text:
    Alan DANIELS v. STATE.
    1 Div. 610.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Rehearing Denied June 29, 1976.
    Joseph 0. Kulakowski, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D.- Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Daniels was convicted of robbery and sentenced to IS years in the penitentiary. He was represented by retained counsel and at arraignment he pleaded not guilty. After conviction and sentence he gave notice of appeal and petitioned the Court for a free transcript and the appointment of counsel. He was found to be indigent and he was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The facts adduced by the State are undisputed that on November 12, 1974, between 6:45 and 7:00 p.m., the Majik Mart grocery .store located on Zeigler Boulevard in Mobile, Mobile County, Alabama, was robbed by a lone gunman. The bandit was a black man and according to the testimony of Mrs. Carol Hunter, the cashier on duty at the time of the robbery, she had seen the robber on three or four occasions as a customer in the store, but she did not know his name.

Appellant did not testify but offered several witnesses in support of an alibi.

Mrs. Hunter testified that she and another employee, Craig Doster, were the only persons in the store at the time the bandit entered the store. Doster was sitting on a stool behind the counter where the cash register was located and Mrs. Hunter was standing at the cash register. The bandit walked up to the cash register and Mrs. Hunter asked him if she could help him and he replied that she had what he wanted right there on the counter. He pulled out a pistol and pointed it directly in the face of Doster and ordered him to give him all the money he had in his pockets. Doster stood up and put his hands in his pockets and the bandit shot him in the face and Doster fell on the floor. The bandit then pointed the pistol on Mrs. Hunter and ordered her to give him the money in the cash register. She had about 80 dollars in currency and she handed him all the currency; he took the money in his left hand and put it in his pocket while still holding the pistol in Mrs. Hunter’s face. After he put the money in his pocket Mrs. Hunter stepped back and said, “For God’s sake, don’t shoot.” She turned her head and the robber shot her. The bullet entered the base of her skull and lodged under her chin. Mrs. Hunter fell back and was lying on the floor looking straight at the robber. She was still conscious. The robber leaned over the counter to shoot her again and at this point Craig Doster hollered, “We have been robbed, get an ambulance,” and the robber shot at Doster again but he did not hit him.

Mrs. Hunter further testified that the robber then left the store and Doster got up and came to her. She stated the store was well lighted and she got a good look at the robber at close quarters and she would never forget his face. She was asked to look in the courtroom and see if she recognized the man who shot her and Doster and she pointed to the defendant and made a positive in-court identification of appellant as the robber. She further said the robber was not disguised in any way and she looked him in the face from three to five minutes during the time it took to complete the shooting and robbery.

Mrs. Hunter further stated that she observed appellant standing outside the store for about two minutes before he came in the front door. She said she based her identification of appellant on the fact that he robbed and shot her that night in the store.

On cross-examination she testified that she had 20/20 vision and did not wear glasses. She was carried by ambulance to the hospital the night of the robbery and had an operation in which the bullet was removed from under her chin. The bullet was not removed during the first operation but that she had another operation at which time the bullet was removed. She was asked if she had been shown any pictures of the defendant and if she had viewed a lineup. She answered that she had previously identified appellant from photographs and had also identified him at a lineup.

Mrs. Hunter stated that she stayed in the hospital nine days after she was first admitted. That on the day following the initial operation by a team of surgeons she was placed in intensive care and that her condition was not critical, but guarded. That after she got out of intensive care Detective Robert Moore brought two photographs for her to view and he did not make a statement with respect to whether either one of the men in the photographs was a suspect in the robbery, but she identified appellant as one of the two who robbed and shot her. She said she was not in pain at the time she was shown the photographs and identified appellant but she did not know if she had been given anything for pain. She stated that when the police officers came to the hospital and asked her for a description of the robber, she told them he was wearing a dark brown jacket or windbreaker and black trousers.

Mrs. Hunter further testified that after she was released from the hospital, she went to view a lineup and positively identified appellant as the robber.

On redirect examination Mrs. Hunter testified that she was not identifying appellant in Court based on the photograph she had seen or the lineup she attended but that she was basing her identification of appellant because she saw him face to face in the store for three to five minutes at the time he shot and robbed her.

Craig Doster testified that he was 19 years of age at the time of appellant’s trial and that he and Mrs. Hunter were working together at the Majik Mart on November 12, 1974, at the time the store was robbed and he and Mrs. Hunter were shot. He stated that when the man walked into the store, he was sitting behind the cash register on a stool behind the counter, and Mrs. Hunter was behind the counter next to him. That the man walked to the cash register where Mrs. Hunter was standing and he heard her say, “May I help you?” He heard the man say, “You have everything I need right here,” and he saw the man pull a .22 pistol, nickel-plated, with hollow point bullets, out of his right coat pocket and point it toward his forehead, and said, “Give me all of the money you have in your pocket.” Doster said he had one penny in his pocket and he was going to give that to the man but he shot him in the forehead saying, “He shot me right here across this eye.” He lost the sight of that eye and had an artificial eye at the time he was testifying. He further stated that the surgeons who operated on him decided to leave the bullet in his head as it was too risky to take it out. He said that after he was shot, he regained consciousness on the floor about six feet from where he was when the robber shot him and about that time he saw the man shoot Mrs. Hunter. He thought he heard someone coming in the store and he hollered to them to, “get an ambulance, we have been robbed,” and then he heard another gunshot, but he did not know who fired the shot.

Doster further testified that the store was well lighted — that the store lights were brighter than the lights in the courtroom —that he got a good look at the robber’s face and that he would never forget that face. Doster was asked to look around the courtroom and see if he recognized the man that shot his eye out and he pointed to appellant and made a positive in-court identification of appellant saying, “That is him right there.” This witness was asked if he was identifying appellant because someone showed him some pictures and he replied, “No, sir. I am making that identification because he is the one who shot me at the store. I remember that face.”

On cross-examination Doster testified that at the time of the robbery he did not wear glasses and that his eyesight was 20/20 and that he still had 20/20 vision in his good eye. He said he saw the man outside of the store before he came in the front door, and walk to the cash register. That he was looking at the man’s face all the time he was talking to Mrs. Hunter and that when the bandit pointed the pistol in his face, he was close enough to see the holes in the points of the bullets.

Doster further stated that he was carried to the hospital that night and that he did not wake up until the next day. That he did not know what type of pain relieving medication was given to him but he knew he was given something for pain. He said Detective Moore came to see him in the hospital but he could not remember whether it was the next day or the day after. That he was shown three or four pictures but he didn’t make a positive identification.

Doster further testified that several days after he was released from the hospital he viewed a lineup of four or five men and they were all black and fairly young. He stated, “I made a positive identification in the lineup.” He stated that he did not go to the lineup with Mrs. Hunter, that Mrs. Hunter went first and after she made her identification, she went to another room. That he did not speak to Mrs. Hunter but he later understood that she identified somebody.

He stated he did not know that appellant had been formerly charged with robbery before he went to the lineup, and that no one told him they had caught the person who committed the robbery. That Detective Moore did tell him they had a suspect but he was not told that the suspect was going to be in the lineup. He said when he was shown' several pictures he made a tentative identification but he was not sure, but when he viewed the lineup, he made a positive identification.

On redirect examination he was asked if he needed to hear a voice to make an identification and he replied, “No, sir.” He was asked, “How do you identify a person?” and he replied, “Well, when somebody sticks a gun in my face, I don’t forget who did it.”

Howard H. Counts testified that he was an employee of the U. S. Postal Service as a letter carrier. That on the night of November 12, 1974, he drove his car to the Majik Market on Zeigler Boulevard and parked his car directly in front of the store. He was alone at the time. After cutting his motor off, he looked inside the store and got a good view of the cash register area. He saw a lady handing money to a man at the cash register and saw the man shoot her and the man ran out the front door and shot at him. He stated that he did not get a good look at the man’s face as he was ducking down in his car to keep from being shot. He could only remember the man wearing a brown looking coat. That he went to a lineup at the police station but he could not identify anybody. He did state that the man had the pistol in his right hand when he shot the woman in . the store and when he took a shot at him. After the robber left, he went to a telephone booth outside the store building and called the police and ambulance.

Mr. Counts further testified that the woman who was shot at the cash register fell on the floor behind the counter but while he was in the telephone booth, the boy who got shot came outside the store and he saw blood on the right side of his face. He said at that point two men came up and he sent the boy back in the store with these men and made him lie down.

On cross-examination he testified that he was not shown any pictures but he did attend a lineup in which there were five or six men and he understood the officers had a suspect in custody but he did not identify the robber in the lineup.

The State then rested and appellant made a motion to exclude the State’s evidence for failure to make out a prima fa-cie case and connect appellant to the crime. He further moved to exclude the identification of appellant because the State used illegal, unconstitutional and suggestive methods to prove appellant’s identification. These motions were overruled and denied.

Appellant then put on a parade of witnesses, most of whom were members of his family, or family connected, in an attempt to sustain his alibi. The testimonies of these witnesses were confusing and contradictory as to the time and places they saw appellant or about the time the robbery and shooting took place. There were so many discrepancies in their testimonies as to make their stories entirely suspect. It developed during the examination of the alibi witnesses that appellant was unemployed. He owned a Cadillac automobile and was several months behind in his payments.

On rebuttal the State called Detective Robert Moore and he testified that he got a radio call on the night of November 12, 1974, at 7:08 o’clock and the call was made by Mr. Counts and he went straight to the Majik Mart where the robbery and shooting took place. Subsequently, he carried two photographs to the hospital to show Mrs. Hunter. Before he went in to see Mrs. Hunter, he talked to her doctor and got clearance to visit her. The doctor told him she couldn’t talk because she had a tube in her throat. He asked the doctor if it was all right for him to talk to Mrs. Hunter and the doctor said, “Yes.”

The detective showed Mrs. Hunter the two photographs and when she saw the photograph of appellant, she became visibly-upset, and he asked her if he was the one who robbed and shot her and she nodded her head to indicate “yes.” The detective stated that Mrs. Hunter positively identified appellant from one of the two photographs. He further testified that Mrs. Hunter was not heavily sedated at the time he showed her these two photographs. After she identified appellant, Detective Moore told some other officers to pick up appellant on Wednesday, November 13, 1974.

The detective further testified that after Mrs. Hunter and Craig Doster were discharged from the hospital they separately viewed a lineup and both of them positively identified appellant as the robber. He further stated that appellant had an attorney at the lineup and his attorney told him not to say anything to Detective Moore and Moore did not ask him any questions. He did advise him of the Miranda rights and warnings.

Robbery is the felonious taking of goods or money from the person of another, or in his presence, against his will by violence or by putting him in fear, and such violence must precede or accompany the stealing. Tunstill v. State, 33 Ala.App. 460, 34 So.2d 857; Hardis v. State, 28 Ala.App. 524, 189 So. 216.

Appellant was not deprived of due process of law by virtue of the fact that a detective brought to the hospital two photographs for identification by the shooting victim, who was not able to visit the jail where appellant was confined, and who was required to be hospitalized for major surgery in an effort to save her life. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

As soon as she was released from the hospital, she was carried to a lineup and positively identified appellant at which time appellant’s counsel was present.

The victim testified that laying aside the photographic identification and her positive identification of appellant at the lineup, she based her identification of appellant in a face-to-face confrontation in close quarters in a well lighted store at the time she was robbed and shot. This was a clear case of an independent origin. Hannon v. State, 48 Ala.App. 613, 266 So.2d 825; Houston v. State, 49 Ala.App. 403, 272 So.2d 610; Thomas v. State, 50 Ala. App. 227, 278 So.2d 230.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Court said:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden-tification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, and with decisions of other courts on the question of identification by photograph.”

We hold there was sufficient evidence before the trial court, set out above, to show that the in-court identification by the victim stemmed from an independent origin; hence, fulfilling the requirements of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

An accused is not entitled to counsel at a pre-indictment lineup. Houston v. State, supra; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. However, in this case counsel for appellant was present and no due process questions are presented.

Alibi testimony, like all other conflicting evidence in a criminal prosecution, is an issue to be determined by the jury. The jury resolved this issue against appellant and that is that. Brown v. State, 229 Ala. 58, 155 So. 358; Gillis v. State, 242 Ala. 550, 7 So.2d 563; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613.

We have carefully searched the record and find no reversible errors.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ENGLAND, Justice.

license: Public Domain

text:
    Charles McCLOUD, a/k/a Charles N. McCloud, Appellant, v. STATE of Florida, Appellee.
    No. 48710.
    Supreme Court of Florida.
    June 30, 1976.

      Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles Corees, Jr., Richard W. Prospect and Richard L. Wilson, Asst. Attys. Gén., for appellee.
   ENGLAND, Justice.

By direct appeal we have before us for review the convictions of Charles McCloud for manslaughter and robbery. Our appellate jurisdiction is properly invoked inasmuch as the trial court directly passed upon and upheld the constitutionality of Section 39.02(5) (c), Florida Statutes (1975), which directs that minors be tried as adults following an indictment for certain major felonies. McCloud was a minor when an indictment was returned against him for first degree murder and for robbery.

The principal facts of this case are relatively simple. The state produced medical and eyewitness testimony which established that an elderly woman died as a result of a fall which occurred during the course of an episode caused by McCloud’s attempt to seize her purse in a parking lot in the City of Lake Wales. Among those testifying as an eyewitness was Pernell Robinson, a companion of McCloud at the time of the crime. Upon proper instructions the jury returned guilty verdicts of manslaughter and robbery, and the trial court imposed concurrent sentences of 15 and 30 years imprisonment.

Several errors have been asserted by McCloud concerning his conviction and sentence, principal among which are the validity of Section 39.02(5) (c), the sufficiency of the evidence adduced at trial, the validity of his sentences, and the allegedly prejudicial manner in which Pernell Robinson was questioned by the trial judge. Our review of the record discloses no reversible error, and we affirm the trial court in all respects.

(1) Section 39.02(5) (c), Florida Statutes (1975), provides:

“A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set out in § 39.06(7) unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult.”

McCloud argues that this section is unconstitutional because the happenstance of whether a minor will be tried as an adult depends upon a grand jury indictment for certain major offenses, which in turn is controlled by a prosecutor’s unfettered discretion to charge such offenses. We recently rejected this same attack on the statute in Johnson v. State, 314 So.2d 573 (Fla.1975), and we find no reason to reconsider that decision now. McCloud’s suggestion that the statute is in any event unconstitutional as applied to him is unfounded, as our later recitation of the proven facts will show. The trial court properly denied McCloud’s motion to dismiss charges against him based on the invalidity of this statute.

(2) The second issue raised by McCloud is that the state did not prove the crime of “robbery”, which consists of an unlawful taking by force, fear, assault or violence. In Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922), the “nice” distinction between robbery and larceny was explained to be the addition to mere taking of a contemporaneous or precedent force, violence, or of an inducement of fear for one’s physical safety. Any degree of force suffices to convert larceny into a robbery. Where no force is exerted upon the victim’s person, as in the case of a pickpocket, only a larceny is committed. See Colby v. State, 46 Fla. 112, 35 So. 189 (1903). The facts developed at McCloud’s trial indicate that he gained possession of his victim’s purse not by stealth, but by exerting physical force to extract it from her grasp. McCloud’s victim carried her handbag by a strap which she continued to hold after the purse had been seized by McCloud. She released the strap only after she fell to the ground. Furthermore, there was evidence the jury could believe which showed that McCloud attempted to kick his victim while she lay on the ground and after the purse had been secured. Although McCloud would have preferred that the jury disbelieve this testimony, the evidence before the jury was adequate to support a verdict of robbery.

(3) McCloud suggests that the trial court could not properly impose sentences on both guilty verdicts. He argues, essentially, that it is legally inconsistent for the jury to have found him guilty of manslaughter for an unlawful killing which occurred during a robbery, so that the robbery verdict must be vacated. We recently determined that a person can be separately convicted for both felony-murder and the robbery which precipitated the murder, and that dual sentences can be imposed on the convictions. Slater v. State, 316 So.2d 539 (Fla.1975).

We acknowledge that the verdicts here are inconsistent, but that fact does not lead to a conclusion that the robbery sentence must be vacated. Under Section 782.-04(1) (a), Florida Statutes (1975), Mc-Cloud was necessarily guilty of felony-murder. As the trial judge suggested, the jury simply may have found the felony-murder rule too harsh in this situation and reduced the penalty to the lesser-included offense of manslaughter. Since the error was in McCloud’s favor, he is in no position to complain of the lesser sentence.

(4) The final point on appeal which deserves discussion concerns the testimony of McCloud’s friend, Pernell Robinson. Robinson’s deposition had been taken well in advance of trial, but as the time of trial approached the prosecutor learned that Robinson was unwilling or unable to recall anything specific regarding the day of the crime. The prosecutor advised the court of this situation and a hearing was conducted outside the presence of the jury to determine whether Robinson would testify to any recollection of the events. Having ascertained that he would not, and at the prosecutor’s request, the trial judge called Robinson to the witness stand in front of the jury as the “court’s witness”.

Robinson’s testimony remained vague after initial examination by the prosecutor and by defense counsel. The trial judge had the jury removed and extensively questioned Robinson concerning his loss of memory. No justification was elicited which would account for the change of attitude, except perhaps the passage of time. The court’s attempts to refresh Robinson’s recollections from his earlier deposition were without success. The court then undertook more vigorous questioning which resulted in a comparatively more specific account. After this questioning the jury was returned and the state conducted further examination. Robinson related the details he had told to the judge. On being examined by defense counsel, Robinson was once more vague.

McCloud urges us to hold that it was improper for the trial judge to question Robinson in the manner he did and to permit Robinson to be called to the stand as a “court witness” for the purpose of allowing the state to ask leading questions. As to the latter, the trial judge had discretion to proceed as he did in the face of the state’s proffer and in an effort to exhort truth for McCloud’s trial, and his decision did not result in a denial of due process of law.

The more difficult issue concerns the trial judge’s questioning of Robinson. McCloud characterizes the circumstances of the interrogation as prejudicial to the defense, asserting that the trial judge used the prestige of his office to require Robinson to give testimony favorable to the state. This, it is urged, usurped the function of the prosecution. In contrast, the state characterizes the trial judge’s interrogation as essential to the development of truth, asserting that the trial judge had a responsibility to elicit direct factual evidence which had previously been shown to be within Robinson’s knowledge. We reviewed the record to resolve this dilemma, and we conclude that Robinson’s deposition must have contained a clear delineation of the events occurring on the day of the crime. He was present as an eyewitness, and he was sufficiently old to be capable of reciting facts relevant to the criminal episode. His deposition statement, which was lucid and responsive, makes that abundantly clear.

When directly questioned on the same subjects during the course of trial, Robinson suffered a near total lapse of memory. Under these circumstances, we believe the law imposes on the trial judge a duty to see that relevant testimony is not suppressed or lost, and that the jury be aided in their search for truth. Instances of prejudicial questioning can occur, of course, but we cannot conclude that one such occurred here. The trial judge here did not abuse his discretion by pressing Robinson, outside the presence of the jury, to recall specific facts germane to the crimes charged.

Finding no reversible error, McCloud’s convictions and sentences for robbery and manslaughter are affirmed.

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

SUNDBERG and HATCHETT, JJ., dissent.

      . Fla-Const. art. V, § 3(b)(1).

      . § 812.13, Pla.Stat. (1975).

      . It has been argued that there was insufficient evidence that McCloud caused the victim to fall. Our review of the record discloses sufficient evidence to support the jury’s finding of causation.

      . The record reveals that McCloud moved for a new trial at the conclusion of the case, but the grounds alleged do not appear and the hearing on the motion has not been trans-scribed. Unless McCloud voluntarily waived his right not to be placed in jeopardy a second time, the inconsistent verdicts here would not be grounds for a new trial. McCloud has not expressed before us any desire to waive his constitutional right.

      .Before the grand jury indicted McCloud, Robinson had given a statement to the police concerning the purse-snatching episode and, as a result of blaming McCloud, was indicted for being an accessory after the fact to first degree murder and robbery. Neither crime would produce a death sentence or life imprisonment. Robinson also was a juvenile at the time of the crime and therefore treated as a juvenile rather than an adult. He was eventually put on probation for his part in this adventure.

      . Counsel for both sides argue the rules of evidence concerning hostile witnesses and surprise. These matters would be relevant if we were faced with a case of a party impeaching his own witness. See Fla.R.Civ.P. 1.450(a) ; Foremost Dairies, Inc. v. Cutler, 212 So.2d 37 (Fla.4th DCA 1968). Here, however, the only issue was whether to permit leading questions to be asked of an uncooperative witness.

      . Anderson v. State, 88 Fla. 93, 101 So. 202 (1924).

      . Clark v. State, 122 Fla. 810, 165 So. 44 (1935).

      . See Robinson v. State, 161 So.2d 578 (Fla. 3d DCA 1964); Connley v. United States, 46 F.2d 53 (9th Cir.1931).

      . We note there is no suggestion that Robinson’s deposition was improperly or unfairly taken, or that the facts adduced from him at that time we retained by prejudicial questioning or the like.


author: SUNDBERG, Justice. BOYD, Justice ENGLAND, Justice

text:
    Laura Jean Hill GAMMON, Appellant, v. Ernest COBB, Appellee.
    No. 46616.
    Supreme Court of Florida.
    June 30, 1976.

      J. E. Satterfield, Clearwater, for appellant.
   SUNDBERG, Justice.

This cause reaches us on direct appeal from the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida. We have jurisdiction of the appeal pursuant to Article V, § 3(b)(1), Florida Constitution, and Rule 2.1 subd. a (5) (a), Florida Appellate Rules, in that the Circuit Court initially and directly passed upon the validity of Chapter 742, Florida Statutes, by holding that such statute is not unconstitutional, either facially or as applied to the circumstances of the instant case. Appellant filed suit in the Circuit Court below alleging in her complaint that appellant and appellee had cohabited together as man and wife for some twenty years, but that at the time they commenced cohabiting each had a living spouse by prior marriages, which had not been dissolved. Appellant further alleged that as a consequence of the cohabitation the parties were delivered of seven children and that until shortly before the filing of the instant suit the appellee accepted paternity of the children and regularly contributed to their support. The parties are now separated and at disagreement, and by her complaint appellant sought to have appellee designated as the natural father of the children and to require that he support them.

Appellee filed a Motion to Dismiss the complaint on the ground that on its face the appellant was without standing to seek the relief prayed for in that under Chapter 742, Florida Statutes, actions are limited to unmarried women, an essential allegation absent from the appellant’s complaint. The very able trial judge, upon the authority of Lorenz v. Jiminez, 163 So.2d 500 (Fla.App.3d 1964), dismissed the complaint with prejudice and ordered that the cause be removed from the court’s registry of pending cases. In the Lorenz case, supra, the District Court of Appeal of Florida, Third District, affirmed the dismissal of a complaint on the ground that it failed to allege that the child whose paternity was sought to be established was born out of wedlock to an unmarried woman, and the trial court in the case sub judice concluded on the authority of that case that the unmarried status of the plaintiff in a paternity proceeding is jurisdictional under Chapter 742.

Thereupon plaintiff timely filed a Motion for Rehearing and Amendment of Order on Motion to Dismiss, in order to gain a ruling on the constitutionality of Chapter 742, Florida Statutes, as applied to the instant case. The trial court, accordingly, entered its amended order on defendant’s Motion to Dismiss, ordering and adjudging that Chapter 742, Florida Statutes, is not unconstitutional, either facially or as applied to the circumstances of this cause, citing as authority the opinions of this Court in Kennelly v. Davis, 221 So.2d 415 (Fla.1969) and Brown v. Bray, 300 So.2d 668 (Fla.1974). This appeal ensued.

The issue squarely presented again to this Court, in light of our decision in Ken-nelly, supra, is whether the Legislature may constitutionally limit actions for determination of paternity and support of illegitimate children by the natural father to unmarried mothers of illegitimate children, precluding married mothers of illegitimate children such relief. The appellant asserts in the first instance that Chapter 742, Florida Statutes, should be so construed by this Court as to judicially excise the word “unmarried” from the statute; and if we are unwilling so to do, then, in the alternative, to rule that the statute violates the provisions of Article I, § 2 of the Constitution of the State of Florida and Amendment Fourteen of the Constitution of the United States as depriving equal protection; of Article I, § 21 of the Constitution of the State of Florida, providing that the courts shall be open to every person for the redress of any injury; and of Amendment XIX of the United States Constitution prohibiting discrimination by reason of sex.

The pertinent sections of the statute under attack are § 742.011, Florida Statutes, providing:

“Any unmarried woman who shall be pregnant or delivered of a bastard child may bring proceedings in the circuit court, in chancery, to determine the paternity of such child.” (Emphasis supplied)

Also, § 742.10, Florida Statutes, providing:

“This chapter shall be in lieu of any other proceedings provided by law for the determination of paternity and support of bastard children.”

The Florida Bastardy Act had its genesis in 1828. Act of January 5, 1828, Section 1. At that time proceedings were initiated by a complaint before a justice of the peace or magistrate, who, upon a finding of sufficient grounds, ordered the defendant to appear before the circuit court. Consequently, the proceedings were quasi-criminal in their inception but became civil once they reached the circuit court. State v. Rowe, 99 Fla. 972, 128 So. 7 (1930). Today the proceedings are civil in nature from their inception. Section 742.011, Florida Statutes. As initially enacted in 1828 the law provided that any “single woman who shall be pregnant or delivered of a child, who by law would be deemed and held a bastard” was entitled to bring an action for a limited recovery “not exceeding fifty dollars yearly,” for expenses attending birth, etc. (Emphasis supplied). This provision was changed by Chapter 26, 949, Laws of Florida 1951, to read that any “unmarried woman who shall be pregnant or delivered of a bastard child may bring proceedings” and then provided for a more liberal allowance for the expenses involved. (Emphasis supplied). In Sanders v. Yancey, 122 So.2d 202 (Fla.App.2d 1960) it was concluded that the indicated change in wording was not sufficient to merit a construction of the statute other than that placed on the wording of the former provision by the Supreme Court.

Although this Court and the District Courts of Appeal of this state in Ken-nelly, supra, and Lorenz, supra, have previously held that a married woman may not maintain an action to prove the illegitimacy of her child, the rule is just the contrary with respect to a husband. As stated in Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163 (1944) “. . . The rule is well established in this country that the husband may make the attack, but in so doing he must overcome the strong presumption of legitimacy by clear and satisfactory testimony.” In that case the Court reiterated the almost universal rule of Anglo-American jurisprudence that where the legitimacy of a child born in wedlock is questioned by the husband and reputed father, one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized.

We turn now to the appellant’s assertion that this Court migh't properly construe out the word “unmarried” in Section 742.011, Florida Statutes. Although we might be greatly tempted to engage in such statutory construction to reach a desirable result in this case, no sort of mental gymnastics available to the writer can bring about an intellectually honest construction of the word “unmarried” to include a woman who is legally married to other than the natural father of the child at the time of that child’s conception and birth. Laudable results cannot justify patently ignoring a plain term such as “unmarried.” Appellant urges us to determine that she was “de facto” unmarried at the time the children here involved were conceived since appellant has had no contact with her legal husband for a period of twenty years and has cohabited with appel-lee during that period of time. This is too fragile a basis upon which to bottom a decision. In every suit brought by a married woman under Chapter 742, Florida Statutes, it would be incumbent upon the trial judge to inquire into every aspect of the then existing relationship between the plaintiff and her legal husband to ascertain whether the marriage relationship has been de facto dissolved. The result would be to convert each such Chapter 742 proceeding into a quasi dissolution of marriage proceeding. At what point in time and under what circumstances does she become “unmarried” ? What standing would the legal husband have to controvert the assertion by the wife that she has become “de facto unmarried” ?

Since we are unable to construe the statute in the fashion asserted by the appellant and are unwilling to accept a principle of law that a woman can somehow become “de facto unmarried” there remains the question of the constitutionality of § 742.011, Florida Statutes. Plainly stated, does the statute deny the children of the appellant equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Article I, § 2 of the Constitution of the State of Florida or access to the courts mandated by Article I, § 21 of the Constitution of the State of Florida? The test, basically, is whether the classification made by the Legislature in § 742.-011, Florida Statutes, is reasonable. As pointed out in McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) in order for a statutory classification not to deny equal protection, it must rest on some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed. Were we restricted to an examination of Chapter 742, Florida Statutes, and the cases expressly construing it we would be impotent to entertain an equal protection attack on its constitutionality, particularly in view of the principle binding upon this Court that “all reasonable doubts as to the validity of statutes under the Constitution are to be resolved in favor of constitutionality.” In re Estate of Caldwell, 247 So.2d 1 (Fla.1971); Capelouto v. Orkin Exterminating Co. of Florida, 183 So.2d 532 (Fla.1966); Kass v. Lewin, 104 So.2d 572 (Fla.1958); Waybright v. Duval County, 142 Fla. 875, 196 So. 430 (1940). The argument can be stated that it is reasonable to classify married women as not being entitled to prosecute a suit under the statute because their very success in the suit results in the child being judicially determined and labelled a bastard in the face of the presumption that the child is legitimate, whereas in the case of an unmarried woman the child carries the stigma of bastardy before commencement of any suit. However, we are not obliged to consider this matter in a vacuum, without recourse to developments in society as well as in the law occurring either contemporaneously or subsequent to the cases reviewed above which have heretofore passed upon the constitutionality of Chapter 742, Florida Statutes.

In society — like it or not (and the writer does not like it) — the fabric of our society related to the institution of marriage has been sorely rent and promiscuity has been the result. Four decades ago 89,500 illegitimate children were born in the United States. By contrast, over 318,000 illegitimate children were born in the year 1967. The illegitimacy rate grew 16.9 per thousand unmarried women between 1940 and 1967. Obviously, these statistics cannot be correlated to illegitimate offspring of married women, but they demonstrate the magnitude of the problem of illegitimacy in our society today and the attendant financial burden to the state if the natural parents are not made to bear that burden to the fullest extent possible. This consideration points up, of course, the real party in interest in this matter — the innocent child. Under the principles of Eldridge and Ken-nelly, supra, the anomalous situation exists where the reputed father of an illegitimate child born to his wife can attack the child’s parentage and be relieved of the obligation to support the child, but at the same time the wife may not maintain a suit to compel the putative or natural father to provide support for the child. The rhetorical question is presented — who is the loser in this rondo P Obviously, it is the innocent child. What public or social purpose is served by such result? Does it inhibit promiscuity on the part of married women? We submit that there is no such evidence.

In law — although the Legislature declared in § 742.10, Florida Statutes, that the chapter is in lieu of any other proceeding provided by law for the determination of paternity and support of bastard children, the public policy of the State of Florida for recognition and support of illegitimate children by the natural father (regardless of the marital status of the mother) has been expressed in other statutes and decisional law, notwithstanding such legislative enunciation. Section 440.02(13), Florida Statutes, a part of the Workmen’s Compensation Act passed in 1935, provides for support under that Act of an “acknowledged” dependent illegitimate child. This Court has permitted such “acknowledgment” of an illegitimate child conceived less than four days before its father’s death to be proven by hearsay and other evidence. See Ezell-Titterton, Inc. v. A.K.F., 234 So.2d 360 (Fla.1970). Such, in effect, was a “proceeding to determine paternity” under the Workmen’s Compensation Act not barred by § 742.10, Florida Statutes. By a provision initially enacted in 1955, now appearing as sub-section 39.-11(2) (e), Florida Statutes, when any child is adjudicated by the juvenile division of the circuit court to be a dependent child the court has the power to order the natural father of an illegitimate child “who has acknowledged his paternity in writing before the judge” to pay to the person or institution having custody of such child reasonable sums of money for the “care, support, maintenance, training and education of such child.” Does this proceeding not “determine paternity” ?

In 1965 the Legislature amended Chapter 856, Florida Statutes, by adding sub-section 856.04(2), Florida Statutes, making it a crime to withhold support from an illegitimate child whose paternity has been adjudged in this or any other jurisdiction. This statute allows foreign jurisdictions to determine paternity by a procedure and under circumstances which may he wholly repugnant to Chapter 742, Florida Statutes. There are a number of jurisdictions which do not require that the mother be unmarried to sustain a paternity suit as does Florida. See, e.g., Uniform Act on Paternity which has been adopted by Kentucky, Mississippi, Montana and Utah; also Franklin v. Julian, 30 Ohio St. 2d 228, 283 N.E.2d 813 (1972), where the “unmarried” requirement was held to deny equal protection and therefore unconstitutional. Consequently, the illegitimate child of a married woman who has had his paternity judicially established in one of the above-named foreign jurisdictions may have his father prosecuted criminally in Florida, but Chapter 742, Florida Statutes, would prohibit a similar illegitimate child situate in Florida from receiving the benefits which accrue under Chapter 742, Florida Statutes. Comity or full faith and credit might require Florida to recognize a status of paternity adjudged in a sister state. The crime of non-support completed in that state might require Florida to render the father on extradition warrant. But in the absence of a Florida statute, no foreign judgment, of status or otherwise, can constitutionally require Florida to prosecute criminally any man for an act or omission in Florida which is not criminal under Florida law.

In 1972, the Legislature amended the wrongful death statute to include within the definition of “survivors” an illegitimate child of a father who “has recognized a responsibility for the child’s support.” Sub-section 768.18(1), Florida Statutes. In a case decided by the Fourth District Court of Appeal of Florida construing the classification of “survivors” under the wrongful death statute prior to the 1972 amendment, that court concluded, upon the authority of Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), that illegitimate children of the deceased were entitled to recover under the statute where they were dependent on the deceased, rejecting the contention that such entitlement should be denied them because the decedent had not prior to his death acknowledged them to be his children as provided in § 731.29, Florida Statutes, as it then existed. Evans v. Atlantic Cement Co., 272 So.2d 538 (Fla.App. 4th 1973).

In Sacks v. Sacks, 267 So.2d 73 (Fla. 1972) this Court in reviewing a decision arising out of a divorce proceeding held that the husband was required to provide support for his natural child which was conceived by his wife while legally married to a former husband. The Court, speaking through Justice Adkins, distinguished the principle enunciated in Eldridge, supra, on the basis that the natural father had admitted his fatherhood and then effected a marriage to the child’s mother after her divorce from her former husband. Nonethe- ' less, the result is the same in that it permitted a woman who was legally married when the child was conceived to rebut the presumption that her former husband was the father of the child thereby imposing the obligation on the natural father to provide support. Although the factual situation in Sacks, supra, is distinguishable, the principle espoused therein, as follows:

“The courts of this State have created a strong presumption in favor of legitimacy to protect the interests of the child when the child was either born or conceived in wedlock. Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177 (1934), and Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163 (1944). This presumption as noted above was created to protect the welfare of the child. To now utilize this same presumption to deny this child support■ is to destroy the very reason for its existence. The welfare of the child demands that we recognize and honor not the fiction, but the underlying purpose upon which the fiction was created.” (Emphasis supplied)

is applicable.

An illegitimate child’s right to support cannot be contracted away by its mother. A release executed by her is invalid to the extent that it purports to affect the rights of the child. Cf. Shinall v. Pergeorelis, 325 So.2d 431 (Fla.App. 1st 1975); Walker v. Walker, 266 So.2d 385 (Fla.App. 1st 1972). The mother is merely the trustee to receive the funds and simply convert them into relief for the children. The obligation of support is for the benefit of the child. Being only a conduit, she has no right to control benefits due and owing to the child by its natural father by fixing her marital status.

It can be seen, then, that either by statute or decisional law illegitimate children have been classified as being entitled to support from their natural fathers in the following instances:

a) a child of an unmarried woman under the provisions of Chapter 742, Florida Statutes;
b) a child whose father has acknowledged paternity in writing before a judge in the juvenile division of the circuit court, without regard to the marital status of the mother, pursuant to § 39.-11 (2) (e), Florida Statutes;
c) a child whose paternity has been adjudicated in a foreign jurisdiction, by whatever procedure or whatever evidence may be proper there, without regard to the restrictions on such procedure in Florida, pursuant to sub-section 856.04(2), Florida Statutes;
d) vicariously under sub-section 440.-02(13), Florida Statutes, the Workmen’s Compensation Act, where the child has been “acknowledged” even by circumstantial evidence, by the father;
e) vicariously through damages for wrongful death where the natural father “has recognized a responsibility for the child’s support” pursuant to sub-section 768.18(1), Florida Statutes; and
f) where the natural father marries the mother subsequent to divorce from the man to whom she was legally married at the time the child was conceived. Sacks v. Sacks, supra.

It will be seen from the foregoing analysis that the State of Florida has engaged in numerous classifications without the confines of Chapter 742, Florida Statutes, permitting an illegitimate child to derive support from its natural father, irrespective of the marital status of its mother at the time of its conception, either directly during the father’s lifetime or indirectly through recovery of compensation from the father’s employer or from a tortfeasor causing the death of the father. Therefore, to require that the mother of an illegitimate child be legally unmarried at the time of the child’s conception in order to bring suit under the provisions of § 742.-011, Florida Statutes, is an unreasonable and invidious discrimination against such child, depriving the child of equal protection of the law mandated by Article I, § 2 of the Constitution of the State of Florida and the Fourteenth Amendment to the Constitution of the United States. In a case such as the one at bar the children are deprived of support by the natural father while at the same time the reputed father is permitted under the principles set forth in Eldridge, supra, to rebut the presumption of his paternity thereby obviating any necessity for support on his part. It should be noted that if this result were permitted to occur, the children would also be deprived from inheriting from either father in case of intestacy under the provisions of § 732.108(2), Florida Statutes, which provides:

“For the purpose of intestate succession in cases not covered by, § 732.-108(1), a person born out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of the mother’s family. The person is also a lineal descendant of his father and is one of the natural kindred of all members of the father’s family, if:
(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void; or
(b) The paternity is established by an adjudication before or after the death of the father.” (Emphasis supplied)

Under the situation postulated, the legal husband of the appellant is not the natural parent of appellant’s children, but at the same time appellant would be precluded from establishing by adjudication, before or after his death, the paternity of the natural father. This further serves to point up the discrimination inherent in § 742.011, Florida Statutes.

Assuming, as we clearly must, that the purpose of the statute is to (i) protect the interests of a child illegitimately conceived and (ii) to impose an obligation on the natural father to provide support, it is the relationship between the natural father and the child which should be controlling rather than the marital status of the mother. This position serves two remedial purposes : it converts the natural father’s moral obligation into a legal obligation to support, and it relieves the public of the obligation to provide support for the child. In light of the societal needs of today the oft-quoted statement of Oliver Wendell Holmes seems particularly appropriate:

“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” Oliver Wendell Holmes, Common Law 1 (1881).

Nothing in this opinion should be construed to imply that we recede from the standard of proof enunciated in Eldridge, supra, with respect to paternity suits, but we do hereby expressly recede from our decision in Kennelly v. Davis, supra, and the cases therein cited insofar as they prohibit suit by a married woman to gain the benefits for her illegitimate child under Chapter 742, Florida Statutes.

In view of the foregoing conclusions, we hold that portion of § 742.011, Florida Statutes, which limits actions thereunder to unmarried women to be unconstitutional in contravention of Article I, § 2 of the Constitution of the State of Florida and the Fourteenth Amendment to the Constitution of the United States without impairing, however, the force or effect of the balance of said section or Chapter 742, Florida Statutes, as a whole. Accordingly, the order of the trial court is reversed and this cause is remanded to the trial court for further proceedings not inconsistent herewith.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS and HATCHETT, JJ., concur.

BOYD, J., dissents with an opinion.

ENGLAND, J., dissents with an opinion.

BOYD, Justice

(dissenting).

The majority opinion recedes from Kennelly v. Davis, 221 So.2d 415 (Fla.1969), which held Section 742.011, Florida Statutes, does not unconstitutionally deny equal protection of the laws. I believe Kennelly is still good law. The equal protection clause is violated only when the classification made by an act is arbitrary and unreasonable. Daniels v. O’Connor, 243 So.2d 144 (Fla.1971). The jurisdictional requirement that a woman be unmarried before a court may entertain a paternity suit brought by her is a reasonable classification because children of married women are presumed to be legitimate and said presumption is highly beneficial. Under today’s decision a married woman seeking the pecuniary advantage of child support from a putative father may seek an adjudication which holds that her husband is not the father of her child. The result is that innocent children may be stamped illegitimate in the face of the presumption that they are legitimate. It is reasonable for the Legislature to classify only unmarried women as able to bring paternity suits to prevent presumed legitimate children from losing the benefit of the presumption.

Striking the statute is objectionable for another reason. Section 732.108, Florida Statutes, Chapter 74-106, Laws of Florida, permits a child born out of wedlock to inherit from an intestate father if paternity is established by adjudication. This statute was passed as part of a reformed Probate Code while Section 742.011, Florida Statutes, was not yet declared unconstitutional. The Legislature has reason to limit claims by unacknowledged children to intestate inheritance as much as possible. The majority opinion opens the door to children of married women, as well as children of unmarried women to claim intestate inheritances from men who have not acknowledged their paternity or been so adjudicated. Requiring living fathers to support any and all of their children, regardless of legitimacy, is a matter entirely unrelated to inheritances. A living father can deny and often disprove paternity. The legitimate heirs would have extreme difficulty in refuting such claims against an estate. Since the statute of limitations does not run against minors, the question arises as to the disposition of property inherited by legitimate heirs with the possibility that years later claims for said property might be made by illegitimates.

The magnitude and complexity of the question requires a legislative, not judicial, solution.

I respectfully dissent.

ENGLAND, Justice

(dissenting).

The Court has undoubtedly reached a just result for this case, but I cannot agree that the conclusion properly flows from the reasoning employed to get there.

The Court has achieved by lengthy judicial legerdemain precisely what it said at the outset it was unwilling to do — strike the word “unmarried” from Section 742.-011. I am not persuaded by the Court’s excursions into the Workmen’s Compensation Act of 1935, the comity features of our criminal laws, the 1972 wrongful death statute, or the acknowledged paternity situation found in our juvenile justice law. The issue in this case is support, and the only applicable statute which is available to provide it is encased in a chapter of our laws which expressly states that the sole mechanism for support of bastard children is contained within that chapter. Under these circumstances I cannot overcome my belief that, despite the apparent injustice in the application of this statute to the facts in this case, the Legislature is the only forum constitutionally authorized to change the wording of the statute.

      . U. S. Bureau of Census, Statistical Abstract of the United States, table 59 at 50 (1969).

      . Id.

      .Id. In 1940 the illegitimacy rate was 7.1, in 1967, 24.0.

      . See In re Estate of Caldwell, 247 So.2d 1 (Fla.1971).


author: ROBERTS, Justice. BOYD, Justice

text:
    Mrs. Irene June JONES, widow, on her own behalf and on behalf of Sherry Jones, et al., Petitioner, v. LEON COUNTY HEALTH DEPARTMENT et al., Respondents.
    No. 46089.
    Supreme Court of Florida.
    April 7, 1976.
    Rehearing Denied Aug. 12, 1976.

      Steve M. Watkins, of Watkins & Hill, Tallahassee, for petitioner.
    Anne C. Booth, of Hall & Booth, Tallahassee, for respondents.
   ROBERTS, Justice.

We have for review by petition for writ of certiorari an order of the Industrial Relations Commission reversing the judge of industrial claims’ award of benefits and dismissing the petitioner’s claim.

Donald Jones, the deceased husband of petitioner, was employed by the Leon County Health Department, and, as a part of his employment, he administered their tuberculosis program. In the course and scope of his employment and as a direct result thereof, he contracted tuberculosis, which condition was diagnosed on November 10, 1972. The employer/carrier accepted this condition as compensable under the occupational disease section of the workmen’s compensation law and paid benefits. Subsequently, on May 22, 1973, he died from a self-inflicted gun shot wound to the head. Petitioner, the widow of the deceased employee and the mother of their three minor children, filed a claim for death benefits on her own behalf and on behalf of her minor children. Respondent contested the claim and took the position that the death was not causally related to the injury of November 10, 1972, and that the claim should be barred by Section 440.09(3), Florida Statutes, which provides in pertinent part that no compensation shall be payable if the injury was primarily occasioned by the willful intention of the employee to injure or kill himself. The judge of industrial claims, after conducting a hearing and carefully evaluating the evidence, determined that Section 440.09(3), Florida Statutes, was not applicable. The Industrial Relations Commission found that Section 440.09(3), Florida Statutes, did bar the claim and accordingly reversed and dismissed the claim.

Based on competent substantial evidence, the judge of industrial claims found that after diagnosis of his tuberculin condition, the deceased was sent to a tuberculosis hospital. He returned home and then had to be readmitted a second time. His family was tested for tuberculosis and showed a positive result and had to be put on a year’s treatment which greatly upset him. For a period of time, his wife left the deceased. Upon return from the hospital, he returned to work on a part-time basis but his mental attitude had changed drastically. He lost between 40 and 50 pounds, was nervous and restless, became withdrawn, and was utterly obsessed with his illness. Specifically, the judge of industrial claims concluded, as follows:

“In the absence of tuberculosis, the claimant would not have committed suicide. I am cognizant of the fact that Dr. Bennison arrived at the same conclusion but labeled it ‘conjecture’. I find it is a logical conclusion to be drawn from all the evidence, including the fact that the drug INAH does have associated with it mental changes in patients who take it. The mere concern and distress of having the disease produced the depression from which he suffered. The tuberculosis resulted into a condition of depression. This condition of depression resulted in suicide. I find there is a causal connection between the tuberculosis and the suicide.”

We cannot agree with the Industrial Relations Commission’s determination that the evidence does not support the conclusion that the deceased was not, at the time of taking of his life, devoid of normal judgment so as to negate a willful intention to kill himself. Although the majority of the Commission recognized the marked personality change, distress, and depression visited upon the deceased as a direct result of his tuberculin condition directly arising out of and in the course of his employment, they concluded that he had the willful intent to kill himself. Chairman Carson, dissenting from the majority opined, and we concur, that in determining that the deceased had the capacity to form a willful intention to kill himself, the majority merely chose to substitute their judgment for that of the trier of fact.

As ofttimes has been stated, the purpose and intent of the Workmen’s Compensation Act is to provide for the injured workmen, and in event of death caused by injuries incurred in the course and scope of employment, to provide for their dependents so that the burden will fall on the industry served and not on society. Section 440.26 (4), Florida Statutes, provides, in pertinent part:

“Presumptions. — In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary:
(1) That the claim comes within the provisions of this chapter.
******
(4) That the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another.”

Previously in the case of Whitehead v. Keene Roofing Co., et al., 43 So.2d 464 (Fla.1949), wherein deceased who sustained serious injury as a result of a fall from a roof upon which he was working drank a deadly mixture of potash and lye, this Court was confronted with the determination as to whether the claimant was entitled to workmen’s compensation benefits on account of the death of her husband who had committed suicide. Answering this question in the affirmative, this Court set out guidelines for recovery when an employee takes his life as a direct re-suit of an injury sustained in his employment and explicated, as follows:

“The difficulty inherent in proving that one who kills himself by his own hand does so because of injuries sustained in an accident, and as a direct and proximate result thereof, undoubtedly accounts for the diversity of opinion on this question among the courts of this country. And, clearly, in a proper case, the provisions of Section 440.09(3), supra, should be given full force and effect so that industry should not have to carry the burden of compensating for a death for which it was in no wise responsible. But we are not persuaded that the fact that a workman knew that he was inflicting upon himself a mortal wound will, in all cases, amount to a ‘wilful intention’ to kill himself, within the meaning of the statute. We believe that in those cases where the injuries suffered by the deceased result in his becoming devoid of normal judgment and dominated by a disturbance of mind directly caused by his injury and its consequences, his suicide cannot be considered ‘wilful’ within the meaning and intent of the Act.
“There is no force to the argument, propounded by some courts, that the act of suicide is an independent intervening cause of the death of the workman, thus breaking the chain of causation from the injury to the death of the deceased. While it may be an independent intervening cause in some cases, it is certainly not so in those cases where the incontrovertible evidence shows that, without the injury, there would have been no suicide; that the suicide was merely an act intervening between the injury and the death, and part of an unbroken chain of events from the injury to the death, and not a cause intervening between the injury and death. See City of Lakeland v. Burton, 147 Fla. 412, 2 So.2d 731.”

The record before us contains competent substantial evidence to support a finding that without the contacting of tuberculosis, there would have been no suicide, and that the tuberculin condition of the deceased, contacted after a special association therewith for twenty years through administration of the program in his employment, caused him to become devoid of normal judgment and dominated by a disturbance of mind so as to dethrone his reason and destroy his will so that he was incapable of forming a willful intent to take his life.

Accordingly, certiorari is granted, the order of the Industrial Relations Commission is reversed, and the cause is remanded for further proceedings not inconsistent herewith.

It is so ordered.

ADKINS, SUNDBERG and HATCH-ETT, JJ., concur.

BOYD, J., dissents with an opinion.

OVERTON, C. J., and ENGLAND, J., dissent and concur with BOYD, J.

BOYD, Justice

(dissenting).

I respectfully dissent to the majority opinion and would affirm the decision of the Industrial Relations Commission.

The majority opinion will open a floodgate of liability never contemplated by the Legislature, employers, their insurance carriers, or employees. It is true that the suicide likely resulted from despondency over the work related physical illness of the deceased. It is common knowledge that a major cause of suicide is worry over economic and work related matters. The ultimate result of this case could lead to workmen’s compensation claims by families of all suicide victims on the grounds that emotional stress over their jobs caused the death. How could employers refute such claims ?

In the Whitehead case relied upon by the majority the deceased was in such pain physically that he lost all self-control and at the hospital reported that he had “gone nuts.” There was in that case a factual question whether Whitehead was trying to relieve his pain by drinking a lethal fluid or attempting suicide. The facts in the Whitehead case and conclusions of law are not sufficiently similar to this case as to constitute a binding precedent.

If the law is to be changed to include all victims of suicide whose deaths result from work related despondency, the Legislature should make the change and it should not be accomplished by judicial construction.

I dissent.

OVERTON, C. J., and ENGLAND, J., concur.


author: PER CURIAM.

text:
    Stanley MORGAN, Petitioner, v. Jack SANDSTROM, as Director, Dade County Corrections and Rehabilitation Department, Respondent.
    No. 48232.
    Supreme Court of Florida.
    July 8, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State’s Atty., and John H. Lip-inski, Asst. State’s Atty., for respondent.
   PER CURIAM.

A petition for writ of habeas corpus was treated as a petition for writ of certiorari and granted. After considering the merits the Court is of the opinion that said writ should be, and the same is hereby, discharged.

It is so ordered.

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


author: OVERTON, Chief Justice.

text:
    Harry L. BASSETT, as personal representative of the Estate of the late Thomas Emil Meyer, and Henri and Irene Meyer, the parents of the late Thomas Emil Meyer, Appellants, v. MERLIN, INC., a Florida Corporation, et al., Appellees.
    No. 46781.
    Supreme Court of Florida.
    May 28, 1976.
    Rehearing Denied Aug. 10, 1976.

      Irving J. Whitman and Mark Pollack, of Whitman & Wolfe, Miami, for appellant.
    S. O. Carson, Edward J. Atkins and George W. Chesrow of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellees. '
   OVERTON, Chief Justice.

This is an appeal from an order of the circuit court that initially and directly passed on the constitutionality of Section 768.21(6)(a), Florida Statutes. We have jurisdiction.

Thomas Emil Meyer was killed in a two car collision on May 18, 1973. Appellant, the personal representative of his estate, filed on behalf of decedent and his parents a wrongful death action against the three appellees: the driver, the lessee, and the owner-lessor of the other car. Decedent Meyer, who at death was over 21 years of age, had no wife, no children, nor any other dependents. His parents are his only survivors under Florida’s wrongful death statute. Section 768.18(1), Florida Statutes. The trial court certified questions to the Third District Court of Appeal asking whether his parents could recover net accumulations under Section 768.21(6) (a), Florida Statutes. The Third District in Bassett v. Merlin, Inc., 304 So.2d 543 (Fla. App.3rd, 1974), correctly answered the question in the negative.

Upon remand to the circuit court, the appellant asserted by motion the unconstitutionality of Section 768.21 on the grounds it denied parents of an adult child the right to damages for mental pain and suffering. The circuit court held the statute constitutional. We agree.

We previously considered and upheld the constitutionality of Section 768.21, Florida Statutes (1975), in a related factual situation in White v. Clayton, 323 So.2d 573 (Fla.1975). See also Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975). Our prior decisions are controlling, and the order of the circuit court is affirmed.

It is so ordered.

ROBERTS, BOYD', ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., dissents.

      . Art. V, § 3(b)(1), Fla.Const.


author: SUNDBERG, Justice.

text:
    STATE of Florida, Plaintiff, v. Percy D. WEEKS, Defendant.
    No. 49104.
    Supreme Court of Florida.
    July 8, 1976.

      Robert L. Shevin, Atty. Gen., and Raymond L. Marky and Richard L. Wilson, Asst. Attys. Gen., for plaintiff.
    Selig I. Goldin, of Goldin, Turner & Cates, Gainesville, for defendant.
   SUNDBERG, Justice.

The defendant, a licensed physician, was charged by information with seventeen counts of violating Section 893.13, Florida Statutes, which lists prohibited acts and penalties therefor under the Florida Comprehensive Drug Abuse Prevention and Control Act. Each count alleges a different occasion on which the defendant “unlawfully delivered] a controlled substance named or described in section F.S. 893.-03(2)(c)(1) [or (2)] ... by use of a written order for said drug not issued in good faith and in the course of his professional practice as a licensed doctor of medicine.” Dr. Weeks attacked the information by filing a motion to dismiss alleging that the statute under which the information was filed was unconstitutional on several grounds. After hearing argument on the motion, the circuit court determined that it was presented with a novel question of Florida law which was of great public interest. Invoking Rule 4.6, F.A.R., the judge certified this cause to this Court for instruction on two questions, the first of which is as follows:

“Whether Section 893.05(1), Florida Statutes, which provides that: ‘A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix or otherwise prepare a controlled substance . . .’, is unconstitutional in that it is void as vague, indefinite and uncertain as a result of not clearly and definitely defining the term ‘in good faith’ so that a person can determine in advance whether a contemplated act is within or without the law.”

The pertinent part of the statute under challenge reads:

“A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix or otherwise prepare a controlled substance, or he may cause the same to be administered by a licensed nurse or an intern practitioner under his direction and supervision only.”

Section 893.05(1), Florida Statutes, thus provides a necessary exception to the imposition of criminal penalties for the conduct proscribed under Section 893.13. This exception, along with others enacted in Florida Statutes, is recognized in Section 893.13(1) (a), Florida Statutes.

Dr. Weeks alleges that the standard of “good faith”, which he must necessarily meet if he is to gain acquittal, is unconstitutionally vague. He submits that the effect of this statutory language is to require him to make complex medical decisions at the risk of substantial criminal liability in the event that he is unable to convince a jury of lay people that his conduct conforms to an indefinable standard of behavior. He brings to our attention many cases in which this Court has invalidated statutes on the grounds of vagueness, but unfortunately none of these opinions dealt with the phrase at issue here.

This Court articulated the test to be applied in vagueness challenge cases in Brock v. Hardie, 114 Fla. 670, 154 So. 690, 694 (1934):

“. . . Whether the words of the Florida statute are sufficiently explicit to inform those who are subject to its provisions what conduct on their part will render them liable to its penalties is the test by which the statute must stand or fall, because, as was stated in [Cline v. Frink Dairy Co., 274 U.S. 445, 459, 47 S.Ct. 681, 685, 71 L.Ed. 1146, 1153 (1927); quoting Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926)] ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’
“Such seems to be the test approved by the Supreme Court of the United States. Citation of authorities as to what may be considered the exact meaning of the phrase ‘so vague that men of common intelligence must necessarily guess at its meaning,’ so that certain conduct may be considered within or outside the true meaning of that phrase, or what language of a statute may lie within or without it, would be of little aid to us.
“We must apply our own knowledge with which observation and experience have supplied us in determining whether words employed by the statute are reasonably clear or not in indicating the legislative purpose, so that a person who may be liable to the penalties of the act may know that he is within its provisions or not.”

Applying “our own knowledge with which observation and experience have supplied us,” we find that the language employed by the instant statute conveys sufficiently definite meaning “that a person who may be liable to the penalties of the act may know that he is within its provisions or not.” We note that many courts of other jurisdictions have reached the same result in cases involving the construction of virtually identical language. See People v. Nunn, 46 Cal.2d 460, 296 P.2d 813 (1966), appeal dismissed 352 U.S. 883, 77 S.Ct. 126, 1 L.Ed.2d 82 (1956); People v. Guagliata, 362 Ill. 427, 200 N.E. 169 (1936); Smith v. State, 214 Ind. 169, 13 N.E.2d 562 (1938); People v. Downes, 394 Mich. 17, 228 N.W.2d 212 (1975).

In United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the Court considered the case of a physician accused of violating 21 U.S.C. § 841(a)(1), the section of the Controlled Substances Act which makes it unlawful for “any person” knowingly to distribute or dispense a controlled substance, “except as authorized” by the Act. The Court held inter alia that a registered physician could be prosecuted under Section 841 when his activities fell outside the usual course of professional practice. In reinstating the District Court conviction of the appellee physician, the Supreme Court of the United States implicitly approved the “good faith” test:

“The trial judge assumed that a physician’s activities are authorized only if they are within the usual course of professional practice. He instructed the jury that they had to find
‘beyond a reasonable doubt that a physician, who knowingly or intentionally, did dispense or distribute [methadone] by prescription, did so other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.’ ”

96 S.Ct. at 343-44.

On similar facts the United States Court of Appeals for the Fifth Circuit recognized “the settled proposition of law that in order for a physician to come within the exception to the statute, . . . the narcotic drugs must have been dispensed or distributed to a patient or patients by the physician in good faith in the course of his professional practice only.” Needelman v. United States, 261 F.2d 802, 805 (5th Cir. 1958). The Needelman court had no trouble with the “good faith” standard articulated by the trial judge in his charge to the jury and affirmed the conviction.

We are persuaded by the unanimous authority arrayed against the proposition that the term “good faith” is unconstitutionally vague. Like the court in Nee-delman, supra, we approve the definition of “good faith”, in the context of this statute, to mean that the practitioner “has got to act in an honest endeavor to carry on his profession” of healing patients. Accordingly, we answer the first certified question in the negative.

The second question certified to this Court reads as follows:

“In making the above determination, is the term ‘person’ defined as an ‘ordinary person’, or when the Defendant and the statute refer to a licensed medical practitioner, is the definition of the term ‘person’ restricted to members of a class that are licensed medical practitioners.”

Although we agree with Dr. Weeks that an answer to this question is not necessary to determination of this cause, we find that the “good faith” standard necessarily applies to licensed medical practitioners only. Since the statutory exemption for “good faith” conduct “in the course of his professional practice” explicitly refers only to such practitioners, it is necessary only that the members of that class be given understandable notice of the type of conduct which is proscribed.

Questions answered.

OVERTON, C. J., and ROBERTS, ENGLAND and HATCHETT, JJ., concur.

ADKINS and BOYD, JJ., dissent.

       It should be noted that the statute further defines the applicable class of persons in § 893.02(14), Fla.Stat. (1975). “Practitioner,” as used in § 893.05(1), supra, is defined by § 893.02(14) as: “a physician licensed pursuant to chapter 458 . . . provided such practitioner holds a valid federal controlled substance registry number.”


author: ROBERTS, Justice.

text:
    Eugene R. CUNEO, Petitioner, v. STATE of Florida, Respondent.
    No. 48161.
    Supreme Court of Florida.
    July 8, 1976.
    Waldense D. Malouf, Clearwater, for petitioner.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for respondent.
   ROBERTS, Justice.

This cause is before us on certiorari granted without argument to review the decision of the District Court of Appeal, Second District, in Cuneo v. State, dismissing appeal, reported at 317 So.2d 478 (Fla.App.2nd, 1975), which decision purportedly conflicts with State ex rel. Shevin v. Mann, 290 So.2d 1 (Fla.1974).

Petitioner was informed against for the crime of assault with intent to commit rape, pleaded guilty, was adjudicated guilty, and was sentenced to prison for not less than six months nor more than five years. Judgment and sentence was rendered August 12, 1974.

Petitioner’s motion for reconsideration of sentence filed August 27, 1974, was denied by the trial court on December 17, 1974.

Notice of appeal from the judgment, sentence and denial of motion for reconsideration was filed with the District Court of Appeal, Second District, on January 14, 1975.

Appellee, State of Florida, filed a motion to dismiss the appeal as untimely and alleged that the record does not reflect that any motion for new trial or other motion contemplated by the rules was filed after judgment and sentence was rendered, and that although a motion for reconsideration was filed, such motion is not specifically contemplated by the rules and, therefore, does not toll the time for filing notice of appeal.

The District Court of Appeal dismissed the appeal. Certiorari review was sought here on the basis of conflict with this Court’s decision in State ex rel. Shevin v. Mann, supra, wherein a motion for new trial was filed after conviction on a plea of guilty. This Court explained:

“We do not, however, view the rule as being so restrictive and technical as to deny Micale his right to an appeal under the facts of this case. A ‘proper motion’ is one which is permitted by the rules. Any permissible motion, timely made, stays the running of appeal time until the motion is disposed of. The applicability of a particular motion to the facts or legal posture of a particular case is for the trial court to decide. An appellate court, in determining the timeliness of an appeal, need not consider the merits of any post-trial motion or petition; all that is necessary is a determination of whether or not the motion was permissible under the rules of procedure.”

The question then arises as to whether petitioner’s motion for reconsideration of sentence may be effectively treated as a motion for reduction of sentence pursuant to Rule 3.800, Florida Rules of Criminal Procedure, which provides, in pertinent part:

“(b) A court may reduce a legal sentence imposed by it at the same term of court at which it has been imposed, or if such term ends less than sixty days after the imposition of the sentence, then within sixty days after such imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court upon affirmance of the judgment and/or sentence upon an original appeal, or within sixty days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, then within sixty days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari.”

However, then we must consider that petitioner’s request in his motion for reconsideration was for the setting aside of the sentence and conviction and the placing of him on probation. In State v. Evans, 225 So.2d 548 (Fla.App. 3rd, 1969), certiorari denied 229 So.2d 261 (Fla.1969), certiorari denied 397 U.S. 1053, 90 S.Ct. 1393, 25 L. Ed.2d 668, the court stated:

“Our conclusion that the trial court had no jurisdiction to enter its order is reinforced by the fact that the court did not order that the sentence be reduced; it ordered rather that the sentence be vacated. But the statute and the rule say a trial court may reduce a sentence; they do not say a court may vacate a sentence. The trial judge therefore clearly acted without statutory authority by vacating respondent’s sentence. He also exceeded his authority by ordering that the respondent be placed on probation for ten years, since the granting of probation does not constitute the correction or reduction of a sentence(emphasis supplied)

Petitioner argues that his motion for reconsideration could properly be treated as a motion for reduction of sentence pursuant to Rule 3.800, Florida Rules of Criminal Procedure. We cannot agree. Furthermore, his post-conviction motion was not a motion for new trial from an adjudication of guilt based on a plea of guilty as was the case in Mann, supra.

Since the petition for writ of certiorari reflected apparent jurisdiction in this Court, we granted certiorari, but upon careful consideration of the matter, the briefs and record, we have determined that the cited decision presents no direct conflict as required by Article V, Section 3(b) (3), Constitution of Florida.

Accordingly, the writ must be and is hereby discharged.

It is so ordered.

ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

OVERTON, C. J., dissents.

      . The sentence imposed by a trial judge following a plea of guilty is solely within his discretion subject only to the condition that it meets the standards provided by law. Pitts v. State, 181 So.2d 739 (Fla.App. 1st, 1966).