author: ROBERTS, Justice. HATCHETT, Justice

text:
    In re Christina I. CONNORS.
    No. 46799.
    Supreme Court of Florida.
    May 5, 1976.
    Eric Haugdahl, Jacksonville, and James G. Mahorner, Tallahassee, for appellant.
    James T. Russell, State’s Atty., and George E. Tragos, Asst. State’s Atty., for appellee.
   ROBERTS, Justice.

This cause is before us on direct appeal from a final order of the Circuit Court, Sixth Judicial Circuit, which passes upon the constitutional validity of Section 394.-467(3) (b), Florida Statutes. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.

Pertinent to the determination of this cause are the following facts. Dr. Stuart Cahoon, Director of the Division of Mental Health, refused to admit Christina I. Connors to the State of Florida mental health facilities after her acquittal by reason of insanity and the subsequent Order of Commitment issued on December 2, 1974, by Circuit Judge Lawrence E. Keough of the Sixth Judicial Circuit pursuant to Criminal Rule 3.460. In the Order of Commitment, Judge Keough explained that the discharge of the defendant would be manifestly dangerous to the peace and safety of the people with whom defendant might come in contact with. On December 6, 1974, Judge Keough entered an Order to Show Cause directed to the Director of the Division of Mental Health to show why he should not be held in contempt of court for failure to comply with the judgment of acquittal by reason of insanity and Order of Commitment. In a Supplemental Commitment entered December 20, 1974, Judge Keough stated:

“This cause coming on to be heard upon the Order to Show Cause heretofore entered by this Court on December 6, 1974, and upon the Motion to Dismiss Order to Show Cause filed by Dr. Stuart Cahoon and it having been made to appear that Dr. Stuart Cahoon as Director of the Division of Mental Health, Department of Health and Rehabilitative Services is willing and anxious to carry out and fulfill his official obligations as Director and that because of the language contained in Florida Statute 394.467(3) (b), as amended, he believes that, notwithstanding Florida Rule of Criminal Procedure 3.-460, the defendant, Christina I. Connors, is not commitable to the Division of Mental Health of the Department of Health and Rehabilitative Services unless she is also civilly committed pursuant to Part I of Chapter 394 of the Florida Statutes; that this Court, pursuant to Rule 3.460 and as evidenced by this Court’s Judgment of December 2, 1974, has found that the discharge of the defendant would be manifestly dangerous to the peace and safety of the people with whom defendant might come in contact and intended that the defendant be forthwith committed to the Division of Mental Health for hospitalization and treatment in accordance with Rule 3.460 and that she not undergo further civil commitment procedures as set forth in Part I of Chapter 394; it further having been made to- appear that the refusal of the Division of Mental Health of the Department of Health and Rehabilitative Services to admit the defendant subsequent to December 2, 1974, although believed by the director to be justified, has caused the defendant unintended and additional incarceration in the Pasco County Detention Center where she has been a nuisance and danger to herself and others and that continuation of the status quo cannot be further tolerated by the Court.”

proceeded to find:

“1. That the, provisions of Florida Statute 394.467(3) (b) relating to Part I, Chapter 394 are unconstitutional or otherwise ineffective as applied to this defendant and others who are committed to the Division of Mental Health of the Department of Health and Rehabilitative Services by Court Order pursuant to Rule 3.460 after having been acquitted by reason of insanity and a finding made by the Court that defendant’s discharge or going at large would be manifestly dangerous to the peace and safety of the people.
“2. That under these circumstances, the above finding appears to be more appropriate at this time than a continuation of contempt proceedings against Dr. Stuart Cahoon.”

and ordered that:

“1. That Florida Statute 394.467(3) (b) is unconstitutional or otherwise ineffective and inoperative as applied to the defendant, Christina I. Connors, and all other defendants in like circumstances.
“2. That Dr. Stuart Cahoon, as Director of the Division of Mental Health of the Department of Health and Rehabilitative Services, admit the defendant, Christina I. Connors, for hospitalization and treatment within ten (10) days from the date hereof and that other defendants likewise be admitted in the future forthwith and without the occurrence of civil commitment proceedings who by Court Order are committed to the Division of Mental Health pursuant to Rule 3.460 upon Court findings that such person’s discharge or going at large shall be manifestly dangerous to the peace and safety of the people.”

Sub judice, Judge Keough’s determination of the present mental state of Connors as posing a dangerous threat to the peace and safety of the people was made separately from the judgment of not guilty by reason of insanity.

We agree with the reasoning and conclusions of the trial court under review and find that Judge Keough acted properly pursuant to Rule 3.460, Florida Rules of Criminal Procedure, in ordering that Christina I. Connors be committed after a determination of her mental state at the time of his Order of Commitment. Rule 3.460, Florida Rules of Criminal Procedure, provides :

“When a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to be cared for as an insane person and such person shall be held in custody until released by order of the committing court, or may give him into the care of his friends, on their giving satisfactory security for the proper care and protection of such person; otherwise he shall be discharged.”

A determination by the trial judge that one found not guilty by reason of insanity is manifestly dangerous to the community presupposes that the trial judge means that the defendant is manifestly dangerous at the time of commitment, because the jury verdict or adjudication by the trial judge of not guilty of the crime charged by reason of insanity relates to his mental condition at the time of commission of the crime which could have occurred many months or even years before the adjudication.

Section 394.467(3)(b), Florida Statutes, does not purport to veto or repeal Rule 3.460, F.Cr.R.P., as contemplated by Arti-ele V, Section 2, Constitution of Florida. Cf. In Re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973). Relative to appellant’s argument that the statute supersedes the rule because of the substantive nature of the matter dealt with therein, this Court stated in Powell v. Genung, 306 So.2d 113 (Fla.1974), at 115-116:

“This rule is substantially identical to Section 919.11, Florida Statutes, the statutory precursor of Rule 3.460, which statutory provision was repealed by the Legislature by Chapter 70-339, Laws of Florida, as having been superceded by the Rules of Criminal Procedure. Section 919.11, F.S., had been interpreted by the courts of this state to allow continuing jurisdiction over petitioner in the trial court to determine by subsequent hearing and order whether defendant was still manifestly dangerous to the public. State v. Eaton, 161 So.2d 549 (Fla.App.1964), Oksten v. State, 173 So.2d 489 (Fla.App.1965), cert. den. 177 So.2d 11 (Fla.1965), U.S. cert. den. 382 U.S. 867, 86 S.Ct. 138, 15 L.Ed.2d 105.”

The instant cause is controlled by our decision in Powell v. Genung, supra. The material questions of law argued, sub ju-dice, were discussed and disposed of in that decision and it would serve no useful purpose to repeat that discussion here.

In support of her position that Rule 3.-460 does not provide the proper constitutional safeguards, appellant cites Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). This Court in response to the same assertions by petitioner in Powell v. Genung, supra, opined:

“The committing court granted this full hearing whereat petitioner was represented by counsel, and at the conclusion of which the trial judge properly determined that petitioner continues at the present time to pose a danger to others. See Oksten v. State, supra, and State v. Eaton, supra.

Sub judice, defendant was given a hearing immediately following her adjudication of not guilty by reason of insanity to determine her mental condition and the danger posed thereby to the community at this time. At this hearing, defense counsel was present and both sides stipulated to the doctors’ reports.

The procedure set out by Rule 3.460, F.Cr.R.P., and that followed by the trial court below accord with the above-cited cases from the Supreme Court of the United States. Accord also: O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 decided June 26, 1975.

We are not unmindful that these decisions hold that such patients are not subject to the same periodic re-examinations as are those committed who have not been charged with criminal offense. Cf. Section 394.467(3) (a), Florida Statutes (1973), Ch. 75-305, Laws of Florida, 1975. However, we have no reason to believe that the trial judges of this State would not respond to a request for a current reexamination and redetermination of the defendant-patient’s mental condition at least within a period not to exceed six months; and, if further hospitalization is found to be necessary, thereafter, requests may be made for re-examination at reasonably separated periodic intervals or on the suggestion of the custodial official. Powell v. Genung, supra, Ch. 75-305, Laws of Florida, 1975. However, should such an unexpected denial occur, appropriate remedies are available under the law of this State. The Court now has under consideration an amendment to the present rule which would facilitate such periodic re-examinations.

Appellee argues and we agree that Connors has been accorded all necessary due process rights by the trial court including a hearing and determination by the trial court that she is presently manifestly dangerous to the peace and safety of the people. . • '

Accordingly, the trial court acted in accordance with Rule 3.460, F.Cr.R.P., in requiring that Connors be committed because she is manifestly dangerous to the peace and safety of the people at the present time. To the extent that Section 394.-467(3) (b), Florida Statutes, attempts to derogate the authority of the committing judge set out in Rule 3.460, F.Cr.R.P., such statutory provision is superseded thereby.

For the aforestated reasons, the judgment of the trial judge is affirmed.

It is so ordered.

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

HATCHETT, J., dissents with opinion.

ENGLAND, J., dissents.

HATCHETT, Justice

(dissenting).

In my opinion, no case or controversy is ripe for decision here. This case began as an ordinary prosecution of a citizen accused of crimes against property, but reaches us in a highly unusual procedural posture. Without doubting the importance of the question presented, I believe the Court oversteps jurisdictional boundaries in reaching the merits. While expressing the view that the legislature disregarded state constitutional limitations by enacting Fla.Stat. § 394.467(3) (b) (1974 Supp.), as amended, the Court fails to observe state constitutional restrictions on its own power, in my view. Accordingly, I respectfully dissent from the judgment of the Court.

A chronology of the case reveals, that the accused has dropped out of the proceedings and that only an abstract question remains in her stead. On July 19, 1974, an information was filed accusing Mrs. Christina Irene Connors of stealing a certain automobile. Mrs. Connors had earlier been arrested on this charge and was ordered released pending trial on “personal surety” bond. Because of an unrelated incident, on September 19, 1974, Mrs. Connors was taken by the police to the psychiatric ward of a general hospital, where she was placed under the care of a physician. She was discharged on September 24, 1974, “since there was nothing to justify committing her.”

Defense counsel filed a motion for sanity inquisition on October 29, 1974, asking that the court appoint experts to examine his client as to her “mental condition and sanity at the time of the alleged offenses . . . and as to her present capacity to stand trial.” Attached to this motion were a “psychiatric history”, a “psychiatric evaluation” and a “discharge summary”. These documents are set forth in pertinent part in the margin. The trial court granted defense motion for sanity inquisition by order dated November 5, 1974, and appointed two physicians to examine the appellant and to answer these questions:

Was the Defendant, CHRISTINA I. CONNORS, mentally competent and responsible on the day/at the time of the alleged commission of the offenses as alleged in the informations in these cases to the extent that she knew right from wrong or was aware of the nature and consequences of her alleged acts?
Was the Defendant, CHRISTINA I. CONNORS, mentally capable on the date of examination of understanding the charges of Petit Larceny and Motor Vehicle Theft which have been placed against her and to be aware of the gravity of the charges?
Was the Defendant, CHRISTINA I. CONNORS, capable on the date of examination of assisting her attorney in her own defense in these trials on the charges of Petit Larceny and Motor Vehicle Theft?
If the examination discloses that the Defendant, CHRISTINA I. CONNORS, is suffering from a mental disease which will incapacitate her in the manner implied by the previous questions, is this' mental disease of a permanent or temporary nature?

Missing from the record on appeal is any transcript of proceedings on December 2, 1974, which proceedings were deemed to obviate the necessity for trial by jury, earlier scheduled to begin the following day. The court minutes for December 2, 1974, are in the record and read, in part, as follows:

* * * * * *
The defendant appeared with her attorney, Robert Focht, Assistant Public Defender. The Court found the defendant not guilty by virtue of insanity and committed her to the State Hospital for hospitalization and treátment.
The Court advised the defendant of her right to appeal.
Court recessed at 8:20 p. m.

The trial court’s joint judgment of acquittal and order of commitment, and the psychiatrists’ letters, incorporated therein by reference, are in the supplemental transcript of record which this Court ordered to be prepared, sua sponte.

On December 6, 1974, the trial court, “having been advised that its [order of commitment] would not be obeyed unless and until [Mrs. Connors] underwent civil commitment pursuant to other provisions of the Baker Act”, directed an order to show cause to Dr. Stuart Cahoon, Director of the Division of Mental Health, why he should not be held in contempt of Court for failure to accept Mrs. Connors as an inmate in a mental institution. By motion to dismiss order to show cause, counsel for Dr. Cahoon brought to the trial court’s attention Fla.Stat. § 394.467 (3) (b) (1974 Supp.) which, as amended, had taken effect only a few months before. In response to Dr. Cahoon’ motion to dismiss, the trial court entered a supplemental commitment order dated December 20, 1974, declaring that “Florida Statute 394.467(3) (b) is unconstitutional or otherwise ineffective and inoperative as applied to the defendant . and all other defendants in like circumstances,” and concluding that such a finding “appears to be more appropriate at this time than a continuation of contempt proceedings against Dr. Stuart Cahoon.”

In its zeal to vitiate portions of Fla.Stat. § 394.467(3)(b) (1974 Supp.), the majority loses sight of the particular case before us. Even though the trial court’s ruling applies specifically “to this defendant,” and “other defendants in like circumstances” the majority makes no mention of the fact that neither Mrs. Connors nor any other criminal defendant is any longer a party to this cause. At no time has Mrs. Connors appealed from any order entered in the course of these proceedings. Dr. Cahoon was never adjudged in contempt, and the order to show cause directed to him was effectively dissolved by the order of December 20, 1974, which was entered of record three days later. The only notice of appeal filed in this cause begins, “FLORIDA DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, DIVISION OF MENTAL HEALTH, Appellant-Defendant, takes and enters its appeal .” In no accepted sense, however, was the Division of Mental Health, itself an arm of state government, a party defendant in Mrs. Connors’ prosecution.

This is not to say that the Division of Mental Health has no interest in whether statutes under which it operates are constitutional. Naturally the Division of Mental Health must be very concerned with such questions, and perhaps it would have standing on just that basis in some action for declaratory relief, brought pursuant to Fla.Stat. § 86.011 (1975). Cf. Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). There is no provision under Florida law, however, for “declaratory appeals.” Even where a case is certified to this Court by a District Court of Appeal as presenting a question of great public interest, the Court will refrain from deciding the merits if the question is not squarely posed by the certified case. State v. Burgess, Fla., 326 So.2d 441 (1976). Similarly, questions certified for appellate review pursuant to Rule 4.6, Florida Appellate Rules, 1962 Revision, go unanswered unless they are “determinative of the cause.” Rule 4.6(a), supra; Niemi v. Mebane Oil Co., Inc., 303 So.2d 661 (Fla. 4th App.Dist.1974); Iorio v. State, 297 So.2d 116 (Fla. 4th App.Dist.1974). In the present case, likewise, the Court is asked to resolve a difference of opinion with no assurance that its mandate will have any concrete effect.

Here as in Ervin v. City of North Miami Beach, 66 So.2d 235 (Fla.1953) the “real relief sought in this case is an Advisory Opinion of this Court construing a statute.” At 236. The Court should decline to grant such relief since the “Constitution of Florida only gives to the Governor of the State the right to request advisory opinions from the Justices of this court . . .” Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808, 811 (1946) (Brown, J., concurring). Certainly the Division of Mental Health of the Department of Health and Rehabilitative Services has not been authorized to seek advisory opinions from the Court.' The “judicial power” in Florida, as in the Nation, “is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction,” Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 255, 55 L.Ed. 246, 252 (1911), with the lone exception of gubernatorial requests for advisory opinions. When the Court overreaches its jurisdiction in order to decide questions which do not “determine actual controversies,” it invades the province of the other branches of government.

Ostensibly, the majority agrees with Mr. Justice Brown, when he wrote in Ready v. Safeway Rock Co., 24 So.2d at 810:

We must not forget that . . . our Constitution divides the powers of the State of Florida into three grand divisions, the legislative, the executive and the judicial departments.

It is on the ground of separation of powers that the Court today strikes down a statute which was reenacted, as amended, by unanimous vote of both houses of the legislature in the 1974 session. 1974 Journal of the House 1235; 1974 Journal of the Senate 788. According to the majority, the statute conflicts with a previously adopted court rule, and must therefore fall. But see Fla.Const, art. V, § 2(a) (1973). Whenever possible, however, striking down “a solemn act of the Legislature,” Sarasota-Fruitville Drainage District v. Certain Lands, etc., 80 So.2d 335, 337 (Fla.1955) should be scrupulously avoided. Singletary v. State, 322 So.2d 551 (Fla.1975); Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973); Overstreet v. Blum, 227 So.2d 197, 199 (Fla.1969). The majority asserts that such extreme action must be taken in the present case in order to preserve the separation of powers intact. Ironically, in the name of preserving the separation of powers, the Court has blurred the distinctions between the separate branches of government by passing on a statute as a general proposition, in much the same way the governor might, when exercising the power of the veto.

      . Section 394.467(3) (b) [Chapter 74-233], provides:
      “(b) In the event a person is ordered into a treatment facility under the provisions of the Florida Rules of Criminal Procedure or chapter 801 or chapter 917, the order shall adequately document the nature and extent of a patient’s mental illness. Any person adjudicated not guilty by reason of insanity pursuant to Rule 3.460 of the Florida Rules of Criminal Procedure shall be committed to the division for hospitalization and treatment in accordance with the provisions of this part. No person charged with a misdemeanor shall be committed to the division solely by Rule 3.210 of the Florida Rules of Criminal Procedure, but shall be admitted for hospitalization and treatment in accordance with the provisions of this part. The treatment facility may accept and retain a patient so admitted for a period not to exceed six months whenever the patient is accompanied by a court order and adequate documentation of the patient’s mental illness. Such documentation shall include a psychiatric evaluation and any psychological and social work evaluations of the patient and document the results of any criminal investigation on the patient. If a patient is considered to be suffering from an emotional illness to the extent that he cannot participate in his own defense, such documentation should include details regarding the evaluation which led to that conclusion. If further hospitalization is necessary at the end of his authorized treatment period, the administrator shall apply to the hearing examiner for an order authorizing continued hospitalization.”

      . In 1975, the Legislature of the State of Florida adopted Ch. 75-305 which added paragraph (h) to Section 394.467(4), Florida Statutes, to accord with Powell v. Genung, supra.

      . We are not unmindful of the decisions of the Supreme Court in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), and Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), with which the instant decision is clearly consistent. Those decisions deal with the right to a hearing before commitment to a mental hospital.”

      . Defense counsel represented to the trial court that Christina Welch and Christina Irene Connors are one and the same person.

      . PSYCHIATRIC HISTORY
      Admitted 9-19-74
      CHIEF COMPLAINT: This grossly obese white female was brought here by the police. Apparently she was intoxicated and was behaving in a very destructive manner, breaking windows, screaming and hollering, and was unable to account for herself. ■ When brought to the hospital she was uncooperative and did not comprehend why she was here at all, but the next day she complained that she was brought here under false pretext, that there was nothing wrong with her, she was only having an argument with her boyfriend, and the police are exaggerating and had beaten her up and have been against her all of the time. Obviously the patient has no recollection of what happened prior to the admission or she is minimizing the problems.
      PRESENT ILLNESS: The present illness was precipitated by an argument with her boyfriend, with whom she has been living for the past two months. She claims that she was moderately drunk but does not admit that she was disturbed in any way and feels that she does not need to be here at all, and there are charges framed against her by the police, who just want to harrass her. At the same time she admits that she has had some psychiatric problems in the past and had been in the following program in An-dover, New Jersey but she has not been following through regularly.
      PAST HISTORY: The patient has had a psychiatric hospitalization in Andover State Hospital in New Jersey but prior to that she claims that she has had no problem other than gross overweight, for which she finds no reason. She claims she does not eat too much, but in spite of that, her weight problem has been tremendous.
      MEDICAL HISTORY: The patient gives no history of previous illnesses or operations other than the obesity. She has had one child, who is now age 7, who lives with her parents, has had no other serious illnesses or operations.
      INVENTORY OP SYSTEM: She claims that she has irregular vaginal bleeding. There is no evidence of dizziness, convulsions, etc. GI system is negative. Respiratory system negative.
      SOCIAL HISTORY: Apparently the patient is the second child in the family and she was always close to the family and did not really make anything on her own. When her mother divorced her father, she was rather upset and started living on her own. At this time she said she got married to a boy and the marriage lasted for a short time. She has a child by this marriage. She is unable to take care of this child and he is now living in a foster home in New Jersey and she came here to Florida to plan moving here to her mother’s. Her mother now is remarried and the patient claims that since the mother has remarried, she has been upset and this is why she had to “shack up” with her present boyfriend with whom she does not get along. The patient does not seem to have a satisfactory work history.
      FAMILY HISTORY: As mentioned above, she only has a mother and a sister with whom she has no contact. Her husband is dead and she has a son six years old who lives in a foster home.
      PSYCHIATRIC EVALUATION MENTAL STATUS EXAMINATION: This fairly obese 28-year old white female appears to be rather agitated and restless, and wants to be released here on demand, and she claims there is nothing wrong with her, etc. Her speech is relevant and coherent, but very guarded and does not really elaborate on many things which are unexplainable. Obviously it seems to me that the patient has difficulty trusting people and avoids direct eye contact. I feel that the patient is rather paranoid but knows how to cover up fairly well. She denies any hallucinations, no delusions could be elicited except that everybody is against her and the police are framing charges on her, etc. She claims that most of the things that the police say that she said were framed up to keep her here, which seems to me to be a paranoid delusion rather than her trying to minimize her symptoms. She obviously minimizes and denies that she is ill at all, and has very poor insight into her problem and very poor judgment. She is oriented in all spheres. She appears to be functioning at a border-line level of intelligence and appears to have a very poor impulse control and rather immature for her age and she has a lot of dependency needs, especially on her mother, and it seems that the present episode might have been precipitated by the fact that the mother has remarried.
      PSYCHODYNAMICS AND SOCIODYNAM-ICS : I think the patient is rather immature and has poor impulse controls, is at the same time dependent on her mother, has a poor work history, etc., which suggests that she is a dependent personality and has difficulty in inter-personal relationships, with the result that any trauma precipitates a psychotic attack. The present one was probably precipitated by her being separated from her mother because of the mother’s remarriage, which she could not face. She does not seem to have any sustained interest in any job situation or anywhere, has lived on welfare, and has not satisfactorily done any work in the past.
      PRECIPITATING STRESS AND PRE-MORBID PERSONALITY: As mentioned above, I think the separation from her mother due her marriage and separation from her son, due to her inability to take care of him, have both been working on her and this has built her up into a state of paranoid delusion because everybody is against her because things are not going exactly as she plans. The patient has no strength to really do anything on her own without some direction.
      TENTATIVE DIAGNOSIS: I think the patient is a paranoid schizophrenic who is well able to cover up her symptomology and I think the alcoholic intoxication precipitated the acute psychotic episode.
      PROGNOSIS: Guarded.
      DISCHARGE SUMMARY
      Admitted: 9-19-74
      Discharged: 9-24-74
      PROVISIONAL DIAGNOSIS: Acute psychotic episode.
      REASON FOR ADMISSION: Apparently patient was behaving in a very destructive and bizarre fashion and was intoxicated and the police were called on the scene when she was seen breaking windows, etc. and was not able to control herself. When she was brought in here she claimed that there was nothing the matter with her, the police are against her and this is why they have made a false arrest, etc. etc. and did not seem to comprehend what was happening at all. According to the patient she has had no complaints whatever and everything that happened was just a slight argument between her and her boyfriend — with whom she has been recently living.
      SIGNIFICANT FINDINGS: The physical examination revealed that the patient is grossly obese and with a blood pressure of 140/90 and the rest of the systems were within normal limits. She complained that she had irregular vaginal bleeding but does not appear to be anemic or anything to substantiate this.
      Psychiatric examination revealed a 28 year old agitated restless woman who was unable to comprehend what was happening. She was demanding to be released from here, appeared to be very paranoid about the whole staff here as well as the police who had brought her here. Claimed that everybody was against her and trying to frame charges on her. She denied any hallucinations and no obvious delusional material other than this paranoid ideation could be noticed. She had obviously very poor insight and very poor problem and at the time of admission she was intoxicated.
      Lab workup showed that the patient’s hemo-globlin and BBC and WBC were within normal range. VDRL was negative. SMA-17 was normal. Urinalysis showed no abnormality. Chest x-ray was within normal limits.
      TREATMENT RECEIVED: Patient was encouraged to participate in all the activities and the milieu therapy which she very reluctantly did and always demanded to be released and claimed that she was not sick at. all and did not get any insight into her problem. However, she was also put on Thorazine 100 mgm. b. i. d. and 200 mgm. at hs which seemed to calm her down to a certain extent. All through the stay she complained about the medication, though admitted at times that it was relaxing her and make her think clearly. After about 48 to 92 hours she accepted that she needed some help and revealed that she has had previous psychiatric admissions into other hospitals and seemed to gain some insight into her problems. But basically the patient did not participate in any other activities other than just medication and on the 5th day she refused to sign voluntarily, and since there was nothing to justify committing her the patient was allowed to go at her own request in care of the police.
      CONDITION ON DISCHARGE: Improved. PLANS FOR FUTURE CARE: Including prescribed medications, patient has been discharged on 100 mgm. of Thorazine b. i. d. and 200 mgm. hs. She has been given 2 weeks supply and has been advised to continue her follow up with the Pasco County Mental Health Clinic.
      FINAL DIAGNOSIS : Physical — the patient appears to be grossly obese and had mild hypertension and should be treated for this on the out-patient basis.
      Psychiatric — SCHIZOPHRENIA, PARANOID TYPE.

      . Although no accusatorial pleading alleging petit larceny is part of the record before us, it appears that the subject of the alleged petit larceny consisted of the contents of the automobile in question.

      . Apparently no ruling was made by the trial court pursuant to Rule 3.210(a), RCrP as to Mrs. Connors’ competency to stand trial. See Fowler v. State, 255 So.2d 513 (Fla.1971); Emerson v. State, 294 So.2d 721 (Fla. 4th App.Dist.1974). There is no indication in the record that Mrs. Connors or her counsel raised the defense of insanity by filing notice pursuant to Rule 3.210(b), RCrP.

      . This cause coming on to be heard for determination of Defendant’s sanity at the time of the alleged offenses with a stipulation by the State and the Defendant that said issue shall be determined fully from the reports heretofore received from Drs. W. H. McConnell and Peter J. Spoto, upon Non-Jury Trial, and upon the stipulation of the State and the Defendant that said issue also be determined solely from the reports of the aforesaid examining physicians and the Court having received the stipulation and having carefully reviewed said medical reports finds as follows :
      1. That at the time of the alleged offenses, the Defendant was suffering from paranoid schizophrenia; that she did not know right from wrong and was insane.
      2. The discharge of the Defendant would be manifestly dangerous to the peace and safety of the people with whom Defendant might come in contact.
      Therefore, you, Christina I. Connors, being now before the Court, attended by your attorney, Robert Focht, the Court having returned a verdict of Not Guilty by Reason of Insanity, the Court does hereby adjudge you Not Guilty by Reason of Insanity of the offenses of Motor Vehicle Theft and Petit Larceny.
      Pursuant to Rule 3.460, Florida Rules of Criminal Procedure, the Defendant, Christina I. Connors, is hereby committed to the Division of Mental Health of the Department of Health and Rehabilitative Services, pursuant to Florida Statute 394.67 (3) (b) and the reports of each of the examining physicians are hereby incorporated herein by reference and made a part hereof.
      DONE AND ORDERED in open Court at New Port Richey, Pasco County, Florida, this 2nd day of December, 1974.

      .Dear Judge Keough,
      Thank you for referring Miss Christina I. Connors, age 28, to this office. She was brought to my office by Mr. LecoUris of the Public Defender’s office on Nov. 14, 1974. She was interviewed alone for background information and then she was examined alone at length.
      Miss Connors who is short and obese was concerned but pleasant and cooperative. She stated that she had frequent headaches, was easily upset and excitable sometimes to the point of developing blackouts lasting an hour or more. She admitted to very faulty memory particularly since receiving electroshock therapy in a New Jersey Hospital some three years ago.
      She said her parents were divorced when she was six years old and that there had always been mueh conflict between her mother and herself especially since the birth of the patient’s illegitimate son, now age 9 years. She admitted she had a long record of petty misdemeanors and frequent jailing since about 1964. When asked why, she said she needed to steal because she could not afford to clothe her son and herself. In about 1967, she began sniffing glue for relief from the constant bickering by her mother about her small son. This lead to further anti-social acts and more arrests for “glue sniffing”. About three years ago, her son was removed from her custody and she admits to a nervous breakdown that lead to her commitment to the New Jersey State Hospital where she received electroshock therapy. She does not remember any symptoms but does remember that she was admitted three or more times, the last of which was apparently in the spring of 1974. She was put on Thorazine and advised to not work, come to the South and now she is receiving Social Security disability checks of about $147.00 a month.
      She did come south because her mother who had remarried lives here with her husband. Due to a very faulty memory time and events are very vague and sketchy but she said she arrived in a Mississippi licensed car which she said she bought for $800.00 and which others say was stolen. On June 28, 1974, her latest altercation with the law occurred which is well documented and witnessesd in which she arrived at a bar with a bundle of her clothes and she ordered something to drink. She with the clothes was observed leaving in a car, not hers. The ear had been left unattended with the keys, a watch and some tape decks. The car was subsequently found several blocks away with her clothes in it. In the meantime, she attempted unsuccessfully to sell the watch. A short time later she was located nearby and denied having taken the car but on demand, gave up the keys and watch and also identified her clothes that were in the car.
      According to her version which she had maintained since the first until and including my examination, she and her mother had a bad argument. She decided to leave her mother’s home and packed her clothes in a bundle. She went to the bar to have a drink and later she went back home where the police showed up and arrested her. She said she became very upset and emotional which lead to her being hospitalized in a Tampa hospital where she remained for two weeks. Prior to her actual arrest, she denies any blackout saying she remembers perfectly everything from the time of her fight with her mother until she got back home. Being unable to account for her elothes being in the car, she says someone must have taken them from the bar and put them there.
      It is to be noted at this point that she freely admits to having periodic “blackouts” that are usually preceded by something unpleasant like being aggravated, accused, criticized, even drinking alcohol, and, in the past, too much “glue sniffing”. She also freely and unashamedly admits to shop-lifting, stealing, etc. under the excuse of need, and freely without a show of emotion, admits to mental and emotional disturbances requiring hospitalization, treatment and constant medication. It is indeed strange, except in a mental case, that she so tenaciously sticks to her átory of the last two car appropriations when she appears to be without shame, humiliation or embarrassment concerning so many of her previous anti-social activities, the birth of her illegitimate child as well as her own history of mental instability.
      The MENTAL STATUS EXAMINATION showed a woman with an actual, apparent and mental age of about 28, with a rather blank, unemotional expression. Her personality was ambiverted tending toward introversion. She alleges 11 years of education in a Catholic school in Philadelphia. There appeared to be no increase in tension and she seemed perfectly relaxed. Mental reaction was very sluggish and she had an extremely poor memory for past events in which she confabulated to cover up unremembered dates, times and places. Present memory was questionable. She was cooperative and interested and was concerned about her health and mental condition.
      She is in flight from the world of reality and responsibility. Insight and judgment are extremely poor. Her attitude was somewhat downcast and she blames everyone else for her troubles including her mother and the police. Behavior is within normal limits at this time. She is oriented as to time, place and person and denied specific hallucinations, illusions or delusions while on medication. She alleges no memory of past psychotic symptoms but there is a strong indication that she does suffer from delusions of persecution, and it is to be remembered that she is receiving disability checks following her last hospitalization in the New Jersey State Hospital.
      It is my opinion that the diagnosis is Paranoid Schizophrenia, in a state of poor remission even on medication and that she is borderline in regards to her competency or incompetency.
      In answer to the question of Miss Connor’s competency on June 28, 1974, only an educated guess can be given after almost four & % months of elapsed time. She allegedly had been released only a short time from the New Jersey State Hospital. It is not known whether she continued to take her medication (Thorazine) ; there was an alleged conflict with her mother; she was drinking and she denied in the face of all evidence that she illegally took either car, and it is a fact she was placed in the mental ward of a Tampa hospital following her arrest. I believe it would be safe to say that she was incompetent and did not know right from wrong at that time.
      On the date of my examination, she appeared to be fairly competent, appeared to know right from wrong and was very much aware of the gravity of the charges placed against her.
      On the date of my examination she was capable of assisting her attorney in her own defense for present occurrences but probably would be ineffectual as regards the times of her alleged offenses.
      It is my opinion that she is suffering from a reoccurring psychotic disability that shows up under stress in which she attempts to strike back at all the unfairness that the world, her family and others perpetrate upon her. During these periods, she does many anti-social acts that later, particularly under the threat of punishment, are excluded from her mind. When there is no stress and she continues with her treatment, she can make an adjustment and even hold down jobs that are not too demanding. Since it is the nature of this type of psychosis to recur under stress, it is respectfully suggested that she be put on probation and let out of jail only so long as she remains under the active care of a qualified doctor or clinic who would be empowered to hospitalize her whenever she becomes periodically incompetent.
      Respectfully,
      W. H. McConnell, M.D.
      Dear Judge Keough:
      As ordered by you I have performed a psychiatric examination on Christina I. Connors a 28 year old, short, obese female who had poor oral hygiene and decayed teeth were evident. She was brought here by her Public Defender who stated she was out on bond. She completed all of her examination with full cooperation on her part. She was extremely friendly and cooperative and did not hesitate to give a full account of her past history which is of significance in that she has been quite disturbed, both mentally and emotionally, off and on since about 1967. At that time she began sniffing glue. She had a tragic beginning and an extremely traumatic early life which, I am sure, contributed to her disturbance.
      Her mother is 48 years of age and has a weight problem. She lives in New. Port Richey. She has been married four times. The patient’s real father is 52 years of age. They were divorced when the patient was five years old. The patient has three step brothers ages 4, 5, and 9. She stated “the 5 year old is retarded”. She has two sisters, ages 27 and 26, who are apparently in good health.
      She was born in Philadelphia, Pennsylvania on April 1, 1946. She had an eleventh grade education and quit school at age 16. She had a common law relationship with a man and there is a child, a male age 9, who is a ward of the Court and is out of the State at the present time. She is on disability through Social Security because she is not able to work. She characterizes her problems as headaches, which she knows are emotional, and blackout spells. Despite her obesity, she stated she has had a recent weight loss of 25#. She came to Florida five months ago and was living with a man at the time of the alleged act because “we shared expenses.”
      According to the Statement of Facts the alleged act occurred on June 28, 1974. Following this alleged crime the patient had an acute psychotic episode which necessitated hospitalization. She was hospitalized on September 19, 1974 and discharged on September 24, 1974 with condition on discharge as improved and the final psychiatric diagnosis on discharge was Schizophrenia, paranoid type. She did not sign a voluntary hospitalization and for this reason she was discharged in care of the police. This occurred approximately three months subsequent to the alleged date of the motor vehicle theft and petit larceny.
      From the description of the Statement of Facts if this individual was drinking at the time, and she probably was, it would seem to me that she did not know right from wrong at the time of the alleged act. She probably was psychotic at that time. She denies any knowledge of taking the car.
      There is past history of hospitalizations in another State and she is on disability at the present time probably because of her mental illness. As stated above, she began sniffing glue in 1967. She was hospitalized two or three times at the Ancora State Hospital in New Jersey in 1967 and she was hospitalized at the Trenton State Hospital in 1969.
      At the time of my examination it is my feeling that she is able to understand the charge of Petit Larceny and Motor Vehicle Theft which has been placed against her and she is also aware of the gravity of these charges. She is capable, at this time, of assisting her attorney in her own defense on these charges. The patient is suffering from a chronic mental illness which has exacerba-tions and remissions and I am sure this will give her difficulty from time to time. The patient should have continued treatment at the local Mental Health Clinic. I think she is receiving treatment at the local Mental Health Clinic because she was referred there by her physician when she was hospitalized at the Tampa Heights Hospital in September of 1974. She stated she is taking Thorazine lOOmg, b.i.d. and Thorazine 200 mg., at h.s. Sincerely,
      Peter J. Spoto, M.D.


source: Caselaw Access Project

license: Public Domain

text:
    AMERICAN EMPLOYERS INSURANCE COMPANY and Snead Construction Corporation, a Florida Corporation, Defendant-Counterplaintiff-Appellants, v. J. H. ATKINS & ASSOCIATES, INC., et al., Plaintiffs-Appellees.
    No. 75-2199.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1976.
    Rehearing Denied June 15, 1976.
    Robert A. Hingston, of Welbaum, Zook, Jones & Williams, Miami, for appellants.
    Thomas F. Gustafson, Jr., of Gerald M. Walsh and Associates, P. A., Fort Lauder-dale, for appellee, J. H. Atkins & Associates, Inc.
   TROWBRIDGE, C. PFEIFFER, Associate Judge.

The trial court consolidated two pending suits to foreclose mechanics liens. The contractor, who was a party defendant in the first case but not in the second, filed a counterclaim and an Answer in the second suit. The plaintiff in that case then filed its motion to dismiss the counterclaim and a motion to strike the reference to the contractor in the Answer (which was filed jointly with that of the named defendant). The court below granted both motions and this interlocutory appeal followed.

The contractor claims that the consolidation made all parties in each suit parties in the other suit and all could plead from one suit to the other even though a particular party was only named in one suit.

The order of consolidation here did not have that effect and so the order on the motions to dismiss and to strike must be affirmed.

The contractor has also filed motions to intervene and to add itself as a party defendant in the suit. The trial court did not purport to rule on these motions although the contractor is assuming they were denied because of the rulings on the motions to dismiss and to strike. We believe that the case would proceed in a more orderly fashion if each motion and order is considered on its own. For this reason, the affirmance by this Court is on the premise that the motions to intervene and to add have not been ruled upon. The court below should proceed to rule on the pending motions and if they should be granted, a point we do not pass upon, similar pleadings to those dismissed and stricken may then be appropriate.

Affirmed.

CROSS and MAGER, JJ., concur.


author: PER CURIAM.

text:
    AMERICAN EMPLOYERS INSURANCE COMPANY and Snead Construction Corporation, a Florida Corporation, Petitioners, v. J. H. ATKINS & ASSOCIATES, INC., Respondent.
    No. 75-2168.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Robert A. Hingston, of Welbaum, Zook, Jones & Williams, Miami, for petitioners.
    Thomas F. Gustafson, of Gerald M. Walsh and Associates, P. A., Fort Lauder-dale, for respondent.
   PER CURIAM.

Certiorari denied. See American Employers Insurance Company v. J. H. Atkins & Associates, Fourth District Court of Appeal, 332 So.2d 348, opinion filed May 7, 1976.

WALDEN, C. J., MAGER, J., and RUDNICK, VAUGHN J., Associate Judge, concur.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    John C. BOSTIC, Appellant, v. STATE of Florida, Appellee.
    No. 75-767.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Rehearing Denied June 16, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

Bostic appeals from his conviction, after a jury trial, for the possession of marijuana. We reverse for a new trial because of the erroneous admission of evidence that, after his arrest, the defendant asserted his Miranda rights to remain silent and made no statement to the arresting police officers. Both of the officers in question so testified at the trial. The state, as it must, see Bennett v. State, 316 So.2d 41 (Fla.1975), concedes the impropriety of this testimony, but nonetheless argues for affirmance on the interrelated grounds that the defendant admittedly failed to object to the offending testimony below and that the error, if any, was harmless under all the circumstances of the case. We reject both of these contentions.

There can be no doubt that the error involving the admission of such testimony is of constitutional and fundamental dimensions, and thus does not require a trial objection to preserve the issue on appeal. The Third District, in Jones v. State, 200 So.2d 574 (Fla.App.3rd 1967), a decision recently followed and expressly approved by our Supreme Court in Bennett v. State, supra, squarely so held on facts identical to those before us here.

Nor, on the other hand, and even assuming — despite the Supreme Court’s statement in Bennett, at 316 So.2d 44, that the error “warrants reversal without consideration of the doctrine of harmless error’’ — that the doctrine applies at all to this situation, can the effect of the evidence be deemed constitutionally harmless in this case. At the trial, Bostic took the stand and admitted the possession of the marijuana in question. He claimed, however, that his having done so was merely for the purpose of making a deal for another “more serious” controlled substance in his capacity as a confidential informant for Officer Kelsey of the Orlando Police Department. Kelsey testified for the defendant that Bostic had, in fact, served as a “c.i.” for him in the past. Under these circumstances, the effect upon the jury of the obvious inference that, if this version were true, the defendant would have immediately related it to the arresting officers renders the testimony that he did not do so and chose to remain silent rather plainly harmful to the defendant’s position below. At the very least, “there is a reasonable possibility that it might have contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” Bennett v. State, supra, at 316 So.2d 44; Acee v. State, 330 So.2d 496 (Fla.App.4th, Opinion filed April 2, 1976).

REVERSED AND REMANDED.

WALDEN, C. J„ and CROSS, J., concur.


author: MAGER, Judge.

text:
    David Hartford WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1258.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1976.
    Rehearing Denied June 16, 1976.
    Arnold T. Blostein, Fort Lauderdale, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   MAGER, Judge.

For better or for worse the Supreme Court has recently decided the precise issue raised in this appeal holding that an acquittal does not collaterally estop the same issue from being tried in a revocation of probation proceeding. Russ v. State, 313 So.2d 758 (Fla.1975). Moreover, further appellate consideration would seem to be precluded by a decision of such recent vintage. Cf. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

AFFIRMED.

CROSS, J., and GALE, JOHN, Associate Judge, concur.


author: SCHWARTZ, ALAN R„ Associate Judge.

text:
    Marlene SILVESTRI, Appellant, v. STATE of Florida, Appellee.
    No. 75-1459.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Rehearing Denied June 15, 1976.

      Robert O. Beach, Law Office of Robert L. Saylor, North Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R„ Associate Judge.

During the first week of September, 1974, the defendant-appellant met two men named Bock and Avera in West Palm Beach. At their last meeting, one of two bizarre things happened — either, as Ms. Sil-vestri said, Bock and Avera stole $1,500 from her; or, as Bock and Avera said when they were apprehended for the reported grand larceny, she gave them a quantity of cocaine for them to sell for her (and which they later decided to appropriate for their own use). The police believed the latter version of the facts and, in return for their cooperation, including surrendering the cocaine supposedly in question, dropped any charges against Bock and Avera. Ms. Silvestri, however, was informed against for three alleged crimes: conspiracy to sell and possess cocaine, possession of cocaine, and making a false report of a crime, that is, the alleged larceny by Bock and Avera.

After a jury trial at which, it is fair to say, the credibility of Bock and Avera was rather seriously called into question, the jury found the defendant guilty of attempts to commit each of the three offenses with which she was charged. The trial judge adjudicated her guilty of the three “crimes” of attempted conspiracy, attempted possession and attempted false reporting, but sentenced the defendant — presumably because the first two crimes arose out of the same criminal conduct — only on the latter two. Ms. Silvestri appeals from the judgments and sentences against her.

The primary thrust of the defendant’s presentation here is that the evidence does not support the verdicts against her. This claim is, in turn, based upon a dual argument: first, that Bock and Avera’s testimony was so incredible and so severely impeached that no reasonable jury could have believed it; and, second, that any crimes charged to the defendant had been entirely completed — there was no evidence whatever that Ms. Silvestri merely attempted to commit them. Thus, it is claimed, the guilty verdicts for attempted crimes must represent a mere compromise among the jurors or reflect that the jury as a whole had a reasonable doubt covering the defendant’s guilt but did not desire to acquit her entirely, neither of which is permissible. See Sorensen, Compromise Verdicts in Criminal Cases, 38 Neb.L.Rev. 808, 814-815 (1959). The law of Florida does not allow us to accept either of these contentions.

As to the first, it is clear that no matter how unlikely or unreliable the state’s evidence may appear to us, the issue of its witnesses’ credibility is purely one for the determination of the jury. When, as here, there is evidence in the record to support a jury finding of guilt, we may not interfere with its verdicts against the defendant. Holland v. State, 129 Fla. 363, 176 So. 169 (1937). This simple statement of the law, with which everyone would agree, must make the rejection of the appellant’s second argument as to the insufficiency of the evidence all the more difficult to understand.

For there is no question at all that there is no evidence to support the verdicts which the jury actually returned. On this record, Ms. Silvestri either conspired, possessed cocaine and made a false report of crime or she didn’t. Indisputably she did not merely attempt to do any of these things. Nonetheless, the fact that she did not does not alone preclude affirmance of judgments which reflect that she did. This is so because the law of Florida now clearly requires that, unless waived, in every case in which a separate crime of an attempt to commit the completed offense charged exists under the law, an instruction and a verdict form concerning such an attempt must be given to the jury. Brown v. State, Fla. 1968, 206 So.2d 377, 381; Dobbert v. State, Fla.1976, 328 So.2d 433, 438-439; Lightfoot v. State, 331 So.2d 388 (Fla.App.2d opinion filed, April 14, 1976); Rule 3.510, F.R.Cr.P.; see State v. Terry, 336 So.2d 65 (Fla.Sup., opinion filed Feb. 25, 1976); but see Lomax v. State, 322 So.2d 650 (Fla.App.2d 1975), overruled in Lightfoot v. State, supra. The reason for this rule, in the light of its total lack of support in reason or logic, can only lie, as indicated by Judge Grimes at p. 389 in Lightfoot, in the Supreme Court’s sub silentio adoption of the theory that the jury must be given an opportunity — and thus obviously has the power — to grant the defendant a “pardon” for the more serious offense by convicting him only of a lesser one, even one which does not exist as a matter of fact. Bailey v. State, Fla.1969, 224 So.2d 296; Gilford v. State, Fla.1975, 313 So.2d 729, 735 (dissenting opinion). This conclusion requires, in turn, the holding that the jury cannot be faulted — and a defendant (who in this case did not object to the instruction on attempts) cannot be heard to complain — when the jury exercises its power to pardon him or her through the conviction of a crime which he or she undoubtedly did not commit.

But Ms. Silvestri insists that this did not happen in this case. She contends that the evidence against her was so weak and unconvincing that the verdicts “must have” either been a compromise or were returned notwithstanding the jury’s having a reasonable doubt of her guilt. As (we hope) reasonable persons reviewing the actualities of the real situation below, we might agree with the defendant, but, as judges, we are precluded from giving effect to any such belief. Simply stated, we are required conclusively to presume — and we could not even receive jurors’ affidavits to the contrary, State v. Smith, 183 So.2d 34 (Fla.App.2d 1966), and cases cited; Smith v. State, 330 So.2d 59 (Fla.App.1st, opinion filed April 13, 1976) — that the jury acted properly as to matters which necessarily inhered in its verdicts. Since the granting of a “pardon” was within the jury’s proper function, we must assume, even though we may suspect otherwise, that that’s what it did.

This conclusion leaves open, however, what perhaps should have been the initial inquiry in the case, that is, whether as stated in Brown v. State, supra, at 206 So.2d 381,

‘•‘as a matter of law ... an attempt to commit the crime charged would itself constitute an offense under Florida law.”

As to the crime of conspiracy, charged in Count I of the information, it is enough to say that we entirely agree with the reasoning and conclusion of Judge Hobson, speaking for the Second District in Hutchinson v. State, 315 So.2d 546 (Fla.App.2d 1975), that the “crime” of attempted conspiracy, of which the defendant was found guilty, does not exist under Florida law. Hence, Ms. Silvestri must be discharged as to this alleged offense.

We reach the same conclusion concerning the conviction of attempted making a false report of a crime. F.S. § 817.49 the violation of which the defendant was charged in Count III of the information, provides that

“Whoever willfully imparts, conveys or causes to be imparted or conveyed to any law enforcement officer false . reports concerning . . . crime . . knowing such . . . report to be false . . . shall ... be guilty of a misdemeanor . .

The offense is conceptually very similar to that of uttering or publishing “. . .as true a false . . . instrument . knowing the same to be false . . . ” under F.S. § 831.02. Just as the crime of uttering a forged instrument may be proven merely by an attempt to negotiate one, Harrell v. State, 79 Fla. 220, 83 So. 922 (1920), so, it would seem, the offense of making a false report is fully proven by demonstrating an attempt to convey false information to a police officer. Thus, the holding of the First District in King v. State, 317 So.2d 852 (Fla.App.1st 1975) which we followed in Jackson v. State, 328 So.2d 457 (Fla.App.4th 1976) that there is no offense in Florida of attempted uttering of a forged instrument because “there can be no attempt to commit . . . ” a crime which “is itself an attempt to do an act or accomplish a result” . . . 317 So.2d at 853, directly applies. See People v. Schmidt, 76 Misc.2d 976, 352 N.Y.S.2d 399, 403 (Crim.Ct.1974) (no offense of “attempted ‘interference with governmental administration’”). The defendant must be discharged as to the false report charge, as well.

This leaves the conviction for attempted possession of cocaine. Despite the logical difficulties admittedly involved and Judge Grimes’ rather broad and unsolicited hint of his disagreement in Lightfoot v. State, supra, we adhere to our conclusion in Nichols v. State, 248 So.2d 199 (Fla.App.4th 1971), that attempted possession is indeed a Florida crime.

Unfortunately, this is not the end of our consideration of the case. We cannot affirm the appellant’s conviction even on this charge because of egregiously prejudicial comments made during the prosecutor’s final argument to the jury. He stated, in part:

“The grand larceny charges were dropped because, obviously, the police didn’t believe that any money was ever taken.” * * * * * *
“Mr. Bock and Mr. Avera were, obviously able to convince the police of their truthfulness or they would have been the ones in trial today.”

There is no question that the trial judge erred in denying the defendant’s timely motions for mistrial and overruling her objections to these remarks. In Thompson v. State, 235 So.2d 354, 357, n. 1 (Fla.App.2d 1970), the Court reversed a conviction because of a state’s attorney’s argument which merely implied, as the one in this case explicitly stated:

“. . . that the law enforcement officials responsible for the pretrial proceedings all believed the appellant to be guilty. This implication is prejudicial. Cf. Blanco v. State, 150 Fla. 98, 7 So.2d 333.”

This Court likewise held in Price v. State, 267 So.2d 39 (Fla.App.4th 1972) that remarks similar to those made below were prejudicially erroneous. Particularly, in this case, in which the only real issue was whether Bock and Avera or the defendant was telling the truth, the argument in question was plainly “of such a character as to deprive [appellant] of [her] fundamental right to [a] fair trial [citing cases] . . .” Price v. State, supra, 267 So.2d at 40, and require a new one.

So it is that we are led inexorably to the conclusion that, at the option of the State, the defendant, who has been acquitted of the only charges against her sustained by the evidence and who therefore may not again be tried for those alleged crimes, Troupe v. Rowe, Fla.1973, 283 So.2d 857, 860; Smith v. State, supra, must be afforded a new trial solely for an offense the legal existence of which is in some question and as to which, as everyone acknowledges, there is no evidence whatever of her guilt. We all know, as Holmes said, that “ . . . [t]he life of the law has not been logic . . ,” but this is ridiculous.

Reversed and remanded with directions to discharge the appellant as to Counts I and III and grant a new trial on the charge of attempted possession of cocaine.

WALDEN, C. J., and CROSS, J., concur.

      . In passing, one wonders why a jury is permitted to pardon the defendant by finding him guilty of a crime he did not commit but is not permitted to do so by finding him guilty of a crime which no one could commit.

      . Of course, the defendant’s failure to object below to an instruction on a non-existent offense does not preclude our consideration of the issue, as fundamental error, on appeal. See Minor v. State, 329 So.2d 30, 31 (Fla.App.2d 1976), and cases cited.

      . Ibid.


text:
    TOWN OF PALM BEACH, a Florida Municipal Corporation, Appellant, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 75-1879.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Rehearing Denied June 16, 1976.

      H. David Faust of Burns, Middleton, Farrell & Faust, Palm Beach, for appellant.
    R. William Rutter, Jr., County Atty., and Lawrence J. Langer, Asst. County Atty., West Palm Beach, for appellee.
   PER CURIAM.

This is an interlocutory appeal from orders granting a temporary injunction and the denial of a motion to dismiss.

The plaintiff-appellee is Palm Beach County. The defendant-appellant is the Town of Palm Beach. The County brought suit seeking to restrain the Town from adopting an ordinance or resolution abandoning four beach access roads within the Town limits.

The trial court granted a temporary injunction upon finding that “the public will suffer irreparable harm by being denied access to the beach . . .” and it denied the Town’s motion to dismiss.

The appellate questions involve the propriety of the court’s orders granting a temporary injunction and denying appellant’s motion to dismiss. We also raised the question of the appellee’s standing to maintain this suit.

Upon more mature consideration of the case we have elected not to treat the propriety of the order denying the motion to dismiss as the complaint has not been included in the record. We also decline to pass on the question of standing since that issue was not presented to the trial court.

Turning now to the temporary injunction, we note that in general courts will not enjoin the exercise of discretionary powers conferred on municipalities, unless the act complained of is illegal, fraudulent or clearly oppressive. Although, on proper showing a municipality may be restrained from the arbitrary exercise of its lawful powers, for these powers must be exercised in conformity with the organic rights of individuals. 17 Fla.Jur., Injunction, § 57.

The view has been taken that the courts may enjoin the passage of an ordinance which is beyond the scope of the power of a municipal corporation where its passage would work irreparable injury, for in such a case the municipality is acting with no authority of any kind. McQuillin, Municipal Corporations, vol. 5, sec. 16.92, pp. 297-298.

To justify a temporaary injunction in this case the court must find that irreparable injury would accrue to appellee if the appellant was not enjoined while the suit was pending. However, it is clear to us that the irreparable injury which the trial judge found was not injury which could occur because the status quo was not maintained pending suit, but rather injury which will occur upon the passage and enforcement of the proposed ordinance or resolution. Since the later type injury could be prevented by injunction after the ordinance or resolution is passed, no irreparable injury is demonstrated.

Accordingly, the order granting temporary injunction is reversed and the cause is remanded for further proceedings.

WALDEN, C. J., DOWNEY, J., and MORROW, RUSSELL O., Associate Judge, concur.


text:
    CITIZENS AND SOUTHERN REALTY INVESTORS, Appellant, v. Walter LASTITION and Frenchman, Inc., et al., Appellees.
    No. 76-436.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1976.
    David C. Park, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.

      Eugene F. Bie, North Palm Beach, for appellee Walter Lastition.
   PER CURIAM.

The trial court erred in prematurely adjudicating the merits of defendant’s affirmative defense via a motion to strike as sham or as frivolous under Rules 1.140 and 1.150, F.R.C.P. The defense was legally sufficient upon its face and, as reflected, there were evident, bona fide and critical issues of fact there created (such as whether there was consideration and whether notice was given) Meadows v. Edwards, 82 So.2d 733 (Fla.1955); Guaranty Life Insurance Company v. Hall Brothers Press, Inc., 138 Fla, 176, 189 So. 243 (1939). The earliest proper procedural consideration of such issues would be under Rule 1.510, F.R. C.P.

REVERSED.

WALDEN, C. J., and CROSS and MAG-ER, JJ., concur.


author: MILLS, Judge. McCORD, Judge

text:
    Lynda B. DORMAN, Appellant (Respondent), v. Richard M. DORMAN, Appellee (Petitioner).
    No. X-364.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    Rehearing Denied June 15, 1976.
    Hume F. Coleman and Tedd N. Williams of Holland & Knight, Lakeland, Young J. Simmons of Green, Simmons, Green & Hightower, Ocala, for appellant.
    Ben Daniel, Jr., Ocala, for appellee.
   MILLS, Judge.

This is an appeal from a final judgment in a dissolution of marriage action. The wife contends that the trial court erred (1) in failing to award her adequate alimony, a reasonable share of the marital assets, and adequate child support, and (2) in failing to award her a special equity in the proceeds of the sale of Southern Outdoor Advertising, Inc.

The final judgment provides that:

1. the husband pay the wife $600.00 a month permanent alimony,

2. the wife have exclusive occupancy of the former marital home,

3. the husband pay the monthly mortgage payment on the home,

4. the wife have the household furnishings,

5. the wife have an automobile,

6. the husband pay child support of $400.00 a month for each of the two minor children,

7. the husband pay all medical and dental expenses that exceed $25.00 a month, and

8. the husband maintain a trust for the children which requires a payment of $400.-00 a month per child.

It would serve no useful purpose to recite the lengthy and conflicting evidence presented to the court. Suffice it to say that alimony and support awards should not be reversed or revised unless they represent an abuse of discretion or are unsupported by substantial competent evidence. West v. West, 260 So.2d 541 (Fla.App. 1st, 1972). Nor can we substitute our judgment for that of the trial court. We find no abuse of discretion, and the record reflects substantial competent evidence to support the awards.

The husband owned all of the common stock of Southern Outdoor Advertising, Inc. He, joined by the wife, entered into a contract to sell Southern to Norfolk Broadcasting Corporation. The contract contains various representations, warranties, and indemnification agreements on the part of the husband and the wife to Norfolk. As provided by the contract, two form promissory notes were attached which were payable to the husband and wife. However, the wife’s name was scratched through by the husband and initialed by him. Subsequently, the sale was closed and the notes were made payable to the husband alone. The wife did not know that her name had been deleted from the form notes attached to the contract nor did she know that the original notes were payable to the husband only until the dissolution of marriage action was filed.

By her answer, the wife sought a special equity only in the sale proceeds. At the trial, the wife sought to establish a gift by the husband to her, and fraud'by the husband which raised a constructive trust. After the trial, the wife filed a motion to conform the pleadings to the evidence. The record fails to show that the court ruled on this motion.

The judgment entered by the court denied the wife a special equity in the proceeds, and the evidence disclosed by the record supports this finding.

Not only did the wife fail to plead facts to support the theory of gift or a constructive trust, but she also failed to obtain the ruling of the court on her motion to conform her answer to the evidence.

Nevertheless, the evidence does not support a gift of the proceeds to the wife, because neither title to the stock nor title to the proceeds ever vested in the wife.

In addition, the evidence discloses that the wife failed to prove beyond a reasonable doubt, by clear and convincing evidence those factors giving rise to a constructive trust. Harris v. Harris, 260 So.2d 854 (Fla.App. 1st, 1972).

Following the trial, the wife discharged her attorneys and employed other attorneys to take this appeal. The former attorneys appeal the award of an attorneys’ fee to them, contending that the fee was inadequate. We agree.

Under the guidelines set forth in Provus v. Provus, 44 So.2d 656 (Fla.1950), and the evidence presented to the court by the attorneys, the attorneys’ fee awarded the wife’s attorneys was inadequate. Based on the evidence contained in the record, we are of the opinion that a reasonable attorneys’ fee for the wife’s former attorneys should be $12,145.00, and that this sum should be paid by the husband to the wife’s former attorneys after deducting any sum paid by the husband on the fee awarded them by the trial court.

Affirmed in part and reversed in part.

SMITH, J., concurs.

McCORD, Acting C. J., concurs in part and dissents in part.

McCORD, Judge

(concurring in part and dissenting in part).

I concur as to the award of attorneys’ fee for the wife’s former attorneys, but I otherwise dissent. During the course of this marriage, the husband accumulated an estate of the value of from one to one and one-half million dollars while the wife maintained the home and looked after the children. In my view it was an abuse of discretion for the trial court not to have allowed the wife a more substantial share of the estate — at least full title to the home. See Brown v. Brown, Fla.App. 1st, 300 So.2d 719 (1974).


text:
    Sandra Margaret CLARK, an infant, by her parents, Donald E. Clark and Margaret Clark, and Donald E. Clark, Individually, Appellants, v. Joseph T. VAN DE WALLE et al., Appellees.
    No. 75-1503.
    District Court of Appeal of Florida, Second District.
    May 21, 1976.
    Russell A. Meade and Irving Brand, of Bernstein, Sherr, Hodges, Lancer & Brand, Sarasota, for appellants.
    Daniel A. Carlton of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellees.
   PER CURIAM.

In this negligence case, the trial court granted a summary judgment for appellees/defendants. We reverse.

A summary judgment should be cautiously granted in negligence cases and the burden is on the moving party to conclusively demonstrate that there are no genuine issues of material fact. Holt v. Talcott, Fla.1966, 191 So.2d 40. All reasonable inferences must be resolved against the movant. Booth v. Mary Carter Paint Co., Fla.App.2d 1966, 182 So.2d 292. Upon review of the record, considering the evidence in the light most favorable to appellants, we find that appellees failed to prove the absence of genuine issues as to any material fact Accordingly, the judgment for appellees is reversed and this cause is remanded for further proceedings.

McNULTY, C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Nathaniel WARREN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1303.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and M. Ann Bradley, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Nathaniel Warren was charged by information with robbery, aggravated assault, unlawful possession of a firearm by a convicted felon and unlawful possession of a firearm while engaged in a criminal offense. A jury trial was held, during which the trial court granted Warren’s motion for judgment of acquittal on the count of unlawful possession of a firearm while engaged in a criminal offense. The jury found Warren guilty of robbery and aggravated assault. The trial judge adjudicated him guilty on those counts and dismissed the charge of unlawful possession by a convicted felon. Warren was sentenced to imprisonment in the state penitentiary for life for robbery, and to a concurrent five year sentence for aggravated assault. In this appeal, he only seeks review of his conviction on the charge of aggravated assault.

Defendant contends that because he was exonerated of the charge of unlawful possession of a firearm while engaged in a criminal offense, although he pointed the pistol at the victim of the robbery, the proof at trial was insufficient to show that the firearm was operable and, therefore, he cannot be convicted of aggravated assault.

Since the offense in this case occurred prior to July 1, 1975, it is governed by § 784.04, Fla.Stat., which in part states:

“Whoever assaults another with a deadly weapon, without intent to kill, shall be guilty of an aggravated assault. ...”

The pivotal question presented on this appeal of the defendant’s conviction is whether or not an inoperable gun pointed at someone is a deadly weapon. We hold that when, as in this case, a pistol is pointed at someone during the course of a robbery, the pistol, whether operable or inoperable, is a deadly weapon within the meaning of § 784.04, supra. Reasoning similar to that found in Bass v. State, Fla.App.1970, 232 So.2d 25, is applicable here. In that case, it is stated at page 27:

“Certainly, when one is confronted by another with a gun and does not know it to be unloaded, the natural reaction is to assume that the gun can be fired and can inflict great bodily harm. In such a situation and under the proper circumstances, it would not be unreasonable for the person assaulted to attempt to repel his assailant by inflicting upon him bodily harm, which attempt might result in the death of the assailant or in the deaths of bystanders in the event that the assailant was not subdued. In such a situation, the possibility of death is not unforeseeable even though the assailant did not load his gun.”

Affirmed.


text:
    Willie JOHNSON, a/k/a Willie Williams, Appellant, v. STATE of Florida, Appellee.
    No. AA-3.
    District Court of Appeal of Florida, First District.
    May 12, 1976.

      Richard W. Ervin, III, Public Defendant, David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant was adjudged guilty of manslaughter on May 30, 1973, and was sentenced to ten years’ imprisonment on September 26, 1975, At the time of adjudication, because of a plea bargain and appellant’s crippling injury by arresting officers, the trial court purported to suspend a sentence of ten years’ imprisonment and advised appellant, “[I]t has been agreed . that you will not have to go to prison at all.” More than two years later, after appellant committed a second homicide, amother judge of the same court reimposed a sentence of ten years’ imprisonment on the original conviction, prompting this appeal.

The original sentence could not lawfully be suspended. Bateh v. State, 101 So.2d 869 (Fla.App.1st, 1958), cert. disch. 110 So.2d 7 (Fla.1959). The court therefore had authority to correct the illegal sentence. Rule 3.800(a), R.Cr.P.; § 775.14, F. S.; Drayton v. State, 177 So.2d 250 (Fla.App.3rd, 1965), cert. disch. 181 So.2d 348 (Fla.1966). But because the adjudication on which the present ten year sentence rests was induced by a bargained plea on which appellant was assured that “you will not have to go to prison at all,” the spirit if not the letter of Rule 3.171, R.Cr.P., requires that the judgment and sentence be vacated and the case remanded to give appellant opportunity to withdraw the bargained plea of guilty to manslaughter. Cf. Thomas v. State, 327 So.2d 63 (Fla.App.1st, 1976).

REVERSED.

MILLS, Acting C. J., SMITH, J., and AGNER, ROYCE, Associate Judge, concur.


author: McCORD, Judge.

text:
    Jimmy B. POSTON, Appellant, v. Darlene POSTON, Appellee.
    No. Z-341.
    District Court of Appeal of Florida, First District.
    May 28, 1976.

      Robert R. McDaniel of Shimek & McDaniel, Pensacola, for appellant.
    Paul Cummings, Pensacola, for appellee.
   McCORD, Judge.

This is an appeal from a final judgment dissolving the marriage between the parties. Appellant husband contends that the trial court erred in not awarding him a special equity in the home of the parties.

The marriage lasted only six months prior to the filing of the petition for dissolution by the wife (appellee). The land on which the home of the parties was located originally belonged to the wife’s father. He conveyed it to the husband in return for a $9,000 note. The husband then secured a loan and built the home on the property, putting some of his own time and money into the house. When the marriage went on the rocks, the father threatened suit on the note. The husband then gave a quitclaim deed to the property to the wife and stated therein, “The instrument is in consideration of the cancellation of that certain promissory note to Thomas D. and Joyce M. Miller dated July 7, 1974, and is not determinative of any special equity the husband may have- in the wife’s property.” The father’s attorney then delivered the satisfied note to the husband. The transaction was handled by the attorneys for the respective parties and the father testified that he intended that the husband’s deed to the property be to him rather than to the wife. The wife contends that although title was taken in her name, the deed created a resulting trust in favor of her father because the deed should have been to her father. It does not appear, however, that there was any mistake on the husband’s part in his conveyance to the wife, and he did so specifically reserving his claim to a special equity. The husband’s testimony that he had put time and money in the property was not refuted, and the wife admitted it. The trial court denied the husband’s claim to a special equity. The claim of the husband was established by the evidence, and it was, therefore, error for the trial court to decline to award it and to not impress a lien upon the property for the amount awarded.

Reversed and remanded.

RAWLS, Acting C. J. , and SMITH, J., concur.


author: PER CURIAM. WALDEN, Chief Judge

text:
    Jo Marie GROVES, as Administratrix of the Estate of Leonard Michael Groves, Deceased, Petitioner, v. Gary Frank LEO et al., Respondents.
    No. 75-1069.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Rehearing Denied June 16, 1976.
    William E. Blyler, of Patterson, Malo-ney & Shankweiler, Coral Springs, for petitioner.
    John W. Fleming of Fleming, O’Bryan & Fleming, Fort Lauderdale, for respondents.
   PER CURIAM.

Certiorari denied.

MAGER and CROSS, JJ., concur.

WALDEN, C. J., concurs in part and dissents in part.

WALDEN, Chief Judge

(dissenting in part; concurring in part) :

I concur with the majority except as to appellant’s third point. It is my opinion that the jury correctly and with clear in-tendment determined the question of liability (but not damages). Thus, the trial court should have entered judgment on the issue of liability saving only the issue of damages for re-trial. Atlantic Coast Line Railroad Company v. Turpak, 225 So.2d 340 (2d DCA Fla.1969).


author: GRIMES, Judge.

text:
    Noah J. BEATTY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1415.
    District Court of Appeal of Florida, Second District.
    May 28, 1976.
    Jack O. Johnson, Public Defender, Dennis P. Maloney, Asst. Public Defender, and David S. Bergdoll, Research Assistant, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was convicted of involuntary sexual battery. He was sentenced to life imprisonment. The only point warranting discussion is whether he should have been examined pursuant to the provisions of the Child Molester Act before he was sentenced.

Where a person is convicted of an offense under the Child Molester Act, it is incumbent upon the trial judge prior to the imposition of sentencing to comply with the provisions of Fla.Stat. § 801.051 (1973). Johnson v. State, Fla.App. 2d, 1974, 292 So.2d 426. In the words of the statute, the issue turns upon whether involuntary sexual battery is “an offense within the meaning” of Chapter 801.

Fla.Stat. § 801.041 (1973) reads as follows:

“801.041 Definition of offense. — An offense under the provisions of this chapter shall include attempted rape, sodomy, attempted sodomy, crimes against nature, attempted crimes against nature, lewd and lascivious behavior, incest, attempted incest, assault (when a sexual act is completed or attempted), and assault and battery (when a sexual act is completed or attempted), when such acts are committed against, to, with or in the presence of, a person fourteen (14) years of age or under.”

Appellant argues that the Act is not limited to those crimes specifically enumerated and that involuntary sexual battery (formerly rape) is logically a crime intended to be covered by the Act. Thus, he suggests that the words “shall include” in Fla.Stat. § 801.041 (1973) indicate that other crimes of a similar nature may be read into the Act. Johnson v. State, supra, lends some credence to this contention because our court there held that attempted lewd and lascivious behavior was covered by the Act even though it was not specifically enumerated in the definitional statute.

The determination of this question requires us to consider the history of this Act. The Child Molester Act, which was first enacted in 1951, specified rape as one of the offenses to which the Act applied. Included in this Act was a provision which, following the examination of a person convicted of an offense within the meaning of Chapter 801, authorized the court either to commit such person for treatment or rehabilitation, or to impose the sentence otherwise provided by law. The Act was amended in several particulars by Chapter 28151, Laws of Florida 1953. Among the amendments was the elimination of the provision for sentencing to the sentence otherwise provided by law in favor of an authorization to sentence for a term not to exceed twenty-five years. Shortly thereafter, in Copeland v. State, Fla.1954, 76 So.2d 137, the Supreme Court was called upon to consider the effect of this amendment by a defendant who had been convicted of rape in the circuit court and sentenced to death. Copeland contended that since his victim was less than the requisite age his crime was under the Child Molester Act which now provided for a sentence of not over twenty-five years and that the court in which he was committed only had jurisdiction to try capital offenses. The court rejected this argument by holding that since the 1953 bill had sought to amend the penalty provisions of eleven separate statutes without so stating in its title, the amendment failed to meet the requirements of Section 16, Art. Ill of the State Constitution. The court concluded the discussion of this point by stating:

“It is unnecessary to discuss any other crime except that of rape and as applied to rape and the penalty therefor, Chapter 28158, Laws of Florida 1953, violates Section 16, Article III of the State Constitution, and is void and of no effect. Such being the case, the Circuit Court had jurisdiction to try the case and to impose the death penalty upon a verdict of guilty without recommendation for mercy.”

Presumably because of the Copeland decision, the legislature passed Chapter 29923, Laws of Florida 1955, in which rape was specifically eliminated from the enumeration of crimes defined as being within the provisions of the Child Molester Act. The title of this bill stated that its purpose was to exclude the word “rape” from the definition of offenses. While incest and attempted incest were added to the list in later years, the crime of rape remains conspicuous by its absence.

In McKee v. State, Fla.1967, 203 So.2d 321, a defendant who was sentenced to twenty-five years for assault with intent to commit rape argued that the provision of Chapter 801 which permitted him to be sentenced in excess of what he could have otherwise been sentenced for that crime was unconstitutional. He made the same argument advanced in the Copeland case many years before. However, the court held that the defective title of the 1953 amendment had been remedied by a general revision of the law enacted in a subsequent legislative session. Thus, the court stated:

“Our decision in Copeland, supra, was the result of a finding that the act in question was basically deficient in title. We did not declare it unconstitutional because of substance. The action of the Legislature in 1955 via Chapter 29923, Laws of Florida, cured the deficiency of form pointed out in Copeland. This ‘curing’ concept is in accord with the law and policy of our state. As we said in State ex rel. Badgett v. Lee, 156 Fla. 291, 22 So.2d 804, speaking through Mr. Justice Thomas:
‘We adopt the rule that an act, the title of which is insufficient, may become valid by incorporation in a general revision of the laws whether the insufficiency has been adjudicated or not.’ (at 807)
“Clearly, and we indicated the same in Badgett, supra, incorporation in a general revision of the statutes will not cure a particular act of any unconstitutionality of content. As previously stated, however, the deficiency herein was in regard to form or title — not substance or content.”

As a postscript to our historical analysis, it is worthy of note that the twenty-five year penalty provision of Chapter 801 was eliminated by Chapter 71-136, Laws of Florida 1971, whereby the court once again is given the option of sentencing the defendant pursuant to the provisions applicable to the crime of which he was convicted. For further commentary concerning the history of this legislation, see Buchanan v. State, Fla.App. 1st, 1959, 111 So.2d 51.

Appellant makes a plausible argument that the legislature must have intended for rape of a person fourteen years of age or under to be one of the offenses covered by the Child Molester Act. It does seem strange that attempted rape and other sorts of perverted activities involving persons of tender age should be included while the crime of rape is left out. It seems likely that when the legislature passed Chapter 29923, Laws of Florida 1955, and eliminated rape from the definition of offenses, it was trying to save the balance of the Child Molester Act from the effect of the Copeland decision. This was a misconception of the holding in Copeland because once the offending provision was included within the general statutory revision which customarily takes place during each legislative session, the title defect pointed out in Copeland would have no longer been applicable. Rodriguez v. Jones, Fla.1953, 64 So.2d 278. Had the legislature not passed Chapter 29923, even the penalty for rape would have been reinstated under the doctrine of State ex rel. Badgett v. Lee, 1945, 156 Fla. 291, 22 So.2d 804.

The problem we have is that the legislature affirmatively passed a law in which rape was deleted from the list of offenses under the Child' Molester Act. Despite what we may believe, it may be that the legislature did not wish to give those defendants convicted of the most heinous of the crimes defined under the Act the opportunity of obtaining an early release following treatment at a mental hospital. As a court, we believe we would be exceeding our authority to write into the Child Molester Act an offense which the legislature specifically chose to eliminate.

To the extent we have any doubts, they are set at rest by the case of Benson v. Florida Publishing Company, Fla.1972, 262 So.2d 196. There, a minor under the age of sixteen had brought a suit for invasion of privacy against a publishing company alleging that his name had been published as being charged with rape contrary to the provisions of Fla.Stat. § 801.221. This section prohibited the publication of the names of minors charged with sex crimes under the Child Molester Act. Without elaboration, the court looked to Fla.Stat. § 801.041 for the definition of crimes covered by the Child Molester Act and held that rape was not one of the enumerated crimes.

Accordingly, the court below did not err in refusing to order appellant to be examined pursuant to the Child Molester Act.

AFFIRMED.

HOBSON, A. C. J., and SCHEB, J., concur.