author:
ROBERT P. SMITH, Jr., Acting Chief Judge.
      MELVIN, Judge,

text:
    Michael P. ZORICK, Appellant, v. Jesse P. TYNES, Jr., Superintendent of Schools, Clay County, Florida, and Clay County School Board, a Public Corporation, Appellees.
    No. II-4.
    District Court of Appeal of Florida, First District.
    June 8, 1979.

      William J. Sheppard, Jacksonville, for appellant.
    Frank M. Scruby of Scruby, Yonge & Cobb, Orange Park, for appellees.
   ROBERT P. SMITH, Jr., Acting Chief Judge.

The presumed incapacity of the blind is a profoundly' disabling heritage, preventing demonstration of ability in fact. To dissolve that presumption in the public sector, the Florida legislature forbids public employers to refuse an applicant employment because of his blindness alone, “unless it is shown” that blindness prevents satisfactory performance of the work. Section 413.-08(3), Florida Statutes (1977). Federal legislation to the same end is more cautious in terms and effect, offering administrative and judicial remedies for systemic discrimination against qualified handicapped job applicants in federally-funded state employment programs, but deferring to local employment decisions that are not shown to be irrational. Section 504 of the Rehabilitation Act of 1973, Title 29 U.S.C., Section 794. Invoking both the Florida and federal laws, Zorick demanded circuit court remedies, injunctive and monetary, because Clay County tendered him, then for his blindness denied him, employment as a physical education instructor at Middleburg Elementary School. The court found the federal law inapplicable but held that, in the circumstances of this case, Florida statute 413.08(3) requires Clay County so to employ Zorick,

that he might have the opportunity to demonstrate whether or not he can satisfactorily perform the work of a physical education teacher at Middleburg Elementary School.

Zorick, blind since birth but skilled through education and experience in music and physical education, applied by mail for a teaching position in the Clay County school system. The system personnel coordinator offered Zorick a teaching position in physical education at the Middleburg Elementary School for the 1974-75 school year, and sent Zorick a contract to sign. Zorick accepted. When the principal and personnel coordinator learned that Zorick was blind, they withdrew the offer and withheld recommendation of Zorick’s employment to the superintendent of education, who therefore made no recommendation of employment to the district school board. See Section 230.33(7)(d), Florida Statutes (1977). Two years later Zorick brought this action for damages, injunction and attorney’s fees.

Testimony at the final hearing showed that the school officials withdrew their offer to Zorick because they considered that an unsighted person, supervising and teaching physical education to a large group of elementary school children on an open playground, would be unable to prevent the children from leaving and would be handicapped in supervising the children’s safety at play. The defendants also introduced opinion testimony by sighted persons that a blind teacher could not effectively teach the rudiments of the school’s programmed sports, which progress in complexity from drop-the-handkerchief to tag football, baseball and basketball. On the other hand, Zorick presented unsighted witnesses who testified to opinions, based on personal experience, that Zorick and others without sight are able satisfactorily to supervise children and teach them the rudiments of sports in which sighted persons rely heavily on their sight.

Judge Black’s final judgment:

1. That the plaintiff, MICHAEL P. ZORICK, was hired by the Clay ’County School Board in August, 1974, as a physical education teacher at Middleburg Elementary School for the school year commencing September, 1974.
2. That the plaintiff was subsequently found to be blind and that based upon his blindness the plaintiff was informed that the job of physical education teacher at Middleburg Elementary School was no longer available.
3. That at no time was the plaintiff afforded the opportunity to show that he could satisfactorily perform the work involved as a physical education teacher at Middleburg Elementary School.
4. That since August, 1974, the plaintiff has made no effort to get employment of any kind, other than two attempts at the City College, spending his time and efforts training for the United States Olympic Team and supporting himself with Social Security benefits. The plaintiff did not file a complaint until two years later on August 6, 1976.
5. That the Federal Statutes are not applicable in this case in that Section 413.08(3), Florida Statutes, ... is applicable. Equity and the law of the State of Florida would demand that the plaintiff be given an opportunity to demonstrate whether or not he can satisfactorily perform the work of physical education teacher at the Middleburg Elementary School. The plaintiff was denied that opportunity.
It is therefore
ORDERED that the defendants, JESSE P. TYNES, JR., individually and as Superintendent of Schools, Clay County, Florida, and CLAY COUNTY SCHOOL BOARD, a public corporation, forthwith give to the plaintiff, MICHAEL P. ZORICK, a position as physical education teacher at Middleburg Elementary School in order that he might have the opportunity to demonstrate whether or not he can satisfactorily perform the work of a physical education teacher at Middleburg Elementary School.

Zorick contends on appeal that the evidence shows as a matter of law that the school officials, refusing to fulfill their offer of employment, impermissibly discriminated against him because he is blind. He asserts entitlement to back pay, attorney’s fees, and a permanent injunction for his employment. The school officials cross-appeal from the order for trial employment. We affirm the circuit court.

I

We first consider Zorick’s claim that the circuit court erred in declining to recognize his asserted Florida-enforceable rights under federal constitutional and statutory law. In the face of the circuit court’s finding that Florida Statute 413.08(3) affords Zorick both a right and a remedy, the implication of Zorick’s insistence on asserted federal rights is that they may be greater in substance than that afforded by Section 413.08(3), or at least richer in content given by federal judicial and administrative decisions, and that attorney’s fees may flow more readily from federal statutes than from Florida’s.

A section 1983 action to redress the deprivation of due process and other federal constitutional rights may indeed yield attorney’s fees. Title 42 U.S.C., Section 1988. But assuming that Florida courts have power to entertain section 1983 suits, and to grant attending remedies, see Metropolitan Dade County v. Wolf, 274 So.2d 584 (Fla. 3d DCA 1973), cert. den. 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743, the short answer to Zorick’s claim of a due process violation is that his blindness did not subject him to an irrebuttable presumption of incompetency as a classroom teacher of sighted students; he was refused a particular physical education job at a particular school because of job-related requirements. Whatever may be Zorick’s rights under "Florida or federal statutes, the Fourteenth Amendment did not forbid Clay County’s conduct. See Smith v. Olin Chemical Corp., 555 F.2d 1283 (5th Cir. 1977); Davis v. Southeastern Community College, 574 F.2d 1158, fn. 6 (4th Cir. 1978); Coleman v. Darden, 595 F.2d 533 (10th Cir., 1979).

Zorick’s more plausible federal claim arises under Section 504 of the Rehabilitation Act of 1973, supra n. 2, which applies to the Clay County school system as a recipient of federal financial assistance. As Zor-ick rightly perceives, rules of the Department of Health, Education and Welfare purport to add flesh to the statutory bones by requiring, for example, that federal-aid recipients

make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program. ■ 45 C.F.R., Section 84.12(a).

HEW rules say also that “reasonable accommodation” may include “job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.” 45 C.F.R., Section 84.12(b).

On three alternative grounds we find that the trial court was correct in refusing to recognize Zorick’s claim under section 504:

First, section 505(a)(2) of the Rehabilitation Act, added by Congress in 1978, extends to section 504 discriminatees the remedies of Title VI of the Civil Rights Act of 1964, Title 42 U.S.C., Sections 2000d et seq., which provide in part:

Nothing contained in this subchapter shall be construed to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer . . . except where a primary objective of the Federal financial assistance is to provide employment. Title 42 U.S.C., Section 2000d-3.

The court of appeals for the Fourth Circuit has held that the 1978 legislation by implication restricts private suits as well as those “by any department or agency.” and “simply confirms a plausible reading of § 504 as originally enacted.” Trageser v. Libbie Rehab. Center, Inc., 590 F.2d 87, 89 (4th Cir. 1978). Here, as in Trageser, there is no suggestion that “a primary objective” of the federal financial aid to Clay County “is to provide employment.” In the absence of such a showing- — which we would permit on remand were this our only ground for decision — Zorick has no private section 504 claim in any court, state or federal.

Second, with due regard for the Supremacy Clause and the corresponding duty of Florida courts to enforce federal statutes not exclusively committed to the care of federal courts, especially when judging analogous Florida-based rights, no Florida court can undertake responsibility for a federal statute without concern for its own power to effectuate a judgment as would a federal court, and for the short reach of Florida procedural tools which are “adequate and appropriate” when we act within our accustomed jurisdiction. When a Florida court accepts jurisdiction of a federal statutory claim, we receive the federal creature hide and hair, we take it all: the statute, the federal judicial decisions (uniform or not) construing it, and the gloss and other consequences of federal administrative action upon the statute.

Considering these implications in the case of section 504 of the Rehabilitation Act of 1973, we think the trial court and we have a “valid excuse” for choosing not to embroil Florida’s judicial process in a probably ineffective attempt to ascertain Zorick’s federal statutory rights and, if they are found, to implement them. In a federal court, if Zorick showed that Trageser is incorrect or its requirements satisfied, questions would yet arise whether and when a private right of action arises to remedy section 504 deprivations. Before rules establishing HEW’s enforcement apparatus became effective in May 1977, 45 C.F.R. Part 84, federal courts implied a private right of action from section 504. Since then federal courts have asked, Does the primary jurisdiction of HEW afford a “meaningful” remedy for the vindication of private rights, so requiring prior exhaustion of the administrative remedy? To that question, federal courts have answered Yes, No, and Maybe.

From these disparate opinions it is evident that the availability of federal judicial recourse is largely determined by some court’s current assessment of HEW capacity in law and in fact. Federal courts are capable of such inventories; those courts can and do monitor HEW by review of its orders, rules and dockets; and they can and do fashion temporary injunctive relief pending coordinated exhaustion of administrative remedies. Florida courts lack those federal powers of judicial access and review; and, as regards HEW, we lack our own accustomed powers, afforded by Chapter 120, Florida Statutes, for review and enforcement of Florida agency action required by law. In respect to section 504, therefore, Florida courts lack effective power to require agency action, or to review it, or to assess its adequacy as a predicate for determining the availability of judicial remedies. Without those essential procedural devices for determining the adequacy of federal administrative remedies in this somewhat unsettled time, we decline to grasp the section 504 nettle, and we agree with the trial court that section 504 is inapplicable in the disposition of Zorick’s claim.

And third, if Zorick’s claim under section 504 of the federal Rehabilitation Act were otherwise cognizable, it is groundless on the merits. Certainly Zorick was denied employment as a physical education instructor because he is blind. But no federal court construing section 504 in any context has held that federal-aid recipients may not, in decisions on hiring and program participation, enforce standards for physical capacities reasonably related to the work or program concerned. Gurmankin v. Costan-zo, supra n. 6, did not rest on section 504, which was not in effect, but on the court’s finding that an unconstitutional irrebutta-ble presumption of incompetence had excluded a blind teacher-applicant from the qualifying examination to which sighted persons were admitted. Assuredly, Gur-mankin would have invoked section 504 had it been available; but refusing a blind person (Zorick) employment as a teacher of team sports requiring hand-and-eye coordination cannot be equated with refusing one (Gurmankin) any teaching job at all. Section 504 does not forbid recipient school districts to exclude partially blind students from contact sports. Kampmeier, supra n. 11, at 300. If Zorick is unable to teach physical education and supervise play because he is blind, section 504 affords him no more relief than if he were unable to do so for other reasons. Smith v. Oiin Chemical Corp., 555 F.2d 1283, 1288 n. 6 (5th Cir. 1977), (discharge for a bad back is not discrimination against the racially discrete group which is susceptible to sickle cell anemia).

The Tenth Circuit’s recent decision in Coleman v. Darden, 595 F.2d 533, (10th Cir., 1979), did not involve section 504 of the Rehabilitation Act, for the court found that a federal agency is not a federal-aid recipient. Nevertheless, acting under its power to review federal administrative decisions, the court tested for rationality the agency’s decision not to employ Coleman, blind and educated as a lawyer, as a research analyst. As we presume that rationality in an employment decision may preserve it against a section 504 attack, the Tenth Circuit’s decision enlightens this one. The federal agency employed blind lawyers (assisted by readers) in certain positions, but not as research analysts, whose duties were “evidence preparation and data interpretation.” The agency decided against readers for blind research analysts because it “concluded that . . . the duties would be performed by the reader and not by the visually handicapped person.” The court found the agency decision “not arbitrary or capricious,” because the ability to read unassisted was reasonably related to the work of a research analyst:

Undoubtedly, the defendants would also have required an applicant to possess the ability to understand the English language, although that ability was not listed as a specific job requirement. However, that does not mean, and certainly Coleman would not seriously argue, that a person alleging discrimination on the basis of national origin could demand that the agency permit him to prove that he could perform the job with the aid of an interpreter provided by the agency. [595 F.2d at 540.]

In his testimony before the circuit court, Zorick conceded the possibility, in supervising the play of elementary school children and in teaching them, say, baseball, that he would be required to rely on what the children themselves told him about the whereabouts of Johnny, how Mary was swinging the bat, why Alice fumbled the grounder to short. We need not pursue further the parallel between this oral translation of visual images on the playground and the hypothetical reader’s analysis of Coleman’s raw work material; it is enough for section 504 purposes, we think, that a federal court would not likely regard Clay County’s decision concerning Zorick as arbitrary, capricious, or groundlessly discriminatory against the blind.

II

Zorick’s federal claims being unavailing, we turn to his Florida-based claim on which the circuit court found Zorick entitled to trial employment as a physical education teacher, “that he might have the opportunity to demonstrate his ability, though blind, to perform satisfactorily.” In contrast to Zorick’s complex and attenuated federal claims-—abounding with issues concerning the reach of section 504, the capacity of HEW in law and fact, the delicate touch that federalism requires to reconcile national funding policies with local employment responsibilities—Zorick’s Florida claim is directly traceable to the Constitution, which provides in Section 2 of the Declaration of Rights:

No person shall be deprived of any right because of race, religion or physical handicap.

Section 413.08(3), Florida Statutes (1977), supra n. 1, implements this constitutional assurance in terms luminously clear and specific. “It is the policy of this state” that the blind “shall be employed” in the public schools, and no school employer shall refuse employment to the blind “on the basis of the disability alone” unless it is shown that blindness “prevents the satisfactory performance of the work involved.” We think it clear, as did the trial court, that Section 413.08(3) creates a private right of action for its enforcement. Girard Trust Co. v. Tampashores Development Co., 95 Fla. 1010, 117 So. 786 (1928); Florida Constitution, Article I, Section 21.

“Unless it is shown” is the heart of Section 413.08(3). The Legislature might have omitted “unless it is shown” from the bill and still have produced a conventionally understandable law: No employer shall refuse employment to the blind unless blindness prevents satisfactory performance of the work involved. Such a law would presumably be understood as permitting the plausibly rational but untested opinions of public employers, having discretion, to prevail in effortless litigation against opinions of the untested blind. But the Legislature did not omit “unless it is shown”, and we ungrudgingly give those words their natural effect:

“Unless it is shown” inescapably implies legislative recognition of the handicapped’s heritage of presumed incapacity, and a legislative purpose to upset that status quo ante. Those words declare that, in Florida public employment decisions, there shall be no presumption, whether rebuttable or irrebuttable, that the physically handicapped are unable to perform satisfactorily tasks previously reserved for the fully able-bodied. Incapacity due to a physical handicap must be “shown”.

“Unless it is shown” does not refer alone to the quality of proof to be offered by an employer defending litigation under section 413.08(3), following a decision not to employ. The statute does not say the court shall award the applicant a rightful position “unless [incapacity] is shown”; the command is that employment shall not be refused “unless it is shown”. Though the judicial power is clear enough if finally necessary, the statute refers principally to the employer’s decision in the first instance, not to the court’s evaluation of the evidence months or years later.

“Unless it is shown” invokes a verb of vision—an ironic touch, when blindness is the issue. Thus, a public employer exercising discretion in employment decisions affecting the handicapped must take care that the operative incapacity is not his own dearth of knowledge, experience and ingenuity. The incapacity must be “shown” to be that of the applicant, and that may be shown by the employer’s particularized knowledge of the work of the similarly handicapped or, lacking such experience, by testing, interview, or trial employment of a particular applicant. The employer’s decision is still his own, and in court his sound discretion yet reigns; but that discretion must be particularly informed, or “shown”. This requirement is no more than that of rationality which we, borrowing from Judge Bazelon, have applied in varying contexts: when the public employer has faithfully observed constitutional and statutory procedural safeguards, fully explored all relevant facts, opposing views, and possible alternatives, and as a result of that exploration makes an ultimate decision which reflects that exploration, then the decision is made and made well; and the court considering section 413.08(3) will declare the decision rational, and be not concerned with whether it is also correct and wise. See Hill v. State, 358 So.2d 190, 209 (Fla. 1st DCA 1978); State ex rel. The Tallahassee Democrat, Inc. v. Cooksey, 371 So.2d 207, p. 210 (Fla. 1st DCA 1979).

Ill

By the standard of section 413.-08(3), it was not “shown” in the circumstances of the school officials’ decision to refuse Zorick the tendered employment, that Zorick was and is incapable, by reason of his blindness, to perform satisfactorily. The decision to withdraw the employment offer was based, not on any identifiable experience of school administrators in Clay County or elsewhere, not on a test or interview of Zorick or any trial of his abilities, but on ordinary preconceptions of sighted administrators which section 413.08(3) now makes inoperable.

To remedy the deprivation of Zorick’s rights, the circuit court was empowered at least to require a trial employment of sufficient length to dispel the preconceptions which tainted the original decision, replacing them with personalized knowledge of all relevant facts pertaining to Zorick’s capacity or lack of it. On Zorick’s appeal, by ' which he seeks rightful permanent instatement with monetary damages, we affirm because the evidence does not show that he is qualified as a matter of law. On the school officials’ cross-appeal, the circuit court’s judgment will also be affirmed, with jurisdiction retained in the circuit court to grant such other and further relief as may be required.

We note the school officials’ contention that, absent a recommendation of employment by the superintendent to the board, Zorick has no right of employment and therefore no cause of action for the withholding of employment. Where as here the board and superintendent have effectively delegated recommending power to a subordinate, the coordinator of personnel, and that subordinate is shown to have exercised de facto power to employ, the board and superintendent share, for purposes of an action such as this, vicarious responsibility for any unlawful purpose of the subordinate. Columbia County Board of Public Instruction v. Public Employees Relations Commission, 353 So.2d 127 (Fla. 1st DCA 1977); Witgenstein v. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977).

We are without power to order the payment of attorney’s fees, as Zorick urges. See Kittel v. Kittel, 210 So.2d 1, 3 (Fla. 1968); but see Serrano v. Priest, 20 Cal.3d 25, 47, 141 Cal.Rptr. 315, 327, 569 P.2d 1303, 1314 (1977). The case would be different had it come to us for review of administrative action under Section 120.68, Florida Statutes (1977). Section 120.57(l)(b)9. No question was raised here concerning the adequacy of any remedies Zorick may have had under Chapter 120. See Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park Inc., 361 So.2d 695 (Fla.1978); State ex rel. Dept. of Gen. Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977).

AFFIRMED, REMANDED.

ERVIN, J., concurs.

MELVIN, J., dissents.

MELVIN, Judge,

dissents.

I regret that I am unable to agree with the conclusions reached in the majority opinion. I am unable to 'find from a search of this record any evidence that would support a finding that Zorick would be physically able, as an unsighted person, to instruct and supervise the physical education activities of a large group of elementary children on an open playground without the active assistance of another person or persons to advise him as to the manner in which the children were performing. It is obvious that Zorick would be unable to discern by his sense of hearing the reason why a student was missing a baseball or was improperly holding a football or was making an improper approach to the basket in a basketball game. All of that information would, of necessity, have to be relayed to him by some person who is blessed with the sense of sight. Further, the record reveals that the playground referred to is adjacent to a busy highway and this presents the acute question as to the welfare and safety of the children on the playground. It appears without dispute in this record, as I read it, that Zorick would be dependent upon other students or some other instructor to advise him if a student decided to dart away from the playground.

Aside from the fact that Zorick was never employed by the school system of Duval County in the manner provided by law, Section 230.33(7)(d), Florida Statutes (1977), I find nothing among the provisions of Section 413.08(3), Florida Statutes (1977), that would authorize or even permit the type of judicial experiment that is now mandated. I am certain that all concerned indulge in the hope that tragedy will not stalk the playground during the “on-job tryout” program that has now with judicial pen been written into the statutes of this state.

The majority now sets the stage for an unsighted person to require an “on-the-job” opportunity to demonstrate his ability, or lack thereof, to serve as a fireman (presumably another to point the fire hose) or as a vehicular traffic control officer.

More need not be said.

      . Section 413.08(3), Florida Statutes (1977):
      It is the policy of this state that the deaf, blind, visually handicapped, and otherwise physically disabled shall be employed in the service of the state or political subdivisions of the state, in the public schools, and in all other employment supported in whole or in part by public funds, and no employer shall refuse employment to the deaf, blind, the visually handicapped, or otherwise physically disabled on the basis of the disability alone, unless it is shown that the particular disability prevents the satisfactory performance of the work involved.

      . Title 29 U.S.C., Section 794:
      No otherwise qualified handicapped individual in the United States [including persons whose blindness “substantially limits one or more of such person’s major life activities” or “is regarded as having such impairment," Tit. 29 U.S.C. Sec. 706(6)] shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

      . Section 230.33(7)(d) provides that the superintendent shall “[c]onfer with the principals and submit in writing to the school board his nominations of all other persons to be appointed or reappointed as members of the instructional staff of the district school system.” Ultimate authority to employ a teacher rests with the school board. School Board of Leon County v. Goodson, 335 So.2d 308 (Fla. 1st DCA 1976), cert. den. Fla. 346 So.2d 1248.

      . Title 42 U.S.C., Section 1983:
      Every person who, under color of any . . custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . Title 42 U.S.C., Section 1988: . . In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title . ., or title VI of the Civil Rights Act of 1964 [Tit. 42 U.S.C., Sections 2000d et seq.], the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.

        . Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir.1977). The court held that the Philadelphia School District subjected Ms. Gurmankin “to an irrebuttable presumption that her blindness made her incompetent to teach sighted students” by excluding her, on that ground, from the qualifying written examination for teachers.

      .Act of November 6, 1978, Pub.L.No.95-602, Section 120, 92 Stat. 2983, to be codified as 29 U.S.C., Section 794a(a)(2). See 1 U.S.Code Congr. & Admin.News (95th Cong. Second Sess. 1978) at 2983.

      . United States Constitution, Article VI Clause 2, Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947); Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747 (1929). See Cullison, State Courts, State Law, and Concurrent Jurisdiction of Federal Questions, 48 Iowa L.Rev. 230, 238-39 (1963); Wright, Law of Federal Courts (3d ed. 1976) at 193-94.

      . Testa, supra n. 8, 330 U.S. at 394, 67 S.Ct. 810.

      . Douglas, supra n. 8, 279 U.S. at 388, 49 S.Ct. 355.

      . Lloyd v. Regional Transp. Auth., 548 F.2d 1277, 1286 n. 29 (7th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977).

      . Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); Stubbs v. Kline, 463 F.Supp. 110 (W.D.Pa.1978); Drennon v. Philadelphia Gen. Hosp., 428 F.Supp. 809 (E.D.Pa.1977); Santiago v. City of Philadelphia, 435 F.Supp. 136 (E.D.Pa.1977); NAACP v. Wilmington Medical Center, Inc., 453 F.Supp. 280 (D.C.Del.1978); Boxall v. Sequoia Union High School District, 464 F.Supp. 1104 (N.D.Cal.1979).

      . Whitaker v. Board of Higher Educ. of City of N.Y., 461 F.Supp. 99 (E.D.N.Y.1978); Michigan Paralyzed Veterans of America v. Coleman, 451 F.Supp. 7 (E.D.Mich.1977); Doe v. Marshall, 459 F.Supp. 1190 (S.D.Tex.1978).

      . Davis v. Southeastern Community College, 574 F.2d 1158, 1163 n. 9 (4th Cir. 1978) (question reserved because HEW regulations just became effective); Crawford v. Univ. of North Carolina, 440 F.Supp. 1047 (M.D.N.C.1977), (“it cannot be said at this time” that administrative remedy is inadequate); Doe v. New York Univ., 442 F.Supp. 522, 523 (S.D.N.Y.1978), (though skeptical of “the expeditiousness or efficiency” of the administrative remedy, requiring exhaustion, saying: “[I]t is simply too early to find this specific administrative remedy inadequate.”)

      . Section 505(a)(2) of the Rehabilitation Act, to be codified as 29 U.S.C., Section 794a(a)(2), supra n. 7, provides judicial review as in 42 U.S.C., Section 2000d-2:
      Any department or agency action taken pursuant to section 2000d-l . shall be subject to such judicial review as may otherwise be provided by law for similar action taken .

      . Gurmankin, 556 F.2d at 186; see also Davis v. Bucher, 451 F.Supp. 791 (E.D.Pa.1978).

      . Shortly before the trial of this case, Clay County offered Zorick employment as a teacher of music and parttime teacher of wrestling.

      . Kampmeier at 300, denying a preliminary injunction: [P]ublic school officials have a parens patriae interest in protecting the well-being of their students; the defendants, relying on medical opinion, are concerned about the risk of injury to [the] child’s one good eye. In view of the host of noncontact sports which remain open to the plaintiffs, we conclude that the balance of hardships does not tip decidedly in their favor.

      . “ ‘It is no objection to the exercise of [equity] jurisdiction that in the ever-changing phases of social relations a new case is presented and new features of wrong are involved where merely novelty in incident, not in principle, appears. A court of equity may not assume a jurisdiction which is non-existent, but it may amplify remedies or avail itself of new remedies and unprecedented orders to meet an emergency when such are based on sound principles and calculated to afford necessary relief without imposing illegal burdens.’ ” Florida E.C. Ry. Co. v. State, 77 Fla. 571, 580, 82 So. 136, 139 (1919), citing 10 R.C.L. 263.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Patricia ANDREWS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-796.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Rehearing Denied July 13, 1979.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

The appellant and three co-defendants (Mark Sublette, Bruce Dunham and Michael Dias) were charged by indictment with murder in the first degree, robbery, burglary and grand larceny. The larceny count was amended to petty larceny prior to trial. The defendant was arraigned and stood moot; a plea of not guilty was entered by the court. A motion for severance was filed and denied by the court. The defendant was tried in a joint trial with co-defendant Sublette. At the conclusion of the jury trial, the jury returned verdicts of guilty on all charges. The defendant was adjudicated guilty and a life sentence was imposed on the murder conviction with consecutive life sentences imposed on the robbery and burglary convictions.

On this appeal, four points are presented. The first urges error upon the denial of defendant’s motion for severance. The second urges error upon the admission of statements of the defendant by which she confessed to participation in the crimes. The third seeks reversal upon a claimed comment on her right to remain silent when questioned by police officers. The fourth urges error upon the court’s refusal to allow defense counsel to depose a co-defendant who, during the trial, agreed to testify for the State in return for immunity from his testimony and a reduction in the charges against him.

The only point requiring extensive discussion is the first point presented, which urges error in the denial of motion for severance. We hold that this point does not present error where the evidence of the co-defendant was cumulative of other evidence presented by the State and the proof of defendant’s guilt, without the cumulative statement, was overwhelming.

The body of the victim, Louis Broeker, was discovered by his nephew, Joseph Tripp, and his sister, Ella Tripp, at approximately 3:00 a. m. on October 5, 1976, in a bedroom of their residence at 450 Grand Canal Drive in Dade County.

Upon his return home, Tripp observed that the kitchen light was on and also observed several purses belonging to his mother on the floor in a hallway; the purses were open. He conducted a brief search of the house, and then went to the bedroom in which his mother was sleeping. He told his mother that there had been a burglary, and the two of them went to the bedroom in which Broeker slept. Tripp observed that Broeker was not breathing and that his body was cool; he also observed that his ankles were tied. His mother observed a wallet which belonged to Broeker on the floor of the room; money had been removed from the wallet and from her purses. Then when Tripp entered the kitchen of the home, he observed that the cord had been removed from the telephone in the kitchen.

In conducting an autopsy on the body, the examining physician observed bruises to the head, torso and buttocks of the victim. These injuries were stated to be consistent with blunt traumas. Internally, the physician observed several fractured ribs and attendant hemorrhaging, and a bruise to the left lung. He testified that these injuries would have interfered with the ability of the victim to breathe. He also observed ligature markings on the ankles; he stated that the ligatures and the posture of the victim on the bed would have interfered with respiration.

The autopsy also revealed a significant loss of blood. The , initial conclusion was that death was caused by the various blunt traumas. However he also stated that there was a possibility of asphyxiation caused by smothering. He further testified that the blunt injuries would have been sufficient to cause death.

The defendant was observed in the vicinity of the Tripp residence at approximately 3:00 a. m. on October 5, 1976, by William A. Tracy, a neighbor. Tracy testified that he observed a gold Chevrolet parked outside of his home at approximately that time, and that he drove his own automobile alongside the Chevrolet to investigate. The defendant subsequently approached, and informed him that the Chevrolet was her automobile. She thereupon agreed to move the vehicle; Tracy drove away, and observed the Chevrolet drive away from his home. After purchasing a newspaper, Tracy returned to his home and observed that the Chevrolet was gone.

Tracy testified that the defendant appeared to be extremely tired. He inquired whether she “had a problem” and the defendant responded that she was looking for her sister.

Police investigators discovered a hammer and a letter opener outside the house and two knives inside the house, one found on a sofa and another found in the kitchen. A total of one hundred and eleven latent fingerprints were lifted from various surfaces and objects in the house. Latent fingerprints were also lifted from the Chevrolet automobile belonging to the defendant. Latent fingerprints which were lifted from the front door of the residence and from the letter opener recovered by investigators were identified as belonging to the defendant. A latent fingerprint removed from the rear view mirror of the automobile was also identified as belonging to the defendant.

The prosecution introduced several oral statements and a written statement made by the defendant. Prior to trial, the defense filed a motion to suppress these statements on the grounds that the statements were made involuntarily. The motion was heard prior to trial. The defendant testified that on the day of her arrest, she had not slept in forty-eight hours and that during this period of time, she had continually consumed alcoholic beverages. She testified that she had been drinking every night for a period of eighteen months and that she was heavily intoxicated at the time of her arrest.

She was initially interrogated by Detective Steven Jackson. A second interrogation was conducted by Detective Thomas Gergen. The defendant testified that she did not remember being read her rights by Jackson, and that she was “not really aware” of her rights at the time of her arrest.

Approximately six hours after her arrest, Detective Gergen interrogated her. The defendant testified that she requested the presence of an attorney, but that she was not given an opportunity to contact a lawyer. She stated that the actions of the officers “influenced me to make a statement I would not have made.”

After Detective Gergen took a statement ■from her, the defendant was given an opportunity to review her statement. She was requested to initial the pages of the statement; after a period of time, she stopped doing so and requested the presence of an attorney.

She testified at trial that the statement was not entirely true, and that her admission that she had struck the victim was not true. She testified that she had been told of the statements given by codefendants, and that she was questioned repeatedly until she made a similar statement. She stated that she gave the statement because she had been abused, and feared further abuse if she did not make an inculpatory statement.

At trial, Detective Jackson testified that he obtained a statement from the defendant by 3:30 a. m. on the day of her arrest; he first spoke with her at approximately 2:30 a. m. Detective Gergen, who did not testify at the hearing on the motion to suppress, testified that he subsequently took a statement from the defendant during the early morning hours of October 6th, and that he made no promises or threats to the defendant. The defendant made no complaints about the manner in which she had been treated. He did not detect an odor of alcohol about the defendant, and testified that there was nothing unusual about her gait. The motion to suppress was denied; it was renewed at trial and was denied.

Defendant’s Oral and Written Statements

The oral confession given by the defendant was related by Detective Jackson at trial. He stated that he first interviewed the defendant at approximately 2:30 a. m. on October 6th, at which time he advised her of her constitutional rights. The defendant told Detective Jackson that she had gone to the Tripp residence to seek assistance in the company of three other individuals. She knocked on the door, and when no one answered, the other individuals went to the rear of the house, entered through a window, and let her in through the front door. The defendant stated that she obtained food from the kitchen, but “[a]t no time” entered the bedroom.

When the State sought to introduce the written statement of the defendant at trial, defense counsel objected on the grounds that the statement was unsigned and had not been acknowledged by the defendant. The court ruled that the pages which the defendant had initialed would be admitted. The court further ruled that the stenographer who recorded the statement could read her notes of the remaining pages.

The statement reflects admissions by the defendant that she met an individual identified only as “Joe” at a lounge in Sweetwa-ter in 1975. At the time that she met this individual, the defendant was with Bruce Dunham, one of the co-defendants. Joe allowed the defendant and Dunham to stay at his residence for several days.

The defendant stated that on October 4, 1976, she was at an establishment known as the Pine Tree Bar with Dunham when they encountered an individual identified only as “Richard.” With Richard were the other co-defendants, Michael Dias and Mark Sub-lette. The five of them subsequently went to the motel where Richard, Dias, and Sub-lette were living; Richard left, and the four of them then went to the Jamaica Motel where the defendant and Dunham were residing. The defendant stated that the four of them left the motel and went to the Tripp residence in her automobile, arriving at approximately 10:30 p. m.; the defendant intended to inquire of Tripp if she could stay at the house. After she knocked at the door and received no answer, Sublette went to the rear of the house and opened the front door.

The defendant, Dias, and Dunham then entered the house. The defendant stated that she remained in the living room, smoking a cigarette and drinking wine, while Dias went upstairs and Sublette went into the bedroom. The defendant then went into the kitchen and removed a container of cottage cheese from the refrigerator. As she did so, Sublette entered the kitchen and cut the cord from the telephone. Sublette then returned to the bedroom, and the defendant followed. She observed Dias, Dun-ham, and Sublette in the bedroom; Dun-ham was holding the victim on the bed, and Sublette and Dias were binding his feet with the telephone cord and several belts.

The defendant stated that Sublette had obtained a hammer outside of the house, and that she (the defendant) struck the victim with the hammer. Specifically, the defendant stated that she struck the victim three times on the hip. At this point, a pillow which had been on the face of the victim was lifted, and the defendant stated, “My God, this is an old man. Let’s quit it. Let’s get out.” At this point in the statement, the defendant ceased initialling the pages.

In the remaining portion, the defendant stated that the pillow had been on the face of the victim, and that she had thought that this person was “Joe,” the individual who she believed resided at the house. At this point, the four of them left the house. The defendant, who was holding two knives given to her by Sublette, dropped the knives on the ground outside the house. She stated that she vaguely recalled speaking to a man when she went to her automobile, and that she moved the vehicle and the other three individuals then entered the automobile. She stated that “[t]hey took the car and they left me.” Dias was then let out of the automobile, whereupon the others returned to the defendant and all of them drove back to the motel.

The defendant stated that Sublette removed monies from a wallet in the bedroom and from a purse found "in the residence. The monies were divided among the four of them.

On cross-examination, the defendant was asked whether the stenographer had accurately transcribed the statements on those four pages, and the prosecutor thereupon moved the pages into evidence.

Defendant’s Trial Testimony

At trial, the defendant testified that she was not aware that Broeker was in the house when she and the co-defendants entered. She denied having ever struck Broeker. She stated that when she approached the bedroom and saw Broeker being tied, she said, “I don’t want any part of this” and she subsequently fled the residence.

The defendant testified that after she and Dunham met Sublette and Dias at the bar, and subsequently returned to her motel, Dias and Sublette mentioned the possibility of committing a burglary to Dunham. She did not encourage them to do so, and remained silent. Dunham suggested the possibility of burglarizing the Tripp residence.

The others then requested permission to use her automobile, and she refused, finally agreeing on the condition that she accompany them. After Sublette let them in through the front door, she entered, but testified that she had no intention of taking anything. She remained in the living room for a brief period of time, while Dias went upstairs and Dunham and Sublette went into the bedroom. She then went into the bedroom and observed the victim bound. The defendant denied having struck the victim. The defendant admitted having received a portion of the proceeds from the burglary.

Co-Defendant Sublette’s Oral and Written Statements

Oral and written statements of the co-defendant Sublette were also introduced into evidence at their joint trial. These statements further inculpated the defendant.

In his initial oral statement, Sublette stated that the defendant entered the bedroom as Dias was striking Broeker with the hammer. She instructed Dias to strike Broeker harder, and then took the hammer from Dias and struck Broeker three times on the hip. He also stated that it was the defendant who had suggested burglarizing the Tripp residence.

Sublette also told police officers that after they left the residence, the defendant directed them to return, saying that she wanted to remove her fingerprints from the refrigerator. They drove back to the house and the defendant entered alone. The others then drove away, returned, and the defendant then left with them.

Counsel also renewed the motion for severance during the trial on the grounds that counsel for Sublette was relying upon the defense that the defendant had returned to the scene after the initial burglary and murdered Broeker. The motions were denied. Counsel for Sublette argued this theory to the jury in opening statement and in his closing argument to the jury.

Co-Defendant Dias’s Trial Testimony

Trial initially commenced on February 14, 1977. The taking of testimony in the trial-in-chief commenced on February 15, 1977. On Friday, February 18th, the fifth day of trial, the prosecutor announced that the co-defendant Dias might be a prosecution witness:

“I anticipate the possibility that Michael Dias might be called to testify for the State. He will be testifying against Patricia Andrews, if he does testify.”

At the close of proceedings on that day, the prosecutor announced that “Mr. Dias has indicated his willingness to testify.”

When proceedings commenced on Saturday, February 19th, counsel for Dias announced that in exchange for an agreement by the prosecution to reduce the first degree murder charge against Dias to a charge of murder in the second degree, Dias would testify for the prosecution. At that point, counsel for the defendant moved for leave to depose Dias. The court refused to allow counsel to take a deposition of Dias. During his testimony, Dias stated that he was told for the first time on the previous day that his attorney and the prosecutor had been negotiating, and that he had not discussed testifying for the prosecution until that day.

Dias testified that he had met Sublette in Georgia and that they had hitchhiked to Florida. In Daytona Beach, they met an individual identified as “Richard” and drove to Miami with him. Once having arrived in Miami, they went to an establishment know as the Pine Tree Bar where Richard introduced them to the defendant and Dunham.

Dias stated that he, Dunham, Sublette and the defendant went to the Jamaica Motel from the bar. At the motel, Sublette suggested committing a burglary and the defendant suggested a particular house. The four of them discussed the manner in which they would enter the house, and then left the motel, taking knives with them. Dias stated that the defendant said that “she had lived in the house for a time and she indicated there was money inside.”

They drove to the house, which the defendant identified. The defendant approached the front door and rang the bell; after no one answered the door, the four of them discussed attempting to open the door and Sublette attempted to do so. He was unsuccessful. The defendant then suggested that they “go around to the back of the house.” He, Dunham, and Sublette did so, and Sublette and Dunham entered the house through a window.

Dias stated that he remained in the living room while Dunham went upstairs and Sub-lette looked through the bedrooms. He testified that the defendant told Dunham to “look upstairs.” Dunham returned and informed the others that no one was upstairs, and Sublette informed them that there was an individual in the bedroom. At that point, the defendant “said she wanted the man incarcerated.” She then told Sublette to disconnect the phone; he complied by removing the cord from the telephone.

Dias, Dunham and Sublette then entered the bedroom while the defendant remained in the living room. As they went into the bedroom, the defendant again instructed them to “incarcerate the man.” Upon entering the bedroom, Dias handed a pillow to Sublette; Dunham and Sublette held it over the head of the victim. Broeker awoke, and was threatened, whereupon Sublette and Dunham bound him while Dias held the pillow.

The defendant then entered the room and suggested to Dias that he “hit the man with the hammer.” Dias had obtained the hammer outside of the house. Dias struck Broeker once on the head with the hammer; the defendant then took the hammer and struck Broeker “[t]en or more times” on the hips, legs, and lower chest. The pillow was still on the face of the victim at this time.

Subsequently, the pillow was removed from the face and the defendant stated that “that was the wrong man.” They decided to leave and Sublette at that time removed money from a wallet in the room and from a purse which he removed from another bedroom. The- defendant took an apron and “started to brush off prints from the refrigerator;” she then stated, “It’s time to leave.”

I.

Defendant asserts that this case is governed by Bruton v. U. S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which held that admission into evidence at a joint trial of inculpatory statements of a co-defendant who did not testify denied an accused of the right to confront and cross-examine as guarantied by the Sixth Amendment. In order to effectuate the rights upheld in Bruton, the Florida Supreme Court promulgated Florida Rule of Criminal Procedure 3.152(b)(2). This rule provides:

“(2) If a defendant moves for a severance of defendants on the ground that an oral or written statement of a co-defendant makes reference to him but is not admissible against him, the court shall determine whether the State will offer evidence of the statement at the trial. If the State intends to offer the statement in evidence, the court shall order the State to submit its evidence of such statement for consideration by the court and counsel for defendants and if the court determines that such statement is not admissible against the moving defendant, it shall require the State to elect one of the following courses:
“(i) a joint trial at which evidence of the statement will not be admitted;
“(ii) a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of such evidence with deletions will not prejudice the moving defendant; or
“(iii) severance of the moving defendant.”

The right to severance in Florida is not a new one. In Suarez v. State, 95 Fla. 42, 115 So. 519 (1928), the Supreme Court held that the granting or denial of a motion for severance is largely discretionary and the ruling of the trial court thereon will not, in general, be disturbed where no abuse of discretion is shown. In that case, the court found an abuse of discretion, and held:

“While the question is not free from difficulty, we are inclined to the opinion that the court below committed reversible error in denying the motion of the defendants Suarez for a severance in this case. The subsequent developments, in the taking of the testimony, showed that this ruling was not a harmless error.”

In the more recent case of Thomas v. State, 297 So.2d 850 (Fla. 4th DCA 1974), the court held that a “pretrial motion to sever should have been granted. Because the cocaine was found on the floor between the co-defendant’s legs, a conflict between the defendants’ defense was inherent in the case.” In the instant case, Sublette did not testify but both an oral and written statement were introduced into evidence. We are convinced that error does not appear under the Bruton rule as applied by the courts of this state. It appears from the record that if the trial of co-defendant Sub-lette had been severed from the trial of defendant Andrews (the present appellant) and the co-defendant’s statements had not been admitted in the defendant’s trial, there would still have been overwhelming evidence of the defendant’s guilt. The co-defendant’s statements were cumulative to the evidence which was properly admitted. It appears from the defendant’s confession and testimony that there was overwhelming evidence of her participation in the crime. The co-defendant’s statements were insignificant in comparison with, and were cumulative to, the defendant’s confession and her statements on the stand. The case of Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), holds a Bruton violation harmless where properly-admitted evidence of the defendant’s guilt is so overwhelming that without the co-defendant’s statements, the State’s case would not be much less persuasive. We hold that the Schneble case is governing here.

The defendant’s confession is full and complete in itself. The defendant admits she entered the victim’s home without permission, was aware that the victim had been struck in the bedroom, did not call the police, remembers being seen by a neighbor and admits to taking her share of the proceeds of the crime. She admits having committed the burglary, having committed the robbery, and having hit the victim. She testified that the victim had been tied up. She aided and abetted the participants. Even if the others with her were the ones who physically killed the victim, she is equally guilty as a matter of law. See Section 777.011, Florida Statutes (1975). In addition, the liability for first degree murder extends to all co-felons who are present during the perpetration of a robbery or burglary. See Section 782.04(l)(a), Florida Statutes (1975); State v. Jefferson, 347 So.2d 427 (Fla.1977); Adams v. State, 341 So.2d 765 (Fla.1976); and State v. Dixon, 283 So.2d 1 (Fla.1973). Therefore, given the defendant’s version of running out of the house when she saw the victim tied up and not returning, but participating in the criminal activities before and after, she does not have a defense.

We are reinforced in this respect by the decision in Simpson v. Wainwright, 439 F.2d 948 (5th Cir. 1971), where a habeas corpus petitioner alleged a Bruton violation because a co-defendant’s confession was admitted at trial. The court affirmed the lower court’s denial of the habeas corpus relief because the case against Simpson was so overwhelming as to invoke the harmless error rule. We, therefore, hold that no error has been demonstrated under this point.

II.

We also find the defendant’s remaining points unsubstantial. The second point is directed to the admission into evidence of the defendant’s statements confessing to participation in the crimes. It is argued that the trial judge (1) failed to find that the statements were voluntary and (2) should not have allowed into evidence a portion of a statement which had neither been signed nor been acknowledged in court. There was no issue of voluntariness in the trial court. The defendant did contend that she was intoxicated at the time she waived her Miranda rights. The trial judge made a finding of voluntariness which included the statement of the defendant given immediately after she waived her rights. Also, there was no suggestion of coercion or influence on the defendant after the waiver of her rights. We hold that the requirements of McDole v. State, 283 So.2d 553 (Fla.1973), were fully complied with. Cf. the statements of law in Greene v. State, 351 So.2d 1031 (Fla. 4th DCA 1976); and Collins v. Wainwright, 311 So.2d 787 (Fla. 4th DCA 1975).

The defendant initialed the first ten pages of her transcribed statement. These pages were, of course, properly admitted. The remaining four pages were admitted only after the stenographer who had taken the statement read her notes into the record. This admission of the four pages as an oral confession was proper. See Morris v. State, 100 Fla. 850, 130 So. 582, 586 (1930); and Williams v. State, 185 So.2d 718 (Fla. 3d DCA 1966).

The force of the defendant’s argument is greatly reduced by the fact that she testified to the same facts which were included in her confession.

The defendant’s third point concerning the admission of testimony of the exercise of her right to remain silent does not arise from the record. There was no objection on this ground in the trial court to the question and answer now objected to. Furthermore, the defendant did not remain silent and the jury was not misled to believe that she did. Cf. Williams v. State, 353 So.2d 588 (Fla. 3d DCA 1977).

The last point claims error in the denial of a continuance to take the deposition of a tendered state witness. The motion for continuance was based upon surprise because the witness, Diaz (a codefend-ant who was to be tried separately), became available as a State’s witness. No concealment or failure to discover appears from these facts. The trial judge’s decision that a continuance was not necessary in order to afford the defendant a fair trial is supported by the record. The testimony of the witness was cumulative. The decision of the trial judge not to grant a continuance will be reversed only when a clear abuse of discretion is made to appear. See Graham v. State, 143 So.2d 567 (Fla. 3d DCA 1962). No abuse of discretion appears in the ruling of the trial judge. Cf. Miranda v. State, 237 So.2d 228 (Fla. 3d DCA 1970).

Having considered the points presented and finding no prejudicial error, the judgment and sentence are affirmed.

Affirmed.

      . This court’s opinion upon the appeal of Mark Sublette, filed December 12, 1978, is reported at 365 So.2d 775 (Fla. 3d DCA 1978).

      . This statement of facts is excised from the statement of facts furnished by the defendant in order to give the statement the full benefit of a most favorable presentation.


text:
    AMERICAN EMPLOYERS INSURANCE COMPANY, etc., Appellant, v. Kenneth JONES, a minor, by and through his parent and natural guardian Valerie La Torre, Peter J. Raftery, Appellees.
    Nos. 77-1698, 78-1189.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Rehearing Denied July 13, 1979.
    Stephens, Schwartz, Lynn & Cherney, and John Lynn, Miami, for appellants.
    Leesfield & Blackburn and Ira H. Lees-field, Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

Affirmed. Arsenault v. Thomas, 104 So.2d 120 (Fla.3d DCA 1958); Lesperance v. Lesperance, 257 So.2d 66 (Fla.3d DCA 1971); Soler v. Kukula, 297 So.2d 600 (Fla.3d DCA 1974); Sears, Roebuck & Company v. McAfoos, 303 So.2d 336 (Fla.3d DCA 1974); 3 Fla.Jur.2d, Appellate Review, § 294).


author: HENDRY, Judge.

text:
    Robert L. PAYNE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2278.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Rehearing Denied July 13, 1979.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ. .
   HENDRY, Judge.

Payne was charged by information with aggravated assault and unlawful possession of a firearm, and he entered a plea of not guilty to the charges. Trial by jury was had; however, due to inability of the jury to reach a verdict, a mistrial was declared. Thereafter, defendant withdrew his prior plea and entered a plea of guilty to the charges, upon the trial court’s assurance that the sentence would not be greater than one year. The defendant was sentenced to one years imprisonment, but the sentence was suspended and he was placed on three years probation.

Approximately eighteen months later an affidavit alleging violation of the terms of probation was filed against Payne. After hearing was held on the alleged violation, defendant was sentenced to a term of imprisonment of five years in the state penitentiary by the same trial court. The crux of this appeal is that the trial court erred in imposing a sentence of five years on a violation of probation, where there had been an agreed-upon maximum sentence of no greater than one year as part of plea negotiations.

Upon the authority of Segarra v. State, 360 So.2d 79 (Fla.3d DCA 1978), we reverse with directions that defendant be resen-tenced in accordance with the original agreed-upon maximum sentence which was part of the plea negotiations, and defendant should receive credit for time served.

Reversed and remanded with directions.


author: HUBBART, Judge.

text:
    FLORIDA EAST COAST RAILWAY COMPANY, a Florida Corporation, Appellant, v. CITY OF MIAMI, a Municipal Corporation of the State of Florida, Appellee.
    No. 78-655.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Rehearing Denied July 13, 1979.

      Shutts & Bowen and Phillip Newcomm, Miami, for appellant.
    Prates, Floyd, Pearson, Stewart, Richman & Greer and Wm. Snow Frates, Miami, for appellee.
    Before HAVERFIELD, C. J„ and HUB-BART and SCHWARTZ, JJ.
   HUBBART, Judge.

This is an eminent domain proceeding in which the trial court after a full hearing entered an order of taking [incorporating a prior order of necessity] which authorizes the City of Miami to take certain railroad property located within its municipal limits in order to establish a public park. The railroad appeals therefrom and the City of Miami cross-appeals. We have jurisdiction to review this non-final order. Fla.R. App.P. 9.130(a)(S)(C)(ii).

The central issues presented for review by this appeal are: (1) whether a municipality, and in particular the City of Miami, has the eminent domain right to condemn railroad property located within its municipal limits for the purpose of establishing a public park; and (2) whether the railroad may set up as an affirmative defense to resist such condemnation that the subject property is necessary for the successful operation of the railroad, and, if so, whether such defense was established in this case as a matter of law.

We hold that a municipality, and in particular the City of Miami, has the eminent domain right to condemn railroad property located within its municipal limits for the purpose of establishing a public park under Section 166.411(4), Florida Statutes (1977), and Ch. 24708, Laws of Fla. (1947). We further hold that the railroad may not set up as an affirmative defense to resist the above condemnation in a proceeding brought under the above statutes that the subject property is necessary for the successful operation of the railroad. Even if such a defense was available, we hold that such defense was not established in this case as a matter of law. We finally find no merit in the remaining contentions raised by the railroad upon this appeal. We accordingly affirm on the main appeal and reverse on the cross-appeal.

I

This eminent domain action enjoys a rather protracted history of litigation. It involves a parcel of approximately thirty-two acres of land located on Biscayne Bay in downtown Miami, Florida. The subject property belongs to the Florida East Coast Railway Co. and the City of Miami wants to condemn such property to establish a public park. Past unsuccessful efforts by the City of Miami to condemn this property brought in other proceedings which have been subsequently dismissed are set forth at City of Miami v. Florida East Coast Railway Co., 286 So.2d 247 (Fla. 3d DCA 1973); Florida East Coast Railway Co. v. City of Miami, 321 So.2d 545 (Fla.1975); Florida East Coast Railway Co. v. City of Miami, 346 So.2d 621 (Fla. 3d DCA 1977).

In the instant case, the City of Miami filed a new petition in eminent domain seeking to condemn the subject property for public park purposes before the Circuit Court for the Eleventh Judicial Circuit of Florida. Substantially unlike any of the prior proceedings brought and subsequently dismissed in this cause, the petition herein was brought inter alia under the authority of Sections 166.401,166.411(4), Florida Statutes (1977), and Ch. 24708, Laws of Fla. (1947). The Florida East Coast Railway Co. filed an answer setting up six affirmative defenses including the defense of prior public use, namely, that the property sought to be condemned was necessary for the successful operation of the railroad.

The trial court thereafter held an extensive eight day hearing under Section 74.051, Florida Statutes (1977), on the propriety of the taking herein at which testimony and argument of the parties were received. At the conclusion of this hearing, the trial court entered an order of necessity concluding that the City of Miami had the statutory authority to condemn the railroad property to establish a public park, that the City of Miami had shown a necessity for this taking, and that the railroad had failed to establish its affirmative defenses. The trial court also entered an order of taking which incorporated the prior order of necessity as well as a stipulation between the parties as to other remaining issues.

The railroad appeals the order of taking. The City of Miami cross-appeals solely as to the trial court’s ruling in the order of necessity that Ch. 24708, Laws of Fla. (1947), and Section 360.02, Florida Statutes (1977), have no application to this case.

II

We have no difficulty in determining that the City of Miami has the statutory authority to condemn railroad property within its municipal limits upon a proper showing of necessity for the purpose of establishing a public park. The railroad, it should be noted, does not contest the trial court’s finding that a necessity existed for a public park to be established on the subject railroad property.

The trial court concluded in its order of necessity, and we agree, that the City of Miami has the authority to condemn the subject railroad property for public park purposes under Section 166.411(4), Florida Statutes (1977). That statute provides as follows:

“Municipalities are authorized to exercise the power of eminent domain for the following uses or purposes: ... (4) For public parks, squares, and grounds

The above statute means exactly what it says. A municipality may exercise the power of eminent domain for the purpose of establishing a public park. The statute by its terms contains no limitation as to the types of property whereon a public park may be established within the municipality. For that reason the statute is applicable to all property within the municipality including property owned by a railroad.

We are not persuaded by the railroad’s contention that Section 166.411(2), Florida Statutes (1977), of the same statute exclusively limits the purposes for which railroad property can be condemned. This statute by its express terms contains no such limiting language, and, in the absence thereof, we must interpret this section of the statute as expanding, rather than limiting the purposes for which railroad property can be condemned. Any other result would require us to rewrite the statute with the requisite limiting language as urged by the railroad. We are not authorized to amend statutes duly passed by the legislature and are required to enforce them according to their plain terms. Tropical Coach Line, Inc. v. Carter, 121 So.2d 779 (Fla.1960); Winter v. Playa del Sol, Inc., 353 So.2d 598 (Fla. 4th DCA 1977); Art Berman Concrete, Inc. v. Sey Construction Corp., 247 So.2d 791 (Fla. 3d DCA 1971).

Moreover, we agree with the City of Miami on its cross-appeal that Ch. 24708, Laws of Fla. (1947), also authorizes the City of Miami to condemn the subject railroad property for public park purposes. This special act provides as follows:

“Section 1. The City of Miami may enter upon, seize, appropriate and condemn the right-of-way or other lands, including any and all buildings or other structures of any kind or any part of any buildings or structures, of any railroad company, firm or corporation operating within the City of Miami for street, alley or other public purpose, whether such lands be occupied and used by said railroad company or not. Any condemnation action brought by the City of Miami in the exercise of this specific right and power of eminent domain herein granted shall be maintained, and compensation paid, in accordance with the general laws of the State of Florida.
Section 2. The specific power of eminent domain herein granted is an addition to, and an extension of, all powers of eminent domain heretofore granted to the City of Miami.” [Emphasis added]

By its express terms, this act authorizes the City of Miami to condemn railroad property by eminent domain “for street, alley or other public purpose.” In our view, the establishment of a public park constitutes a “public purpose” within the meaning of this act which the City’s power of eminent domain can be exercised to accomplish. Indeed, the railroad makes no contention to the contrary.

Finally, we see nothing in the Municipal Home Rule Powers Act [Ch. 166, Fla.Stat. (1977)] which repeals or supersedes the above special act. Indeed, Section 166.-021(4), Florida Statutes (1977), expressly continues such special acts by providing in pertinent part as follows:

“However, nothing in' this act shall be construed to permit any changes in a special law . . . which affect an area which includes lands within and without a municipality . . . § 166.021(4), Fla.Stat. (1977).

The above statute applies to, and thus continues the special act herein as such special act clearly affects land within a municipality. We decline to rewrite the statute, as urged by the railroad, to restrict it to special acts affecting land lying partially within and partially without a municipality. The statute by its express terms does not so provide.

Ill

We now turn to the issue of whether the railroad may set up as an affirmative defense to resist the condemnation of its property that the subject property is necessary for the successful operation of the railroad. We conclude that in this proceeding such a defense was not available to the railroad. Even if it was, we further conclude that such defense was not established in the trial court as a matter of law.

A

The law is well-settled that property devoted to a public use cannot be taken and appropriated to another or different public use by a condemnor to whom the power of eminent domain has been delegated unless the legislative intent to so take has been manifested in express terms or by necessary implication. This is known as the doctrine of prior public use. Simply stated, the rule denies exercise of the above power of condemnation where the proposed use will destroy an existing public use or prevent a proposed public use unless the authority to do so has been expressly given by the legislature or must necessarily be implied. Florida East Coast Railway Co. v. City of Miami, 321 So.2d 545, 547 (Fla.1975); Georgia Southern and Florida Railway Co. v. State Road Dept., 176 So.2d 111, 112 (Fla. 1st DCA 1965); City of Dania v. Central & Southern Florida Flood Control Dist., 134 So.2d 848, 852 (Fla. 2d DCA 1961); 1 Nichols on Eminent Domain § 2.2, p. 205 (3d ed. 1964).

The doctrine of prior public use stems from the recognition that municipal and many private corporations possess general powers of condemnation delegated by the legislature. If one such body may acquire land used or held for a public purpose by another corporation under a general power of condemnation, the latter would logically be free to re-acquire the same property. Florida East Coast Railway Co. v. City of Miami, 321 So.2d 545, 547-48 (Fla.1975); City of Miami v. Florida East Coast Railway Co., 286 So.2d 247, 251 (Fla. 3d DCA 1973); City of Dania v. Central & Southern Florida Flood Control Dist., 134 So.2d 848, 852 (Fla. 2d DCA 1961). The doctrine, therefore, has particular application when one condemning authority seeks property held by another condemning authority and neither possesses a superior power of condemnation by statute or court decision. See City of Miami v. Florida East Coast Railway Co., 286 So.2d 247, 250 (Fla. 3d DCA 1973).

As applied to property held by a railroad, the doctrine of prior public use precludes the above-stated condemnation thereof if the subject property is devoted to a public use, i. e., if the property is necessary for the successful operation of the railroad. “Necessary” in this context means utilitarian in furtherance of the public use for which a public franchise or certificate of public convenience and necessity has been granted; it does not mean indispensable to the railroad operation. “Successful” in this context means a use correlative with the railroad’s public use, as opposed to a financially successful one. The doctrine is inapplicable, however, if the condemnation in question has been expressly or impliedly authorized by the legislature. Florida East Coast Railway Co. v. City of Miami, 321 So.2d 545, 548-549 (Fla.1975); City of Miami v. Florida East Coast Railway Co., 286 So.2d 247, 251 (Fla. 3d DCA 1973).

B

In the instant case, the eminent domain proceeding was brought inter alia under Ch. 24708, Laws of Fla. (1947) which provides that the City of Miami may acquire by eminent domain:

“. . . the right-of-way or other lands, including any and all buildings or other structures of any kind or any part of any buildings or structures, of any railroad company, firm or corporation operating within the City of Miami for street, alley or other public purpose, whether such lands be occupied and used by said railroad company or not.” [Emphasis added]

It is therefore clear beyond any hope of successful contradiction that this special act expressly authorizes the condemnation of railroad property by the City of Miami within the City’s municipal limits regardless of whether the railroad is using or occupying the property. Under the law, the defense that the subject property was necessary for the successful operation of the railroad was, therefore, not available as a defense to the taking herein. The legislature has expressly authorized the condemnation sought in this case.

C

The eminent domain proceeding herein was also brought under Sections 166.401, 166.411(4), Florida Statutes (1977), which authorizes a municipality to condemn railroad property within its municipal limits for the purpose of establishing a public park. Although Section 360.02, Florida Statutes (1977), gives a railroad eminent domain authority to condemn and hold property for certain stated public uses, a recent amendment to that statute provides that such authority “shall be subordinate to the right of the governmental entity wherein the property is located to condemn said property through the exercise of its powers of eminent domain for a public purpose.” We agree with the City of Miami on its cross-appeal that Section 360.02, Florida Statutes (1977), is applicable to this case as it clearly subordinates the railroad’s eminent domain authority to that of a municipality as to property located within the municipality when such statute is read in pari materia with Sections 166.401, 166.-411(4), Florida Statutes (1977).

The significance to this case of the City of Miami’s superior power of eminent domain over that of the railroad is that such superior condemnation power eliminates the rationale for the prior public use doctrine. Upon condemnation of the railroad’s property by the City of Miami, the railroad herein would lack the eminent domain authority to re-acquire the same property from the City. It was to avoid just such a conflict that the doctrine of prior public use was developed. As no such conflict now exists in this case, the prior public use doctrine is inapplicable as a defense to the taking herein.

It is, therefore, our view that the legislature through Sections 166.401, 166.411(4), 360.02, Florida Statutes (1977), has authorized a municipality by necessary implication to condemn railroad property located within the municipality to establish a public park without regard to whether the railroad is using or occupying the property. Indeed, our review of the legislative history behind the passage of the above amendment to Section 360.02, Florida Statutes (1977), supports the view that not only was the above amendment passed to achieve that result, but that it was passed to achieve that result in this litigation which, in fact, antedates the passage of such amendment. We are not persuaded by the railroad’s arguments to the contrary.

D

We recognize that both the Supreme Court and this court in prior decisions in this cause have held that in those proceedings the railroad could set up as an affirmative defense to resist the taking of its property that the subject property was necessary for the successful operation of the railroad. Florida East Coast Railway Co. v. City of Miami, 321 So.2d 545 (Fla.1975); City of Miami v. Florida East Coast Railway Co., 286 So.2d 247 (Fla. 3d DCA 1973). Those proceedings, however, were not brought, as here, under Ch. 24708, Laws of Fla. (1947), or Sections 166.401, 166.-411(4), Florida Statutes (1977), and were subsequently dismissed. See Florida East Coast Railway Co. v. City of Miami, 346 So.2d 621, 622 (Fla. 3d DCA 1977). Thereafter, a new and different petition in eminent domain was filed herein based inter alia on the above statutes. As such, these decisions cannot be considered the law of the case in the proceeding now before the court.

Even in the prior proceeding which is no longer viable, the Florida Supreme Court expressly left open and declined to determine the question of whether the prior public use doctrine was rendered moot and inapplicable by the amendment to Section 360.02, Florida Statutes (1977), as above discussed, which was passed after our first decision, but prior to the Supreme Court’s decision in this cause. Florida East Coast Railway Co. v. City of Miami, 321 So.2d 545, 549-50 (Fla.1975). Had that proceeding still been pending, then, our view of the above amendment would still have the result of eliminating the prior public use doctrine in this case — a result permitted, although not endorsed by the Supreme Court’s decision.

E

Out of a commendable abundance of caution, however, the trial court heard extensive testimony from the railroad and the City on the merits of the affirmative defense as to whether the property sought to be condemned was necessary for the successful operation of the railroad. This testimony is complex, necessarily in conflict and susceptible of differing factual inferences. The trial court concluded after hearing such extensive testimony that the railroad had not sustained its burden of proving that the subject property was necessary for the successful operation of the railroad. Our review of the record convinces us that there was substantial competent evidence to support this finding. We reject the railroad’s contention that this affirmative defense was established as a matter of law. Delgado v. Strong, 360 So.2d 73 (Fla.1978); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972).

IV

We have carefully considered the remaining contentions of the railroad made on this appeal together with a painstaking review of the record and applicable law. We find no merit in any of the contentions raised sufficient to upset the order under review. Egidi Industrial Park Corp. v. Wide Open Spaces, Inc., 335 So.2d 870 (Fla. 3d DCA 1976); Federated Department Stores, Inc. v. Planes, 305 So.2d 248 (Fla. 3d DCA 1974).

The order appealed from is affirmed except as to paragraph nine of the order of necessity. Such paragraph is modified to provide that Ch. 24708, Laws of Fla. (1947), and Section 360.02, Florida Statutes (1977) are applicable to this case in the manner as outlined in this opinion.

Affirmed as modified.

      . The eminent domain proceedings brought in City of Miami v. Florida East Coast Railway Co., 286 So.2d 247 (Fla. 3d DCA 1973), and Florida East Coast Railway Co. v. City of Miami, 321 So.2d 545 (Fla.1975), where in no way based on these statutes. The eminent domain proceeding brought in Florida East Coast Railway Co. v. City of Miami, 346 So.2d 621 (Fla. 3d DCA 1977), was based in part on Ch. 24708, Laws of Fla. (1947), and § 166.401, Fla.Stat. (1977), but not on § 166.411(4), Fla.Stat. (1977).

      . It should be noted, however, that § 166.401, Fla.Stat. (1977), precludes a municipality from condemning state or federal property.

      . “Municipalities are authorized to exercise the power of eminent domain for the following uses or purposes: * * * (2) Over railroads, traction and street car' lines, telephone and telegraph lines, all public and private streets and highways, drainage districts, bridge districts, school districts, or any other public or private lands whatsoever necessary to enable the accomplishment of purposes listed in s. 180.06

      . Municipal and private corporations are examples of condemnors to whom the power of eminent domain may be delegated by statute. The federal government and the states, on the other hand, exercise direct, not delegated eminent domain authority, and, accordingly, the doctrine of prior public use does not generally apply to them. 1 Nichols on Eminent Domain § 2.2 (3d ed. 1964).