text:
    Sidney RICHARDSON, Jr. v. STATE.
    6 Div. 605.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.

      G. Daniel Evans, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent on this appeal, but not at the trial level, was indicted for rape. A jury convicted him and fixed his punishment at fifty years imprisonment.

The alleged offense had its origin when appellant, standing in the road, waved the victim to stop. She obeyed under the impulse that he was stopping her because of road construction. He forcibly intruded into the automobile and directed the victim to drive to an isolated spot where the alleged rape occurred.

Appellant first proceeded to perform oral sex on the victim. He next proceeded to insert his penis in her vagina. The details of the rape were especially revolting in view of the fact the victim was several months pregnant at the time of the rape.

I

Appellant contends that the failure of the State to read the indictment to the jury constituted error because neither the jury nor the appellant was informed of the charge against him.

It appears in the record that appellant, with his attorney present, was duly arraigned and informed of the indictment for rape. He entered a plea of not guilty. Issue was thus joined.

Appellant states in his brief:

“ * * * Without this information the jury under the prevailing case law in Alabama is never charged with the case nor is the defendant ever put in jeopardy.”

An issue of former jeopardy and the law applicable thereto is not involved in this appeal. We therefore pretermit discussing applicable law.

Suffice it to say that the district attorney in his opening statement told the jury:

“ * * * This is a rape case which took place back on 10-26-76 * *

He then proceeded to enlighten the jury as to the issues with respect to the nature of the case.

Appellant’s counsel in his opening statement told the jury inter alia that:

“I believe the evidence will show you or prove to you that this young man did not commit this offense. Listen closely as to how he is identified, what is said, listen closely to the experts they say they have who took fingerprints off the outside of the car. Please listen carefully and closely. At this time, Sidney Richardson tells you that he is not guilty. Thank you.”

The record shows that the trial court in its oral charge informed the jury that the indictment was not evidence in the case. We quote:

“ * * * It is nothing more than a formal charge which starts off every case. It is nothing more than a formal charge to which the defendant answers by saying he is not guilty and that sets up the issue that you all decide, namely the guilt or innocence of the defendant.”

We conclude that the jury was sufficiently advised by the attorneys and the court as to the nature of the case and the issues involved. Reading the indictment to the jury was unnecessary under the circumstances here shown. Jones v. State, Ala.Cr. App., 348 So.2d 1116; Odom v. State, Ala. Cr.App., 348 So.2d 277.

II

A second contention is “ * * * that the record is replete with evidence that he (appellant) was incompetent to stand trial for the offense charged. Certainly sufficient evidence existed to present a reasonable doubt to the trial judge either prior to trial or during the process of trial bringing into play the mechanisms of Title 15 Section 426 requiring a jury determination of competence. * * * ” (Parenthesis added.)

In view of the fact that the trial court heard the witnesses, saw the defendant in person when he was present in court, heard his voir dire testimony on the motion, and was in good position to determine his competency to stand trial, Title 15, § 426, Code of Alabama 1940, we are unwilling to say that he abused his discretion. Granberry v. State, 184 Ala. 5, 63 So. 975(1); Burns v. State, 246 Ala. 135, 19 So.2d 450(18); Moore v. State, 52 Ala.App. 179, 290 So.2d 246(3). The discretion of the trial court under Title 15, § 426, Code of Alabama 1940, was addressed to a determination of whether the defendant was entitled to an inquisition before a jury as to his mental status at the time of trial. The motion having been denied, it is evident such determination was adverse to defendant. We are unwilling to disturb the ruling of the court. Granberry, supra; Burns, supra.

It is to be observed that in the absence of authority on the part of the court to make such determination without the aid of a jury, the trial would be open to interruption, suspension, or delay at the election of the appellant or his counsel. We do not think that Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, precludes a preliminary determination by the trial court as to the existence vel non of reasonable grounds to support the motion relating to appellant’s mental competency to stand trial. As we have already noted we will not disturb the court’s denial of the motion.

Ill

A third contention of error is that the court failed to require the State to establish a chain of custody of the known fingerprint before admitting it in evidence.

It appears in the evidence that Deputy Sheriff James A. Howell, a qualified fingerprint and classifying expert, lifted some latent fingerprints from the victim’s automobile in which appellant forcibly intruded and rode to the scene of the rape. These prints were marked Exhibit No. 8 for identification.

It further appears that a known fingerprint card was marked Exhibit No. 9 for identification. Sgt. Couch, a police officer, testifying on voir dire out of the jury’s presence, stated that Exhibit No. 9 was a fingerprint identification card with the fingerprints of appellant on it; that it was made on October 12, 1976, about 11:50 p.m. after appellant was arrested. He stated that he was present along with Sgt. James Earl Smith when the print was taken or made. Witness Couch testified also that the card was in the same condition as it was when he last saw it. He further stated that the card had not been in his possession or under his control after Sgt. Smith took it on October 12, 1976.

Deputy Howell was then placed on the stand and testified that James Earl Smith and Sgt. Couch gave him the card, (Exhibit No. 9) the next day, October 13, 1976, and that it had been kept in his files, under his care, custody and control since then. He also said that it was in the same condition as it was when he got it on October 13.

Deputy Howell, on being shown Exhibit No. 8 (the latent print card showing fingerprints lifted from the automobile) testified that it was in the same condition, or practically the same condition, as it was when he “put that card together on October 12, 1976.” Exhibit No. 8 was admitted in evidence.

The court overruled objection to Exhibit No. 9, based on the break in the chain of custody, and admitted this exhibit in evidence.

We think under the evidence that the court and the jury could both infer from the evidence that Exhibit No. 9 (the known print) was in the same condition as it was when it was made on October 12, 1976, by Sgt. Couch and Sgt. Smith. Chafin v. State, Ala.Cr.App., 333 So.2d 599(10), cert. den. Ala., 333 So.2d 609. Sgt. Couch’s testimony established this condition. The failure to require Sgt. Smith to establish his custodial possession was not prejudicial to appellant. ARAP Rule 45. We are unwilling to reverse on account of this custodial omission.

Besides, we fail to see how Exhibit No. 9 (the known fingerprint card) could be altered, erased or changed without some smudges, erasures or abrasion appearing on the face of the card. The chances the card would not show such a change would be remote. The court observed the card and so did the jury.

IV

The fourth contention of error is that the cumulative effect of numerous improper remarks of the Deputy District Attorney made during his closing argument was prejudicial and is cause to reverse.

We first wish to quote this Court’s observation in Scott v. State, 47 Ala.App. 509, 257 So.2d 369:

“Ordinarily there are three situations in which improper argument may be the basis for reversal. The first of which is an argument which is so grossly improper and highly prejudicial as to be ineradicable by proper ruling of the judge. Anderson v. State, 209 Ala. 36, 95 So. 171. Second, is argument which in its cumulative effect creates an atmosphere of bias and prejudice which no remarks by the trial court could eradicate. Blue v. State, 246 Ala. 73, 19 So.2d 11. It differs from the first type of improper argument in that no single remark would be sufficient justification for reversal. Instead, the cumulative nature of the remarks creates an atmosphere of prejudice which requires reversal. Finally and obviously, is prejudicial argument which the judge fails to rule on properly.”

Thus, under Scott, supra, we must decide if there were:

(1) any improper rulings by the court;

(2) any ineradicable argument, and

(3) any cumulative nature of the remarks creating an unfair atmosphere of prejudice.

We catalogue below (A through N) the argument or remarks to which objections were interposed and the several rulings of the trial court and the exclusions. We also include in each catalogued area our judicial opinion as to each.

A. “MR. GOMANY: Deputy Howell, who is the fingerprint technician, who is used in the courtroom almost daily and had to go to Bessemer today .. .

MR. PURVIS: We object to that type of argument, may it please the Court.

THE COURT: Sustain the objection.”

* * * * % *

It appears that the Deputy District Attorney was trying to bolster Deputy Howell’s expertise by his frequent testimony as a witness and possibly his busy schedule. There is no testimony as to how many times he has testified. The court sustained the objection. This argument was not ineradicable, and since there was no motion to exclude, there was no error. Hipp v. State, 47 Ala.App. 580, 258 So.2d 920(2).

Also, the observation that Howell “ * * * had to go to Bessemer today * * * ” was too incomplete to be prejudicial. Embrey v. State, 283 Ala. 110, 214 So.2d 567(17).

B. “MR. GOMANY: Now is your chance to do something about it.

Mr. Simmons can’t do anything about it.

MR. PURVIS: I object. That’s improper argument.

THE COURT: Overruled.”

9k 5k * * * *

This apparently is a call for law enforcement and a statement that the victim’s husband could not “ * * * do anything about it.”

We consider this statement a call for law enforcement and hence permissible argument. Brown v. State, Ala.Cr.App., 335 So.2d 418(2); Hawes v. State, 48 Ala.App. 565, 266 So.2d 652(9).

It is a basic principle that the State had the duty to enforce the law and not the victim’s husband. It was permissible argument. Jackson v. State, 239 Ala. 38, 193 So. 417(8).

C. “MR. GOMANY: The responsibility is yours.

MR. PURVIS: I object to that last statement, may it please the Court. THE COURT: I’ll sustain it. Disregard it, ladies and gentlemen.”

$ ik * sk * *

This, too, was a call for law enforcement. Brown, supra.

D. “MR. GOMANY: People complain about plea bargaining .

MR. PURVIS: I object to that.

THE COURT: Sustained.”

9k * * * * sk

This, also, was possibly a call for law enforcement. It is too incomplete to be labeled as prejudicial to appellant. Embrey, supra.

E. “MR. GOMANY: You need to send the message out to people like that if they do things like this, you’re gone. We’re gonna hit you with a good sentence.

MR. PURVIS: We object.

THE COURT: Overruled.”

* * * * * *

This is an appeal for law enforcement and was permissible. Brown, supra.

F. “MR. GOMANY: They’re calculating their chances of getting caught. They’re calculating the punishment.

MR. PURVIS: We object.

THE COURT: Overruled.”

******

We consider this a call for law enforcement. Brown, supra.

G. “MR. GOMANY: The State’s case has been completely uncontra-dicted.

MR. PURVIS: We object.

THE COURT: Overruled.”

******

This argument was permissible. It does not violate Title 15, § 305, Code of Alabama 1940, prohibiting comments on appellant’s failure to testify. Littlefield v. State, 36 Ala.App. 507, 63 So.2d 565(12), cert. den., 258 Ala. 532, 63 So.2d 573; Ala. Digest Vol. 6A, 721(5); Swain v. State, 275 Ala. 508, 156 So.2d 368(12), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

H. “MR. GOMANY: Nowhere did I hear him say Sidney Richardson should be found not guilty because he’s innocent.

MR. PURVIS: We object.

THE COURT: Overruled.”

(Emphasis added.)

This argument seems to be a reply to something appellant’s counsel said in his argument to the jury. The underscored words so indicate. The trial court had the opportunity to hear all the arguments and was in position to evaluate the same.

There is no legal standard by which prejudicial remarks by a district attorney can be gauged. Rather, each case must be determined by its own merits. Evans v. State, Ala.Cr.App., 338 So.2d 1033(18). Wide latitude is given to the district attorney in making reply to argument previously made. Evans, supra (19).

In view of the ambiguity in the asserted argument, we will not say it was prejudicial and put the court in error for overruling the objection.

I. “MR. GOMANY: I saw him smoking Kool cigarettes yesterday morning.

MR. PURVIS: We object.

THE COURT: Sustained.

MR. PURVIS: We move for a mistrial.

THE COURT: Overrule the motion. Ladies and gentlemen, disregard that statement made by Mr. Gomany. What he saw has nothing more to do with this case than flying to the moon. It’s what you hear from this stand up here, what you yourself see and hear. What he saw is inadmissible.

MR. PURVIS: We except.”

******

The ruling was favorable to appellant. The court ex mero motu excluded the remarks and instructed the jury not to consider the same.

In view of the ruling and the exclusion we think the court correctly overruled the motion for a mistrial.

J. “MR. GOMANY: That man is a dangerous man. Otherwise the State of Alabama wouldn’t be up here

MR. PURVIS: I object.

THE COURT: Sustained. I instruct the jury to disregard and not pay any attention to otherwise the State of Alabama would not be up here. Proceed.”

******

The court sustained appellant’s objection and ex mero motu excluded the remark. This was sufficient. Additionally, it is a legitimate inference that a rapist is dangerous. The second remark is incomplete, but it was excluded.

K. “MR. GOMANY: It could have been any one of you ladies on the jury or a relative.

MR. PURVIS: I object.

THE COURT: Sustained. Disregard that, ladies and gentlemen.

MR. GOMANY: If you want the streets of the State of Alabama to be safe, now is the time for you to do something about it.

MR. PURVIS: Object.

THE COURT: Overruled.”

The first objection was sustained and the jury instructed to disregard the remark. The ruling and exclusion made the remark harmless. The second comment was an appeal for law enforcement. Brown, supra.

L. “MR. GOMANY: Which means the State of Alabama, you, all of you

MR. PURVIS: Object.

THE COURT: Overruled.”

This remark was an appeal for law enforcement. It was permissible. Brown, supra.

M. “MR. GOMANY: You ladies and gentlemen, the people of Jefferson County, Alabama are also the victims of that rape.

MR. PURVIS: Object.

THE COURT: Sustained.

Disregard that, ladies and gentlemen. You are not the victims in any sense of the word.”

These remarks were incomplete and we fail to see the import. We will not disturb the court’s ruling. Embrey, supra.

The action of this court in instructing the jury to disregard the remarks, supra, was sufficient to remove the adverse impact, if any, on the jury.

It is to be noted that there was no motion for a new trial and no motion for a mistrial alleging the cumulative effect of the arguments was prejudicial to defendant. The only motion for a mistrial was under argument “I”, supra. That motion was not buttressed with any grounds to support it. We pretermit discussing the necessity vel non for a motion properly based on cumulative effect.

Suffice it to say we are not convinced that the judgment should be reversed and the cause remanded because the cumulative effect of the argument allegedly created bias and prejudice in the minds of the jury against appellant.

It is our opinion that the court’s rulings were free of error and that the judgment should be affirmed and it is so ordered.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur, except BOWEN, J., who concurs in result only.


source: Caselaw Access Project

author: KARL, Justice.

license: Public Domain

text:
    Gerald F. RICHMAN, Appellant, v. Robert L. SHEVIN, etc., et al., Appellees.
    No. 51765.
    Supreme Court of Florida.
    Dec. 22, 1977.
    Rehearing Denied Feb. 28, 1978.

      Talbot D’Alemberte of Steel, Hector & Davis, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard A. Hixson, Asst. Atty. Gen., and Stephen Marc Slepin of Slepin & Schwartz, Tallahassee, for appellees.
   KARL, Justice.

This cause is before us on direct appeal to review the final judgment of the Circuit Court in and for Leon County upholding the constitutionality of certain portions of the election law, Sections 106.011(2) and 106.-08(1), Florida Statutes (1975), as they apply to the Dade County Judicial Trust Fund, thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution. Snedeker v. Vernmar, Ltd., 151 So.2d 439 (Fla.1968).

The primary question presented for review in this cause is whether the Dade County Judicial Trust Fund is a “political committee” within the definition of Section 106.011(2), Florida Statutes (1975), and as utilized in Section 106.08, Florida Statutes (1975), and if so, whether Section 106.011(2) is unconstitutionally overbroad.

Because of the relationship of lawyer and judge and the peculiar problems wrought by a judicial candidate seeking campaign financing, the Dade County Bar Association devised the Dade County Judicial Trust Fund in 1972, the declared purpose of which is to receive and distribute voluntary contributions from members of The Florida Bar who pledge not to make any other monetary contribution, either directly or indirectly to any incumbent judge or candidate for judicial office other than the contribution to the fund. These funds are to be distributed to “Fund Qualified” judicial candidates in accordance with the formula set out in the trust agreement. Pursuant to the terms of the trust agreement, the trust is administered by five trustees who act as escrow agents. The method of distribution of funds to candidates is based upon the poll conducted by the Dade County Bar Association. Each contributor to the fund signs a pledge, and to be eligible for contributions through the trust fund, each candidate must sign a pledge that he will not directly or indirectly solicit or accept contributions from members of The Florida Bar and that he will apply all monies received from the fund only toward campaign expenses. The fund has filed campaign treasurer reports with the Secretary of State.

On September 8, 1972, the Attorney General wrote a letter to Judge Nathan, who had written to inquire whether the Bar Association could contribute $1,400 to each candidate, and opined that the maximum allowable contribution by the trust fund to each judicial candidate would be $1,000.

In October, 1974, in response to his inquiry, the Secretary of State wrote Judge Sepe advising him that the Dade County Bar Association could not lawfully make a contribution of $1,800 to him as a candidate for circuit judge since the maximum contribution allowed by Section 106.08(l)(a) or (b), Florida Statutes (1975), is $1,000. _

On August 6, 1975, appellant, plaintiff below, President of the Dade County Bar Association and formerly co-chairman of the trust fund, wrote to the Department of State expressing doubts as to the forms to be filed with the Secretary of State since they did not appear appropriate for this type of organization.

Apparently, a complaint was made to the Florida Elections Commission relative to the Dade County Trust Fund. Appellant voluntarily appeared before the Commission to respond to questions and to produce all documents requested. At the conclusion of the proceedings, the Commission issued a notice of determination on February 14, 1977, finding that probable cause exists to believe that the Dade Judicial Trust Fund has violated Section 106.08, Florida Statutes (1975), by having contributed as a political committee to candidates in excess of the amounts prescribed by Section 106.08, Florida Statutes (1975), notwithstanding warning of the Attorney General.

Subsequently, appellant filed a complaint for declaratory judgment and injunctive relief against the Attorney General, the State Attorney of the Eleventh Judicial Circuit and the Florida Elections Commission. The complaint alleged that the judicial trust fund has a continuing operation essential to its purpose; that the Dade Bar Association has delayed fund raising in order to cooperate with state officials; that the Trust Fund has funds on hand which it is obligated to distribute; that the Dade County Bar Association has an obligation to indemnify the trustees for any reasonable legal expenses incurred in performance of their duties and is thereby exposed to potential liability in excess of current resources; that because of the investigation by the Florida Elections Commission and Notice of Determination, the appellant, plaintiff, is in doubt as to the appropriate action to be taken by the Judicial Trust Fund in relation to contributions to the Fund; that the continuing operation of the Trust Fund placed appellant under continuing threat of investigation and legal action with consequent loss of his rights' of free speech.

The trial judge entered an order May 3, 1977, determining that the essential issues posed are whether the trust fund is comprehended within the definition of “political committee” as delineated by Section 106.-011, Florida Statutes (1975), and, if so, whether said section is unconstitutionally overbroad. As to the question of legitimacy of the state’s Election Commission, the court declined to answer it on the basis that this issue was moot. The trial court concluded that the Dade County Trust Fund is a political committee defined by Section 106.011, Florida Statutes (1975), and is subject to the limitations on campaign contributions imposed by Section 106.08, Florida Statutes (1975). The trial court reasoned:

“While it is obviously true that lawyers occupy an unusual position with respect to judges, this Court is of the opinion that this relationship cannot thereby be classified as unique or singular.
“The Legislature has the undoubted authority to regulate within reasonable bounds the conduct of state elections, including the regulation of campaign contributions. Buckley (Buckley v. Valeo, 424 U.S. 1 [96 S.Ct. 612,] 46 L.Ed.2d 659) essentially articulated two reasons for the propriety in limiting the amount of financial contributions by individuals to potential officeholders: 1. The tendency or possibility to create a quid pro quo relationship and, 2. The creation of an appearance of influence of corruption. It is thus obvious that the question of contributions and the amount thereof is a legitimate concern of the Legislature. The means employed by the Legislature to accomplish the public good in an area of vital concern to the Legislature should be left to that body and Courts should not intrude unless it can be clearly established that the means employed to accomplish that good violate fundamental rights. From a full review and analysis of the question presented, we are unable to discern that the means employed or the limitations imposed in the statutes under consideration are overly broad. It is the opinion of this Court that the Dade County Judicial Trust Fund clearly falls within the definition of political committee as defined by the statute and that such inclusion does not result in over-broadness in the application of the statute.
“It certainly appears to this Court that the plan devised by the Dade County Bar accomplishes the purpose for which it was designed and may, in fact, offer a more complete solution to a complex problem than the solution adopted by the Legislature. However, as alluded to previously herein, it is not for this Court to determine what is best for the people of the State of Florida but only to determine whether the Legislature, in enacting the laws under consideration, did so within the confines of legitimate authority. When considered in the light of all of the factors involved, it is our opinion that the Legislature addressed itself to a question of public interest and did so in a proper and lawful manner.”

Final judgment was entered May 12, 1977, incorporating by reference the May 3, 1977, order and ordering that “the plaintiff’s challenge to the constitutionality of the election laws as the Election Commission would apply them to the Dade County Judicial Trust Fund is not well taken and the Court finds that the challenged statutes are constitutional as applied to the Judicial Trust Fund. . . . ”

We agree entirely with the holding and rationale of the final judgment of the trial court in this matter.

Section 106.011(2), Florida Statutes (1975), provides in pertinent part:

“ ‘Political committee’ means a combination of two or more individuals, or a person other than an individual, the primary or incidental purpose of which is to support or oppose any candidate, issue, or political party and which accepts contributions or makes expenditures during a calendar year in an aggregate amount in excess of five hundred dollars. Organizations which are determined by the Department of State to be committees of continuous existence pursuant to s. 106.04 and political parties regulated by chapter 103 shall not be considered political committees for the purposes of this chapter. . . "
Section 106.08(l)(a) provides:
“(1) No person or political committee shall make contributions to any candidate or political committee in this state, in moneys, material, or supplies or by way of loan, in excess of the following amounts:
“(a) To a candidate for countywide office or to a candidate in any election conducted on less than a countywide basis, one thousand dollars.”

Appellant argues that the trial court erroneously determined that the Judicial Trust Fund is a political committee since, contends appellant, the purpose of the fund is not to support or oppose candidates but is to establish a method for contributions which will screen out potential abuse and to insulate lawyers, judges and judicial candidates from problems associated with direct campaign contribution and, since there is no discretion in the committee arrangement, to direct contributions to certain candidates. The laudable purpose of this trust fund does not alone justify exemption from the statutory definition of “political committee.” On the contrary, the Dade County Trust Fund possesses all of the statutorily delineated elements of a “political committee.” The trust fund functions as a combination of two or more persons, is an “other combination of individuals having collective capacity,” accepts contributions or makes expenditures during a calendar year in an aggregate amount in excess of $500 and has as its primary or incidental purpose to support candidates. Emphasizing the use of the term “incidental purpose” in Section 106.011(2), Florida Statutes (1975), appellee submits, and we agree, that by making distribution to candidates, i. e., contributions, pursuant to the terms of the trust agreement, the trust fund effectually supports candidates for judicial office, and it is immaterial for the purpose of definition of political committee whether the candidates supported have been voted well-qualified or not. Monies paid to candidates from the fund are treated as campaign contributions and are reported accordingly.

The trial court correctly determined that the inclusion of the Dade County Trust Fund within the definition of “political committee” did not render Section 106.-011(2), Florida Statutes (1975), unconstitutionally overbroad. Appellant expressly declares that he does not challenge the constitutionality of the contribution limitation but, rather, only questions the imposition of such limitation on the Judicial Trust Fund.

The Legislature is charged with the responsibility and authority of regulating the election process so as to protect the integrity of the political process. These regulations should be reasonable and necessary and not inconsistent with the constitution of this state. Treiman v. Malmquist, 342 So.2d 972 (Fla.1977). This Court, in Bodner v. Gray, 129 So.2d 419, 421 (Fla.1961), opined:

“The law places restraints upon all of its citizens in the exercise of their rights and liberties under a republican form of government. Such restraints have been found to be necessary in the development of our democratic processes to preserve the very liberties which we exercise. Similar restraints may lawfully be imposed upon individual candidates for public office.”

Upholding the contribution limitation in the Federal Election Campaign Act, the Supreme Court of the United States, in Buckley v. Valeo, supra, reasoned:

“In view of the fundamental nature of the right to associate, governmental ‘action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.’ NAACP v. Alabama, supra, 357 U.S. 449, at 460-461, 78 S.Ct. 1163, 2 L.Ed.2d 1488. Yet, it is clear that ‘neither the right to associate nor the right to participate in political activities is absolute.’ [Cases cited.] Even a ‘ “significant interference” with protected rights of political association’ may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. [Cases cited.]
“Appellees argue that the Act’s restrictions on large campaign contributions are justified by three governmental interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office. Two ‘ancillary’ interests underlying the Act are also allegedly furthered by the $1,000 limits on contributions. First, the limits serve to mute the voices of affluent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the outcome of elections. Second, it is argued, the ceilings may to some extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money.
“It is unnecessary to look beyond the Act’s primary purpose — to limit the actuality and appearance of corruption resulting from large individual financial contributions — in order to find a constitutionally sufficient justification for the $1,000 contribution limitation.
“We find that, under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling.”

Appellant argues that the fund was organized to eliminate the evil and corruption contemplated by the Legislature and, therefore, since the fund serves the same purpose as the statute, the Legislature cannot regulate in that area. In effect, this argument contends for a usurpation of the legislative function by private individuals who determine in their own judgment how best to regulate matters of public concern. The Legislature, not private individuals, determines what reasonable regulations should be enacted to avoid evil and corruption in the election process. This Court likewise does not legislate by determining the wisdom of legislative policy but, rather, decides whether the legislative regulation comports with the Constitution.

In Holley v. Adams, 238 So.2d 401 (Fla.1970), this Court said:

“The judiciary will not nullify legislative acts merely on grounds of the policy and wisdom of such act, no matter how unwise or unpolitic they might be, so long as there is no plain violation of the Constitution. [Cases cited.]”

See also In re Apportionment Law, SJR 1305, 263 So.2d 797 (Fla.1972).

We find that Section 106.011(2), Florida Statutes (1975), and Section 106.08, Florida Statutes (1975), are not unconstitutionally overbroad as applied to the Dade County Trust Fund because the Legislature did not exempt organizations who set up their own procedures for policing themselves. The Legislature, in promulgating Section 106.-011(2) and Section 106.08, regulating campaign contributions, determined that individuals in a collective capacity should only be permitted to have a limited amount of political clout. Cf. Buckley v. Valeo, supra.

Since we conclude that the Dade County Trust Fund is a political committee within the statutory definition, appellant’s argument that the trust fund does not violate the statutory proscription against contributions in excess of $1,000 when it exceeds the $1,000 limit because, inter alia, the pro rata contribution to any lawyer has never exceeded $70 is without merit. Appellant’s contention is that this arrangement is the same as if an individual gathered contributions from other individuals and delivered them in the same form to a candidate. This is not the case, however, since the contributions from the individuals are commingled by the trustee and since the terms and conditions of the trust agreement as to authorization for contributions to “Fund Qualified” judicial candidates transpose the Dade County Trust Fund from the permissible character of one serving as a conduit for contributions to candidates to a “political committee” which may not contribute in excess of $1,000.

Finally, appellant urges that the method of appointment of the Elections Commission as set forth in Section 106.-24(2), Florida Statutes (1975), unconstitutionally infringes on the doctrine of separation of powers in Article II, Section 3, Florida Constitution (1968), and the executive power of appointment in Article IV, Sections 1 and 6, Florida Constitution (1968). Relative to this point, the trial judge ruled that under the particular circumstances of this case, the question was moot. As appears from the record at the time of the declaratory judgment action, there was no justiciable controversy between appellant and the Florida Elections Commission. The action of the Elections Commission had been concluded, and Notice of Determination had been filed by the Commission with the Department of Legal Affairs pursuant to the dictates of Section 106.27, Florida Statutes (1975). Appellee, Elections Commission of the State pf Florida, posits that not only is the question moot because the legal capacity of the Commission has already been passed and exhausted since the matter was no longer within its jurisdiction but also because this issue is extraneous to the resolution of any of the issues outstanding in the cause. We hold that the trial court properly determined that the question as to the constitutionality vel non of the Elections Commission’s composition was moot, the issue not being justiciable under the facts of this cause. We, therefore, cannot resolve the question of the constitutionality of the composition of the Elections Commission in the present cause.

Accordingly, for the foregoing reasons, we find that Sections 106.011(2) and 106.08, Florida Statutes (1975), are not unconstitutional as applied to the Dade County Judicial Trust Fund and affirm the judgment of the trial court.

It is so ordered.

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

      . Section 10 of the trust agreement provides:
      “10. All contributions to the fund, other than monies expended to publish biographical sketches as set forth in paragraph 15, shall be distributed by the Trustees of the fund in accordance with the following formula not later than seven days from the date of receipt and certification of the judicial poll propounded to all members of the Bar maintaining offices in Dade County, by the Dade County Bar Association;
      “a. A ‘Fund Qualified’ candidate is defined to be a candidate who meets the requirements set forth herein for receipt of monies from the Trust Fund.
      “b. All unopposed candidates or unopposed incumbents who receive qualified votes totaling at least 60% of the total number of qualified and unqualified votes as to their candidacy and receive not more than 85% ‘don’t know’ votes of the total number of votes cast for their candidacy shall be entitled to share pro-rata in the distribution of funds along with all other Fund Qualified candidates up to the amount of their qualifying fees and shall apply funds thus received only to payment of the qualifying fee. Such unopposed candidates or incumbents shall specifically agree and pledge to return to any donor, whether or not such donor be a member of The Florida Bar, any funds that have been received by said unopposed candidates or incumbents to the extent that such funds exceed the amount of the qualifying fee less the amount of monies received from the Trust Fund.
      “c. To be eligible for contributions from the Trust Fund a candidate for judicial office in a contested race (1) must receive at least 60% qualified votes of the total number of qualified and unqualified votes cast towards his candidacy; and (2) must receive not more than 85% ‘don’t know’ of the total number of votes cast toward his candidacy.
      “d. The Trustees, based upon the above formula, shall then determine the total number of divisions in which there is at least one candidate, either opposed or unopposed, who is Fund Qualified to receive contributions from the Fund in the divisions of the Third District Court of Appeal of Florida, and the

        Circuit Court and the County Court of the Eleventh Judicial Circuit. The total funds of the Trust Fund received seven days from the date of the certification of the judicial poll shall then be prorated among such divisions provided, however, that 25% of the total funds received shall first be allocated to the County Court divisions and the remainder to all other eligible divisions. Should the funds received for each of those divisions exceed the qualifying fee for said divisions, the excess of funds over and above the total amount of the qualifying fees shall then be redistributed pro-rata to all divisions in which there are opposed Fund Qualified candidates.
      “e. As to each such division in where there is only one Fund Qualified opposed candidate, said candidate shall received [sic.] the entire amount of funds allocated to his division. As to each division in which there is more than one Fund Qualified candidate, the funds for that division shall be distributed pro-rata to all such Fund Qualified candidates in that division.”

      . § 106.011(7), Fla.Stat. (1975), defines person as utilized in § 106.011(2), Fla.Stat. (1975), as follows:
      “ ‘Person’ means an individual or a corporation, association, firm, partnership, joint stock company, club, organization, or other combination of individuals having collective capacity.”


author: HATCHETT, Justice. KARL, Justice,

text:
    STATE of Florida, etc., et al., Appellants, v. CITY OF SUNRISE, a Municipal Corporation of Florida, Appellee.
    No. 51092.
    Supreme Court of Florida.
    Jan. 26, 1978.

      Robert L. Shevin, Atty. Gen. and James D. Whisenand, Deputy Atty. Gen., Tallahassee, Michael J. Satz, State Atty., Fort Laud-erdale, and Counsel of Bryant, Franson, Miller, Olive, Brant & Ryan, Tallahassee, for appellants.
    Arthur B. Parkhurst of Parkhurst, La Hurd & Purdy, Fort Lauderdale, and Brian T. Hayes, Tallahassee, for appellee.
    Counsel of Gurney, Gurney & Handley, Orlando, and Edward S. Jaffry of Horne, Rhodes, Jaffry, Stephens, Bryant, Horne & Chapman, Tallahassee, for the Orlando Utilities Commission, amicus curiae.
   ON REHEARING

HATCHETT, Justice.

This is a direct appeal from a final judgment entered in a bond validation proceeding. Jurisdiction vests pursuant to Article V, Section 3(b)(2), Florida Constitution. The question we must decide is whether or not a Florida municipal corporation is authorized by law to issue “double advance refunding” bonds? We answer this question in the affirmative.

Respondent, the City of Sunrise, is seeking the issuance of certain bonds which are to be used in part to refinance and refund money borrowed under bonds issued in 1973. The proceeds from the 1973 bonds were used to advance refund bonds issued in 1970. Both petitioner and respondent agree that “double advance refunding” presents a novel method of municipal financing within the State of Florida.

The growth of the City of Sunrise reflects the growth of the State of Florida during the past twenty years. In 1967 the City had a population of less than 3,200 people. By 1976 its population exceeded 32,000. The physical area of the City has increased 120 times. In order to accommodate such growth the City has had to establish, expand, and improve its water, gas and sewage systems. The development of these utilities has been facilitated by the issuance of municipal revenue bonds.

On November 9, 1976, the city council adopted an ordinance authorizing 'the issuance of water, gas and sewer refunding and improvement revenue bonds, Series 1976, in the principal amount of $80 million. They are to be issued in denominations of $5,000, maturing on October 1 of the years 1978 through 2016. A portion of the proceeds of these bonds will be used for the purpose of refunding the City’s utility system revenue bonds, Series 1973, natural gas revenue bonds, Series 1973, utility system revenue bonds, Series 1976 and for making payments required under certain agreements entered into by the City for the purchase of various components for the systems. Eighteen percent of the $80 million will be devoted to the refunding of bonds previously issued, with 6 percent thereof for the refunding of bonds issued to refund earlier bonds. These bonds are payable only from revenue derived from the utility systems. The bonds do not involve the pledge of the City’s full faith and credit nor do they impose any ad valorem tax on its residents. The 18 percent that will be used to refund earlier bond issues will be deposited in escrow with a bank for investment purposes. The earnings from the investment will be applied to the payment of bonds being refunded. These escrow funds, according to the City’s expert witness, will be invested in obligations of the United States of America, peculiarly designed for this kind -of financing scheme. It is the expert’s opinion that the money derived from the escrow account will be sufficient to pay principal, interest, and redemption premiums on the bonds being refunded. All bonds will be paid from proceeds in the escrow account on the call date stated in the bonds.

Double advance refunding in this case has several advantages:

(1) bonds will be regarded in the market place as first lien bonds secured by the revenues of all three units of the utility system;

(2) the bonds will enable the city to take advantage of changed market conditions, thereby allowing their issuance at a lower rate than the rate of interest presently borne by the bonds being funded; and

(3)- the proceeds from the new bonds will provide the funds necessary to acquire additional facilities for the combined system.

It is our responsibility to determine whether the laws of Florida allow this novel financing arrangement. The relevant constitutional provision is Article VIII, Section 2, Florida Constitution, which provides:

(b) POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. Each municipal legislative body shall be elective.

Authority to issue bonds is extended to municipalities by Chapter 166.111, Florida Statutes, which provides:

The governing body of every municipality may borrow money, contract loans, and issue bonds as defined in 166.101, Florida Statutes, from time to time to finance the undertaking of any capital or other project for the purposes permitted by the state constitution and may pledge the funds, credit, property, and taxing power of the municipality for the payment of such debts and bonds.

The types of bonds which may be issued are defined as follows:

166.101 Definitions. — As used in this part, the following words and terms shall have the following meanings unless some other meaning is plainly indicated:
* * * * * *
(6) The term “refunding bonds” means bonds issued to refinance outstanding bonds of any type and the interest and redemption premium thereon. Refunding bonds shall be issuable and payable in the same manner as the refinanced bonds, except that no approval by the electorate shall be required unless required by the state constitution.
******
(8) The term “project” means a governmental undertaking approved by the governing body and includes all property rights, easements, and franchises relating thereto and deemed necessary or convenient for the construction, acquisition or operation thereof, and embraces any capital expenditure which the governing body of the municipality shall deem to be made for a public purpose including the refunding of any bonded indebtedness which may be outstanding on any existing project which is to be improved by means of a new project. (Emphasis added.)

The constitutional and statutory scheme makes several matters clear. Municipalities may issue bonds to finance any capital or other project permitted by the state Constitution. A project may include the refunding of any outstanding indebtedness. Bonds which may be issued include “refunding bonds.” Refunding bonds are those issued to “refinance outstanding bonds of any type and the interest and redemption premium thereon.” There is no limitation on the type of bonds refunded or the purposes for which the bonds are to be refunded. State v. City of Melbourne, 93 So.2d 371 (Fla.1957). Simple “advance refunding” is now an acceptable method of financing municipal projects. We have so held in State v. City of Melbourne, supra; State v. City of Orlando, 82 So.2d 874 (Fla.1955); and State v. City of Miami, 155 Fla. 6, 19 So.2d 410 (1944).

In our original opinion in this case, we held that in order to be validated, the proposed bonds must meet the “lower net average interest cost” requirement found in Article VII, Section 12(b), Florida Constitution. Section 166.111, Florida Statutes, authorizes municipalities to borrow money, but only for “purposes permitted by the state constitution.” Since Article VII, Section 12(b) is the only place in the Constitution where refunding bonds are specifically authorized, we concluded that such bonds must be issued in accordance with the requirements of that section, or not at all. On rehearing, we determine that the provisions of Article VII, Section 12(b) apply only to “bonds . . . payable from ad valorem taxation . . . ” and are not applicable to the issuance of revenue bonds.

Since there is no specific section in the Constitution authorizing municipalities to issue refunding revenue bonds, the Attorney General and all other parties have argued on rehearing that the municipalities may issue such bonds under their constitutional home-rule powers. Article VIII, Section 2, Florida Constitution, expressly grants to every municipality in this state authority to conduct municipal government, perform municipal functions, and render municipal services. The only limitation on that power is that it must be exercised for a valid “municipal purpose.” It would follow that municipalities are not dependent upon the Legislature for further authorization. Legislative statutes are relevant only to determine limitations of authority. Since there is no constitutional or statutory limitation on the right of municipalities to issue refunding revenue bonds not payable by ad valorem taxes, we hold that municipalities may issue “double advance refunding bonds” so long as such bonds are pursuant to the exercise of a valid municipal purpose.

In reaching this determination we recognize that our present authority to review such bonds is sharply limited, almost to the point of insignificance. Our decision cannot reach the question of whether the revenue bond plan presently before us is fiscally sound, or whether double advance refunding is a wise method of financing municipal undertakings. As was held in State v. Manatee County Port Authority, 171 So.2d 169 (Fla.1965) at 171:

It is further suggested that the record fails to support a conclusion that the proposed project is fiscally sound. We have held that the fiscal feasibility of a revenue project is an administrative decision to be concluded by the business judgment of the issuing agency. Such problems as the advisability of the project and its income potential, must be resolved at the executive or administrative level. They are beyond the scope of judicial review in a validation proceeding. Town of Medley v. State, Fla., 162 So.2d 257. We, therefore, disclaim any judicial responsibility for the fiscal integrity of the proposed project. As we stated in Medley, a decision on this aspect of revenue financing is one to be made by the people involved, acting through their proper executive or administrative officials. The function of a validation proceeding is merely to settle the basic validity of the securities and the power of the issuing agency to act in the premises.

See also Webster v. North Orange Memorial Hospital Tax District, 187 So.2d 37 (Fla.1966).

For the reasons expressed herein, we withdraw our previous opinion and affirm the trial court’s order validating these bonds.

It is so ordered.

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

KARL, J., dissents with an opinion.

KARL, Justice,

dissenting.

I cannot join with the majority in the decision to validate the “double advance refunding” bonds. I find no authority in the Constitution or statutes for such a scheme of financing, and I am unwilling to assent to the proposition that the constitutional grant of home rule power is broad enough to authorize it. Quite to the contrary, I conclude that the constitutional and statutory provisions relating to municipal borrowing place limits on the general grant of power and preclude the financing plan proposed in this case.

The validating judgment before us holds that the issuance of the bonds is for a proper, legal and corporate purpose and that they are fully authorized by law. By placing our imprimatur on that judgment, the Court today establishes judicial precedent that will open the door to other, and perhaps even more sophisticated, financing plans. We should not do that.

Our own precedent tells us that we are not to interfere with the issuing agency’s business judgment as to the fiscal soundness or advisability of bond issues, but we are not precluded from examining this new proposal, in the light of the intent of the Legislature and the framers of the Constitution, to determine whether the issue is fully authorized by law. My conclusion is that neither intended to authorize double advance refunding bonds. I would, therefore, reverse.

      . Another advantage of this financial plan in this case is the fact that the $500,000 Utility System Revenue Bonds, Series 1976, are subordinate to the Utility System Revenue Bonds, Series 1973, and the city by resolution covenanted to perform all acts necessary to assure the accession to parity status of such bonds within a certain time period.

      . Art. VII, Section 12 of the Constitution of Florida: Section 12. Local bonds. — Counties, school districts, municipalities, special districts and local governmental bodies with taxing powers may issue bonds, certificates of indebtedness or any form of tax anticipation certificates, payable from ad valorem taxation and maturing more than twelve months after issuance only:
      (a) to finance or refinance capital projects authorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation; or
      (b) to refund outstanding bonds and interest and redemption premium thereon at a lower net average interest cost rate.

      . A reading of the trial judge’s order indicates that the City of Sunrise relied upon Article VII, Section 12(b), Florida Constitution, as its authority to issue double advance refund bonds. At the initial hearing before this court both parties argued the legal significance of this Article of the Constitution.

      . The Attorney General was granted permission to appear and argue the issues, and other parties allowed to file briefs on rehearing due to the importance of the issue.

      . The matters which must be alleged and proved are set forth in Sec. 75.04, Fla.Stat. (1975) which provides:
      Complaint. — The complaint shall set out the plaintiffs authority for incurring the bonded debt or issuing certificates of debt, the holding of an election and the result when an election is required, the ordinance, resolution, or other proceeding authorizing the issue and its adoption, all other essential proceedings had or taken in connection therewith, the amount of the bonds or certificates to be issued and the interest they are to bear; and, in case of a drainage, conservation or reclamation district, the authority for the creation of such district, for the issuance of bonds, for the levy and assessment of taxes and all other pertinent matters.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Cecil Clyde DOTSON, Respondent.
    No. 50653.
    Supreme Court of Florida.
    Jan. 26, 1978.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for petitioner.
    Jack 0. Johnson, Public Defender, and John Robert Howes, Asst. Public Defender, Bartow, for respondent.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution.

We are of the opinion that the writ of certiorari heretofore granted in this cause should now be discharged. Accordingly, the writ of certiorari is discharged.

OVERTON, C. J., and BOYD, HATCH-ETT and KARL, JJ., concur.

ADKINS, J., dissents.


text:
    Willie E. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 51223.
    Supreme Court of Florida.
    Jan. 26, 1978.
    Willie E. Simmons, in pro per., Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant was charged with burglary, a violation of Section 810.02, Florida Statutes (1975), and moved to dismiss on the grounds that the statute is unconstitutionally vague and overbroad. The record does not reflect any ruling on appellant’s motion, but apparently it was denied as the case proceeded to trial. Upon conviction, appellant renewed his challenge to the statute by motion for a new trial. Motion was denied and appellant appealed. The First District Court of Appeal then transferred the cause to this court. Since the trial court inherently passed on the validity of Section 810.02, Florida Statutes, we have jurisdiction. See Harrell’s Candy Kitchen v. Sarasota-Manatee Air Authority, 111 So.2d 439 (Fla.1959).

Appellant’s sole attack upon the statute is that it fails to declare a violation of the statute a crime. Appellant’s court appointed counsel states:

Although appellant, in his motion to dismiss, attacked the constitutionality of Florida’s burglary statute, counsel is unable to, in good faith, argue this point. Concerning appellant’s question as to whether or not burglary is a crime, counsel would point out that this court has previously held that breaking and entering with intent to commit a misdemeanor is a felony. Copeland v. State, 275 So.2d 258 (Fla. 1st DCA 1973).

After careful review of the record, we find that appellant’s allegations fail to constitute a substantial constitutional question. See Riddle v. State, 345 So.2d 1073 (Fla.1977).

Accordingly, the appeal is transferred to the First District Court of Appeal for further action consistent herewith.

It is so ordered.

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

      . Article V, Section 3(b)(1), Florida Constitution.


author: LETTS, Judge.

text:
    Thomas C. LeRETILLEY, Thomas M. LeRetilley and United Services Automobile Association, Appellants, v. Richard HARRIS, Jr., Appellee.
    No. 76-2685.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.
    Rehearing Denied March 6, 1978.
    Janis M. Halker of Gurney, Gurney & Handley, P. A., Orlando, for appellants.
    Nolan Carter, Orlando, and Robert C. Matthias, Law Offices of Robert C. Matthias, P.A., Orlando, for appellee.
   LETTS, Judge.

This is an appeal from a personal injury verdict for $225,000.00, the appellant contending that a “golden rule” argument was presented which constituted reversible error.

We affirm.

During final argument, the appellee’s counsel included in his remarks the following examples:

“Wouldn’t you, if your son was injured and you couldn’t get some responses or if he has injuries you don’t understand and nobody understands, the first thing you’re going to want to know as a parent whether male or female, you’re going to want to know, ‘What can I do for my son? What is the future going to hold for him?’ ”
******
“I remember when I was a kid growing up hearing, ‘Walk a mile in my shoes.’ I always thought about that in trying these kind of cases because you have got to in your own mind see what it’s like. You’ve got to walk a mile in that man’s shoes to see what the day is like when he gets up in the morning, what he’s faced with. When you, a normal person, get up, you’ve got your hopes, all your aspirations, ambitions, you’ve got all the mental facilities that you have, and you’ve got 24 hours to spend and you can do anything you want to do; you can do something constructive, you can spend those 24 hours in bed asleep, you can do anything during that day that you want to do. You may have to price for it if you violate rules, but it’s your 24 hours.”
******
“What does he do on each day that he walks that mile? He knows today and tomorrow morning when he gets up, after you have rendered this verdict, he’s going to go to work and he’s going to know there is nothing he can do at work except be a helper. .
How is he going to break that routine? He has got to live with that. He can’t because they gave him an 84 IQ. God gave him a 104 IQ. Their negligence gave him an 84 and he’d take it back. You could not give him enough money to sit here with an 84 IQ for the next 50 years.”
* * * * * *
“His life expectancy from today is, his life expectancy is 70, so that he’s got to look forward to getting up every morning and walking that mile with that 84 IQ knowing that the day holds the same thing for him and the day after that. How would you like to be on jury duty the rest of your life? I know when you got your call for jury trial, ‘Oh, can’t you get me out of this?’ Well, he’s sentenced to this for the rest of his life and there’s nothing he can do about it.”

There is little doubt that the above represent an effort by counsel to have the jury put themselves in the shoes of the injured party and have the jurors personally identify themselves with the injuries. As such, they collectively constitute improper, so called, “golden rule” arguments. Klein v. Herring, 347 So.2d 681 (Fla. 3d DCA 1977); Stewart v. Cook, 218 So.2d 491 (Fla. 4th DCA 1969); Miku v. Olmen, 193 So.2d 17 (Fla. 4th DCA 1966); Bullock v. Branch, 130 So.2d 74 (Fla. 1st DCA 1961).

The difficulty in the case now before us, is whether these given arguments are reversible in the light of the inadequacy of the objection or outright absence of the same. Counsel for the appellant did object after the first of these quoted remarks was made, but no ruling was ever handed down thereon, nor was any further objection made to the remaining three excerpts and no curative instructions were sought.

There is a paucity of recent Florida cases concerning failure to secure a ruling on an objection. However, in Coffman v. Kelly, 256 So.2d 79 (Fla. 1st DCA 1972), the court held that failure to secure a ruling on a motion was fatal, noting “The trial court can hardly be held in error for a ruling which it did not make.” Id. at 80. See also Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973). Moreover, the consensus, nationally, appears, likewise, to be that the objection is not preserved. 5 Am.Jur.2d, Appeal and Error, § 625 (1962); 88 A.L.R.2d 12; 1 Wigmore on Evidence, § 18(A)(4). However, see the criminal case of Thomas v. State, 202 So.2d 883 (Fla. 3d DCA 1967) where no ruling was made on an objection.

We choose to adopt the view that failure to secure a ruling on an objection waives it, unless the court deliberately and patently refuses to so rule. Obviously, if we now hold that the objection to the initial golden rule argument was not preserved, then, a fortiori, there can be no consideration, on this appeal of the subsequent golden rule remarks not even objected to, unless the error be fundamental. However, we would agree that there is normally no need to object repeatedly every time the same error is made providing the court has ruled thereon. McCullers v. State, 143 So.2d 909, 913 (Fla. 1st DCA 1962); 1 Wigmore on Evidence, § 18(A)(4).

All this being so, we are lastly required to examine the law and decide if “golden rule” arguments constitute fundamental errors, reversible without objection. We find no Florida case that has tackled the issue head on, although there is dicta which would suggest that golden rule arguments may so constitute. Thus, the court in Stewart v. Cook, 218 So.2d 491 (Fla. 4th DCA 1969), held that statements such as:

1. “We can always say: ‘There but for the Grace of God, go I.’
2. In the light of your own circumstances. All of us. Do we always check our brakes before we start out? I don’t. I am sure you don’t either.
3. Would you and I expect that on our own cars, all things being equal, are we supposed to get out and look under it every time we go down to the grocery store?”

which were not objected to, “did not strike at that sensitive area of financial responsibility and hypothetically require the jury to consider how much it would wish to pay or receive.” Id. at 494. Inferentially, however, we can assume that if the remarks had struck the sensitive area they would have been preserved regardless of lack of objection.

In the case at bar, several of the quoted excerpts do, most assuredly, strike at the “sensitive area” and accordingly under the Stewart dicta would constitute reversible error regardless of failure to object. We decline to follow this dicta and note that in the lead case on the golden rule, there was an overruled objection and the court merely noted that failure to ask for a curative instruction or make a motion to have the jury disregard it was not fatal, in view of the fact that an objection had been made. Bullock v. Branch, 130 So.2d 74, 77 (Fla. 1st DCA 1961).

We note the language of the Florida Supreme Court in Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936) wherein the court said:

“A verdict will not be set aside by an appellate court because of such remarks or because of any omission of the judge to perform his duty in the matter, unless objection be made at the time of their utterance. This rule is subject to the exception that, if the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influence, in which event a new trial should be awarded regardless of the want of objection or exception.” Id. at 379.

In the case at bar we reject the argument that the remarks were of such sinister influence as to constitute irreparable and fundamental error. We have reviewed innumerable definitions of the phrase “fundamental error” and find the one that suits us best to be:

“A reviewing court may consider questions raised for the first time on appeal if necessary to serve the ends of substantial justice or prevent the denial of fundamental rights. This rule is peculiarly applicable in criminal cases and especially in capital cases.”

5 Am.Jur., Appeal and Error, § 549.

We cannot see that the ends of substantial justice were thwarted in the case at bar. The improper remarks did not create the injuries, nor did they strike at the theory of the liability of the case. True, they (the remarks) may have caused the jury to become more personally involved on the issue of damages than they should have been but such is not so sinister as to constitute a denial of fundamental rights.

The other points on appeal are found to be without merit.

AFFIRMED.

ALDERMAN, C. J., and DOWNEY, J., concur.

      , The phrase “You may have to price for it” is assumed as a transcription error to mean “You may have to pay the price.”

      . One statement in Miku v. Olmen, supra, that “Bullock requires action regardless of objection." (emphasis supplied) was erroneous.


author: PER CURIAM. PER CURIAM.

text:
    Thomas A. MULLIN, Petitioner, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF ADMINISTRATIVE HEARINGS and State of Florida, Department of Education, Respondents.
    No. BD-93.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1978.
    Rehearing Denied March 2, 1978.
    I. Paul Mandelkern and James M. Russ, Orlando, for petitioner.
    Howard R. Marsee of Pitts, Eubanks, Ross & Rumberger, Orlando, for respondents.
   PER CURIAM.

Having considered the briefs and arguments of the respective parties, we determine that we do not have jurisdiction over this petition for review, petition for writ of prohibition or supplemental petition for writ of prohibition. The rule nisi previously issued is discharged and the petition for review denied.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Mr. Mullin asked this court to stop the disciplinary proceeding against him, contending the applicable statute of limitations had run. We determined we had no jurisdiction. On rehearing, Mullin contends we overlooked Circuit Court of Twelfth Judicial Circuit v. Dept. of Natural Resources, 339 So.2d 1113 (Fla.1976) and State ex rel. Division of Administration v. Oliff, 350 So.2d 484 (Fla. 1st DCA 1977). Those cases entertained prohibition where sovereign immunity was asserted by an agency. Mullin argues the running of the statute of limitations renders the Department without subject matter jurisdiction just as the affirmative defense of sovereign immunity.

Research reveals no Florida opinions applying prohibition where the statute of limitations allegedly has run. We do not find it appropriate. Malone v. Meres, 91 Fla. 709, 109 So. 677, 684 (1926) stated:

“ ‘Jurisdiction of a subject-matter of an action is a power to adjudge concerning the general question involved therein, and is not dependent upon the state of facts which may appear in a particular case, or the ultimate existence of a good cause of action in the plaintiff therein. A judgment rendered by a court, having power lawfully conferred to deal with the general subject involved in the action, and having jurisdiction of the parties, although against the facts or without facts to sustain it, is not void as rendered without jurisdiction, and cannot be questioned collaterally.’ Hunt v. Hunt, 72 N.Y. 217, 28 Am.Rep. 129.”

The Department clearly had jurisdiction to initiate the disciplinary proceeding ‘against Mullin. By analogy Fla.R.Civ.P. 1.110(d) specifically lists the statute of limitations as an affirmative defense. If not raised, it is waived. Lack of jurisdiction over the subject matter, on the other hand, may be raised at any time. Rule 1.140(h)(2).

The hearing officer’s interlocutory order refusing to dismiss the proceeding on the basis of the limitation is one reviewable on appeal, and not subject to collateral attack as a matter of right. The petition for rehearing is

DENIED.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


text:
    SOUTHEAST BANK OF DEERFIELD BEACH, as personal representative of the Estate of Patricia K. Morrison, Deceased, Appellant, v. RALPH C. JACKSON REALTY, INC., and Michael A. Benanti, Appellees.
    No. 76-2462.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Rehearing Denied March 6, 1978.
    A. Thomas Connick, Jr., of George A. Patterson, P. A., Deerfield Beach, for appellant.
    Jack A. Jensen of Thomas, Lester & Jensen, Deerfield Beach, for appellees.
   DREW, JUSTICE E. HARRIS (Ret.), Associate Judge.

If, as argued by appellant, the trial court ruled that a contract for the sale of realty must be signed by all persons with an ownership interest in the realty, a reversal of such judgment would be required. But the record before us does not justify that conclusion. It is true, as pointed out in appellant’s brief, that on several occasions during the trial of this case the judge made statements indicating he thought all persons with an ownership interest in realty must sign a contract for its sale. For instance at one point he said, “If the title to the property is in two names, you have to have two signatures,” and again “. it’s not a binding contract of sale because all the parties with ownership interest in the property, did not execute the contract.” In the judgment, however, the language used was . . it appearing to the Court that no contract existed between Michael A. Benanti and Patricia K. Morrison and her brother, before Michael A. Benanti withdrew his offer. . . .” After the entry of the judgment, in order to establish the basis of the court’s ruling with certainty, appellant filed a motion to amend the judgment by striking out the above-quoted language and inserting the following:

“. . . and it is Adjudged that the document labelled ‘Offer to Purchase — Receipt for Deposit — Contract for Sale,’ dated May 19,1975 and signed by Michael A. Benanti and Patricia K. Morrison was not a binding contract for sale because all of the parties with an ownership interest in the property, namely, Patricia K. Morrison, George W. Knapp, and the S.un First National Bank, did not execute the contract on or before May 21, 1975. . .”

Other relief was asked in this motion including a rehearing, but after argument all relief was denied except certain relief as to a supersedeas bond which is not germane to this appeal.

The denial of the motion to amend removes the patent ambiguities from the previous remarks of the court and the language of the judgment. This coupled with the universal rule that a judgment comes here clothed with a presumption of validity and the fact that the issue of whether the contract was conditional with a condition precedent, viz., the signature thereon of the brother of Patricia K. Morrison was fully pleaded and litigated below brings us to the point where the appeal must be decided on the basis of whether there is competent, substantial evidence to support the judgment on the latter point.

Benanti testified that when he signed the contract and delivered the money receipted for therein it was with the explicit understanding that the contract would be sent north for the signature of Mrs. Morrison’s brother who jointly inherited the property from their mother and that the contract would not be effective until such was done; that he rescinded the contract before such was obtained and that he was entitled to be refunded his deposit. If this was established by competent evidence he was entitled to rescind and have his deposit returned. The trial judge held that Benanti had met his burden of proving his defense and ordered the money refunded by the stakeholder. We cannot say that there is not competent evidence in the record supporting that conclusion. That is all the law requires.

We agree with appellant that the trial court should not have ordered the stakeholder to return the funds before the time for the filing of a petition for re-hearing had expired or the disposition of such a petition and without notice of any kind to the appellant. In view of our affirmance on the merits of the judgment appealed from, however, the error of the trial judge is now harmless.

AFFIRMED.

ALDERMAN, C. J., and STETTIN, HERBERT, Associate Judge, concur.

      . Harper v. Bronson, 104 Fla. 75, 139 So. 203 (1932); Burke v. Wallace, 98 Fla. 604, 124 So. 30 (1929).

      . Savage v. Horne, 159 Fla. 301, 31 So.2d 477 (1974); Ganaway v. Henderson, 103 So.2d 693 (Fla. 1st DCA 1958).

      . Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

      . Kerekes v. Clavijo, 325 So.2d 12 (Fla. 3d DCA 1975); Dixon v. Dixon, 184 So.2d 478 (Fla. 2d DCA 1966); Orange State Oil Co. v. Jacksonville Express Auth., 110 So.2d 687 (Fla. 1st DCA 1959).


text:
    David E. KLINGAMAN, trading as Banner Sightseeing Company, and Joy R. Klingaman, Appellants, v. Martin L. SOMMERS, Appellee.
    Nos. 77-477 and 77-896.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1978.
    Rehearing Denied March 6, 1978.
    Eugene H. Clay, Sarasota, for appellants.
    Richard D. Sparkman, of Sparkman & Hamilton, Naples, for appellee.
   PER CURIAM.

From a careful review of the record in this case, we are convinced that the appellants had their day in court, and that substantial justice has been accomplished. Therefore, we affirm the several orders and the final judgments which are attacked herein. However, in view of the peculiar posture of this case, and the fact that the appellee has now been able to obtain the return of his boat, we hereby relieve the appellant, David E. Klingaman, from further penalty for contempt.

GRIMES, Acting C. J., and RYDER and DANAHY, JJ., concur.


author: KEHOE, Judge.

text:
    REGAL INDUSTRIES, S.A., a corporation, Appellant, v. JONATHAN LOGAN, INC., Appellee.
    No. 76-2017.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 27, 1978.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellant.
    Kreeger & Kreeger, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from an order of dismissal with prejudice of Count II of their second amended complaint as to appellee Jonathan Logan, Inc., defendant below, pursuant to its motion to dismiss.

The essence of appellants’ contention on appeal is that the trial court erred by dismissing Count II of appellants’ second amended complaint when it ruled that appellants were improperly pleading inconsistent facts or causes of action. We have carefully reviewed the record and have concluded that Count II of appellants’ second amended complaint did state a cause of action and, therefore, should not have been dismissed. See, e. g., Curran & MacDonell, Inc. v. Pearre, 202 So.2d 858 (Fla. 1st DCA 1967); Hines v. Trager Construction Co., 188 So.2d 826 (Fla. 1st DCA 1966); Ringler v. McVeigh, 109 So.2d 606 (Fla. 3d DCA 1959); and Fla.R.Civ.P. 1.110(g).

Reversed.


text:
    Larry Eugene DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2059.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 27, 1978.
    Garber & Buoniconti and Barry L. Gar-ber, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen. and Paul Men-delson, Legal Intern, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction entered after a plea of nolo contendere to the charge of sale of cannabis. Pursuant to the judgment, appellant was sentenced to 18 months imprisonment to be followed by 3V2 years probation. Appellant’s primary point on appeal is that the trial court deprived him of due process of law by imposing the sentence in a mechanistic, non-individualized manner which eliminated a consideration of probation. Appellant further contends that the trial court improperly relied upon appellant’s refusal to cooperate, by naming his supplier, as a basis for the sentence imposed. We have considered all of appellant’s points in the light of the record and the applicable law, and have concluded that no reversible error has been shown; therefore, the judgment of conviction and sentence appealed are affirmed.

Appellant was charged by information in the circuit court with three counts as follows: (I) sale of cannabis, (II) possession of cannabis, and (III) conspiracy to sell cannabis. During the pendency' of the cause, efforts at plea negotiations took place in the trial judge’s chambers between appellant and appellee, in the presence of the trial judge. In this informal setting and during the plea negotiations, the trial judge indicated that he thought the sale of approximately 250 pounds of cannabis warranted the imposition of a sentence for at least a year in jail. Thereafter, appellant filed a motion to transfer or recuse which the trial court denied. Subsequently, a plea of nolo contendere was entered as to Count I of the information with the understanding that appellant was thereby reserving his right to appeal from the denial of the motion to transfer or recuse. The trial court accepted the plea as tendered. Following a presentence investigation, appellant appeared before the trial court on October 29, 1976, for sentencing and was adjudicated guilty of the sale of cannabis and sentenced to imprisonment for a term of 18 months to be followed by probation of 3V2 years. From this judgment and sentence, appellant appeals.

Appellant contends (1) that he was effectively deprived of due process of law as guaranteed by the United States Constitution by the trial judge imposing a mechanistic, non-individualized sentence which eliminated a consideration of probation, and (2) that the trial judge improperly relied upon appellant’s refusal to cooperate, by failing to disclose the name of his supplier, as a basis for sentencing.

Upon initial impression, it would appear that appellant’s first point on appeal would be disposed of by Tiller v. State, 330 So.2d 792 (Fla.1st DCA 1976), and Gibbs v. State, 344 So.2d 621 (Fla.3d DCA 1977), because the point reserved for appeal, during appellant’s plea of nolo contendere, would not be dispositive of the case, but instead would require this court to render merely an advisory opinion; however, we feel a fair reading of the appeal papers and the record indicates that this point should be treated as an appeal pursuant to Section 924.06, Florida Statutes (1975), i. e., in effect we will review the judicial process by which the sentence was imposed to determine its legality. Accordingly, we have carefully reviewed the record and considered the arguments of counsel, and have concluded that the trial judge, under the totality of the circumstances, did not impose the sentence in such a mechanistic or non-individualized manner as to be illegal. Further, we have considered appellant’s second point on appeal and, likewise, conclude that it is without merit. See, e. g., Simmons v. State, 236 So.2d 147 (Fla.3d DCA 1970); Johnson v. State, 225 So.2d 440 (Fla.1st DCA 1969); Zide v. State, 225 So.2d 349 (Fla.1st DCA 1969), and Wright v. State, 182 So.2d 264 (Fla.3d DCA 1966). Therefore, the final judgment and sentence appealed are affirmed.

Affirmed.


author: PER CURIAM. PEARSON, Judge

text:
    Donald Ray WELLS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2161.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 27, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant was found guilty by a jury of burglary and grand larceny.

He seeks reversal of his convictions on the grounds (1) that the trial court erred in denying his motion to suppress confessions without an unequivocal and explicit finding of voluntariness, and (2) that the court erred in sentencing the defendant to fifteen years imprisonment at hard labor.

We have carefully reviewed the record on appeal and considered the briefs and arguments of counsel and have concluded that no reversible error has been demonstrated as to the conviction. Wilson v. State, 304 So.2d 119 (Fla.1974).

As to the appellant’s contention that the court erred in sentencing the defendant to fifteen years imprisonment at hard labor we hold that the court erred in specifying hard labor in "the sentence. There is no statutory authority for sentencing a convicted person to hard labor. Therefore the words hard labor are stricken from the sentence and it is affirmed as amended. Speller v. State, 305 So.2d 231 (Fla.2d DCA 1974).

Affirmed.

PEARSON, Judge

(dissenting).

I would reverse because, in my view, reversible error appears upon the failure of the trial judge to follow the requirements which are laid out in McDole v. State, 283 So.2d 553 (Fla.1973), for a conviction based upon a confession.


author: NATHAN, Judge.

text:
    FLORIDA FREIGHT TERMINALS, INC., Appellant, v. Joe CABANAS, as the Administrator of the Estates of Vincente Iglesias, Teresa Iglesias, Maria Iglesias, and Manuel Iglesias, Deceased, Appellee.
    Nos. 76-2210 to 76-2213.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 27, 1978.

      Sam Daniels, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Miami, for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

This is an appeal by Florida Freight Terminals, Inc. (Florida Freight), a defendant below, from final money judgments entered pursuant to jury verdicts in four consolidated wrongful death actions.

On December 15,1973, an airplane loaded with a cargo of Christmas trees took off from Miami International Airport, bound for Caracas, Venezuela. Minutes later, it crashed into the home of the Iglesias family of Miami. Two children, Vincente, Jr. and Jose, though injured, survived. Their parents and grandparents died as a result of the crash.

In 1974, four wrongful death actions were brought by Joe Cabanas, the administrator of the decedents’ estates, against numerous defendants, and were consolidated for trial. A fifth action brought by Ladis-lao Ferrera, the children’s guardian, for their injuries, was severed for separate trial, and remains pending.

Prior to the trial of the wrongful death actions, both appellee, acting on behalf of the four estates, and Ferrera, acting on behalf of the children in their personal injury actions, reached settlements with other original defendants for the sum of $745,000; $300,000 to go to the decedents’ estates to settle the. wrongful death claims and $445,-000 to go to the children in their guardianship action for personal injury and pain and suffering. Releases were signed by both Cabanas and Ferrera.

The four consolidated wrongful death actions proceeded to trial against the two remaining defendants, appellant, Florida Freight, the air freight handler which loaded the cargo of trees onto the aircraft, and Paulssen and Guice, Ltd. (P&G), the freight. forwarding firm which arranged for the loading and transportation of the trees and hired the pilot in charge of the flight.

During the course of trial, appellant presented evidence that the pilot, in contravention of FAA rules, had permitted the cargo to be loaded without being secured, and that the plane crash might have resulted from engine failure. P&G presented evidence that it was customary in the business for freight forwarders to rely on the expertise of freight handlers in the balancing and securing of cargo. Appellee offered extensive evidence that Florida Freight had improperly loaded the plane in that it should have tied down the trees by means of ropes, nets or other restraining devices, and that the crash was caused by the shifting of the cargo to the rear of the plane upon takeoff, making the craft so tail heavy that getting off the ground was difficult and remaining aloft was impossible. It was uncontested that Florida Freight did not secure the trees. Protracted evidence was also presented pertaining to the damage aspects of the proceedings.

During the charge conference, Florida Freight requested that the trial court instruct the jury on the “Slavin rule”: that an independent contractor was not liable for its negligent acts once its work had been accepted by an owner or employer. Appellant also requested that the jury be charged that violation of applicable FAA regulations was negligence per se. The trial court denied both requests. Instead of giving the requested instruction on the “Slavin rule” the court gave instructions on proximate cause, concurrent cause and intervening cause. Instead of giving the requested instruction on negligence per se, the court instructed the jury that violation of applicable FAA regulations was non-conclusive evidence of negligence.

The jury returned a verdict in favor of P&G, and its liability is not at issue in this appeal. Florida Freight was found solely liable and damages totalling $2,034,500 were assessed. Appellee stipulated below-that the $300,000 settlement reached between decedents’ estates and the other original defendants was to be set off against the verdicts, but appellant’s request for a hearing to determine how much of the $445,000 settlement should be set off was denied. The trial court found, as a matter of law, that no part of the $445,000 settlement between Ferrera, as guardian of the children, and the other original defendants was subject to being set off against the amounts of the final judgments in the cases sub judice, although this sum might be set off in the pending case between Ferrera and Florida Freight. Final judgment was entered against appellant in the sum of $1,734,500; that is, the amount of the total damages assessed, less the amount stipulated as a set off by appellee.

Florida Freight raises several points on appeal. Foremost among them, and one which mandates reversal, is that the trial court erred in refusing to instruct the jury that violation of the applicable FAA regulations was negligence per se.

The regulations unequivocally stated:

“No pilot in command may permit cargo to be carried in any airplane unless
it is properly secured by a . tiedown having enough strength to eliminate the possibility of shifting under all normally anticipated flight and ground conditions.”

General Operating and Flight Rules, 14 C.F.R. § 91.203(a) (1973). This regulation requires the conclusion that it was designed to prevent plane crashes caused by shifting cargo and to protect that class of persons who might be injured by such a crash. It is negligence per se to violate a statute designed to protect a particular class of persons from their inability to protect themselves or to violate a statute which establishes a duty to take precautions to protect a particular class of persons from a particular type of injury. deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973); Sloan v. Coit International, Inc., 292 So.2d 15 (Fla.1974). The regulation at issue in the instant case encompasses both of these situations.

While our research reveals no case in Florida which holds precisely that violation of an FAA safety regulation is negligence per se, we believe that deJesus and Sloan mandate this conclusion, and find additional support for such a position in decisions of other jurisdictions. See e. g. Gatenby v. Altoona Aviation Corporation, 407 F.2d 443 (3rd Cir. 1968); Rudelson v. United States, 431 F.Supp. 1101 (C.D.Cal.1977); Todd v. United States, 384 F.Supp. 1284 (M.D.Fla.1975); in which the laws of Pennsylvania, California and Alabama, respectively, were found to compel the conclusion that violation of an FAA safety regulation was negligence per se.

The jury in the case sub judice was left free to find that the pilot was not negligent in carrying unsecured cargo. It should not have been at liberty to decide that violation of the standard of care imposed by an FAA safety regulation was not negligence. Failure to properly instruct the jury on this issue constituted prejudicial error and requires reversal.

Appellant also asserts as error the trial court’s failure to direct a verdict for Florida Freight on the basis of the so-called “Slavin rule,” which, in appropriate circumstances, has been held to sever the causal relationship between the negligence of an independent contractor and the harm resulting therefrom. We believe an accurate statement of the rule to be: An independent contractor is not liable for injuries to third parties after the contractor has completed his work and turned the project over to the owner or employer and it has been accepted by him unless the parties were dealing with inherently dangerous elements or the defect at issue was latent and could not have been discovered by the owner or employer. (Emphasis supplied.)

It is neither appropriate nor necessary for us to decide whether or not the vitality of the “Slavin rule” remains undiminished in the light of more recent supreme court rulings which strive to equate liability with fault in negligence actions, e. g. Hoffman v. Jones, 280 So.2d 431 (Fla.1973); and Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), because we find no error in the trial court’s refusal to direct a verdict in favor of Florida Freight. This is so for several reasons.

In the first place, a careful examination of the cases in which the rule has been allowed to operate to insulate an independent contractor from liability for his negligent acts or omissions reveals that the factual contexts of the cases generally encompassed the builder/subcontractor relationship vis-a-vis construction defects in buildings or delivery of material to a fixed job site. We decline to extend it at this late date into an area far afield from that in which we believe it was intended to apply, and on facts materially different from those in which the rule has been held applicable.

Secondly, it is clear that the rule was not intended to insulate an independent contractor from liability in circumstances in which inherently dangerous elements were involved. See Carter v. Livesay Window Co., 73 So.2d 411 (Fla.1954), and Breeding’s Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376 (1941), both cited in Slavin. The instant case presents just such a situation, for we deal with the dangers which arose from the shifting of unsecured cargo on an airplane, which, when moving, is itself a dangerous instrumentality. Orefice v. Albert, 237 So.2d 142 (Fla.1970). The only significant difference between window frames which are left on a job site unsecured (Carter) or electrical wires which are improperly connected in a stationary piece of equipment (Breeding’s) and a load of Christmas trees left unsecured when they should have been fastened is that the element of danger is exacerbated in the instant case by its association with an inherently dangerous object, the moving airplane. Thus the case before us presents, not a situation in which the rule could apply, but one in which the exception is applicable.

In a circumstance involving inherently dangerous elements, where evidence of negligence has been presented, questions of causation are properly for the jury to decide. Thus the trial court committed no error in refusing to direct a verdict for Florida Freight.

The above discussion necessarily is dispos-itive of appellant’s next assertion: that the trial court erred in failing to charge the jury that an independent contractor is not liable for injuries to third persons occurring after the work is turned over to the owner. Since the “Slavin rule” is inapplicable on the facts of this case, the requested charge was not in order. The charges given adequately covered the applicable law.

The next point we reach is whether the trial court erred in ruling that no portion of the $445,000 settlement was subject to being set off against the judgments in the instant actions. The release signed by Ferrera, as guardian of the children, acknowledges receipt of $445,000, and releases the settling defendants from “any and all actions, causes of action, claims, including claims for wrongful death . . . arising from the crash. It goes on to accept $222,500 on behalf of each of the children,

“for the purpose of making a full and final compromise, adjustment, and settlement of all claims of the said minor, and of his heirs and legal representatives and beneficiaries, past, present and future, including claims for wrongful death. . .. "

Section 768.041(2), Florida Statutes, (Supp.1977) provides:

At trial if any defendant shows the court that the plaintiff, or any person lawfully on his behalf, has delivered a release or covenant not to sue to any person, firm or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly. (Emphasis supplied.)

This provision was construed by the Florida Supreme Court as authorizing “to be set off from a judgment against one joint tort-fea-sor only the amount constituting a settlement for the damages or damage elements recoverable in the same cause of action against another joint tort-feasor.” Devlin v. McMannis, 231 So.2d 194 (Fla.1970), at 196.

The court went on to say:

The set off contemplated by the above-cited statutory provision must be interpreted so as to preserve the identity of the separate causes of action and the distinctive character of the damage element accruing under each such cause. The statute is designed, within the degree of specificity ascertainable under verdict and judgment procedures, to prevent duplicate or overlapping compensation for identical damages. However, in effecting this purpose, F.S. Section 768.041, F.S.A. does not require set offs where parties entitled to compensation for particular damage elements recoverable under one cause of action may be the beneficial recipients of compensation awarda-ble for different elements of damage accruing under another cause of action. Id.

It is clear that some portion of the $445,-000 was paid for the children’s wrongful death claims since their personal injury claims do not involve such substantial damages. The language of the release specifically includes as part of the settlement, claims for wrongful death, and while a set off of the total sum would be incorrect in view of the pending personal injury action between the children and Florida Freight, we hold that the trial court erred in finding, as a matter of law, that no portion of the $445,000 was subject to being set off against the judgments in the cases sub judi-ce. Clearly, some portion of the total sum is allocable to the wrongful death recovery. In the event that the plaintiff should prevail in a new trial, the court should conduct proceedings to determine the portion of the $445,000 which is applicable to the wrongful death claims in order that such sum may be apportioned as a set off.

In conclusion, we find merit in appellant’s contention that the trial court erred in admitting certain testimony relating to appellee’s damage claims. The economic loss theory advanced by appellee’s expert witness to determine the extent of the damages was not in conformity with the requirements of Section 768.21 of the Florida Wrongful Death Act. In any future proceedings in this cause, adherence to the provisions of this statute should be compelled.

In light of the above opinion, it is unnecessary to reach the question of whether the verdicts rendered were excessive.

Affirmed in part, reversed in part, and remanded for a new trial.

      . Slavin v. Kay, 108 So.2d 462 (Fla.1959).

      . Cf. Shorafa v. Ruprecht, 345 So.2d 763 (Fla.4th DCA 1977), in which our sister court evinced reluctant adherence to the rule, noting that it is not the function of a District Court of Appeal to override the Supreme Court of Florida.

      . We note, parenthetically, that even if some charge on the “Slavin rule” would have been appropriate, neither of Florida Freight’s requested instructions properly stated the rule since they omitted mention of the exceptions thereto which were applicable in this case.