author: KARL, Justice. BOYD, Justice,

text:
    STATE of Florida, Appellant, v. Norman K. WINTERS, Appellee.
    No. 49987.
    Supreme Court of Florida.
    March 31, 1977.
    Rehearing Denied June 28, 1977.

      Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for appellant.
    Robert E. Jagger, Public Defender, and James M. Callan, Jr., Asst. Public Defender, for appellee.
   KARL, Justice.

This cause is before us on direct appeal from an order of the county court in and for Pinellas County, holding Section 827.05, Florida Statutes, unconstitutional as vague and indefinite, thereby vesting jurisdiction in this court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellee was charged by information with seven counts of negligent treatment of his children, Angelia, Alycia, David, Audra, Joe, Roy and Marie, in violation of Section 827.05, Florida Statutes, in that he negligently deprived these children or allowed these children to be deprived of necessary shelter.

Section 827.05, Florida Statutes, provides:

“Negligent treatment of children. — Whoever negligently deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” (Emphasis supplied.)

A Statement of Particulars was thereafter filed by the State Attorney in which he specified in what manner appellee had negligently deprived his children of necessary shelter as follows:

“1. On April 18, 1976, Defendant Norman K. Winters negligently deprived the children named in the Information, or allowed said children to be deprived of, necessary shelter by:
a. maintaining said children in a structure infested with insects.
b. maintaining said children in a structure in which the floor was strewn with garbage.
c. providing said children with unclean mattresses and no bedsheets.
d. maintaining for said children a bathroom in which the toilet contained feces and on the floor of which was garbage.”

Appellee moved to dismiss the information on the basis that Section 827.05, Florida Statutes, and the charging information are vague, indefinite and overbroad in that they fail to adequately advise or inform appellee of the crime with which he is being charged, and that the phrase “necessary shelter” is unduly broad, being capable of many interpretations and applications.

The trial court granted the motion to dismiss the information and held that Section 827.05, Florida Statutes, is unconstitutional for vagueness and not setting forth sufficient standards.

The sole question for our determination in this cause is the constitutionality vel non of Section 827.05, Florida Statutes.

Penal statutes must be strictly construed in favor of the accused where there is doubt as to their meaning and must be sufficiently explicit so that men of common intelligence may ascertain whether a contemplated act is within or without the law, and so that the ordinary man may determine what conduct is proscribed by the statute. Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934); Franklin v. State (Joyce), 257 So.2d 21 (Fla.1971); State v. Llopis, 257 So.2d 17 (Fla.1971); State v. Dinsmore, 308 So.2d 32 (Fla.1975); State v. Wershow et al., 343 So.2d 605 (Fla.1977).

Section 827.05 provides criminal penalties for acts of simple negligence. Under the statute, a person with no intent to do a wrong may be punished. His action need not be willful nor culpably negligent. By his affirmative act of negligence or his negligent failure to act, he violates the statute. Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.

A parent, guardian or other person having custody of a child or responsibility for its well being has a duty to provide the child with food, clothing, shelter and medical treatment. Failure to provide any food, clothing, shelter or medical treatment would be a clear violation of the duty. But if there is not a total deprivation, then how much of each must be provided to meet the test of the statute!

In the matter of “necessary shelter,” which is involved in the cause sub judice, there was a shelter of some type, but it was alleged to have had garbage on the floor, beds with unclean mattresses and no sheets, a bathroom with feces in the toilet and insect infestation. While such conditions are deplorable and, if allowed to persist, may constitute a health hazard, it cannot be said that the father has, by negligently keeping the children in a dirty house, failed to provide “necessary shelter” as required by Section 827.05. A palacial mansion that is clean and spacious could fail to qualify as “necessary shelter,” if it had no heat. A small, overcrowded log cabin may, on the other hand, meet the test. Depending upon the standard adopted, any given shelter, whether in the suburbs or the ghetto, could be found to fall short of “necessary shelter.” Similarly, each person must ask just how much and what quality of food, clothing, shelter and medical treatment he must provide to avoid jeopardy. Nothing in the statute gives us the answer. There are no guidelines.

We acknowledge that “[t]o make a statute sufficiently certain to comply with constitutional requirements, it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited.” Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972). But without some statutory standards or guidelines, the Legislature has effectively set a net large enough to catch all possible offenders and has left to the courts the power to say who should be detained and who should be set at large. Such a statute is dangerous and does not provide due process of law. United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876).

Although the goal of the Legislature in promulgation of such legislation to protect the public health, welfare and safety of children is not only laudable but essential, there must exist some guidelines to instruct those subject thereto as to what will render them liable to its criminal sanctions. No such standards have been provided in Section 827.05. Criminal penalties may be inflicted on anyone who, by an act of commission or omission involving only simple negligence, fails to meet the nebulous test of what is necessary. Such a statute lends itself to the unacceptable practice of selective prosecution.

For the foregoing reasons, we find Section 827.05, Florida Statutes, to be unconstitutionally vague, indefinite and overbroad.

Accordingly, we hold 827.05 to be unconstitutional and affirm the order of trial court granting the motion to dismiss the indictment.

It is so ordered.

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

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I believe the public is capable of understanding what acts are made criminal by Section 827.05, Florida Statutes. The statute makes it a crime for persons to deprive their children of necessary support in a negligent fashion. The “negligence element” of the crime makes sure that only those who owe a duty of care that is breached unreasonably will be convicted. The requirement that the support be necessary to the child prevents conviction of those who offer minimum support. Since economic abilities of persons charged with the duty of care and social needs of children vary, a more specific standard cannot be enacted.

The statute is not vague. I respectfully dissent.

      . This is to be distinguished from Section 827.-04, Florida Statutes, which proscribes similar conduct but requires willfulness or culpable negligence.


source: Caselaw Access Project

author: PER CURIAM. ADKINS, Justice,

license: Public Domain

text:
    Peter STORER and Stuart W. Patton as Co-Executors of the Estate of George B. Storer, Deceased, Petitioners, v. Dorothy M. STORER, Respondent.
    No. 46935.
    Supreme Court of Florida.
    April 7, 1977.
    Rehearing Denied June 28, 1977.
    Sam Spector, Cynthia S. Tunnicliff, Tallahassee, and Patton, Kanner, Nadeau, Se-gal, Zeller & LaPorte, Miami, for petitioners.
    William G. Earle and Hugo L. Black, Jr., of Kelly, Black, Black & Kenny, and Sam Daniels, Miami, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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

ADKINS, J., dissents with an opinion with which ROBERTS (Retired), J., concurs.

ADKINS, Justice,

dissenting.

Until January, 1972, the legal residence of both husband and wife was Wyoming. The residence of the husband remained in Wyoming. Between January, 1972, and April 25, 1972, the wife changed her residence from Wyoming to Florida. On April 25, 1972, the date upon which she was served with process in Florida in the Wyoming divorce proceedings, the wife was a resident of Florida and remained so during the pendency of the proceeding. The District Court held that the provisions of the Wyoming decree of divorce relating to the wife’s alimony right or other property rights were not binding upon her and that portion of the Wyoming decree was not entitled to full faith and credit under the Constitution of the United States.

In Pinebrook v. Pinebrook, 329 So.2d 343 (Fla. 4th DCA 1976), the husband and wife established a marital domicile in California which they maintained for over eight years. In 1973 the wife who continued to reside in California, instituted divorce proceedings. However, the husband was residing in Utah and was served with process under the provisions under the California Long Arm statute. The husband made no appearance in the California action. The California court dissolved the marriage, awarded the wife custody of the child, ordered the husband to pay alimony, child support and attorney fees, and directed the parties to sell certain Florida real estate and to divide the proceedings therefrom.

The wife brought suit in Florida to enforce that portion of the decree ordering the disposition of the Florida property. The husband contended that this portion of the order was a personal judgment which could only be entered upon the acquisition of personal jurisdiction. The District Court held that the form of service was calculated to give actual notice to the husband by serving him by certified, airmail, return receipt requested. The court in its opinion said:

“We now turn to the second due process requirement and the second prong of our initially posed inquiry, whether appel-lee had sufficient minimum contacts with the forum state, California, to justify the imposition of personal jurisdiction. The power of a court to obtain personal jurisdiction over an out-of-state defendant has been greatly expanded since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) which held that personal jurisdiction over a nonresident could only be obtained by personal service within the boundaries of the forum state or by the defendant’s voluntary appearance in the action. The basic modern rule was announced in International Shoe Co. v. Washington, (326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95) supra:
“ ‘Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565, 572. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”’” 329 So.2d at 347.

The court pointed out that the minimum contact held sufficient to satisfy due process has consisted of as simple an act as maintenance of the last marital domicile within the forum state, coupled with one spouse’s continued residence in the forum state. This is exactly the situation in the case sub judice, as the husband Storer remained in Wyoming.

Wyoming law permits acquisition of personal jurisdiction over a nonresident. The Wyoming court specifically found that it acquired personal jurisdiction under the laws of that state. Requiring a nondefen-dant to submit to such jurisdiction under the circumstances of the ease sub judice is consonant with the requirements of due process.

In Storer v. Storer, 305 So.2d 212 (Fla. 3rd DCA 1975), the District Court held that the non-residence of the defendant precluded any possibility of a valid personal judgment in Wyoming which would be entitled to full faith and credit.

This Court in Carroll v. Carroll, 341 So.2d 771, opinion filed January 13, 1977, in discussing venue, approved a decision of the First District Court which held that venue should be in that county in which the marriage was last evidenced by a continuing union of partners who intended to remain married, indefinitely if not permanently. As stated by the Court,

“The venue problem will be no more difficult than finding where the marriage partners called home.”

Under this pronouncement, the former martial relationship in Wyoming is a sufficient minimum contact to satisfy due process.

The question before us is whether or not the long arm statute of the forum state was sufficient to acquire personal jurisdiction over the nonresident wife so that the subsequent judgment was entitled to full faith and credit. Storer v. Storer, supra, says no. Pinebrook v. Pinebrook, supra, says yes. There is conflict.

We should also note the case of Lefkovitz v. Lefkovitz, 341 So.2d 253 (Fla. 1st DCA), opinion filed December 30, 1976. The court held that an Illinois court did not acquire personal jurisdiction of the husband, a former resident of Illinois, because the act giving rise to the Illinois divorce action occurred in Florida and at that time there was no marital domicile in Illinois. The dissenting opinion, referring to the confusion now existing among the courts of Florida in applying the full faith and credit provision of the constitution, contains the following:

“Locating the marital domicile for divorce jurisdiction purposes once depended on the merits of the case, because a husband departing to another state took with him the ‘domicile of matrimony’ and that of his wife only if he left faultlessly. Haddock v. Haddock, 201 U.S. 562, 571-72, 26 S.Ct. 525, 528, 50 L.Ed. 867, 870 (1906). The Supreme Court’s first decision in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), was thought to have put an end to the difficulty of that rule by holding that courts at the domicile of either partner may divorce them. But the concept of a marital domicile — in the simpler sense of the last homeplace the marriage partners shared — has found renewed usefulness to legislatures reaching to claim for their courts personal jurisdiction, incident to the termination of marriage, to exact alimony and other financial adjustments from the absent spouse. Thus, it has repeatedly been held, most recently in Judge Owen’s scholarly opinion for the District Court of Appeal, Fourth District, that due process standards permit a state to assert personal jurisdiction over a departed husband to enforce his obligation to support a stay-behind spouse long domiciled at the forum. Pinebrook v. Pinebrook, 329 So.2d 343 (Fla.App. 4th 1976), and cases cited at 348. To affirm the jurisdictional interests of that state ‘seems so sensible,’ wrote one commentator on the murky doctrines of domicile, ‘that it should be obvious to any one who had never become confused by studying law.’ Powell, And Repent at Leisure, 58 Harv.L.Rev. 930, 955 (1945). See also Restatement (Second) of Conflicts § 77 (1971).”

In Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975), the Supreme Court of Texas said:

“In personam jurisdiction may constitutionally be acquired by extraterritorial service of process on natural persons as in the case of corporations. See McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; Calagaz v. Calhoon, 5th Cir., 309 F.2d 248; Owens v. Superior Court of Los Angeles Co., 52 Cal.2d 822, 345 P.2d 921; Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679. Respondent argues that this is not true with respect to cases involving marital relationships. He insists that May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221, stands for the proposition that the so-called minimum contacts doctrine has no application in the field of domestic relations. That was one of the arguments advanced by the dissenting justices in Mizner v. Mizner, supra.
“The decision in May provides no support for respondent’s position. It was held there that a Wisconsin divorce decree awarding custody of minor children to their father was not entitled to full faith and credit in Ohio since the Wisconsin court did not have personal jurisdiction over the mother. The lack of personal jurisdiction over the mother was due, however, to the absence of statutory authority. The Wisconsin statute authorizing extraterritorial service of process did not purport to confer personal jurisdiction over the party thus served.
“In recent years a number of states have adopted long-arm statutes with specific language making them applicable to cases growing out of domestic difficulties. These statutes are given their intended effect. See Scott v. Hall, 203 Kan. 331, 454 P.2d 449; Dillon v. Dillon, 46 Wis.2d 659, 176 N.W.2d 362. In other states long-arm statutes containing only general language have been held to confer personal jurisdiction over nonresident defendants in divorce actions. See Soule v. Soule, 193 Cal.App.2d 443, 14 Cal.Rptr. 417; Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679; Hines v. Clendenning, Okl., 465 P.2d 460; Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656. See also 51 Neb.L.Rev. 159; 20 Hastings L.J. 361. The Arizona Court of Appeals has held that their Rule 4(e)(2) enables the court to acquire personal jurisdiction in a paternity suit. Backora v. Balkin, 14 Ariz.App. 569, 485 P.2d 292. Other decisions indicate that the courts of Arizona make no distinction between domestic relations cases and other types of suits. See Garlitz v. Rozar, 18 Ariz.App. 94, 500 P.2d 354; Rodriguez v. Rodriguez, 8 Ariz.App. 5, 442 P.2d 169.” At 365.

In explaining the rationale for applying the minimum contacts test in matrimonial cases, the District Court in Pinebrook, supra, quoted from Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968), cert. denied 393 U.S. 847, 89 S.Ct. 130, 21 L.Ed.2d 117 (1968), as follows:

“ . . .it seems to us that the minimum contacts concept of in personam jurisdiction is peculiarly suited to matrimonial support cases. If such contacts are in fact present in the particular case before the court, then the extension of in personam jurisdiction beyond the borders of the forum state may prove to be a sensible step in solving some of the hardships arising from family separation. Courts must know by this time that strict application of the Pennoyer rule to family support cases has encouraged migratory divorce by offering a shield to a spouse wishing to avoid financial responsibility. The state of the matrimonial domicile has a deep interest in its citizens and a legitimate purpose in taking steps to preclude their impoverishment. Accordingly, it is our opinion that in personam jurisdiction may be acquired over a non-resident defendant in a divorce action by extraterritorial personal service of process if (1) a statute of the support ordering state has authorized the acquisition of such jurisdiction in that manner, and (2) there exist sufficient contacts between the defendant and the forum relevant to the cause of action to satisfy ‘traditional notions of fair play and substantial justice.’ The demands of due process are satisfied in these circumstances.” [footnotes omitted] 329 So.2d at 347-48.

The District Court in Pinebrook, supra, then added:

“As was pointed out by the New Jersey court, writing in Egbert v. Egbert, supra, 125 N.J.Super. 171, 309 A.2d 746 at 748:
“ ‘The existence of a marital domicile in a state has as many consequences as economic activity does . . ..’
“Although the Mizner and Egbert cases were concerned specifically with the enforcement of matrimonial support provisions, we find their rationale equally compelling with regard to a provision directing a division of property such as involved in the case at bar. The enforcement of such a provision can be just as critical to the overall economic situation of the spouse remaining in the forum state as enforcement of a periodic support provision.
“The minimum contacts held sufficient to satisfy due process in the cited matrimonial cases have consisted of as simple an act as maintenance of the last marital domicile within the forum state, coupled with the petitioning spouse’s continued residence in the forum state, . . 329 So.2d at 348.

I conclude that the Wyoming law permits acquisition of personal jurisdiction over a nonresident by extraterritorial service. The Wyoming court found that such notice was given and personal jurisdiction acquired. I further conclude that requiring a defendant to submit to such jurisdiction under these circumstances is consonant of the requirements of due process. I would hold that the Wyoming divorce decree, insofar as it constituted a personal judgment, is valid and therefore entitled to enforcement in our courts under the full faith and credit clause of the United States Constitution. For that reason the petition or complaint of the wife should have been dismissed.

The decision of the District Court of Appeal should be quashed and the cause remanded to the trial judge with instructions to grant the husband’s motion to quash.

ROBERTS (Retired), J., concurs.


author: SUNDBERG, Justice.

text:
    William Duane ELLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 48081.
    Supreme Court of Florida.
    April 7, 1977.
    Rehearing Denied June 30, 1977.

      Richard L. Jorandby, Public Defender and Daniel T. O’Connell, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   SUNDBERG, Justice.

This is an appeal from a sentence of death entered upon a plea of guilty to first degree murder in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County.

Appellant pleaded guilty to charges of rape and first degree murder in the death of Margaret Anne Strack. Pursuant to Section 921.141, Florida Statutes, a penalty trial was held in circuit court with the result that the jury recommended by vote of eleven to one that Elledge be put to death. Nine days later, on March 27,1975, the trial judge sentenced appellant to fifty years in prison for the rape charge and to death by electrocution as punishment for the first degree murder conviction.

Elledge arrived in the Hollywood, Florida area from Toledo, Ohio on or about August 18, 1974, accompanied by one Paula Fain. (His wife was living, he thought, in Colorado at the time.) He and Miss Fain took up residence in her brother’s apartment in Hollywood. On Friday, August 23, 1974, El-ledge and Fain quarreled, and, in his words, they “split up and [he] proceeded to the House of Foam Bar.” After drinking for a few hours, Elledge returned to the apartment “to try and straighten things out” but there was nobody home. He drank heavily at a series of bars and later, after the last establishment had closed, broke into several buildings in a shopping plaza, netting about $180 in cash. He spent the rest of the night in a coffee shop, which he left at about 6:00 a. m., Saturday, August 24, 1974. Appellant then proceeded to the Normandy Hotel on Route A1A, where he rented an efficiency apartment for the next three days. On Saturday afternoon, he visited a bar called McGowan’s Lounge, where he met the decedent. After drinking and talking for about an hour, Elledge and Ms. Strack went together to the room at the Normandy Hotel, where they smoked marijuana. She began to tease him sexually, but after he responded, she refused to participate in intercourse. They struggled, and, after momentarily agreeing to submit, the decedent began to scream. Elledge started choking her with his hands while engaging in sexual intercourse. After some fifteen minutes he realized that she was dead.

The disparity in size between decedent and appellant — she was larger than he— presented Elledge with some problems when he attempted to move the corpse. He dragged the body out of the apartment and then threw it from the back door down a stairway which led to a back porch. El-ledge then proceeded to lug the corpse across a walkway to where Ms. Strack’s vehicle was parked. After forcing the body into the back seat of her car, he drove to a nearby church parking lot, opened the car door, and let the corpse slide onto the macadam. When discovered, the body was almost totally nude, with a pair of panties down around ankles which had been tied with an electric cord.

Appellant continued to drive Ms. Strack’s car until he wrecked it in an accident shortly after midnight on Sunday morning, August 25, 1974. On Sunday afternoon El-ledge took a bus from Hollywood to Jacksonville, but not until after he had killed a watchman named Edward Gaffney at a Pantry Pride food store in Hollywood which he was robbing in order to obtain funds with which to escape. Early Monday morning, in the course of committing an armed robbery at a Jacksonville motel, Elledge killed the manager, Kenneth Nelson, when the latter freed himself from the bonds with which he had been tied and brandished an (unloaded) gun.

Appellant was arrested in Jacksonville for the Nelson murder. He made what was later judicially determined to be a valid waiver of his Miranda rights and confessed to all three murders. A tape recording of this confession was played at appellant’s penalty trial for the Strack murder, the only case which is before us for consideration today, and it is from the transcription of this recording that much of the foregoing factual summary comes.

On this appeal appellant raises four points. Apart from a challenge to the constitutionality of our death penalty statute, an issue which was decided adversely to appellant in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), aff’g, 315 So.2d 461 (Fla.1975), these points relate to the fairness of the sentencing trial. The only issue which merits discussion is whether the trial court erred in allowing testimony and prosecutorial argument concerning the Gaffney and Nelson murders. Of course, we must also determine independently whether under all the circumstances the death penalty was appropriate punishment for the killing of Margaret Anne Strack.

As indicated above, at the conclusion of the sentencing trial the jury rendered its advisory sentence recommending by an 11-to-1 vote that defendant receive the death penalty. Section 921.141(2), Florida Statutes. On March 27, 1975, the trial judge entered his written sentence of death which included his findings in support of that sentence. Section 921.141(3), Florida Statutes. His findings were:

“B. As to the crime of Murder In The First Degree, this Court makes the following findings of fact:
(1.) The Defendant does have a significant history of prior criminal activity. The Defendant has been convicted of Murder In The First Degree in Jacksonville, Florida. He has also been convicted of felonious assault in the State of Colorado. This Defendant has been confined in various institutions for a great portion of his life for various other crimes.
(2.) The Defendant did not commit this Murder while under the influence of extreme mental or emotional disturbance. The Defendant was examined by two psychiatrists and both stated that at the time of the crime the Defendant understood and could appreciate the nature and consequences of his acts. Neither Doctor found nor reported that the Defendant was acting under the influence of extreme mental or emotional disturbance at the time of the crime. There was no indication of insanity.
(3.) The victim was not a willing participant in the Defendant’s conduct and did not consent to these crimes.
(4.) The Defendant knowingly created a great risk of death to many persons in committing this murder and in the attempt to escape apprehension. In fact, the Defendant has admitted murdering Mr. Edward Gaffney in Hollywood, Florida only a few hours after committing this murder. Then, only a few hours later and while engaged in the perpetration of an armed robbery in Duval County, Florida and while attempting to obtain funds with which to escape, this Defendant shot and killed a Mr. Nelson.
This Defendant also created a great risk of death to Mrs. Nelson and the 16 year old grandson during the commission of the armed robbery in Duval County.
(5.) This murder was committed while the Defendant was raping the victim or shortly after raping the victim. The murder was committed for the purpose of avoiding arrest, as the victim had threatened to notify the police of the rape and after this threat by the victim, the Defendant committed this murder.
(6.) This murder was especially heinous, atrocious and cruel. The Defendant choked the victim until she was beating on the wall and gasping for air. He then threw her from the bed onto the floor and again choked her for approximately 15-20 minutes. During this period of time the Defendant was raping the victim.
After the rape and murder were completed, the Defendant then dragged the body of the victim to the door of the motel room, threw her down the steps and dragged her to an automobile. The Defendant then drove her to a church parking lot and threw her from the car. The Defendant then abandoned her almost nude body, with the legs tied together by an electric cord, in the church parking lot.
“Based upon the preceeding [sic] findings of fact, and based further upon the advisory sentence rendered to this Court by the twelve member jury, ten of whom voted to recommend the death sentence, and it being the opinion of this Court that there are sufficient aggravating circumstances existing to justify the sentence of death, and this Court, after weighing the aggravating and mitigating circumstances, being of the additional opinion that insufficient mitigating circumstances exist to outweigh the aggravating circumstances . . . ”

At the sentencing trial, without objection from defendant’s counsel, Mrs. Katherine Nelson, the widow of the victim of the Jacksonville murder, testified in detail concerning the events surrounding that crime. In closing, the prosecutor made extensive reference to those events. The appellant now asserts that it was error to admit that testimony and to permit argument based upon it. It should be noted that appellant’s trial counsel stipulated to the admissibility of the existence of the prior conviction for the Nelson murder. It is asserted here, however, that because the Nelson murder occurred after the killing in the instant case, the crime does not qualify as an aggravating circumstance under Section 921.141(5)(b), Florida Statutes (1975). Such an assertion simply does not comport with a plain reading of the statute. It is clear that the Legislature referred to “previous convictions” and not “previous crimes.” It is apparent that the appellant had at the time of the trial in this case been convicted of the Nelson murder. In Provence v. State, 337 So.2d 783 (Fla.1976), we held that it was improper to consider under Section 921.141(5)(b), Florida Statutes, two armed robbery charges pending against Provence which predated the commission of the murder for which he was being tried. It was there emphasized that prior conviction was the essential element of that aggravating circumstance.

The question then arises whether it was proper to permit Mrs. Nelson to testify concerning the events which resulted in the conviction as opposed to restricting the evidence to the bare admission of the conviction. We conclude it was appropriate to admit Mrs. Nelson’s testimony. This is so because we believe the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case. Propensity to commit violent crimes surely must be a valid consideration for the jury and the judge. It is matter that can contribute to decisions as to sentence which will lead to uniform treatment and help eliminate “total arbitrariness and capriciousness in [the] imposition” of the death penalty. Proffitt v. Florida, supra, 96 S.Ct. at 2969.

Our conclusion in this regard is buttressed by the language of the statute:

“ . . .In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) and (7). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitutions of the United States or of the State of Florida. . ” (Emphasis supplied) § 921.-141(1), Fla.Stat.

The testimony of Mrs. Nelson obviously related to the aggravating circumstance delineated in Section 921.141(5)(b), Florida Statutes. If it be appropriate to admit the testimony, then clearly it was appropriate for the prosecutor to comment upon it in arguing for the death penalty. We do not perceive it to have been the intent of the Legislature that sentencing proceedings under Section 921.141, Florida Statutes, be as antiseptic as appellant contends.

The testimony concerning appellant’s confession of the Gaffney murder and argument by the prosecutor thereon presents an entirely different question. Admittedly the testimony by the police officer related to that confession was not objected to by appellant’s trial counsel, but that should not be conclusive of the special scope of review by this Court in death cases. Admission of evidence of the Gaff-ney murder is proscribed by our decision in Provence, supra, because the charge had not resulted in a conviction at the time of the trial in the instant case. It was, therefore, a nonstatutory aggravating factor. But was the error harmless because of the lack of objection and the existence of substantial additional aggravating circumstances? We believe not. This question has not been heretofore squarely considered by this Court, but a reading of Sawyer v. State, 313 So.2d 680 (Fla.1975), and the analysis of that decision by the United States Supreme Court in Proffitt, supra, provide indications of the proper result. As pointed out in footnotes 8 and 14 to the Proffitt plurality opinion:

“8. In one case the Florida Court upheld a death sentence where the trial judge had simply listed six aggravating factors as justification for the sentence he imposed. Sawyer v. State, 313 So.2d 680 (1975). Since there were no mitigating factors, and since some of these aggravating factors arguably fell within the statutory categories it is unclear whether the Florida Court would uphold a death sentence that rested entirely on nonstatu-tory aggravating circumstances. It seems unlikely that it would do so since the capital-sentencing statute explicitly provides that ‘[aggravating circumstances shall be limited to the following [eight specified factors].’ § 921.141(5) (Supp. 1976-1977). (Emphasis added.) There is no such limiting language introducing the list of statutory mitigating factors. See § 921.141(6) (Supp.1976-1977). See also n. 14 infra.” ■
“14. The petitioner notes further that Florida’s sentencing system fails to channel jury or judge discretion because it allows for consideration of non-statutory aggravating factors. In the only case to approve such a practice, Sawyer v. State, 313 So.2d 680 (1975), the Florida Court recast the trial court’s six nonstatutory aggravating factors into four aggravating circumstances — two of them statutory. As noted earlier, it is unclear that the Florida Court would ever approve a death sentence based entirely on 'nonstat-utory aggravating circumstances. See n. 8, supra.” 96 S.Ct. at 2965, 2968.

It appears that the United States Supreme Court does not fault a death sentence predicated in part upon nonstatutory aggravating factors where there are no mitigating circumstances. The absence of mitigating circumstances becomes important, because, so long as there are some statutory aggravating circumstances, there is no danger that nonstatutory circumstances have served to overcome the mitigating circumstances in the weighing process which is dictated by our statute. Section 921.-141(2)(b) and (3)(a), Florida Statutes. State v. Dixon, 283 So.2d 1 (Fla.1973), teaches that:

“ . . . [T]he procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present. . . . ” 283 So.2d at 10.

If this be so, then regardless of the existence of other authorized aggravating factors we must guard against any unauthorized aggravating factor going into the equation which might tip the scales of the weighing process in favor of death.

In the ease sub judiee, it does not expressly appear from the specific findings of fact that the trial judge found the existence of any mitigating circumstances. His written findings expressly negate the existence of certain mitigating circumstances. But the sentencing order concludes:

“ . . . [I]t being the opinion of this court that there are sufficient aggravating circumstances existing to justify the sentence of death, and this court after weighing the aggravating and mitigating circumstances, being of the additional opinion that insufficient mitigating circumstances exist to outweigh the aggravating circumstances . . . ”

In order to have weighed the aggravating circumstances against the mitigating circumstances, the court must have found some of the latter. Likewise, in concluding “that insufficient mitigating circumstances exist to outweigh the aggravating circumstances” he implicitly found some mitigating circumstances to exist. But did the judge take into account in the weighing process the nonstatutory aggravating circumstance? He did. In finding that the appellant knowingly created a great risk of death to many persons in committing the murder and in an attempt to escape apprehension, he stated:

“ . . . In fact, the defendant has admitted murdering Mr. Edward Gaffney in Hollywood, Florida, only a few hours after committing this murder. . . . ”

Would the result of the weighing process by both the jury and the judge have been different had the impermissible aggravating factor not been present? We cannot know. Since we cannot know and since a man’s life is at stake, we are compelled to return this case to the trial court for a new sentencing trial at which the factor of the Gaffney murder shall not be considered. See Miller v. State, 332 So.2d 65 (Fla.1976); Messer v. State, 330 So.2d 137 (Fla.1976). This result is dictated because, in order to satisfy the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the sentencing authority’s discretion must be “guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.” (Emphasis supplied) Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913.

In that a new sentencing trial is required, we deem it appropriate to comment on one other aspect of the trial court’s sentencing order. In finding B.(4.) ante p. 1000, the court concluded that appellant created a great risk of death to many persons in connection with the armed robbery in Jacksonville during which Mr. Nelson was killed. Although this would have been a perfectly appropriate aggravating factor relative to sentence for the Nelson homicide, we conclude that it was inappropriate to consider in connection with the sentence for the Strack murder. The events surrounding Mr. Nelson’s death in Jacksonville cannot reasonably be said to be part of the res gestae of the Strack murder. It is only conduct surrounding the capital felony for which the defendant is being sentenced which properly may be considered in determining whether the defendant “knowingly created a great risk-of death to many persons,” Section 921.141(5)(c), Florida Statutes.

The sentence of death is set aside, and this causé is remanded to the trial court for a new sentencing trial to be held in accordance with the views expressed herein.

BOYD, ENGLAND and HATCHETT, JJ., concur.

OVERTON, C. J., and ADKINS and ROBERTS (Retired), JJ., concur in part and dissent in part and would affirm the judgment and sentence of the trial court.

      . As set out post p. 1001, the trial court’s order suggests that ten members of the panel voted to sentence Elledge to death. However, the trial transcript indicates that, at the time the jury was polled, only one member dissented from the recommendation of death.

      . As was adduced at the Strack penalty trial, Elledge was sentenced to life imprisonment for the Nelson murder. There had been no disposition of the Gaffney murder charge at the time of the Strack trial.

      . § 921.141(5)(b), Fla.Stat.:
      “The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.”

      . It should be noted that in Proffitt a nonstatu-tory aggravating circumstance was present, but the trial court also found specifically that none of the statutory mitigating circumstances existed. 315 So.2d at 466-67.


author: BOYD, Justice.

text:
    ITT RAYONIER, INCORPORATED, etc., Plaintiff, v. William L. WADSWORTH et al., Defendants.
    No. 49229.
    Supreme Court of Florida.
    April 28, 1977.
    Rehearing Denied June 28, 1977.

      Thomas M. Baumer, William E. Williams and William H. Adams, III, of Mahoney, Hadlow & Adams, Jacksonville, for plaintiff.
    Henry P. Duffett and Norman Peter Las-key of Duffett, Barry, Seps, Akers & Burnett, Ormond Beach, and Kate L. Walton of Walton & Townsend, Palatka, for defendants.
   BOYD, Justice.

ITT Rayonier, Inc. filed suit in the United States District Court for the Middle District of Florida to Quiet Title in itself to certain land in Flagler County against the claims of three children of Lotta M. and L. E. Wadsworth, Sr. The District Court granted summary judgment in favor of Rayonier and an appeal to the U.S. Circuit Court of Appeals, Fifth Circuit, was taken by the three Wadsworth children. Finding the appeal to present issues of Florida constitutional law, as well as of statutory construction and application which are appropriate for our resolution, the Fifth Circuit certified to us four questions. A statement of facts and the questions are contained in the Fifth Circuit’s Certificate, prepared pursuant to Section 25.031, Florida Statutes, and Rule 4.61, Florida Appellate Rules, as follows:

“L. E. Wadsworth, Sr., died September 21, 1935. At the time of his death he was the head of his family and owned and occupied as his homestead a portion of the land known as ‘St. Joe’ in Flagler County, Florida, which is the land involved in this action. (Hereafter, ‘the land.’) He was survived by his widow, Lotta M. Wadsworth, and four children, William L. Wadsworth, Mary Elizabeth Wadsworth Taylor, Joseph Brady Wadsworth and Lewis E. Wadsworth, Jr.

“On August 18, 1937, Lotta M. Wadsworth executed an instrument (hereafter ‘the 1937 deed’) the material portions of which are as follows:

‘THIS DEED, BILL OF SALE AND ASSIGNMENT OF LEASES, made and executed this 18 day of August, A.D.1937, by and between Lotta M. Wadsworth, widow, of Flagler County, Florida, herein called party of the first part, and Lotta M. Wadsworth, and Lewis E. Wadsworth, of Flagler County, Florida, as copartners doing business under the name and style of Wadsworth & Company, herein called parties of the second part.
‘WITNESSETH: That the said party of the first part for and in consideration of the sum of Ten Dollars ($10.00), and other good and valuable considerations to her in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents does hereby grant, bargain, sell and convey unto the parties of the second part, their heirs, legal representatives and assigns, all of the following described pieces, parcels and tracts of land, lying and being situate in the County of Flagler, in the State of Florida, to-wit:
‘ . . . The land (and other lands).
‘And for the considerations aforesaid the said party of the first part has further bargained, sold and conveyed, and by these presents does hereby bargain, sell, convey and deliver unto the parties of the second part, their legal representatives and assigns, all of the following described personal properties used at and in connection with the naval stores business now being operated by the party of the first part, near and in the vicinity of Bunnell, Flagler County, Florida, known as the St. Joe Place, to-wit:
‘One 30 barrel turpentine still and fixtures complete.
120 dip barrels, more or less.
One pump and gas engine.
One glue kettle.
All turpentine tools and tools of all kinds.
All turpentine cups, gutters and aprons.
All turpentine cup faces.
One commissary, stock and fixtures.
All still supplies, spirit barrels, staves, heading, hoop iron, glue, batting and other supplies.
One Delco Light Plant.
All Cord Wood.
All hands’ accounts and book accounts.
One 1937 Ford V-8 Truck.
One 1929 Modeal (sic) A Ford.
Three Hoover wagons and harness.
Three horses.
Four Mules.
All dwellings, buildings, shanties, houses, barns, garages, sheds, appurtenances, appliances, fixtures and equipments.
All crdue (sic) gum, dip and scrape, gathered and ungathered.
All manufactured spirits of turpentine, rosen and dross, whether on hand at the still, at the port, in transit, or elsewhere.
All other personal property, of all kinds, used at and in connection with said turpentine plant and business, whether herein specifically described or not.
‘And for the considerations aforesaid the said party of the first part has further bargained, sold, assigned, transferred and set over, and by these presents does hereby bargain, sell, assign, transfer, set over and deliver unto the parties of the second part, their heirs, legal representatives and assigns, all of the following described turpentine leases, and all of her right, title and interest therein, thereto and thereby granted, and any benefits to be derived therefrom, and all property, property rights, privileges, and equities in and to the same, and of, in and to the lands thereby leased, for the terms therein limited, to-wit:
‘ . . . (Description of turpentine leases also transferred are omitted.)
‘It is the intention of the said party of the first part to sell and convey unto said parties of the second part, their heirs, legal representatives and assigns, all of the real estate, leases, leasehold rights and privileges, goods, chattels, personal properties, and all other properties of what kind and nature soever belonging to, owned and used in connection with the turpentine plant and business known at (sic) the St. Joe Place near Bunnell, Fla-gler County, Florida, whether herein specifically described or not.
‘SUBJECT, HOWEVER, to the lien of the following described mortgages, to-wit:
‘Mortgage deed made by T. C. Holden and wife, A. L. Johnson and wife, and L. E. Wadsworth and wife, to Baldwin-Lewis-Pace Company, dated February 12, 1929, and recorded in Book 8 of Mortgages, pages 240-245, incl. public records of Flagler County, Florida. Assigned to Turpentine & Rosin Factors, In.c., by assignment dated Feb. 7, 1931, recorded in Assign. Book 2, pages 126-7, public records of Flagler County, Florida.
‘Mortgage deed and contract made by L. E. Wadsworth and wife to Turpentine & Rosin Factors, Inc., dated October 11, 1934, recorded in Book 9 of Mortgages, pages 402-410, incl. public records of Fla-gler County, Florida.
‘Mortgage deed and contract made by Lotta M. Wadsworth, widow, to Turpentine & Rosin Factors, Inc., dated August 11,1937, recorded in Book 10 of Mortgages, pages 368 et seq. public records of Flagler County, Florida.
‘which said parties of the second part, by the acceptance of this conveyance, hereby assume and agree to pay, as a part of the consideration therefor.
‘TO HAVE AND TO HOLD all of said properties above described unto said parties of the second part, their heirs, legal representatives and assigns forever. And the said party of the first part does hereby fully warrant the title to said properties hereby conveyed, and covenants that she will defend the same against the lawful claims of all persons whomsoever, except as aforesaid.
‘The properties hereinabove described are conveyed to the partners in said co-partnership of Wadsworth & Company as follows:
‘TO LOTTA M. WADSWORTH, a three-fourths undivided interest.
‘TO LEWIS E. WADSWORTH a one-fourth undivided interest.’

“This instrument was signed, sealed, witnessed and acknowledged by Lotta M. Wadsworth and was placed of record in August of 1937.

“This is the deed which Rayonier contends is a ‘root of title’ within the provisions of the Florida Marketable Record Title Act', Florida Statutes, Section 712.01.

“By deed dated December 30, 1942, and recorded on January 18, 1943, Lotta M. Wadsworth and Lewis E. Wadsworth, Jr., conveyed the land together with other real property in Flagler County, Florida, to Ray-onier Incorporated, now ITT Rayonier, Incorporated. Lotta M. Wadsworth is still living.

“By instruments recorded in 1971, William L. Wadsworth, Mary Elizabeth Wadsworth Taylor and Joseph Brady Wadsworth (hereafter called appellants), first filed of record notice of their claims each to a vested undivided one-fourth interest in remainder in the lands which had been the homestead of their father at the time of his death, subject only to the life estate of their mother, Lotta M. Wadsworth.

“On October 25, 1972, Rayonier, being in possession and claiming full fee title to the land, filed suit in the United States District Court for the Middle District of Florida to quiet title in itself to the land against the claims of the appellants.

“The District Court granted Summary Judgment on Rayonier’s motion, holding that the Florida Marketable Record Title Act, Chapter 712, Florida Statutes, as applied to the 1937 deed, extinguished any interests of appellants in the land. The appellants challenge this conclusion, asserting the continuing validity of their remainder interests in the land that was their father’s homestead at his death in 1935, and that the 1937 deed, purporting to convey the fee title to the land is not a valid ‘root of title’ as to their remainder interests, within the meaning of the Florida Marketable Record Title Act, Chapter 712, Florida Statutes.

* * # * * *

“1. The parties are unable to agree as to the form of the first question. Accordingly, this question is set forth in the form proposed by appellants and by appellee:

“Question 1 as proposed by Appellants: With respect to the interest purportedly conveyed to Lotta by the 1937 deed, does the deed constitute a valid ‘root of title’ upon which can be established a ‘marketable record title’ within the meaning of Florida Statutes, Sections 712.01 and 712.02?

“Question 1 as proposed by Appellee: Does the 1937 deed from Lotta M. Wadsworth constitute a valid ‘root of title’ upon which can be established a ‘marketable record title’ within the meaning of Florida Statutes, Sections 712.01 and 712.02?

“2. If the answer to 1 is in the affirmative, are the rights of appellants within the exception to the operation of the Marketable Record Title Act provided by Florida Statutes, Section 712.03(1)?

“3. If the answer to 1 is in the affirmative, are the rights of appellants within the exception to the operation of the Marketable Record Title Act provided by Florida Statutes, Section 712.03(3)?

“4(a). Are the interests which appellants claim protected by the provisions of the Florida Constitution of 1885 and Florida statutory law applicable in 1935 as they relate to homestead?

“(b) If the answer to 4(a) is in the affirmative, does the Florida Marketable Record Title Act extinguish them in the same manner as it extinguishes other interests in land?

“(c) If the answer to 4(b) is in the affirmative, is the Marketable Record Title Act as so applied unconstitutional under the Florida Constitution of 1885?”

As we answer the questions which concern statutory construction of the Marketable Record title Act we keep in mind the legislative intent that the Act be liberally construed to effectuate its purpose. That purpose, expressed within the Act, is to simplify and facilitate land title transactions. It does so in two ways. First, it gives to a person marketable title when public records disclose a title transaction, of record for at least thirty years, which purports to create the estate either in that person or in someone else from whom the estate has passed to that person. Second, subject to six exceptions, it extinguishes all interests in the estate which predate the “root of title.”

Question # 1:

It appears from the face of the alternative first questions that the children see at issue only the three-fourths interest in the land conveyed to Lotta by the 1937 deed, while Rayonier sees at issue the entire conveyance. However, the difference over the form of the question is of no concern, because of our answer.

“Root of title means any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least thirty years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded.” Section 712.01(2)

The three children argue that insofar as it concerns Lotta’s three-fourths interest in the land, the 1937 deed is not a “root of title” because it is neither a “title transaction” which “affects title” nor does it “purport” to create or transfer an estate. They premise their argument on the inability of a person to convey real property to himself and draw support for the premise from Johnson v. Landefeld, 138 Fla. 511, 189 So. 666 (1939). In Landefeld a husband conveyed non-homestead realty to himself and his wife as tenants by the entirety. The conveyance was upheld by the Circuit Court and by an equally divided vote this Court affirmed. Those who voted for affirmance stated the legal effect of the deed was to convey to the wife an interest in the entire estate equal to that reserved by the husband. Thus, under Landefeld, the children’s argument continues, the 1937 deed merely reserved or retained for Lotta a three-fourths interest in the land, and as to that interest it did not “purport to create or transfer an estate” or “affect title” and cannot constitute a root of title. Reliance on Landefeld misses the mark. The deed conveyed all of the land to Lewis and Lotta together, with their undivided interests in the total to be one-quarter and three-quarters, respectively. Unity of possession is the essence of a tenancy in common. Andrews v. Andrews, 155 Fla. 654, 21 So.2d 205 (Fla.1945). Thus, the deed did not retain an interest for Lotta; rather, it attempted to create a tenancy in common, of which Lotta was one of the tenants. In this way the deed “purported” to create or transfer an estate and “affected title” so that it was a title transaction.

Any other argument that the deed is not a valid “root of title” fails. It should be obvious that the deed “purports” to create or transfer an estate. Purport is defined in Webster’s 3d New International Dictionary, unabridged (1962), as “profess outwardly: have the often specious appearance of being.” Certainly the Legislature intended the word “purport” to have its accepted meaning. The 1937 deed meets that meaning.

The deed “affects title” and, in turn, is a title transaction as those terms have been construed in Florida. In Marshall v. Hollywood, Inc., 224 So.2d 743 (Fla. 4th DCA 1969), the Fourth District Court, speaking through Judge Reed, stated at page 749:

“The word ‘affecting’ as it is used in the second sentence of Section 712.02 in the clause ‘affecting the title to the land’ does not carry the narrow meaning of ‘changing or altering’. The word is used in the broader sense meaning ‘concerning’ or ‘producing an effect upon’. In this broad sense, even a void instrument of record ‘affects’ land titles by casting a cloud or a doubt thereon. Clements v. Henderson, 1915, 70 Fla. 260, 70 So. 439; Brown v. Solary, 1896, 37 Fla. 102, 19 So. 161.”

The Marshall decision was upheld in an opinion discharging a writ of certiorari in the cause, Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.1970), in which this Court said at page 118:

“The arguments which we have enumerated have been thoroughly explored and correctly analyzed by Judge Reed in the lucid and cogent opinion affirming the Circuit Court dismissal which he prepared for the District Court below. There is little we could add to his opinion . ..”

The 1937 deed, whether partially ineffectual or not, “affected title” and was a “title transaction” as those terms are construed in Marshall.

Additionally, the children’s argument overlooks the extent of Lotta’s interest in the property at the time of the conveyance. When her husband died, the laws of this State governing descent of homestead gave to Lotta a life estate in his homestead property subject to the vested remainders in her four children. When the 1937 deed was executed Lotta continued to possess only a life estate in the former homestead, yet, on its face, the deed conveys it in fee simple absolute. By attempting to enlarge her estate as to her undivided three-fourths interest in the property the deed affects title.

Since the 1937 deed is a title transaction which purports to transfer or create an estate, it qualifies as a “root of title.” The first question is answered in the affirmative.

Question # 2:

Section 712.03, Florida Statutes, provides that marketable record title will not extinguish six categories of rights that predate the root of title. The first of them, found in subsection (1), is “estates or interests, easements and use restrictions disclosed by and defects inherent in the muni-ments of title on which said estate is based beginning with the root of title.” The children argue that their remainder interests are within the first category because the 1937 deed has two inherent defects: (1) it conveyed their remainder interests and (2) it conveyed property from Lotta to herself. The phrasing of their argument shows a misunderstanding of the statute. As the Fourth District Court of Appeal stated in Marshall:

“The terms ‘defects inherent in the muni-ments of title’ do not refer to defects or failures in the transmission of title, as the plaintiffs argument suggests, but refer to defects in the make up or constitution of the deed or other muniments of title on which such transmission depends.” 224 So.2d at 751.

The face of the deed does not reflect the defect of a conveyance from Lotta to herself. As explained in our answer to the first question, the deed conveyed all of the property from Lotta to Lewis and herself as tenants in common. There is nothing defective about such a conveyance.

As to whether conveyance of their remainder interests is a defect inherent in the 1937 deed, the children rely on Reid v. Bradshaw, 302 So.2d 180 (Fla. 1st DCA 1974). Bradshaw concerned the application of the Marketable Record Title Act to a deed (the root of title) which conveyed homestead property in contravention of Article X, Section 4, Florida Constitution (1885). That provision of the 1885 Constitution required alienation of homestead property by both husband and wife when the relationship existed. The court found the deed to have the inherent defect of being executed without the wife’s participation, a defect evident from the face of the deed. Furthermore, the court expressed concern over application of the Act to homestead property. This case is distinguishable because, unlike Bradshaw, the 1937 deed did not convey homestead property. L. E. Wadsworth, the person seized of the property as homestead, had died in 1935. Property loses its character as homestead when the head of the family dies. Wilson v. Florida Nat. Bank & Trust Co. at Miami, 64 So.2d 309 (Fla.1953). Consequently we need not be concerned with constitutional provisions governing homestead as was the District Court in Bradshaw. Since there is nothing on the face of the deed, in its make up or construction, to indicate that it conveys the children’s remainder interest, those interests are not saved from extinguishment by subsection (1) of Section 712.03, Florida Statutes.

The second question is answered in the negative.

Question # 3:

Section 712.03(3) provides that the rights of any person in possession of the lands are not extinguished or affected by the Marketable Record Title Act, so long as such person is in possession. The children argue that possession under a life estate is possession in recognition of the whole fee, so it is in effect possession for the vested remaindermen, as well as for the life tenants. They present no firm authority for their “constructive” possession theory. Even were we to accept it, it has no application here. Subsection (3) applies only so long “as the person remains in possession.” Lotta, through whom the children had constructive possession under the theory, gave up her possession to the property after she and Lewis deeded the property to Rayonier.

The question is answered in the negative.

Question # 4:

(a) The interests of the children are not protected by any provision of the Florida Constitution of 1885 because, as explained under Question # 2, the property was not homestead at the time the 1937 deed was executed.

The statutory law applicable in 1935 to descent of homestead is Chapter 16103, Section 28, Laws of Florida (1933). When their father died, this statute gave the children vested remainders in his homestead. However, the statute is not a shield from operation of the Act. As Judge Reed, who coincidentally authored the opinion in this case for the U.S. District Court, Middle District, Florida, as well as the Fourth District’s opinion in Marshall, supra, stated in this case:

“Section 712.03 delineates specifically the interests which are not subject to extinction by the Act, and the statutory interest of homestead beneficiaries which vested prior to the root of title is not among them. Thus, the only reasonable assumption to be drawn from the express terms of the Act is that the Legislature did not intend to except therefrom such interests of persons claiming under the homestead statute (now F.S.A. § 731.27). See Marshall v. Hollywood, Inc., Fla.App. 1969, 224 So.2d 743, 750, where the Court said:
“ ‘. . . The specific enumeration of exceptions to the act in Section 712.-03 and the specific provision in Section 712.05 for the protection of valid claims indicates a legislative intent to exclude no other claims from extinction by the operation of Sections 712.02 and 712.-04.’
“To adopt the defendants’ contention would be to subvert the major legislative purpose of the Act which is, as stated by the Florida Supreme Court in Marshall v. Hollywood, Inc., ‘ . . . to simplify and facilitate land title transactions by allowing persons to rely on a record title as described by F.S. § 712.02, F.S.A., subject only to such limitations as appear in F.S. § 712.03, F.S.A.’ ”
ITT Rayonier v. Wadsworth, 386 F.Supp. 940 at 943 (D.C.Fla.,1975).
The question is answered in the negative.

Our answer to subsection (a) of Question # 4 makes unnecessary answers to subsections (b) and (c).

These answers are respectfully submitted to the U.S. Court of Appeals, Fifth Circuit.

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

      . “712.10 Law to be liberally construed — This law shall be liberally construed to effect the legislature purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in § 712.02 subject only to such limitations as appear in § 712.03.”

      . Id.

      . “712.02 Marketable record title. — Any person having the legal capacity to own land in this state, who, alone or together with his predecessors in title, has been vested with any estate in land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in § 712.03. A person shall have a marketable record title when the public records disclosed a title transaction affecting the title to the land which has been of record for not less than thirty years purporting to create such estate either in:
      (1) The person claiming such estate; or
      (2) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.”

      . “712.03 Exceptions to marketability. — Such marketable record title shall not affect or extinguish the following rights:
      (1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title; provided, however, that a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page of record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions of subsection (5).
      (2) Estates, interests, claims, or charges preserved by the filing of a proper notice in accordance with the provisions hereof.
      (3) Rights of any person in possession of the lands, so long as such person is in such possession.
      (4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.
      (5) Recorded or unrecorded easements or rights, interests or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof. No notice need be filed in order to preserve the lien of any mortgage or deed of trust or any supplement thereto encumbering any such recorded or unrecorded easements, or rights, interest, or servitude in the nature of easements, rights-of-way, and terminal facilities. However, nothing herein shall be construed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any greater rights than the rights of the mortgagor or grantor.
      (6)Rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so assessed and which rights are preserved for a period of three years after the land is last assessed in such person’s name.”

      . “712.04 Interests extinguished by marketable record title. — Subject to the matters stated in § 712.03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. All such estates, interests, claims or charges, however denominated, whether such estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void, except that this chapter shall not be deemed to affect any right, title or interest of the United States, Florida or any of its officers, boards, commissions or other agencies reserved in the patent or deed by which the United States, Florida or any of its agencies parted with title.”

      . Chapter 16103, § 28, Laws of Fla. (1933).

      . The Bradshaw decision recognized that a case such as this one, in all likelihood, would not fall under its holding when it stated that had the root of title been fixed in a deed after the husband’s death (when the property no longer possessed homestead character) the root probably would not have been inherently defective. Reid at 183.

      . She was not in possession at the time the children’s notice of their claim to the land was filed in 1971.


author: BOYD, Justice. SUNDBERG, Justice,

text:
    Doris A. LAWRENCE, Petitioner, v. FLORIDA EAST COAST RAILWAY COMPANY, a corporation, Respondent.
    No. 49275.
    Supreme Court of Florida.
    April 29, 1977.
    Rehearing Denied June 29, 1977.

      Arnold R. Ginsberg, Horton, Perse & Ginsberg, and Beckham & McAliley, Miami, for petitioner.
    Kenneth L. Ryskamp and Arthur M. Simon, Bolles, Goodwin, Ryskamp & Welcher, Miami, for respondent.
   BOYD, Justice.

We have before us a decision of the District Court of Appeal, Fourth District, reported at 328 So.2d 249. We have jurisdiction because in the decision the District Court certified a question as one of great public interest.

This is the factual background of the case. The husband of Doris Lawrence was struck and killed by a Florida Eastcoast Railway train while driving through the King Street crossing in Cocoa. As widow and representative of the estate, Mrs. Lawrence brought an action for wrongful death alleging the Railway’s negligence in failing to furnish adequate warning of the train’s approach.

Conflicting evidence on whether the King Street crossing warning system had operated properly was adduced at trial. Mrs. Lawrence called as an adverse witness the Railroad’s Superintendent of Signals and Communications. When asked on direct examination whether it was possible for the warning system to have malfunctioned, the Superintendent replied:

“Crossing signal circuits are designed fail-safe, as far as humanly possible. They are maintained to be fail-safe, as far as humanly possible. Anything could happen.”

For the avowed purpose of impeaching the Superintendent’s testimony, Mrs. Lawrence introduced into evidence three reported instances of gate malfunctions at crossings other than the King Street crossing which had occurred within ninety days of the accident. The Railway’s objection to the evidence was overruled.

After Mrs. Lawrence presented her case, the Railway Company offered the defense that the decedent was contributorily negligent. The jury was instructed on comparative negligence, but the trial court refused the Railway’s request that there be submitted to the jury special verdict forms which would reveal the percentage of the parties’ negligence as determined by the jury. The jury returned a verdict in favor of Mrs. Lawrence.

On appeal, the District Court of Appeal, Fourth District, stated that for evidence of prior similar incidents at railroad crossings to be admissible in the case-in-chief, the prior incidents must have occurred at the same crossing at which the litigated accident occurred. The court then reversed because of the great prejudicial effect of the admission of the prior similar incident evidence. To Mrs. Lawrence’s contention that such evidence is admissible for impeachment purposes, the court answered that the evidence was introduced during Mrs. Lawrence’s direct examination and, furthermore, that the witness had conceded the fallibility of the system when he said, “Anything could happen.”

In addition, the court was inclined to hold that the failure to submit special verdict interrogatories to the jury, at the request of the Railway Company, constituted reversible error. Although this Court permits the use of special verdicts in the discretion of the trial court, Hoffman v. Jones, 280 So.2d 431 (Fla.1973) and Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), this Court has never held that special verdict interrogatories must be submitted to the jury on comparative negligence issues when requested by a party. After reviewing authorities stressing the importance of special verdicts in comparative negligence cases, the court certified the following question as one of great public interest:

Whether the adoption and application of the principle of comparative negligence requires the submission of special verdicts to the jury on the percentage of fault of each party (plaintiff and defendant) where either party requests the submission of special verdicts?

I.

We direct our attention first to the issue of admission of the evidence of similar gate malfunctions at other railroad crossings. That the evidence was avowed by the plaintiff to be used to impeach an adverse witness whom she had called to the stand does not require its exclusion from evidence. The common law rule that a party cannot impeach its own witness is based, first, on the reason that by calling the witness the party vouchsafes for his trustworthiness and, second, on the reason that the power to impeach is the power to coerce the witness to testify as desired under an implied threat to attack his character, if he does not. McCormick on Evidence, § 38 2d Ed. (1972). These reasons are inapplicable if the witness is adverse to the party’s position and the Railway’s Superintendent of Signals and Communications, when called by Mrs. Lawrence, was surely an adverse witness. Even when the witness is not adverse, the rule doe not apply to forbid a party to introduce other evidence to contradict the testimony of his own witness when the aim of the evidence is to dispute and not to impeach. 98 C.J.S. Witnesses § 630 and cases collected thereunder. Despite counsel’s avowal that the evidence was for impeachment, we believe the evidence should not have been excluded since it contradicted the Superintendent’s testimony that the signal system was as fail-safe as humanly possible. Although the Superintendent testified that “anything could happen,” the clear thrust of his testimony was that there existed an aura of infallibility about the signal system. The evidence pierced that aura and in so doing contradicted the testimony of the witness, thereby putting the evidence beyond the reach of the rule.

That the evidence should not have been excluded under an impeachment rule does not decide its admissibility. Admission of the evidence obviously prejudiced the case of the Railroad. The prejudice is justified if outweighed by the probative value of the evidence, and so we inquire into its relevancy.

The District Court thought the evidence should have been excluded because the malfunctions had not occurred at the crossing at which the litigated accident occurred. Evidence of prior accidents at the same railroad crossing, when the conditions surrounding the accidents are similar and not too remote in time, have been held relevant for the purpose of showing the dangerous character of the place and the defendant’s knowledge thereof and therefore admissible. Perret v. Seaboard Coast Line Railroad Co., 299 So.2d 590 (Fla.1974). Other cases have held evidence of prior similar accidents at the same crossing admissible. Friddle v. Seaboard Coast Railroad Co., 306 So.2d 97 (Fla.1975) and Loftin v. Dagley, 152 Fla. 831, 13 So.2d 311 (1943). As the District Court pointed out, the rule does not permit admission of evidence of prior accidents at other crossings and in view of the relevancy of similar accident evidence, as it relates to place, we believe it sound not to admit such evidence.

However, Mrs. Lawrence argues that the evidence was not introduced for the purpose of showing that the King’s Street crossing was dangerous, but rather for the purpose of showing that the Railroad had notice that the signal system was not operating properly. The record supports her argument. It appears the District Court confused the rule governing prior similar accidents with the rule governing admission of evidence of notice of defective appliances. As was said in Friddle, supra,

“Evidence of . prior similar injuries resulting from the same appliance, as that of the accident or injury in suit, is generally admissible for the purpose of showing the existence of dangerous or defective . . . appliances and notice or knowledge thereof . . . .” 328 So.2d at 251.

Although no injuries resulted from the other gate malfunctions, we believe the evidence of their occurrence was relevant for showing notice of a defective system, provided the proper predicate of similarity was established. An ironclad rule of what constitutes similarity would most likely defeat the administration of justice. Therefore, we think determinations of whether a proper predicate of similarity exists should be left to the sound discretion of the trial judge. Some of the guidelines for determining similarity in cases such as this one are the other gate malfunctions closeness in time to the alleged malfunction in the litigated accident, the frequency of the other malfunctions and, of course, the substantial similarity in the type of signal systems at the various crossings. In this case the trial judge acted within proper limits of discretion since his determination that a predicate of similarity existed was founded on the fact that three reported instances of gate malfunctions in signal systems, substantially the same as the system at the King’s Street crossing, had occurred within ninety days of Mr. Lawrence’s accident.

The evidence was relevant to prove that the railroad had notice of the possible defective condition of the signal system at the King’s Street crossing and its probative value outweighed any prejudice to the railroad. Therefore, we hold the evidence of the gate malfunctions at other crossings to have been properly admitted within the sound discretion of the trial judge and the decision of the District Court is quashed to the extent it is inconsistent with this opinion.

II.

When the rule of comparative negligence was adopted in Hoffman v. Jones, it was stated,

“In accomplishing these purposes, the trial court' is authorized to require special verdicts to be returned by the jury and to enter such judgment or judgments as may truly reflect the intent of the jury as expressed in any verdict or verdicts which may be returned.” 280 So.2d at 439.

Thus, the utility of special verdicts in suits involving comparative negligence has been recognized by this Court. Until now the use of special verdicts has been limited to when the trial courts choose to require them. For the first time we are squarely presented with the question of whether they must be used in trials at which comparative negligence is in issue if either party requests their use.

At the outset we would like to make it clear that a decision to require special verdicts in cases of this kind will not apply to this case. The trial court was following the law as it existed at the time of the trial when he chose not to require special verdicts. To require a new trial now because special verdicts were not used would be like changing the rules after a game had been played and requiring a rematch.

The District Court was inclined to the view that a special verdict showing the percentage of fault of the parties should be required in cases where comparative negligence is at issue when a party requests it. A few quotations from the well written opinion of the District Court of Appeal, Fourth District, are helpful in our decision.

“. . . At the very heart of the adoption of comparative negligence was the pragmatic recognition that juries invariably ‘balanced’ the negligence of the parties to ultimately arrive at a fair result and a reaffirmance of the principle that the jury system was capable of keeping pace with any such change. If, therefore, we have admonished the jury to continue to do that which it was doing anyway but to do so ‘in the open’ as a recognized and standardized practice, assuredly the jury is capable of spelling out its verdict with percentile specificity, i. e. delineating the degree of negligence of each party in a percentage form.
# # He * * *
“. . .By adopting a system of special verdicts we can ascertain whether the comparative negligence principle is actually being applied. We can determine with some degree of reliability whether comparative negligence is a living and practicing doctrine or merely a lofty concept without pragmatic results.” 328 So.2d at 253, 254.
# * # *
“A discussion of the necessity for the use of special verdicts is contained in Malo-ney, From Contributory to Comparative Negligence; a Needed Reform, 11 U.Fla. L.Rev. 135, 170-3 (1958); Timmons and Silvis, Pure Comparative Negligence in Florida, 28 U.Miami L.Rev. 737, 800 (1974); Prosser, Comparative Negligence, 51 Mich.L.Rev. 465 (1953); see also Schwartz, Comparative Negligence (1974), sec. 174; 32 A.L.R.3d 463, 492, annotation: N egligence — Comparative— Contributory. All of the treatises recognize that the special verdict will serve to insure that the comparative negligence law achieves its desired goal of apportioning damages on the basis of fault. The treatises also recognize that in addition to the equitable considerations there is a practical need for special verdicts, e. g. it puts the mathematical computations in the hands of the judge rather than a jury and provides a means for appellate review of these computations. As additionally pointed out in the University of Miami Law Review article at page 802:
‘Prosser observed three main reasons for the adoption of special verdicts in conjunction with the adoption of comparative negligence: (1) it allows for the correction of jury error (a remitti-tur may save a new trial); (2) it forces detailed consideration by the jury rather than allowing it to jump to a conclusion on a “gut reaction”; and (3) it enables the court to avoid the necessity of using long, complicated jury instructions which would open the door to reversible error.’ (28 U.Miami L.R. at 802)
“It is particularly interesting to note the observations made by one textwriter that of the ten states following comparative negligence wherein special verdicts are specifically provided for, four of the states require a special verdict in every case where contributory negligence is an issue; in the other six, a special verdict may be required in the discretion of the court and must be required upon timely request made by any party. See Schwartz, Comparative Negligence, supra.” 328 So.2d at 255.

Just as changing winds require seamen to adjust their sails, courts must alter procedures to meet the needs of society.

In response to the certified question, we have carefully considered the procedures and results used by the use of court discretion in comparative negligence trials. Fairness requires uniformity in the State judicial system. The concept of comparative negligence contemplates findings of the relative degrees of negligence of each party found to be at fault.

We hold that special verdicts shall be required in all jury trials involving comparative negligence. When comparative negligence is at issue in nonjury trials, the court shall make findings of record required by special verdicts.

Since courts have heretofore exercised their discretion in requiring special verdicts, as authorized in Hoffman v. Jones, supra, this decision shall be prospective only from the effective date of this decision and shall have no retroactive effect.

Accordingly, that portion of the opinion of the District Court of Appeal, Fourth District, requiring a new trial is quashed and the certified question is answered to require special verdicts in all cases involving comparative negligence.

It is so ordered.

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

SUNDBERG, J., concurs in part and dissents in part with an opinion, with which ADKINS and KARL, JJ., concur.

SUNDBERG, Justice,

concurring in part and dissenting in part.

I concur in that portion of the majority opinion which deals with the admission of evidence of notice of defective appliances. However, I must respectfully dissent from that part of the opinion which responds to the certified question in the affirmative.

In Hoffman v. Jones, 280 So.2d 431, 439 (Fla.1973,) we iterated our full confidence that the trial court judges of this state could handle adequately any problems created by the change to a comparative negligence rule as such problems arose. After stating the purposes for the adoption of the comparative negligence rule, we concluded that trial judges were authorized (not required) to provide for special verdicts to be returned by the jury. This is consistent with the procedure adopted in California whose Supreme Court followed Florida’s lead in judicially adopting the rule of comparative negligence. See Li v. Yellow Cab Co. of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, 1240 (1975). It is apparent that in multi-party incidents involving more than simply one plaintiff and one defendant special verdicts can be of assistance to the jury and the court. Our present practice permits the trial judge to exercise his discretion to require a special verdict in such instances. However, the trial judge is not presently mandated to require special verdicts in every case. It has not been demonstrated that our confidence in the circuit court bench expressed in Hoffman was misplaced. Therefore, I would not make it mandatory upon the trial court to require special verdicts where in the judgment of the trial judge such is not required.

Furthermore, I do not believe that special verdicts are the panacea they are asserted to be by the opinion of the District Court of Appeal, Fourth District, whose reasoning is accepted by the majority. In fact, special verdict forms may tend to confuse a jury in the two-party incident case and cause a double reduction in damages when the jury attempts to apply the directions of the standard jury instruction on comparative negligence to the special verdict form. See Schlein v. Florida East Coast Railway, 339 So.2d 1142 (Fla.3d DCA 1976).

We have been ever vigilant in our system of jurisprudence to insure the sanctity of jury deliberations. In complex cases where, in the discretion of the trial judge, a special verdict is essential to proper application of the rule of comparative negligence, an encroachment upon the confidentiality of the jury’s deliberations may be justified. However, I would not extend the present rule which already treads perilously close to requiring the jury to divulge their thought processes and justify on paper the basis for their decision. I would respond to the certified question in the negative.

ADKINS and KARL, JJ., concur.

      . Art. V, § 3(b)(3), Fla.Const.

      . The Railroad has moved that we not consider this issue since it was not presented by the petition for certiorari. We deem it our prerogative to consider any error in the record once we have it properly before us for our review. The record is properly before us on the certified question.


author: HATCHETT, Justice.

text:
    In the Interest of S. R., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 50144.
    Supreme Court of Florida.
    April 29, 1977.
    Robert E. Jagger, Public Defender, and Howard L. Crown, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry and C. Marie King, Asst. Attys. Gen., for respondent.
   HATCHETT, Justice.

The following question was certified to the Second District Court of Appeal by the Circuit Court of Pinellas County:

Is dismissal with prejudice mandatory or discretionary when a petition alleging delinquency is not filed within 30 days from the date the complaint was received by the intake office or intake officer of the Division of Youth Services?

The Second District Court held that dismissal is discretionary. In the Interest of S. R., a child v. State, 336 So.2d 662 (Fla. 2d DCA 1976). That decision directly conflicts with Interest of S. L. M., 336 So.2d 391 (Fla. 4th DCA 1976). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. We hold that dismissal is mandatory.

On February 27, 1976, S. R., a child, was taken into custody by the St. Petersburg Police Department and referred to the Division of Youth Services on three charges: obscene language, resisting arrest with violence, and obstructing and opposing an officer. The Division of Youth Services received the complaint February 28, 1976. On April 9, 1976, 41 days later, the State Attorney filed three petitions alleging delinquency. The child’s attorney filed a motion to dismiss pursuant to Section 39.05(7), Florida Statutes (1975), which reads:

On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 30 days from the date the complaint was referred to the intake office. (Emphasis supplied).

The state opposed the motion relying on Florida Rules of Juvenile Procedure 8.020 which reads:

On motions by or in behalf of a child, a petition alleging delinquency or need of supervision may be dismissed with prejudice if it was not filed within 30 days from the date the complaint was received by the Intake officer.
(Emphasis supplied).

The language of the above-quoted statute is essentially identical to that of the rule. The difference lies in the use of the words “shall” and “may.” The Second District Court of Appeal determined that the statute is a grant of authority and that its language is discretionary. We do not agree. Although there is no fixed construction of the word “shall,” it is normally meant to be mandatory in nature. Neal v. Bryant, 149 So.2d 529 (Fla.1962). Its interpretation depends upon the context in which it is found and upon the intent of the legislature as expressed in the statute. White v. Means, 280 So.2d 20 (Fla. 1st DCA 1973). By enactment of Section 39.05(7), Florida Statutes (1975), the legislature provided that a juvenile shall be free from further prosecution if a petition alleging delinquency is not filed within 30 days after a complaint is received by the intake office of the Division of Youth Services. The statute further provides that an untimely petition shall be dismissed with prejudice. We can think of no better example of a mandatory requirement.

The Second District Court of Appeal also held that Section 39.05(7), Florida Statutes (1975), is procedural in nature and therefore subject to the rules promulgated by this Court. Again, we disagree. Section 39.05(7), Florida Statutes (1975), provides a juvenile with a substantive right and substantive statutes supersede procedural rules, State v. Garcia, 229 So.2d 236 (Fla.1969). We therefore hold that dismissal with prejudice is mandatory when a petition alleging delinquency is filed more than 30 days after a complaint is received by the intake office of the Division of Youth Services.

Accordingly, the decision of the Second District Court of Appeal is quashed, and this matter is remanded for action consistent with this opinion.

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

BOYD, J., dissents.


author: PER CURIAM.

text:
    In the Interest of S. L. M., a child.
    No. 50259.
    Supreme Court of Florida.
    April 29, 1977.
    Rehearing Denied June 29, 1977.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for the State of Fla., petitioner.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, for S. L. M., A Child, respondent.
   PER CURIAM.

Affirmed. See In the Interest of S. R., a child v. State of Florida, 346 So.2d 1018 (Fla.1977).

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

BOYD, J., dissents.


text:
    Linda Marie GIBSON, Deborah Y. Cox, and Deborah Sean Dunn, Appellants, v. STATE of Florida, Appellee.
    Nos. 50063-50067.
    Supreme Court of Florida.
    May 12, 1977.
    William F. Casler, St. Petersburg, for appellants.
    Robert L. Shevin, Atty. Gen., and C. Marie King, Asst. Atty. Gen., for appellee.
   PER CURIAM.

These consolidated cases come to us on direct appeal from judgments of guilt and sentences thereon entered by the County Court for Pinellas County, Florida. The judgments and sentences were entered upon pleas of nolo contendere, with each defendant reserving the right to appeal the constitutionality of Section 796.07, Florida Statutes (1975). The defendants originally entered pleas of not guilty but changed their pleas after the trial judge entered orders which severally denied motions to dismiss informations charging violations of Sections 796.07(2)(a), 796.07(3)(a), and 796.-07(3)(c), Florida Statutes (1975), respectively. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution. After careful review of the record and briefs of the parties, we dispense with oral argument pursuant to Florida Appellate Rule 3.10, subd. e. and affirm the judgments and sentences herein appealed. See State v. Bales et al., 343 So.2d 9 (Fla.1977).

It is so ordered.

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