against the imprecise term of “life,” is unconstitutionally vague.

This issue has never been squarely addressed by this court, although we upheld on other grounds a rape conviction, in Byrd v. State, 297 So.2d 22 (Fla.1974), which carried a sentence of 150 years. Sentences presumptively longer than life expectancy have also been considered and upheld for robbery in each of the district courts of appeal. All these cases held that the sentence imposed did not exceed the statutory maximum.

We reject the notion that an individual’s life expectancy should be used, or was intended by the Legislature to be used, to mark the longest term which a particular defendant should serve. Any sentence, no matter how short, may eventually extend beyond the life of a prisoner. Mortality and life expectancy are irrelevant to limitations on the terms of incarceration set by the Legislature for criminal misconduct.

We also reject petitioner’s contention that the statute is unconstitutionally vague and indefinite. Although no person can predict the maximum length of time which can be served by a prisoner under a sentence of life, this in itself does not render a life sentence impermissibly indefinite. The legislative intent from the face of the statute is clear: a person convicted of robbery while carrying a firearm or other deadly weapon may be sentenced to imprisonment for the remainder of his life; if convicted of robbery while carrying any other weapon, the defendant may be sentenced to a maximum of 30 years; if convicted of robbery while not carrying any weapon, the defendant may be sentenced to a maximum term of 15 years. The trial court may, in its discretion, impose any sentence, or probationary period, up to the maximum term authorized for that crime by the Legislature.

Although a sentence of 125 years imprisonment presumptively exceeds the life expectancy of the defendant, such a sentence should be considered, in essence, a life sentence. The practical effect of such a lengthy sentence should be no harsher than if the court had imposed the maximum sentence of life. We do not address at this time the question of whether or not such a lengthy term of imprisonment results in harsher treatment by parole authorities.

There is nothing in the record to indicate that the defendant is likely to serve a longer term of imprisonment than would be foreseeable if he had received a life sentence.

Accordingly, the decision below is affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS, SUND-BERG and KARL, JJ., concur.

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

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

BOYD, Justice,

concurring in part, dissenting in part.

The certified question should be answered in the negative. I concur in the majority’s decision to uphold the statute but I dissent from their construction of it.

Legislative intent is the controlling factor in this ease. The statute permits judges either to impose life imprisonment or terms of years less than life. It contemplates that judges who impose life sentences expect defendants to die in prison unless pardoned or paroled.

If the Legislature had not intended the terms of years to be less than life the statute would have said life sentences were the only available terms of imprisonment. Obviously, terms longer than life were not intended.

The difficult question in each case is what number of years constitutes a term less than life imprisonment. In civil court proceedings it is common practice to determine life expectancy of litigants from insurance actuarial tables. I would apply such tables in each sentence other than life to fix terms of imprisonment less than life expectancy of defendants. In determining life expectancy the Court should consider that normally women live longer than men. The statute should be declared valid subject to the above construction.

This cause should be remanded to the trial court to vacate the existing sentence and impose either a life sentence or a term of years less than petitioner’s life expectancy-

ENGLAND, Justice,

concurring in part and dissenting in part.

Alfonso Alvarez was sentenced to imprisonment for 125 years under a statute which authorized a sentence

“for life or for any lesser term of years ”

I concur with the Court’s conclusions that an individual’s life expectancy should not be used, and was never intended by the legislature to be used, to mark the longest term which a particular defendant should serve. Obviously any sentence, even a one day sentence, may extend beyond the life of a prisoner. Mortality and life expectancy, then, are irrelevant to limitations on the terms of incarceration set by the legislature for criminal misconduct.

I disagree with the majority’s view that the robbery sentencing statute is not unconstitutionally vague, however, since the benchmark for determining any “lesser” term of years is an evanescent and subjective standard, incapable of being identified or applied. While the legislature may delineate those acts which are criminal and provide appropriate penalties, criminal statutes must be sufficiently definite to be understood and applied. Cf. State v. Wershow, 343 So.2d 605 (Fla.1977). When confronted with a vagueness challenge, courts are required to resolve any reasonable doubt concerning the enactment in favor of the defendant. Earnest v. State, 351 So.2d 957 (Fla.1977); State v. Wershow, above. Moreover, if the net effect of a penal statute is to provide an indefinite term of imprisonment, the law is at odds with Article 1. Section 17 of the Florida Constitution.

I am unable to square the language of the statute under which Alvarez was sentenced with these well-settled principles. This statute authorizes the imposition of term sentences only if they do not exceed an indefinite and unascertainable benchmark — “life” imprisonment. In any life sentence, “the length of the sentence cannot be determined until- the death of the prisoner.” Since the statute does not provide any manageable standards by which to impose any “lesser term” sentence, the courts are left to speculate on what are permissible and impermissible sentence terms. An unadministrable statute is constitutionally defective.

Merely because the sentencing portion of the robbery statute is unconstitutionally vague does not mean that Alvarez cannot be incarcerated. He should be resentenced for 30 years or less, as specified in Section 775.082(4)(b), Florida Statutes (1973).

      . Sec. 813.011, Fla.Stat. (1973) stated:
      Robbery defined; penalties. — Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny, shall be guilty of a felony of the first degree, punishable by imprisonment in the state prison for life or for any lesser term of years, at the discretion of the court.

        . Battle v. State, 338 So.2d 1107 (Fla. 3d DCA 1976) (150 years); Harper v. State, 306 So.2d 141 (Fla. 4th DCA 1975) (130 years); Wallace v. State, 299 So.2d 643 (Fla. 1st DCA 1974) (50 years); High v. State, 284 So.2d 239 (Fla. 2d DCA 1973) (99 years).

      . As noted by Judge William C. Owen, Jr., in a dissenting opinion in Harper v. State, 306 So.2d 141, 142 (Fla. 4th DCA 1975), this realization has generated the confusion over the proper interpretation of this sentencing statute.

      .We note that sentencing statutes do not involve the same constitutional due process difficulties encountered with statutes defining various prohibited acts with regards to the sufficiency of prior notice as to what constitutes a crime.

      . The only statute expressly applicable to prisoners serving life sentences states:
      Sec. 944.30 Fla.Stat. (1975). Life prisoners; commutation to term for years. — Any prisoner who is sentenced to life imprisonment, who has actually served 10 years and has sustained no charge of misconduct and has a good institutional record, shall be recommended by the [Department of Offender Rehabilitation] for a reasonable commutation of his sentence, and if the same be granted, commuting the life sentence to a term for years, then such prisoner shall have the benefit of the ordinary commutation, as if the original sentence was for a term for years, unless it shall be otherwise ordered by the Board of Pardons.
      Since petitioner has not successfully served 10 years of his sentence, we do not need to reach the question of whether or not the benefits of this statute are applicable to him.

      . Sec. 947.16, Fla.Stat. (1977) provides that an inmate who has been sentenced for a term in excess of 5 years may be eligible for parole after serving one year of confinement. There is no other statutory authorization setting a necessary minimum percentage of the total sentence which must be served prior to an inmate’s becoming eligible for parole. Of course, compliance with the mandatory mínimums, set forth in Sec. 775.087, Fla.Stat. (1977), is necessary.

      . § 813.011, Fla.Stat. (1973), now appearing in § 812.13(2), Fla.Stat. (1975). See also § 775.082(4)(b), Fla.Stat. (1973), prescribing the penalty for a first degree felony, under which robbery was classified.

      . See Harper v. State, 306 So.2d 141, 142 (Fla. 4th DCA 1975) (Owen, C. J., concurring and dissenting); People v. Pace, 362 Ill. 224, 198 N.E. 319 (1935).

      . This is essentially what Chief Judge Owen suggested in Harper, n. 2 above, when he said:
      “I confess inability to specify the term of years which would be less than life .... I am quite certain, however, that a sentence of 130 years is for a term of years in excess of ‘life or any lesser term of years’ . . . .”
      306 So.2d at 142.

      . “[I]ndefinite imprisonment . . . [is] forbidden.”

      . Welch v. McDonald, 36 N.M. 23, 26, 7 P.2d 292, 294 (1931).

      . I agree with Alvarez’ contention that the sentencing portion of the statute cannot be saved by striking only the reference to “any lesser term of years”. The legislature clearly did not intend to mandate life imprisonment for all robbery convictions.


source: Caselaw Access Project

author: PER CURIAM. HATCHETT, Justice,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Samuel Benson BERGER, Respondent.
    No. 51513.
    Supreme Court of Florida.
    April 5, 1978.
    Rehearing Denied May 19, 1978.

      G. Lynn Kilpatrick, Elinor P. Smith, Asst. Staff Counsels, Tallahassee, and Nicholas R. Friedman, Asst. Staff Counsel, Fort Laud-erdale, for complainant.
    Samuel R. Berger, in pro per.
   PER CURIAM.

The Florida Bar has filed a complaint in this Court against Samuel Benson Berger, one of its members. Following a hearing before a Bar referee it had been recommended that Berger be suspended from the practice of law. Improperly, Berger filed a Notice of Appeal from the recommendation and the referee’s report. The Bar moved to dismiss the appeal or to give Berger an extension of time to file the proper papers. The alternative motion was granted by order of this Court. The order expressly required Berger, if he wanted review, to file a petition for review and a brief. Berger filed a petition requesting oral argument but he did not file the brief. For failure to conform to the Rules and our order, the request for oral argument is denied. We have considered Berger’s petition and find it to be meritless.

Disciplinary proceedings, under Article XI of the Integration Rule, were initiated by the Bar against Berger. He was charged with four counts of violations of the Code of Professional Responsibility. The first concerned his failure to properly account for monies entrusted to him by a client and to withdraw from a case after being discharged. The second involved statements made to the U. S. Secret Service which called into question his fitness to practice law. The third and fourth charged forgery and mishandling of real estate transactions. Berger admitted to the referee assigned to hear the matter guilt of each charge.

The referee reported that independent of Berger’s admissions there existed ample evidence of guilt as to each charge. He recommended that Berger be suspended from the practice of law for one year and after that time be allowed to resume practice only upon a showing of rehabilitation and fitness. Further, he recommended that Berger be ordered to resolve the complaints made to the Bar against him in a number of cases listed in the referee’s report; or that he enter binding arbitration as to all issues in the listed cases; and that he file quarterly statements with the Clerk of this Court accounting for monies or property held by him in trust in his name or in the name of D. or Dora Berger.

There is sufficient evidence to support the referee’s findings and we think his recommendations are in the best interests of the public and the legal profession. We hereby suspend the respondent from the practice of law for one year and thereafter until he demonstrates rehabilitation and fitness to practice. We order, too, that respondent comply with the other recommendations made by the referee. Respondent is ordered to pay the costs of these proceedings in the amount of $656.90.

It is so ordered.

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

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

HATCHETT, Justice,

concurring in part, dissenting in part.

I concur with the majority in finding Berger guilty on Counts I and III, but I would find him not guilty on Count II (a criminal charge that never went to trial).

I would also suspend Berger for two years.


author: SUNDBERG, Justice.

text:
    Mark BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 50559.
    Supreme Court of Florida.
    April 5, 1978.
    Jack O. Johnson, Public Defender, Robert H. Grizzard, II, Chief Asst. Public Defender, Bartow, and Charles L. Carlton, Lake-land, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SUNDBERG, Justice.

This appeal invites us to revisit the issue of the constitutionality vel non of Section 847.04, Florida Statutes (1975). On July 3, 1976, appellant Brown was arrested and charged by information with “open profanity” in violation of Section 847.04, Florida Statutes (1975). The information was filed after appellant had uttered “offensive” remarks while in the presence of one Patrolman Newman who had answered a call to proceed to the house of appellant’s father. Once the policeman arrived, the appellant got into the patrol car. Newman requested that Brown exit the automobile, at which point appellant replied he was “tired of the mother-f_’cause they weren’t doing him right.” Apparently, appellant was referring to his by-standing father. After the officer asked appellant to “hold down the profane language,” Brown enunciated similar distasteful comments about his father, again in the presence of the patrolman.

Appellant was standing approximately twenty-five (25) feet from his father at the time he pronounced his derogatory remarks and was still further removed from other relatives who were standing on the porch of the house. Newman testified that while appellant’s father was puzzled and angry when he arrived at the scene, the father did not become any angrier after hearing the word “mother-f_” The patrolman testified further that Brown’s comments were not directed to him personally, but Newman “figured he shouldn’t be out there in public using words like that.”

Pursuant to Florida Rules of Criminal Procedure 3.190(c), the appellant filed a motion to dismiss the information on the grounds that the statute was unconstitutional on its face and as applied to him, and that his speech was not violative of the statute in light of the narrow construction placed on the statute in State v. Mayhew, 288 So.2d 243 (Fla.1973). A hearing was held on the motion in the County Court of Polk County, Florida, and the motion was denied. On October 8, 1976, the appellant entered a plea of nolo contendere reserving the right to appeal the denial of his motion to dismiss. He was adjudicated guilty of violating Section 847.04, Florida Statutes (1975), sentenced to time served (three days), and fined $25. Appellant has now prosecuted an appeal in this Court alleging that the county court erred in denying his motion to dismiss on the grounds that the statute in issue is unconstitutional on its face because it seeks to regulate pure speech and because it is vague and over-broad. He also contends that his speech did not fall under the behavior proscribed by the statute. Because the trial court passed directly on the validity of Section 847.04, Florida Statutes (1975), on the face of its order denying appellant’s motion to dismiss, jurisdiction vests in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

In attacking the facial validity of Section 847.04, Florida Statutes (1975), appellant must necessarily encounter this Court’s decision in State v. Mayhew, supra, wherein the identical statute was upheld as constitutional. The Mayhew Court found that the enactment of Section 847.04, Florida Statutes (1975), was a valid exercise of the State’s police power and was reasonably related to the public safety, public welfare and public morals. In addition, the Court sustained the statute in the face of accusations that it was vague and overbroad after it construed the statute to limit the speech regulated to words likely to cause a breach of the peace. Relying on Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), this Court stated;

The language sought to be proscribed by Section 847.04, Florida Statutes, F.S.A., falls within the narrowly limited classes of speech described by the Supreme Court in Chaplinsky which “ . . . include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words’ — those which by their utterance inflict injury or tend to incite an immediate breach of the peace.” In accordance with the policy of this Court to construe a statute when possible in a manner supportive of its constitutionality, we find that the language sought to be prohibited by Section 847.04, Florida Statutes, F.S.A., is that which would necessarily incite a breach of the peace.

288 So.2d at 251.

The Court later attempted to elaborate on just what kind of language “would necessarily incite a breach of the peace.” It quoted from Cantwell v. State, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), in which the United States Supreme Court stated that “the provocative language which was held [in judicial decisions] to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer.” The Mayhew Court, then adopted the Chaplin-sky authoritative construction by narrowing the statute’s scope to proscribe fighting words, although the specific holding of Mayhew does not state this limitation. Nor, does the opinion expressly define the words “necessarily incite a breach of the peace” as meaning “words likely to cause an average addressee to fight” which appears to be the critical aspect of Chaplinsky.

In the Mayhew decision, this Court felt obliged to distinguish Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). Gooding arose as a result of an anti-war demonstration at an army headquarters building. The demonstrators tried to block the entrance to the building in order to prevent the inductees from entering. When the demonstrators refused to comply with the policemen’s requests that they cease such conduct, an encounter arose in which the defendant, Wilson, purportedly said to a patrolman, “White son of a bitch, I’ll kill you,” “you son of a bitch, I’ll choke you to death,” and “you son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.”

Wilson was convicted in Georgia State Court under a statute which provides that “any person who shall, without provocation, use to or of another, and in his presence . opprobrious words or abusive language tending to cause a breach of the peace . . shall be guilty of a misdemeanor.” Ga.Code Ann. § 26-6303 (1957) [now Ga.Code Ann. § 26-2610 (1972)]. The conviction was affirmed by the Supreme Court of Georgia. Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967). That court found the statute “conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice,” thereby discarding appellant’s argument that the statute was unconstitutionally vague. Wilson filed a writ of habeas corpus in federal district court again challenging the constitutionality of the Georgia statute. Both the district court and the court of appeals held that the statute was unconstitutionally vague and overbroad. After noting probable jurisdiction, the Supreme Court of the United States agreed with the lower federal courts. The majority opinion, written by Justice Brennan, stated that a state statute which by its terms or judicial application, prohibits the use óf language not within the class of “fighting words” is unconstitutionally over-broad, and it cannot withstand attack even by one whose speech would appear to fall within the category of “fighting words.” Thus, the mere possibility that a statute will ensnare protected as well as unprotected speech may be sufficient to invalidate the statute.

To ascertain whether the Georgia statute had the potential to infringe upon protected areas, the Court looked exclusively to past interpretations of the statute by the Georgia courts. The Court found these past Georgia decisions had not given the statute the requisite narrow construction, thus making the statute void for overbreadth. Statements such as “God damn you, why don’t you get out of the road,” and “you swore a lie” had been held to create jury questions as to whether these words were “opprobrious.” Further, Georgia’s definition of “breach of the peace” encompassed “words offensive to some who hear them, and so sweeps too broadly.”

The Mayhew Court distinguished Gooding on the premise that the Georgia Supreme Court had not authoritatively construed the statute to limit it to “fighting words” in prior cases. It emphasized that:

The court in Gooding [had] pointed out that authoritative construction by Georgia courts could have saved the statute in question .

State v. Mayhew, 288 So.2d at 250.

While we agree today with the Mayhew Court that in appropriate instances a court may authoritatively construe a statute so that it does not conflict with the federal or state constitution, we cannot condone judicial excision of statute’s overbreadth or clarification of its ambiguities where, as here, there is no statutory language to support judicial restructuring. Because this Court in Mayhew attempted to limit the scope of Section 847.04, Florida Statutes (1975), to spoken words addressed to a particular person which would cause that person to fight without any statutory language to support such a limitation, we are now constrained to find the statute in question violative of Article I, Section 4, Florida Constitution and, consequently, incapable of redemption. This is so because men of common understanding upon reading the statute would reasonably conclude that mere utterance of the proscribed language, without more, could subject them to prosecution. The impermissible chilling effect upon constitutionally protected speech is apparent. See State v. Saunders, 339 So.2d 641 (Fla.1976).

In Chaplinsky v. New Hampshire, supra, the statute in issue read as follows:

No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.

Ch. 378, § 2, of the Public Laws of New Hampshire.

The New Hampshire Supreme Court severed the statute and considered only the first part of it. That Court stated:

The section of the statute involved has two provisions. The first relates to words and names applied by one directly to another in a public place. The second refers to noises or exclamations, possibly not directed to the person derided, but with the intent expressed. The two provisions are distinct. One may stand separately from the other. Assuming, without holding, that the second were unconstitutional, the first could stand if constitutional.

State v. Chaplinsky, 91 N.H. 310, 312, 18 A.2d 754, 757 (1941).

Thus, that portion of the New Hampshire statute before the New Hampshire Supreme Court and later the United States Supreme Court provided:

No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name .

The statute could be interpreted to prohibit only the “face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker . . .” State v. Chaplinsky, supra. This narrow interpretation was justified because the statute specifically proscribed offensive, derisive, or annoying language addressed to another person which could cause that person to fight. See Justice Ervin’s dissent in State v. Mayhew, supra.

In Gooding v. Wilson, supra, the Georgia statute under review stated:

Any person who shall without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . shall be guilty of a misdemeanor.

Georgia Code Ann. § 26-6303.

On its face, this statute was even more specific than the statute examined in Chap-linsky in limiting the prohibited speech to “fighting words.” It suggested that the conduct sought to be proscribed was language directed either directly or indirectly to a person tending to cause a breach of the peace. While the United States Supreme Court found that past Georgia decisions had not given the statute the requisite narrow construction, it stated, understandably, that an authoritative construction could have redeemed the Georgia act. Again, the statutory language necessary to support an authoritative construction was present had the Georgia courts chosen to so construe the statute.

Unlike the statutes examined in Chaplinsky and Gooding, Section 847.04, Florida Statutes (1975), contains no language to support the restrictive interpretation placed on the statute by the Mayhew Court. Our statute seeks to punish only spoken words, whether they be directed to a particular person or not. Pursuant to the provisions of our statute, a person could shout profanities alone in an open field, and if those words were heard by another person, he could be subject to criminal prosecution. As Justice Ervin stated eloquently in dissenting from the majority opinion in Mayhew:

There are no saving words in our statute upon which this Court can honestly state it is inoffensive to the First and Fourteenth amendments. There was such a basis in the New Hampshire and Georgia statutes. Only by a bald judicial amendment similar to a legislative enactment can the statute be said not to violate freedom of speech. There is nothing in the statute to indicate it is limited to “fighting” words.

State v. Mayhew, 288 So.2d at 252.

While we recognize that the state has an important interest in proscribing face-to-face encounters which are likely to cause a breach of the peace, we cannot endorse legislative regulation of mere spoken words when the freedom to speak one’s beliefs is valued so preciously in our society.

This Court has traditionally adhered to the policy that all doubts as to the validity of a statute are to be resolved in favor of constitutionality when reasonably possible. Carter v. Sparkman, 335 So.2d 802 (Fla.1976); State v. Aiuppa, 298 So.2d 391 (Fla.1974). However, it has also been wary of transcending its constitutional authority by invading the province of the legislature. State v. Wershow, 343 So.2d 605 (Fla.1977); State v. Egan, 287 So.2d 1 (Fla.1973). When the subject statute in no way suggests a saving construction, we will not abandon judicial restraint and effectively rewrite the enactment. The Florida Constitution requires a certain precision defined by the legislature, not legislation articulated by the judiciary. See Article II, Section 3, Florida Constitution. This constitutional mandate obtains for two reasons. First, if legislative intent is not apparent from the statutory language, judicial reconstruction of vague or overbroad statutes could frustrate the true legislative intent. Second, in some circumstances, doubts about judicial competence to authoritatively construe legislation are warranted. Often a court has neither the legislative fact-finding machinery nor experience with the particular statutory subject matter to enable it to authoritatively construe a state. See Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (Frankfurter, J., concurring). The judicial body might question with justification whether its interpretation is workable or whether it is consistent with legislative policy which is, as yet, undetermined.

A court is not so restricted where the statute describes activity which the state can control even though its coverage is too sweeping. In this case, the perils enunciated above are not so ominous. In accordance with the court’s duty to construe a statute so as not to conflict with the Constitution, the overbroad language might be excised instead of the entire statute being declared facially invalid. In the case sub judice, however, judicial excision will not produce a statute of constitutional dimension because excision cannot limit the law to fighting words directed to another as mandated by Chaplinsky v. New Hampshire, supra. We can only conclude that “[t]he separation of legitimate from illegitimate speech calls for more sensitive tools than [the legislature in § 847.04, F.S. (1975)] has supplied.” Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). This is so because the freedom to speak one’s thoughts is the matrix, the indispensable condition of nearly every other form of freedom, Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963); accord, Spears v. State, 337 So.2d 977 (Fla.1976).

Accordingly, we are constrained to recede from our earlier holding in State v. Mayhew, supra, and find Section 847.04, Florida Statutes (1975), unconstitutional under the Florida Constitution because it seeks to punish pure speech.

The judgment of the county court is reversed with directions that appellant be discharged.

It is so ordered.

ENGLAND, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., and ADKINS and BOYD, JJ., dissent.

      . § 847.04, Fla.Stat. (1975), reads as follows:
      Open profanity. — Whoever, having arrived at the age of discretion, uses profane, vulgar and indecent language, in any public place; or upon the private premises of another, or so near thereto as to be heard by another, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.-083; but no prosecution for any such offense shall be commenced after 20 days from the commission thereof.”

      . Jackson v. State, 14 Ga.App. 19, 80 S.E. 20 (1913).

      . Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905).


text:
    Jeff DONNER, Petitioner, v. ARKWRIGHT-BOSTON MANUFACTURERS MUTUAL INSURANCE COMPANY, a Foreign Corporation authorized to do business in the State of Florida, B. R. Styers and Edward F. Brown, Respondents.
    No. 51996.
    Supreme Court of Florida.
    April 6, 1978.

      Edward A. Perse of Horton, Perse & Ginsberg, and Ratiner & Glinn, Miami, for petitioner.
    Robert M. Klein, of Stephens, Schwartz, Lynn & Chernay & Brandy, P.A., Miami, for respondents.
   SUNDBERG, Justice.

By petition for writ of certiorari, petitioner seeks review of a decision of the District Court of Appeal, Third District, reported at 346 So.2d 1210 (Fla. 3d DCA 1977), which is alleged to be in conflict with our recent opinion in Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). In Blackburn, this Court held that the defense of assumption of risk has become merged with the doctrine of comparative negligence and no longer constitutes a complete bar to a cause of action. We noted that assumption of risk was not a favored defense and that the “potpourri of labels, concepts, definitions, thoughts, and doctrines” which were indiscriminately applied to the doctrine produced an “enigma wrapped in a mystery.” In the instant cause, in which petitioner sustained a dog bite injury, the trial judge instructed the jury on the doctrine of assumption of risk over petitioner’s objection. The District Court of Appeal, Third District, affirmed per curiam notwithstanding the principles enunciated in Blackburn, of which the district court was made aware prior to rendition of its decision. Accordingly, jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

While visiting respondent Edward F. Brown at his home, petitioner sustained an injury when a dog owned by Brown bit him on the mouth. Respondent Arkwright-Boston Manufacturers Mutual Insurance Company was named as a co-defendant by virtue of the homeowners insurance agreement which it had with Brown.

The dog, a 60-pound female Doberman pinscher, had no prior history of vicious propensities but was in heat at the time the injury was inflicted. When petitioner first made a gesture to pet the animal, which was penned up in the kitchen of the Brown home, he was notified of her condition and also told that she was nervous because it was thundering outside. Consequently, he refrained from touching her. Shortly thereafter, petitioner returned to the location of the kitchen, began stroking the dog on the top of the head and scratching her under the chin, whereupon petitioner was bitten on the lip.

Pursuant to Sections 767.01 and 767.04, Florida Statutes (1975), petitioner sought damages from respondents. At his jury trial, petitioner moved for a directed verdict on the liability question at the close of all the evidence, which motion was denied. A charge conference was then held at which point counsel for respondents requested charges on the statutory defenses of mischievous or careless provocation or aggravation as well as assumption of risk defense. Petitioner’s counsel objected to the giving of the assumption of risk charge, contending that the defense had been merged with the doctrine of comparative negligence in view of this Court’s opinion in Blackburn v. Dorta, supra. However, as previously noted, the trial judge ultimately gave the standard jury charge on assumption of risk as well as the charge on the statutory defenses. The jury returned a verdict in favor of respondents and, in accordance therewith, a final judgment for respondents was entered. After his motion for a retrial was denied, petitioner appealed to the District Court of Appeal, Third District, which affirmed per curiam, without opinion, the final judgment.

Petitioner now asks this Court to quash the decision of the District Court of Appeal, Third District, on the ground that the trial court erroneously instructed the jury on the defense of assumption of risk. He contends that the jury should have been charged exclusively on the language of the statutes, which language in no way articulates the assumption of risk doctrine, but which does create statutory defenses where the injured individual “mischievously or carelessly provokes or aggravates” the dog. While petitioner concedes that the statutory defenses would frequently be applied in much the same fashion as the doctrine of assumed risk, he suggests that to continue permitting trial courts to instruct on the common law doctrine will foster confusion. This is asserted because in Blackburn v. Dorta, supra, the doctrine of assumed risk was merged with that of contributory negligence. The latter doctrine it is argued is not applicable to dog bite cases where the action is not grounded in negligence; rather, the owner of a dog acts as a virtual insurer with regard to injuries caused by his dog. Sand v. Gold, 301 So.2d 828 (Fla. 3d DCA 1974); cert. denied 312 So.2d 752 (Fla.1975); Vandercar v. David, 96 So.2d 227 (Fla. 3d DCA 1957). We agree with petitioner that the jury should not have been instructed separately on assumption of risk but should have been charged solely on the defenses expressed in Section 767.04.

Prior to legislative enactment, the common law as adopted by Florida had become well settled regarding the liability of dog owners. In Smith v. Pelah, 2 Strange 1264, 93 Eng.Rep. 1171 (1747), the court proposed that it was a wrong to humanity to maintain a dog known to harbor vicious propensities. The gist of the action was the owner’s knowledge of the dog’s dangerous inclinations. Conversely, an owner who lacked knowledge of the vicious tendencies of his dog escaped liability. Mason v. Keeling, See 1 Ld.Raym. 606, 608, 91 Eng.Rep. 1305, 1307 (1700). However, it was often difficult and sometimes impossible to prove this element of scienter. Accordingly, the Florida Legislature enacted statutes designed to obviate the element of scienter, and make the dog owner the insurer against damage done by his dog. In Carroll v. Moxley, 241 So.2d 681 (Fla.1970), which prior to the instant cause was this Court’s latest exposition on the subject statute, we held that Section 767.04, Florida Statutes, superseded the common law in those situations covered by the statute. In that case, the plaintiff entered a store operated by her mother, the defendant. Defendant owned a German shepherd which she kept inside the store. Beside a counter inside was a gate with signs on it warning “Beware of Dog” and “Keep out.” While plaintiff knew that the dog had previously bitten a customer, it had always been friendly to her. However, during this latest visit the dog bit her on the face. Plaintiff brought suit under Section 767.04, Florida Statutes, and also under the common law. The trial judge ruled that Section 767.04 superseded the common law and that liability did not lie under the statute since a “Bad Dog” sign was posted. He then entered summary final judgment in favor of defendant and plaintiff appealed to this Court. We stated:

The contention that Plaintiffs have a cause of action both under Fla.Stat. § 767.04, F.S.A., and the common law is without merit. It has been previously held that the subject statute modified the common law, in that it makes the dog owner the insurer against damage by his dog with certain exceptions, departing from the common law doctrines grounded in negligence. See Romfh v. Berman, 56 So.2d 127 (Fla.1951); Vandercar v. David, 96 So.2d 227 (Fla.App. 3rd, 1957); Knapp v. Ball, 175 So.2d 808 (Fla.App. 3rd, 1965). It is concluded that Fla.Stat. § 767.04, F.S.A., supersedes the common law, only in those situations covered by the statute. 241 So.2d at 682.

The Court then reversed in part the summary judgment finding that there existed a genuine issue of material fact as to whether the sign was posted in a prominent place. Thus, while we held that plaintiff did not have a cause of action under both the statute and the common law, it was unnecessary to expressly state at that time whether the corollary was also true, i. e., whether the common law defenses such as assumption of risk were superseded by those defenses specifically enunciated in the statute. Today we reach that question and find that these common law defenses were so superseded. Consistent with our reasoning in Moxley, supra, we can only conclude that in making the dog owner the insurer against damage done by his dog, thereby supplanting the common law negligence-type action, the legislature intended to shoulder him with the burden of his animal’s acts except in the specific instances articulated in the enactment — where the dog is provoked or aggravated or the victim is specifically warned by a sign. With regard to those statutory defenses, the legislature apparently felt that good morals dictated that if a person kicks, teases, or in some other way provokes the dog into injuring him, he should not be compensated.

We recognize that our decision today appears to overrule a number of opinions issued by the District Courts of Appeal of this State stating that the doctrine of assumed risk is a valid defense under the statute. See Allstate Insurance Co. v. Greenstein, 308 So.2d 561 (Fla. 3d DCA 1975); Hall v. Ricardo, 297 So.2d 849 (Fla. 3d DCA 1974); Issacs v. Powell, 267 So.2d 864 (Fla. 2d DCA 1972); English v. Seachord, 243 So.2d 193 (Fla. 4th DCA 1971); Vandercar v. David, supra. However, a careful reading of those cases will show that the defenses asserted, liberally labelled as assumption of risk, were in reality based upon provocation or aggravation of the animal. It was precisely this indiscriminate and interchangeable use of the term assumption of risk which we condemned in Blackburn v. Dorta, supra, as creating an “enigma wrapped in a mystery.”

The decision which seems to have initiated the proposition that assumption of risk constitutes a valid defense under the statute is Vandercar v. David, supra. In that case, appellee/plaintiff was injured from a fall allegedly caused by appellant’s dog. As stated by the District Court of Appeal, Third District:

The case went to the jury on the issue of whether the defendant’s dog caused the plaintiff’s fall. The evidence on that issue included some facts of a kind which could have been relied on to establish assumption of risk by the plaintiff, through inciting and provoking or inducing the dog’s playful conduct which caused her to fall. (Emphasis supplied) 96 So.2d at 228.

The court then went on to distinguish Section 767.01 from Section 767.04, noting that the latter by its express wording is concerned with a dog owner’s liability for dog bites while the former applies to injuries to a person caused by a dog other than by biting. Appellant argued that Section 767.-04 expressly allowing statutory defenses was applicable to an injury caused by an animal other than a dog bite injury. Appel-lee contended that Section 767.04 applied only to dog bite damage and that if Section 767.04 repealed and superseded Section 767.01 pursuant to this Court’s holding in Romfh v. Berman, 56 So.2d 127 (Fla.1951), it did so only as to dog bite damage leaving Section 767.01 in effect for other injury by dogs. This Court then held that:

We are not required to pass upon the conflicting contentions of the parties as to whether or not the 1949 act has superseded the earlier act for injuries by dogs other than by biting, because even under the latter, Section 767.01, the defense of assumption of risk can be raised. 96 So.2d at 229.

The following language from the California District Court of Appeal, Second District, was then cited, with approval by the District Court of Appeal, Third District, to substantiate its holding:

While the Dog Bite Statute does not found the liability on negligence, good morals and sound reasoning dictate that if a person lawfully upon the portion of another’s property where the biting occurred should kick, tease, or otherwise provoke the dog, the law should and would recognize the defense that the injured person by his conduct invited injury and therefore, assumed the risk thereof. (Emphasis supplied)
Smythe v. Schacht, 93 Cal.App.2d 315, 321, 209 P.2d 114, 118 (1949).

Thus, the Vandercar court impliedly concluded that the provocation defense could be equated with the doctrine of assumed risk.

In English v. Seachord, supra, the District Court of Appeal, Fourth District, cited Vandercar, supra, in stating:

Nor may an owner raise contributory negligence as such (emphasis theirs) as a defense to an action for injuries, although assumption of the risk, usually based on provocation or aggravation of the dog, is permissible as a defense. (Emphasis supplied)

243 So.2d at 194.

The court later found:

Plaintiff’s conduct, then, may be considered in a dog injury case only insofar as it amounts either to provocation or to proximate causation. (Emphasis supplied)

243 So.2d at 195.

Thus, while these cases were conceptually accurate in finding that the defense to the statutory right of action was predicated upon provocation of the dog, as enunciated in the statute, they incorrectly classified this defense as assumption of risk.

In sum, we find that a dog owner who is brought to trial pursuant to Section 767.04, Florida Statutes (1975), has available to him only the defenses expressed in the statute. To the extent that earlier decisions of the District Courts of Appeal express or imply the existence of a separate defense predicated upon assumption of risk, they are hereby overruled.

Accordingly, the petition for writ of cer-tiorari is granted, the decision of the District Court of Appeal, Third District, is quashed, and this cause is remanded to that court, with instructions to remand to the trial court for further proceedings not inconsistent with the views expressed herein.

It is so ordered.

BOYD, ENGLAND and HATCHETT, JJ., concur.

OVERTON, C. J., dissents.

      . § 767.01, Fla.Stat. (1975), reads as follows:

        “Owners responsible. — Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.”
      § 767.04, Fla.Stat. (1975), reads as follows:

        “Liability of owners. — The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners’ knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon invitation, expressed or implied, of the owner thereof; Provided, however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words “Bad Dog.”

      . See Malafronte v. Miloni, 35 R.I. 225, 86 A. 146, 147 (1913), wherein the court stated:
      “One purpose, and possibly the main purpose of this statute was to relieve plaintiffs from the burden of proving knowledge, which was frequently difficult for them to do; their inability in that regard often resulting practically in a denial of justice.”

      . Fla.Rev.Gen.Stat. § 2341 (1892) was included as Sec. 7044 of Compiled General Laws, 1927, and was reenacted in 1941 as § 767.01, Fla.Stat. (1941). § 767.04 was enacted in 1941 as S. 1, Chap. 25109, Laws of Florida (1949).

      . In Seachord v. English, 259 So.2d 136 (Fla.1972) (Ervin, J., dissenting), a case dealing with § 767.04, this Court discharged the writ of certiorari as being improvidently granted.

      . While petitioner concedes that the statutory defenses of “mischievously or carelessly provoking or aggravating the dog” would have to be applied in much the same fashion as the common law doctrine of assumed risk, we note that the statutory and common law defenses are not synonymous. One can knowingly and voluntarily expose himself to the danger of a vicious dog without necessarily provoking or aggravating him maliciously or carelessly.

      . Other cases, in citing Vandercar, blindly declare in dictum that assumption of risk is a valid defense under the statute. Allstate Insurance Co. v. Greenstein, supra; Hall v. Ricardo, supra. Yet, neither of the cases elucidate what constitutes assumption of risk within the context of § 767.04, Fla.Stat. (1975).


author: PER CURIAM.

text:
    In re CERTIFICATE OF JUDICIAL MANPOWER as Required by Section 9, Article V, Constitution of Florida, as Revised March 14, 1972, for Circuit and County Courts.
    No. 53809.
    Supreme Court of Florida.
    April 13, 1978.
   PER CURIAM.

This Court has determined, after consideration of all available statistical information, that four new judicial positions consisting of three circuit judges and one county judge are needed for the proper operation of the court system of this state.

Eight circuits in the state made requests for additional judicial manpower. These requests were as follows:

Circuit County
Judges Judges
Fourth Circuit 1
Seventh Circuit 1
Ninth Circuit 1 2
Eleventh Circuit 2 1
Thirteenth Circuit 1
Fifteenth Circuit 2 2
Seventeenth Circuit 5 2
Eighteenth Circuit 1 _
Total Requests 14 7

The chief judges of the circuits were afforded an opportunity to explain in detail to the Chief Justice their respective judicial manpower needs.

The four judicial positions approved for certification consist of one circuit judge each for the Fourth, Seventh, and Thirteenth Judicial Circuits, and one county judge for Palm Beach County.

The need for the additional circuit judge in the Seventh Judicial Circuit is justified by the fact that it has the highest per-judge case load of any circuit in the state and has had a substantial increase in its felony case load.

The need for the additional circuit judges in the Fourth and Thirteenth Judicial Circuits is because each has had very substantial increases in juvenile proceedings, and the additional judge positions will allow the needed additional judge to be assigned to that division.

The need for the additional county judge in Palm Beach County is to provide necessary judicial service to the thirty-seven municipalities and to adequately cover the seven separate court locations now existing in that county.

This certification is conservative. The funds for these additional judge positions have been more than adequately provided for in the Governor’s proposed budget. It must be clearly understood that this certification does not take into account any increased judicial work load which might result from a substantial increase in mandatory sentence provisions, the abolishment of plea bargaining, or the return to the state courts of the diversity jurisdiction cases now in the federal courts. With reference to the latter, it appears that by congressional act the state court system will receive these diversity cases within the next year but at present it does not appear that new judge positions will be necessitated to absorb this case load.

CERTIFICATION

We therefore, in accordance with Section 9, Article V, Constitution of Florida, as revised March 14, 1972, hereby certify the need for one additional county court judge in Palm Beach County; one additional circuit judge in the Fourth Judicial Circuit consisting of Duval, Nassau, and Clay Counties; one additional circuit judge in the Seventh Judicial Circuit consisting of Flagler, Putnam, St. Johns, and Volusia Counties; and one additional circuit judge in the Thirteenth Judicial Circuit consisting of Hillsborough County; for a total of four additional trial court judicial positions.

This Court certifies the aforementioned judicial officers as necessary and recommends that they be made permanent by law and funded by this state.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.


author:
PER CURIAM.
      ADKINS, Judge,

text:
    CITY OF HALLANDALE, Florida, a Municipal Corporation through its duly elected city council, to wit, Mayor Milton Weinkle, Jack Spiegel, John Saunders, Howard Foreman and Ray Blystone, Petitioners, v. LEISURE COLONY MANAGEMENT CORP. and Dubussey Realty N. V. d/b/a Lamer Condominium Estates, Respondents.
    No. 49101.
    Supreme Court of Florida.
    April 13, 1978.
    Sam Spector and Cynthia S. Tunnicliff, of Spector & Tunnicliff, Tallahassee, Levin, Warfield, Middlebrooks, Graff, Mabie, Ro-senbloum & Magie, Pensacola, and J. T. Frankenberger, City Atty., Hallandale, for petitioners.
    Marion E. Sibley and Irving B. Levenson, of Sibley, Giblin, Levenson & Ward, Miami Beach, for respondents.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court. We issued the writ and have heard argument of the parties. After hearing argument, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the writ must be and is hereby discharged and the petition for writ of certiorari is dismissed.

It is so ordered.

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

ADKINS, J., dissents with an opinion, with which SUNDBERG, J., concurs.

ADKINS, Judge,

dissenting:

I dissent. By petition for certiorari, we have for review a decision of the Fourth District Court of Appeal (City of Hallandale v. Leisure Colony Management Corp., 328 So.2d 851), which allegedly conflicts with a prior decision of this Court (Coogler v. Rogers, 25 Fla. 853, 7 So. 391 [1889]) and other decisions on the same point of law. Article V, Section 3(b)(3), Florida Constitution.

The petitioner, hereinafter referred to as the “City”, enacted an ordinance in 1964 specifying the number of parking spaces required for each apartment. This ordinance was amended in 1966 and again in 1968. The 1968 amendment required one and one-tenth parking space for each apartment.

In November, 1968, the respondent, hereinafter referred to as “Leisure Colony”, requested a building permit for the first building of a three-building apartment complex. The building permit was issued in December, 1968, and construction of a 162-unit apartment building began shortly thereafter.

In March, 1969, the City amended the off-street parking ordinance so as to provide one and one-fourth parking spaces for each dwelling unit, and in January, 1970, the City enacted an ordinance which limited density in the area to 79 units per acre.

At a city commission meeting on July 14, 1971, it was agreed between the City and the attorney for Leisure Colony that Leisure Colony would proceed with the second and third buildings in the complex, which were in excess of the density requirements, provided that building No. 3 complied with the off-street parking ordinance and allowed one and one-fourth parking spaces for each apartment unit. This agreement was confirmed by a letter from Leisure Colony.

On July 16,1971, the City issued a building permit for building No. 2. On September 21, 1972, a building permit was issued for building No. 3. A certificate of occupancy was issued for building No. 2, but on January 2,1974, the City learned that there were insufficient parking spaces for the project. Consequently, the City determined that Leisure Colony would be denied a certificate of occupancy unless the required one and one-fourth parking spaces per apartment unit was provided. Leisure Colony first stated that it would provide the requested parking, but on April 16, Leisure Colony requested a variance so as not to comply with the parking ordinance. The variance was not allowed and the City refused to issue the certificate of occupancy for building No. 3.

Leisure Colony then instituted the instant suit seeking a mandatory injunction and contending that it was entitled to the certificate of occupancy even in the absence of sufficient parking because the parking ordinance which required one and one-fourth spaces per apartment unit was, in fact, a zoning ordinance and had not been enacted pursuant to valid notice and hearing.

The City in its answer included the affirmative defense of estoppel alleging that in consideration for the issuance of the building permit Leisure Colony agreed to provide one and one-fourth parking spaces per apartment unit. This agreement was allegedly made by the city commission and verified by a letter to that effect. The City further alleged that the agreement was partially performed by the acceptance of the building permit by Leisure Colony.

Upon hearing, the trial judge found that the affirmative defense of estoppel was not a valid defense and entered a judgment on the pleading. This decision was affirmed by the District Court of Appeal. The City says this decision conflicts with the principles enunciated in Coogler v. Rogers, supra, reading as follows:

“This court in an early day, and in a well-considered case, used the following language: ‘The technicalities incident to estoppels [especially in pais ] are gradually giving way to considerations of reason and practical utility; and the courts of the present day seem disposed to give force and efficacy to a doctrine which is based upon principles of justice and the purest morality.’ Camp v. Moseley, 2 Fla. 171, text. From cases cited above, and numerous others adjudicated, the law of estoppel may be briefly laid down as follows: (1) Words and admissions, or conduct, acts, and acquiescence, or all combined, causing another person to believe in the existence of a certain state of things. (2) In which the person so speaking, admitting, acting, and acquiescing did so willfully, culpably, or negligently. (3) By which such other person is or may be induced to act so as to change his own previous position injuriously.” 7 So. at 394.

The decisions conflict and we have jurisdiction. It is apparent from the allegations of the answer that Leisure Colony would provide one and one-fourth parking spaces; that in reliance upon such an assertion the City agreed to and did alter its previous position by issuing a building permit for a building which was in excess of the density requirements for the area. This detrimental change in position by the City, based on the agreement of Leisure Colony that they would comply with the ordinance, is sufficient to assert the defense of estoppel.

Leisure Colony says that the off-street parking requirements are contained in an ordinance which was adopted without the prerequisite of publication of notice of hearing and there can be no stipulation by which the parties agree to validate a legally invalid ordinance. From the allegations of the pleadings, it affirmatively appears that the City allowed Leisure Colony to build a building in excess of the density requirements in reliance upon Leisure Colony’s agreement to abide by the provisions in the off-street parking ordinance. Leisure Colony applied for and received the building permit with full knowledge that it would be required to provide the off-street parking facilities. After receiving the benefits afforded by the building permits, Leisure Colony now seeks to void the burden of the resulting obligation to provide off-street parking. Even if it were decided that these acts did not technically constitute a legally enforceable contract, I am firmly of the view that these acts, when considered in connection with the other facts alleged in the pleading, make this an exceedingly strong case for the application of doctrine of estoppel.

The answer to the amended complaint specifically denied certain allegations. For example, Leisure Colony alleged that building No. 3 was constructed in accordance with plans and specifications previously submitted to the City. The City denied this allegation. Leisure Colony alleged that the off-street parking ordinance was a zoning ordinance and invalid. These allegations were denied by the City. Apparently, there was an issue of fact as to the validity of the ordinance and Leisure Colony’s compliance with it.

The finding in the final judgment that all buildings had been completed was in complete disregard of defendant’s denial.

In Paradise Pools v. Genauer, 104 So.2d 860 (Fla.3d DCA 1958), the court, in reversing a judgment on the pleadings, said that the rule of law to be applied upon a motion for judgment on the pleading is correctly stated in 2 Moore’s Federal Practice, 2d Ed., 2269, as follows:

“Under the orthodox rule, a motion for judgment on the pleadings must be sustained by the undisputed facts appearing in all the pleadings, supplemented by any facts of which the court will take judicial notice. For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not deemed admitted. Judgment on the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment. Hence , a defendant may not obtain a judgment on the pleadings on the basis of the allegations in his answer where no reply is required, since under Rule 8(d) these allegations are deemed denied; nor may defendant move on the basis of an insufficient denial of the allegations of his answer in plaintiff’s reply, where the reply was not required or ordered by the court.”

Issues of fact were raised by the answer that should be determined by the Court. For the purposes of the motion all well-pleaded material allegations of the City’s answer are to be taken as true, and all allegations of Leisure Colony’s complaint that have been denied are taken as false. Conclusions of law are not deemed admitted. AIA Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126 (Fla. 4th DCA 1971); Pelle v. Gluckman, 269 So.2d 33 (Fla. 3d DCA 1972).

Also, the decision of the District Court of Appeal in the case sub judice affirming the trial court’s judgment that the off-street parking ordinance is a zoning ordinance, is in conflict with City of Miami Beach v. 100 Lincoln Road, Inc., 214 So.2d 39 (Fla. 3d DCA 1968), which stated:

“The authorities seem agreed that the purpose of off-street parking requirements is not to provide every tenant with a parking space at all times but rather to alleviate traffic congestion. See School Dist. of Philadelphia v. Zoning Bd. of Adjust., 417 Pa. 277, 207 A.2d 864, 868 (1965); 1 Yokley, Municipal Corporations, § 245; 58 Mich.L.Rev. 1068, 1071.” At 39-40.

The decision of the District Court of Appeal should be quashed.

SUNDBERG, J., concurs.


text:
    The ESTATE of James A. ALLEN, Deceased, Appellant, v. DUVAL COUNTY HOSPITAL AUTHORITY, Appellee.
    No. GG-224.
    District Court of Appeal of Florida, First District.
    Feb. 17, 1978.
    Richard Lovett Brown, Jacksonville, for appellant.
    E. Robert Williams, of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Aldana v. Holub et al., 354 So.2d 1272 (Fla. 1st DCA 1978). See also Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977).

McCORD, C. J., BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


author: ANSTEAD, Judge.

text:
    Herbert W. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-2302.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied May 9, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   ANSTEAD, Judge.

The appellant, Herbert W. Wilson, is here seeking the reversal of an order denying his motion to correct his sentence. We will treat this as an appeal from a motion for post-conviction relief pursuant to Fla.R. Crim.P. 3.850.

Wilson was convicted,of robbery and sentenced to the maximum punishment provided therefor, life imprisonment. He was given no credit for time served in jail prior to conviction. He did not raise this issue by direct appeal and normally would be precluded from doing so now. Heilman v. State, 310 So.2d 376 (Fla. 2d DCA 1975). However, he contends that he was unable to make bail solely because of his indigency. If he is correct he would be entitled to credit for his pretrial detention despite his failure to previously appeal. Hill v. Wainwright, 465 F.2d 414 (5th Cir. 1972); Gelis v. State, 287 So.2d 368 (Fla. 2d DCA 1973). He is entitled to a determination as to whether his pretrial detention was a consequence of his indigency and if it was he is entitled to credit for time served. The reason for this rule is articulated in Gelis, supra:

Therefore, the failure to give Gelis credit for pre-trial incarceration, if his being in jail was the consequence of indigency, was error, because it resulted in a sentence exceeding the maximum.

While Wilson was sentenced to life imprisonment, his receipt of credit for time served could affect the time at which he becomes eligible for parole. Sutton v. State, 334 So.2d 628 (Fla. 4th DCA 1976).

Accordingly, this cause is hereby reversed and remanded to the trial court for further proceedings in accordance with this opinion.

DAUKSCH and LETTS, JJ., concur.


text:
    Robert A. PAFFY, Appellant, v. STATE of Florida, Appellee.
    No. 76-1260.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1978.
    Rehearing Denied May 9, 1978.
    Richard ' L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., Tallahassee, West Palm Beach, for appellee.
   PER CURIAM.

REVERSED on authority of Moore v. State, 352 So.2d 529 (Fla. 4th DCA 1977).

CROSS, DOWNEY and DAUKSCH, JJ., concur.


author: MELVIN, Judge.

text:
    Joseph K. ISLEY, Petitioner, v. Reubin O’D. ASKEW, Governor and the Commission on Ethics, Respondents.
    No. JJ-111.
    District Court of Appeal of Florida, First District.
    March 30, 1978.
    Rehearing Denied May 18, 1978.

      Tobias Simon, Richard McFarlain, and Charles Charlton, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Reubin O’D. Askew, Governor, State of Florida; and Lawrence A. Gonzalez, Tallahassee, for respondents.
   ON PETITION FOR ORDER TO SHOW CAUSE

MELVIN, Judge.

The petitioner has filed in this court an original proceeding seeking, by his petition, the issuance of a rule to show cause directed to the Governor of Florida, the Honorable Reubin O’D. Askew, and the Commission on Ethics, testing the authority of the Governor to suspend the petitioner from the office of Member of School Board of Lee County, Florida, for petitioner’s failure to file financial disclosure as required by Article II, Section 8 of the Florida Constitution, and bringing to question further whether the Commission on Ethics is unlawfully constituted in violation of Article II, Section 3 and Article IV, Section 1(f) of the Florida Constitution.

Article IV, Section 1(f) provides:

When not otherwise provided for in this constitution, the governor shall fill by appointment any vacancy in state or county office . . (Emphasis supplied)

The office of Member of the Florida Commission on Ethics is an office within the provisions of Article IV, Section 1(f), Florida Constitution. Squarely presented, therefore, is the question of whether the Constitution of Florida provides for appointment to the office of Member of the Florida Commission on Ethics by any authority other than the appointing power of the chief executive of the state.

Constitutional authority may come into existence by a specific grant thereof or by the use of words and phrases which, by necessary implication, clearly indicate an intent on the part of the sovereign power— the people — to grant such authority or such power.

In construing a section of the Constitution, we do so with the view that the writers thereof structured every sentence to accomplish a stated or an implied purpose. Article II, Section 8(h)(3), Florida Constitution provides:

“The independent commission provided for in subsection (f) shall mean the Florida Commission on Ethics.”

This provision obviously had reference to that provision contained in Section 112.320, Florida Statutes (1975), wherein it is provided: “There is created a Commission on Ethics, . . .”, whereby the power of appointment to the office of Member of the Commission on Ethics was specifically dealt with. We hold that, to the limited extent here noted, the provisions of Article II, Section 8(h)(3), Florida Constitution, by necessary implication, adopted the method and procedure provided in Section 112.321, Florida Statutes (1975), as the constitutional procedure to be employed by the authority therein designated in the selection and appointment of one to serve in the office of Member of the Florida Commission on Ethics.

We now look to the challenge that the membership of the Florida Ethics Commission is unlawfully assembled in view of the provisions of Article II, Section 3, Florida Constitution, wherein it is provided:

“. . . No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

We hold this contention likewise to be without merit for the reasons above stated.

All other constitutional issues proffered here have been previously disposed of by a court of competent jurisdiction.

The petition of Joseph K. Isley for the issuance of an order to show cause having been examined and found to be without merit is

DENIED.

BOYER, Acting C. J., and ERVIN, J., concur.


author: DAUKSCH, Judge. ANSTEAD, Judge,

text:
    Edna C. EVANS, Appellant, v. Henry H. EVANS, Appellee.
    No. 77-50.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Rehearing Denied May 17, 1978.
    John M. Cain, Orlando, for appellant.
    Tanya M. Plaut, Orlando, for appellee.
   DAUKSCH, Judge.

Upon a review of the evidence, we find the Court erred in awarding to the wife less than her share of the Lenkei note and mortgage. Notwithstanding the testimony of the accountant, the greater weight of the evidence clearly established that the husband’s mother owned one-half of that note and mortgage and the parties to this lawsuit owned the remaining one-half. Therefore, the appellant has a 25 percent interest in the aforementioned note and mortgage. That portion of the Amended Order on Petition for Enforcement of Final Judgment which declares the appellee’s interest in the Lenkei mortgage and note to be 40.277 percent must be modified. The appellant is entitled to and we hereby hold that she owns 25 percent of the Lenkei mortgage and note and all orders or judgments reflecting otherwise are hereby modified in accordance with this opinion.

AFFIRMED AS MODIFIED.

CRAWFORD, GRADY L., Associate Judge, concurs.

ANSTEAD, J., concurs specially, with opinion.

ANSTEAD, Judge,

concurring specially:

I agree with the result reached by the majority and would like to point out some additional reasons for doing so. In the original proceedings for dissolution of marriage the husband repeatedly and consistently took the position that he was the 50 percent owner of a certain note and mortgage owned jointly with his mother. His wife’s name was on the note and mortgage also and she claimed a one-half interest in his 50 percent. In the final judgment of dissolution the husband was awarded the wife’s interest as a special equity. This court reversed that award and directed that the wife was entitled to one-half of the husband’s interest. Then, for the very first time, the husband claimed that he only owned 40 percent of the note and mortgage. This turnabout was done in the face of previous contrary assertions by the husband contained in affidavits, depositions, and trial testimony.

In a hearing conducted on this issue after the appeal, the husband conceded that although his interest in the note and mortgage was previously treated as 40 percent for tax purposes, he at all times received 50 percent of the payments on the note and mortgage dating back to the execution of the note and mortgage in 1970. And he did not directly dispute testimony that his mother had made a gift to him of the additional 10 percent difference. In addition, the mother’s will was introduced into evidence which showed she believed the husband’s interest to be 50 percent; and the attorney who prepared the will and the note and mortgage testified that the mother intended that the husband have 50 percent. Because of this state of the record, I believe the husband should now be estopped from claiming a lesser interest in the note and mortgage than he claimed before the dissolution.


author: DOWNEY, Judge.

text:
    The HOUSING AUTHORITY OF the CITY OF SANFORD, Appellant, v. BOYCE CONSTRUCTION CO., etc., Appellee.
    No. 77-255.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Rehearing Denied May 23, 1978.

      Ned N. Julian, Jr., of Stenstrom, Davis & McIntosh, Sanford, for appellant.
    Irby G. Pugh, of Barco & Pugh, Orlando, for appellee.
   DOWNEY, Judge.

Appellee and appellant entered into a contract for the modernization of a low rent housing project owned by appellant. During the course of construction the architect required appellee to install concealed electrical raceways. The architect insisted and appellee, under protest, installed concealed raceways. When appellant refused to pay the additional cost of installing concealed rather than surface raceways, appellee instituted this suit. The trial court found in favor of appellee and entered judgment for appellee for $4042.20, plus interest and costs.

Appellant contends the trial court erred in finding for appellee because in doing so it re-wrote the contract between the parties.

The written contract consists of two pages which, in pertinent part, states:

“ARTICLE 3. Contract Documents.
The Contract shall consist of the following component parts:
“a. This Instrument
“b. General Conditions
“c. Supplementary Conditions
“d. Technical Specifications
“e. Drawings.”

The contract also contains a provision which states that if any component part of the contract conflicts with any provision of any other component part, the provision of the component part first enumerated in Article 3 of the contract shall govern.

Joint Exhibit # 3 received in evidence at trial is a looseleaf booklet apparently prepared by the architectural firm which designed the improvements. The cover of the booklet in bold print states:

“SPECIFICATIONS FOR CONSTRUCTION
“SHA MODERNIZATION PROGRAM
“LOW HOUSING PROJECT
“EDWARD HIGGINS TERRACE
“FLA. 16. -3
“Sanford, Florida”

The Table of Contents inside the booklet describes the contents thereof and the number of pages of each section. Among the Sections listed in the Table of Contents are Invitation for Bids, General Conditions, Supplementary Conditions, Technical Specifications, Heating and Plumbing Specifications, Electrical Requirements, and Electrical Work.

Appellee contends that the specifications for the electrical work called for “surface raceways”, while the drawings clearly call for concealed raceways. That conflict was to be resolved by the contractual provision which directed that such a conflict would be controlled by the “component part of the contract first enumerated”. Using that procedure, the Technical Specifications would control over the drawings.

Appellant points to Joint Exhibit 3 and the fact that the portion of that exhibit designated “Technical Specifications” does not include that portion of the electrical work specifications which provides for surface raceways. Therefore, appellant argues there is no conflict between component parts of the contract and the provision on the drawings for concealed raceways applies.

This is a poorly drawn contract, but it is the contract of the parties and the court has no right to redraft it. As executed by the parties the contract does not contain a conflict between the drawings and Technical Specifications with regard to the electrical raceways. It appears there would be a conflict if the electrical work section were a part of the Technical Specifications. But the contract documents as drawn do not admit of such a construction. Therefore, the appellee was required to install the more expensive concealed electrical raceways rather than surface raceways and is not entitled to recover the additional cost of such installation.

Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to enter judgment for appellant.

REVERSED AND REMANDED with directions.

CROSS and DAUKSCH, JJ., concur.


author: MOORE, Judge.

text:
    Charlie JONES, Appellant, v. STATE of Florida, Appellee.
    No. 77-911.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Rehearing Denied May 9, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, App. Div., and William H. Larkins, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant seeks reversal of a judgment of conviction and sentence based upon a jury verdict finding him guilty of aggravated assault. Appellant’s main contention is that he was convicted of a crime with which he was not charged in the information which alleged an aggravated battery by stating that appellant did:

“. . . unlawfully commit a battery upon Arthur Smith and in commission of said battery, did use a deadly weapon, to wit: a knife, in violation of Section 784.-045(l)(b), Florida Statutes (1975).”

We agree that aggravated assault is not a necessarily included offense to a charge of aggravated battery. Under Brown v. State, 206 So.2d 377 (Fla.1968) it is at best a “category four” included offense which requires the necessary allegata and probata before a jury instruction on aggravated assault would be proper. The giving of such instruction, as was done in the case sub judice, would constitute reversible error unless appellant is estopped from raising such error by having waived his right to do so through his actions in the trial court. See McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971); see also, Causey v. State, 307 So.2d 197 (Fla. 2d DCA 1975).

For reasons unknown to us, appellant specifically requested that the record of the charge conference not be transcribed. We are, therefore, unable to determine whether or not appellant requested a charge on aggravated assault. We are aware, however, that appellant made no objection to the court’s giving of such charge and, in fact, in his final argument urged the jury to consider aggravated assault as one of the lesser included offenses. Neither did appellant assign the giving of such charge as error in his motion for a new trial or his assignments of error filed with the lower court. As Judge Wigginton stated in McPhee, supra:

“Can it be said that the acquiescence by both the state attorney and the trial court in the position taken by appellant at the trial with respect to the law applicable to the case constituted such fundamental error as to render the jury’s verdict and the court’s judgment thereon void and of no effect?”

We think not, where such error was induced by the appellant.

Estoppel has a long history of applicability in varied factual situations. The principle is embodied in the interpretations of F.A.R. 6.7(g) which precludes one from claiming reversible error when the trial court’s ruling is accepted without objection.

In McPhee, supra, appellant was estopped from claiming reversible error where appellant erroneously induced the court into charging the jury on possession of an hallucinogenic drug which was not a lesser included offense of the information charging the appellant with sale of an hallucinogenic drug. On remand from the Supreme Court, the appellant in Rayner v. State, 286 So.2d 604 (Fla. 2d DCA 1973) failed to object to the court’s failure to instruct on any lesser included offenses (in fact, requested the court not to so instruct), and was held to have waived his right to complain. In cases where an appellant has entered pleas to “lesser included offenses” not supported by the allegations contained in the information, it has been held that the court has jurisdiction to convict on the basis of such pleas and the appellants are estopped from assigning as error that which they induced. Lowman v. State, 303 So.2d 667 (Fla. 4th DCA 1974); Andrews v. State, 343 So.2d 844 (Fla. 1st DCA 1976).

As has been noted, the appellant here made no objection to the court’s giving the jury an instruction on aggravated assault. Appellant urged the jury to give consideration to aggravated assault as a lesser in-eluded offense, and the court instructed the jury on all of the elements of aggravated assault, including the element of a well founded fear in the mind of the victim. This charge was supported by the evidence. As in Andrews, supra, where the information failed to allege the use of a deadly weapon and appellant was convicted of aggravated assault, we find the error in the ease sub judice to be harmless rather than fundamental in that appellant cannot take advantage on appeal of an error which he himself induced. See Judge Wigginton’s very able opinion in McPhee, supra.

Accordingly, the judgment of conviction and sentence appealed from is AFFIRMED.

ALDERMAN, C. J., and DAUKSCH, J., concur.

      . Alford v. State, 280 So.2d 479 (Fla. 3d DCA 1973).


author: HUBBART, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Roger DIEM and Geraldine Diem, Appellees.
    Nos. 77-1083, 77-1084.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.
    Rehearing Denied May 5, 1978.

      Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellant.
    Fromberg, Fromberg & Roth and Jeffrey Michael Cohen, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   HUBBART, Judge.

This is an action by two insureds for declaratory judgment relief and damage's" against their insurance carrier under the uninsured motorist provisions of an automobile liability insurance policy filed before the Circuit Court for the Eleventh Judicial Circuit of Florida. Partial summary judgment was rendered for the insureds and the insurance carrier takes this interlocutory appeal.

The issue presented for review centers on the maximum of uninsured motorist coverage for an insured when he is injured in a motor vehicle accident with an underinsured motorist. We hold that the maximum uninsured motorist coverage available to the insured under such circumstances is the uninsured motorist policy limits less the maximum benefits available to the insured under the automobile liability insurance policy of the underinsured motorist. Accordingly, we affirm the partial summary judgment herein.

The facts of this case were stipulated to by the parties in the trial court. On April 27, 1975, the plaintiff insured Roger Diem was driving his car at the vicinity of the intersection of N.E. 159 Street and N.E. 15 Avenue in the City of North Miami Beach, Florida. The plaintiff insured Geraldine Diem was a passenger in that car along with two other people, Edward and Margaret Melillo. At the above time and place, the Diem car was struck by another car owned and operated by Adelaide M. Dow-dell. As a result thereof, all four occupants in the Diem vehicle suffered alleged injuries.

At the time of the accident, the plaintiffs had in full force and effect an automobile liability insurance policy with State Farm Mutual Automobile Insurance Co. This policy provided uninsured motorist protection with limits of $15,000 per person, and $30,-000 per accident. At the time of the aforesaid accident, Adelaide M. Dowdell also had an automobile liability insurance policy with the same carrier providing liability limits of $10,000 for each person and $20,-000 for each accident.

Subsequent to the aforesaid incident, the passengers in the Diem vehicle, Edward and Margaret Melillo, filed suit against Adelaide M. Dowdell and her insurance carrier, which litigation resulted in a settlement in favor of the Melillos in the amount of $16,-000. As a result of the Melillo settlement, there is $4,000 of available liability coverage under the Dowdell insurance policy. It is agreed by the parties that the Dowdell car was as a matter of law an underinsured vehicle and therefore an uninsured vehicle under Section 627.727, Florida Statutes (1975).

Subsequent to the Melillo settlement, a controversy arose between the plaintiffs and State Farm as to the maximum amount of uninsured motorist coverage available to the plaintiffs under the policy of insurance. Suit was accordingly filed by the plaintiffs for declaratory relief and damages against the defendant State Farm. Both parties moved for a summary judgment based on the above stipulated set of facts. The trial court entered a partial summary judgment in favor of the plaintiffs Roger and Geraldine Diem in which it concluded that the maximum amount of uninsured motorist coverage in the cause was the maximum uninsured motorist policy limits of $15,000 per person and $30,000 per accident less the benefits actually available to the plaintiffs under the automobile liability insurance coverage of the underinsured Melillo car, to wit: $4,000. The court reserved jurisdiction in the cause to determine the actual damages sustained by the plaintiff. ■ This interlocutory appeal follows.

Section 627.727, Florida Statutes (1975) states the applicable statutory law on uninsured motorist insurance coverage as follows:

“(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in not less than the limits of the liability insurance purchased by the named insured for bodily injury, however, the named insured may select such lower limits as complies with the company’s rating plan, under provisions filed with and approved by the department, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage; .
The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured . under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured' motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident. .
(2) For the purpose of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.” [Emphasis added]

The statute as applied to the instant case means exactly what it says. Uninsured (which also means underinsured) motorist coverage “shall be excess over but shall not duplicate benefits available to an insured under any automobile liability coverages . . . from the owner or operator of the uninsured motorist vehicle . . . ” § 627.727(1), Fla.Stat. (1975). It has been stipulated to in the instant case that the benefits available under the underinsured’s liability policy herein is the maximum amount of liability coverage ($20,000) less that which was paid out in settlement on the Melillos’ claims ($16,-000) or $4,000 total available benefits. Contrary to State Farm’s position herein, available benefits under the statute does not constitute the policy limits of the underin-sured’s liability policy where, as here, the benefits under such policy have been partially exhausted by payment of claims to persons other than the insured. Lee v. State Farm Mutual Automobile Insurance Co., 339 So.2d 670 (Fla.2d DCA 1976). Available benefits must mean that which is actually available to the insured herein from the underinsured’s liability carrier.

The trial court properly held that the plaintiffs herein were entitled as maximum coverage to the excess over the benefits actually available to them under the unde-rinsured’s liability policy, to wit: $4,000 up to the policy limits under the State Farm uninsured motorist coverage, to wit: $15,-000 per person and $30,000 per accident. To hold otherwise, is to do violence to the plain language of the uninsured motorist statute as well as its avowed purpose which is to protect persons who are injured or damaged by motorists who cannot make whole the insured, as opposed to protecting the insurance carrier or the uninsured (underinsured) motorist. Brown v. Progressive Mutual Insurance Co., 249 So.2d 429, 430 (Fla.1971).

Affirmed.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Gerald R. COOK, Appellee.
    No. 77-1749.
    District Court of Appeal of Florida, Second District.
    April 7, 1978.
    Rehearing Denied May 19, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and Robert H. Dillinger, Asst. Public Defender, St. Petersburg, for appellee.
   OTT, Judge.

The state appeals from an order granting appellee’s motion to suppress evidence. After a careful review of the record and the briefs we find that we must agree with the state that there is no evidence to support the trial court’s conclusion that the im-poundment of appellee’s vehicle was unnecessary.

At the hearing on appellee’s motion to suppress, the only testimony came from Officer Paul Cooke. Officer Cooke testified that at 2:30 a. m. one morning he stopped a Ford convertible which was traveling at eighty miles per hour through the streets of St. Petersburg. When the car came to a halt, it was one foot off the road at a busy intersection. Its driver, appellee, and his two passengers all appeared to be quite intoxicated. As a result, Officer Cooke arrested appellee for driving while intoxicated, detained the two passengers under the Myers Act, Chapter 396, Florida Statutes (1975), and impounded the vehicle. Another officer conducted an inventory search of the car which produced the firearm that was the subject of the motion to suppress. Cooke testified that impoundment was, in such circumstances, normal police procedure.

After hearing the officer’s testimony and indicating that it was familiar with the intersection where the car had stopped, the court granted the motion to suppress. In so doing it ruled that the impoundment of the vehicle was unnecessary.

As we examine this case, we must first note that the trial court used the correct standard-necessity-in considering the propriety of the impoundment and the resulting inventory search. Altman v. State, 335 So.2d 626 (Fla. 2d DCA 1976). However, we think that, as a matter of law, there was no evidence to support the finding by the trial court of a lack of necessity.

The uncontradicted testimony of Officer Cooke demonstrated that appellee and his passengers were all far too intoxicated to drive the car or make any rational decision concerning its removal. Consequently, the officer’s only alternative would have been to leave the car where it was, but we do not believe that this was a viable alternative. Anytime an automobile is left within a foot of a highway, it is a hazard to passing traffic. This is especially so where, as here, the car is parked at a busy intersection during the hours of darkness. Therefore, Officer Cooke really had no choice but to impound appellee’s vehicle.

Because the impoundment and inventory search of the car were proper, we reverse the order granting appellee’s motion to suppress and remand this case for proceedings consistent with this opinion.

HOBSON, Acting C. J., and SCHEB, J., concur.


author: MOORE, Judge. ALDERMAN, Chief Judge,

text:
    Fred M. HOSBEIN and Commercial Carrier Corporation, Appellants, v. Roslyn SILVERSTEIN, as Personal Representative of the Estate of Nathan Silverstein, Deceased, for the benefit of Roslyn Silverstein, surviving wife, and Arnold V. Fedele and Hartford Accident and Indemnity Company, Appellees.
    No. 76-1430.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied May 23, 1978.

      William R. Scherer and Nancy Little Hoffman of Druck, Grimmett, Norman, Weaver & Scherer, Ft. Lauderdale, for appellants.
    Gerald Mager, Hollywood, and Howard L. Conklin of Tripp & Niles, Ft. Lauderdale, for appellee Roslyn Silverstein.
    Martin J. Sperry of Carey, Dwyer, Cole, Selwood & Bernard, Ft. Lauderdale, for appellee Hartford Acc. & Indem. Co. and Arnold V. Fedele.
   MOORE, Judge.

This appeal is from a final judgment in favor of plaintiffs in a wrongful death action arising out of an automobile accident.

We have considered all of appellants’ points on appeal and find only one to have merit. Appellants contend that it was error for the trial court to exclude a proffered testimony of their expert witness, Dr. Fo-garty, an engineer. Dr. Fogarty’s testimony would have related to the reaction time of the truck-driver defendant, the point of impact, the angle of impact, the speed of the vehicles involved in the accident and other related issues. The testimony of the numerous eyewitnesses to the accident was contradictory and the hypothetical questions posed to Dr. Fogarty were based upon facts and inferences derived from the testimony of some of those witnesses. The trial court, relying on Allen Morris Co. v. McNally, 305 So.2d 79 (Fla. 3d DCA 1974), refused to permit Dr. Fogarty to testify because the testimony was “neither necessary or advisable as an aid to the jury.”

We hold that the trial court abused its discretion by refusing to permit Dr. Fogarty to testify. A trial judge has the duty to determine whether an expert witness’ testimony will assist the jury, and when such testimony relates to matters within the common understanding or experience of an average person, a trial judge can properly conclude that the jurors can resolve the issue without the benefit of such expert testimony. Atlantic Coast Line Railroad Co. v. Shouse, 83 Fla. 156, 91 So. 90 (1922). Similarly, when the expert’s testimony will merely reiterate what eyewitnesses have stated such testimony is unnecessary. Allen Morris Co., supra.

In Allen Morris Co., supra, several eyewitnesses testified regarding the speed of the plaintiff’s vehicle and the expert witness was going to give similar testimony as to the speed of the vehicle. The appellate court determined that there was no abuse of discretion on the part of the trial court by excluding such expert testimony, particularly when the expert’s testimony would have been based on scanty hypothetical facts. The subject matter of Dr. Fogarty’s testimony in the instant case would have gone far beyond what the eyewitnesses had previously testified to, and his testimony was not limited to the speed of the vehicles. Such testimony would have served a particularly useful purpose in the light of the contradictory versions of the accident presented by the various eyewitnesses. Furthermore, the proffered hypothetical were not based upon scanty hypothetical facts. The Allen Morris Co. case is, therefore, distinguishable and the exclusion of Dr. Fogarty’s testimony constituted prejudicial error.

We have considered the remaining points raised on appeal and determine them to be without merit. In view of our holding above, the instant case is REVERSED and REMANDED for a new trial.

REVERSED and REMANDED.

CROSS, J., concurs.

ALDERMAN, C. J., dissents with opinion.

ALDERMAN, Chief Judge,

dissenting:

Although I do not think it would have been reversible error if the trial court had admitted Dr. Fogarty’s testimony, its failure to do so, in my opinion, was not such a gross abuse of discretion as to require a new trial. I would affirm.