text:
    William R. WATERS, Jr., alias v. STATE.
    4 Div. 578.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.
    As Corrected On Denial of Rehearing May 30, 1978.

      William H. Mills, of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., Montgomery, for the State, appellee.
   BOOKOUT, Judge.

Buying, receiving, or concealing stolen property; sentence: five years imprisonment.

During the night of April 24, 1975, several items were stolen from Herbert M. Luck-field d/b/a Coach and Carriage Antique Gallery in Ozark, Alabama. Among the items stolen were two antique Edison phonographs, one of which is the stolen property involved in this case. Several of the stolen items, including one of the Edison phonographs, were discovered in an apartment and a warehouse rented directly or indirectly by appellant. These items were stored in the Dothan Civic Center warehouse where they were later viewed and identified by Mr. Luckfield as being articles stolen during the burglary of his store on April 25.

Michael Crane, a prosecution witness, testified he purchased an antique Edison phonograph from appellant at appellant’s residence in Colony Square Apartments sometime in August 1976. After learning of appellant’s arrest in relation to stolen property, Crane became concerned that the phonograph he purchased from appellant may have been stolen. As a result, Crane turned the phonograph over to Detective Locke of the Dothan Police Department on October 25, 1976. Crane testified the phonograph was in good condition and had a small plate inscribed with numbers attached to it.

The phonograph which the Dothan police received from Crane was tagged and stored in the evidence room at the Dothan police station. Officer Grady Mixon of the Ozark Police Department was contacted by the Dothan police and requested to deliver this phonograph to Mr. Luckfield, which both Mixon and Luckfield testified Officer Mix-on in fact did deliver. Luckfield testified this was “the other phonograph that was missing.” He stated when he recéived it from Officer Mixon, the phonograph did not have a serial number plate; the plate had been pried off, damaging the machine in the process to the extent of rendering it inoperable. The police had previously returned to Mr. Luckfield the other antique phonograph which he had identified at the Dothan Civic Center warehouse.

Neither phonograph was produced at trial. Luckfield testified that the Crane phonograph was then in California being repaired.

Appellant contends there is some confusion as to whether the phonographs referred to above were in fact one and the same. Appellant suggests that even as many as four different phonographs were involved in the same burglary. Much of appellant’s argument is grounded on this contention.

I.

Appellant’s first point of error alleges the State failed to present evidence sufficient to establish the corpus delicti. The elements the State is required to prove in a case of buying, receiving, or concealing stolen goods are that the goods in question have been feloniously taken away by someone, that the defendant bought, received, concealed, or aided in concealing the goods, knowing that they were stolen, and without an intent to restore them to the owner. Scott v. State, 55 Ala.App. 318, 314 So.2d 921 (1975); Title 14, § 338, Code of Ala. 1940.

A.

The first element listed above was clearly proven at trial. Mr. Luckfield testified that on the morning of April 25, 1975, he discovered a door and a portion of the roof of his business had been torn open after the building had been locked on the night of April 24, 1975. The walls in the front of the store were bare and many large items were missing. Included in his inventory of the missing items were “one Edison phonograph” and one “black top Edison phonograph,” also described as “[t]he other phonograph that was missing.” Both phonographs were taken at the same time. He testified additionally he had not given anyone permission to take the property described above. Under the indictment, proof of the corpus delicti did not depend upon who stole these unique antiques. Proof that they were stolen by someone was all that was required, and there was ample evidence for that purpose. Wood v. State, 18 Ala.App. 654, 94 So. 256 (1922); Scott, supra.

B.

The State sought to prove the second element listed above by a showing of several factors. Scienter, a necessary element for sustaining a conviction of receiving stolen property, may be inferred by the jury from the facts and circumstances surrounding the whole transaction. Vines v. State, 57 Ala.App. 117, 326 So.2d 307 (1975). The State relied partially on a showing of possession of the recently stolen property by appellant to infer scienter. The requisite scienter for this crime may be inferred from possession of recently stolen goods. Rhone v. State, 53 Ala.App. 338, 299 So.2d 781 (1974). While the possession of recently stolen property does not raise a presumption as a matter of law as to the possessor’s guilt, it does raise a presumption as a matter of fact to be passed upon by the jury. Milligan v. State, 45 Ala.App. 112, 226 So.2d 172 (1969).

The term “recently stolen,” by its very nature, is relative in concept — both as to the passage of time and the type of property involved. It is determined upon the facts of each case and, depending upon the particular circumstances, may vary from a few days to many months. Haynes v. State, Ala.Cr.App., 335 So.2d 203 (1976). The remoteness has regard additionally to the particular factors and considerations surrounding each case. Hence, it is not feasible to state a fixed rule with reference to the element of time lapse. Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396 (1948). Remoteness of time affects weight rather than admissibility. Yet, as Smitherman points out, evidence must not be so remote in point of time as to be totally without causal connection or logical relation to the criminal act involved.

The time lapse of some sixteen months involved in the immediate case, if standing alone, might well fall within the excessive time cautioned against in Smitherman. However, Crane’s evidence of appellant’s actual possession of the stolen phonograph sixteen months after the fact must be considered in light of other relevant evidence. Thus, when considered first with the evidence introduced as to appellant’s actual or constructive possession of other stolen items which were identified by Luckfield as being stolen in the same burglary (some of which were found in an apartment where Waters and his girl friend Lethia Speigner lived) and secondly with his own confession that police “had him cold,” the possession clearly bares a causal connection and logical relation to the Luckfield burglary from which the jury could well infer scienter.

C.

In this same vein, appellant argues that the chain of possession which the State used to prove both his recent possession and the value of the phonograph was fatally incomplete. We do not agree. Crane testified he bought the phonograph from appellant at appellant’s apartment. He further stated he turned that same phonograph over to Officer Locke. Locke testified he received the phonograph from Crane, tagged it, placed it in the evidence room, and called Officer Mixon in Ozark to pick it up. Mix-on testified he personally received the phonograph from Officer Locke and then took it to Ozark where he immediately turned it over to Luckfield. Luckfield testified he received the phonograph from Mixon and that the phonograph had a market value of $350. Each one testified the phonograph was in the same condition when he relinquished custody as when he received custody.

The alleged fatal break in the chain of custody consists of Locke’s failure to testify on the stand that he turned the phonograph over to Mixon. He testified of his intent to do so and of his call to Mixon. Mixon did in fact testify Locke turned the phonograph over to him. Chain of custody evidence must show a reasonable probability that the property involved is one in the same and in the same condition. While the better practice would have been to offer Officer Locke’s testimony in this regard, there was sufficient evidence to establish with a reasonable probability that the phonograph Luckfield received from Mixon was the phonograph Crane bought from appellant. Bell v. State, Ala.Cr.App., 339 So.2d 96 (1976). While there may have been a minor discrepancy in Crane’s and Luckfield’s description of the phonograph as to serial numbers (and it is not clear there was one—see facts set out above), it was for the jury to resolve as a matter of evidentiary fact. McConnell v. State, 48 Ala.App. 523, 266 So.2d 328 (1972).

Appellant argues additionally that evidence of Luckfield’s other identified stolen goods found in appellant’s apartment and in the warehouse rented by Lethia Speigner should not have been allowed. Aside from the fact that appellant’s counsel himself introduced evidence concerning these goods, the goods were all involved in one continuing offense; the evidence tending to identify the goods as having been stolen with the phonograph. It was, therefore, relevant to show what goods were found where, as there was evidence connecting the appellant with actual or constructive possession of the stolen goods at those places. Broadfoot v. State, 26 Ala.App. 369, 160 So. 269 (1935); Leverett v. State, 18 Ala.App. 478, 93 So. 347 (1922).

D.

Appellant’s final contention in this area is that his oral confession was erroneously admitted, primarily because the prosecutor failed to lay a proper predicate before.the jury. The prosecutor laid a proper predicate outside the presence of the jury before the judge, but left out the Miranda, warning element referring to free counsel in laying the predicate before the jury. Defense counsel, however, failed to object to this omission. While appellant’s counsel specifically objected earlier in the trial to admission of “any statement of Billy Waters made out of the hearing of his attorney,” the objection made no reference to laying an improper Miranda predicate before the jury.

Specific grounds of objection waive all grounds not specified. Any earlier objection by appellant certainly did not cover the error insisted on above, upon which no objection was taken. The appellant did not object to the omission of that Miranda element, thus no error was preserved for review by this court. Hargrove v. State, Ala.Cr.App., 344 So.2d 823 (1977), cert. denied, Ala., 344 So.2d 826.

Appellant also contends the oral confession was erroneously admitted because he refused to sign a written waiver form. The record reveals, however, that he did agree to talk with police after having been read his rights and having indicated to police he understood them:

“Q. Did you ever read to him off a Miranda card, or statement?
“A. Read to him off of a police department form, which has the Miranda warning rights, in detail.
“Q. Uh-huh. But he refused to sign?
“A. Yes, sir.
* * * * * *
“Q. Sergeant Locke, did you warn him of the right that he had a right to have counsel present?
“A. Yes, sir.
“Q. Did you warn him of the right that he didn’t have to talk to you, if he didn’t want to? He had the absolute right to remain silent?
“A. Yes, sir.
“Q. Did you tell him, that any time that he started talking, he could stop talking?
“A. Yes, sir.
“Q. Did you tell him that if he couldn’t afford a counsel, one would be appointed to him?
“A. Yes, sir.
“Q. Did you ask him if he understood these rights?
“A. Yes, sir.
“Q. And what did he reply?
“A. He indicated to me that he did. And to Sergeant Lynn and to Sergeant Wachob.
“Q. And then — did he agree to talk to you at that time?
“A. Yes, sir.
“Q. All right. At that time, he told you that he wasn't going to sign anything?
“A. Yes, sir.
“Q. But he would talk to you?
“A. Yes, sir.
* * * * * *
“Q. Now, did he make a statement thereafter?
“A. Yes, sir. We asked him to tell us of his associates, people that might have taken or had property in their possession. And he advised us that names would not do any good; that, unlike him, they had gotten rid of their property. That we had him cold.
“Q. Okay.
“A. We advised him to give us names, dates, and items, and we would try them on the case. At that time, he requested counsel.
“Q. You just questioned him on about three or four occasions during the two and one half days that he was there, is that correct?
“A. Yes, sir.
“Q. And did he ask for a lawyer during any of that time, except the time that you just mentioned a few minutes ago?
“A. To me, no sir.
“Q. And when he did ask for a lawyer, you stopped questioning him, is that correct?
“A. That’s correct.”

We are convinced appellant was appropriately advised of his constitutional rights, including the right to the presence of an attorney at interrogation. He stated he understood those rights, and further agreed to talk with the detectives. He freely answered certain questions. He then demonstrated an intelligent waiver of his rights by selectively refraining from answering other questions without counsel, whereupon the interrogation immediately ceased. Under the facts as they appear in the record, appellant knowingly waived his right to have counsel present and to remain silent. Hodge v. United States, 392 F.2d 552 (5th Cir. 1968). See also: State v. Adams, 76 Wash.2d 650, 458 P.2d 558 (1969); Houston v. State, 56 Ala.App. 295, 321 So.2d 261 (1975).

F.

Appellant finally alleges the confession was erroneously admitted because the corpus delicti was not proven independently before introduction of the confession. Appellant’s argument fails on two grounds.

First, facts were testified to that the burglary was committed. The goods there stolen were described and identified by Luckfield in conjunction with evidence that those same goods were found in appellant’s possession. Circumstantial evidence may afford proper proof of the corpus delicti. McClendon v. State, Ala.Cr.App., 341 So.2d 174 (1976). Where there are uncorroborated facts and circumstances which tend to show the corpus delicti, a voluntary confession may be introduced to satisfy the jury beyond a reasonable doubt as to the existence of the corpus delicti. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969); Coleman v. State, 57 Ala.App. 392, 328 So.2d 642 (1976). We point out further that appellant’s argument is not well taken in that he made no objection on this ground to admitting the confession. In the absence of an objection on this point, there is nothing to be reviewed by this court. Robinson v. State, 45 Ala.App. 74, 224 So.2d 675 (1969).

G.

The third element of the offense, that of receiving the goods without an intent to restore them to the owner, was fully satisfied by Crane’s evidence that the appellant sold the stolen phonograph to him. Hence, all elements of the offense were met, the corpus delicti was satisfactorily proven, and the confession was properly admitted.

II

Appellant argues this case must be reversed because venue was not proven. While it is debatable as to whether or not venue was circumstantially proven through the testimony of Lethia Speigner that appellant’s apartment was her Dothan address, this allegation is still not ground for reversal in the instant case. The issue of venue may not be raised for the first time on appeal. No objection or motion having been made on this ground previously, no error was preserved for this court to review. Hunt v. State, Ala.Cr.App., 331 So.2d 834 (1976).

III

Appellant argues the indictment in this case contained an insufficient description of the stolen property. The property was described as “one antique phonograph.” Appellant did not raise that issue prior to this appeal. There being no proper objection, no demurrer, and no ground in the motion for a new trial raising this point, appellant’s plea of not guilty waived any defect appearing in the indictment. Lucious v. State, 44 Ala.App. 407, 214 So.2d 706 (1968); Miller v. State, 43 Ala.App. 287, 189 So.2d 576, cert. denied, 280 Ala. 715, 189 So.2d 580 (1966), cert. denied, 385 U.S. 1043, 87 S.Ct. 783, 17 L.Ed.2d 687 (1966); Myles v. United States, 170 F.2d 443 (5th Cir. 1948).

IV

Appellant alleges the court below erroneously admitted evidence during the prosecutor’s cross-examination of Lethia Speigner of a prior co-arrest of her and appellant in another crime. The prosecutor was attempting to show bias in favor of appellant on the part of Miss Speigner, and the court allowed the evidence on that basis. The record reveals the following:

“Q. Now, as a matter of fact, you are charged with 11 counts of buying, receiving, and concealing stolen property, along with Mr. Waters, in this county, aren’t you?
“A. Yes, I am.
“Q. And you were charged with burglary with him in Eufaula, weren’t you?
“A. That’s — I’m not charged with anything in Eufaula?
“Q. You are not charged with him in Eufaula?
“A. No.
“Q. You were present with him when he was arrested in Eufaula, though, weren’t you?
“MR. ROBISON: Judge, I object to that.
“MR. SORRELLS: Judge, we are showing bias—
“THE COURT: Yes. I overrule the objection.
“Q. Weren’t you present with him in Eufaula, when he was arrested up there?
“A. Yes, I was.
“Q. Outside of a drug store up there, were you not?
“A. No, I was not.
“Q. Where were you?
“A. I was in a restaurant.
“Q. And where was he when he was arrested?
“A. Where was he?
“Q. Yes?
“A. When I was arrested?
“Q. When he was arrested? Up in Eu-faula. Where did they arrest him up there? You were with him in Eufaula, on that occasion, were you not, Lethia?
“MR. ROBINSON: Objection, Your Hon- or. We don’t see the relevancy of this line of questioning.
“THE COURT: Overruled.
“Q. You were in Eufaula with Billy Waters when—
“A. That’s right.
“Q. Weren’t you arrested at the same time?
“A. Yes, I was.
“Q. And what was that arrest for?
“A. Second degree burglary.
“Q. All right. Of a drug store, was it not?
“A. Yes, sir.
“Q. And this so-called restaurant was right across an alley from the drug store, was it not?
“A. Yes.
“Q. And Mr. Waters was in the alley when he was arrested, wasn’t he?
“A. Yes.”

The favorable bias of a defense witness toward the defendant, or the unfavorable bias of the same towards the State, may be proven by evidence, on cross-examination, of statements, acts, relationships, or charges of crimes that reasonably give rise to an inference of the witness’ bias. See: Tapscott v. State, 18 Ala.App. 67, 88 So. 376 (1921); Woodall v. State, 29 Ala.App. 75, 191 So. 407 (1939). See also: Gamble, McElroy’s Alabama Evidence (3d ed.), § 149.01(9). And although the general bad testimonial character of such a witness is not provable by a showing that he has been arrested for or charged with a crime, the fact of the witness’ arrest may reasonably be considered as inferring bias in the witness. McElroy, The Law of Evidence in Alabama (2d ed.), § 149.01(7); Anno: 20 A.L.R.2d 1440; McAdams v. State, 21 Ala.App. 193, 106 So. 622 (1925), and cases cited therein.

The cases in Alabama recognizing the exception for showing other crimes to prove bias have generally involved the fact situation where the witness had been charged with the same criminal act for which the accused was being tried. Willingham v. State, 27 Ala.App. 363, 172 So. 471 (1937). Though the bias rule has been limited to this type of fact situation by the cases, the limitation seems to have arisen by the repeated appearance of the fact situation itself, rather than from any well-defined policy which limits the rule. Hence, in this case, we are called upon to review the well-recognized wide latitude given the discretion of the trial judge in allowing evidence which might be “considered reasonably as indicating bias in the witness.” The Law of Evidence in Alabama, supra; Smith v. State, 15 Ala.App. 7, 72 So. 593 (1916). “Bias of a witness can always be shown. Self-interest, or other bias of a witness, may be shown, and great latitude is allowed, on cross-examination, to elicit circumstances having a tendency to show bias or interest on the part of the witness such as might influence his testimony.” McAdams, supra. We point out that the trial court’s discretion in this matter is not subject to review unless extreme abuse is shown which resulted in injury to appellant. Smith, supra; Webster v. State, 19 Ala.App. 587, 100 So. 201 (1924), cert. denied, 211 Ala. 316, 100 So. 202 (1924).

Persuasive, though not binding, authority in this matter may be found in the cases of several jurisdictions. Under circumstances very similar to the immediate case, where evidence that the witness and defendant had at one time been arrested for a burglary was allowed, the Oregon Supreme Court in affirming stated, “There is no doubt that the state of feeling and relationship of a witness towards the party for or against whom he testifies may properly be shown, to be weighed with his testimony.” State v. Bacon, 13 Or. 143, 9 P. 393 (1886). Similarly, the Illinois Court in People v. Mason, 28 Ill.2d 396, 192 N.E.2d 835 (1963), said, “. . . [E]ven in jurisdictions where evidence of arrest or indictment is not ordinarily admissible to impeach credibility generally, the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to show that his testimony might be influenced by interest, bias, or a motive to testify falsely. Anno. 20 A.L.R.2d 1421, 1440.” See also: People v. Barr, 51 Ill.2d 50, 280 N.E.2d 708 (1972); State v. Moynihan, 164 Conn. 560, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973). Thus, it is often held that while an arrest alone is not ordinarily admissible to impair the credibility of a witness, the fact that it might have embittered her so as to motivate her testimony in a particular manner may very well be relevant. United States v. Dardi, 330 F.2d 316 (2nd Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964).

The evidence of Lethia Speigner’s and appellant’s arrest in Eufaula was offered only as tending to show' her bias. Appellant could have requested a charge limiting the effect of the evidence to showing bias only, but failed to do so. Stinson v. State, 41 Ala.App. 575, 142 So.2d 897 (1962), cert. stricken, 273 Ala. 479, 142 So.2d 899. We find no prior cases specifically prohibiting such evidence in this factual setting. And, considering the wide latitude allowed the trial court upon rulings on cross-examination, we find no reversible error in the admission of the above testimony. See also: Johnson v. State, 199 Ala. 255, 74 So. 366 (1966); Stephens v. State, 252 Ala. 183, 40 So.2d 90 (1949).

We have examined appellant’s other assignments of error and find them to be without merit. A careful search of the record reflects no error properly reserved which injuriously affected the rights of appellant.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    Ex parte William R. WATERS, Jr.
    77-576.
    Supreme Court of Alabama.
    June 30, 1978.
   JONES, Judge.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Charles PHARRIS v. STATE.
    6 Div. 597.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Arthur Parker of Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of the offense of buying, receiving, or concealing stolen property. Throughout the proceedings in the trial court he was represented by counsel of his choice and at arraignment he pleaded not guilty. When the jury returned its verdict finding appellant guilty as charged in the indictment, and the value of the property fixed at two hundred ($200.00) dollars, the court sentenced him to three years in the penitentiary.

Omitting the formal parts the indictment reads as follows:

“The grand jury of said county charge that, before the finding of this indictment, Charles Pharris, whose name is to the Grand Jury otherwise unknown, did buy, receive, conceal or aid in concealing one .22 caliber rifle of the value of one hundred dollars, and one 32/20 Winchester rifle of the value of one hundred and fifty dollars, the personal property of Loyal E. England, knowing that they were stolen and not having the intent to restore them to the owner, against the peace and dignity of the State of Alabama.”

The case against appellant had its genesis in the filing of an affidavit and securing a search warrant. The affidavit and search warrant are as follows:

“CRIMINAL court OF JEFFERSON COUNTY STATE OF ALABAMA
AFFIDAVIT FOR SEARCH WARRANT
“Before me, Ex-Officio Judge of the Criminal Court of Jefferson County, personally appeared Sgt. W. D. Prier, Jefferson County Sheriff’s Department, Jefferson County, Alabama, who, after being duly sworn, upon his oath deposes and says as follows:
“On November 4, 1976, I talked with Sgt. T. H. Swatek, Jefferson County Sheriff’s Department, and he told me that within the past twenty four hours he has had a conversation with a confidential informant who through fear of involvement or reprisal wishes to remain anonymous and said' confidential informant told Sgt. Swatek the information as follows:
“That on November 3, 1976, in Walton County, DeFuniak Springs, Florida, there was a burglary of a residence in which the following items were taken:
1. Certificates of the value of $3,000.00
2. Bonds of the value of $4,000.00
3. One .22 cal. Remington 30-30 rifle
4. One 410 Bolt action shotgun
5. One .38 cal. revolver
6. One 12 guage pump shotgun
“These items were then transported to Jefferson County, Alabama, where they are now being unlawfully concealed at the residence of Charles Farris, at Route 1 Box 892, Warrior, Jefferson County, Alabama, (located on dirt road running to the left of Bonedry Road, said residence being at the end of Bonedry Road, Jefferson County, Alabama). Said informant has seen these items at the residence of Charles Farris within the past 24 hours and knows them to be stolen.
“Sgt. Swatek also relayed to me that as of 8:45 a.m. November 4, 1976, Charles Farris was inside of this residence and that he, Sgt. Swatek, was at the above described residence for surveillance and to prevent the destruction or removal of evidence. Sgt. Swatek felt it to be imperative that he remain on the scene and for me to obtain a search warrant for this residence.
“Based on the foregoing information I have probable cause to believe and do believe that the above-described items stolen from Walton County, DeFuniak Springs, Florida, are now being unlawfully maintained in the residence of Charles Farris, being located at Route 1 Box 892, Warrior, Jefferson County, Alabama (located on dirt road running to the left of Bonedry Road, said residence being the last house at the end of Bonedry Road, Jefferson County, Alabama).
“Subscribed and sworn to before me this 4th day of November, 1976.
“ /s/ Niles_ Ex-Officio Judge, Criminal Court of Jefferson County
/s/ W. D. Price AFFIANT”
“CRIMINAL COURT OF JEFFERSON COUNTY STATE OF ALABAMA
SEARCH WARRANT
“TO: ANY LAWFUL OFFICER OF SAID COUNTY AND SAID STATE:
“Proof by affidavit having this day been made before me as Ex-Officio Judge of the Criminal Court of Jefferson County that there is probable cause for believing that the following described property stolen from a burglary of a residence in Walton County, DeFuniak Springs, Florida on November 3, 1976, is now being unlawfully maintained in the residence of Charles Farris, said residence being Route 1 Box 892, Warrior, Jefferson County, Alabama, located on dirt road running to the left of Bonedry Road, last house at the end of Bonedry Road, Jefferson County, Alabama,
1. Certificates of the value of $3,000.00
2. Bond of the value of $4,000.00
3. One .22 cal. Remington 30-30 Rifle
4. One 410 bolt action shotgun
5. One .38 cal. revolver
6. One 12 guage pump shotgun
“You are therefor commanded to make, in the daytime, an immediate search of the premises described above, a better description of which is not available, for the above described property, and if you find the same or any part thereof to seize the same and hold it until further order from the Criminal Court of Jefferson County. And you are hereby commanded to make a return of this writ within ten days as required by law.
“Dated this, the 4th day of November, 1976.
/s/ Niles_ EX-OFFICIO JUDGE, CRIMINAL COURT OF JEFFERSON COUNTY
“The affidavit on which this search warrant is based being positive that the articles as described are presently on the premises to be searched, this warrant may be executed at any time of the day or night.
“Dated, this the 4th day of November, 1976.
EX-OFFICIO JUDGE, CRIMINAL COURT OF JEFFERSON COUNTY”

The weapons set out in the indictment were owned by Lowell E. England, a resident of Tarrant City, Alabama. Though the indictment listed the owner as Loyal E. England they belonged to Lowell E. England. On October 29, 1976, Mr. England discovered that his home had been burglarized and he immediately notified the Police Department and when the officers arrived at his home he gave them the following description of the missing weapons:

“The twenty-two was a Mossburg automatic with a scope on it and the Winchester was a 32/20 lever action, old-type saddle gun like the Westerners used.”

About one month from the date of the break-in of Mr. England’s home he recovered these two weapons at the Jefferson County Sheriffs Office. He identified the weapons by means of his name and driver’s license number which he had engraved on the weapons with an electric pencil. The Sheriff’s Department released these weapons to Mr. England after he identified them.

These two rifles were seized by the officer executing the search warrant at the home of appellant. They were found under the bed in appellant’s bedroom. The above described weapons were not set out in the affidavit leading to the issuance of the search warrant, nor were they mentioned in the search warrant.

Appellant made a motion to suppress the State’s evidence which was heard outside the presence and hearing of the jury. At this hearing Thomas A. Swatek testified that he was employed by the Jefferson County Sheriff’s Office. On November 4, 1976, Swatek contacted Sergeant W. D. Prier, the officer who swore to the affidavit, and told him that he had arrested one Larry Reno for burglary, grand larceny, and escape.

From the record:

“I told Sergeant Prier that we had arrested Larry Reno for burglary and grand larceny and escape from State prison and Larry had told us that he had burglarized the house in Ft. Walton and that he had taken the money to the Red Dog Saloon and given the money to Mr. Pharris. He had taken the guns, the night before, to Mr. Pharris’ house out of the burglary at .Ft. Walton.
“Q. You told Sergeant that?
“A. I told him also not to use Reno’s name because Reno was afraid of reprisals if it was found out that he told.
“Q. Is there anything else that you told Sergeant Prier other than what’s contained in the affidavit?
“A. I don’t believe so.”

Sergeant W. D. Prier testified at the voir dire hearing to suppress and stated that on November 4,1976, he received certain information from Officer Swatek concerning appellant. He further testified that all the information he obtained from Officer Swa-tek was put in the affidavit on which the magistrate issues the search warrant. Prier stated that he had no other information and that he did not know the name of the confidential informer.

The return to the search warrant shows many, many guns and other items that were not described in the affidavit or the search warrant. At the conclusion of the hearing on the motion to suppress the Court ruled that the case would be restricted to the two weapons that were listed in the indictment and which were the property of Mr. England, stating, these guns were “sufficiently substantiated by the informant, namely, he saw the items there.”

Back in the presence of the jury Officer Swatek testified that he found the two weapons in the home of the appellant pursuant to a search warrant. After finding the weapons the officer arrested appellant.

On cross-examination Swatek testified:

“Q. Did you know the name L. E. England on these rifles?
“A. No, sir.
“Q. But you arrested him for possession of that rifle?
“A. Right.
“Q. L. E. England, the twenty-two rifle and the 32--20 Winchester rifle?
“A. Right.
“Q. But you don’t know they were stolen? Did you know they were stolen?
“A. One of the City officers
“Q. Did you know they were stolen?
“A. Personally, no, sir.
“Q. So you just arrested him after seeing those two rifles?
“A. Right.”

Officer Swatek testified that a home in Ft. Walton, Florida, was burglarized but the affidavit made before the magistrate recites that a residence in DeFuniak Springs, Florida, was burglarized. The testimony of Officer Swatek is at variance with the affidavit signed by Officer Prier. There was no proof that there was a burglary either in Ft. Walton, Florida or De-Funiak Springs, Florida. All we have in the record before us is hearsay evidence from an informer whose statement to Officer Swatek was never verified.

The question presented to us is the sufficiency of the affidavit for the issuance of the search warrant. The affidavit does not set forth any of the underlying facts and circumstances from which the magistrate could determine that the informant was credible or reliable. The affidavit is conclu-sory in the extreme and did not afford the magistrate any information on which he could conclude there was probable cause to issue the search warrant. The officers could not have been searching for the weapons described in the indictment as they were not even mentioned in the affidavit and the search warrant.

The affidavit does not meet the test laid down in Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Davis v. State, 46 Ala.App. 45, 237 So.2d 635; Haynes v. State, 50 Ala.App. 96, 277 So.2d 372.

As we have noted Officer Swatek testified that the name Lowell E. England inscribed on the two weapons had no significance to him. Nor did he have personal knowledge that these two weapons were stolen. These weapons were taken from a room different from the room where the items listed on the warrant return were found. At the time these two weapons were seized none of the items listed on the return had even been discovered. It cannot be successfully gainsaid that the search was an exploratory one.

In Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, the Court said:

“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. And the Congress in enacting the laws governing the issue and execution of this search warrant was diligent to limit seizures to things particularly described * * V’

The search in this case turned out to be a “general search” condemned by Federal and State Courts alike.

In the light of our holding, we do not deem it necessary to consider other alleged errors in the record.

This case is due to be reversed and remanded.

Reversed and Remanded.

All the Judges concur.


author: HATCHETT, Justice.

text:
    PINELLAS COUNTY PLANNING COUNCIL, Appellant, v. Derwin B. SMITH, II, etc., et al., Appellees.
    No. 50730.
    Supreme Court of Florida.
    Feb. 2, 1978.
    Rehearing Denied May 25, 1978.
    Scott L. Knox, Asst. County Atty., Clear-water, for appellant.
    John T. Allen, Jr., St. Petersburg, and Chester B. McMullen, Jr., Clearwater, for appellees.
    Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for Senator Henry B. Sayler as amicus curiae.
   HATCHETT, Justice.

In this case, we are called upon to determine whether Chapter 73-594, Laws of Florida, which established the Pinellas County Planning Council and authorized it to prepare a comprehensive countywide land use plan, violates Article III, Section 11(a)(1), Florida Constitution, in that it affects the jurisdiction or duties of a class of officers. We decide this question in the negative.

On January 15, 1974, the Board of County Commissioners of Pinellas County adopted a comprehensive land use plan promulgated by the Pinellas County Planning Council pursuant to Chapter 73-594, Laws of Florida. The plan designated the property owned by appellees as an open space recreation area and prohibited any residential, commercial or industrial use of the land. Appellees brought an action seeking to declare this special act violative of Article III, Section 11(a)(1) of the Florida Constitution in that it affects the powers, prerogatives, rights, responsibilities, and obligations of the duly elected Board of County Commissioners. The circuit court ruled in favor of the plaintiffs and found Chapter 73-594, as amended by Chapter 74-584, unconstitutional. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Recognizing the necessity for the “orderly growth, development, and environmental protection of Pinellas County” the Legislature passed Chapter 73-594, which established the Pinellas County Planning Council. At the time Chapter 73-594 was passed, the 24 municipalities in Pinellas County each had power to prepare separate land use plans under Chapter 166, Florida Statutes (1975), and the board of county commissioners had the power to prepare a plan for all unincorporated areas of the county. Section 125.01(l)(g), Florida Statutes (1975). No body existed, however, with authority to develop a comprehensive countywide plan or to coordinate the existing plans of the several municipalities and the board. The Legislature attempted to remedy this problem by establishing the Pinellas County Planning Council.

Appellees contend that Chapter 73-594 is violative of Article III, Section 11(a)(1), Florida Constitution which provides:

SECTION 11. Prohibited Special Laws.—
(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, (emphasis added)

It is their contention that the act is unconstitutional because it usurps powers and duties previously exercised by the Board of County Commissioners, i. e., countywide land use planning. We do not agree.

While Article III, Section 11(a)(1) provides that there shall be no special law of local application pertaining to the jurisdiction or duty of a class of officers, this court has interpreted that section to mean that where the primary or main purpose of a special act is a valid county purpose, and where the effect of the act upon the jurisdiction or duties of county officers is incidental to that main purpose, the act is not in violation of the constitutional provision. Brandon Pianning and Zoning Authority v. Burns, 304 So.2d 121 (Fla.1974). In Kirkland v. Phillips, 106 So.2d 909 (Fla.1958), we upheld a special act creating the Port Authority for Liberty County in the face of an attack that the act unconstitutionally affected the jurisdiction and duties of the Board of County Commissioners. We held that although the act required the board to perform duties which theretofore were not required, the additional duties were merely incidental to the main purpose of the act. Recognizing our historical judicial approval of county agencies created to deal with countywide problems or functions, we stated:

[O]ur statute books are full of authorizing legislation establishing similar authorities for many Florida counties. There are taxing districts, hospital districts, drainage districts and many other similar districts or such agencies of county government that have been created by local acts of the Legislature. The cases sustain the notion that these agencies serve a useful and valid county function. In many instances they have contributed immeasurably to the growth and development of the counties which they serve. We have no difficulty, therefore, in reaching the conclusion that the functions authorized to be performed by the Port Authority for Liberty County were valid and proper county functions. Having arrived at this point, it is perfectly clear that the duties imposed upon the county commissioners by the 1955 act were merely incidental to the main purposes of the act and being such the act will not be considered as violative of Article III, Section 20, of the Florida Constitution. (at 912)

In Wilson v. Hillsborough County Aviation Authority, 138 So.2d 65 (Fla.1962) the court considered a special act creating the Hillsborough Aviation Authority which was given

“. . . exclusive jurisdiction, control, supervision and management over all airports in the County, whether owned by municipalities in said county or the county, except airports owned, controlled and operated by private persons. The Authority shall have the power to let or lease any airport or portion of the same, including the buildings and hangars thereon, and to grant concessions upon such terms and conditions as it shall deem proper.” Chapter 23339, Section 4, Laws of Florida (1945).

Under prior general legislation and under the general “Airport Law of 1945” the municipalities and boards of county commissioners throughout the state had the power to regulate and operate airports within their jurisdiction. Chapter 149, Florida Statutes (1941), (1945). The special act creating the authority contained the following stated purposes:

It is not the purpose and intent of this Act to divest the title of any municipally owned or County owned airports situated in the County, but it is the intent and purpose of this Act to confer authority and jurisdiction over all such airports so as to coordinate the proper functions and operations of the same, for the best interests of said County and City. Chapter 23339, Section 7, Laws of Florida (1945). (emphasis supplied)

The Wilson Court upheld the special act, determining that it had a valid county purpose:

We have heretofore upheld local acts establishing various special improvements districts and county development authorities such as the County Airport Authority here involved. In those instances where we have approved such legislation, we did so on the basis that the county agency served an important and valid public purpose. When an analysis of a statute reveals that an appropriate county purpose will be served by the agency created, we have consistently extended to the legislation our judicial approval.
* * * * * *
Having determined the validity of the broad public purpose served by the appel-lee Authority, it is only necessary to apply the established rule that the incidental involvement of the duties of other county officers would not do violence to that provision of Section 20, Article III, Florida Constitution, which prohibits local laws “regulating the jurisdiction and duties of any class of officers.” Wilson v. Hillsborough Aviation Authority, at 67.

Only when the purpose of a special act is to usurp the rights or powers conferred by general law is the statute unconstitutional. In those cases where a special act has been held unconstitutional it has provided for the complete transfer of power from a state officer to a newly created or designated person or agency. One such case was Brandon Planning and Zoning Authority v. Burns, wherein we stated:

“The basic purposes of the act, sub judice, is to remove from the Board of County Commissioners their zoing (sic) jurisdiction in the ‘Brandon area’ and to place this jurisdiction in the Brandon Planning and Zoning Authority, to give this authority power to enact county ordinances and then obligate the County Commissioners other county officers, boards and departments to comply with and enforce such ordinances, (at 123)

In this case we do not find a transfer of jurisdiction, nor do we find that the Pinellas County Planning Council will “enact ordinances and . . . obligate the County Commissioners, other county officers, boards and departments, to comply with and enforce such ordinances.” The Board of County Commissioners never had the power to adopt a “countywide” land use plan. Article VIII, Section 1(f), Florida Constitution, Chapter 166, Florida Statutes (1973), Section 125.01, Florida Statutes (1973). Furthermore, the planning council, though authorized to develop a countywide plan, is not authorized to implement the plan or initiate changes to it. Any proposed plan of the council must be approved by the Board of County Commissioners. Any modification must be initiated by a local governing unit. The planning council has authority to reject proposed changes or modifications, but only where such changes or modifications would have an “adverse” effect countywide. Finally, no provision of Chapter 73-594 compels the board to approve any plan offered by the council. The discretion left to the commission precludes usurpation. Jackson Lumber Co. v. Walton County, 95 Fla. 632, 116 So. 771 (1928).

For the reasons stated above, we find that Chapter 73-594, Laws of Florida, was designed to serve a valid county purpose and only incidentally affects the jurisdiction and duties of the Board of County Commissioners. Chapter 73-594 is therefore constitutional.

Accordingly, the order of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

It is so ordered.

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

      . The land use plan affecting appellee’s land was adopted January 15, 1974 under Chapter 73-594, prior to the 1974 amendment. Although the trial judge considered the constitutionality of Chapter 73-594 as amended by Chapter 74-584, it is our view that the rights of the parties may be determined by a consideration of Chapter 73-594 alone.
      We note that the effective date of Chapter 73-594, Laws of Florida, as stated in Section 15, was August 1, 1974. However, reference to the year “1974” was clerical error, corrected by the Legislature in Chapter 76-473, Laws of Florida, which reads in pertinent part as follows:
      WHEREAS, the Florida Legislature, in its 1973 Session, enacted chapter 73-594, Laws of Florida, creating the Pinellas County Planning Council; and,
      WHEREAS, due to a clerical or scrivener’s error, the effective date published in said Act was August 1, 1974, instead of August 1, 1973, as intended by the Legislature; and,
      WHEREAS, the Legislature now wishes to correct this error in the effective date in order to conform it to the legislative intent, NOW, THEREFORE,
      Be It Enacted by the Legislature of the State of Florida:
      Section 1. Section 15 of chapter 73-594, Laws of Florida, as amended by chapter 74-584, Laws of Florida, is amended to read: Section 15. Effective date. — This act shall take effect August 1, 1974. 1973.

      Section 2. All actions heretofore taken by Pinellas County Planning Council pursuant to the provisions of chapter 73-594, Laws of Florida, as amended by chapter 74-584, Laws of Florida, between the dates of August 1, 1973 and August 1, 1974, are hereby approved, ratified and confirmed.
      In Section 2, the Legislature specifically ratified all action taken by the Pinellas County Planning Council between August 1, 1973 and August 1, 1974. It was during this time span that the adoption of the Pinellas County Comprehensive Land Use Plan was accomplished, following the procedures set forth in Chapter 73-594.
      The error relating to the effective date is apparent on the face of the legislation. While Section 15 states that the act shall take effect August 1, 1974, Section 7(2) specifically provides:
      [Notwithstanding the usual time for filing budgets for the fiscal year 1973-74, moneys provided under the provisions of this section shall be made available for the entire fiscal year 1973-74 and the months remaining upon the effective date of this act in the fiscal year 1972-73. (emphasis added)
      The act adopted the fiscal year of the board of county commissioners as the fiscal year of the council. The county’s fiscal year for 1972-1973 ended on September 30, 1973. In referring to “the months remaining upon the effective date of this act in the fiscal year 1972-73,” the Legislature must have had in mind the months of August and September, 1973. The clear legislative intent then, as expressed in the body of the act, was that the act would be effective, and the council funded during the months of August and September of 1973. It necessarily follows that the reference to August 1, 1974, in Section 15 was clerical error.
      When an act states a time in the future when it shall take effect and be in force, it has effect only from that date. The rule applies, however, only where a contrary intent is not manifest in the act itself. Where a contrary intention is expressly stated, a statute should take effect in accordance with the purpose and intent of the body which enacts it. In City of Opa-Locka v. Trustees of Plumbing Industry Promotion Fund, 193 So.2d 29 (Fla.3d DCA 1966), it was stated:
      Where, as here, the text of the act reflects the clear legislative intent, then this intent may be effectuated by supplying the words inadvertently omitted and correcting clerical errors, (footnotes omitted) (at 31)
      See also, Armstrong v. City of Edgewater, 157 So.2d 422 (Fla.1963); Beebe v. Richardson, 156 Fla. 559, 23 So.2d 718 (1945) and Haworth v. Chapman, 152 So. 663 (Fla.1934). [The Attorney General reached the same conclusion in an opinion rendered shortly after the passage of Chapter 73-594 in 1973. See AGO 73-250.]

      . Art. III, Sec. 20, Florida Constitution of 1885, is the equivalent of Art. III, Sec. 11(a)(1), in our present Constitution. That provision prohibited the Legislature from passing any special or local law “regulating the jurisdiction and duties of any class of officers .

      . Chapter 73-594, Laws of Florida, Sec. 5(8) provides:
      To adopt plans, codes and regulations for the provision of countywide water, sewerage and solid waste disposal systems. Said plans, codes and regulations shall become effective countywide only upon ratification by the board of county commissioners and by three-fourths (A) of the governing bodies of the municipalities in the county. Upon such ratification, the same shall supersede all similar existing plans, codes or regulations then in effect anywhere in the county. Each such governmental body shall ratify or reject any such proposed plan, code or regulation within ninety (90) days after receipt of same.
      Chapter 73-594, Laws of Florida, Sec. 9(8) provides:
      After the final adoption by the council of any plan, code or regulation, said document shall be filed with each local unit of government in Pinellas County, with the Tampa Bay Regional Planning Council, and with the division of state planning. Once adopted and ratified as provided in section 5(8) and filed and recorded in the office of said clerk of the circuit court, such document shall have all the force and effect of a law, and shall be enforced as provided by law or by extraordinary remedy or injunction. Any comparable plan, code or regulation effective in any unit of local government shall stand repealed.

      . Chapter 73-594, Laws of Florida, Sec. 10 provides:
      Proposed changes by units of local government to a plan, code or regulation filed and recorded; procedure; etc.—
      (1) Whenever a plan, code or regulation adopted by the council is filed and recorded with the clerk of the circuit court of Pinellas County, any unit of local government which proposes a change to said plan, code or regulation shall file such proposed change with the council.

      . Chapter 73-594, Laws of Florida, Set. 10(2) provides:
      The council shall have forty-five days in which to determine whether or not such proposed change by a unit of local government would adversely affect a plan, code or regulation filed and recorded with the clerk of the circuit court in Pinellas County. If the council determines that such a proposal by a unit of local government would adversely affect any plan, code or regulation filed and recorded with said clerk, the council shall detail in writing to such unit of local government the reasons therefor. If the council fails to report to a unit of local government within the time specified, the unit of local government which submitted the proposed change may implement same within its jurisdiction.


text:
    Don TULLIS, Petitioner, v. Shirley D. TULLIS, Respondent.
    No. 51206.
    Supreme Court of Florida.
    April 5, 1978.
    Rehearing Denied July 25, 1978.

      David R. Lewis of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for petitioner.
    Barry L. Zisser of Zisser & Robison, Jacksonville, for respondent.
   HATCHETT, Justice.

We must determine whether or not Article X, Section 4, Florida Constitution (1968) prohibits the partition of homestead property, upon suit brought by another co-tenant owning an undivided interest in that property. The First District Court of Appeal in this case, reported at 342 So.2d 88 (Fla.1st DCA 1977) held that it did not. That decision creates conflict with Hoskin v. Hoskin, 329 So.2d 19 (Fla.3rd DCA 1976) giving this court jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. We hold, with the First District, that our constitutional provisions allow the partition and forced sale of homestead property upon suit by one of the owners of that property, if such partition and forced sale is necessary to protect the beneficial enjoyment of the owners in common to the extent of their interests in the property.

The parties in this case lived during their marriage in a home owned by them as tenants by the entirety. Prior to the dissolution of their marriage the wife moved from the home, but the husband’s minor daughter by a previous marriage continued living in the home with the husband. The final judgment of dissolution made no disposition of the parties’ respective interests in the home, and did not award exclusive possession to either party. The husband continued to live in the home with his daughter, and the wife brought suit for partition of the property, then owned by the parties as tenants in common. Both parties agree that the property is not divisible. The trial court rejected the husband’s claim that the homestead provision in the state constitution prevents the forced sale of this property. The appellate court affirmed the trial court’s ruling, holding that the homestead provision was never intended to preclude forced sale following a suit for partition by an owner in common.

In Hoskin, the parties were granted a dissolution of marriage containing a provision which granted to the wife exclusive possession of the family home until that house was sold by the parties. Soon after the entry of this final judgment, the husband filed a complaint for partition alleging that he was a tenant in common of the residence, and seeking a public sale of the property in order to achieve the partition. The trial court granted the partition action, but the appellate court reversed, stating that the trial court was without power to amend its previously entered judgment. In addition, the court held that the property was a constitutional homestead at the time of the filing of the complaint for partition, and thus was exempt from forced sale. Clearly, Hoskin involved an important factor not present in the instant case. There, the wife was granted exclusive possession of the family home until it could be sold by the parties. In the present case neither party was given exclusive possession of the home. This distinguishing factor could be sufficient for this court to deny review under conflict jurisdiction. However, because of the clear and express holding of the district court in Hoskin, which is contrary to the holding of the district court in this case, we believe it necessary to exercise our discretion and resolve confusion on this legal issue.

The purpose of the homestead exemption provision in our state constitution is to protect the family home from forced sale for the debts of the owner and head of the family. However, this court has never held that the homestead provision precludes a common owner of property from suing for partition and obtaining a forced sale in order to obtain the beneficial enjoyment of her interest in the property. In Donly v. Metropolitan Realty & Investment Co., 71 Fla. 644, 72 So. 178 (1916), this court held that a claim of homestead exemption would not prevent the forced sale of certain property upon suit for partition by one of the owners in common of that property. There, the ownership of homestead property passed from the head of the household upon his death to the widow and children. Although the widow and two minor children lived on the property and claimed homestead exemption, this court denied their claim of exemption from forced sale against a suit for partition by a realty investment company which had purchased an undivided interest in that property from one of the other adult children of the deceased former owner. Our holding in Don-}y, supra, and in the present case appear consistent with the prevailing majority view throughout the rest of the country. See, 140 A.L.R. 1170.

Homestead interests should be protected from forced sale wherever possible, but not at the expense of others owning interests in the property. In this case, both parties have agreed that the property is indivisible, and that forced sale is the only method through which the wife can obtain beneficial enjoyment of her one half undivided interest in the property. Further, the trial court did not grant to the husband in this case exclusive possession of the family home as alimony or child support.

Accordingly, therefore, we approve the First District Court’s decision, and remand for further action on the. partition suit.

It is so ordered.

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

ADKINS, J., concurs in result only.

ENGLAND, J., dissents.

      . Article X, Section 4, Florida Constitution, provides: SECTION 4. Homestead — exemptions.
      (a)There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family:
      (1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family;
      (2) personal property to the value of one ' thousand dollars.
      (b) These exemptions shall inure to the surviving spouse or heirs of the owner.
      (c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be r.o minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

      . The court should make reasonable efforts to preserve the homestead interest if the property is divisible.

      . This court has recently recognized, in Moxley v. Wickes Corp., 356 So.2d 785 (Fla.1978), that property owned as a tenancy by the entireties can acquire homestead status for purposes of exemption from taxation and from forced sale.

      . The Third District has issued a subsequent opinion in Hoskin v. Hoskin, 349 So.2d 755 (Fla.3d DCA 1977) affirming the trial court’s clarification and modification of its previous order concerning the sale of the family home. The trial court had retained jurisdiction on this matter, and ordered the .wife to make every reasonable effort to sell the home. If the home was not sold within six months then the wife’s exclusive possession of the home was terminated. The district court may have recognized the too broad nature of its prior opinion, and held here that the wife’s “[l]ater acquired homestead rights cannot operate to defeat the provisions of the final judgment under which the former wife secured the right of possession.” Hoskin, supra, 349 So.2d at 758.

      . The constitutional homestead provision in effect at that time was substantially similar to our present text.


author: ENGLAND, Justice,

text:
    In re ESTATE of Bernard J. HERSKOWITZ. Marvin J. HERSKOWITZ, etc., Petitioner, v. Judith HERSKOWITZ, Respondent.
    No. 51301.
    Supreme Court of Florida.
    April 5, 1978.
    Rehearing Denied May 25, 1978.
    Paul J. Levine, Bartel, Levine & Shuford, Miami, for petitioner.
    Judith Herskowitz, in pro per.
    OVERTON, C. J., ADKINS, HATCHETT and KARL, JJ., concur.
    ENGLAND, J., dissents with an opinion.
    BOYD, J., dissents.
   ENGLAND, Justice,

dissenting.

This case involves a simple issue of fact— what constitutes “good cause” for a claimant’s failure to commence a lawsuit against an estate within one calendar month after his or her claim has been formally rejected by the executor.

The Third District Court of Appeal has held, on the basis of its review of the facts in evidence in this proceeding, that an executor’s pre-claim negotiations with a claimant were “good cause” for an untimely filing, notwithstanding the trial court’s determination to the contrary. I am satisfied that the district court’s decision conflicts directly with Shaw v. Shaw on the basic proposition “that an appellate court may not substitute its judgment for that of the trial court by re-evaluating the evidence in the cause.” This conflict is apparent from the face of the district court’s opinion, which concedes that “good cause” is a factual question and then evaluates the evidence to reverse the probate court’s determination that the facts do not show good cause within the meaning of the statute.

It is clear, of course, that the legal standard on which the claimant principally relied before the appellate court — that the executor’s informal discussions with her had lulled her into a false sense of security regarding payment of the claim and thereby created “good cause” to excuse the late filing of a lawsuit — is an appropriate one for the relief requested. In re Estate of Sale, 227 So.2d 199 (Fla.1969). It is equally clear, however, that whether a “lulling” has occurred is a factual question as to which probate judges have broad discretion. Unless there is absolutely no factual basis for the probate court’s conclusion, it would require an impermissible factual redetermination by the appellate court to override the exercise of that discretion. There is absolutely no justification on the record in this case to assert that the probate judge found an absence of “good cause” without a reasonable evidentiary foundation for so doing.

The district court’s decision as to what constitutes good cause for obviating the statutory one month filing requirement in this case poses a more disturbing consideration than a mere misapplication of its review role; it presents what I consider to be an unsettling precedent for estate matters generally. As I read the court’s opinion in conjunction with the record in this case, the court has held that pre-claim negotiation discussions between an executor and a claimant with common family ties can constitute a circumstance sufficient to hold open the mandatory filing time of the statute, on the theory that the claimant was lulled into believing the claim would be paid, despite the fact that:

(1) the claimant at all times rejected the preconditions suggested by the executor;

(2) the executor at all times declared an unwillingness to pay the claim as the claimant demanded — that is, unconditionally;

(3) the claimant formally filed an unconditional claim after the parties could not agree to resolve their differences;

(4) after the claim was filed, “the executor did not communicate with [the claimant] at all”;

(5) the executor filed a formal objection to the claim in accordance with the proper statutory procedure; and

(6) the claimant “was personally served with the objection.”

The practical effect of this holding, I believe, is that there is now (at least in the Third District) no time limit for filing suits against an estate, contrary to the letter of the statute and the policy which favors a speedy settlement of estates.

I suspect it will now be an easy matter for any claimant related to the deceased who has engaged in discussions with the executor prior to filing his or her claim (and what non-commercial claimant has not when he or she is not represented by counsel?) to assert at a later date, in the hope of persuading the court, that he or she had been led to believe that the claim would be honored. Such a simple declaration will apparently constitute “good cause” sufficient to alleviate the time bar of the statute in the Third District. The probate courts for Dade and Monroe Counties, I fear, will soon become immersed in subjective inquiries to determine whether the executor or claimant is more credible, whether the parties were dealing at arms length, and whether a host of other factual niceties are present or absent — a process which will surely defeat the certainty which the statute was designed to achieve. In short, I view the application of the “good cause” requirement articulated by the district court in this case as a seriously inappropriate gloss on the probate statute.

I would grant the executor’s request for a writ of certiorari, quash the district court’s decision, and reinstate the trial judge’s determination that good cause did not exist for Judith Herskowitz’ failure to commence her lawsuit against the estate on a timely basis.

      . Section 733.18(2), Florida Statutes (1973), directs that a claimant’s lawsuit must be filed within one month of service of the objection, unless the circuit judge for “good cause” extends the filing time. Essentially the same requirements are now found in Section 733.705(3), Florida Statutes (1977).

      . In re Estate of Herskowitz, 342 So.2d 530 (Fla. 3d DCA 1977).

      . 334 So.2d 13 (Fla.1976).

      . Id. at 15.

      . “We reverse upon a holding that the evidence presented at the hearing upon the motion established good cause for an extension of time to file suit upon the claim.” 342 So.2d at 531.

      . Smoak v. Graham, 167 So.2d 559 (Fla.1964); In re Estate of Goldman, 79 So.2d 846 (Fla.1955); In re Estate of Kemp, 177 So.2d 757 (Fla. 1st DCA 1965); In re Estate of Meigs, 177 So.2d 246 (Fla. 1st DCA 1965).

      . See First Bank and Trust Co. v. Bush, 226 So.2d 438 (Fla. 1st DCA 1969). Not only did the district court improperly reweigh the record evidence of the pre-claim negotiations, it actually decided the “good cause” issue on a ground never presented to the trial court as a justification for the claimant’s tardiness. Claimant’s motion for an extension of time relied wholly on a lack of notice and an absence of service as to the executor’s objection.

      . 342 So.2d at 531.

      . § 733.18(2), Fla.Stat. (1973).

      . Id. Although the claimant still asserts that she never received notice of the objection, the trial court found as a fact that she had, and the district court acceded to that finding. There is no legal or factual basis at this juncture for us to declare otherwise.

      . The very facts on which the district court' relied indicate to me the absence of “good” cause. All negotiations between the executor and the claimant revolved around the executor’s attempt to secure the claimant’s assurance that funds to be taken from the estate would not be used for the claimant’s personal benefit but rather for the support of the decedent’s (and claimant’s) minor children. (Claimant and the decedent were divorced three years before decedent’s death.) Claimant was adamant in insisting that the funds could be used for any purpose she desired, and she refused to agree to any limitation or condition on her use of monies from the estate. The claim she filed was uncompromising on its face and consistent with her demand for unfettered control of the funds. The record here not only shows an absence of legal justification for the failure to act timely under the statute, it indicates to me precisely the opposite of what the claimant asserts. Not only was she never assured that her claim would be paid, she was expressly told it would not be if she asserted it solely for her personal benefit.

      .It is ironic that the decision relied upon by the Third District Court of Appeal for its power to review the probate court’s exercise of discretion found that power abused where the probate court alleviated the statutory time limit for an objection on a showing that, the executor had simply failed to learn from the formal acts of record that the controverted claim had been filed. Ellard v. Godwin, 77 So.2d 617 (Fla.1955).


text:
    STATE of Florida, Petitioner, v. Ricky W. HOLMES et al., Respondents.
    No. 51608.
    Supreme Court of Florida.
    April 27, 1978.
    As Modified On Denial of Rehearing July 13, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief Asst. Public Defender, and Marc R. Goldstein, Asst. Public Defender, West Palm Beach, for respondents.
   HATCHETT, Justice.

We have for review a decision holding that the combined period of incarceration and probation imposed under Florida’s split sentencing statute, Section 948.01(4), Florida Statutes (1975), must be within the maximum period of incarceration allowed by statute for the offense for which sentence is being imposed. Because this decision conflicts with State v. Jones, 327 So.2d 18 (Fla.1976), we have jurisdiction. The decision of the district court is approved.

Respondents, Ricky W. Holmes, Edgar Allen Holmes, and Helen Ann Holmes, were convicted of breaking and entering with intent to commit a misdemeanor and were sentenced under Section 948.01(4), Florida Statutes (1975), to combined terms of imprisonment and probation in excess of the five year period of incarceration permitted by Section 775.082(3)(d), Florida Statutes (1975). Ricky Holmes and Edgar Allen Holmes were each sentenced to three years incarceration, one and one half years of which were suspended, followed by four years probation. Helen Holmes was sentenced to five years incarceration with two years suspended, followed by four years probation. The Fourth District Court affirmed the judgments and convictions but modified the sentences, holding that the combined time spent incarcerated and on probation must not total more than the maximum period of incarceration allowed by statute for the offense.

Section 948.01(4) authorizes the imposition of a sentence popularly known as a “split sentence,” that is, a sentence imposing a specified period of incarceration followed by a specified period of probation. That statute provides as follows:

Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.

The statute is silent as to how long the period of probation may be, separately, or in combination with the period of incarceration. The district court held that both periods combined must be within the maximum period of incarceration allowed by statute for the particular offense charged. That decision is in accord with the decisions of the other district courts on this issue. See Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); Magnin v. State, 334 So.2d 638 (Fla. 2nd DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 2nd DCA 1976); Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977); McNulty v. State, 339 So.2d 1155 (Fla. 1st DCA 1976), and Troiano v. State, 347 So.2d 657 (Fla. 4th DCA 1977).

In State v. Jones, supra, the case cited by petitioner for conflict, this court addressed a related issue: the permissible period of incarceration following revocation of probation imposed as a part of the original sentence. In that case this court held that upon revocation of probation, a trial judge may impose any sentence which he might have originally imposed minus the time spent in jail as part of the same sentence. The court stated:

We read this provision of the statute [Section 948.01(4), Florida Statutes (1973)] to mean that the time spent in jail must be within any maximum jail sentence which could be imposed, (emphasis added) at 25.

But, the court went on to hold:

. we hold (1) the trial court may place a defendant on probation and include, as a condition, incarceration for a specific period of time within the maximum sentence allowed; . . . (emphasis added) at 25.

Petitioner argues that this language means that where a trial judge imposes a split sentence, he may impose the maximum period of incarceration plus a period of probation. Obviously, petitioner argues, the combined periods of probation and incarceration would, under these circumstances, exceed the maximum period of incarceration allowed by statute for the particular offense.

In Jones, the court was called upon to answer a certified question regarding the permissible length of incarceration following a revocation of probation imposed under Section 948.01(4). In answering this certified question, the court also answered the question raised by appellants herein; and it answered that question in a way that confused the law on the issue now presented. That portion of the decision which holds that a trial judge may sentence a defendant to a combined period of incarceration and probation in excess of the maximum period provided by statute for the offense charged is overruled.

In Waits, the court gave the reasoning for holding the combined periods within the statutory maximum in these words:

Until 1974, Fla.Stat. § 948.04 specified that a term of probation could not extend more than two years beyond the maximum permissible sentence. But, Ch. 74-112, effective July 1,1974, eliminated this proviso. We think, therefore, a court is now powerless to extend a period of probation beyond the maximum permissible sentence except as provided in that statute.
The power to place a defendant on probation for a period of time not to exceed the maximum sentence which may be imposed can be inferred, but since July 1,1974, there no longer exists any express statutory basis for allowing a longer period of probation. There is validity to not allowing probation to extend beyond the period of maximum sentences. First, a penal statute must be strictly construed in favor of those against whom it would operate; and second, to infer that a court could extend probation beyond such a maximum permitted punishment would lead to unacceptable results. At 223. (footnotes omitted)

We hold: (1) that a trial judge is authorized by Section 948.01(4) to sentence a defendant to a period of incarceration followed by a period of probation; (2) that the combined periods at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for the offense charged; (3) that if probation is subsequently revoked, a trial judge may impose any sentence which he might have originally imposed minus jail time previously served as a part of the sentence; and that (4) no credit shall be given for time spent on probation.

Accordingly, we approve the decision of the Fourth District Court of Appeal.

It is so ordered.

ADKINS, Acting C. J., and BOYD and SUNDBERG, JJ., concur.

ENGLAND, J., dissents.

      . Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977).

      . Art. V, § 3(b)(3), Fla.Const.

      . Sec. 775.082(3) and Sec. 775.082(3)(d), Fla.Stat. (1975), provide in pertinent part:
      (3) a person who has been convicted of any other designated felony may be punished as follows:
      (d) for a felony of the third degree, by a term of imprisonment not exceeding five years.


author: SUNDBERG, Justice.

text:
    Solomon SCHWARTZ, as Personal Representative of Sara Schwartz, and Solomon Schwartz, Individually, Petitioner, v. AMERICAN HOME ASSURANCE COMPANY, a Foreign Corporation, and Vincent Grande, Respondents.
    No. 49998.
    Supreme Court of Florida.
    May 4, 1978.
    Rehearing Denied July 25, 1978.

      Stuart R. Silver, of Jay Dermer Law Offices, Miami Beach, for petitioner.
    Donald W. Hardeman, Jr., of Corlett, Merritt, Killian & Sikes, and Marc Cooper, of Greene & Cooper, Miami, for respondents.
   SUNDBERG, Justice.

By petition for writ of certiorari, petitioner seeks review of a decision of the District Court of Appeal, Third District, reported at 334 So.2d 268 (Fla. 3d DCA 1976), which is in conflict with our recent opinion in Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977). Both Vining and the instant case present the issue of whether the owner of an automobile who leaves it unlocked with the key inside is liable for the conduct of a thief who steals the car and subsequently injures someone while negligently operating the stolen vehicle. However, unlike the Vining case, where the owner of the car left the key in the ignition in violation of Section 316.097, Florida Statutes (1975), and in an area which had an extremely high incidence of auto theft, the respondent herein left the keys to his automobile in the glove compartment when he parked it in front of a bar which he was frequenting. In Vining, this Court found that whether the owner of the car was liable for the later actions of the criminal depended on whether a reasonable man could foresee the theft of the automobile under the particular circumstances and further foresee the increased danger of injury to the general public should such a theft occur. If reasonable men could differ as to the determination of these questions, then the Vining Court found that the jury was empowered to ultimately resolve these issues. Conversely, in the instant cause, the District Court of Appeal, Third District, affirmed the order of the trial judge granting defendants’ motion for summary judgment on the theory that an intervening criminal act breaks the chain of causation. Consequently, jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

The facts as stated by the District Court of Appeal, Third District, are as follows:

Defendant, Vincent Grande, was the owner of the automobile which struck the plaintiff and his wife, who were pedestrians crossing the street at an intersection with a green traffic signal. American Home Assurance Company was Grande’s liability insurer and a third defendant, one Jimmie Johnson, was the operator of Grande’s vehicle at the time of the accident. It appears that on the evening of the accident, Grande parked his car in front of a bar and left it unattended with the doors unlocked, a package containing beer and cheese on the back seat and an ignition key in the glove box. While Grande was in the bar, Johnson entered the car, found and utilized the key and proceeded to drive for a few blocks when he struck the Schwartzes, injuring the husband and killing the wife.
The complaint alleged negligence on the part of Johnson and liability on the part of Grande and his insurer, American Home Assurance Company, on the basis of negligence as well as vicarious liability as owner of the vehicle. The answer of defendants Grande and American Home Assurance Company denied liability on the theory of intervening cause. The trial court granted the motion of Grande and American Home Assurance Company for summary final judgment, and this appeal ensued. (Footnote omitted)

334 So.2d at 268-269.

The District Court of Appeal, Third District, found that the owner of the automobile was not responsible for damage resulting from negligent operation of the car by a third person because “the principle applied in Florida is that as a general rule, an intervening criminal act breaks the chain of causation. Therefore, the original negligence of [the owner] was not the proximate cause of the damages resulting from the intervening criminal act.” 334 So.2d at 269. In its decision, the court noted that it had previously certified Vining v. Avis Rent-A-Car Systems, Inc., supra, to this Court as a question of great public interest.

In Vining, this Court stated that in “key-in-the-ignition” cases, if the intervening criminal act is foreseeable, the chain of causation is not broken, thereby divesting the owner of responsibility for the subsequent negligence of the criminal. Thus, if reasonable men' might differ, the determination of foreseeability should rest with the jury. Accordingly, the original negligence of the owner of the automobile may be the proximate cause of the damages sustained. Approving the reasoning of a decision from the New Jersey Superior Court which Court determined a similar issue, we held:

In Zinck v. Whela, [120 N.J.Super. 432, 294 A.2d 727, 734 (App.Div.1972)], the New Jersey Superior Court reasoned that the key to duty, negligence and proximate cause when keys are left in an unlocked motor vehicle is the foreseeability to a reasonable man of an unreasonable danger presented to other motorists. If the danger is foreseeable, then
“[A] duty arises toward the members of the public using the highways, its breach is negligence, and the injury is the proximate result of the breach, or so a jury should be permitted to find.”

In the instant case, petitioner’s amended complaint alleged that respondent left his car unlocked and unattended in an area containing numerous lounges which were frequented by many different kinds of people. Furthermore, the petitioner alleged that the owner left food and alcoholic beverages inside his automobile within view of a passerby while leaving the keys in an open glove compartment. In light of these facts alleged by petitioner and in view of our holding in Vining, we conclude there exists a genuine issue of material fact both as to whether a reasonable person would have foreseen the theft of an automobile under the circumstances presented herein and also the resulting danger to the public inuring from such theft. Consequently, respondents’ motion for summary judgment was erroneously granted as respondents were not entitled to judgment as a matter of law.

Accordingly, the decision of the District Court of Appeal, Third District, is quashed, and this cause is remanded to that court for disposition not inconsistent with this opinion.

It is so ordered.

ADKINS, BOYD and HATCHETT, JJ., concur.

OVERTON, C. J., dissents.


author: ENGLAND, Justice.

text:
    J. Ed STRAUGHN et al., Petitioners, v. GAC PROPERTIES, INC., etc., Respondent.
    No. 51714.
    Supreme Court of Florida.
    May 11, 1978.
    Rehearing Denied July 25, 1978.

      Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for petitioners.
    Wofford H. Stidham, Steven D. Merryday and Julian Clarkson of Holland & Knight, Fort Myers, for respondent.
   ENGLAND, Justice.

We granted certiorari to review the decision of the Fourth District Court of Appeal in GAC Properties, Inc. v. Lanier, 345 So.2d 812 (Fla. 4th DCA 1977), on the basis of an asserted conflict with Spooner v. Askew, 345 So.2d 1055 (Fla.1976), and Armstrong v. State ex rel. Beaty, 69 So.2d 319 (Fla.1954). The general proposition of law addressed in all these decisions is whether real property in one county of the state may be valued and assessed for ad valorem tax purposes by reference to the valuation of real property in another county. The narrow question presented in this case is whether a cause of action lies against the Department of Revenue to compel equalization of ad valorem tax valuations where real property situated in one county is assessed on the basis of a higher value than that assigned to allegedly identical property located in another county-

GAC Properties owns a large tract of undeveloped land on both sides of the Osceola-Polk County line. The Polk County tax appraiser valued that portion of the property in his jurisdiction for 1975 at $300 per lot, while the Osceola County appraiser valued the lands in his domain at $560 per lot. GAC Properties sued to reduce the Osceola County tax assessment, charging in Count II of its complaint that the discrepancy violates the “just valuation” requirement of Article VII, Section 4, Florida Constitution, and that the Department of Revenue has the responsibility to correct the imbalance. The trial court dismissed Count II of the complaint at the department’s request, but on an interlocutory appeal the district court reversed that determination and concluded that a cause of action was properly stated against the department.

The Spooner and Armstrong decisions quite clearly state that inter-county assessment uniformity is not required by the Constitution, and that variations even between adjacent counties are not a basis for lowering tax assessments which are neither greater than 100% of fair market value nor unequally or improperly determined in relation to other properties within the same county. These principles flow from the constitutional directive that Florida’s counties each have their own tax appraiser. We recognized in Spooner, of course, that the legislature has in recent years endeavored to equalize real property tax assessments among the counties by developing statewide valuation standards, and by superimposing the department as a monitoring force in an effort to achieve uniformity in procedures and equalization of results. We carefully noted the limits on the department’s authority, however, and observed that in the last analysis the ability of the legislature to harmonize tax assessments throughout the state

“must remain conditioned by the Constitution’s directive that a class of county officers are [sic] assigned the primary responsibility to perform assessment functions. At best the legislative goal can be achieved only incrementally through cooperative efforts of the assessors and the Department, and by the development of procedures which will accommodate the responsibilities of both.”

We decline to hold, merely on the basis of an allegation that different values have been assigned to adjacent properties of like character in different counties, that a taxpayer can claim a violation of the “just valuation” requirement or that the department can be compelled to equalize the values. The trial court properly dismissed that count of the complaint which sought relief from the department.

The decision of the court below is quashed, and the case is remanded for the district court to reinstate the trial court’s order of dismissal.

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

      . Art. V, § 3(b)(3), Fla.Const.

      . Count II of GAC Properties’ complaint does not contend that the assessment in Osceola County exceeds 100% of fair market value. It does assert that the valuation is unequal in relation to other properties in Osceola County, but that challenge to the assessment is properly directed only to the tax appraiser for Osceola County, and not to the department. GAC Properties will have its day in court on that issue under allegations set out in paragraph 10(d) of Count 1 of its complaint. But see Deltona Corp. v. Bailey, 336 So.2d 1163 (Fla.1976), regarding limitations on any claim of intra-county disparities in tax assessments.

      .Art. VIII, § 1(d), Fla.Const.

      . 345 So.2d at 1059-60. In also noting that the relatively new procedures for improving statewide uniformity had not seasoned in 1973 to the point of “flawless harmony” (Id. at 1060), we did not intend to imply that they would ever eradicate all inter-county variations. Infinite variations in the subjects of tax assessment, as well as the nature of the assessment process, preclude any serious prospect of ever achieving an assessment of each parcel of property within the state that is in complete and harmonious uniformity with every other parcel. All possible efforts toward the goal of uniformity should be pursued vigorously, but reasonable efforts short of the goal must always be tolerated.


author: PER CURIAM. ENGLAND, Justice,

text:
    Barbara B. GANTT, Appellant, v. VOLUSIA COUNTY HEALTH FACILITIES AUTHORITY etc., et al., Appellees.
    No. 53776.
    Supreme Court of Florida.
    May 26, 1978.
    Barbara B. Gantt in pro. per.
    Melvin Orfinger, Daytona Beach, for ap-pellee.
    Stephen L. Boyles, Palatka, for Seventh Judicial Circuit.
   ORDER OF DISMISSAL

PER CURIAM.

This cause is before the Court on a motion to dismiss the appeal initiated herein by notice of appeal filed April 3,1978. Due to the necessity to expedite review of the validity of bond proceedings, by order filed April 26, 1978, the Court denied appellant’s motion for extension of time to file a brief and an appendix prescribed by Florida Rules of Appellate Procedure 9.110(i). On May 4, 1978, appellees filed their motion to dismiss asserting (i) the appeal was not timely filed, (ii) the appeal is frivolous, and (iii) the failure to file a brief or an appendix within the time prescribed by Florida Rules of Appellate Procedure 9.110(i).

Upon consideration of the motion to dismiss:

(1) We find said appeal to have been timely filed due to the inclusion of a weekend and a legal holiday in the computation of time.

(2) There is no basis for a decision that the appeal is frivolous or taken merely for delay.

(3) Due to the failure of appellant to file a brief or an appendix within the time prescribed by Florida Rules of Appellate Procedure 9.110(i), there is nothing before this Court which provides us with a basis to review the merits of the appeal.

Consequently, the motion to dismiss for failure to file a brief or an appendix within the time prescribed by Florida Rules of Appellate Procedure 9.110(i) is granted, and the appeal is dismissed.

It is so ordered.

OVERTON, C. J., and SUNDBERG and ALDERMAN, JJ., concur.

ENGLAND, J., concurs with an opinion.

BOYD and HATCHETT, JJ., dissent.

ENGLAND, Justice,

concurring.

Inasmuch as the time for appellant to file a brief and appendix with the Court had expired before appellant requested an extension of time, nothing in the appellate rules tolled appellant’s filing time, and since appellant has still not filed either document as of this date, I agree that the Court should exercise its discretion to dismiss this appeal.

OVERTON, C. J., and ALDERMAN, J., concur.

      . Fla.R.App.P. 9.300(b) and (d)(9).

      . Fla.R.App.P. 9.410.