author: PER CURIAM. ENGLAND, Justice,

text:
    Darrell Edwin HOY, Appellant, v. STATE of Florida, Appellee.
    Nos. 49448, 49449.
    Supreme Court of Florida.
    Dec. 2, 1977.
    Rehearing Denied Jan. 30, 1978.

      Jack 0. Johnson, Public Defender, Steven H. Denman, Chief Asst. Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, and Patrick H. Doherty of Gross & Doherty, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We have for review by direct appeal judgments of guilty of murder in the first degree and sentences of death. Jurisdiction vests pursuant to Article V, Section 3(b)(1), Florida Constitution.

The bodies of David Sawyer and Susan Routt (both teenagers) were discovered on the morning of August 27,1975, on Dunedin Beach in Pinellas County. Appellant made several confessions as to his direct involvement in the murders and rape. He provided three versions of how the crimes were committed. It appears from the last version of the confession that appellant and one Jesse Lamar Hall went to Dunedin Beach where they saw the victims, David Sawyer and Susan Routt. They approached the victims’ car, and Hall, with gun in hand, told the victims that appellant wanted to have intercourse with the girl. The victims’ car was moved from the beach to a designated parking lot, and the boy and girl were forced at gunpoint to go with Hall and Hoy to a secluded area of the beach. With Hall guarding Sawyer, Hoy overcame Miss Routt’s resistance and, ignoring her cries for help, sexually assaulted her. Attempting to break away from Hall to go to the girl’s aid, Sawyer was shot in the face. After falling to the ground, he was shot twice more in the head. Hall then proceeded to take his turn in sexually assaulting Routt, both vaginally and anally. Hall shot her twice in the side of her head. Appellant then returned and assaulted her anally, after which he rolled her over and shot her in the forehead. Sawyer’s wallet was then taken from his body by Hoy.

On September 27, 1975, appellant was charged by indictment with murder in the first degree of David Sawyer, with murder in the first degree of Susan Routt, with involuntary sexual battery of Susan Routt and with robbery of David Sawyer. The public defender was appointed to represent him on September 7, 1975.

A motion to control pre-trial publicity was filed by appellant on September 11, 1975, declaring that, since his arrest, state and local officials had been quoted extensively concerning matters which directly or indirectly concerned the proceedings against him, and suggesting that quotations from public officials may exceed limits imposed by Disciplinary Rule 7-107, Code of Professional Responsibility. After hearing, this motion was denied by the trial court.

Appellant was arraigned October 10, 1975, and entered a written plea of not guilty. At that time, a trial date of December 15,1975, was set. Motion for change of venue was filed on December 5, 1975, and an amended motion for change of venue was filed December 9, 1975. Therein, appellant alleged that a motion to control pre-trial publicity had previously been filed and denied and that, prior to and subsequent to the filing of that motion, appellant had received widespread prejudicial publicity, including, but not limited to, an article in the Clearwater Sun which concerned an alleged confession and reproduced portions thereof. Motion for continuance was filed by appellant on December 9, 1975, on the basis that, in view of the length and complexity of the case, the defense was unable to be ready for trial on December 15, 1975, and on the basis that a “cooling period” between the publication of extensive pretrial coverage of his case and trial of the cause was necessitated. ' These motions were denied by the trial court on December 11, 1975.

The case proceeded to trial on December 15,1975, resulting in a jury verdict of guilty of both charges of murder in the first degree and the charge of involuntary sexual battery. Judgment of acquittal had been entered as to the robbery charge, and a verdict of guilty was returned as to the lesser included charge of petit larceny. After sentencing hearing, a majority of the jury recommended life imprisonment. Pri- or to sentencing, the judge obtained a pre-sentence investigation report and a psychiatric examination report. Upon considering and weighing the aggravating and mitigating circumstances, the trial judge determined that, under the circumstances presented, the imposition of the death penalty was appropriate on each charge of murder in the first degree.

Initially, appellant argues that the trial court erred in denying his motion for change of venue since pre-trial publicity regarding his case was extensive. He contends that his alleged confession was twice front page news in the local newspaper. Having considered this argument and carefully studied the record, including the jury voir dire, we find that the trial court did not err in refusing to allow a change of venue. Appellant has failed to show that he did not receive a fair and impartial trial, i. e., that the setting of his trial was inherently prejudicial. Cf. Dobbert v. State, 328 So.2d 433 (Fla.1976). In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), the Supreme Court of the United States held that, under the circumstances of that case where there had been pervasive pre-trial publicity, defendant was not denied a fair trial, and opined:

“To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner’s trial was not fundamentally fair.
“The constitutional standard of fairness requires that a defendant have ‘a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, 366 U.S. [717] at 722, 81 S.Ct. 1639, 6 L.Ed.2d 751. Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
“ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ Id., at 723, 81 S.Ct. 1639, 6 L.Ed.2d 751. At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ Ibid.
“The voir dire in this case indicates no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside. Some of the jurors had a vague recollection of the robbery with which petitioner was charged and each had some knowledge of petitioner’s past crimes, but none betrayed any belief in the relevance of petitioner’s past to the present case. Indeed, four of the six jurors volunteered their views of its irrelevance, and one suggested that people who have been in trouble before are too often singled out for suspicion of each new crime — a predisposition that could only operate in petitioner’s favor.”

This court, in Dobbert v. State, supra, concluded that defendant had failed to show that the trial court abused its discretion in denying a motion for change of venue and explained:

“Relative to appellant’s argument that the trial court erred in not allowing a change of venue, we find from the record that the trial judge did everything possible to insure an impartial trial for the defendant. The jurors, carefully and extensively examined by defense counsel to determine that they could be fair and impartial, were sequestered and comprehensive gag order was placed on all participants of the trial. As further evidenced by the record, seventy-eight prospective jurors were interviewed; allowed thirty-two peremptory challenges, the defense only exercised twenty-seven. Upon the selection of twelve persons, the trial judge denied the motion for change of venue with the following analysis:
“ ‘Both the State and the defendant have challenges left. We have selected the jury.
“ ‘Most times the jurors have heard about the case in some fashion from the media. However, a number of them did not hear about it. Some of them that did not hear about it are on the jury. Some are not.
“ ‘As I said those that were selected, in the main, if I recall correctly, at least I was satisfied. I’m sure counsel for both sides have different ideas. I’m satisfied some of them had no opinions. If they had opinions they said that it would not affect their decisions. Some had impressions about the nature of the case. So I deny the motion for a change of venue.’ ”

Sub judice, the trial court questioned each group of prospective jurors extensively as to their prior knowledge of appellant’s case and their exposure to publicity about it. The transcript of the voir dire evidences that a great many of the prospective jurors had not even heard about the case, others had read brief accounts, but mostly in the St. Petersburg Times rather than the Clear-water Sun, and only had a vague recollection, if any, of the occurrences. The allegedly inflammatory articles to which our attention is directed by appellant were contained in the Clearwater Sun. Only six jurors were excused by the trial court due to a prior acquaintance with the cause. Eleven were excused by the State by peremptory challenge. The defense utilized only twenty-five peremptory challenges when permitted forty by the trial court. With only a very few exceptions, the prospective jurors stated that they could unreservedly render an impartial verdict.

The voir dire of the jury selected to hear the cause reveals that eight of them had no prior knowledge whatsoever of the cause prior to being called for jury duty. Of the remaining four, one heard that the murder had happened from a customer, but that was the extent of her exposure, and she knew nothing more about it. Another remarked that she only read something briefly about it in the St. Petersburg Times when the news was first released that the murders had occurred and that she had not heard or read anything about it since that time nor had she discussed it with anyone. Another remembered having seen something in the St. Petersburg Times about the case, but it had made no impression with her. The fourth juror stated that she had read something about the case when it first started but could not recall any facts and had not discussed it with anyone. It is obvious from the record that defense was satisfied with the jury selected, all of whom were completely impartial and had in no way been prejudiced by pre-trial publicity. This is supported by the fact that the defense had by no means exhausted its available peremptory challenges.

We cannot say that there was a significantly inflammatory atmosphere in the community or courtroom. We are buttressed in this view by the voir dire of all of the prospective jurors by the judge and counsel for the defense and prosecution. In Murphy v. Florida, supra, the Supreme Court determined:

“In the present case, by contrast, 20 of the 78 persons questioned were excused because they indicated an opinion as to petitioner’s guilt. This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.
“In sum, we are unable to conclude, in the circumstances presented in this case, that petitioner did not receive a fair trial. Petitioner has failed to show that the setting of the trial was inherently prejudicial or that the jury selection process of which he complains permits an inference of actual prejudice.”

The Supreme Court of the United States, in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976), opined that “. . . pre-trial publicity — even pervasive adverse publicity— does not inevitably lead to an unfair trial.”

Appellant relies on Oliver v. State, 250 So.2d 888 (Fla.1971), for the proposition that a denial of motion for change of venue where the fact that defendant has confessed to a crime and the gist thereof is published constitutes reversible error. Appel-lee submits that appellant has misconstrued Oliver, supra, and posits that Oliver, supra, announces a general rule as to the granting of motions for change of venue when a confession is featured in news media coverage; however, it does not preclude the possibility that change of venue could properly be denied under certain circumstances when the fact of a confession having been made is disclosed to the public through the news media. Oliver, supra, involved a situation where excerpts from the actual confession, in question and answer form, given by Oliver to the assistant state attorney, were featured in the sole daily newspaper published in the general Tallahassee area. In the published transcript of the confession, Oliver implicated himself and others and expressly stated that he had a motive for the crime and gave a description thereof. Under the facts of that case, where the actual transcript of the confession was featured, this court announced as a general rule that “. . . when a ‘confession ’ is featured in news media coverage of a prosecution, as here, a change of venue motion should be granted whenever requested; we also hold that in the case sub judice the voir dire process cannot cure the effect of a ‘confession’ which has been given news media coverage.” (Emphasis supplied.)

The facts before us relative to this issue are different from Oliver, supra. Sub judi-ce, we had publication of a report based on the statement of a detective summarizing three differing and contradictory statements made by the appellant. Published with equal prominence in these articles contained in the Clearwater Sun was appellant’s retraction of his confession. Further, as appears from the record, none of the jurors even read the articles in question. The area in which the trial took place was not dependent on a sole daily newspaper for information. In fact, a great many of the perspective jurors did not read the Clear-water Sun but, rather, read the St. Peters-burg Times. In the instant case, the voir dire of the jury evidences no prior knowledge on their part of the publications to which appellant directs our attention.

Although recognizing that the granting or denying of a continuance is a matter within the sound discretion of the trial judge, appellant contends that the trial court erred in refusing to continue his case to allow a cooling period due to the allegedly prejudicial news reporting and to allow defense more time for effective preparation of appellant’s ease for trial. Viewing the totality of the circumstances present sub judice, we find the trial judge did not abuse his discretion in denying the continuance. As is apparent from the record, the news coverage in this case was not of such a nature that a cooling period was necessitated. Appellant’s allegation of insufficient time for preparation of his case for trial was not sufficient to mandate the trial judge to grant the continuance.

In response to defendant’s assertion that sufficient time had not been given to prepare for trial, that two months and four days from the date a person kills another is too short a time to prepare against the day when he will be called to the bar of justice to answer for his crime, this court, in Jarvis v. State, 115 Fla. 320, 156 So. 310, 312 (1934), held that the trial court did not abuse its discretion in failing to grant the requested continuance, and explicated:

“There is no authority in law for such a proposition. The Constitution secures to an accused person the right to a speedy and public trial by an impartial jury in the county where the crime was committed and to be heard by himself or counsel or both, etc. Section 11, Declaration of Rights, Const.1885.
“None of those rights were taken from the accused, nor was an impediment to their full and free enjoyment by the accused placed in his way. Counsel’s mere statement in their motion that they did not have time to prepare the defense is not sufficient. No facts are given on which to base such a statement, nothing is said as to the character of defense and the complex nature of it that would require more time, nor is anything said about witnesses and what was expected to be established by them, nor that the accused himself depended upon any named witnesses not within the jurisdiction of the court by whom he expected to prove the character of the act by which the life of the woman was taken.”

Denying the petition for rehearing therein, this court further emphasized:

“A person accused of crime has no natural or inalienable right to a continuance. At common law such application was addressed to the sound discretion of the court and its decision could not be assigned as error, but now in this state such decisions are reviewable by appellate tribunals, but the ruling of the trial court will not be disturbed in the absence of a clear abuse of discretion. [Cases cited.]”

Cf. Brown v. State, 224 So.2d 789 (Fla. 3rd DCA, 1969), Kish v. State, 192 So.2d 315 (Fla. 3rd DCA, 1966).

We find no merit in appellant’s contention that the trial court erroneously restricted his cross-examination of Dennis Bender, but rather, a review of the record supports appellee’s assertion that appellant’s counsel was not restricted in his cross-examination of Bender. In a side bar conference, the trial judge informed defense counsel that, if he cross-examined Bender as to his reasons for allowing Hoy to return to his home on the night he was questioned about the crimes, it would open the record to evidence of a polygraph examination. It was a tactical choice on the part of appellant’s counsel to discontinue the line of questions.

Appellant urges that the trial court erred in restricting his cross-examination of witness Mills who had found the bodies on the beach. Appellee emphasizes that that which was sought to be elicited by appellant’s line of question concerning this point was not relevant to the cause and was beyond the scope of direct. We find no error in the trial court’s sustaining the State’s objection to testimony regarding Mill’s picture-taking activities.

Appellant objected to evidence of comparisons of hair found on one of the victims with hair samples from Jesse Lamar Hall. He also objected to evidence of ownership and possession by Hall of a propane torch allegedly used to destroy Sawyer’s wallet. We find appellant’s argument that his right to confrontation was violated because Hall was not available for cross-examination to be likewise without merit.

Finally, with regard to the imposition of the sentence of death, appellant argues that the trial court failed to give full weight to the mitigating circumstances enumerated in Section 921.141(6), Florida Statutes, and alleges that the capital felonies committed in this case were not especially heinous, atrocious or cruel. We cannot agree with appellant that, under the totality of the circumstances present in the instant cause, the death sentence was not warranted. The advisory recommendation of the jury is to be accorded great weight, but the ultimate decision as to whether the death penalty should be imposed rests with the trial judge. Cf. Tedder v. State, 322 So.2d 908 (Fla.1975), Lamadline v. State, 303 So.2d 17 (Fla.1974), State v. Dixon, 283 So.2d 1 (Fla.1973).

Since the trial judge did not delineate in detail each mitigating and aggravating circumstance present, this court entered an order for clarification advising the trial judge to submit amended findings setting out in more detail the aggravating and mitigating circumstances which he found to exist. He was further directed, pursuant to the mandate of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393, decided March 22, 1977, to inform this Court whether the psychiatric evaluation and presen-tence investigation reports were considered by the judge and, if considered, whether they were disclosed to the defendant.

In his original findings of fact, the trial judge explained:

“The undersigned Judge has long been opposed philosophically to capital punishment, and publicly has so stated on numerous occasions throughout the years.
“The Legislature of Florida has stated its philosophy and belief to be that capital punishment should be imposed in certain cases by enactment of a law providing for the imposition of same when there are aggravating circumstances and insufficient mitigating circumstances to outweigh the aggravating circumstances.
“Until the Supreme Court of the United States rules to the contrary, this Court must follow the dictates of the law and should not indulge in the sophistry of placing its judgment superior to the requirements of the law.”

The trial judge then concluded:

“The Court is of the opinion that if there is any case it has ever heard wherein the imposition of the death penalty is called for, it is this case.
“Not only does the Court find aggravating circumstances in that the capital felonies were committed while the defendant was engaged, or was an accomplice in the commission of a rape, but further finds that the capital felonies were especially heinous, atrocious and cruel, and finds that there are insufficient mitigating circumstances as enumerated in Section 921.141, Florida Statutes, to outweigh the aforesaid aggravating circumstances. The pitiless, wicked, shockingly evil and vile method of imposing atrocities and death upon the young people who were the victims in these cases leads the Court to the conclusion that the recommendation to life imprisonment made by the jury should be disregarded by the Court and the death penalty imposed. In accordance with the aforesaid findings of fact, which are filed herein, as required by Section 921.141(3), Florida Statutes, the Court will impose the death penalty upon the defendant in these cases.”

The clarification order discloses that the entire presentence investigation report which was considered by the court and report of Dr. Cosma were furnished appellant so that he had full opportunity to deny or explain anything or everything in either.

As to the appropriate and adequate clarification of the aggravating and mitigating circumstances, the trial judge explained:

“The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of a rape, at gunpoint, of a 16 year-old girl.
“The capital felony was committed for the purpose of avoiding a lawful arrest in the sense that it was to insure that there would be no witnesses to testify against the killer.
“The capital felony was especially heinous, atrocious and cruel in that two attractive, vibrant teen-age youngsters in love with life and in love with each other were killed in cold blood in each others presence deliberately and mercilessly. The girl was raped in the presence of her fiance, and he was killed when he tried to help her. She had to know, as she was being violated, and begging for help, that she too would die at the hands of her merciless ravishers — as she did die.
“This appellant confessed to his guilt on numerous occasions, both before and after his repudiation of the first confession. His knowledge of intimate details that could only have been known to a participant in the crime furnishes absolute corroboration of his confession and the polygraph test taken of him also corroborates the confession.
“The only mitigating circumstances the undersigned could find were the defendant’s lack of a significant history of prior criminal activity and the age of the defendant (22) at the time of the crime. These are insufficient, in the mind of the undersigned, to outweigh the aforesaid aggravating circumstances.”

This court, in State v. Dixon, supra, discussing what is meant by “heinous, atrocious or cruel,” stated:

“It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies— the conscienceless or pitiless crime which is unnecessarily tortuous to the victim.”

Sub judice, we have the commission of capital crimes accompanied by such additional acts as to set them apart from the norm of capital felonies. The facts before us supporting the sentence of death are clear and convincing.

We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed, and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence in the record before us does not reveal that the ends of justice require that a new trial on the issue of guilt be awarded.

Accordingly, no reversible error appearing, the judgments and sentences of the trial court are hereby affirmed.

It is so ordered.

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

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

ENGLAND, Justice,

concurring in part and dissenting in part.

I concur in the affirmance of Hoy’s convictions, but I would follow the jury’s recommendation of life imprisonment as the appropriate sentences. Tedder v. State, 322 So.2d 908 (Fla.1975).


source: Caselaw Access Project

author: SUNDBERG, Justice.

license: Public Domain

text:
    The SCHOOL BOARD OF ESCAMBIA COUNTY, Florida, Appellant, v. The STATE of Florida and Joe Oldmixon, Supervisor of Elections for Escambia County, Florida, Appellees, The Escambia Education Association, Intervenor.
    No. 50648.
    Supreme Court of Florida.
    Dec. 8, 1977.

      Louis F. Ray, Jr., Pensacola, for appellant.
    C. S. Williams, Jr., Asst. State Atty., Pensacola, for appellees.
    Richard H. Frank and John J. Chamblee, Jr., of the Law Offices of Richard H. Frank, Tampa, for intervenor.
   SUNDBERG, Justice.

This appeal challenges the constitutionality of Ch. 76-356, Laws of Florida (the Act), a special Act passed by the 1976 Florida Legislature pertaining to certain aspects of the administration of schools in Escambia County, Florida. Specifically, the Act provides for: (i) employment by the School Board of the Escambia County School District of the Superintendent of Schools, as opposed to his election; (ii) increase in the membership of the School Board of the Escambia County School District from five members to seven members, the two additional members to be elected at large; (iii) establishment of a monthly salary not to exceed $200 and per diem and mileage for members of the School Board of the Escam-bia County School District, with a savings clause for members serving on the effective date of this provision; (iv) election of members of the School Board of the Escambia County School District by nonpartisan election; and (v) provision for a referendum as to each of the above-stated provisions by the electors of the Escambia County School District, to be called and held by the School Board of the Escambia County School District at a special election prior to July 6, 1976. The Act also provides that the required special election be paid for by the Escambia County School District, such expenditure of funds being therein declared a proper school district expense. Section 5 of the Act enunciated the four separate propositions encompassed within the law as they were to appear on the ballot.

Prior to the election, the School Board of Escambia County, Florida, appellant, filed a complaint for declaratory judgment and in-junctive relief in the Circuit Court for Es-cambia County, Florida, seeking, inter alia, to enjoin the holding of the referendum election. No action was taken with respect to the complaint prior to the scheduled election date. Accordingly, the referendum election was held, resulting in the voters’ preference that: (i) the superintendent be elected; (ii) the membership of the School Board be expanded from five to seven members; (iii) the salaries of board members be reduced to $200 per month; and (iv) the election of board members be nonpartisan.

Subsequent to the election, appellant’s complaint came on for final hearing before the circuit court. In his final judgment entered July 9, 1976, the circuit judge recited that the only remaining issues involved the validity of Sections 2, 3, and 4 of the Act. The final judgment then: (i) formally denied the prayer for injunctive relief due to the holding of the election and dismissed the Supervisor of Elections as a party to the proceedings; (ii) declared that Section 2 of the Act, providing for enlargement of the school board membership from five to seven members, was consistent with Article IX, Section 4, Florida Constitution, and Section 230.04, Florida Statutes (1975), and hence valid; (iii) declared that Section 3 of the Act, providing for reduction of a school board member’s salary to $200 monthly, was not violative of Article III, Section ll(a)(21), Florida Constitution, because Section 145.16(2), Florida Statutes (1975), “does not include school board members in the list of county officials for whom special laws fixing compensation are prohibited”; and (iv) declared Section 4 of the Act unconstitutional because the legislature may not, by special act, provide for nonpartisan elections of school board members as Article III, Section 11(a)(1), Florida Constitution, requires that such action be accomplished by general law:

Appellant filed this appeal, asserting that the trial court erred in holding Sections 2 and 3 of the Act constitutional. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution. In its complaint and in the brief filed in this Court, appellant asserts the constitutional invalidity of Section 5 of the Act, providing for a referendum at the cost of the school board. This ground was not assigned as error and, therefore, is not properly before this Court.

The issues raised by appellant are: (i) whether Section 2 of Ch. 76-356, Laws of Florida, violates Article IX, Section 1 of the Florida Constitution; (ii) whether Section 2 of the Act violates Article IX, Section 4(b) of the Florida Constitution; and (iii) whether Section 3 of the Act violates Article III, Section 11(a)(1) of the Florida Constitution, and Section 145.16(1), Florida Statutes (1975).

Article IX, Section 1, Florida Constitution, provides:

Adequate provision shall be made by law for a uniform system of free public schools and for the establishment, maintenance and operation of institutions of higher learning and other public education programs that the needs of the people may require.

Appellant recognizes that Article IX, Section 4(a), Florida Constitution, expressly permits school boards in each school district to be composed of five or more members as provided by law. Nonetheless, it contended that to permit the legislature to select one school district and, by special or local law, to provide a different number of school board members than is provided by general law for the school boards of all other counties in the state, abuses the declaration in Article IX, Section 1, Florida Constitution, that there shall be “a uniform system of free public schools.” In support of this contention, appellant cites Section 230.061, Florida Statutes (1975), which provides that “[f]or the purpose of nominating and electing school board members, each district shall be divided into five district school board member residence areas, which shall be numbered one to five, . . . [placing] in each district, as nearly as practicable, the same number of qualified electors.” Appellant argues that provision in Section 2 of the Act for two at-large members obviously denigrates this provision of general law. Appellee State of Florida and interve-nor, The Escambia Education Association, respond that appellant’s assertion overlooks both Section 230.04, Florida Statutes (1975), and Article IX, Section 4(a), Florida Constitution. Both provisions state that there shall be a school board composed of five or more members in each school district.

The crux of the issue, then, is whether the constitutional requirement for a uniform system of free public schools prohibits a disparity in the number of school board members from district to district throughout the State.

There is a dearth of authority construing the significance of the phrase “uniform system of free public schools,” as appears in Article IX, Section 1 of the Florida Constitution. Our research discloses only four cases dealing with that provision. In the first, State v. Holbrook, 129 Fla. 241, 176 So. 99 (1937), this Court dealt with Article XII, Section 1 of the Constitution of 1885, the forerunner of Article IX, Section 1. Article XII, Section I, provided that “[t]he Legislature shall provide for a uniform system of public free schools, and shall provide for the liberal maintenance of the same.” In Holbrook, the Court determined that a special act which established tenure of employment for teachers in Orange County, Florida, did not violate the uniform system requirement. The Court so held even though the law directly affected the authority of the school district trustees and the county board of public instruction in Orange County with respect to nomination, appointment, and employment of teachers in that county. The special act limited the trustees and board in Orange County in employment matters, whereas similar officials in all other counties were not so limited. Nonetheless, the act was upheld.

State v. Henderson, 137 Fla. 666, 188 So. 351 (1939), construed the 1885 constitutional provision to mean “that a system of public free schools, as distinguished from the authorized state educational institutions, shall be established upon principles that are of uniform operation throughout the State . .” (Emphasis supplied) 188 So. at 352. The holding of this case dealt with application of the homestead exemption to the school tax levied by a Special Tax School District. It was concluded that the tax was not an assessment for special benefits within the meaning of the homestead provision and, therefore, homesteads were exempt from such taxes. This was so because the tax was levied to support the establishment and liberal maintenance of a “uniform system to promote education and good citizenship.” Id. at 354,

In State v. Board of Public Instruction of Pasco County, 176 So.2d 337 (Fla.1965), this Court upheld the constitutionality of a special act creating a special school taxing district within Pasco County, Florida, against an attack that it violated the provisions of the 1885 forerunner of Article IX, Section 1, Florida Constitution. In so doing, the Court said:

Chapter 63-1766 only seeks to create a tax area so that bonds can be issued to make improvements to the system of schools in the rapidly growing area. Thus, the act cannot be said to affect the uniformity of the system of schools. The counties and school districts are school governing bodies which provide for the uniform system of public schools. The same system of school government will obtain, although it is hoped more effectively with improved facilities provided for by the statute. See State ex rel. Glover v. Holbrook, 129 Fla. 241, 176 So. 99 (1937).

176 So .2d at 338.

The latest reference to the uniform free school system provision of our Constitution was in District School Board of Lee County v. Askew, 278 So.2d 272 (Fla.1973). In Askew, we dealt with the tax ratio study of the auditor-general authorized by Section 236.07(8), Florida Statutes (1973), in determining required local effort for school financing under the Minimum Foundation Fund. Speaking for the Court, Justice Adkins stated:

The Minimum Foundation Program, by thus providing for a uniform expenditure per teaching unit throughout the State regardless of the tax base of the various counties, meets the constitutional requirement of a uniform system of free public schools. Fla.Const., art. IX, § 1, F.S.A. 278 So.2d at 274.

However, the Court went on to strike down the tax ratio study device as an unconstitutional means of determining the local effort factor for the Minimum Foundation Program formula.

The foregoing cases advise us of variations which do not violate the uniform system provision of Article IX, Section 1, Florida Constitution. However, they are not particularly instructive as to which variations would run afoul of the constitutional directive. Nonetheless, with these precedents in mind and based upon reference to other constitutional, statutory and definitional provisions, as well as policy considerations, we are of the opinion that Section 2 of Ch. 76-356, Laws of Florida, does not constitute the sort of nonuniformity proscribed by Article IX, Section 1.

It is apparent from Article IX, Section 4(a), Florida Constitution, that by a vote of the electors of two or more contiguous counties, those counties may combine into one school district. Hence, the uniformity of system called for by Article IX, Section 1, cannot dictate that each county have the same number of school board members, as asserted by appellant. Also, as previously noted, that article of the Constitution expressly provides that each school district shall have a board composed of five or more members. Section 230.04, Florida Statutes (1975), mandates only that the school board in each district be composed of not less than five members. Section 230.061, Florida Statutes (1975), by providing for election of a school board member from each of five districts, is not in derogation of Section 230.04 and does not preclude members in excess of five, who are to be elected at large from within the school district.

Furthermore, the dictionary definition of the term “system” leads to the conclusion that Article IX, Section 1, Florida Constitution, does not require that the school board in each county be composed of an identical number of members. Webster’s Third New International Dictionary (unabr.1960), provides, inter alia, the following definition of “system”:

A complex unity formed of many often diverse parts subject to a common plan or serving a common purpose. (Emphasis supplied)

Id. at 2322.

By definition, then, a uniform system results when the constituent parts, although unequal in number, operate subject to a common plan or serve a common purpose.

The diverse nature and demographics of the population of our state likewise militates against the notion that the school board in each school district must be composed of the same number of individuals. In order that the total population in highly urbanized areas of our state, with its sometimes diverse cultural makeup, be properly represented in public school affairs, it may be highly desirable to have a school board in excess of five members. To the same extent, several contiguous rural, nonpopulous counties in the state may be better served by a single board with five members. Just as there need not be uniformity of physical plant and curriculum from county to county because their requirements differ, there is no compelling reason for school boards of identical size from county to county. Consequently, we conclude that the provision for a uniform system of free public schools embraces the notion that although equal pupil funding treatment such as the Minimum Foundation Program and coordinated effort and direction supplied by the State Board of Education are essential, identity in size of the constituent school boards is not.

Appellant maintains that Section 2 of the Act constitutes an attempt by the legislature to “pack” the Escambia County School Board. This, it asserts, is an unwarranted intrusion by the legislature into the local affairs of the school district in violation of Article IX, Section 1, and Article IX, Section 4(b), Florida Constitution. This sort of argument was disposed of in State v. Holbrook, supra:

Of course, with regard to the wisdom and policy of this special act we have nothing to do. Counsel for the relator contends that the primary purpose of the act is to eliminate, in so far as possible, the influence of politics in the conduct of the public schools of Orange County; and counsel quotes from the Wisconsin case of State v. Levitan, 181 Wis. 326, 193 N.W. 499, 500 wherein it is said, concerning legislation of this kind, that:
“A certain measure of economic independence should be the -reward of one who labors loyally and successfully in a profession or other field of employment. The prevailing salaries of teachers have not been sufficient to accomplish this result. Because of the discouraging consequences resulting to our educational system from the brief tenure of service on the part of those whom the state has educated for the work, there has been and is a growing sentiment that the teaching profession must be made more attractive by rewards of a material nature to induce a longer tenure of service.”
While all this may be true, we must repeat that we are not here concerned with the wisdom or policy of this statute. It may be all that counsel for relator contends that it is. That was a matter for the Legislature to determine. We are only concerned with the question as to whether or not the statute here under review constitutes such a clear violation of the Constitution as would require this court to hold it invalid. As the majority of the court are of the opinion that the statute is not shown by the respondents to be unconstitutional beyond all reasonable doubt, the validity of the statute should be upheld.

176 So. at 103.

The political motivations of the legislature, if any, in enacting Ch. 76-356, Laws of Florida, are not a proper matter of inquiry for this Court. We are limited to measuring the Act against the dictates of the Constitution. If it is not found wanting in this regard, then our inquiry is at an end. However, we would note that by its terms the Act provided for a local referendum and, at such election, the electors in the local school district approved the increased board membership by a majority vote.

Appellant’s last attack on the Act centers upon Section 3, which reduces the salary of school board members to $200 per month. This provision is alleged to violate Article III, Section 11(a)(1), Florida Constitution, as well as Section 145.16(1), Florida Statutes (1975). Appellant argues that because Section 3 of the Act contemplates modification of the compensation of school board members, there is a derivative effect upon the filing fee for the election of such officers. This results because the filing fee is measured by a percentage of the annual salary of the office. Consequently, contends appellant, Section 3 of Ch. 76-356 is a special law “pertaining to election . of officers. . . . ” It is apparent to us that any such effect upon the election of school board members is so incidental and tenuous as to not be cognizable by the prohibition of Article III, Section 11(a)(1), Florida Constitution. The main purpose of the Act is to reduce the salaries of school board members. See Wilson v. Hillsborough County Aviation Authority, 138 So.2d 65 (Fla.1962); State v. Holbrook, supra. State v. Newell, 85 So.2d 124 (Fla.1956), is inapposite because it dealt with a “population act,” the sole purpose of which was to alter the date for primary elections in counties encompassed within the population parameters of the law. The Newell Court construed the term “election” in the predecessor to Article III, Section 11(a)(1), to include primary as well as general elections and, accordingly, found the statutory provision invalid.

Appellant’s attack premised on a violation of Section 145.16(1), Florida Statutes (1975), must also fail. Although that section expresses a legislative policy in favor of uniformity of salaries of county officials, Section 145.16(2), Florida Statutes (1975), enumerates specific county officials whose salaries are to be uniform. School board members are conspicuous by their absence from the county officers listed in Section 145.16(2), Florida Statutes (1975). Accordingly, under the doctrine of expressio unius est exclusio alterius, Section 145.16 offers no impediment to establishing by local law a different salary for those officers in Escambia County.

Likewise, Section 145.131(2), Florida Statutes (1975), which provides for establishing compensation of district school board members within salary ranges specified in Section 145.041, Florida Statutes (1975), cannot take precedence over the later special act here under consideration. See Sharer v. Hotel Corporation of America, 144 So.2d 813 (Fla.1962); City of St. Petersburg v. Carter, 39 So.2d 804 (Fla.1949). Furthermore, Section 145.131(2) is not insulated from modification by subsequent special act because it was not passed by the extraordinary legislative vote procedure required by Article III, Section ll(a)(21), Florida Constitution.

Accordingly, the judgment of the trial court is affirmed.

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

HATCHETT, J., dissents.

      . Art. IX, § 4(b), Fla.Const.:
      “(b) The school board shall operate, control and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein. Two or more school districts may operate and finance joint educational programs.”

      . Art. Ill, § 11(a)(1), Fla.Const.:
      “(a) There shall be no special law or general law of local application pertaining to:
      (1) election, jurisdiction or duties of officers, except officers of municipalities, chartered counties, special districts or local governmental agencies.”

      . § 145.16(1), Fla.Stat. (1975):
      “(1) The Legislature declares that the preservation of statewide uniformity of county officials’ salaries is essential to the fulfillment of the legislative intent expressed in this chapter and intends by this section to prevent any laws which would allow officials in individual counties to be excepted from the uniform classification provided in this chapter.”


author: BOYD, Acting Chief Justice.

text:
    PEACOCK CONSTRUCTION COMPANY, INC., Petitioner, v. MODERN AIR CONDITIONING, INC., Respondent. PEACOCK CONSTRUCTION COMPANY, INC., Petitioner, v. OVERLY MANUFACTURING COMPANY, Respondent.
    Nos. 50758 and 50793.
    Supreme Court of Florida.
    Dec. 15, 1977.
    Julian D. Clarkson, Fort Myers, for petitioner.
    Harry A. Blair and Harvey B. Goldberg of Goldberg, Rubinstein & Buckley, Fort Myers, for respondent.
   BOYD, Acting Chief Justice.

We issued an order allowing certiorari in these two causes because the decisions in them of the District Court of Appeal, Second District, conflict with the decision in Edward J. Gerrits, Inc. v. Astor Electric Service, Inc., 328 So.2d 522 (Fla.3d DCA 1976). The two causes have been consolidated for all appellate purposes in this Court because they involve the same issue. That issue is whether the plaintiffs, Modern Air Conditioning and Overly Manufacturing, were entitled to summary judgments against Peacock Construction Company in actions for breaches of identical contractual provisions.

Peacock Construction was the builder of a condominium project. Modern Air Conditioning subcontracted with Peacock to do the heating and air conditioning work and Overly Manufacturing subcontracted with Peacock to do the “rooftop swimming pool” work. Both written subcontracts provided that Peacock would make final payment to the subcontractors,

“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.”

Modern Air Conditioning and Overly Manufacturing completed the work specified in their contracts and requested final payment. When Peacock refused to make the final payments the two subcontractors separately brought actions in the Lee County Circuit Court for breach of contract. In both actions it was established that no deficiencies had been found in the completed work. But Peacock established that it had not received from the owner full payment for the subcontractors’ work. And it defended on the basis that such payment was a condition which, by express term of the final payment provision, had to be fulfilled before it was obligated to perform under the contract. On motions by the plaintiffs, the trial judges granted summary judgments in their favor. The orders of judgment implicitly interpreted the contract not to require payment by the owner as a condition precedent to Peacock’s duty to perform.

The Second District Court of Appeal affirmed the lower court’s judgment in the appeal brought by Modern Air Conditioning. In so doing it adopted the view of the majority of jurisdictions in this country that provisions of the kind disputed here do not set conditions precedent but rather constitute absolute promises to pay, fixing payment by the owner as a reasonable time for when payment to the subcontractor is to be made. When the judgment in the Overly Manufacturing case reached the Second District Court, Modern Air Conditioning had been decided and the judgment, therefore, was affirmed on the authority of the latter decision. These two decisions plainly conflict with Gerrits, supra.

In Gerrits, the Court had summarily ordered judgment for the plain tiff/subcontractor against the 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.” Id. at 523.

In its review of the judgment, the Third District Court of Appeal referred to the fundamental rule of interpretation of contracts that it be done in accordance with the intention of the parties. Since the defendant had introduced below the issue of intention, a material issue, and since the issue was one that could be resolved through a factual' determination by the jury, the Third District reversed the summary judgment and remanded for trial.

Peacock urges us to adopt Gerrits as the controlling law in this State. It concedes that the Second District’s decisions are backed by the weight of authority. But it argues that they are incorrect because 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.

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.

Although it must be admitted that the meaning of language is a factual question, the general rule is that interpretation of a document is a question of law rather than of fact. 4 Williston on Contracts, 3rd Ed., § 616. 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., 6 Cir., 303 F.2d 655 (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 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.

The decisions, of the Second District Court of Appeal to affirm the summary judgments were correct. We adopt, therefore, these two decisions as the controlling law in Florida and we overrule Gerrits, to the extent it is inconsistent with this opinion.

The orders allowing certiorari in these two causes are discharged. It is so ordered.

ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

      . Art. V, § 3(b)(3), Fla.Const., gives us jurisdiction.

      . Original Record, p. 7, Sup.Ct. Case No. 50,-758; Original Record, p. 4, Sup.Ct. Case No. 50,793.

      . In fact, in the Modern Air Conditioning case the Architect stated in a sworn deposition that he felt the heating and air conditioning equipment, although not yet operated, was complete per the plans and specifications. Original Record, p. 37. Sup.Ct. Case No. 50,758.

      . The owner, a corporation, had entered proceedings in bankruptcy.

      . Peacock Construction Co. Inc. v. Modern Air Conditioning, 339 So.2d 294 (Fla.2d DCA 1976).

      . Schuler-Haas Elec. v. Aetna Casualty & Surety, 49 A.D.2d 60, 371 N.Y.S.2d 207 (1975); Howard-Green Elec. Co. v. Chaney & James Const. Co., 12 N.C.App. 63, 182 S.E.2d 601 (1971); A. J. Wolfe Co. v. Baltimore Contractors, Inc., 355 Mass. 361, 244 N.E.2d 717 (1969); Fishman Const. Co. v. Hansen, 238 Md. 418, 209 A.2d 605 (1965); Darrell T. Stuart Contractor of Arizona v. Bridges, 2 Ariz.App. 63, 406 P.2d 413 (1965); Mignot v. Parkhill, 237 Or. 450, 391 P.2d 755 (1964); Byler v. Great Am. Ins. Co., 395 F.2d 273 (10th Cir. 1968); Thos. J. Dyer Co. v. Bishop Intern. Engineering Co., 303 F.2d 655 (6th Cir. 1962); Trinity Universal Ins. Co. v. Smithwick, 222 F.2d 16 (8th Cir. 1955), cert. den. 350 U.S. 837, 76 S.Ct. 74, 100 L.Ed. 747 (1955); Moore v. Continental Casualty Co., 366 F.Supp. 956 (W.D.Okl.1973). Contra: Standard Asbestos Mfg. Co. v. Kaiser, 316 Ill.App. 441, 45 N.E.2d 75 (1942); Mascioni v. I. B. Miller Inc., 261 N.Y. 1, 184 N.E. 473 (1933).

      . Peacock Construction Co. v. Overly Mfg. Co., 343 So.2d 850 (Fla.1976).

      . See footnote 6, supra.


author: PER CURIAM.

text:
    George L. RUDOLPH, Susan Lee Crooke, and Sharon Frances Miller, Appellants, v. STATE of Florida, Appellee.
    Nos. 51376, 51377 and 51378.
    Supreme Court of Florida.
    Dec. 15, 1977.
    Henry R. Barksdale, Pensacola, for appellants.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The judgments of conviction in these cases are affirmed. State v. Bales, 343 So.2d 9 (Fla.1977).

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


text:
    Florence Wood ENDRES, Petitioner, v. Dorothy MATTHIAS, Respondent.
    No. 51658.
    Supreme Court of Florida.
    Dec. 15, 1977.
    Richard J. Brooks, Altamonte Springs, and Charles E. Felix, Orlando, for petitioner.
    Phillip H. Logan of Shinholser, Logan & Moncrief, Sanford, for respondent.
   PER CURIAM.

A direct conflict with In re: Estate of McCartney, 299 So.2d 5 (Fla.1974), having been conceded to exist with the decision of the court below in this case, oral argument here is dispensed with, certiorari is granted and the decision below is hereby vacated and set aside with directions to affirm the order of the trial court. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

It is so ordered.

BOYD, Acting C. J., ENGLAND, SUND-BERG and HATCHETT, JJ., and DREW (Retired), J., concur.

      . In re Estate of Endres, 345 So.2d 793 (Fla. 4th DCA 1977).


text:
    Claude L. KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 51832.
    Supreme Court of Florida.
    Dec. 15, 1977.
    Claude L. Kelly, in pro per.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petition for certiorari was denied.

We have considered the petition for cer-tiorari as an application for writ of habeas corpus. It states no basis for granting relief by habeas corpus, hence such application is also denied.

It is so ordered.

BOYD, Acting C. J., ENGLAND, SUND-BERG and HATCHETT, JJ., and DREW (Retired), J., concur.


text:
    THE FLORIDA BAR, Complainant, v. Mercury N. KAVOUKLIS, Respondent.
    No. 52783.
    Supreme Court of Florida.
    Dec. 22, 1977.
    David G. McGunegle, Bar Counsel and Asst. Staff Counsel, Tallahassee, for complainant.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline. We have jurisdiction of this original proceeding pursuant to Article V, Section 15, Florida Constitution.

In its petition, The Florida Bar has sub-, mitted the following synopsis of the case as contained in the complaint:

Respondent has submitted a conditional guilty plea to the two-count complaint filed in this case in exchange for a consent judgment for disbarment from the practice of law. The respondent has further agreed that he will not seek readmission until he makes restitution to any and all injured clients whether they are from this proceeding or as otherwise might be discovered. Finally, the respondent has agreed to pay costs of the proceeding.
The first count of the complaint charged that he had been retained in July 1973 by a Mr. and Mrs. W. M. McCrae, to represent them in the sale of certain real property which they owned in Femandi-na Beach, Florida. The sale, priced at $350,000, ultimately failed due to a default under the terms of the purchase and sale agreement by the buyer. However, prior to the default, the buyer through his attorney delivered a July 28, 1973, binder check for $5,000 payable to the McCraes to respondent’s law office as part of the terms of the contract. The remainder of this sale was to be financed by $45,000 being tendered at closing and a purchase money mortgage and note.
After receiving the check, the respondent forged the signatures of his clients and deposited the proceeds in his office checking account at the State Bank of Kingsland in Kingsland, Georgia. The account was not a trust account. Although respondent continued to represent the clients for the next two years on this transaction, it never was consummated. However, he did receive a $45,000 cashier’s check as required under the terms of the transaction. In August 1975, he sent his clients the cashier’s check and left the United States without making any arrangements for substitute counsel. The respondent has never accounted for or turned over to the McCraes any of the $5,000 binder check to which they were entitled. His bank account at the State Bank of Kingsland does not contain any funds with which to pay the McCraes. The respondent was indicted on similar facts by the Nassau County grand jury on charges of grand larceny with prosecution being delayed due to his absence from the country. Finally, the Clients’ Security Fund of The Florida Bar paid the McCrae family $5,000 in December 1976. As charged his conduct violated Disciplinary Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(6), 2-110(A)(2), 9-102(A) and 9-102(B) of The Florida Bar’s Code of Professional Responsibility and Rules 11.02(3)(a) and 11.02(4) of The Florida Bar’s Integration Rule.
The second count of the complaint charged the respondent with misdeeds in an estate case. In December 1974 he entered into an employment contract with Mrs. Evelyn Barber of Waycross, Georgia, in regard to representing her in claiming a dower interest in the estate of her late husband which was probated in Nassau County, Florida.
On August 12,1975, Mrs. Barber signed a receipt and release form and received from the respondent a cashier’s check for $217,622.28 which was her dower interest in the estate. Respondent then had her endorse the back of the check and falsely advised her he had to retain the check for additional probate purposes. The following day, he opened a clients’ account at the Atlantic National Bank of Jacksonville and deposited Mrs. Barber’s check into it. On August 18, 1975, the respondent withdrew approximately $21,774 of Mrs. Barber’s money and used it to pay several individuals to whom he was personally indebted and who had no relationship with his client. He also wrote himself a check for $3,226.23.
Approximately a week after giving respondent the check, Mrs. Barber and a friend confronted him about his handling of the matter and demanded that he return the money. Respondent admitted to Mrs. Barber that he had spent some of her money for his own personal use. The parties went to the Atlantic National Bank on August 19,1975, where he wrote her a check for $192,622.25. He gave her promissory notes for the remainder. Respondent left the country without paying the notes and contrary to his specific promise to Mrs. Barber. He has been indicted on similar facts by the Nassau County grand jury on charges of grand larceny with his prosecution being delayed by his absence from the country. Finally, the Clients’ Security Fund of The Florida Bar paid Mrs. Barber $20,000 on December 1976 due to the facts of this count. As charged, Respondent’s conduct violated Disciplinary Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(6) and 9-102(B)(4) of The Florida Bar’s Code of Professional Responsibility and Rules 11.02(3)(a) and 11.02(4) of the Integration Rule of The Florida Bar.

The Florida Bar in its complaint and petition for approval of conditional guilty plea prays that respondent be disbarred.

Upon consideration, the petition for approval of conditional guilty plea is granted and, based upon the facts set forth above, Mercury N. Kavouklis is hereby disbarred from the practice of law pursuant to Integration Rule 11.10(4), upon all of the terms and conditions set forth in the petition.

Costs in the amount of Three Hundred Five and 80/100 Dollars ($305.80) are hereby taxed against the respondent which he has agreed to pay if the plea is accepted.

It is so ordered.

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


text:
    THE FLORIDA BAR, Petitioner, v. Ernest M. BREED, Jr., Respondent.
    No. 52816.
    Supreme Court of Florida.
    Dec. 22, 1977.
    Marshall R. Cassedy, Executive Director, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
    Monterey Campbell of Campbell, Dunlap, Coward & Blakeman, Bartow, for respondent.
   PER CURIAM.

Petitioner, The Florida Bar, pursuant to Disciplinary Rule 11.10(5) of Article XI of the Bar’s Integration Rule, has petitioned this Court to suspend respondent, Ernest M. Breed, Jr., from the practice of law until further order of this Court. The affidavits and audit accompanying the Bar’s petition reflect that there have been shortages in respondent’s trust account in each of the past three years.

The Court, having carefully examined the affidavits and audit demonstrating the alleged misconduct of respondent and having heard argument from both parties, is of the opinion that the petition of the Bar should be granted. It is, therefore, ordered that:

1. Respondent be and is hereby suspended from the practice of law in this state until further order of this Court.

2. Respondent is enjoined from withdrawing any trust funds now on deposit with any bank as provided in Rule 11.10(5) of Article XI of The Florida Bar Integration Rule until further order of this Court.

3. Respondent shall immediately notify in writing all banks in which he maintains accounts of the provisions of his suspension, and respondent shall provide said banks with a copy of this order. Respondent shall also provide staff counsel of The Florida Bar with a copy of the notice that he sends to each bank.

4. Respondent shall deposit into a trust account all sums hereafter received from the practice of law, whether fees, costs, deposits, or trust funds, and respondent shall immediately advise staff counsel of The Florida Bar of the receipt and location of such funds.

5. The Florida Bar shall expedite all proceedings in this cause and shall report to the Court on the status of these proceedings within sixty days from the entry of this order.

It is so ordered.


text:
    Carmel WUAGNEUX, Appellant, v. George WUAGNEUX, Appellee.
    No. 75-2259.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1977.
    Andrew M. Chansen, Fort Lauderdale, and Leonard Feiner of Goodman & Berzner, Margate, for appellant.
    Robert J. O’Toole, Fort Lauderdale, for appellee.
   PER CURIAM.

Wife seeks to modify and enforce by contempt the terms of a New York divorce judgment which has been established as a Florida judgment. The trial court denied both her petition for modification and her motion for contempt.

Based upon the record in this case, w» find no reversible error. The wife failed to show a substantial change of condition which would justify modification of the original judgment. Also, the wife failed to establish whether or not the unpaid $20,000 was lump sum alimony or a payment due to the wife as part of a property settlement agreement. Being unable to make this determination, the trial court correctly denied wife’s motion for contempt. Burke v. Burke, 336 So.2d 1237 (Fla. 4th DCA 1976).

Our holding in this case shall not prevent the wife in subsequent proceedings from either seeking modification or enforcement of the judgment as provided by law.

AFFIRMED.

DOWNEY and ALDERMAN, JJ., and PARHAM, HARRY C., Associate Judge, concur.


author: RAWLS, Judge.

text:
    Milton T. SCHAEFFER, Emil Massaro, and Louise W. Lindland, as Executrix of the Estate of Richard L. Lindland, Deceased, Appellants, v. Ben S. GILMER et al., Appellees.
    No. CC-408.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1977.

      James A. Bledsoe, Jr., of Mahoney, Had-low & Adams; and John F. Corrigan, of Corrigan, Werber & Moore, Jacksonville, for appellants.
    Jacqueline B. Whatley, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, Arthur C. Fulmer, Lakeland and J. David McFadden, Daytona Beach, for appellees.
   RAWLS, Judge.

Florida’s second land boom, which may be characterized as the “go go” condominium era of the first sequential of this decade, has generated considerable litigation between real estate investment trust lenders and speculative builder borrowers. This interlocutory appeal is a progeny of the era. The primary issue now presented is the propriety of the trial court’s action in striking certain affirmative defenses and counterclaims proffered by individual guarantors.

In December of 1972, The Bastillion Development Co., Inc., negotiated with TriSouth Mortgage Investors, a Massachusetts business trust for which appellee Gilmer is trustee, for a construction loan on property located in New Smyrna Beach, Florida. The following individuals who “had an interest” in Bastillion: Milton T. Schaeffer, J. Gerald Wetzel, Richard L. Lindland, Joe H. Schaeffer, Jr., Vito J. Nico and Emil Massa-ro, executed two agreements of guaranty and indemnity in favor of Tri-South. One agreement guaranteed the payment of $450,000.00, which loan was to provide funds for Bastillion “to acquire the real property encumbered by the Mortgage and retire existing indebtedness”, and the other agreement guaranteed the repayment of $4,150,000.00, which loan was to provide funds for Bastillion to construct a condominium complex on the property. The latter guaranty agreement specifically provided:

“. . . [T]he Borrower’s [Bastillion] • obligation to construct said condominium complex and requirements for and conditions precedent to the disbursement of the loan proceeds are set forth in a Construction Loan Agreement of even date herewith between the Borrower and the Trust (the ‘Construction Loan Agreement’) . . . .”

The contemplated project failed during construction of the condominiums. TriSouth instituted its complaint seeking by Count I to foreclose its mortgages and by Count II damages against the individual guarantors. A severance of the two counts was granted by the trial court, and a final judgment of foreclosure was entered against Bastillion and certain lien claimants in the sum of $4,511,951.68. This action is solely directed to Count II of the complaint wherein Tri-South is seeking damages pursuant to the guaranty agreements.

On June 14, 1976, the trial court granted Tri-South’s motion to strike the amended affirmative defenses and counterclaims asserted by defendants, Milton T. Schaeffer, Emil Massaro and Louise W. Lindland, as executrix of the estate of Richard L. Lind-land, deceased.

Tri-South contended in the trial court and now contends that the subject guaranty agreement is absolute and thus the guarantors have no standing to assert as a defense to the guaranty alleged breaches of contract between borrower and lender, citing as its authority 38 Am.Jur.2d, Guaranty § 52. A further contention of Tri-South’s is that evidence of failures on the part of a promisee is inadmissible to alter the obligation of a guarantor by one who unconditionally promises to repay the obligation of another.

Citing Anderson v. Trade Winds Enterprises Corp., 241 So.2d 174 (Fla. 4th DCA 1970), Tri-South reasons that the guaranty here considered, being “absolute” in character, the guarantors became liable immediately upon failure of payment and were deprived by the instrument they executed of any affirmative defenses. If the law was cast in concrete and labels such as “absolute” and “conditional” were imbedded therein, judicial labor could be relegated to the “computer world”. As observed at the outset, the instant guaranty specifically refers to: “. . . conditions precedent to the disbursement of loan proceeds are set forth in a Construction Loan Agreement of even date herewith between the Borrower and the Trust . . .” We hold that the two written instruments must be construed together, and if a label must be affixed, the instant guaranty is “conditional”. This does not change the express terms of the guaranty agreement, but it does permit the assertion of appropriate affirmative defenses by the guarantors. Northwestern Bank v. Cortner, 275 So.2d 317 (Fla. 2nd DCA 1973). The guarantors and the creditor, being parties to the contract of guaranty which specifically incorporates the loan agreement between the debtor and the creditor, any rights of the creditor are determined by reading the two instruments together. The law imposes on the creditor an obligation not to deal with the debtor or the security in such a manner as to harm the interest of the guarantors. Dorsy v. Maryland National Bank, 334 So.2d 273 (Fla. 3rd DCA 1976). It is with the foregoing principles of law in mind that we undertake the task of analyzing the multitudinous proffered affirmative defenses, a substantial portion of which in days of old would have been characterized as “speaking demurrers”.

First Affirmative Defense Emil Massaro and Milton Schaeffer (Failure of Consideration)

Paragraph 5 alleges that “the consideration” for execution of the documents was Tri-South’s disbursement of the construction loan according to the terms of the agreement. Obviously, the consideration was Tri-South’s agreement to loan $4,Í50,-000.00 to Bastillion. The trial court correctly struck paragraph 5 of Massaro’s and Schaeffer’s affirmative defense.

Paragraph 6 — Breach of Construction Loan Agreement.

Subparagraph (a) alleged that Tri-South failed to enforce the construction loan against Bastillion. The trial court erred in striking this defense.

(b) Alleges failure of Tri-South to supervise construction of the Bastillion project. Such a duty was not imposed upon TriSouth. The trial court correctly struck this defense.

(c) Alleges wrongful disbursement by Tri-South, inter alia: “. . - by failing to obtain architect’s certificates, affidavits, lien waivers, releases and other assurances from the contractors, suppliers and materi-almen that they were receiving the loan proceeds for work performed . . . .” This portion was correctly stricken by the trial court. The other allegations in this subparagraph constitute a cognizable defense and should not have been stricken.

(d) Alleges that Tri-South wrongfully discontinued performance under the construction agreement by discontinuing disbursements when all conditions precedent had been met by borrower. The trial court erred in striking this defense.

Paragraph 7 again alleges failure of consideration. The trial court correctly struck this defense.

Second Affirmative Defense (Lack of Mutuality)

Paragraphs 8 and 9, according to the guarantors, allege lack of mutuality of obligation. The trial court correctly struck these two paragraphs.

Third Affirmative Defense (Material Alteration of Risk)

Paragraph 10 alleges that under the terms of the guaranty, construction loan agreement and general principles of guaranty, Tri-South was required to give notice prior to altering the guarantors’ risk.

Paragraph 11 alleges that the guarantors are discharged from liability because:

(a) Tri-South has continuously treated the Bastillion loan as related to other Joe H. Schaeffer, Jr., obligations and rendered their obligations under the Bastillion loan subject to the terms and conditions to these other loans.

(b) Tri-South arbitrarily reallocated the distribution of the loans so as to increase interest reserve, thereby reducing the amount of the loan below amount necessary to complete construction.

(c) Tri-South permitted construction of the second condominium building before the phasing requirements of the mortgages, construction loan agreement and commitment letters had been fulfilled.

The trial judge erred in striking the foregoing third affirmative defense.

Fourth Affirmative Defense

This defense was apparently not stricken by the trial judge which alleges payment or alternatively the guarantors are entitled to a credit equal to the fair market value of the mortgaged property.

Fifth Affirmative Defense (Failure to Fulfill Conditions Precedent)

The trial court did not err in striking the fifth affirmative defense. The error, if any, of Tri-South in disbursement of loan proceeds has been more properly made a subject matter of other affirmative defenses.

Sixth Affirmative Defense (Estoppel)

Subparagraph (a) of paragraph 17 alleges that Tri-South waived default because, at the outset, it knew that the loan was insufficient to cover cost of construction. The lender was not an insurer to the borrower or guarantors that the aggregate loan would be ample to complete the project. The trial court correctly struck this defense.

(b) Tri-South waived default upon receipt of an interest payment. Such allegation does not exonerate guarantors. The trial court correctly struck this defense.

(c) Tri-South negligently disbursed and grossly mismanaged the Bastillion loan thereby preventing borrower from performing. The trial court erred in striking this defense.

(d) By willfully failing to disburse loan proceeds when the borrower had fulfilled all conditions precedent, Tri-South contributed to the failure of the project. The trial court erred in striking this defense.

(e) The trial court erred in striking allegations of general estoppel founded upon the guarantors’ counterclaim.

Seventh Affirmative Defense (Failure to Notify of Misuse)

Paragraph 18 alleges that TriSouth failed to notify guarantors of misuse of the loan proceeds by the general contractor. Tri-South was not under a duty to supervise the construction; thus, the trial court did not err in striking this defense.

Eighth Affirmative Defense

Paragraph 19 is predicated upon an allegation that borrower had not defaulted. This defense has been resolved by the trial court and this court’s decision in Bastillion Development v. Gilmer, 339.So.2d 1163 (Fla. 1st DCA 1976), contrary to guarantors’ position; hence the trial court correctly struck this defense.

Ninth Affirmative Defense

Paragraph 20 — This defense is based upon the question of usury as to interest charged Bastillion. Again, this issue was resolved contrary to the guarantors’ position in the Bastillion foreclosure proceeding, 339 So.2d 1163. The trial court correctly struck this defense.

Counterclaim Emil Massaro and Milton Schaeffer

The counterclaim of these two guarantors alleges the history of the subject loan and bases its assertion, primarily, upon substantial transactions between Joe Schaeffer, Jr., and Tri-South. They allege, basically, that Joe Schaeffer is one of the principals (25 percent) of Bastillion and a co-guarantor of its loan. A course of conduct between Tri-South and Joe Schaeffer is alleged to have transpired with the result that an aggregate of $16,200,000 loans in which Joe Schaeffer was the primary activist were lumped together, with decisions injurious to the Bastillion loan being made by Tri-South for the benefit of the other Joe Schaeffer loans. A major allegation in their counterclaim is that Tri-South “took over” the project, represented that they would complete the project, made disbursements, and then failed to complete same (cf. Dunson v. Stockton Whatley, Davin & Co., Fla., First DCA, 346 So.2d 603, opinion filed May 27, 1977). Although the counterclaim incorporates considerable “heifer dust” in the allegations, the pleading, as a whole, states a cause of action against Tri-South. The trial court erred in dismissing the counterclaim of Emil Massaro and Milton Schaeffer.

Answer and Counterclaim Estate of Lindland

Lindland’s answer substantially asserted the same affirmative defenses as that of Massaro and Schaeffer. One exception is that Lindland did not assert a defense of lack of mutuality. As stated above, the trial court’s striking of this defense pled by Massaro and Milton Schaeffer has been sustained. Lindland further proffered the affirmative defense that the death of Richard L. Lindland revokes his guaranty since the alleged deficiencies were not established until after he died. The subject guaranty instrument specifically provides that it shall be binding upon the heirs and legal representatives of Lindland and inure to the benefit of Tri-South. The trial court correctly struck this defense. Further, Lindland asserted the defense that the subject instrument is a guaranty of collectibility. The specific terms of the guaranty agreement refute this claim; thus, the trial court was correct in striking this defense.

Our analysis of Emil Massaro’s and Milton Schaeffer’s defenses and counterclaim should be adequate for the trial court to pass upon Lindland’s answer and counterclaim.

The cause is reversed with directions that the approved affirmative defenses be reinstated together with the counterclaims.

Reversed and remanded.

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

      . Lindland died since the institution of this suit and his executrix, Louise W. Lindland, has been substituted as a party.

      . Paragraph 6.a. under “CONDITIONS OF LOAN” of the construction loan agreement provides:
      “. . .a. The total amount of disbursement shall be limited to $2,450,000 until such time as the Borrower has provided evidence satisfactory to Lender that a minimum of 72 of the condominium units have been sold. Borrower shall further be restricted from beginning construction of the second 72-unit condominium building until the aforementioned sales requirements has been met.”


author: DOWNEY, Judge.

text:
    Josh SESSION, III, Appellant, v. STATE of Florida, Appellee.
    No. 77-61.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellant.
    David H. Bludworth, State Atty., and Edward A. Garrison, Asst. State Atty., for appellee.
   DOWNEY, Judge.

This case involves a search of an automobile which we hold to have been a pretextual inventory search.

Appellant Josh Session, accompanied by a female passenger, was driving his brother’s automobile during the daytime in the City of Riviera Beach. Session had his brother’s consent to use the automobile. Pursuant to an outstanding warrant, two Riviera Beach police officers pulled Session over and ordered him and his passenger out of the car. Session was handcuffed and placed in a police cruiser. Thereupon, one of the officers immediately commenced an inventory search of the automobile during which a pistol was found under the front seat and a sawed off shotgun was found in the trunk.

The testimony at a suppression hearing showed that prior to exiting the ear Session had told the passenger if he were arrested she was to drive the car on to work. The passenger asked permission of the police to drive the car to her place of employment but was refused, even though she had a valid driver’s license. The police never advised Session that he had the option to have the automobile remain where it was, or to have the passenger drive it away. The officer simply told Session he was going to impound the car and Session said, “Okay.” The officer testified that it was standard police procedure, when a driver was arrested, to impound the car.

In the order denying the motion to suppress, the trial judge found, among other things:

“D. The automobile constituted a traffic hazard.
“E. An occupant of the automobile sought to drive it from the arrest scene. Had she been permitted to do so, the owner’s financial responsibility to respond under the dangerous instrumentality doctrine would have been abated (and the public’s protection decreased) while she was behind the wheel. Ray v. Earl, 277 So.2d 73 (2d DCA Fla.1973).”

We assume the foregoing factual findings are the basis for the denial of the motion to suppress. However, we have read the entire transcript of the suppression hearing and the evidence is clear that the car was pulled off the traveled roadway onto the shoulder and that it did not impede the flow of traffic in any way. Thus, the finding that “the automobile constituted a traffic hazard” is unsupported by the record.

Item E, from the Order under review, has to do with financial responsibility. We assume the trial judge concluded that, since the passenger did not have the owner’s permission to drive the car, the owner and his insurance carrier would not be required to respond in damages for any negligence of the passenger while operating the vehicle. In support of this proposition the order cites Ray v. Earl, 277 So.2d 73 (Fla.2nd DCA 1973). However, the Ray case stands for the opposite conclusion. It specifically holds that, since an automobile is a dangerous instrumentality, the owner and his insurance carrier are liable to third parties for the negligent operation of the automobile by a person (the first permittee) using the car with the owner’s knowledge and consent. In addition, Ray holds the owner and his insurance carrier are liable for the negligent operation of the car by another person using the car with the consent of the first permittee. See Rouse v. Greyhound Rent-A-Car, Inc., 506 F.2d 410 (5th Cir. 1975). Hence it appears the premised legal conclusion is erroneous. But even if the foregoing were not true the injection of financial responsibility into the picture is also unsupported in the record. It is pure speculation as to whether there was any insurance coverage involved.

Unquestionably inventory searches have their place and have been approved in appropriate circumstances. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); State v. Jenkins, 319 So.2d 91 (Fla.4th DCA 1975). However, in the latter case this court held:

“Absent the heretofore mentioned circumstance of a search incident to a lawful arrest or a search based upon probable cause and absent the impounding of the vehicle as evidence or pursuant to a forfeiture, the impounding and towing of an automobile and its concomitant inventory search is of questionable validity where the location of the automobile does not create a traffic hazard or nuisance and the owner or operator chooses not to have his car impounded. The individual in custody should be advised of and given the choice of leaving the car in its location, contacting someone else to take charge of the ear or having it impounded. An individual who is taken into custody ought not to have his vehicle impounded, inventoried and towed away under such circumstances where alternative steps can be taken to secure the vehicle and the individual is willing to accept the responsibility for the safekeeping of the contents of such vehicle.” Id. at 94. (Emphasis that of court.)

On the facts of this case, we believe that our holdings in State v. Jenkins, supra, and Jones v. State, 345 So.2d 809 (Fla.4th DCA 1977), required that the police advise Session of his option to leave the automobile where it was located or allow him to have it driven away by the passenger or some other person of his choice.

Accordingly, since we find the trial court should have granted appellant’s motion to suppress, we reverse the judgment and sentence appealed from and remand the cause to the trial court for a new trial.

ANSTEAD and LETTS, JJ., concur.


text:
    Josh SESSION, III, Appellant, v. STATE of Florida, Appellee.
    No. 77-60.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1977.

      Philip G. Butler, Jr., of Foley, Colton & Butler, P.A., West Palm Beach, for appellant.
    David H. Bludworth, State’s Atty., and Edward A. Garrison, Asst. State’s Atty., West Palm Beach, for appellee.
   PER CURIAM.

REVERSED and REMANDED for a new trial on authority of Session v. State, Fla.App., 353 So.2d 854, Opinion issued No-would receive a return of at lease [sic]

DOWNEY, DAUKSCH and MOORE, JJ., concur.


author: ALDERMAN, Chief Judge. CROSS, Judge,

text:
    PAN AMERICAN BANK OF ORLANDO, N. A., as Personal Representative of the Estate of Joseph E. O’Malley, Appellant, v. Iva C. O’MALLEY, Appellee.
    No. 76-1058.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 30, 1978.

      Alexander C. Mackinnon of Johnson, Motsinger, Trismen & Sharp, Orlando, for appellant.
    G. Thomas Ball of Mesmer & Robbinson, Orlando, for appellee.
   ALDERMAN, Chief Judge.

The determinative issue in this appeal is whether a written separation agreement between Joseph E. O’Malley and Iva C. O’Malley, his former wife, is sufficient to obligate Mr. O’Malley’s estate to continue alimony payments after his death. The trial court concluded that the agreement was sufficient and held Mr. O’Malley’s estate liable for continued alimony payments. We reach a contrary conclusion and reverse.

When Mr. and Mrs. O’Malley were divorced, the judgment incorporated by reference their written separation agreement. The agreement provided: “Husband agrees to pay unto Wife as and for permanent alimony the sum of eight hundred fifty and no/100 dollars ($850.00) per month beginning March 1,1972, and monthly thereafter until Wife becomes remarried or deceased.” Mr. O’Malley subsequently died, survived by Mrs. O’Malley, who has not remarried. She filed a claim against his estate for continued alimony. When the estate denied her claim she began a proceeding to enforce her claim, resulting in the judgments which are the subject of this appeal.

The trial court specifically found, and we agree, that the periodic payments called for in the agreement are alimony and not an integral part of a settlement of property rights between the parties. That is to say, the word “alimony” in the agreement is used in its technical sense to refer to the “nourishment” or “sustenance” which a husband may be compelled to pay his wife for her maintenance when he is living apart from her or when they are divorced. Aldrich v. Aldrich, 163 So.2d 276 (Fla.1964).

An obligation to pay alimony ordinarily dies with the person who has the obligation, but he may agree to bind his estate to continue alimony payments after his death. Allen v. Allen, 111 Fla. 733, 150 So. 237 (1933). In the present case, the trial court found that Mr. O’Malley’s intent to bind his estate, although not expressed, was implied in the language of the separation agreement quoted above. We disagree. If Mr. O’Malley had intended to obligate his estate for alimony payments after his death, it would have been a simple matter for him to have expressly said so.

The trial court’s error arises from its reliance upon Johnson v. Every, 93 So.2d 390 (Fla.1957). In Johnson, the Supreme Court stated that the point for determination was “. . . whether under the facts shown by this record a former wife can assert a claim for unmatured alimony against the estate of her deceased former husband.” (Original emphasis.) An agreement of the parties and the divorce decree provided for alimony payments that “shall cease upon the death of the plaintiff . or upon her remarriage to any person other than the defendant.” A majority of the court reversed an order dismissing the former wife’s petition for continued alimony. However, the court specifically stated that it was not receding from its prior holding that the obligation to pay alimony dies with the divorced husband absent a specific contractual or decretal provision to the contrary.

In a later case, the Supreme Court again stated that it did not intend to recede from the rule that liability for alimony terminates with the death of the husband unless he “assumes the obligation” as one payable out of his estate after his death. Aldrich v. Aldrich, supra at page 280. In Aldrich, the court held that “alimony” in its technical sense — the “nourishment” or “sustenance” of the wife — may not continue as a charge against the husband’s estate during the lifetime of the wife, unless the husband agreed that his estate be so bound.

In a still later case, the Supreme Court considered a final decree which incorporated the terms of an agreement providing for alimony “. . . during the remainder of the life of the plaintiff, or until the remarriage of the plaintiff . . . ” In re Es tate of Freeland, 182 So.2d 425 (Fla.1965). The issue was whether there was an agreement between the parties which evidenced the intention of the husband to obligate his estate to continue alimony after his death. The court found that there was no such agreement and again noted that it had not receded from existing precedent respecting the obligation for alimony after the husband’s death.

This court has also recently held that a court of equity has no authority, statutory or inherent, to order the continuation of alimony after the death of the husband absent his express agreement that his estate be so bound. Bunn v. Bunn, 311 So.2d 387 (Fla. 4th DCA 1975).

We cannot reconcile the apparent conflict between Johnson v. Every, supra, and the other cases cited in this opinion. We conclude that Johnson has in effect, although not expressly, been overruled; or alternatively, if Johnson has not been overruled, it has little precedential value and its holding is limited to the facts shown by the record in that case.

Turning now to the merits of the present case, we hold that the property settlement agreement between Mr. and Mrs. O’Malley is not sufficiently specific to obligate Mr. O’Malley’s estate to continue alimony payments after his death. The language in question is similar to that commonly used in separation agreements and divorce judgments to indicate that the alimony is permanent, rather than temporary. We conclude that, absent an express agreement that the estate be so bound, the trial court had no authority to order Mr. O’Mal-ley’s estate to continue payments of alimony after his death. Such an agreement may not be implied from a provision which simply recites that alimony will be paid to Mrs. O’Malley until she “becomes remarried or deceased.” Without doubt, it was within the power of the parties to contract for alimony after the husband’s death; they needed only state their agreement with sufficient definiteness. They did not do so, and Mrs. O’Malley cannot now rely upon the court to imply what she and her husband might have agreed to.

Having reached this conclusion we need not discuss the other issues raised by appellant and by appellee on her cross-appeal.

REVERSED and REMANDED.

DAUKSCH, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

Appellant herein is seeking review of an order which determined a deceased husband’s estate was liable for continued alimony payments to the former wife, the appellee herein, to be paid in a lump sum of $50,000. The question of liability of the estate for the alimony payments was initially determined in an order entered September 4, 1975, in which order the court reserved ruling as to the amount of alimony. The property settlement entered into between the parties and incorporated by reference into the final judgment of divorce provided that the husband would pay to the wife permanent alimony of $850 per month until she becomes remarried or deceased.

Where a divorce decree or property settlement agreement expressly provides for the continuance of payments of alimony until the death of the wife, then the husband’s estate remains liable for the obligation in the same manner as it is liable for any other legitimate obligation outstanding at the time of death. Alimony payments cannot be increased either retrospectively or prospectively after the death of the husband. Johnson v. Every, 93 So.2d 390 (Fla.1957).

In the instant case, the trial court determined that the husband’s estate was liable for alimony payments to the former wife. No appeal was taken from that order. Subsequently, an order was entered determining the amount of alimony, and reincorporated the liability for the estate for payments of alimony. This order erroneously alters the amount of alimony as fixed in the property settlement and final divorce decree, and therefore is void and should be reversed. The question of the liability of the estate for payment of alimony having been previously determined, from which no appeal was taken, is not properly before the court and should be dismissed as untimely.