author: HARRIS, Presiding Judge.

text:
    Carl Wayne HAMMONDS v. STATE.
    8 Div. 11.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Earl D. McNeal, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of the crime of rape and the jury fixed his punishment at fifteen years imprisonment in the penitentiary. At all stages of the trial proceedings he was represented by counsel who represents him on this appeal. At arraignment he pleaded not guilty. After sentence was imposed he gave notice of appeal and bond was set at $15,000.00.

The evidence is in sharp dispute. The evidence presented by the State made out a clear-cut case of rape, natural and unnatural, and sodomy also. The victim was a twenty-three year old single white girl. Appellant is a black man. Appellant’s defense was an alibi.

The victim testified that her home was in Tampa, Florida, and that she was a student at the University of South Florida; that on January 26, 1977 she was working at Marshall Space Flight Center in Huntsville, Alabama as a “co-operative education student” under an arrangement between the University of South Florida and NASA. While working at NASA she became friendly with a co-worker named Shirley Moore and it was arranged for the victim to visit the home of Shirley Moore on the night of January 26, 1977. The Moores lived in an apartment complex about two miles from the victim’s apartment. The victim drove her car to the Moore’s apartment, arriving at about 6:45 and staying until about 8:00 p. m. There were lights over the doors of the apartment complex and some street lights in the area. While walking down the stairs of the Moore apartment to go to her car she noticed a black man standing next to the building and about two or three feet from the bottom steps of the stairway. The victim was wearing blue jeans, a maroon sweater and an overcoat.

As the victim was almost to the bottom steps this black man pointed a silver colored pistol at her head and told her to come over to him and, if she didn’t, he would shoot her. She described this man as being shorter than she. She'further stated, “He had on a gold V-necked sweater and there was a white T-shirt underneath it, and on his head he had a golfing hat, something that went down almost to his eyebrows. He had on dark trousers. He had some whiskers on his upper lip and on his chin.” At this point she made a positive in-court identification of appellant as the man who pointed the silver colored pistol at her head and threatened to kill her if she refused to come to the place where he was standing. She further testified that when she walked over to him he grabbed her right arm in a firm grip and carried her behind the apartment buildings, pushed her head down and told her to give him her money. She opened her wallet and gave him all the currency she had which was seven dollars, including a Canadian dollar bill. She testified she saw this man face to face under the lights from the doors of the apartment for at least two to three minutes. The victim was asked to state what occurred afterwards.

From the record:

“Well, he asked me if that was all that I had. It was. Then he took me by the arm and he started walking out further behind the building. He told me to keep my head down. He took my glasses off of my face and threw them down. He took me back to a ditch and he put me down on the ground. Then he unloosened my pants and slipped them down over one leg and my underwear.”

She then went on to describe what he did to her while she was pinned down. He penetrated her private parts with his private part and then told her to have oral sex on him. She protested and he told her if she didn’t perform oral sex on him, he would blow her head off. She gagged through this experience and then he committed sodomy on her. He put his cap over her face while he had sexual intercourse with her and when he was finished he took his cap from her face and covered her head with her sweater. He then whistled twice and a car drove up beside the ditch with loud mufflers. This man who robbed and raped her took her pocketbook and told her to stay in the ditch until he was gone. She heard the car door slam and the car drive off. When she could no longer hear the car with the loud mufflers she put her clothes back on and walked to the apartment in which her friend Shirley Moore lived. She knocked on the door and Mr. Moore let her back in the apartment and she immediately told them she had just been robbed and raped. Mr. Moore called the Huntsville Police Department. The victim gave the officers a description of her assailant and showed them the ditch in which she was raped. In the ditch and the immediate area the officers found a pink comb, the victim’s glasses and a purchase slip from Sears bearing her signature. She stated the slip from Sears had been in her pocketbook prior to the robbery and rape. She said the pink comb did not belong to her. The officers also found a business card from a local motor company and the victim testified that she had never seen this card prior to the trial.

The next day after this offense was committed a Detective displayed some fifteen to twenty photographs to the victim and requested that she look through them to see if she recognized anyone and she told the Detective that her assailant was not in the group but she indicated that one of the photographs resembled her attacker and requested that she be allowed to view this man in person. This man was brought in and upon viewing him she said he was not the man. A few days later she was called to Police Headquarters where she was presented six different photographs, without any knowledge that the suspect was in custody, at which time she identified the defendant. About fifteen or twenty minutes later she viewed a lineup of five black men and identified the No. 3 man in the lineup as the man who robbed and raped her on January 26, 1977. As she got ready to leave the station house she requested that she be allowed to view the lineup again to be absolutely sure she had identified the right man. Her second view of the lineup confirmed her identification of the No. 3 man as her assailant.

After her first interview with the officers she was carried to the emergency room of a local hospital where she had a pelvic examination by Dr. Alfred Owen, a specialist in gynecology and obstetrics with thirty years experience. The doctor conducted an examination of the victim and found at the vaginal opening mucous and congestion. He stated, “the congestion would indicate recent intercourse.” The doctor further stated that “the specimens were retained for further examination by the laboratory personnel” at the hospital who worked under his direction and control. Over appellant’s objection the doctor stated that the cervical smear, which he personally hand-carried to the laboratory with the slip carrying the patient’s name, was examined the next day and revealed “many sperm are present, acid phosphatase positive.” He further said, “The findings would be completely compatible with her having had sexual intercourse.” He stated that “congestion means that the area was red and swollen, as a sore throat would look, only this was at the lips of the vaginal opening. The findings were exactly as one would expect to find if a person had sexual relations prior to the examination.”

The investigating officers described in detail the physical condition of the victim when they first interviewed her. According to their testimony she appeared to be in shock and she was crying. Her clothes were wet and muddy as it had been raining that day and there was water in the ditch where the alleged rape occurred.

Police Officer Edward Nixon of the Huntsville Police Department testified that he was patrolling in the early morning hours of February 1, 1977, and had occasion to stop an automobile driven by one Thomas Lightfoot. When he stopped the car he found that appellant was a passenger in this car and he found a weapon on the front seat between the driver and appellant. It was a silver colored .38 Smith and Wesson pistol and was fully loaded. A search of appellant disclosed that he had an unspent cartridge in his pocket that was a .38 caliber cartridge, the same brand as those in the fully loaded pistol.

Officer Nixon further stated that the car he stopped was a 1972 or 1973 Chevrolet Impala, white, two-door hard-top with a white vinyl roof and the muffler was loud. In his words, “The muffler wasn’t a stock muffler.” The officer took possession of this pistol and carved his initials on the butt of the gun and made a notation of the serial number. This pistol was described by the victim as the silver colored pistol used by her assailant during the robbery and rape. It was admitted into evidence over the appellant’s objection.

Over appellant’s objections the sales receipt which was signed by the victim and was in her purse prior to the robbery was admitted into evidence. Also admitted jnto evidence was a photograph of appellant which was identified by the victim as the man who robbed and raped her. The photograph of the five black males in the lineup was also introduced into evidence.

The names, ages, weight and height of the men in the lineup were introduced into evidence to show there were no marked disparities that would make any one of them stand out in comparison with the others that might tend to lead to a misidentifi-cation. They are as follows:

No. 1 — Howard Pruitt, height 5'5", age 28, weight 130 pounds
No. 2 — Johnny Eason, height 5'8", age 36, weight 168 pounds
' No. 3 — Carl Hammonds, height 5'4", age 26, weight 150 pounds
No. 4 — Thomas Lightfoot, height 5'9", age 25, weight 140 pounds
No. 5 — Roy Conley, height 5'6", age 29, weight 140 pounds.

At the close of the State’s case appellant made a motion to exclude the evidence on the ground the State failed to prove a pri-ma facie case. This motion was overruled.

The defense called Thomas Lightfoot, the driver of the car, with the loud muffler, in which appellant was a passenger and where the silver colored pistol was found on the front seat between Lightfoot and appellant. Lightfoot’s attorney was in court when Lightfoot took the witness stand and he made known to the Court that Lightfoot, on his advice, was not going to testify on the ground that his testimony might tend to incriminate him.

From the record:
“I am Henry Mims. I am the attorney for Thomas Lightfoot. We intend to invoke the Fifth Amendment to every question beyond his name and residence. I do not wish to waste the Court’s judicial time, but my client is facing a serious charge himself. He will not testify to what occurred that night, or any other night. He will invoke the Fifth Amendment on all questions beyond his name. We respectfully ask the Court not to do this in front of the jury. He will not testify, sir.”

Counsel for the defense stated they had subpoenaed him and wanted to put him on the witness stand. The Court ruled that Lightfoot would have to take the witness stand and his attorney could exercise his objections. This took place outside the presence and hearing of the jury. Light-foot stated his name and said his residence was the County jail. From that time forward to every question posed to him, he replied: “Fifth Amendment.”

Appellant did not testify but offered the testimony of four witnesses in support of his alibi. In sum, their testimony was that on the night of January 26, 1977, appellant was in their company while they viewed the television movie “Roots,” and that he spent the night at the home where the movie was shown.

According to the testimony of the victim, appellant’s privates were very large. Appellant called several witnesses who testified they had seen him nude and that his privates were small. Counsel for appellant moved the Court to permit the appellant to display his privates to the jury so that they could judge for themselves the size of his privates. The Court refused this motion.

Appellant claims the trial court committed reversible error in permitting the jury to separate and go to their homes following the second day of the trial. The record does not support this contention.

From the record:
“The Court: My next question is this: Is it okay with you to allow the jury to separate tonight and go their separate ways to their homes with the instructions that they would not talk to anybody about the case or have anyone talk to them about it?
“Defendant: Okay, I will allow them to go home.
“The Court: Is that okay with you, now, to allow them to be separated, whatever twelve is selected?
“Defendant: Yes.”

Section 12-16-9, Code of Alabama 1975, governs the separation of the jury in crimh nal cases, and provides:

“If the accused and his counsel and also the prosecuting attorney, in any prosecution for felony, whether capital or non-capital, consent thereto in open court, the trial court in its discretion may permit the jury, trying the case to separate during the pendency of the trial, whether the jury has retired or not. A separation so permitted shall not create a presumption of prejudice to that accused, but on the contrary it shall be prima facie presumed that the accused was not prejudiced by reason of the separation of the jury.”

The record shows a clear consent of appellant for the jury to separate during the pendency of the trial and this means the entire trial. The Court was under no duty to take any further action in allowing the jury to separate on the second day of the trial absent an objection and a ruling thereon. There was no objection to permitting the jury to separate on the second day of the trial. In Turner v. State, 54 Ala.App. 467, 309 So.2d 503, we held this matter could not be raised for the first time on appeal.

There was no error in refusing to permit the appellant to display his genital areas to the jury. Several witnesses testified that they had observed appellant nude and that his private parts were small. No doubt they appeared extremely large when the victim was raped, forced to have oral sex with appellant and when he committed an act of sodomy on her.

It is not within the province of this Court to pass judgment on the truthfulness or falsity of conflicting evidence and a verdict rendered thereon will not be disturbed on appeal. Burns v. State, Ala.Cr.App., 346 So.2d 484.

Alibi evidence is always a jury question. Ala.Dig.Crim.Law, ©=>739(2).

The pistol found on the front seat of the automobile in which appellant was riding when arrested and which fit the description given the officers by the victim was properly admitted into evidence. Ala. Dig.Crim.Law, ©==>404(3) and 404(4).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SUNDBERG, Justice,

license: Public Domain

text:
    PITTSBURGH PLATE GLASS COMPANY and Fireman’s Fund American Insurance Company, Petitioners, v. George E. FRY and the Industrial Relations Commission, Respondents.
    No. 50872.
    Supreme Court of Florida.
    Nov. 23, 1977.
    Rehearing Denied Feb. 21, 1978.
    Eugene N. Betts, Fort Lauderdale, for petitioners.
    L. Barry Keyfetz, of Keyfetz & Poses, Miami, for respondent.
    OVERTON, C. J., and ADKINS, BOYD and HATCHETT, JJ., concur.
    SUNDBERG, J., dissents with an opinion with which ENGLAND and KARL, JJ., concur.
   SUNDBERG, Justice,

dissenting.

Petitioner herein presented three points for reversal of the order of the Industrial Relations Commission: Whether the Industrial Relations Commission departed from the essential requirements of the law in (1) upholding the Judge of Industrial Claims’ determination that medical treatment was not fully “furnished” by the employer until payment was made; (2) upholding the Judge of Industrial Claims’ apportionment of eighty percent compensation where the sole doctor testifying as to apportionment recommended exactly the opposite; and (3) upholding the Judge of Industrial Claims’ determination that while maximum medical improvement was reached on September 20, 1972, disability benefits should commence as of November 1, 1973, the date claimant totally stopped work.

I respectfully dissent from denial of the petition for certiorari as to the issue of apportionment of disability between the preexisting condition of arteriosclerosis and the myocardial infarction, which was determined by the Judge of Industrial Claims to be compensable. The record reflects that the Judge of Industrial Claims had the benefit of the testimony of three physicians, Dr. Marshall Pepper, Dr. Roland K. Molinet, and Dr. Henry R. Cooper. A review of the testimony of Drs. Pepper and Molinet reflects that neither offered any opinion within a degree of reasonable medical certainty as to apportionment between the preexisting coronary artery disease and the myocardial infarction. In fact, Dr. Molinet indicated that he was incapable of making any such apportionment. On the other hand, Dr. Cooper testified as follows in response to questions from the Judge of Industrial Claims:

THE JUDGE: Let me understand your testimony that the pre-existing condition, according to your testimony, is seventy-five percent. The condition caused by the myocardial infarction is twenty-five percent?
THE WITNESS: The physical exertion as being regarded as a causal of the symptom relationship would not be more than twenty-five percent. Ordinarily, Judge, except in very rare cases it’s totally due to the arteriosclerotic disease, not as to what he is doing at the moment. But as given to me, this is a rather extreme amount of exertion.
* * * sjc * *
[JUDGE] Q. I see.
Now, we go to the third thing and that’s the degree of disability. We started talking about seventy-five percent and twenty-five percent, and then you said ten percent. Now, is that twenty-five percent of ten percent?
[WITNESS] A. No, sir. What I said is I thought you would be extremely liberal if you said that the precipitation of the infarction was influenced by the environmental events, the exercise, up to twenty-five percent. Certainly seventy-five percent of the reason he had the infarction — or more — may be ninety-nine and nine-tenths percent was due to the underlying coronary artery disease.
So I’m saying if you’re going to make it liberal and you want to go up to twenty-five percent, it’s such an arbitrary thing I couldn’t argue.
Now, the amount of residual disability that he has due to the infarction — and that’s the only thing that I see that you’re talking about — could not be more than ten percent. Now, this is based on how much muscle loss did he lose out of the left ventricle. He did not lose enough to in any way deter his physical activities on the basis of muscle; but maybe he lost ten percent of his total muscle, but his reserve is much greater than that; and plus, the psychological effect possibly of having a heart attack. So it couldn’t be over ten percent.
[JUDGE] Q. Using that spectrum of one hundred percent, how much of the one hundred percent do you chop off for the myocardial infarction?
[WITNESS] A. Ten percent. That’s his disability, his permanent disability as far as I’m concerned, and that is being extremely liberal. . :

Based upon this medical testimony, the Judge of Industrial Claims made a determination that eighty percent of the respondent’s disability was due to the myocardial infarction.

It is undisputed that an order of the Judge of Industrial Claims must be based upon competent substantial evidence. Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974). This is no less true with respect to an order involving apportionment when required under Chapter 440,' Florida Statutes. Tingle v. Dade County Board of County Commissioners, 245 So.2d 76, 77 (Fla.1971). I respectfully submit that there is no competent substantial evidence — evidence based upon reasonable medical certainty — to support the apportionment order of the Judge of Industrial Claims in the instant case. It is conceded that the Judge was not obliged to give credence to the testimony of Dr. Cooper. Nevertheless, if no weight is given to that physician’s testimony, then there is no competent medical testimony in the record to sustain a different percentage of apportionment between the preexisting condition and the compensable condition. While it is true that the finder of fact may select a figure between the highest and the lowest amounts supported by competent evidence, as in the case of condemnation awards, we are not presented with such a situation in the instant case. If Dr. Cooper’s testimony is discarded, then there exists no expert testimony upon which to predicate the apportionment. This is especially clear in the instant case, where one of the other two medical experts testified, essentially, that it was impossible to make an apportionment. Assuming that the Judge did not totally disregard Dr. Cooper’s testimony, there was no independent criteria in the evidence upon which the Judge could base his finding. The case would be different if either Dr. Pepper or Dr. Molinet had testified that none of respondent’s disability resulted from the preexisting condition. If such were the case, the Judge of Industrial Claims would have been supplied with parameters within which to select a percentage between twenty-five percent and one hundred percent as attributable to the com-pensable condition.

I recognize that the task of apportionment required by .Chapter 440, Florida Statutes, is a delicate and imprecise function to be performed by the Judges of Industrial Claims. Nonetheless, their conclusion with respect to apportionment must be supported by some competent medical evidence.

Accordingly, I would grant the petition for certiorari with directions to the Industrial Relations Commission to remand the cause to the Judge of Industrial Claims for further proceedings in connection with the issue of apportionment.

ENGLAND and KARL, JJ., concur.

      . Behm v. Division of Administration, State Department of Transportation, 336 So.2d 579 (Fla. 1976).


author: PER CURIAM.

text:
    Howard FARNSWORTH et ux., Petitioner, v. ALLSTATE INSURANCE CO. et al., Respondents.
    No. 51475.
    Supreme Court of Florida.
    Jan. 19, 1978.
    Thomas M. Woodruff, St. Petersburg, for petitioner.
    James B. Thompson of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Pe-tersburg, for respondents.
   PER CURIAM.

Affirmed. Calhoun v. New Hampshire Insurance Company, 354 So.2d 882, Case No. 50,448 (Fla., opinion filed January 19, 1978).

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

ADKINS, J., dissents.


author: BY THE COURT.

text:
    In re THE FLORIDA BAR. In re Henry L. TURNER, III, d/b/a Physician’s Administrative Services.
    No. 48042.
    Supreme Court of Florida.
    Feb. 16, 1978.

      Lawrence J. Phalin, Bar Counsel, Orlando, for The Florida Bar, petitioner.
    James W. Markel of Graham, Markel & Scott, Orlando, for respondent.
   BY THE COURT.

The Florida Bar petitioned this Court,to enjoin Henry L. Turner, III from the unauthorized practice of law, alleging that between 1967 and 1973 while Turner was a licensed life insurance agent and Chartered Life Underwriter, he gave legal advice in various ways to a number of doctors and medical groups. We appointed a referee to conduct hearings, to determine whether Turner had engaged in the unauthorized practice of law, and to report his findings and recommendations to us. In lieu of a hearing the parties entered into a stipulation of facts and applicable law, which the referee accepted. He then recommended to us that Turner be enjoined from the unauthorized practice of law.

Having reviewed the stipulation and the referee’s report we conclude that Turner had between 1967 and 1973 engaged in the practice of law in his capacity as an insurance agent, while not a member of The Florida Bar, and we accept the referee’s recommendation. Accordingly, Turner is permanently enjoined from the unauthorized practice of law and prohibited, among other things, from evaluating and preparing legal forms and instruments, supplying legal forms with advice or instructions as to their use, and drafting legal instruments adapted to particular circumstances, such as corporate charters, by-laws, pension plans, employment agreements, health plans and trust agreements. Turner is further ordered to pay costs which were properly incurred by the bar.

As a matter of guidance to the bar and other professionals, we attach as an appendix to this opinion the conclusions of law to which both parties stipulated and which we approve.

It is so ordered.

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

ADKINS and HATCHETT, JJ., dissent.

APPENDIX

“CONCLUSIONS OF LAW

1. That the public interest demands competent, quality advice and services with respect to planning, designing, drafting, and implementing corporate professional associations and pension plans.

2. That the fields of pension planning (or ‘employee benefit’ planning) and corporate planning involve the interpretation of the Internal Revenue Code, revenue rulings, statutory law, court decisions, and other regulations having the force and effect of law.

3. That the establishment of any type of pension or welfare plan (as defined in the Internal Revenue Code) involves not only the rendering of legal advise [sic] and services, but also, in many instances, actuarial, accounting, economic, insurance, and investment advice in reference to the designing, drafting and adoption of a pension plan, without the rendering of legal advice or legal services, does not constitute the practice of law.

4. That a general discussion with an employer of various types of pension or welfare plans, which employees should be covered as a matter of policy, the cost of the benefits for employees, the amounts of contributions to the plan, the funding of the plan, and other factors of a strictly financial and economic nature are proper for laymen, provided that no specific advice is given with respect to particular persons, particular plans, and their eligibility under the tax laws.

5. That the discussion by a person unlicensed to practice law with another person of general principles of law, without applying those principles to the particular factual situation of that person does not constitute specific legal advice or the practice of law.

6. That the application of general rules of law to particular sets of facts as they relate to particular persons or legal entities constitutes the practice of law.

7. That the evaluation of the legal effect of a particular legal instrument, e. g., pension plan, pension trust agreement or corporate charter, as it would apply to a particular individual or legal entity, coupled with advice, either directly or indirectly, as to the legal consequences of such legal instrument, constitutes legal advice and the practice of law.

8. That the supplying of legal forms to others coupled with instruction/advice and/or representations as to how said forms should be filled out or the quality and effect of such forms as applied to the specific situation of others constitute legal advice and the practice of law. The fact that the supplier adviser urges another to consult an attorney does not make the advice any less ‘legal advice’ or his services any less ‘legal services.’

9. That the making of changes in legal forms to fit the specific factual needs of others constitutes the rendition of legal services and the practice of law.

10. That complex tax problems exist in the planning and designing of pension plans and corporate professional associations.

11. That complex tax problems exist in considering what type of pension plan best suits the needs and desires of an individual employer and what type of pension plan will qualify for benefits under federal tax laws.

12. That potential and actual conflicts of interest exist where a lay person or entity not licensed to practice law attempts to give legal advice and/or provide legal services to a prospective client to whom he is attempting to sell a product, e.g., life insurance.

13. That a pension plan and a pension trust agreement drafted in connection therewith are, in themselves, legal instruments which define and determine the legal rights and obligations of both an employer and employee. The drafting of such instruments must involve the careful consideration of the rights and obligations which emanate under the Internal Revenue Code and related laws, as well as contract, trust and property laws.

14. That a properly drafted corporate charter and by-laws are important contractual documents/legal instruments, the preparation of which constitute the practice of law.

15. That the design and preparation of a pension plan for another embodying data gathered from said person constitutes the practice of law.

16. That the submission of a pension plan and/or corporate professional association documentation to another for adoption and/or implementation coupled with the representation, either directly or indirectly, that said legal documents are suitable to the persons’ particular circumstances, needs, and objectives constitutes legal advice and' the practice of law.

17. That the advising of another that a particular pension plan qualifies for tax benefits under the Internal Revenue Code, revenue rulings, and court decisions constitutes legal advice and the practice of law.

18. That the rendering of an opinion or advice, either directly or indirectly, regarding the consequences or effects of the tax laws or other laws on the pension plan and/or corporate professional association of another constitute legal advice and the practice of law.

19. That the interpretation of provisions of a pension plan and/or legal documentation encompassing a corporate professional association involve legal analysis and judgment. Any advice or representations in reference to any such interpretation would necessarily involve legal advice/representation and the practice of law.

20. That the preparation of the following legal documents in connection with the formation of a corporate professional association constitutes the practice of law: (1) Articles of Incorporation, (2) ByLaws, (3) Minute Book entries, and (4) Assignments of Lease to professional corporation.

21. That the preparation of the following legal documents in connection with the formation of a pension plan (employee benefit plan) constitutes the practice of law: (1) The Plan, (2) Employment Agreement with Professional Corporation, (3) Health Plan, and (4) Trust Agreement.”


author: ADKINS, Justice. ENGLAND, Justice,

text:
    Eugene ROHRSEN and Katherine Rohrsen, Petitioners, v. WACO SCAFFOLD & SHORING COMPANY and the District Court of Appeal of Florida, Second District, Respondents.
    No. 51107.
    Supreme Court of Florida.
    Feb. 16, 1978.

      David L. Kahn, of Walsh, Kahn & Gus-tafson, Fort Lauderdale, for petitioners.
    A. Broaddus Livingston and Sylvia H. Walbolt, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for respondents.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Second District (Rohrsen v. Waco Scaffold & Shoring Company, 341 So.2d 1093 [Fla.2d DCA 1976]), which allegedly conflicts with prior decisions of this Court (West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 [Fla.1976], and Linder v. Combustion Engineering Company, 342 So.2d 474 [Fla.1977]), on the same point of law. Article V, Section 3(b)(3), Florida Constitution.

On May 9, 1973, the petitioner, hereinafter referred to as “plaintiff”, fell at a construction site while he was descending a Hi-load shoring manufactured and delivered to the job site by the respondent, hereinafter referred to as the “defendant”. Suit was brought against the defendant and others, the complaint alleging that defendant was negligent, breached implied warranties, and was strictly liable in tort.

The defendant moved to strike or dismiss the plaintiff’s claim that defendant was strictly liable in tort upon the ground that this theory of law was not a part of the Florida tort law. The trial judge correctly granted the motion to dismiss as we had not yet adopted the theory of strict liability in tort.

The defendant moved for a summary final judgment on the other theories of recovery and the same was granted by the trial judge.

Upon appeal, the plaintiff contended, inter alia, that the trial judge committed error in dismissing plaintiff’s count relying upon the theory of strict liability in tort. The District Court of Appeal affirmed the trial judge’s dismissal of the count alleging strict liability in tort.

On July 21,1976, pending the appeal, this Court adopted the theory of strict liability in West v. Caterpillar Tractor Company, Inc., supra. Thereafter, in Linder v. Combustion Engineering, Inc., supra, we determined the manner in which the adoption of strict liability should be applied in pending litigation and made the following pronouncement:

“(1) As to those cases in which the strict liability rule has been applied, West shall be applicable.
“(2) As to those cases already commenced but in which trial has not yet begun, the strict liability rule shall be applicable.
“(3) As to those cases in which trial has already begun or in which verdict or judgment has already been rendered, the strict liability rule shall not be applicable unless the applicability of the rule was appropriately and properly raised during some stage of the litigation.
“(4) As to those cases on appeal in which the applicability of the strict liability rule has been properly and appropriately made a question of appellate review, the strict liability rule shall be applicable.
“(5) The strict liability rule shall be applicable in all cases commenced after this decision becomes final.” 342 So.2d at 476.

The plaintiff attempted to apply the doctrine of strict liability in his original complaint and this issue was dismissed from the case as a question of law, not of fact. The factual basis for strict liability has never been considered by the trial court, nor was it considered by the District Court of Appeal. The summary judgment on the remaining counts did not deal with strict liability.

The factual contents of any affidavits filed in support of the summary judgment in the remaining counts could have no effect upon the sufficiency of the count alleging strict liability, since for purposes of the motion to dismiss all well pleaded allegations of the complaint must be taken as true.

The decision of the District Court of Appeal is in conflict with the principles announced in Linder v. Combustion Engineering, Inc., supra, and we have jurisdiction.

We find no error in the entry of the summary judgment as to the remaining counts of the complaint, but the count based upon the theory of strict liability should be reviewed by the trial judge in the light of West, supra.

The decision of the District Court of Appeal is quashed and the cause is remanded with instructions that same be further remanded to the trial court for consideration of the count based upon strict liability in tort.

It is so ordered.

SUNDBERG, HATCHETT and KARL, JJ., concur.

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

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice,

dissenting.

I dissent for the reasons I expressed in Florida Greyhound Owners & Breeders Association, Inc. v. West Flagler Associates, Ltd., 347 So.2d 408 (Fla.1977).


text:
    STATE of Florida ex rel. FLORIDA DEPARTMENT OF NATURAL RESOURCES and Reubin O’D. Askew, Governor, Robert L. Shevin, Attorney General, Doyle Conner, Commissioner of Agriculture, Thomas D. O’Malley, Treasurer, Ralph D. Turlington, Commissioner of Education, Gerald Lewis, Comptroller, and Bruce A. Smathers, Secretary of State, as Head of Department of Natural Resources, Relators, v. DISTRICT COURT OF APPEAL OF Florida, SECOND DISTRICT, Respondent.
    No. 51732.
    Supreme Court of Florida.
    Feb. 16, 1978.

      Robert L. Shevin, Atty. Gen., William S. Cassel and Thomas A. Harris, Asst. Attys. Gen., Tallahassee, for relators.
   PER CURIAM.

This is an original proceeding in which the Florida Department of Natural Resources, Reubin O’D. Askew, Governor, Robert L. Shevin, Attorney General, Doyle Conner, Commissioner of Agriculture, Thomas D. O’Malley, Treasurer, Ralph D. Turlington, Commissioner of Education, Gerald Lewis, Comptroller, and Bruce A. Smathers, Secretary of State, seek a writ of prohibition to prohibit the District Court of Appeal, Second District, from purporting to exercise jurisdiction to entertain Case No. 77-464 on its docket. We have jurisdiction pursuant to Article V, Section 3(b)(4), Florida Constitution.

Because this case is controlled by a recent decision of this Court we deem it unnecessary to issue a rule nisi in prohibition and to require a return by the respondent. For the reason hereinafter stated we issue the writ of prohibition.

On March 15, 1977, Sunset Realty Corporation filed in the District Court of Appeal, Second District, a petition for review of final agency action under Section 120.68(2), Florida Statutes (1975). That petition was docketed in the District Court of Appeal as Case No. 77-464. By that petition Sunset Realty Corporation seeks review of the final agency action of the Department of Natural Resources in passing Chapter 16(b)-26.06, Florida Administrative Code at a meeting on January 6, 1977. That rule was adopted by the agency on January 25, 1977, by filing with the Department of State the necessary copies of the Chapter. On March 31, 1977, relators filed a motion to dismiss the petition for review in the District Court of Appeal, Second District. The basis for the motion was that the petition filed in that case, having been filed 49 days after the adoption of the rule by the Department of Natural Resources, was untimely filed. By order filed April 13, 1977, the District Court of Appeal, Second District, denied relators’ motion to dismiss.

This case is governed by our recent decision in Florida Administration Commission v. District Court of Appeal, First District, 351 So.2d 712 (Fla.1977), wherein we held that agency action is final in rule-making procedures when the rule has been adopted and filed with the Department of State. Since the petition in this case was not filed within the time allowed under Florida Appellate Rule 4.5(c)(1), jurisdiction did not vest in the District Court of Appeal, Second District.

Accordingly, the writ of prohibition requested by relators is granted and the Judges of the District Court of Appeal, Second District, are prohibited from exercising jurisdiction to entertain Case No. 77-464 on the docket of that court.

It is so ordered.

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


author: PER CURIAM. ADKINS, Justice,

text:
    THE FLORIDA BAR, Complainant, v. David A. RHODES, Respondent.
    No. 51619.
    Supreme Court of Florida.
    Feb. 16, 1978.
    William M. Hereford, Bar Counsel, Sarasota, and Michael C. Whittington, Asst. Staff Counsel, Tallahassee, for complainant.
   PER CURIAM.

We have for review the report of the referee in the above matter. No petition for review or cross-petition was filed. The referee’s report contained the following:

“SUMMARY OF ALLEGATIONS
Respondent was granted Letters Testamentary as Executor of the Estate of EMMA VOLK in Manatee County, Florida, on March 13, 1973. The Complaint against Respondent alleges that Respondent withdrew funds from said Estate in the amount of $19,990.80 over a period of time, commencing April 23, 1973 through August 24, 1975. The allegations of the Complaint charge appropriation to his own use said funds belonging to the Estate which said funds came into Respondent’s possession by virtue of his appointment as Executor.

On or about September 9, 1975, the Court ordered the Respondent to file an inventory and accounting in the Estate of EMMA VOLK. On or about September 26, 1975 the Court ordered Respondent to appear on September 30, 1975 and produce the Estate’s assets and show cause why he should not be removed as Executor. Thereafter, on or about October 3, 1975, the Court removed Respondent as Executor and ordered him to submit a full accounting by October 15, 1975, and to turn over to the newly appointed Administrator all assets of the Estate by October 20, 1975.

The accounting was filed on or about October 20, 1975, and the Respondent delivered the Estate’s assets to the newly appointed Administrator. Those assets consisted largely of Respondent’s personal Promissory Notes bearing interest at the rate of ten per cent (10%) per annum and being made payable to the Estate within thirty (30) days on demand. The principal on the Notes totaled $19,990.80, with accrued interest totaling an additional $3,086.54 at that time.

Written demand for payment was made and said Notes were not paid.

* * * sis * *
SUMMARY OF EVIDENCE
All of the allegations of the Complaint were admitted by Respondent except that his admission was to the effect that withdrawal of the funds was in the nature of a loan by the Estate to him. Testimony of Respondent was to the effect that funds were withdrawn from the Estate Account as a loan to him personally and was used for his personal use. Respondent’s testimony was to the effect that at the time the funds were withdrawn from the Estate Account he intended to repay same as a loan. A review of the documentary evidence (Respondent’s Exhibit A) shows that checks were drawn on the Estate Account to the Respondent some being marked on the face thereof as Attorney’s and Executor’s Fees, and as Partial Fees. One check in particular in the amount of $2500.00 was deposited in the account of DeSoto Memorial Motorcycles, being a business enterprise of the Respondent. The Respondent admitted in his testimony (Tr. 14) that this money was used in his business account..
All of the Notes executed by Respondent (Bar Exhibits 4 through 17) were in the exact amounts as the checks drawn to Respondent over the period of time aforementioned above and all of said Notes were executed at the same time, to-wit immediately prior to the filing of the inventory for the Estate as required by the Court.
I find no evidence from the testimony or the documentary evidence to substantiate Respondent’s theory that the funds were withdrawn in the nature of a loan to him from the Estate. A review of the testimony and of the documentary evidence discloses no intent to repay said funds at the time of withdrawal and, therefore, I have concluded that the funds were improperly withdrawn for the personal use and benefit of the Respondent.”

The referee recommended that the attorney be found guilty of violating the Code of Professional Responsibility and that he be disbarred from the practice of law. The recommendations of the referee are approved and David A. Rhodes is hereby disbarred from the practice of law.

Costs in the amount of $553.20 are taxed against David A. Rhodes.

It is so ordered.

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting:

In my opinion, the good record of the attorney should have great bearing on the question of disbarment. Mr. Rhodes was admitted to The Florida Bar in 1964. There were no previous disciplinary actions instituted against him.

Mr. Rhodes contends that his only intention was to borrow the money from the estate. Of course, at one time he had in his possession $30,000.00, representing net proceeds from the sale of property owned by Rhodes. Rather than make restitution at that time, Rhodes invested the $30,000.00 in one of his business ventures with the idea of repaying the loan due the estate from his business profits.

He originally intended to refinance his home and repay the advances from the estate. However, marital difficulties arose and he was unable to secure his wife’s signature and approval of the loan.

This isolated instance of misfeasance on the part of Rhodes should not be tolerated or condoned. However, I think disbarment is too severe. I would request the parties to submit briefs directed to the suitability of the disciplinary measures recommended by the referee. See Article XI, Rule 11.-09(3)(f), Integration Rule of the Supreme Court of Florida.


author: PER CURIAM. HATCHETT, Justice,

text:
    William L. BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 50544.
    Supreme Court of Florida.
    Feb. 16, 1978.
    Gordon W. Taylor, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

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

It is so ordered.

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

HATCHETT, J., dissents with an opinion.

BOYD, J., dissents and concurs with HATCHETT, J.

HATCHETT, Justice,

dissenting.

I would treat as petition for writ of habe-as corpus under the dictates of Article V, Section 2(a), Florida Constitution, that “no cause shall be dismissed because an improper remedy has been sought.”

BOYD, J., concurs.


text:
    THE FLORIDA BAR, Complainant, v. Albert P. SCHWARZ, Respondent.
    No. 52681.
    Supreme Court of Florida.
    Feb. 16, 1978.
    John A. Weiss, Asst. Staff Counsel, Tallahassee, for complainant.
    Gilbert Bentley, Maitland, for respondent.
   PER CURIAM.

On February 12, 1976, counsel for The Florida Bar filed a complaint charging Respondent with violating Disciplinary Rules 6-101(A)(3), 7-101(A)(l), 7-101(A)(2) and 7-101(A)(3) of the Code of Professional Responsibility for failing to carry out a contract of employment with his client and for prejudicing or damaging his client in the course of the professional relationship.

On March 31, 1977, Respondent executed a conditional guilty plea for consent judgment in which he admitted the allegations of the complaint.

The Board of Governors of The Florida Bar approved the conditional guilty plea subject to this Court’s approval.

The conditional guilty plea is hereby approved and the following discipline imposed:

a. A public reprimand to be published in the Southern Reporter.

b. Probation not to exceed three years, the probation to terminate upon respondent’s submission of four quarterly status reports in succession.

c. Payment of $187.00 for costs incurred by The Florida Bar in bringing these disciplinary proceedings.

The publication of this opinion shall serve as the public reprimand.

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


text:
    Anthony ANTONE, Appellant, v. STATE of Florida, Appellee.
    No. 50240.
    Supreme Court of Florida.
    Feb. 16, 1978.
    Angelo M. Ferlita of Diecidue, Ferlita & Prieto, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Charles Corees, Jr., Asst. Atty. Gen., Tampa, and T. Edward Austin, Jr., State’s Atty., Jacksonville, for appellee.
   PER CURIAM.

Anthony Antone was convicted of first degree murder and sentenced to death by the trial judge. He appealed his conviction to us pursuant to Article V, Section 3(b)(1), Florida Constitution, and Section 921.141(4), Florida Statutes (1975).

Subsequent to the filing of this appeal, the prosecuting attorney filed a motion to supplement the record with information which had not previously been revealed either to him or to the defendant. The substance of the information is that the Florida Department of Criminal Law Enforcement apparently paid substantial fees to the attorneys for Ellis Marlowe Haskew, a co-defendant who negotiated a plea and became the State’s principal witness against Antone. In light of this new information, Antone has requested that we remand the case to the trial court for a determination as to whether a new trial should be granted.

Antone contends that the State’s failure to reveal the information during the course of pre-trial discovery constitutes a violation of the continuing duty to disclose imposed by Florida Rule of Criminal Procedure 3.220(f), and that the withholding of this information from the defendant resulted in a denial of due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. Antone asserts that the newly-discovered facts explain Haskew’s interest in testifying against Antone, that they bear on the issue of Haskew’s credibility since they refute Haskew’s statements to the jury that he received nothing from the State other than the benefit of his negotiated plea, and that they are so “materially favorable” to Antone’s case that a revelation of those facts might have led to a different result at his trial.

In Williams v. Dutton, 400 F.2d 797, 800 (5th Cir. 1968), the Fifth Circuit Court of Appeals said:

“It is now clear that Brady imposes an affirmative duty on the prosecution to produce at the appropriate time requested evidence which is materially favorable to the accused either as direct or impeaching evidence.”

The record shows that defense counsel assiduously sought all relevant data from the State concerning Haskew’s bargain, that this bargain was brought out before the jury in an endeavor to discredit Haskew’s testimony, and that Haskew’s credibility was a dominant issue, if not the dominant issue for the defense, in Antone’s trial. The record also shows that the case against Antone was developed in large part through efforts of the Department of Criminal Law Enforcement, and that officers of that department directly participated in the prosecution. If the alleged fee payments were in fact made to Haskew’s attorneys, then even though the prosecuting attorney was not aware of that fact, the Department was. Just as there is no distinction between different prosecutorial offices within the executive branch of the United States government for purposes of a Brady violation, there is no distinction between corresponding departments of the executive branch of Florida’s government for the same purpose.

It is necessary to ascertain whether the information concerning fees for Haskew’s attorneys is accurate, and, if so, whether a Brady violation occurred in this case that is sufficient to warrant a new trial for Antone. In considering the latter issue, the trial court should be guided by materiality standards defined by the United States Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 392 (1976).

This case is remanded to the trial court for the purpose of determining whether there is a factual basis for the information allegedly withheld by the State, and, if so, whether it is so “materially favorable” to Antone’s defense as to require that a new trial be granted, In view of the fact that the alleged Brady violation may necessitate a new trial, it would be pointless for us to pass upon the merits of Antone’s appeal at this time.

It is so ordered.

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

ADKINS, J., dissents.

      . Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).


text:
    THE FLORIDA BAR, Complainant, v. Remus C. E. ALLEN, Respondent.
    No. 51555.
    Supreme Court of Florida.
    Feb. 16, 1978.

      Marshall R. Cassedy, Executive Director, Tallahassee, David G. McGunegle, Asst. Staff Counsel, Tallahassee, and Louie Ralph Smith, Jr., Bar Counsel, Tallahassee, for complainant.
    Remus C. E. Allen, in pro. per.
   PER CURIAM.

This is a disciplinary proceeding against Respondent, Remus C. E. Allen, a member of The Florida Bar. Respondent made no request for hearing before us nor did he file responsive pleadings. The referee made the following findings and recommendation:

“As to Count I
“That it does not sufficiently appear from the pleadings, admissions and the evidence adduced at the hearing that the Respondent neglected a matter entrusted to him. In this respect, it should be noted that the complaining witness, Mr. Alfred James Carr, did not appear at the hearing.
“As to Count II
“1. That the Respondent was retained by Alfred James Carr in September of 1975 tc investigate several matters on behalf of Mr. Carr. (TR 45)
“2. That in the course of the representation Mr. Carr deposited with the Respondent the sum of $500.00, approximately $80.00 of which was applied by the Respondent to fees for various matters which he charged to Mr. Carr.
“3. That the remaining $420.00 was an advance deposit on travel and meal expenses to be incurred by the Respondent on behalf of the investigation for Mr. Carr.
“4. That the Respondent never accounted to Mr. Carr for this $420.00 and by his own admission, could not have incurred mileage and meals in connection with the client’s business to have consumed the entire $420.00. (TR 46, 60, 61, 77, 79, 80, 82, 83)
“5. That Respondent allow.ed a judgment to be entered against him in favor of Mr. Carr for $600.00, representing the $500.00 advanced by him to Respondent. (TR 48)
“As to Count III
“1. That Respondent represented Letitia Ford Montgomery in connection with an eminent domain proceeding in Gadsden County, Florida, and that Mrs. Montgomery was awarded $6,461.51, a check for which was issued to her on 20 November 1974. (TR 10, 11)
“2. That Respondent delivered this check to Mrs. Montgomery and at that time solicited a loan from her at a time when an attorney-client relationship existed between them. (TR 11, 12)
“3. That at the time of the solicitation of a loan of $1,600.00 from Mrs. Montgomery, Respondent represented to Mrs. Montgomery that he had not been paid his attorney fees in connection with the condemnation matter, whereas in fact, he had received his court awarded fee of $7,042.00 by a check dated 3 April 1974. (TR 13, 29, 32, 33, 34)
“4. That Mrs. Montgomery loaned the $1,600.00 in cash to Respondent because of her relationship with him as her attorney and probably would not have loaned the money to him if he had not been her attorney. (TR 12, 16, 17, 34)
“5. That Mrs. Montgomery has never been repaid any portion of said loan. (TR 13, 14)
“6. That after the loan, the Respondent sent a check to Mrs. Montgomery for $1,000.00 dated 29 July 1975, as a payment on the loan, which check was held for about a week as requested by Respondent but was ultimately returned to Mrs. Montgomery from the bank, marked ‘Insufficient Funds’. (TR 14)
“As to a Violation of the Integration Rule Not Specifically Alleged in the Complaint But which Appeared from the Evidence Adduced
“1. That the Respondent failed to initially deposit into his trust account $420.00 advanced to him for costs and expenses by his client, Mr. Alfred James Carr. (TR 77, 80, 83)
“III. Recommendation as to whether or not the Respondent should be found Guilty: As to each count of the Complaint, I make the following recommendations as to guilt or innocence:
“As to Count I
“I recommend that the Respondent be found not guilty as to any violation of the Integration Rules of the Florida Bar and Disciplinary Rules of the Code of Professional Responsibility.
“As to Count II
“I recommend that the Respondent be found guilty, and specifically that he be found guilty of the following violations of his oath as an attorney, the Integration Rules of the Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to-wit:
Integration Rule 11.02(3)(a), 11.02(4), and Disciplinary Rules 1-102(A)(6), and 9- ■ 102(B)(3) and (4).
“As to Count III
“I recommend that the Respondent be found guilty, and specifically that he be found guilty of the following violations of his oath as an attorney, the Integration Rules of the Florida Bar and Disciplinary Rules of the Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to-wit:
Integration Rule 11.02(3)(a), and Disciplinary Rules 1-102(A)(4) and (6).
“As to the violation not specifically made the subject of a separate count in the Complaint, but which has been disclosed by the evidence adduced at the hearing before me and as to which there was a motion which was granted for the pleadings to conform to the evidence, I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his oath as an attorney, the Integration Rules of the Florida Bar, and Disciplinary Rules of the Code of Professional Responsibility, to-wit:
Integration Rule 11.02(4).
“IV. Recommendation as to Disciplinary Measures to be Applied:
“I recommend that Respondent be suspended for a period of one year, thereafter until he shall prove his rehabilitation and for an indefinite period until he shall pay the cost of this proceeding and make restitution to this client, Letitia Ford Montgomery in the amount of $1,600.00, and to his client, Alfred James Carr in the amount of $600.00, as provided in Rule 11.10(3).”

We have examined the report of the referee and the record of the proceedings. We agree with the referee’s findings and accept his recommendation. Accordingly, Respondent, Remus C. E. Allen, is hereby suspended for a period of one year from this date and thereafter until he shall prove his rehabilitation and for an indefinite period until he shall pay the costs of this proceeding and make restitution to his client, Letitia Ford Montgomery in the amount of $1,600.00, and to his client, Alfred James Carr in the amount of $600.00.

Respondent is further ordered to:

1. Cease immediately from withdrawing any money from any and all accounts of respondent’s at banking institutions whether trust accounts, operating accounts or personal accounts until further order of this Court;

2. Immediately notify in writing to every bank or other institution in which he maintains accounts of the provisions of his suspension and provide those banks with a copy of this Court’s order and further provide staff counsel of The Florida Bar immediately with copies of the written notifications to each bank;

3. Establish and/or designate one account as a special trust account pursuant to Florida Bar Integration Rule, Article XI, Rule 11.10(5), immediately notify staff counsel of The Florida Bar of the location of the account in writing and to place any and all fees tendered to him, during the 30 day period following this Court order, into this special trust account; and

4. Furnish a copy of his suspension order to all clients as required by Florida Bar Integration Rule, Article XI, Rule 11.10(6) and furnish staff counsel of The Florida Bar with the requisite affidavit listing all clients so informed within 30 days after receipt of this Court’s order.

Respondent shall pay the costs of these proceedings in the amount of $458.90.

It is so ordered.

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


author: HATCHETT, Justice.

text:
    Thomas E. ARCHER et al., Appellants, v. Seymour J. MARSHALL et al., Appellees.
    No. 52041.
    Supreme Court of Florida.
    Feb. 16, 1978.
    J. McHenry Jones, of Jones & Welch, Pensacola, for appellants.
    W. Spencer Mitchem, of Beggs & Lane, Pensacola, for appellees.
    Ronald W. Ritchie, Pensacola, for Tiki House, Ltd., Holiday, Ltd., and Pelt & Reeves, Inc. as intervenors-appellants.
   HATCHETT, Justice.

Chapter 76-361, Laws of Florida provides for a reduction in rent to be paid by leaseholders to the Santa Rosa Island Authority in an amount equal to the ad valorem taxes paid on that leasehold interest for county and school purposes during the previous year. Since the trial court found this statute to be unconstitutional, we have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution (1968). We affirm the trial court’s order, and hold this special act to be unconstitutional on the ground that it provides for an indirect exemption from ad valorem taxes not authorized by our state constitution.

Escambia County acquired certain property on Santa Rosa Island from the federal government, subject to a restrictive covenant which prohibits the county from selling or otherwise disposing of this property to private persons, but permits the leasing of this property to such parties. The Legislature created the Santa Rosa Island Authority to administer these lands and enacted in 1949, a law exempting these lands from ad valorem taxation. Hundreds of persons entered into long term leases, renting land on Santa Rosa Island from the county agency. These lessees argue that they entered into these lease contracts, and made improvements on the land, based upon the representation that ad valorem taxes would never be levied against their interests. However, in 1971, the Legislature repealed the exemption from taxation. At that time, the lessees of county property on Santa Rosa Island challenged the statute, which mandated the taxation of the leasehold interests, on the grounds that the law impaired the obligations of valid existing contracts, and that the county was es-topped to levy these taxes because of prior representations to the contrary. However, in Straughn v. Camp, 293 So.2d 689 (Fla.1974); appeal dismissed 419 U.S. 891, 95 S.Ct. 168, 42 L.Ed.2d 135 (1975), and Williams v. Jones, 326 So.2d 425 (Fla.1975), this Court rejected their challenge to the constitutionality of the statute, and held that the Escambia County taxing authority could levy ad valorem taxes against these leasehold interests. The Court did not pass upon the question of whether the present rental payments were equitable, and noted that the leaseholders might be entitled to an adjustment of their rental payments as set forth in the leases which would “recognize any proven charge incorporated therein which was intended to be in lieu of taxes.” Williams v. Jones, supra, 326 So.2d at 436-437.

In response to this problem, the Legislature passed Special Act 76-361, the pertinent provisions of which are set forth below:

“Section I. (1) If Escambia County shall levy ad valorem taxes against the leasehold interest herein during 1975 or any year thereafter, the annual rental payable herein, during the fiscal year commencing as of May 1st, 1976, and each fiscal year thereafter, except as otherwise provided in this amendment, shall be reduced by an amount equal to the amount of ad valorem taxes paid with respect to lessee’s leasehold interest for county and school purposes for the preceding year. In event the amount of ad valorem county and school taxes paid on such leasehold interests for any year, exceed the amount of rental for the succeeding year, such excess shall be applied to future annual rentals of the lessee . . Rentals for the period commencing May 1st, 1977, and rentals thereafter shall be adjusted as of May 1st by credit in an amount equal to ad valo-rem taxes for county and school purposes paid with respect to each preceding year and after adjustment no further rental shall be payable until such credits are exhausted . . . Adjustment of rental shall be made upon presentation to Santa Rosa Island Authority of a paid receipt from the tax collector of Escam-bia County with respect to ad valorem taxes levied and collected against the leasehold interest of the leaseholder for the preceding year and Santa Rosa Island Authority shall issue a memorandum to leaseholders specifying the reduced rental and rental payment dates as adjusted
“In event the leasehold interest hereunder shall be exempted from or cease to be subject to ad valorem taxes in any taxable year, or if the rentals payable under original leases, for any year, by virtue of a general law, are credited against or reduce the amount payable as ad valorem taxes levied against this leasehold interest, then the rental payable for that year shall be the amount specified in the original lease, prior to this amendment.”

Further relevant provisions of Chapter 76-361 are as follows:

“Section III. . . . Escambia County shall pay to Santa Rosa Island Authority (sometimes hereinafter called “lessor”), an amount equal to ad valorem taxes levied on leasehold interest dated on or before December 31, 1975, wherein Santa Rosa Island Authority is lessor, for county purposes for the preceding tax year In event rentals paid under leases wherein Santa Rosa Island Authority is lessor dated on or before December 31, 1975, by virtue of a general law, are credited against and reduce the amount payable as ad valorem taxes for any year, then the County shall not be required to make any payment in that year to Santa Rosa Island Authority.”
‡ * * S{! * #
“Section VI. In event Escambia County during any year after 1975 shall cease to be authorized, by exemption or otherwise, to levy ad valorem taxes on leasehold interests on land located on Santa Rosa Island, the effectiveness of this law shall be suspended during any such year.”

The trial court determined that the primary effect of this special act is to require that rentals due the Santa Rosa Island Authority on leases dated on or before December 1,1975, will be reduced each year by the amount of ad valorem taxes for county and school purposes paid on the leasehold interests for the preceding year. In a lengthy and well reasoned opinion, the trial court found that this legislation violated our state constitution in six different respects: (1) it creates an illegal exemption from taxation on property not authorized by the state constitution; (2) its effect is to provide for ad valorem taxation at a non-uniform rate within the taxing unit of Escambia County, in violation of Article VII, Section 2; (3) it violates Article III, Section 11(a)(8), which prohibits special laws, or general laws of local application pertaining to the refund of money legally paid; (4) it is a special act pertaining to the care, custody, and method of disbursing county funds, prohibited by Article VIII, Section 1(b); (5) its effect violates Article VII, Section 10, which prohibits the use by a county of its taxing power or credit to aid any person; (6) it is a special law pertaining to the assessment and collection of taxes for state or county purposes which is prohibited by Article III, Section 11(a)(2). We agree with the trial court that the purpose and effect of this special act is to create an indirect exemption from taxation on property not authorized by the state constitution, and therefore find it unnecessary to address the additional grounds set forth by the trial court to support its conclusion.

The preamble of this special act set forth various alleged findings of fact by the Legislature: (1) that the leaseholders on Santa Rosa Island prior to December 31, 1975, leased their property and constructed buildings thereon in reliance upon the promise of the Island Authority that the leaseholders ' would never be subject to ad valorem taxes; (2) that as a result of the imposition of taxes on Santa Rosa Island leaseholds resulting from a legislative act in 1971, Es-cambia County has been unjustly enriched by improvements having an assessed value of $49 million; (3) that until December 31, 1975, it was never the intent of Escambia County, as represented by the Santa Rosa Island Authority, and the other parties to the leases, that the leaseholders should pay both taxes and rentals. The trial court examined these alleged findings of fact by the Legislature in light of the proper standard set forth by this Court in Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So.2d 235, 236 (Fla.1951), which stated:

The general rule is that findings of fact • made by the legislature are presumptively correct. However, it is well recognized that the findings of fact made by the legislature must actually be findings of .fact. They are not entitled to the presumption of correctness if they are nothing more than recitations amounting only to conclusions and they are always subject to judicial inquiry. Moreover, findings of fact made by the legislature do not carry with them a presumption of correctness if they are obviously contrary to proven and firmly established truths of which courts may take judicial notice.

The trial court found, contrary to the Legislature’s conclusions, that Escambia County has not been unjustly enriched in the sum of $49 million by those leaseholders on Santa Rosa Island who obtained their leases prior to December 31, 1975. This sum represents the total assessed value of the subject property, a large portion of which is the value of the land itself, owned by the county. The trial court in its order reasoned that since substantially all of these leases are for 99 years plus a 99 year option to renew, it cannot be said that Escambia County has or will receive any improvements of value upon the termination of the lease agreements. Certainly the improvements which have been made upon this property will have long since been destroyed prior to the end of the leases. Since these leaseholders have the equivalent of fee simple ownership, it does not appear that they have enriched the county in any manner by building on the land. The trial court recognized that there is an important distinction between rent and taxes:

While rent is paid for the forbearance and use of the land on the Island, taxes are paid for the services rendered by the County to the leaseholders in the form of police protection, fire protection, roads, a court system, etc. The leaseholders on the Island receive both the benefits of the use of the land and the benefits of the protection and services provided by the County. Thus, the county is not unjustly enriched by the fact that it charged these leaseholders with both rent and ad valo-rem taxes. Each charge is to compensate the County for specific benefits rendered.

Further, upon examining certain of the leases, the trial court found that some of these leases expressly contemplated that, while taxes were not assessed at the time of the agreement and might not be assessed for some time in the future, should taxes be assessed, the leaseholders would be obligated to pay them. Therefore, the trial court rejected the argument that these leaseholders constructed improvements on the property under any misrepresentation that the property would never be taxed. In addition, approximately one-third of the leases were entered into subsequent to December 31,1971, the effective date of the legislative statute which revoked the previous tax exemption granted to these leasehold interests, and any finding of unjust enrichment in regard to these leases is without any factual basis. However, the Legislature made no distinction between leases acquired prior to 1971, and those acquired after-wards.

The trial court determined that all these various factors clearly indicate that this special act is, in essence, a tax relief bill. The bill does not even attempt to set forth any method by which certain leaseholders can be paid a definite amount equal to the sum received by the county as unjust enrichment.

The Legislature is without authority to grant an exemption from taxes where the exemption has no constitutional basis. Presbyterian Homes of the Synod of Florida v. Wood, 297 So.2d 556 (Fla.1974). Regardless of the term used to describe the set-off, the reduction in rent afforded the leaseholders has the effect of a tax exemption and as such is unconstitutional since such exemption is not within the provisions of our present state constitution. Williams v. Jones, 326 So.2d 425 (Fla.1975); Straughn v. Camp, 293 So.2d 689 (Fla.1974). It is fundamentally unfair for the Legislature to statutorily manipulate assessment standards and criteria to favor certain taxpayers over others. Interlachen Lakes Estates, v. Snyder, 304 So.2d 433 (Fla.1974).

Accordingly, we hold that Chapter 76-361, Florida Statutes, Special Acts, 1976, violates Article VII, Section 3, Florida Constitution (1968), and is invalid.

It is so ordered.

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

      . Chapter 25,810, Laws of Florida, Special Acts 1949; Sec. 192.62, Fla.Stat. (1961-1967); Sec. 196.25, Fla.Stat. (1969).

      . Chapter 71-133, Laws of Florida, General Acts 1971; see, generally, Straughn v. Camp, 293 So.2d 689, 691 (Fla.1974).


author: SUNDBERG, Justice.

text:
    AETNA CASUALTY AND SURETY COMPANY, a Foreign Corporation, Petitioner, v. WARREN BROTHERS COMPANY, DIVISION OF ASHLAND OIL, INC., Respondent.
    No. 50761.
    Supreme Court of Florida.
    Feb. 16, 1978.
    Julian Clarkson, Fort Myers, for petitioner.
    Robert F. Henshaw, Jr., Sarasota, for respondent.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Second District, a per curiam affirmance without opinion, reported at 341 So.2d 296, which is alleged to be in conflict with Edward J. Gerrits, Inc. v. Astor Electric Service, Inc., 328 So.2d 522 (Fla. 3d DCA 1976). This Court has jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. See Foley v. Weaver Drugs, 177 So.2d 221 (Fla.1965). In accordance with Florida Appellate Rule 3.10(e), we have dispensed with oral argument.

Peacock Construction Company, Inc., as general contractor, entered into a contract with respondent, Warren Brothers Company, a subcontractor, providing that respondent would perform the paving work in connection with a condominium development contract held by Peacock. The written agreement between Peacock and respondent provided that the former would make final payment to respondent “within 30 days after the completion of the work included in this sub-contract, written acceptance by the Architect and full payment therefor by the Owner.” Petitioner, Aetna Casualty and Surety Company, acted as surety with respect to the subcontract and, as provided by Section 713.23, Florida Statutes (1975), issued a payment bond.

Respondent completed the work required by the subcontract, submitted a final invoice to Peacock, and served Peacock with written notice of completion of work and of nonpayment therefor. Based on Peacock’s failure to make final payment, respondent filed suit in circuit court against Peacock and petitioner, as surety for Peacock’s payment under the subcontract. The parties defended on the ground that Peacock had not received full payment from the owner of the development and that, according to the terms of the subcontract, such payment was a condition precedent to Peacock’s duty to pay respondent. On respondent’s motion, the circuit judge granted summary judgment in its favor against petitioner/surety. The effect of the judge’s action was to implicitly interpret the subcontract not to require payment by the owner as a condition precedent to Peacock’s and, concomitantly, to petitioner’s obligation of payment.

The District Court of Appeal, Second District, rendered a per curiam affirmance, citing as authority its decision in Peacock Construction Company, Inc. v. Modern Air Conditioning, Inc., 339 So.2d 294 (Fla. 2d DCA 1976). In so doing, the court adopted the majority view that the provision in issue does not establish a condition precedent. Rather, it constitutes an absolute promise to pay, fixing payment by the owner as a reasonable time for when payment to the subcontractor is to be made.

When this Court accepted jurisdiction in the case sub judice conflict with Gerrits, supra, clearly existed. In Gerrits, the trial court summarily ordered judgment for plaintiff/subcontractor against defendant/general contractor on a contractual provision for payment to the subcontractor which read, “The money to be paid in current funds and at such times as the General Contractor receives it from the Owner.” On review, the District Court of Appeal, Third District, noted the fundamental rule that contracts should be interpreted in accordance with the intention of the parties. Concluding that the issue of the parties’ intention should be resolved by a factual determination by the jury, rather than a legal determination by the judge, the district court reversed the summary judgment and remanded for trial.

Subsequent to our determination to review this case, we issued an opinion with respect to the above-cited decision of the District Court of Appeal, Second District, in Modern Air Conditioning, Inc., supra, consolidated with its decision in Peacock Construction Company, Inc. v. Overly Manufacturing Company, 343 So.2d 850 (Fla. 2d DCA 1976). Review of these cases was predicated upon conflict with Gerrits, supra, as is review of the case at bar. Our opinion in Peacock has also resolved the conflict between Gerrits and the case sub judice, and is dispositive of the latter. Consequently, for the reasons hereinafter expressed, we approve the district court’s af-firmance of summary judgment in favor of respondent.

Peacock involved essentially the same facts as are present in the case before us. There, the same contract payment provision was in issue as to two other subcontractors who performed work for Peacock in connection with the aforementioned condominium development. In scrutinizing the payment provisions, we noted that:

The contractual provisions in dispute here are susceptible to two interpretations. They may be interpreted as setting a condition precedent or as fixing a reasonable time for payment. The provision disputed in Gerrits is susceptible to the same two interpretations. The questions presented by the conflict between these decisions, then, are whether ambiguous contractual provisions of the kind disputed here may be interpreted only by the factfinder, usually the jury, or if they should be interpreted as a matter of law by the court, and if so what interpretation they should be given.
******
. [Peacock] argues that . the issue of intention is a factual one which should be resolved after the parties have had an opportunity to present evidence on it. Peacock urges, therefore, that the causes be remanded for trial. If there is produced no evidence that the parties intended there be condition precedents, only then, says Peacock, should the judge, by way of a directed verdict for the subcontractors, be allowed to take the issue of intention from the jury.

Peacock Construction Company, Inc. v. Modern Air Conditioning, Inc., Case No. 50,758, and Peacock Construction Company, Inc. v. Overly Manufacturing Company, Case No. 50,793, 353 So.2d 840 at 842, opinion filed December 15,1977. Petitioner/surety in the instant case voices the same argument as was advanced by Peacock in the above-cited case.

In Peacock, we concluded that interpretation of the contractual provision in issue was a question of law to be resolved by the Court, rather than a factual question for jury resolution, stating:

If an issue of contract interpretation concerns the intention of parties, that intention may be determined from the written contract, as a matter of law, when the nature of the transaction lends itself to judicial interpretation. A number of courts, with whom we agree, have recognized that contracts between small subcontractors and general contractors on large construction projects are such transactions. Cf. Thos. J. Dyer Co. v. Bishop International Engineering Co., 303 F.2d 655 (6 Cir. 1965). The reason is that the relationship between the parties is a common one and usually their intent will not differ from transaction to transaction, although it may be differently expressed.
That intent in most cases is that payment by the owner to the general contractor is not a condition precedent to the general contractor’s duty to pay the subcontractors. This is because small subcontractors, who must have payment for their work in order to remain in business, will not ordinarily assume the risk of the owner’s failure to pay the general contractor. And this is the reason for the majority view [footnote reference omitted] in this country, which we now join.
Our decision to require judicial interpretation of ambiguous provisions for final payment in subcontracts in favor of subcontractors should not be regarded as anti-general contractor. It is simply a recognition that this is the fairest way to deal with the problem. There is nothing in this opinion, however, to prevent parties to these contracts from shifting the risk of payment failure by the owner to the subcontractor. But in order to make such a shift the contract must unambiguously express that intention. And the burden of clear expression is on the general contractor.

Peacock Construction Company, Inc. v. Modern Air Conditioning, Inc., Case No. 50,758, and Peacock Construction Company, Inc. v. Overly Manufacturing Company, Case No. 50,793, 353 So.2d 840 at 842, opinion filed December 15,1977.

The notable distinction between Peacock and the case before us is that here, summary judgment was granted as to Peacock’s surety rather than against Peacock itself. This difference, however, does not alter our conclusion that our decision' in Peacock is controlling. In the case sub judice, Peacock was obligated to render payment to respondent/subcontractor according to the terms of the subcontract. As surety of this obligation, petitioner, Aetna Casualty and Surety Company, stood in the shoes of Peacock for the purpose of guaranteeing payment to respondent according to the subcontract’s terms. Cf. Scott v. National City Bank of Tampa, 107 Fla. 810, 139 So. 367 (Fla.1931); Cincinnati Insurance Company v. Putnam, 335 So.2d 855 (Fla. 4th DCA 1976); National Union Fire Insurance Co. of Pittsburgh, Pennsylvania v. Robuck, 203 So .2d 204 (Fla. 1st DCA 1967). Because petitioner’s obligation under its bond agreement was commensurate with that of Peacock under the subcontract, the circuit judge correctly decided the issue of the parties’ intention with respect to the payment provision in question as a matter of law on motion for summary judgment, consistent with this Court’s recent decision in Peacock.

Accordingly, the decision of the District Court of Appeal, Second District, is approved and the writ heretofore issued is discharged.

It is so ordered.

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

      . Peacock Construction Company, Inc. v. Modern Air Conditioning, Inc., Case No. 50,758, and Peacock Construction Company, Inc. v. Overly Manufacturing Company, Case No. 50,793, 353 So.2d 840, opinion filed December 15, 1977. (Hereinafter referred to as Peacock).


text:
    THE FLORIDA BAR, Complainant, v. Ronald Y. SCHRAM, Respondent.
    No. 53017.
    Supreme Court of Florida.
    Feb. 16, 1978.
    Nicholas R. Friedman, Fort Lauderdale, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for complainant.
    Ronald Y. Schram, in pro. per.
    Harry L. Shorstein, Jacksonville, for respondent.
   PER CURIAM.

On May 13,1977, Ronald Y. Schram, with the advice of his counsel, Harry Shorstein, Esquire, entered into a conditional guilty plea for consent judgment.

By his plea, Mr. Schram admitted being adjudicated guilty of possession of paraphernalia, a Florida misdemeanor, and admitted guilt to possession of a Florida felony quantity of marijuana, for which he was prosecuted, but for which adjudication was withheld in Case No. 76-884, 17th Judicial Circuit Court, Broward County, Florida.

On July 14, 1977, the Board of Governors of The Florida Bar accepted the plea, but directed certain minor changes in language to clarify that Respondent not be able to apply for reinstatement for one year and indefinitely thereafter until proof of rehabilitation was shown.

The present plea was modified to comply with the directions of the Board, with the consent of Mr. Schram and his counsel.

The conditional guilty plea for consent judgment is approved and the following discipline is imposed:

The Respondent, Ronald Y. Schram, is hereby suspended from the practice of law for a period of one year effective nunc pro tunc July 31, 1977, and indefinitely thereafter until he shall demonstrate proof of rehabilitation.

Probation upon reinstatement, to be concurrent with and terminate automatically upon determination of probation in Case No. 76-884. The terms of the suspension and/or probation shall be upon the following conditions:

1. The accused attorney shall not commit any crimes or violate the Integration Rule or Code of Professional Responsibility.

2. The accused attorney shall not violate the terms of his probation in Case No. 76-884.

Costs in the amount of $100 are taxed against Ronald Y. Schram, to be paid within 30 days from the date of this order.

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