text:
    ESTATE of Francis R. MURPHY.
    No. 47954.
    Supreme Court of Florida.
    Nov. 30, 1976.

      Thomas E. Warner, of McRoberts & Warner, Stuart, for appellant.
    James F. Littman, Stuart, for appellee.
   HATCHETT, Justice.

On June 18, 1969, at the age of 64, Francis R. Murphy, a widower, married Roberta A. Murphy. When he died on December 5, 1974, he was survived by Mrs. Murphy and by a grown son, the issue of his first marriage. The widow and the son disagree as to the proper construction of his will. The son has appealed the trial court’s final summary judgment. We have jurisdiction of the appeal because the trial court entered a judgment “construing a provision of the state . . . constitution.” Article V, Section 3(b)(1), Florida Constitution. The trial court construed Article X, Section 4(c), Florida Constitution. In pertinent part, this provision reads:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. .

Appellant Francis R. Murphy, Jr., has attained his majority and was not a “minor child” at any time relevant in these proceedings.

Francis R. Murphy, Sr., executed his will on November 29, 1971. At that time he lived with his wife in an apartment in the Regency Towers Condominium in Fort Lauderdale, and the apartment was the subject of a specific devise in the will. When Mr. Murphy sold the Regency Towers apartment, the specific devise of the apartment was extinguished by ademption. By the time of Mr. Murphy’s death every other specific legacy in his will had also been adeemed. After Mr. Murphy had executed his will and after he had sold his Fort Lauderdale condominium, he acquired in his own name only Unit D-105 in Miles Grant Condominium No. 1 in Stuart. Until Mr. Murphy’s death, Mr. and Mrs. Murphy lived at the Miles Grant Condominium.

The parties agree that Unit D-105 is homestead property. The dispute is over whether Mrs. Murphy takes fee simple title to Unit D-105, or whether she takes a life estate only, the remainder going to the son. In the court below, the widow successfully maintained that the residuary clause of the will should govern disposition of this apartment. The son contends that homestead property is not part of the probate estate and cannot, therefore, pass under a clause in a will directing disposition of the “entire remaining estate, both real and personal.”

The son also points out that his father executed his will before the Constitution permitted the devise of fee simple title to homestead property to a spouse, when children also survived. But the mere “execution of the will passes no estate, vests no title, creates no interest or right.” Mays v. Burleson, 180 Ala. 396, 61 So. 75, 76 (1913). A will speaks as of the time of the death of the testator. “In construing a will, it is the intention which the testator expresses in the will that controls and not that which he might have had in mind when the will was executed. Howe v. Sands, 141 Fla. 813, 194 So. 798.” Iles v. Iles, 158 Fla. 493, 29 So.2d 21, 22 (1947). The testator in the present case cannot be said to have had any intention whatsoever regarding Unit D-105 when he executed his will. His intention with respect to after acquired property he expressed in the residuary clause.

While it is true that homestead property is not chargeable with the decedent’s debts or with costs of administration, In re Nobel’s Estate, 73 So.2d 873 (Fla.1954); Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938); Raulerson v. Peebles, 77 Fla. 207, 81 So. 271 (1919); Baker v. State, 17 Fla. 406 (1829), the Constitution specifically provides that “the homestead may be devised to the owner’s spouse if there be no minor child.” Florida Constitution, Article X, Section 4(c). Appellant concedes as much but argues that we should lay down judicially a requirement that any devise of homestead be a specific devise and rule that a residuary clause is ineffective to pass homestead property. Unquestionably a specific devise is to be preferred, but in the absence of a specific devise, we conclude that the general language of a residuary clause is a sufficiently precise indicator of testamentary intent.

The judgment is affirmed.

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

       In pertinent part, the will provides:
      I, FRANCIS R. MURPHY, a resident of Bro-ward County, Florida, do hereby make, publish and declare this to be my Last Will and Testament .
      ******
      ARTICLE II. BEQUEST TO SON:
      I hereby make the following bequests to my son, FRANCIS R. MURPHY, JR., or his heirs:
      (1) Two lots that I own in Cape Coral, Florida;
      (2) All stocks and other securities that I own in my name alone.
      ARTICLE III. BEQUEST JOINTLY TO MY SON AND WIFE:
      I hereby make the following bequests jointly to my son and wife, ROBERTA A. MURPHY:
      (1) The 1967 32' Corinthian Express Boat;
      (2) Apartment No. # 502 located in the Regency Towers Condominium. My wife is to have a life estate with my son having the remainder interest.
      (3) The first mortgage that I hold on Apartment # 306 in the Ocean Summit Condominium also located in Fort Lauderdale, Florida.

        This mortgage was given to me on November 10th, 1969, in the original amount of $25,000 for a period of twenty (20) years.
      My wife is to have a life estate in this mortgage so that she will have sufficient funds to pay all charges connected with my Apartment # 502 in the Regency Tower. My son is to have a remainder interest in this mortgage.
      ARTICLE IV. REMAINDER ESTATE TO WIFE:
      I hereby leave my entire remaining estate, both real and personal, to my wife, ROBERTA A. MURPHY, provided that she survives me by at least ninety (90) days. If she fails to survive me for this period of time, then I direct that my entire remaining estate go to my son or his heirs.
      ARTICLE V. APPOINTMENT OF EXECUTOR:
      I hereby appoint as Executrix of my Will, my wife, ROBERTA A. MURPHY, and direct that she shall serve without bond. In the event she fails to qualify then I appoint as Alternate Executor my son, FRANCIS R. MURPHY, JR., and direct that he shall serve without bond.


source: Caselaw Access Project

author: ENGLAND, Justice.

license: Public Domain

text:
    Jack H. BOWEN and Michigan Mutual Liability Company, Petitioners v. Harvey WILLARD, Respondent.
    No. 48429.
    Supreme Court of Florida.
    Nov. 30, 1976.
    Marion R. Shepard and Herbert R. Fanning, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for petitioners.
    S.Perry Penland, Jacksonville, for respondent. .
   ENGLAND, Justice.

This case is here on the basis of an alleged conflict between a decision on rehearing of the First District Court of Appeal and the decisions of this Court in Leonetti v. Boone, 74 So.2d 551 (Fla.1954) and Wolfe v. City of Miami, 114 Fla. 238, 154 So. 196 (1934). The issue presented involves the scope of a district court’s review in an appeal taken pursuant to Section 59.04, Florida Statutes (1975), which provides:

“Appeal from order granting new trial Upon the entry of an order granting a new trial, the party aggrieved may prosecute an appeal to the proper appellate court without waiting for final judgment. If the judgment is reversed, the appellate court may direct that final judgment be entered in the trial court for the party obtaining the verdict unless a motion in arrest of judgment or for a judgment notwithstanding the verdict be made and prevail.”

Harvey Willard brought a negligence action against Jack Bowen. The ease was tried to a jury which rendered a verdict in Willard’s favor. Bowen then moved for a directed verdict or in the alternative for a new trial. The trial judge denied Bowen’s motion for a directed verdict, but granted a new trial because “the preponderance of the evidence and the manifest justice of the case clearly” required it. Willard appealed to the district court pursuant to Section 59.04, citing as error the failure of the trial judge to state that the verdict was against the manifest weight of the evidence. Bowen cross-assigned as error the lower court’s denial of his motion for a directed verdict. The district court rendered a brief opinion which stated in relevant part:

“The sole question presented for our consideration is whether the trial court’s order granting a new trial must state that the jury verdict was against the ‘manifest weight of the evidence’.
We hold that the ground set forth in the order reviewed herein was . . .deficient . . .

The district court’s opinion concluded with a mandate stating:

. . For the reasons stated, the order granting new trial is reversed and the cause is remanded with directions to reinstate the verdict and enter judgment thereon.”

On remand final judgment was entered for Willard in accordance with the mandate. Bowen then appealed this final judgment, citing as error the denial of his motion for a directed verdict. A split district court again reversed, finding that the evidence was so deficient that the trial court should have granted Bowen’s motion for a directed verdict. A dissenting judge thought the district court’s original mandate was incorrect, and that the appropriate course of action originally should have been a remand with instructions to the trial judge to reconsider and rule on Bowen’s motion for a new trial. On rehearing, a majority of the district court receded from its second opinion and affirmed the judgment for Willard on the authority of its first opinion and in the light of Matter of Vermeulen, 122 So.2d 318 (Fla. 1st DCA 1960).

From the reference to Vermeulen, we understand the district court’s short opinion on rehearing to mean that the court felt bound by the mandate it had entered in its first decision. The effect of this action, however, is to forestall forever any appellate review of the denial of Bowen’s motion for a directed verdict.

In Leonetti and Wolfe we held that an appellate court may not consider the question of a directed verdict on review of an order granting a new trial taken under the predecessor of Section 59.04. We there held that a ruling on a motion for directed verdict is properly reviewable only on appeal of the final judgment in the cause. Obviously, that decision conflicts directly with the district court’s decision on rehearing in this case, and we have jurisdiction to harmonize the law.

Under our rulings in Leonetti and Wolfe, the district court had no authority on the first appeal it heard to consider the other issue brought by Bowen. Its written decision indicates that the district court did not exceed that limited scope. By confining its review on that occasion to the order granting a new trial, which is appealable as a matter of substantive law though technically neither interlocutory nor final, the district court only considered the legal standard applied by the trial judge and did not review the record.

Ordinarily, the responsibility of the district court on the second appeal would have been either to clarify the original mandate and remand to the trial court for a new ruling, under the proper standards, on Bowen’s motion for a new trial, as the dissent suggested, or to review by appeal the trial court’s denial of the motion for a directed verdict, as the majority did. Unfortunately, both of those alternates were obliterated when the district court on rehearing receded from the majority decision. Since only the last action was error, we quash the district court’s determination on rehearing and remand the case to that court for a re-selection from among the two possible and proper alternatives. It is not within our province either to weigh the record and inject our judgment into the directed verdict question, or to clarify the district court’s original mandate as to the motion for a new trial.

We would be remiss, however, if we did not address the extraordinary waste of resources evident from this record, or concern ourselves with the duplicative appeal procedures apparently required in situations of this type. When the district court first reversed the order granting a new trial, the only barrier to its consideration of Bowen’s contentions regarding a directed verdict was the absence of the formal final judgment which the trial judge was required to enter as a ministerial act. The important policies which underlie the prerequisite of a final judgment for appellate action are not served in cases of this type, and the public policy that procedural practices shall not frustrate substantive rights is contravened by the unproductive generation of time delays and expense in these proceedings. Developments subsequent to Wolfe and Leo-netti suggest that the time is ripe to reconsider their continuing validity. Both have been superseded by the Florida Appellate Rules to the extent that they prevent the determination of issues which are ripe for appellate review in a unified appeal.

In Clement v. Aztec Sales, Inc., 297 So.2d 1 (Fla.1974), we held that appeals taken pursuant to Section 59.04 are not interlocutory appeals governed by Florida Appellate Rule 4.2, and that Section 59.04 had been adopted as a rule of appellate procedure pursuant to Florida Appellate Rule 1.4. In so ruling we relied upon and cited with approval the decision of the Third District Court of Appeal in Seigel v. Solomon, 201 So.2d 501 (Fla. 3d DCA 1967). There it was held that an appeal under Section 59.04 should be treated as an appeal of a final judgment for the purposes of supersedeas under Florida Appellate Rules 5.1 and 5.2. It is consistent with the conversion of Section 59.04 from a statute to a court-adopted rule of procedure to now hold that appeals taken from new trial orders shall be treated as appeals from final judgments to the extent possible, and that the appellate courts of this state have the authority to deal with other appealable issues. We so hold, but adopt this view prospectively as to appeals instituted after the effective date of this opinion.

The decision of the district court on rehearing is quashed, and this case is remanded for further proceedings consistent with this opinion.

OVERTON, C. J., and ROBERTS and BOYD, JJ., concur.

ADKINS, J., dissents.

      . Bowen v. Willard, 321 So.2d 595, 597 (Fla. 1st DCA 1975).

      . Willard v. Bowen, 294 So.2d 696, 697 (Fla. 1st DCA 1974).

      . Ibid.

      . Art. V, § 3(b)(3), Fla.Const.

      . See also Messina v. Baldi, 135 So.2d 17 (Fla. 3rd DCA 1961).

      . Clement v. Aztec Sales, Inc., 297 So.2d 1 (Fla. 1974).

      . See Matter of Vermeulen, 122 So.2d 318 (Fla. 1st DCA 1960).

      . See, for example, C.G.J. Corp. v. Engel, 135 So.2d 431 (Fla. 3d DCA 1961).

      . Williams v. State, 324 So.2d 74, 80 (Fla.1975).


author: ROBERTS, Justice. ENGLAND, Justice

text:
    Dalton WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 48644.
    Supreme Court of Florida.
    Nov. 30, 1976.
    Joseph E. Tomberg, Boynton Beach, and Larry Klein, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., and Anthony J. Golden, Asst. Atty. Gen., for respondent.
   ROBERTS, Justice.

We have for review by petition for writ of certiorari granted the decision of the District Court of Appeal, Fourth District, in Williams v. State, reported at 322 So.2d 613, which conflicts with Vaughn v. State, 147 Fla. 12, 2 So.2d 122 (1941), and Spurlock v. State, 281 So.2d 586 (Fla.App.4, 1973), thereby vesting jurisdiction in this .Court pursuant to Article V. Section 3(b)(3), Florida Constitution.

Petitioner was charged with nine counts of buying, receiving or aiding in the concealment of stolen property, to-wit: a heifer. At trial, the owner identified seven of the nine heifers and the Judge accordingly dismissed counts eight and nine. He was acquitted of six counts and convicted of count seven.

On appeal, petitioner contended that he should have been sentenced according to the lesser penalty provided by Section 811.-17, Florida Statutes (1973), since it was impossible to determine the value of the property that he was convicted of receiving, and since the verdict was defective because it failed to state the value of the property for which petitioner was convicted of illegally receiving. The District Court of Appeal affirmed the conviction for buying, receiving or aiding in the concealment of stolen property.

Agreeing with petitioner’s contentions, Judge Walden dissented from the majority and explained:

“The issue raised on appeal is generated by the interaction of Fla.Stat. §§ 811.-16 and 811.17 (1973). Buying, receiving or aiding in the concealment of stolen property is a felony regardless of the value of the property received, Fla.Stat. § 811.16 (1973). However, Fla.Stat. § 811.17 (1973), provides:
“ ‘Receiving stolen goods; punishment when offender makes satisfaction. — Upon a first conviction under § 811.16, and when the act of stealing the property is not by law a felony, if the party convicted of buying, receiving or aiding in the concealing of such stolen property, makes satisfaction to the party injured to the full value of the property stolen and not restored, he shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.’
“At trial there was expert testimony that” the heifers in question ranged in value from $55, this amount constituting petit larceny, a misdemeanor, to over $100, amount required to prove grand larceny, a felony. The appellant contends on appeal that he should have been sentenced according to the lessened penalty provisions of Fla.Stat. § 811.17 (1973), inasmuch as it was impossible to determine the value of the property that he was convicted of illegally receiving due to the failure of the state to match each heifer to a corresponding count.”

Section 811.16, Florida Statutes (1973) provides:

“Buying, receiving, concealing stolen property. — Whoever buys, receives, or aids in the concealment of stolen money, goods, or property, knowing the same to have been stolen, shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.-084.”

Vaughn v. State, supra, involved the predecessor statute to Section 811.17, Florida Statutes, Section 7240 C.G.L.1927, which provided:

“Upon a first conviction under the preceding section, and when the act of stealing the property is not by law a felony, if the party convicted of buying, receiving or aiding in the concealing of such stolen property, makes satisfaction to the party injured to the full value of the property stolen and not restored, he shall not be imprisoned in the State prison, but may be liable to such additional punishment as the court may direct.”

Therein the defendant was charged with receiving stolen property of the value of $20, was convicted, and was sentenced to a period of eighteen months in state prison. On appeal, defendant Vaughn contended that the trial court erred in refusing to grant his requested charge to the jury to fix the value of the goods stolen. This request was made to make available the benefit of Section 7240 C.G.L.1927, to him in the event that he was found guilty as charged. This Court reversed the trial court and remanded for a new trial, stating:

“We . . . hold that it was the duty of the trial court to require the jury to fix the value of the property stolen in the event of conviction.
“The statute is clear, that, if the larceny be a misdemeanor, a first offender has the right after conviction to make restitution and thereby reduce his offense from a felony to a misdemeanor.”

This Court in Tidwell v. Circuit Court of Desoto County (State), 151 Fla. 333, 9 So.2d 630 (Fla.1942), explaining the relationship of Sections 811.16 and 811.17, Florida Statutes (1941), opined:

“The gravity of the offense was fixed at the time of its commission and the voluntary act on the part of the defendant in making restoration to the person whose property was stolen has no influence upon the nature of the crime or the jurisdiction of the court in which the matter should be tried, but only serves to diminish the punishment if the defendant is eventually convicted.
* * * sft * *
“The defendant having made restitution though prematurely, may insist upon the lesser punishment if eventually convicted but cannot by that premature action disturb the court of jurisdiction.”

Only insofar as the views expressed in Vaughn were in conflict with the decision of the Court in Tidwell were they overruled. That portion of the decision in Vaughn requiring the judge to direct the jury to set the value of the property stolen was not overruled. This Court notes the variance in language of the statute with which the Court was concerned in Tidwell dealing with the penalty only to be meted out to a first offender making satisfaction to the injured party for the full value of the property stolen which stated in part:

“ . . .he shall not be imprisoned in the state prison, but may be liable to such additional punishment as the court may direct.”

and the statute involved sub judice dealing with adjudication of guilt and penalty which states in place of the above language:

“ . . .he shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.” (emphasis supplied)

Spurlock v. State, supra, likewise involved a verdict which the court stated was defective because it failed to set the value of the property concerned. However, unlike the situation sub judice the defendant in Spurlock failed to preserve the matter for appeal.

Pursuant to Section 811.17, Florida Statutes (1973), where the act of stealing was not by law a felony, the person convicted for the first time of receiving who makes full satisfaction to the injured party shall be guilty of a misdemeanor of the first degree.

To substantiate a felony conviction when the defendant made full satisfaction pursuant to the provisions of Section 811.17, Florida Statutes (1973), it was imperative that the State prove that the property stolen was valued at $100 or more and such value should have been fixed by the jury. The absence of such proof, however, did not prevent the trial court from adjudicating petitioner guilty of a misdemeanor.

Accordingly, the decision of the District Court of Appeal is quashed, and the cause is remanded with directions to remand to the trial court for imposition of sentence appropriate to a misdemeanor.

It is so ordered.

ADKINS, BOYD and SUNDBERG, JJ., concur.

ENGLAND, J., dissents with an opinion with which OVERTON, C. J., and HATCH-ETT, J., concur.

ENGLAND, Justice

(dissenting).

I respectfully fail to find any basis for Supreme Court action in this case, and I would discharge the writ of certiorari as having been improvidently granted.

A majority of the Court finds direct conflict between the district court’s decision, which in its entirety reads “affirmed”, and two other Florida appellate cases. I cannot. Certainly the fact that one judge below wrote a dissent is not, as I have already suggested, a valid basis to grant “conflict” certiorari review here. See Golden Loaf Bakery, Inc. v. Charles W. Rex Construction Co., 334 So.2d 585, 586 (Fla.1976) (concurring opinion).

Three other reasons are present in this case for rejecting review here. First, the dissenting opinion begins with the phrase: “Based on the facts of this case I would reverse . . . .” Obviously no great legal principle separates Judge Walden from his colleagues; he simply reaches a contrary result on the peculiar facts of this case. What need exists in this situation for us to intrude?

Second, as regards the cases cited for conflict with the affirmance below, the majority itself points out that the holding in one of them — Spurlock—is wholly irrelevant to the issue here, and that the other case — Vaughn—has effectively been overruled.

Third, the majority here and the court below correctly note that the statute which produced the problem alleged to exist and which allegedly requires clarification has been repealed. For that reason alone, we should exercise our discretion to deny cer-tiorari. One appeal to review the fairness of a trial is all that is appropriate in a state with intermediate appellate courts. Where our Court has no law-harmonizing or precedent-developing function, our intercession for a second full plenary review merely erodes the constitutional finality of our district courts.

OVERTON, C. J., and HATCHETT, J., concur.

      . Repealed by Chapter 74-383, Laws of Florida, effective July 1, 1975.

      . Section 811.17, Florida Statutes (1941) provides: “Receiving stolen goods; punishment when offender makes satisfaction. — Upon a first conviction under § 811.16, and when the act of stealing the property is not by law a felony, if the party convicted of buying, receiving or aiding in the concealing of such stolen property, makes satisfaction to the party injured to the full value of the property stolen and not restored, he shall not be imprisoned in the state prison, but may be liable to such additional punishment as the court may direct.”

      . As above noted, Section 811.17 has subsequently been repealed. See Ch. 74-383, Laws of Florida. Section 811.021, Florida Statutes (1973) defining grand larceny has subsequently been amended to state, inter alia:
      “812.021(2) If the property stolen is:
      (a) Of the value of $100 or more;
      (b) Of the aggregate value of $200 or more, taken in any 12-consecutive month period, by an agent, servant, or employee from his principal or employer by a series or combination of any of the acts denounced in this section, as part of a common scheme or design to defraud;
      (c) A will, codicil or other testamentary instrument;
      (d) A firearm;
      (e) A motor vehicle;
      (f) Any member of the genus Bos (cattle) or the genus Equus (horse), or any hybrid of the specified genera; or
      (g) Any make, type, or model of fire extinguisher, the offender shall be deemed guilty of grand larceny, which constitutes a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. . .
      and Section 811.16, Florida Statutes (1973), has been revised to read:

        “812.031 Receiving stolen property.—
      (1) Whoever intentionally receives, retains, disposes, or aids in concealment of any stolen property of another without consent of the owner or person entitled to possession, knowing that it has been stolen, or under such circumstances as would induce a reasonable man to believe that the property was stolen, commits an offense.
      (2) If the property received is:
      (a) Of the value of $100 or more;
      (b) A will, codicil, or other testamentary instrument;
      (c) A firearm;
      (d) A motor vehicle;
      (e) Any member of the genus Bos (cattle) or the genus Equus (horse) or any hybrid of the specified genera; or
      (f) Any make, type, or model of fire extinguisher, the offender shall be deemed guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.-084.
      (3) If the property received is not described in subsection (2), the offender shall be deemed guilty of a misdemeanor of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. . . . ”


author: THE COURT.

text:
    Charles W. BROADHURST et al., Appellants (Relators), v. The Honorable Norton JOSEPHSON, Judge of the County Court of Volusia County, Appellee (Respondent).
    Nos. BB-382, BB-383 and BB-384.
    Dec. 1, 1976.
    District Court of Appeal of Florida, First District.
    Rehearing Denied Jan. 7, 1977.
    David A. Demers, St. Petersburg, for appellants.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   BY

THE COURT.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the order appealed is affirmed on authority of State v. Hendricks, 309 So.2d 232 (Fla. 4th DCA 1975). Shaw v. State, 332 So.2d 705 (Fla. 1st DCA 1976), is distinguishable and not applicable to the facts in this case.

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


author: BARKDULL, Chief Judge.

text:
    Al P. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 76-11.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   BARKDULL, Chief Judge.

Al P. Smith appeals from a final judgment of conviction and sentence, entered pursuant to a jury verdict that found him guilty of breaking and entering with intent to commit rape and involuntary sexual battery with a deadly weapon. He was sentenced to forty years and ten years imprisonment, respectively, to run concurrently. This appeal ensued.

The record reveals the following: The defendant testified in his own behalf and, on cross-examination, was asked: “You would never break into anybody’s house, would you?” Defense counsel objected, and defendant answered that he had entered a house before. A mistrial was requested, based on the State having elicited testimony that the defendant had broken into someone’s home on a prior occasion. The motion was denied and this has been urged as error in this court. We agree.

The only proper question to be asked was whether or not the defendant had ever been convicted of a crime. See: Mead v. State, 86 So.2d 773 (Fla.1956); McArthur v. Cook, 99 So.2d 565 (Fla.1957); Whitehead v. State, 279 So.2d 99 (Fla. 2d DCA 1973); Jones v. State, 305 So.2d 827 (Fla. 4th DCA 1975); Knight v. State, 316 So.2d 576 (Fla. 1st DCA 1975); Williams v. State, 324 So.2d 672 (Fla. 4th DCA 1975); Irvin v. State, 324 So.2d 684 (Fla. 4th DCA 1976); Jackson v. State, 336 So.2d 633 (Fla. 4th DCA 1976); Section 90.08 Florida Statutes (1975). The State urges that this was a permissible question under the doctrine laid down by the Supreme Court of similar pattern crimes in Williams v. State, 110 So.2d 654 (Fla.1959). We don’t think this question partook of such evidence. The cases indicate the proper way to bring in collateral evidence under the Williams v. State, supra, decision. See: Ashley v. State, 265 So.2d 685 (Fla.1972); Davis v. State, 276 So.2d 846 (Fla. 2d DCA 1973); Marion v. State, 283 So.2d 53 (Fla. 4th DCA 1973). The question propounded in the instant case did not meet this test.

The appellant also preserved for review the question of the failure of the State to disclose Brady type evidence, under the decision of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the failure of the trial court to permit at least a recess in order for the defense to evaluate this alleged Brady evidence. We do not reach this question because of our disposition of the cause on the above-stated point on appeal. The matter will have to be retried and the witness will be available for discovery prior to the retrial.

Therefore, for the reasons above stated, the verdicts, adjudications of guilt and the sentences are set aside, and the matter is returned to the trial court for a new trial.

Reversed and remanded, with directions.


author: PER CURIAM.

text:
    Dolan KELLY, Appellant, v. STATE of Florida, Appellee.
    No. CC-449.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1976.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser and Michael H. Davidson, Asst. At-tys. Gen., for appellee.
   PER CURIAM.

This cause is remanded to the trial court for the purpose of entering a corrective sentence order specifically setting forth the period of credit time allowed appellant in accordance with Sec. 921.161(1), Florida Statutes. Grine v. State, 301 So.2d 122 (2 Fla.App. 1974).

The judgment is affirmed and the cause is remanded with directions.

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


author: SMITH, Judge.

text:
    STUCKEY’S OF EASTMAN, GEORGIA, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent.
    No. DD-92.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1976.
    David A. Burt and Benjamin F. Wren, III, Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, for petitioner.
    Phillip S. Bennett and George L. Waas, Tallahassee, for respondent.
   SMITH, Judge.

Stuckey’s has petitioned for review of final agency action by the Department of Transportation, ordering removal of certain outdoor advertising signs found to violate §§ 479.07(1) and 479.11(1), F.S.1975. The order was entered on recommendation of a hearing officer of the Division of Administrative Hearings of the Department of Administration pursuant to § 120.57(1), F.S. 1975. The only substantial question presented is whether the hearing officer’s recommended order, later adopted by the respondent Department, departed from statutory requirements by failing to include explicit rulings on each proposed finding of fact submitted by Stuckey’s pursuant to § 120.57(l)(b)4, F.S.1975.

Sec. 120.59(2), F.S.1975, provides in part: “If, in accordance with agency rules, a party submitted proposed findings of fact or filed any written application or other request in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request.”

Stuckey’s submitted to the hearing officer proposed factual findings supporting a conclusion that the respondent Department was estopped to press objections to Stuck-ey’s signs because, with knowledge of the alleged violations and after complaining of them, the Department issued 1976 permits for the offending signs. The hearing officer’s proposed order was entirely silent on that issue and on the facts pertaining to it, as was the Department’s order adopting the proposed order as its own.

It is not an impediment to our review that Stuckey’s did not except to the proposed order when the Department considered it pursuant to § 120.57(l)(b) 8 and 9. Enforcement of statutory procedural guaranties remains a judicial function under the review procedures of § 120.68, and it would be inconsonant with the purposes of the Administrative Procedure Act to hold that an affected party must first debate procedural defects before a nonjudicial agency in order to complain to the appropriate reviewing court. Moreover, our duty is to review the Department’s order, not the hearing officer’s recommended order; and by adopting the recommended order, the Department adopted as its own any error in the hearing officer’s failure to rule explicitly on Stuckey’s proposed findings pertaining to estoppel.

The failure of the respondent Department to rule explicitly on the issue of estoppel deprived Stuckey’s of the full benefit of a right secured to it by §§ 120.-57(l)(b)4 and 120.59(2), F.S.1975, namely, the right to raise pertinent factual issues for administrative determination, to submit proposed findings on those issues, to receive an explicit ruling on the matters thus submitted and to preserve them for judicial review. While the Department of Transportation has not provided by rule for submission of proposed findings of fact, see Fla.Admin.Code Rule 14-6, we do not consider that § 120.59(2), above quoted, compromises a party’s statutory right by making it depend on the existence of agency rules repeating the statutory mandate. Rather, § 120.59(2) is more reasonably to be regarded as requiring explicit agency rulings on all findings proposed by a party and on such other applications or requests in connection with the proceeding as are permitted by agency rule but not by statute.

The order of which review is sought will be vacated and the cause remanded to the respondent Department for rulings, after recommendations have been made by the hearing officer, on the proposed findings submitted by Stuckey’s.

REVERSED.

RAWLS, Acting C. J., and MILLS, J., concur.

      . “All parties shall have an opportunity . . . Sec. 120.57(l)(b)4. to submit proposed findings of facts and orders


text:
    William Ben HART, Appellant, v. SCHOOL BOARD OF WAKULLA COUNTY, Appellee.
    No. Z-448.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1976.
    Joseph C. Jacobs, Robert J. Angerer and Brian S. Duffy of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    William F. Daniel of Cotten, Shivers, Gwynn & Daniel, Tallahassee, for appellee.
   SMITH, Judge.

William Hart, a Wakulla county school teacher who was separated from his employment by the appellee Board’s acceptance of his written resignation which Hart sought vainly to withdraw, appeals from the circuit court judgment dismissing his action against the Board for money damages and injunctive relief.

Hart held a one-year contract to teach at Wakulla High School for the school year 1974-75. On January 24,1975, after several incidents resulting in administration criticism of Hart’s performance, the principal, with the superintendent’s approval, confronted Hart with two alternatives: either resign effective January 27 or the principal would initiate proceedings to have his contract terminated. The principal then softened the ultimatum to require only that Hart submit two written resignations by January 27, one effective March 3 and another effective June 12,1975. The principal offered Hart “a list of deficiencies and things I needed to do, needed to correct,” and proposed to tear up the March 3 resignation on that date if Hart improved by then, thus permitting him to serve until the end of his contract. If there was then further improvement, the principal proposed to destroy the June 12 resignation and to consider Hart’s reemployment in the following year.

Hart understood his failure to submit the requested resignations would result in his immediate suspension until the Board could meet to consider formal charges for his dismissal. Sec. 231.36(6), F.S.1975. Mindful of the potential financial and professional advantage of avoiding a dismissal proceeding, Hart chose the course of placing the postdated resignations, addressed to the superintendent, in the hands of the principal.

On January 81, the assistant principal delivered a “record of deficiencies” to Hart. A few days later, Hart again offended standards of conduct stated in the “record of deficiencies,” and was so notified in writing. The principal thereupon recommended to the superintendent that Hart’s resignation effective March 3 be submitted and recommended for Board acceptance at its February 24 meeting.

Apparently without knowledge that a decision had been made to recommend Board acceptance of the resignation effective March 3, Hart sought legal counsel, who in Hart’s behalf wrote a letter February 12 purporting to withdraw both of Hart’s resignations. Hart continued to teach. On February 24, over Hart’s protest, the Board accepted Hart’s resignation effective March 3.

In sustaining the Board’s action, the circuit court characterized Hart’s resignation as “unconditional and . . lawfully presented to the Board,” but otherwise did not explicitly address Hart’s contention that he and his counsel effectively withdrew his resignation before it was accepted.

We recently reaffirmed the proposition that a teacher’s contract is with the School Board, not with the principal or superintendent, and that a teacher negotiating for favorable administration recommendations for reemployment or tenure cannot acquire, from administrators, contractual rights effective against the Board. School Board of Leon County v. Goodson, 335 So.2d 308 (Fla.App. 1st, 1976). The converse of that proposition would also seem true: that a teacher, having tendered a written resignation to his principal or superintendent, may regard it as ineffective or at least avoidable until it is accepted by the Board with whom his contract exists. See §§ 230.-22, .23(5), F.S.1975; Eberle v. Joint Sch. Dist. No. 1 of Towns of Ithaca, etc., 37 Wis.2d 651, 155 N.W.2d 573 (1968); State ex rel. Phillips v. Ford, et al., 116 Mont. 190, 151 P.2d 171 (1944); State v. Cameron Parish School Board, 202 So.2d 34 (La.App. 3d, 1967), cert. refused 251 La. 386, 204 So.2d 572 (1967). Compare In re: Advisory Opinion to the Governor, 117 Fla. 773, 158 So. 441 (1934). Contrast Motley v. Board of Pub. Instr. of Okaloosa Co., 190 So.2d 815 (Fla.App. 1st, 1966), in which the teacher tardily sought to withdraw his resignation after it had been accepted.

The issue here is whether, on principles of waiver or estoppel, Hart disabled himself to withdraw the written resignations he placed in the principal’s hands. If the question were presented in the context of a private controversy, uninfluenced by statutory policy, we would have no doubt that Hart, in order to continue teaching, waived entitlement to the formal process of discharge proceedings and intentionally relinquished his known right to be charged and tried on grounds sufficient for discharge. Compare Garner v. Margery Lane, Inc., 242 So.2d 776, 779 (Fla.App. 4th, 1971). Hart could also be said to have estopped himself to claim entitlement to employment beyond March 3 by willingly accepting a bargain which offered him employment until that date and perhaps beyond. United Contractors, Inc. v. United Constr. Corp., 187 So.2d 695, 701-02 (Fla.App. 2d, 1966).

Equitable as it may seem to hold Hart to the consequences of the bargain whose benefits he entirely consumed, to do so would undermine clearly stated legislative policy that establishes the School Board as the hiring and firing authority in a county system. Just as the written employment contract executed in the name of the Board is the system’s protection from the vicissitudes of random parleys between principals and teachers over jobs and tenure, §§ 230.-23(5)(e), 231.351, 231.36, F.S.1975, so also the statutory scheme for dismissing an incompetent or willfully neglectful teacher, § 231.36(6), F.S.1975, is the teachers’ and the system’s protection against capricious and overbearing administrators. The record in this case contains no suggestion that the principal or superintendent acted in bad faith either in characterizing Hart’s “record of deficiencies” or in offering him a chance for redemption in exchange for written resignations. But, given the administrator’s ability to initiate dismissal proceedings before the Board and the teacher’s dread of such an experience, judicial approval of such informal bargains would soon install them as a more convenient alternative to the cumbersome, time-consuming and embarrassing statutory dismissal process. Inevitably, there would be controversies over whether the administrator’s grievances against the teacher justified demanding his resignation and whether the administrator intended never to afford the probationer the promised chance to correct his shortcomings. Those controversies would become judicial controversies, and the school board would thus be bypassed. Rigid as the statutory scheme may be, we should not permit its evasion even where, as here, the equities are with the Wakulla school administrators rather than with the teacher.

We therefore hold that Hart’s tendered resignations constituted offers by him to the Board to dissolve their contract; that, though they were delivered to the principal and by him to the superintendent, Hart retained the power, commonly accepted in other contractual contexts, to withdraw his offers before they were approved and accepted; and, consequently, that Hart could not be dismissed following withdrawal of his resignations on February 12, 1975, except by the formal dismissal process which was never invoked. Hart is therefore entitled to judgment, with interest, for salary unpaid through June 12, 1975, the date his contract expired. The trial court was correct, however, in dismissing Hart’s complaint for mandamus, injunction and for damages in addition to unpaid salary.

The judgment of the circuit court is reversed and the cause is remanded for entry of a proper judgment.

MILLS, Acting C. J., and DRURY, ARV-EL, Associate Judge, concur.


text:
    STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, HEALTH PROGRAM OFFICE, successor to Division of Health, Bureau of Vital Statistics, Appellant, v. Betty Patricia MULLARKEY, formerly Betty Patricia Berkowitz, Appellee.
    No. AA-182.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1976.

      Robert M. Eisenberg, Chief Counsel and Barbara Dell McPherson, Jacksonville, for appellant.
    No appearance for appellee.
   SMITH, Judge.

The Department of Health and Rehabilitative Services appeals from a circuit court order directing the Department, at the instance of appellee, to furnish her a copy of her original birth certificate showing the names of her natural parents. When a final decree of appellee’s adoption was entered, the State registrar made and substituted for the original a new birth certificate bearing the names of the adoptive parents, as required by § 382.21(1), F.S. All records pertaining to the adoption have remained sealed and subject to inspection only on court order. Sec. 63.162, F.S.

The Department does not resist appellee’s wish to receive a copy of her original birth certificate, but urges that the trial court erred in failing to appoint an attorney ad litem for the natural parents, who may wish to preserve the confidentiality of their identity. While there may be compelling reasons supporting the Department’s position, the legislature nevertheless has explicitly required the Department to furnish the original birth certificate and all papers pertaining thereto “at the instance and request of the person whose birth is the subject of the said certificate of birth.” Sec. 382.22, F.S.1975.

AFFIRMED.

MILLS, Acting C. J., and DRURY, ARV-EL, Associate Judge, concur.


text:
    Willie Cleveland PHILLIPS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-99.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1976.
    Richard M. Smith, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   BY

THE COURT.

Upon considering the briefs, the record and oral argument, that part of the judgment adjudging the defendant guilty of Count 2, use of a firearm while committing a felony, is reversed because it is not supported by and is inconsistent with the verdict of the jury which found the defendant guilty of use of firearm by a convicted felon.

In all other respects, the judgment and sentence are affirmed.

MILLS, Acting C. J., McCORD, J., and DRURY, ARVEL, Associate Judge, concur.


author: MILLS, Judge.

text:
    HEALTH FACILITIES RESEARCH INC. and the City of North Port, Petitioners, v. The BUREAU OF COMMUNITY MEDICAL FACILITIES OF the DIVISION OF PLANNING AND EVALUATION OF the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, Respondent.
    Nos. BB-358, BB-359.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1976.
    Rehearing Denied Jan. 7, 1977.
    William L. Boyd, of Mahoney, Hadlow & Adams, Tallahassee, for petitioners.
    Douglas E. Whitney, Tallahassee, for respondent.
    Hugh M. Taylor and W. Robert Olive, of Bryant, Dickens, Franson & Miller, Tallahassee, for amicus curiae.
   ON MOTION TO DISMISS

MILLS, Judge.

Pursuant to Section 120.68, Florida Statutes, 1975, petitioners seek review of certain actions of the respondent concerning the validity of a certificate of need issued to Lemon Bay Hospital, Inc. Lemon Bay Hospital, amicus curiae, moved to dismiss the petition because the petitioners were seeking to adjudicate the rights of Lemon Bay who was not a party to the proceedings.

As amicus curiae, Lemon Bay does not have standing to move to dismiss the petition, therefore, its motion must be denied. However, this court, on its own motion may dismiss this consolidated action and does so.

The petitioners ask this court to determine the validity of a certificate of need held by Lemon Bay Hospital, Inc. Lemon Bay is not a party to this action; it neither participated in the administrative hearing nor was it given notice of the hearing.

“It is fundamental that due process guarantees to a party notice and an opportunity to be heard before his rights are taken away from him by order, decree or judgment of any court.” Mayflower Invest- meat Company v. Brill, 137 Fla. 287,188 So. 205 (1939).

The petitions for review are dismissed.

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


text:
    Henry L. BEMBO, Appellant, v. STATE of Florida, Appellee.
    No. BB-487.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1976.
    James R. Shelley, Public Defender, Pensacola, for appellant.
    Robert L Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

It appearing that appellant pleaded nolo contendere to the charge in count 3 of the information, charging armed robbery, but was adjudicated guilty and sentenced on “count 1 Armed Robbery,” the judgment and sentence for armed robbery are affirmed but the case is remanded to the trial court for correction of the judgment and sentence to read “count 3 armed robbery.”

AFFIRMED, but remanded for correction of clerical error.

BOYER, C. J., and MILLS and SMITH, JJ., concur.


author: BOYER, Chief Judge.

text:
    In re the ADOPTION OF Eric Tyrone LEWIS, a minor child. Daniel E. LEWIS, Appellant, v. Malcom CURRIE and Annie Currie, Appellees.
    No. AA-388.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1976.

      C. Everett Boyd, Wilfred C. Varn of Er-vin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    J. LaDon Dewrell of Dewrell & Kessler, Fort Walton Beach, for appellees.
   BOYER, Chief Judge.

The trial court has entered a final judgment ordering the adoption of Eric Tyrone Lewis (age five) by appellees, the maternal grandparents of the child. Appellant, the child’s natural father, appeals the order of adoption, claiming that the trial court erred in finding that appellant had abandoned the child, and in ruling that the court was bound by a determination in a prior habeas corpus proceeding involving the child that the best interest of the child would be served by maintaining custody in the appel-lees.

After appellant’s marriage to Sharon Currie, daughter of appellees, the couple produced one child, born in 1969. In the spring of 1972, the couple separated and appellant returned to Kansas City. A final judgment of dissolution of marriage was entered in August of 1972, wherein custody of the minor child was awarded to the wife. Both before and after the final judgment of dissolution was entered, appellant sent periodic payments to the wife for child support. Although he did not send payments every week as required by the final judgment, appellant claims that he attempted to make up the difference by sending more money in certain weeks than was required. During the period immediately following the dissolution of marriage, appellant communicated with Sharon by telephone and by mail, and mailed birthday and Christmas presents to Eric. The last telephone call between appellant and his former wife occurred in August of 1973.

In September of 1973, Sharon was fatally injured in an automobile accident. Appellant, unaware of his former wife’s death, continued making weekly child support payments through October of 1973. He terminated the payments because, he claimed, he had not been able to contact his former wife and felt that termination of the child support payments would induce her to contact him. Appellant persuaded his sister to telephone appellees to find out where Sharon and the child were living, but appellees, who had physical custody of the child, would not provide the information. During the period when appellant was unaware of his former wife’s death and of the whereabouts of his son, he continued to send Christmas and birthday presents to his son, mailing the packages to appellees’ residence. Each of those packages contained appellant’s return address in Kansas City. While in Kansas City, appellant made Eric the beneficiary of a $25,000 life insurance policy and initiated a savings account in his behalf.

In November of 1974, appellees filed a petition for adoption, alleging that appellant had deserted his son and that appellees had no knowledge of appellant’s residence nor mailing address. The trial court issued an order of adoption in February of 1975. Appellant subsequently learned of the adoption order, and immediately filed a petition for writ of habeas corpus, seeking custody of his son. Although the court awarded temporary custody to appellant, the petition for habeas corpus was ultimately denied and permanent custody awarded to appellees. Appellant then filed a motion to vacate the judgment of adoption, whereupon the trial court found that appellant was not afforded an opportunity to be heard at the final hearing. After holding two pre-trial conferences, the trial court held that appellees had the burden of proving abandonment of Eric by appellant as a prerequisite to their being awarded custody, that the court would be bound by the determination rendered in the habeas corpus proceedings, that the best interest of the child would be served by maintaining custody in appellees, and that the court would hear no testimony as to the best interest of the child except as to a substantial change in circumstances from the time of the final hearing in the habeas corpus proceeding. A final hearing was held on the adoption petition filed by appellees, whereupon the trial court entered its final judgment which held that appellant had abandoned the minor child, that the interest of the child would be promoted by the adoption, and that the child was suitable for adoption.

Crucial to the decision by the trial court to order the adoption of the child by appellees is the finding that appellant abandoned his son. In order for there to be a finding of abandonment, a parent must be found by his actions to have totally relinquished or forfeited his right to continue as a legal parent. Temporary failures and derelictions seldom justify permanent deprivation of a parental right. See In Re Adoption of Gossett, Fla.App. 1st 1973, 277 So.2d 832. The trial court correctly determined that appellees had the burden of showing abandonment. Pole v. Bowen, Fla. App. 1st 1972, 269 So.2d 707.

Evaluated by the above-discussed standards, the evidence presented in the case sub judice falls short of the showing required to establish abandonment. Prior to his former wife’s death, appellant was in constant contact with Sharon and his minor child, both by mail and by telephone. Moreover, his efforts at providing child support were consistent, if not totally in compliance with the terms of the final judgment of dissolution. After Sharon’s death, the contact which appellant maintained with his son can best be described as “minimal”, but his actions during this period cannot be considered abandonment. Even during that period, appellant attempted to locate his wife and child, and continued sending birthday and Christmas presents to his son through his former in-laws. Finally, when appellant learned of his former wife's death and that his son had been adopted by appellees without notice to appellant, he diligently attempted to regain custody of his son. Clearly, appellant’s conduct did not constitute a settled purpose to permanently forego all parental rights and claims.

Appellees have relied on In Re Adoption of Layton, Fla.App. 3d 1967, 196 So.2d 784. However, that case is factually distinguishable. In that case, the parties separated in September of 1958. From that time until 1963, the natural father of the minor child attempted only one time to communicate with his son, sending him a telegram and a present. Although the court in that case took into consideration the father’s request for visitation privileges in 1963, the court concluded that, “ * * * the record is still permeated with his indifference toward the child. * * * ” (In Re Adoption of Layton, supra, at 786). Sub judice, the record indicates that appellant has exhibited a continuing interest in his child. Therefore, the court erred in concluding that appellant had abandoned his child.

Appellant also challenges the pretrial ruling of the trial court that it was bound by the determination in the prior habeas corpus proceeding in which it was determined that the best interest of the child would be served by maintaining custody in appellees. Initially, we note that the issues in the habeas corpus and adoption proceeding, while similar, are subtly, yet distinctly, different. In the habeas corpus proceeding, the issue was whether the best interest of the child would be served by awarding permanent custody to appellees while permitting visitation to appellant. The issue in an adoption proceeding is distinct from that determined in prior custody proceedings. (Modaesi v. Taylor, Fla.App. 1st 1958, 104 So.2d 664; see also Harden v. Thomas, Fla.App. 1st 1976, 329 So.2d 389). In the adoption action, the primary issue was whether the best interest of the child would be served by completely severing the child’s relationship from his father and ordering the adoption of the child by the appellees. Thus, the trial court was in error in ruling that resolution of the custody issue in the prior habeas corpus proceeding would be determinative of the primary issue regarding the best interest of the child in the adoption proceeding.

Accordingly, the final judgment of adoption is reversed and set aside.

REVERSED.

McCORD and MILLS, JJ., concur.


text:
    Archie CREEL, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Foreign Corporation doing business in Florida, Appellee.
    No. 74-1411.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1976.
    Ralph P. Ezzo and Arthur M. Garel, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Jr., Miami, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 10, 1975 (313 So.2d 772) affirming the summary final judgment of the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed June 9, 1976 (336 So.2d 1170) and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on June 26,1975 is withdrawn, the judgment of this court filed June 10, 1975 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the summary final judgment of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16 b, F.A.R.).


text:
    Bill RIGGS, Appellant, v. STATE of Florida, Appellee.
    No. AA-337.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1976.
    James L. Harrison, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant challenges his conviction of receiving stolen property, urging insufficiency of the evidence and the defective nature of the charging information. Specifically, appellant claims that the information did not allege, nor did the evidence produced at trial establish, that appellant had knowledge that the property was stolen, as required by F.S. § 811.16, which contains the provision that an accused must have bought, received, or aided in the concealment of stolen property “knowing the same to have been stolen.”

The testimony adduced at trial revealed that Monroe Spradley, formerly employed as an assistant manager by Orange State Pipe and Supply Company, a wholesale plumbing and supply business, agreed to sell several hot water heaters to defendant for $25 each. The heaters had a wholesale value of $50 each. Appellant agreed to the purchase price, drove his truck to the company’s place of business, picked the heaters up, and loaded them himself. He paid cash to Mr. Spradley in the company’s place of business. Spradley put the money in his own pocket without informing the company of the sale. No bill of sale nor invoice was ever made out, and Mr. Spradley did not obtain permission to sell the heaters. Mr. Spradley was later discharged for his activities and formally charged with several counts of grand larceny. Appellant installed the heaters in several cabins and a lounge which he had recently purchased.

After a thorough evaluation of the trial testimony, we have concluded that the State did not establish the essential element of knowledge or the stolen nature of the property. The State’s chief witness, Mr. Spradley, did not testify that he informed appellant that he was selling the hot water heaters without the company’s permission; nor did he testify that he revealed to appellant the wholesale value of the heaters. To sustain conviction, there must be evidence from which the jury could have concluded that appellant had knowledge that the purchased goods were stolen, or that the circumstances of the transaction were sufficiently suspicious to put a person of ordinary intelligence and caution upon inquiry. (State v. Graham, Sup.Ct. Fla. 1970, 238 So.2d 618). The evidence in this case does not meet that test.

The conviction is reversed and remanded with directions that appellant be discharged.

Although our conclusion as to the sufficiency of the evidence issue disposes of the case, we find it desirable to briefly discuss one other point raised by appellant. The information filed against appellant alleged that he had unlawfully received stolen property which he “had reasonable grounds to believe” to have been stolen. We agree with appellant’s assertion that the information filed against him is patently defective. If an information contains words which are different from those contained in the applicable statute, the State must use words of sufficient import in substituting words for the statutory language. (Gibbs v. Mayo, Sup.Ct. Fla.1955, 81 So.2d 739). The allegation in the information that appellant had reasonable grounds to believe that the property was stolen is not equivalent with or sufficiently similar to the statutory language which requires that a defendant must have bought, received, or aided in the concealment of stolen property, knowing the same to have been stolen. Indeed, the State has conceded that the information is defective, but urges that appellant may not now raise the issue because he failed to attack it prior to trial. Because of our decision that appellant’s conviction must be reversed because of insufficiency of the evidence, it is unnecessary for us to now determine the latter issues.

REVERSED.

McCORD and MILLS, JJ., concur.


text:
    The SCHOOL BOARD OF ESCAMBIA COUNTY, Florida, Appellant, v. STATE ex rel. ESCAMBIA EDUCATION ASSOCIATION and Fred Haushalter, Appellees.
    No. AA-191.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1976.
    William R. Davenport, Louis F. Ray, Jr., Pensacola, for appellant.
    Ronald G. Meyer, Richard H. Frank, Tampa, for appellees.
   PER CURIAM.

Counsel for appellees having advised the court at oral argument that appellant School Board had furnished all the information they had sought in this mandamus action, it is our view that the cause is moot.

The sole adversary question presented by this appeal relates to the question of allowance of attorney’s fees to appellees. There is sufficient evidence in the record to support the trial judge’s award of attorney’s fees.

AFFIRMED.

BOYER, C. J., RAWLS, J, and MCDONALD, PARKER LEE, Associate Judge, concur.


text:
    Ernest Wayne TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 76-1395.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1976.
    James A. Gardner, Public Defender, Sarasota, and Nevin A. Weiner, Asst. Public Defender, Bradenton, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

We grant herein our gracious common law writ of certiorari.

Petitioner and two codefendants were charged by an information with burglary of a structure in violation of Section 810.02, Florida Statutes (1975). The public defender’s office was appointed to represent all three codefendants. After interviewing the three defendants, the public defender’s office filed a motion to be relieved as counsel for petitioner because of a conflict of interest between the defense of petitioner and one of the other codefendants. The trial court denied the motion on the ground that separate attorneys within the public defender’s office could properly represent the codefendants.

The Sixth Amendment guarantee of the assistance of counsel includes the right to counsel whose loyalty is not divided between clients with conflicting interests. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Baker v. State, 202 So.2d 563 (Fla.1967); Marshall v. State, 273 So.2d 412 (Fla.2d DCA 1973). It is immaterial whether such counsel is appointed by the court or selected by the defendant. Craig v. United States, 217 F.2d 355 (6th Cir. 1954), but in the case of appointed counsel it is. especially important for the court to determine that no prejudice will result from multiple representation. United States v. Gougis, 374 F.2d 758 (7th Cir. 1967).

Furthermore, this guarantee contemplates that members of the same firm cannot represent conflicting interests. The concept is articulated in the Disciplinary Rules of Canon 5, Florida Code of Professional Responsibility:

“DR 5-105 [In re: Clients’ Conflicting Interests]
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client
* * * * * *
(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.”

We view the public defender’s office of a given circuit as a “firm” within the discipline of this canon. See also Allen v. District Court, 519 P.2d 351 (Colo.1974); Commonwealth v. Bracey, 224 Pa.Super. 294, 307 A.2d 320 (1973).

Accordingly, certiorari is granted. The order under review should be, and it is hereby, quashed and the cause is remanded for further proceedings not inconsistent herewith.

McNULTY, C. J., and HOBSON and BOARDMAN, JJ., concur.