text:
    William BALDWIN v. STATE.
    3 Div. 810.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.

      Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Montgomery County charged the appellant, William Baldwin, with first degree murder of John Jackson, by shooting him with a shotgun. Appellant entered pleas of not guilty, and not guilty by reason of insanity. A jury found the appellant guilty of murder in the second degree and fixed his punishment at forty years imprisonment in the penitentiary. The trial court entered judgment in accordance with the verdict, and appellant appeals to this Court.

This appeal was submitted to this Court on briefs. The appellant was represented by counsel of his choice at all proceedings in the trial court and is represented in this Court by different counsel under court appointment.

The appellant argues in his brief four grounds why his conviction should be reversed; first, because the trial court allowed in evidence State’s exhibit 3, a pump shotgun and State’s exhibit number 4, two spent shotgun shells, and prejudicial testimony about them; second, because the trial court sustained State’s objection to a question to appellant’s mother calling for hearsay evidence; third, by allowing into evidence a written statement of appellant when there was not sufficient proof of a valid waiver by him of his rights against self-incrimination; fourth, the refusal of the trial court to charge the jury on second degree manslaughter. We will consider the matters treated in appellant’s brief in the order therein set out.

State’s evidence tends to prove that between 9:00 and 11:00 o’clock, P. M. on a night in the middle of March, 1975 the appellant came around the corner of the house at Bea’s Place, in Macedonia Community in Montgomery County with a single barrel sawed off shotgun and shot the deceased in his chest when he was sitting on the front seat of his car which was backing out from in front of Bea’s Place; that there was a hole blasted out of the windshield in front of where the deceased was seated; that deceased drove off down the road a short distance where his car went off the road and wrecked; deceased was removed from his wrecked car and laid out on the ground; that after deceased was laid out on the ground beside his car the appellant secured a 12 gauge pump shotgun and went across the road and shot two times down toward the wrecked car where deceased was laid out on the ground; that deceased’s death was caused by wounds made by the single barrel sawed-off shotgun; that State’s exhibit 1 is the single barrel shotgun first used by appellant; that State’s exhibit 3, a twelve gauge pump shotgun, is the second gun used by the appellant when he fired down toward the car of the deceased where the deceased had been laid out; that State’s exhibit 4 is two twelve gauge expended shotgun shells; that State’s exhibits 3 and 4 were secured by officers at the scene of the shooting on the night of the shooting; that the two twelve gauge expended shotgun shells were fired from State’s exhibit 3. The appellant claimed self-defense.

The appellant argues that the State’s exhibits 3 and 4 had no bearing on the issues presented by the indictment against him; that there was no proof that any of the shots fired from the pump gun contributed in any way to the death of the deceased; that the introduction into evidence of State’s exhibits 3 and 4 was highly prejudicial and had no other purpose than to prejudice the appellant.

Intent to kill being a necessary element of murder in the second degree the burden is on the State to prove it. Smith v. State, 40 Ala.App. 158, 109 So.2d 853, and cases therein cited. The test as to the admission of evidence is stated in Rollings v. State, 160 Ala. 82, 49 So. 329, and again by Justice Merrill in the case of Nichols v. State, 267 Ala. 217, 100 So.2d 750. The test is that the evidence, “must have some tendency to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. It must have some tendency to shed light upon some material inquiry.” We hold that under the facts shown by the record in this case State’s exhibits 3 and 4 and the evidence that the spent shells were fired in State’s exhibit 3 is admissible evidence for the jury to consider on the material issue of intent of appellant. Nichols v. State, supra; Rollings v. State, supra.

The second contention of the appellant occurred during the direct examination of appellant’s mother who owned and operated Bea’s Place. We quote from the record,

“Q Okay. Do you know a girl by the name of Shirley Givens?
A Yes, I know Shirley Givens.
Q Did you have a conversation with her in and around the time of this shooting and right around the time all of this happened?
A Right around the time I did.
Q Did the conversation you had with her include a conversation she had just had at the scene with Jim Green?
A Yes.
Q I will ask you to relate to this Court what Sirley Givens told you?
MR. ESPY: Your Honor, we object to that.
THE COURT: Sustained.
Q Was this there right at the scene after it happened?
A That is right.
MR. COLLIER: Your Honor, it is part of the res gestae.
THE COURT: No.
MR. ESPY: If you can produce that witness. You know better than that, Wayne.
THE COURT: All right.
Q Henrietta, where is Shirley Givens?
A She is in Ohio. She is not here.
Q She is out of the state?
A RIGHT.
MR. COLLIER: Your Honor, the witness is not available.
THE COURT: It still would be hearsay testimony not subject to cross examination. The Court would rule that she can’t report any conversation she had with anybody else.
MR. COLLIER: That is all. Your witness.”

Appellant contends the conversation that the witness, Henrietta, had with Shirley Givens about a conversation Shirley Givens had with Jim Green was a part of the res gestae and exempt from the hearsay rule, and the action of the trial court in sustaining State’s objection was highly prejudicial to him. Res gestae is difficult to define. It is a question for the court to decide under the particular facts in each case.

It is clear from the record in this case that appellant was offering his mother as a witness to recount an alleged conversation that Shirley Givens, who was not a witness, had with Jim Green, who was a witness. This conversation was after the shooting. We hold that a statement which is merely a narration of a past transaction is not a part of the res gestae, and that the trial court was correct in it’s ruling. Illinois Central B. R. Co. v. Lowery, 184 Ala. 443, 63 So. 952; Dean v. State, 105 Ala. 21, 17 So. 28; Reese v. State, 338 So.2d 495; Kiel v. State, 28 Ala.App. 308, 184 So. 208; Alabama Power Co. v. Ray, 249 Ala. 568, 32 So.2d 219; Harrison v. Baker, 260 Ala. 488, 71 So.2d 284.

We will now consider appellant’s waiver of his rights against self-incrimination. Officer Bob Singleton, a deputy sheriff of Montgomery County, testified in substance that he was the chief investigator of the shooting and death of the deceased. He took custody of the appellant on the night of and at the scene of the shooting and lodged him in the county jail. About forty-five minutes later, Officer Singleton told the appellant he could make a telephone call if he wanted to. The appellant was in custody from about 1:15 until around 5:00 that morning when he was questioned by Officer Singleton. About ten minutes before questioning the appellant about the shooting, Officer Singleton informed the appellant of his constitutional rights as set out in State’s exhibit 8 by reading it aloud to him. Officer Singleton testified that exhibit 8 is in writing and is commonly called a “Waiver of Rights.” After reading State’s exhibit 8 to the appellant, he said he understood it and voluntarily signed it in the presence of Officer Byron and Officer Singleton.

State’s exhibit 8 recites in substance, “Before we ask you any questions you must understand your rights. You have the right to remain silent. Anything you say can be and will be used against you in Court. You have the right to have a lawyer present to advise you before we ask you any questions, and to have him present with you during the entire time you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you if you wish without any cost to you. You have the right to have him present to advise you before we ask you any questions, and also during the entire time you are being questioned.

“If you wish to answer questions now without a lawyer present, you still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.

“I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

There was a long hearing by the trial court out of the presence of the jury, and the trial court determined that the appellant knowingly, freely and voluntarily waived his rights and freely signed State’s exhibit 8. The appellant did not testify at the hearing out of the presence of the jury or at his trial and offered no evidence with reference to his waiver of his rights. The State laid the proper predicate for the introduction of the appellant’s inculpatory statement. We have reviewed all the evidence and hold that under the facts shown in this record the trial court was correct in holding that the appellant knowingly, intelligently and voluntarily waived his rights and freely signed State’s exhibit 8. Wright v. State, Ala., 340 So.2d 74; Dotson v. State, 288 Ala. 727, 265 So.2d 162, certiorari denied, 288 Ala. 742, 265 So.2d 175, certiorari denied, 93 S.Ct. 930, 409 U.S. 1117, 34 L.Ed.2d 701; Rainer v. State, Ala.Cr.App., 342 So.2d 1348.

We cannot agree with appellant that the trial court erred in refusing to charge the jury on the offense of manslaughter in the second degree. It is true that an indictment for murder in the first degree does contain the charge of manslaughter in the second degree but under our rules there are two requirements necessary to sustain a conviction of a person for a crime. One, the pleadings must charge a crime and second, the evidence must prove a crime. The appellant under the facts contained in this record and all reasonable inferences to be drawn from them could not have been found guilty of manslaughter in the second degree. Manslaughter in the second degree is where it plainly appears that neither death nor great bodily harm was intended, but death was accidentally caused by an unlawful act, or an act strictly lawful in itself, but done in an unlawful manner and without caution. Where there is no evidence tending to show that the killing was unintentional or accidental, a charge on manslaughter in the second degree is unnecessary and is not proper. Fulghum v. State, 291 Ala. 71, 277 So.2d 886; Williams v. State, 251 Ala. 397, 39 So.2d 37; Green v. State, 271 Ala. 106, 122 So.2d 520.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jimmy Wayne BYCE v. STATE.
    6 Div. 218.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.

      James H. Hard, IV, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent below and on this appeal, was indicted for robbery, convicted by a jury and sentenced to fifteen years imprisonment.

Appellant asserts that he was the victim of prejudicial argument on the part of the Deputy District Attorney and that the trial court erred in overruling his objections thereto. We advert seriatim to the argument.

According to the record the District Attorney stated to the jury:

“MR. BLOCKER: Ladies and gentlemen, the testimony of Mrs. Bice (sic), I submit to you, was put on in part to draw sympathy from this jury.”

I

It appears that Mrs. Byce, wife of defendant and his witness, testified without objection that she did not work for a living, and was the mother of two children.

We cannot say that she was put on the witness stand solely to gain sympathy of the jury with respect to her marital status and dependency, but her evidence was reasonably calculated to draw some sympathy. We cannot see that this evidence, adduced by defendant, shed any light on his guilt or innocence. The ruling of the court was not in error.

II

A second assertion of error refers to the State’s argument as follows:

“MR. BLOCKER: Wesley Cherry is the victim in this case, the technical victim. And I submit to you that you are all victims in this case. You are all the victim of this crime.”

We think the above comment is nothing more than an appeal for law enforcement and an assertion of trespass on the rights of society which is the ultimate and general victim. Elston v. State, 56 Ala.App. 299, 321 So.2d 264(5). The ruling of the court was free from error.

So far as we have been able to find, the rulings of the court were free from error.

The judgment is affirmed.

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

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ruth Nell EDDY v. STATE.
    6 Div. 585.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.

      Charles E. Tweedy, Jr., Jasper, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was tried on an indictment charging murder in the second degree of D. C. Rusk. A jury found her guilty of manslaughter in the first degree and fixed her punishment at five years imprisonment. She was sentenced accordingly.

The deceased was killed by one bullet, from a .38-caliber Smith and Wesson handgun, that penetrated his left chest and was lodged in the front of his spine. Defendant was the only eyewitness to the killing, which occurred about midnight October 14-15, 1976.

According to the testimony of defendant and statements she made two or three hours after the killing and also about 9:00 o’clock that morning, she had been almost constantly with defendant from 4:00 or 4:30 o’clock the afternoon before the killing. They had been drinking considerably, he more than she. Each had a living and undivorced spouse. She had been separated from her husband. They drove around from place to place, then went to Leeroy Stewart’s home near Grayson. They after-wards located Leeroy Stewart, who got into the pickup truck of the deceased with them. They went down an old road for several miles and Mr. Rusk made her undress so the Stewart boy could “make love” to her and she would not do it. The Stewart boy ran off. She then started driving the truck. After about an hour, the truck was stopped close to where Mr. Rusk was killed. This was in the area where her own car was parked. While there, Rusk got out of the truck, undressed, and got back in the truck with her. She was under the steering wheel and he was on the passenger’s side of the seat of the truck. She had not been able to get her clothes back and was still undressed. They continued to drink. He asked her where the gun was. She said he had given her a gun for protection where she was living in a trailer. She told him it was in her purse. She reached in her purse with her left hand and when she brought out the pistol, he grabbed it and said, ‘I’ll bet you don’t even know how to cock it,” and the gun went off. She testified he said, “Mamma, it’s bio wed my heart out.”

Driving the truck, she attempted to get him to the hospital, but took him to the sheriff’s office in Double Springs instead. She said that she had been fighting with Rusk at times that night, and there was evidence of bruises and scratches on her face and on Rusk’s face; but she denied intentionally firing the pistol.

There was some evidence that she had threatened to kill Rusk on a previous occasion, but she emphatically denied it. Her testimony as to Rusk’s having undressed her and attempting to get her to have a carnal affair with Stewart, much younger than either defendant or Rusk, was corroborated by the testimony of Stewart as a witness for the State.

Defendant strenuously objected to testimony by two State’s witnesses as to the statements made by her about 3:00 A.M. the night of the killing and about 8:00 A.M. the same morning. The State showed conclusively that before the first statement was made, she had been given fully the Miranda warnings, that she freely and voluntarily waived her rights and made a statement as to what occurred. There is no contention to the contrary. Defendant contends that while the statement about 3:00 A.M. was being taken, defendant made it known to the officers that she wanted an attorney. However, according to the testimony of the officers, as to which there was little, if any, dispute, her reference to an attorney did not consist of a request for a lawyer, but was a conditional statement by her to the effect that if one of the officers wanted her to answer the question by him whether she had committed adultery with Rusk the night of his death, she wanted a lawyer. When interrogated about 8:00 A.M. by another officer, she was again advised fully of her rights, including her right to an attorney if she wanted one, at no expense to her, and she voluntarily told him what had occurred. The ruling of the court as to the statements made by defendant was as follows:

“. . . My ruling was that the statement made by the defendant is admissible insofar as they were statements made prior to her statement in the 3:00 meeting which she did-not want to answer any other questions until she had talked to a lawyer. I am ruling inadmissible any statements in the 3:00 meeting she may have made. And I am admitting the statements she made at the 8:00 meeting.”

Counsel for defendant then stated:

“We except severally (sic) and severally to the ruling on the 8:00 meeting and the ruling on the 3:00 meeting before she asked for a lawyer.”

As to all of the statements of defendant admitted in evidence, she was acting voluntarily, understandingly, and with full awareness of her right to counsel which she had waived. The ruling of the court was not erroneous.

There was strong evidence that there was no gunpowder residue near the entrance hole of the bullet in the chest of Rusk.

State Toxicologist Kilborn testified as to tests made by him with the death weapon with live cartridges left therein and with similar cartridges. He said that according to the “tests and results in the laboratory the muzzle of the weapon would have to be 36 inches or greater to leave no gunpowder particles on the body.” Defendant’s objection to the question calling for such evidence was overruled, and appellant insists the evidence did not show “similarity in the essential conditions at the time of the occurrence and at the time of the experiment.” He reasons thus because the evidence shows that the bullets in the test firing were fired into white paper. We recognize the possibility of there being some difference between the results of a test for powder residue when bullets are fired into white paper and when fired into human flesh; but certainly there is nothing before us to show that such possible difference invalidates the tests as a basis for the evidence of a proved expert in this particular field of science. Substantial similarity is sufficient, and, in the absence of dissimilarity in some essential particular, the lack of exact identity affects only the weight and not the competency of the evidence. Louisville & Nashville R. Co. v. Sullivan, 244 Ala. 485, 13 So.2d 877; Neelley v. State, 261 Ala. 290, 74 So.2d 436; Nichols v. State, 267 Ala. 217, 100 So.2d 750. In Nichols, 267 Ala. at 224, 100 So.2d at 756, it was held:

“We are unwilling to say that the rule was not complied with in this instance. The pistol used in the test was the same pistol used in the fatal shooting. The ammunition fired in the tests was the same type of ammunition that was fired in the pistol at the time of the fatal shooting. The witness was an expert.”

During the cross-examination of State Investigator Jerry Thomas, as a witness for the State, he was questioned as to statements made by defendant to him when he talked with her about 3 A.M. on the night of the homicide. He said that he had a tape recorder and recorded on the tape the conversation; and that the tape had been used again which caused an erasure of the taped conversation between him and defendant. The following then occurred:

“Q You knew a case was going to be made out of this, didn’t you?
“A Yes, sir.
“Q And you knew the tape recording or tape might be important in this case, didn’t you?
“MR. SNODDY: We object to that, Your Honor, any further reference to this witness destroying evidence.
“THE COURT: Sustained.
“MR. TWEEDY: We except. We will state this. I would not be asking questions if I did not think they were important.
“MR. SNODDY: We object to that, Your Honor.
“MR. TWEEDY: Well, you said you didn’t think I had grounds.
“MR. SNODDY: That is highly improper. He is implying he had been told something outside the courtroom.
“MR. TWEEDY: You said, you made the statement about me having some grounds. Well, I have grounds now. You do not have the tape that shows what was said and shows the tone of voices and how everybody was talking that night.
“THE WITNESS: No, sir, I don’t.
“Q How long did you keep it before you taped over it?
“A Approximately a week.
“Q Where did you keep it?
“A At my office.
“Q Where is your office?
“A Hamilton, Alabama.
“Q Where?
“A Hamilton, Alabama.
“Q Hamilton?
“A Yes, sir.”

Thus ended the cross-examination of the witness as to the tape recording and the taped conversation, and an extended cross-examination was commenced as to other matters.

Appellant urges as reversible error the action of the trial court in sustaining the State’s objection as above noted. Although much discretion is vested in the trial court, cross-examination of a witness should not be unduly limited, especially when the interrogation is as to possible interest or bias of the witness, or his hostility, or ill will toward the party against whom he is testifying. Craven v. State, 22 Ala.App. 39, 111 So. 767; Wells v. State, 292 Ala. 256, 292 So.2d 471.

As the recorded colloquy in the case shows there was apparently some misunderstanding between counsel as to what counsel for defendant sought to develop by the particular question to the witness. It is not clear that he was attempting to show that the witness intentionally destroyed the recording of the conversation, but if so, any “yes” or “no” answer to the question would not have accomplished the purpose. It seems to us that defendant would not have gained anything by either an affirmative or a negative answer. Whether the trial court should have sustained the objection or not, the action of the court in sustaining the objection did not injuriously affect substantial rights of defendant, in our opinion.

Evidence was properly admitted on cross-examination of defendant that on previous occasions there had been fights between defendant and Rusk, as to which the court declined to allow the State to go into details. The admissibility of such evidence for the purpose of showing motive or malice of defendant toward deceased, has been repeatedly upheld in homicide cases. Wright v. State, 279 Ala. 543, 188 So.2d 272; Padgett v. State, 49 Ala.App. 130, 269 So.2d 147; McClendon v. State, 54 Ala.App. 327, 307 So.2d 723; Davis v. State, Ala.Cr.App., 331 So.2d 813.

In her direct examination, defendant testified she had been separated from her husband and was living in an entirely different neighborhood from where they had previously lived together. Other circumstances of her living separate and apart from him were shown on direct examination of her. On cross-examination, she was asked the reason for the separation. Defendant’s objection to the question was overruled. Her answer was, “Because he knew I was seeing D. C.” The answer does not disclose whether she was giving her husband’s or her reason for separation, but appellant treats it as her reason in urging that the question “sought by the State to show that the defendant had left her husband because she wanted to go with D. C. Rusk, the deceased.”

“A defendant, after testifying, may be asked on cross-examination as to his motives or reasons for his particular acts shown in his direct examination.” Patton v. State, 197 Ala. 180, 183, 72 So. 401, 402.

Appellant argues that the refusal of defendant’s requested Charge No. 12, “If there is from the evidence a reasonable probability of defendant’s innocence, the jury should find the defendant not guilty,” constitutes reversible error. He relies upon Huguley v. State, 4 Ala.App. 29, 58 So. 814, which held that substantially the same charge was erroneously refused. However, subsequent cases make it clear that where the jury is fully charged on the subject of reasonable doubt and moral certainty, and the meaning thereof, such instructions are more rigorous and more favorable to defendant than a charge requiring the exclusion by the evidence of a reasonable probability of innocence and that the refusal of such a charge does not constitute error. Edwards v. State, 205 Ala. 160, 87 So. 179; Russo v. State, 236 Ala. 155, 181 So. 502; Carroll v. State, 36 Ala.App. 59, 52 So.2d 171; Petty v. State, 40 Ala.App. 151, 110 So.2d 319, cert. denied 269 Ala. 48, 110 So.2d 325; Gardner v. State, 40 Ala.App. 276, 111 So.2d 916. In the instant case, the court fully covered the principle that a guilty verdict could not be returned unless the evidence established defendant’s guilt beyond a reasonable doubt and to a moral certainty. It follows that there was no error in the refusal of Charge No. 12. For the same reason, the court was not in error in refusing other “probability” or “reasonable probability” charges requested (Charges 6 and 18).

Charge No. 7 was defective in form by reason of the language “even when.” It is subject to the same criticism as the “even though” and “even should” charges, or the like, which have been held to have been refused without error. Blair v. St. Margaret’s Hospital, 285 Ala. 636, 640, 235 So.2d 668; Louisville & N. R. Co. v. Parker, 223 Ala. 626, 646, 138 So. 231, cert. granted 286 U.S. 535, 52 S.Ct. 496, 76 L.Ed. 1275, cert. dismissed 287 U.S. 569, 53 S.Ct. 94, 77 L.Ed. 501; Manistee Mill Co. v. Hobdy, 165 Ala. 411, 417, 51 So. 871, 138 Am.St.Rep. 73. In Louisville & N. R. Co. v. Parker, it was said that the word “even” carried with it an intimation against the supposition, and in Manistee Mill Co. v. Hobdy, it was said that the word “even” entertained an intimation that it was the court’s opinion that it was not probable that the jury would find in accordance with the hypothesis that immediately followed the quoted word.

Appellant complains of the refusal of requested written charge XI, stating, “that the defendant is not being tried for adultery and you cannot convict her in this case because of the fact, if it be a fact, that she and D. C. Rusk had committed adultery.” As much as the relationship between defendant and deceased became a matter of evidence, comment and argument in the case, never at any time was there any basis for any notion by any juror that defendant was not being tried for killing D. C. Rusk or that she was being tried for committing adultery with him. The requested instruction contained no principle of law and insofar as the province of the jury was concerned contained nothing more than an idle statement. Its refusal was proper.

Refused charges on the matter of reasonable doubt and the necessity for a unanimous agreement before defendant could be convicted were fully and adequately covered by given written instructions or in the oral charge of the court. They were refused without error.

Appellant’s able counsel admirably argues that defendant was entitled to the requested general affirmative charges in her favor, that the court should have granted defendant’s motion to set aside the verdict prior to her sentence and that it erred in overruling defendant’s motion for a new trial. That the evidence was sufficient to present a jury issue as to her guilt, we have no doubt; that the death of Rusk was accidental, as contended by defendant, is entirely possible, but a conclusion to the contrary is not so unreasonable as to justify an interference with the finding of the jury; that the verdict finding defendant guilty of an intentional but a non-malicious homicide is indicative of the resolution of any and all doubt in favor of defendant; and that the fixation of punishment midway between the lower and upper limits is probably the reflection of a favorable response to the strong appeal of counsel for his client to the end that justice was tempered with mercy.

In addition to our consideration of all the questions raised by appellant, we have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    COLONIAL INN et al., Petitioners, v. Eusebio VARGAS et al., Respondents.
    No. 49679.
    Supreme Court of Florida.
    Sept. 29, 1977.
    Rehearing Denied Jan. 10, 1978.
    John C. Allen, Jr. and Donald D. Gillis of Underwood, Gillis, Karcher, Reinert & Gordon, Miami, for petitioners.
    Howard N. Pelzner and Peter S. Sehwe-dock of Pelzner & Schwedock, Miami, for respondents.
   PER CURIAM.

This cause having heretofore been submitted to the Court on Petition for Writ of Certiorari upon the transcript of record and briefs and argument of counsel for the respective parties, to review the order of the Industrial Relations Commission and the Court finding no departure from the essential requirements of law, it is ordered that said petition be and the same is hereby-denied. See: Scholastic Systems, Inc. et al. v. LeLoup et al., 307 So.2d 166 (Fla.1974).

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

ENGLAND and SUNDBERG, JJ, dissent.


text:
    Edward F. DOWNING and Jack McGuire, Petitioners, v. CAREER SERVICE COMMISSION of the State of Florida, etc., et al., Respondents.
    No. 51282.
    Supreme Court of Florida.
    Oct. 20, 1977.
    Rehearing Denied Jan. 9, 1978.
    Denis Dean, Law Offices of Eugene P. Spellman, Miami, for petitioners.
    Robert L. Shevin, Atty. Gen, Betty J. Steffens, Asst. Atty. Gen, Edwin E. Strickland, Gen. Counsel, and Enoch J. Whitney, Asst. Gen. Counsel, Tallahassee, for respondents.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Fla.App. Rule 4.5 c (6).

After hearing argument, we are of the opinion that the writ of certiorari heretofore granted in this cause, Fla.App, 344 So.2d 348 should now be discharged. Accordingly, the writ of certiorari is discharged.

ENGLAND, SUNDBERG, HATCHETT and KARL, JJ, concur.

ADKINS, Acting C. J, dissents.


text:
    Geraldine WARNER, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Russell’s Lawn Care, Respondents.
    No. 51314.
    Supreme Court of Florida.
    Oct. 27, 1977.
    Rehearing Denied Jan. 10, 1978.
    Kenneth Garber, Fort Myers, for petitioner.
    Kenneth H. Hart, Jr., and Alex D. Little-field, Jr., Tallahassee, for respondent, Florida Department of Commerce Division of Employment Security.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Fla.App. Rule 4.5c(6).

After hearing argument, we are of the opinion that the writ of certiorari heretofore granted in this cause should now be discharged. Accordingly, the writ of certio-rari is discharged.

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

ADKINS, J., dissents.


author: HATCHETT, Justice.

text:
    Richard P. SMITH et ux., et al., Petitioners, v. VENUS CONDOMINIUM ASSOCIATION, INC., Respondent. MEADOWS DEVELOPMENT COMPANY, Petitioner, v. George IHLE, Respondent.
    Nos. 51516, 51529.
    Supreme Court of Florida.
    Oct. 31, 1977.
    Rehearing Denied Jan. 9, 1978.

      Michael William Mead, of Middleton & Mead, Fort Walton Beach, for petitioners Richard P. Smith, et ux., et al.
    Robert T. Hyde, Jr., of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, and George N. Jahn, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner Meadows Development Co.
    Mark E. Walker, Fort Walton Beach, for respondent Venus Condominium Ass’n, Inc.
    Albert Millar, Jr., Jacksonville, for respondent George Ihle.
    William S. Belcher, St. Petersburg, and Russell Troutman, Winter Park, for The Florida Bar, as amicus curiae.
    Fletcher G. Rush, of Rush, Marshall, Bergstrom & Robison, Orlando, for Lawyers’ Title Guaranty Fund, as amicus curiae.
    George N. Jahn, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, and Robert T. Hyde, Jr., of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for The Florida Land Title Ass’n, as amicus curiae.
   HATCHETT, Justice.

These consolidated cases have been certified to us by the District Court as involving questions of great public interest. The District Court of Appeal in Meadows Development Co. v. Ihle, 345 So.2d 769 (Fla. 1st DCA 1977), held that the filing and recording in the county’s official records of either the original final judgment, or a certified copy of that judgment, was sufficient under Section 55.10, Florida Statutes (1969), to create a judgment lien on land owned by the judgment debtor in the forum county. In Smith v. Venus Condominium Ass’n, Inc., 343 So.2d 1284 (Fla. 1st DCA 1977), the District Court held that this same statute as amended in Section 55.10, Florida Statutes (1975), still permits a judgment lien to be created by the recordation in the county’s official records of either the original judgment or a certified copy of that judgment. These decisions conflict with the decision in Dade Federal Savings and Loan Ass’n v. Miami Title and Abstract Division, 217 So.2d 873 (Fla. 3rd DCA 1969), which held that under Section 55.10 as amended in 1967, a judgment lien against property was created only after a certified copy of the final judgment was recorded in the county’s official records. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. We approve of the reasoning in Meadows Development Co., supra, and affirm that decision. Since the holding in Dade Federal is to the contrary, that decision is overruled. However, we further determine that Section 55.10, Florida Statutes (1975), as presently written requires the recordation of a certified copy of the final judgment in the county’s official records before a valid judgment lien can be created. Therefore, we quash the decision below in Venus Condominium.

At common law, except for debts due the King, the lands of a debtor were not liable to the satisfaction of a judgment lien against him, and consequently, a judgment did not operate as a lien on the real estate of the debtor. Judgment liens on land are statutory liens and their existence depends upon the legal effect of the statute by which they are created. See Protective Holding Corp. v. Cornwall Co., 127 Fla. 252, 173 So. 804, 812 (1937). From 1939 to 1967 Section 55.10 provided that:

No judgment or decree hereafter rendered by the Circuit Courts or any other courts of this state shall be or become a lien on real estate until a certified transcript of said judgment or decree is recorded in the judgment lien record as provided by § 28.21 subsection (11) of these statutes. Upon being so recorded said judgment or decree shall become a lien on the real estate of the defendant only in the county where the same is recorded in the manner provided by said § 28.21. Section 55.10, Fla.Stat. (1965). (emphasis added)

As the result of amendment in 1967, Section 55.10, Florida Statutes, (1967) and (1969) provided:

Judgments and decrees become a lien on real estate in the county where rendered when the judgment of decree is recorded in the proper record of such county and in other counties when a certified copy thereof is recorded in the proper record of other counties.

This 1967 amendment created confusion in the law, and precipitated the conflict among appellate decisions in this state which we now resolve. The great concern that was generated over this issue resulted from speculation among the bench and the bar as to the possible effects that this 1967 amendment might have on Florida land titles. If the statutory amendment placed state judgments in a more advantageous position than federal judgments, then this disparity in treatment of federal judgments would forfeit the benefits of the Federal Conformity Act, 28 U.S.C., Section 1962, regulating the liens of federal judgments. If the federal courts interpreted the Florida judgment lien statute as permitting Florida circuit court judgments to become liens on Florida real estate more readily than the judgments of federal district courts rendered in Florida, the liens of federal court judgments rendered in Florida would extend upon rendition throughout the federal district, regardless of county lines and regardless of county recordation of any kind. Because of the adverse effect such a situation might create with regard to land title searches in this state, the District Court of Appeal in Dade Federal construed Section 55.10, Florida Statutes (1967), in a manner contrary to the plain language of that statute, so as to prevent loss of benefits in the Federal Conformity Act. A thorough analysis of the erroneous decision by the District Court in Dade Federal is set forth at great length in the Meadows case, and therefore does not need repetition here.

In 1972, the judgment lien statute was again amended so as to require that a “certified copy” of a judgment be recorded even in the county where rendered, before a lien can be created. From the history of this legislation, as set forth in Meadows, it appears that the present judgment lien statute requires that a certified copy of the judgment, whether rendered in the state or federal courts, be recorded in the official records of the county in which the land is located, before a judgment lien on that property is created. Although the slight inequality of treatment between federal and state judgments, under the 1967 amendment to this statute, might not have been of sufficient impact to precipitate the loss of benefits under the Federal Conformity Act, the Legislature apparently wished to remove all doubt as to such a danger, by requiring the identical procedure for the recordation of certified copies of judgments, whether rendered in state or federal courts, even though this procedure might require some duplication if the state judgment was rendered in the same county in which the debtors property is located.

We hold that respondent Ihle complied fully with Section 55.10 as it was amended and existed in 1970, by recording the judgment in the official records of the county in which the debtor’s property was located, and thus affirm the decision upholding the validity of his judgment lien. However, since respondent Venus Condominium Association never recorded a certified copy of the judgment in the official records of the county in which its debtor’s land was located, there was no compliance with the judgment lien statute as it existed in 1976, and the recordation of the original judgment alone was ineffectual to create a valid judgment lien. Therefore, we quash the decision of the District Court in Venus Condominium and remand the cause for further proceedings not inconsistent with this opinion.

It is so ordered.

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


text:
    Dawn Marie REID, etc., Petitioner, v. STATE FARM FIRE AND CASUALTY COMPANY, etc., Respondent.
    No. 51427.
    Supreme Court of Florida.
    Oct. 31, 1977.
    Rehearing Denied Jan. 9, 1978.
    S. Victor Tipton, Orlando, for petitioner.
    James 0. Driscoll, of Driscoll, Baugh, Langston, Layton & Kane, Orlando, for respondent.
   HATCHETT, Justice.

This case comes to us by Petition for Writ of Certiorari to review a decision of the Fourth District Court of Appeal which allegedly conflicts with Lee v. State Farm Mutual Automobile Insurance Co., 339 So.2d 670 (Fla. 2nd DCA 1976) on the issue of whether an automobile can, at the same time, be both an insured and an uninsured motor vehicle due to the operation of Florida Statutes and a valid liability exclusion provision contained in an insurance policy. Article V, Section 3(b)(3). The Fourth District Court determined that it could not. We agree and adopt the well reasoned opinion of that Court authored by Judge Aider-man, J.:

Dawn Marie Reid seeks review of two summary final judgments. Pleading alternatively, she sought judgment against State Farm Fire and Casualty Company for injuries received by her as a passenger in an automobile driven by her sister, owned by her father, and insured by State Farm. Separate appeals have been consolidated. The first appeal challenges a provision of the policy which excludes liability coverage for injury of a family member residing in the same household as the insured. In the second appeal, appellant contends that if there is no primary coverage by reason of the family-household exclusion, she is covered by the uninsured motorist provision of the policy. We affirm the judgment in each appeal.
FIRST APPEAL
Appellant’s father obtained an automobile liability insurance policy on the family car. State Farm agreed to pay on behalf of its “insured” all sums which the insured should become legally obligated to pay as damages because of bodily injury sustained by other persons caused by accident arising out of the ownership, maintenance or use of this car. The unqualified word “insured” was defined to include any person while using the car, provided the operation and the actual use of the car were with the permission of the named insured. At the time of the accident, appellant’s sister was driving their father’s car with his permission. Her sister therefore qualified as an “insured” under the terms of the policy.
Appellant filed suit against her sister and State Farm alleging that she was injured as a proximate result of her sister’s negligence. State Farm denied liability, relying upon a provision in the policy that the insurance does not apply to bodily injury to any insured or any member of the family of an insured residing in the same household as the insured. Appellant and her sister resided in the same household. If the exclusion is valid, it applies.
It is generally accepted, in the absence of a statutory prohibition, that provisions of automobile liability insurance policies excluding from coverage members of the insured’s family or household are valid. 46 A.L.R.3d 1024. This is also the rule in Florida. Newman v. National Indemnity Company, 245 So.2d 118 (Fla. 3d DCA 1971); see also Zipperer v. State Farm Mutual Automobile Ins. Co., 254 F.2d 853 (5th Cir. 1958). The reason for the exclusion is obvious: to protect the insurer from over friendly or collusive lawsuits between family members.
Appellant contends that Florida law does prohibit the use of the family-household exclusion in automobile liability insurance policies. The basis of her argument is the Florida Automobile Reparations Act, which became effective January 1, 1972. Specifically, she relies upon the language of Section 627.733, Florida Statutes (1975).
One of the express purposes of the Act is to require medical, surgical, funeral and disability insurance benefits to be provided without regard to fault under motor vehicle policies that provide bodily injury and property damage liability insurance. Section 627.731, Florida Statutes (1975). The policy in this case does provide for payment of the “no fault” benefits in accordance with the Act. No issue has been raised concerning the payment of these benefits.
The Act is limited in scope and is separate from the Financial Responsibility Law, Chapter 324, Florida Statutes (1975). The provision of Section 627.733, that every owner or registrant of a motor vehicle required to be registered and licensed in the state shall maintain security, must be read in context with the rest of the Florida Automobile Reparations Reform Act. In this context, the purpose of the required security is clearly to provide financial responsibility to pay any “no fault” personal injury protection benefits due under Section 627.736. Except for providing security for this “no fault” coverage, the Florida Automobile Reparations Reform Act can not reasonably be construed to require an additional or different proof of financial responsibility than is required by the Financial Responsibility Law.
Although it is certainly within the power of the Legislature to prohibit all family-household exclusions in automobile liability insurance policies, we hold that it did not do so by its enactment of the Florida Automobile Reparations Reform Act. The summary final judgment in Case No. 76-619 is affirmed.
SECOND APPEAL
Appellant contends that if she cannot recover upon the first appeal, she can recover under the uninsured motorist provision of the policy, which provides uninsured motorist coverage to her father and the members of his family residing in the same household. However, another exclusion provides that an “uninsured motor vehicle” may not be the vehicle defined in the policy as the insured motor vehicle. In other words, her father’s car can not be an uninsured motor vehicle under the terms of the policy, even though, as we held in the first appeal, it is in fact uninsured as to her.
We hold that the family car in this case is not an uninsured motor vehicle. It is insured and it does not become uninsured because liability coverage may not be available to a particular individual. Taylor v. Safeco Insurance Co., 298 So.2d 202 (Fla. 1st DCA 1974); Centennial Insurance Co. v. Wallace, 330 So.2d 815 (Fla. 3d DCA 1976).
We recognize, as a general rule, that an insurer may not limit the applicability of uninsured motorist protection. Hodges v. National Union Indemnity Company, 249 So.2d 679 (Fla.1971); Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971); Salas v. Liberty Mutual Fire Insurance Co., 272 So.2d 1 (Fla.1972). We believe, however, that the present case is factually distinguishable from previous cases and is an exception to the general rule. Here the family car, which is defined in the policy as the insured motor vehicle, is the same vehicle which appellant, under the uninsured motorist provision of the policy, claims to be an uninsured motor vehicle. We find no merit in appellant’s argument that this exclusion conflicts with Section 627.727, Florida Statutes (1975).
We have considered the recent case of Lee v. State Farm Mutual Automobile Insurance Co., 339 So.2d 670 (Fla. 2d DCA 1976). That decision may be distinguished factually from the present case because the “uninsured motor vehicle” which caused the injury in Lee was not the same vehicle as the “insured motor vehicle” named in the policy. Also, in Lee the court was not dealing with a policy provision which provides that the term “uninsured motor vehicle” does not include the vehicle named in the policy as the “insured motor vehicle.” However, even with these factual distinctions we recognize that there is an underlying conflict between the two cases. The court in Lee appears to say that all restrictions on uninsured motorist coverage, without exception, are against public policy and are void. On the other hand, we say that the particular restriction on uninsured motorist coverage in the present case is not against public policy and is not void. To' hold otherwise in this case would completely nullify the family-household exclusion.
The summary final judgment in Case No. 76-1532 is affirmed.

Subsequent to the entry of the Fourth District Court’s decision in this case and, after we accepted jurisdiction, the Second District Court of Appeal had occasion to again address this issue in Hartford Accident & Indemnity Co. v. Fonck, 344 So.2d 595 (Fla. 2nd DCA 1977), and in so doing distinguished its earlier opinion in Lee as follows:

The situation here is also distinguishable from that in Lee v. State Farm Mutual Auto Ins. Co., 339 So.2d 670 (Fla. 2d DCA 1976), decided while this appeal was pending. In Lee a teenager was injured in a one car accident while a passenger in an automobile owned and operated by his brother. The teenager was permitted to recover under the uninsured motorist provision of his father’s policy after his brother’s liability carrier denied coverage under the household exclusion. In Lee this court was dealing with two separate policies. There, the teenager’s father had purchased the uninsured motorist protection for himself and his family, and we held the son must be afforded that protection. Here, we are dealing with Fonck’s claim under the uninsured motorist provision of the same policy under which the liability coverage was validly excluded — a policy which made Fonck an insured solely because of his status of occupying the vehicle as an employee and not because of any coverage he purchased. (at p. 596)

Thus, the conflict between the two district courts of appeal is resolved.

Accordingly, the decision of the Fourth District Court of Appeal is approved and the writ is discharged.

It is so ordered.

ADKINS, acting C. J., and BOYD, ENGLAND and KARL, JJ., concur.

         Reid v. Allstate Insurance Co., 344 So.2d 877 (Fla. 4th DCA 1977).


text:
    THE FLORIDA BAR, Complainant, v. Archibald J. RYAN, Jr., Respondent.
    No. 52198.
    Supreme Court of Florida.
    Nov. 30, 1977.

      Elinor P. Smith, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

On August 11,1977, The Florida Bar filed its petition alleging:

“1. Respondent, Archibald J. Ryan, Jr., failed to file his personal federal income tax return for the years 1967, 1968, and 1969.
“2. Respondent was charged by information filed February 3, 1972, with three counts of violating 26 U.S.C. 7203, a misdemeanor, in United States of America v. Archibald J. Ryan, Jr., in United States District Court for the Middle District of Florida, Jacksonville Division, Case # 72-41-Cr-J.
“3. The information charged Respondent’s gross income in 1967 (Count I) was $47,884.72; in 1968 (Count II) was $58,-676.31 and, in 1961 (Count III) was $72,-261.81.
“4. Respondent pled guilty to Count II and was adjudicated guilty on March 1, 1973, of wilfully and knowingly failing to make an income tax return for the calendar year 1968 to the director of Internal Revenue Service Center, or to the director of Internal Revenue, or to any other proper officer of the United States, in violation of Title 26, United States Code, Section 7203.
“5. Respondent was ordered to spend 10 days in jail, placed on probation for one year and fined $1,000.
“6. Pursuant to a complaint against Respondent filed by The Florida Bar, investigative proceedings were held on November 16, 1972, by the Seventeenth Judicial Circuit Grievance Committee, Committee ‘C.’
“7. On March 30, 1973, the Seventeenth Judicial Circuit Grievance Committee ‘C’ found probable cause justifying further disciplinary proceedings against Respondent based on Respondent’s plea of guilty in the Federal District Court for failure to file in 1968. Further proceedings were held on January 21,1975, in order to give Respondent an opportunity to explain or make a statement concerning his plea of guilty in the court case.
“8. On September 17, 1976, The Florida Bar filed a two-count complaint against Respondent with the referee. Count II of the complaint concerned Respondent’s plea of guilty for failing to file his personal income tax return in 1968.
“9. On June 7, 1977, Bar counsel negotiated a conditional guilty plea for consent judgment with Respondent for Count II of the Bar’s complaint, contingent upon approval by the Supreme Court and the Board of Governors of The Florida Bar. “10. At its July 1977, meeting, the Board of Governors of The Florida Bar accepted Respondent’s conditional guilty plea subject to approval by the Supreme Court.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Archibald J. Ryan, Jr., is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of two-hundred and sixty-one dollars ($261) are hereby taxed against the Respondent.

It is so ordered.

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

ENGLAND, J., dissents.


text:
    ALLINGTON TOWERS CONDOMINIUM NORTH, INC., Appellant, v. Philip SEIDLER, Helen Seidler, Alvin W. Rosenthal, Charles Jacobs, Morris Weinfeld, Birer Investments Corporation, and Allington Towers North, Inc., Appellees (two cases).
    Nos. 76-217, 76-218.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9. 1977.
    Rehearing Denied Jan. 9, 1978.
    Paul W. Hessel, Hollywood, for appellant.
    Barry Mandelkorn, of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellant filed two interlocutory appeals, Case Nos. 76-215 and 76-216, from two order of the trial court, dated December 29, 1975, and January 12, 1976. The order of December 29, 1975, removed and vacated a lien which appellant had filed on condominium units owned by appellee, Allington Towers North, Inc. The order of January 12, 1976, discharged a Lis Pendens which appellant had filed. Upon appellant’s motion, these interlocutory appeals were consolidated.

In an abundance of caution, appellant also filed two plenary appeals from the orders of December 19, 1975, and January 12, 1976. Upon motion, these cases were also consolidated. In its brief filed in the interlocutory appeals, appellant states:

“Appellant considers these Orders interlocutory in nature, and these appeals therefore properly taken as interlocutory. However, perhaps in an excess of caution, Appellant has also filed appeals under Rule 3.11 Appellate Rules, in the event that such Orders may be considered ‘final’ in disposing of any Count of the complaint in Case No. 1, and/or of the counterclaim in Case No. 2. But since by its very terms the Order vacating the lien did not dispose of the entire claim between these parties, nor of any Count completely distinct and unrelated to any other, it would seem to be apparent that it, and the corollary Order discharging the Lis Pendens, were, in fact, interlocutory.”

On March 4, 1976, appellant filed a motion requesting this court to allow appellant to use its brief and appendix filed in the interlocutory appeals (Case Nos. 76-215 and 76-216) as its brief in the two plenary appeals. The primary ground of said motion was that “these appeals [the plenary appeals] contain identical questions of fact and law . . . ”. This motion was granted and the briefs filed in the plenary appeals are the identical briefs filed in the interlocutory appeals.

On January 14, 1977, this court affirmed the consolidated interlocutory appeals without opinion. However, the affirmance of the interlocutory appeals was a disposition on the merits; it was not a dismissal as appellant seems to contend. Thereafter, on April 11,1977, appellant filed a Petition for Certiorari to the Supreme Court of Florida, which proceeding has not yet been terminated.

On October 20, 1977, appellees moved to dismiss the plenary appeals in Case Nos. 76-217 and 76-218, on the grounds that the issues contained therein are identical to the issues in the two interlocutory appeals and that those issues had been decided by this court in the decision affirming the interlocutory appeals.

We agree. Accordingly, the appeals in Case Nos. 76-217 and 76-218 are hereby dismissed.

DOWNEY, DAUKSCH and ANSTEAD, JJ., concur.


author: LETTS, Judge. LETTS, Judge.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. WEST PALM BEACH GARDEN CLUB et al., Appellees.
    No. 76-1786.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    On Rehearing Dec. 20, 1977.

      H. Reynolds Sampson, Gen. Counsel, Winifred Sheridan Smallwood, Stanley W. Moore and Kenneth M. Towcimak, Tallahassee, for appellant.
    James W. Vance, West Palm Beach, Manley P. Caldwell, Jr., Palm Beach, and Elaine N. Duggar of Richardson Law Offices, Tallahassee, for appellees.
   LETTS, Judge.

This appeal is taken by the Florida Department of Transportation from a final judgment rendered in a condemnation suit awarding $644,275 for the value of the land actually taken for 1-95 and $1,700,000 in severance damages (including cost to cure). We reverse the latter award.

Dreher Park is a city owned park in West Palm Beach some 6,600 feet from north to south and averaging only 600 feet wide. It is bounded on the north by the Florida Power and Light Company substation with all of its customary vertical and horizontal ganglia of electrical gadgetry, wires, and concrete poles. Not far north of that, is the divided four lane highway, Southern Boulevard. The park is bounded on the south by another four lane highway, Forest Hill Boulevard, and is bisected by the two lanes of Summit Boulevard. Its western boundary is now 1-95, but formerly was the Seaboard Airline Railroad tracks before the road artery came into being. Its eastern boundary is largely a residential area (only six blocks, and 3200 feet, from US# 1), composed of narrow lots with small homes thereon and a minor sized trailer park.

Much of Dreher Park, itself, was originally purchased by the City of West Palm Beach from the appellant State of Florida for $100.00, the City knowing long before the park was developed to its present level that STATE ROAD 9 WAS TO BE BUILT THROUGH THAT LOCATION. Originally purchased in its raw state, much of it swamp, muck and sand (and some of it used to dump garbage by the City), Dreher Park became the pleasant place that it is now primarily because of the perseverance and vision of one dedicated man, Paul Dreher. Admittedly superintendent of parks for the City, Dreher, nonetheless, largely created the original park by personal, after hours, labor and assistance from volunteer friends and equipment, with little help from the City and in the beginning without the City’s knowledge.

Later in 1952 the City returned 200 feet to the State along the western boundary for a right of way to be used in the construction of a limited access highway, the same State Road 9, already referred to above. It is upon this 200 foot strip, together with the .additional 150 foot strip condemned hereunder, on which 1-95, instead of State Road 9, has been constructed.

In the park itself the City has either created, or permitted, a zoo, a science muse•um and planetarium, pickup type baseball fields, a model airplane flying club and picnic areas. The City, at time of trial, with approved Federal assistance, was in the process of implementing a master plan for the further improvement of the park.

The land in question is less than one and one-half miles from the end of Runway 13 at Palm Beach International Airport and is directly adjacent to the glide path thereto when air traffic approaches from the southeast or takes off in that direction.

The condemnation proceedings now before us for review began with no objection by the City to the chosen location nor any allusion to damage from noise factors. In fact prior to the suit being filed, the record reflects quite the reverse and many letters were written by City officials urging the immediate construction of 1-95 at this very location.

Thus, for example, the City in 1970 adopted a resolution approving the coming of the limited access facility “designated as Interstate 95 State Road 9.”

Much later, in the year 1973, the city manager wrote to Senator Lewis in Tallahassee as follows:

Dear Senator Lewis:
I am writing to you since I know of your interest in the completion of 1-95.
Mr. Schutta and Mr. Goodloe of my staff are concerned with the delay which would be caused by requiring an environmental impact statement on the section of 1-95 south of Southern Boulevard. I would point out to you that this is the area extending through Dreher Park and if the taking of park land will require an environmental study, this will greatly delay completion of the final project.
Any influence you may have to encourage the DOT to let this contract prior to completion of an environmental impact statement would be greatly appreciated.
Sincerely,
Richard G. Simmons
City Manager

Against this backdrop, the Department of Transportation filed an eminent domain proceeding against several defendants, in-eluding the City which filed a general denial. There were no affirmative defenses about lights, vibrations or noise until approximately one and one-half years later, when the City amended its answer to allege that the taking would “necessitate construction of a suitable sound, vibration and light barrier,” for which the State should pay. To this contention the Department of Transportation took, and still takes, continuing and strenuous exception.

The resulting jury verdict included an award of $1,700,000 principally to build a wall on the north half of the park, thus creating a noise and light barrier. This appeal followed.

The appellant presents multiple points on appeal, but we shall address ourselves only to those essential to the disposition of this cause. We commence with the award of $644,275 as compensation for the land actually taken and find no error.

The appellant, Department of Transportation, argues that it should have been allowed to have its market valuation, predicated upon use for residential purposes, submitted to the jury inasmuch as this is the traditional approach, 4 Nichols, Eminent Domain, § 12.32(4)(c). This market valuation only totalled $364,925 or some $280,000 less than the actual award. The City’s appraisers on the other hand appraised this land as a park thereby adopting a “value in use” concept.

The Department of Transportation additionally contends that if there is a reasonable possibility that the use of the property may ever be changed, then the value in use concept is in error. However we see nothing in the record to suggest the possibility of the land being employed for anything other than its present use. Dreher Park is encumbered by a public purpose clause in the deed of conveyance and the land would revert to the State if it were ever used for anything other than a public purpose. In addition, the property is zoned for park use and has in fact been a park for over thirty years. We note the Federal grant and master plan to further develop it.

The First District was faced with a somewhat similar problem in State Department of Transportation v. Byrd, 273 So.2d 400 (Fla. 1st DCA 1973), where the real estate involved was a recreational facility serving the citizens of Daytona Beach. The court in that case held that an appraisal based on fair market value would not be proper, due to the “special use” of the parcel involved. In the case now before us there is little likelihood of the land being used as anything other than a park and we therefore cannot find the trial judge to be in error for adopting the “value in use” concept and rejecting other alternatives.

Considering next the award of $1,700,000, (all but $122,500 of which was for the purpose of curing the noise from the highway by constructing a wall to preserve the tranquility of the park), we find this to be in error and reverse.

Among the jury instructions given was one that if the jury found substantial impact damage and impairment to the remainder of Dreher Park, and if it found the construction of a noise barrier to be reasonable in order to preserve the utility of the park and minimize the noise, then it should include in the award a sum sufficient to build such a noise barrier wall. We believe this instruction, objected to, was erroneous and highly prejudicial as the subsequent jury verdict conclusively demonstrated.

Mere highway noise as such, not coupled with a physical invasion or trespass, is not compensable under Florida law. Travis v. Department of Transportation, 333 So.2d 86 (Fla. 1st DCA 1976); Northcutt v. State Road Department, 209 So.2d 710 (Fla. 3rd DCA 1968); Weir v. Palm Beach County, 85 So.2d 865 (Fla.1956). By contrast, it is equally clear under our State Constitution that “no private property shall be taken except for a public purpose and with full compensation therefor paid.” Florida Constitution, Article X, Section 6(a) (emphasis supplied). The problem here is that the case at bar is somewhat of a hybrid. On the one hand there has been a partial “taking” of a 150 foot strip. On the other hand, the bulk of the $l,700f)00 award was to build a wall on land not taken and on which there was no physical invasion or trespass.

The Department of Transportation argues that Florida is a “taking” state and that remaining land not subject to actual physical invasion or trespass, although damaged, is not capable of receiving compensation. Northcutt v. State Road Department, 209 So.2d 710 (Fla. 3rd DCA 1968); Weir v. Palm Beach County, 85 So.2d 865 (Fla.1956). However the courts in Northcutt and Weir were both careful to limit the language used so as to leave room for the kind of “damage” that would be tantamount to an actual taking if the owner “. . . is substantially ousted and deprived of all beneficial use of the land affected.” Northcutt, supra at 713. Thus any such damage tantamount to an actual taking, despite the absence of physical invasion or trespass, has been held to be com-pensable and we think, properly so. A Florida case in point is Dean v. State Road Department, 165 So.2d 257 (Fla. 3rd DCA 1964). In Dean, the condemning authority took part of the property for a road and the court allowed severance damages because the remaining church premises, were rendered practically useless as a place of public worship and thus a cognizable element in the condemnation proceeding. Likewise see State v. Board of Education of City of Elizabeth, 116 N.J.Super. 305, 282 A.2d 71 (1971).

Applying the foregoing to the case now before us however, the record is completely devoid of suggestion that Dreher Park is no longer beneficially useful as a park because of the noise increase. To the contrary, the record is replete with testimony that it can and will continue to be used as a park and we again note that the City is involved in a master plan (with Federal aid) to further improve it. Accordingly, the considerable increase in noise levels at Dreher Park caused by passing traffic on 1-95 is no more of a “taking” than has been inflicted on countless tens of thousands of Florida residences (not to mention an abundance of parks and golf courses) whose occupants endure the consequences of endless traffic noise from adjacent arterial highways. (See Northcutt, supra, 712). The damage to Dreher Park is no different in kind from that suffered by anyone else similarly situated. (See Northcutt, supra, 713).

The City advances the further argument that Dreher Park is not an average city park, but was a “passive” park, the passivity of which has been destroyed by the noise of I — 95. Volume 31A of Words and Phrases, 9 (Supp.1976) defines passive as “inactive, quiescent, not active, permissive.” Pursuant thereto the City cites the now famous New York case of Dennison v. State, 48 Misc.2d 778, 265 N.Y.S.2d 671 (Ct. Claims 1965); affirmed, 22 N.Y.2d 409, 293 N.Y.S.2d 68, 239 N.E.2d 708 (N.Y.App.1968). In Dennison the court indeed did hold that a property owner who suffers loss of privacy, seclusion and quietude to his remaining property because of a partial taking for a highway may recover because of the “attendant noise, lights and odors;” however, in Dennison, the opinions in both the court of claims and on appeal spoke lyrically of “sylvan beauty”, “high and beautifully wooded and landscaped land”, “no unsightly telephone or electric poles”, “a fast stream . (as) one border of the property”, “entirely secluded quiet and peaceful”, “access to a private dock and beach on Lake George”, “estate residential” and a beautiful view of forest and mountain.”

We cannot relate such lyrical descriptions to Dreher Park, one and one-half miles away from touchdown, next to a screaming jet glide path for a major airport, six blocks from US# 1, bounded on the north and south by major arteries, bisected by a third, and bordered by the Seaboard Airline Railroad tracks. Moreover, the park itself has a zoo, a museum, ball fields, model airplane club, and immediately to the north, an electrical substation. Finally, we must comment that the western boundary was slated, in any case, for a limited access highway (SR 9), the right of way for which was given back to the State by the City (and for which no compensation would be forthcoming) together with urgent exhortations from City officials that the highway be built as soon as possible AND ANY SLATED ENVIRONMENTAL IMPACT STUDY PRIOR TO CONSTRUCTION, DISPENSED WITH.

To be sure, Dreher Park is a pleasant place, but there is nothing in the record to support the loss of the kind of sylvan beauty existing in the Dennison case, and we conclude that the increase in noise levels there, caused by 1-95, does not constitute a “taking” under the laws of this State.

Turning finally to the question of the severance and cost to cure awards, as same affect the Science Museum, the Zoological Society and the neighboring municipal golf course, we are compelled to disallow said awards for the same reasons already expressed above. Such a result is particularly unfortunate because the planetarium has suffered a diminution in viewing capacity due to the increase in light; however we must again point out that there has been no physical invasion or trespass, and the diminution has not rendered the planetarium useless nor has the museum been substantially deprived of its beneficial use. There is no suggestion that the public will not continue to use the facility. All this being so, there is no “taking” as such, and accordingly, there can be no award.

We note that neither estoppel nor claim of avoidable consequences was submitted to the jury. Nonetheless, although not essential to our decision, we do not deem it inappropriate to point out that the lease was signed by the museum before the construction of the planetarium. This lease clearly revealed the presence of the 200 foot right of way for State Road 9, immediately adjacent to the leased premises. Notwithstanding, the museum went ahead and constructed the facility anyway, and participated in, and acquiesced to, a letter written to the Department of Transportation, prior to 1-95, in which the then mayor of West Palm Beach stated:

Consideration has been given to the effects of traffic on the planetarium operation. It is our opinion that the highway traffic will not add any problem to the planetarium operation. ... I sim-cerely hope this provides all of the information that is required by the Federal Government so that you can proceed with this highway. All of the parties present at this meeting are in favor of the early construction of this segment of 1-95.

The entire severance and cost to cure award of $1,700,000 is therefore reversed and the cause remanded to the trial court for entry of an appropriately modified judgment, excluding said sum.

As to the motion for attorneys fees filed by counsel for the appellees, same is hereby granted inasmuch as their efforts have successfully resulted in the preservation of the higher compensation award for the land actually taken. This cause is therefore further remanded to the trial judge for consideration of fees to be awarded. Somewhat unusually we would remark that the assembled appeal was composed of 250 pages of briefs, a myriad of citations to the law, a 2,200 page record and a 6,000 page transcript. From all this came forth an output of painstaking and exhaustive work, by counsel for both sides, which is the product of extraordinary effort evidencing a high level of competence and the utmost in credibility.

ALDERMAN and DAUKSCH, JJ., concur.

ON PETITION FOR REHEARING

LETTS, Judge.

The petition for rehearing is hereby granted in part and the second paragraph on page 1180 of the original opinion is now amended to permit the allowance of severance damages to the remaining lands, in the sum of $72,500, as per the uncontroverted testimony of the appellees’ appraiser. The remainder of the award is found to be in error and is reversed in accordance with the original opinion.

ALDERMAN, C. J., and DAUKSCH, J., concur.

      . The defendant, Science Museum, did initially file an affirmative defense to the effect that the taking would result in total or partial loss of observatory viewing capabilities due to lights and vibrations.

      . A note from six members of the jury, assumed as accurate in the briefs on appeal, shows that $7,500 was apportioned to the neighboring West Palm Beach municipal, golf course, $25,000 to the Science Museum and Planetarium, $90,000 to the south end of the park below Summit Boulevard, and $1,477,500 for the noise barrier wall.

      . The City argues that all of the foregoing citations involve inverse condemnation and are therefore not applicable in the case now before us. We fail to see a valid distinction.

      . This argument presents an interesting paradox, for the City is implementing a master plan to make the park more passive, which posture would appear to be inconsistent with any concomitant claim that the existing passivity has been destroyed.

      . We note the recent case of Yonkers v. State of New York, 40 N.Y.2d 408, 386 N.Y.S.2d 865, 353 N.E.2d 829 (N.Y.App.1976), which applies the Dennison rationale to a setting anything but “sylvan”; however, we prefer the reasoning of the dissent in that case and believe the majority misunderstood Dennison.

      . Included at this meeting were the representatives of the museum, and the letter was dictated in front of them.

      . Bleachers $9,000; model airplane circle $1,600; ball fields relocated $52,850; nursery stock $6,450; parking lot $2,600.


author: OTT, Judge. BOARDMAN, Chief Judge, BOARDMAN, Chief Judge,

text:
    In re Estate of Emma JONES, Deceased. BAYFRONT MEDICAL CENTER, INC., Salvation Army of St. Petersburg, and All Children’s Hospital, Inc., Appellants, v. Peggy Ann JONES, a/k/a Peggy Ann Pinkston, a/k/a Mrs. Charles R. Pinkston, Appellee.
    Nos. 76-972, 76-1114.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1977.
    As Amended On Denial of Rehearing Dec. 16, 1977.

      See also Fla.App., 318 So.2d 231.
    George F. Wilsey of Fisher & Wilsey, St. Petersburg, for appellant The Salvation Army of St. Petersburg.
    Mark R. Lewis of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellant Bayfront Medical Center, Inc.

      William S. Belcher of Belcher & Fleece, St. Petersburg, for appellant All Children’s Hospital.
    W. Langston Holland of Holland & Holland, St. Petersburg, for appellee.
   OTT, Judge.

The trial court, sitting as a court in probate, ruled that the pleading of the appellant was, in effect, a petition to revoke probate and not having been filed within six months of the notice of probate was therefore barred. Section 732.28, Florida Statutes (1973). We disagree and therefore reverse. Since we reverse, the applicability of the doctrine of dependent relative revocation becomes important on remand. This point was extensively briefed and argued in this court. We hold the doctrine applicable for the reasons hereafter discussed.

In September 1965, Emma Jones executed a last will and testament. In November 1969, she executed a subsequent last will and testament and thereafter executed a codicil to this will in August 1971.

All three documents were prepared and witnessed by her personal lawyer who was her close friend and confidant.

Following the death of Emma Jones in the year 1973, her 1969 will together with the codicil thereto were admitted to probate. Notice of such probate was published in compliance with the provisions of Section 732.28, Florida Statutes (1973).

The adopted daughter of the decedent filed a timely petition for revocation of probate which, in essence, challenged the validity of the decedent’s disposition of her residuary estate (paragraph SEVENTH of the will) on the ground that it contravened the rule against perpetuities. The ruling of the trial court thereon was the subject of a prior appeal to this court wherein the adopted daughter’s petition was sustained and the disposition of the residuary estate was ruled to be in violation of the rule against perpetuities. For a more definitive treatment of this aspect of the case see the opinion reported in In re Estate of Jones, 318 So.2d 231 (Fla.2d DCA 1975). We note in passing that the final statement in that opinion concerning resulting intestacy was not intended to be, nor could it be, determinative of the ultimate disposition of the residuary estate upon a proper framing of that issue in the lower court. This would be the normal result but was not an issue treated below or by this court in that phase of the case.

On remand the present appellants petitioned the lower court to substitute the residuary disposition of the 1965 will for the stricken provision of the probated will.

The circuit court below rendered an order holding that the provisions of Section 732.28, the Florida statute in force at the time of probate of the will, barred the appellants’ petition. Specifically, the court below held that notice of probate filed pursuant to Section 732.28 barred the appellants’ actions as a petition to revoke probate not filed within six months of the notice of probate.

The lower court erred in this regard. The “revocation” of the residuary clause was a result of the adopted daughter’s petition and this court’s prior opinion. It was not sought nor procured by appellants. Their petition for an alternative disposition pursuant to the 1965 will by reason of dependent relative revocation is not therefore barred by Section 732.28.

That leads us then to consideration of the main point on this appeal. Appellants contend, and we agree, that the residuary clause of the 1965 will along with the valid provisions of the 1969 will may be probated together so as to effectuate the decedent’s testamentary intent.

When we consider the probated 1969 will, as modified by the 1971 codicil, we have a very striking similarity with the 1965 will. We have actually made an item by item comparison but think it sufficient to say that such comparison leaves the reader with no question but that the testatrix had, by Í965, formed a very firm testamentary intent which continued essentially unchanged through the 1969 will and its 1971 codicil, namely:

1. That the daughter was not to inherit — equivalent to saying that the testatrix did not intend to die intestate.
2. That the revoked the 1965 disposition primarily because of mortmain and Internal Revenue Code considerations and only if the new disposition was valid — equivalent to saying that she preferred the 1965 will to intestacy.

More importantly, this intent is clearly apparent without resort to evidence extrinsic to the probated documents. Aside from the similarity of the 1965 and 1969 wills, one finds the testatrix’s intention expressed in the SIXTH and EIGHTH (SEVENTH being stricken) paragraphs of the probated will. These two paragraphs read as follows:

SIXTH:
I hereby acknowledge that I have a daughter, by adoption, by the name of PEGGY ANN JONES, who is now MRS. CHARLES R. PINKSTON, or MRS. PEGGY ANN PINKSTON, and after due consideration of her, it is my desire and direction that she shall receive nothing from my Estate or under this my Last Will and Testament.
EIGHTH:
I hereby acknowledge that in my Last Will and Testament, dated September 29, 1965, which was substantially the same as this Will, that my residuary estate was left to three (3) charitable organizations in equal shares, to-wit:
SALVATION ARMY OF ST. PE-TERSBURG, St. Petersburg, Florida; AMERICAN LEGION HOSPITAL FOR CRIPPLED CHILDREN, St. Petersburg, Florida; and MOUNT PARK HOSPITAL FOUNDATION, INC., St. Petersburg, Florida, for cancer research.
I acknowledge and recognize the Florida law relative to charitable beneficiaries and the six (6) months’ provision of said law relative to gifts or devises of charitable beneficiaries, and state that my overall testamentary plan has not changed from my previous Will, but only the selection of the beneficiaries.

In Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940) the supreme court clearly adopts the doctrine of dependent relative revocation where there is made to appear:

1. The intent of the testator not to die intestate.
2. The intent of the testator that the revocation is conditionally qualified on the validity of the new disposition. Stated another way: The testator prefers the prior disposition if the new one fails for any reason.

By way of dicta — chiefly in the lengthy quotation from 68 C.J. 99 — there is a caveat suggested: where there is a failure of a specific gift in the later (and otherwise valid) will as opposed to the total failure of the new will, some jurisdictions require that the requisite testamentary intent be made to appear from language contained in the valid (probated) will. Of course, it was unnecessary in the Stewart case for the supreme court to deal with this limitation of the doctrine since the later will failed in toto.

The appellee argues that the supreme court in the case of In re Pratt’s Estate, 88 So.2d 499 (Fla.1956) precludes application of the doctrine where a particular gift fails in an otherwise valid will.

To the contrary we think Pratt adopts the above caveat. The net result of the Pratt decision is to require, in such a situation, that the intent of the testator appear in the probated document — prohibiting resort to evidence extrinsic thereto for the purpose of establishing the testator's intent.

Speaking through Justice Hobson the court goes on to very thoroughly develop its rationale and its rejection of the admission of parol testimony to contradict an unambiguous and unqualified revocation.

This court has previously fully subscribed to and followed Stewart and Pratt in the case of In re Lubbe’s Estate, 142 So.2d 130 (Fla. 2d DCA 1962).

Both the Pratt and Lubbe courts found it difficult to envision a factual situation other than a codicil failure where a specific gift failure would result in revival or preservation of an earlier disposition.

We believe, and so hold, that both prerequisites clearly appear in this case from the probated document, namely:

1. Emma Jones did not intend to die intestate. Positively stated, she clearly intended that her only heir at law (the adopted daughter) should not inherit, whether Emma Jones died testate or intestate.
2. Emma Jones’ otherwise valid revocation was conditional upon the effectiveness of the new disposition. Positively stated, she preferred or preserved the prior residuary disposition upon failure of the new one.

One final matter remains: the allowance of attorney’s fees to counsel for the adopted daughter. An attorney who benefits an estate is entitled to an attorney’s fee from that estate. Section 733.106(3), Florida Statutes (1975) (formerly Section 734.-01(2), Florida Statutes (1973)). See Watts v. Newport, 151 Fla. 209, 9 So.2d 417 (1942); In re Estate of MacPhee, 216 So.2d 489 (Fla.2d DCA 1968).

Reasonable attorney’s fees are allowable to a contestant who is successful in changing the manner of distribution of a decedent’s estate. In re Wilmott’s Estate, 66 So.2d 465 (Fla.1953).

It therefore appears that counsel for the adopted daughter is entitled to a fee. However, the court below set the amount of the fee based upon an agreement between the personal representative and the adopted daughter. While at the time the present appellants were not yet established as interested parties, such an award should have more properly awaited the outcome of these proceedings. Since the agreement did not include all of the affected parties — the appellants herein — we set aside the award of fees and remand for a hearing thereon with notice to all interested parties.

The order of the trial court denying the appellant’s standing to be heard as barred by the provisions of Section 732.28, Florida Statutes is reversed and set aside and the cause is remanded for further proceedings consistent herewith.

McNULTY, J., concurs.

BOARDMAN, C. J., dissents with opinion.

BOARDMAN, Chief Judge,

dissenting.

After a long and hard look at the facts of the case before us in light of In re Pratt, I find that I must dissent from the majority opinion. While I do not disagree with Judge Ott’s conclusion that application of the doctrine of partial dependent relative revocation is not precluded by any legal precedent in Florida, I do not believe that it is appropriate under the facts of the case before us.

The testamentary instruments before this court clearly and unambiguously express the intent of the testatrix to leave the major portion of her estate to charity and to disinherit her adopted daughter who is the appellee in this case. Nonetheless, we are bound by the law of wills as developed in Florida and

we can give effect to the intent of the testator only insofar as it is not inconsistent with [that] law .

In re Pratt’s Estate, supra, at 503.

The 1969 will executed by the testatrix, Emma Jones, included two provisions critical to my decision in this case. First is the express revocation of all prior wills and codicils in the preface even though they would have been revoked by operation of law absent such a provision. Second is the express revocation of the bequest to the Salvation Army, American Legion Hospital (All Children’s Hospital), and the Mound Park Hospital (Bayfront Medical Center) in paragraph eight of the 1969 will which provided that her

overall testamentary plan has not changed from my previous Will, but only the selection of the beneficiaries.

A further indication of her intent to revoke the bequest to appellants is implied by paragraph seven of the 1969 will, the ill-fated charitable trust provision, which does not mention appellants while it does include a precatory clause specifically suggesting to the cotrustee that the “Most Worshipful Grand Lodge, F. & A. M. of the State of Florida” be considered as a beneficiary. Under the circumstances of the case we are' restricted by In re Pratt to look no further than the testamentary documents to determine the intent of the testatrix to revoke prior wills.

The doctrine of dependent relative revocation is based on the desire of the judiciary to fulfill the testator’s intended disposition of his estate. Application of that doctrine, however, requires an initial determination by the court that the testator did not intend to revoke a prior will or bequest if the later will or bequest was void. Where as in this case the later, 1969 will clearly evidences an intent to revoke the earlier, 1965 bequest to appellants we cannot apply the doctrine even to effect the testatrix’s overall desire to leave her estate to charitable entities.

Moreover, I do not believe that this appeal is properly before this court. By the mandate of this court in the 1975 appeal involving the estate of Emma Jones the residue was to pass by intestacy to the adopted daughter. Notice of probate of the Jones estate was given to all interested parties as required by the law then in effect. It was then incumbent on any properly noticed party purportedly interested in the estate to make its interest known to the court within six months of the notice. Any interest appellants might have had ih the Jones estate did not arise from the invalidity of the 1969 charitable trust provision, it arose from the testatrix’s execution of the 1965 will.

ON PETITION FOR REHEARING

BOARDMAN, Chief Judge,

dissenting.

Consistent with the view expressed in my dissenting opinion, I would affirm the decision of the trial court and grant the petition for rehearing.

      . The supreme court declined to follow two non-Florida cases which illustrated “the danger of admitting and considering parol evidence to modify the unambiguous words of a complete testamentary instrument.” 88 S.o.2d at 504. In each of the foreign jurisdiction cases, the decedent died within 30 days of the execution of the last will, thereby running afoul of the mortmain provisions in those jurisdictions. The Supreme Court of California and the District of Columbia Circuit Court applied the doctrine of dependent relative revocation to save bequests to charity even though it was necessary to go outside the probated document for evidence of the necessary intent. In re Kaufman’s Estate, 25 Cal.2d 854, 155 P.2d 831 (1945); Linkins v. Protestant Episcopal Cathedral Foundation, 87 U.S.App.D.C. 351, 187 F.2d 357 (1950).


author: PER CURIAM. MILLS, Judge, PER CURIAM. MILLS, Judge,

text:
    Timothy SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. GG-59.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1977.
    Rehearing Denied Dec. 14, 1977.

      Michael J. Minerva, Public Defender, Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant was charged by information with (1) burglary (with a dangerous weapon) in violation of F.S. 810.02 and F.S. 775.087 and (2) grand larceny in violation of F.S. 812.021. A jury found appellant guilty on both counts as charged. It is from the adjudication and sentence following the jury’s verdict that this appeal is taken. By his sole point on appeal, appellant urges that the trial court erred in denying his motion for judgment of acquittal made at the close of all the evidence. No useful purpose will be accomplished by meticulous repetition of the evidence adduced at trial. Suffice to say that although our examination of the record reveals insufficient evidence for the jury to have determined that appellant was armed with a dangerous weapon, there is ample evidence from whence the jury could have determined (and apparently did) that appellant was guilty of burglary and grand larceny. We accordingly reverse and remand for resen-tencing, at which time it will not be necessary that appellant be present.

IT IS SO ORDERED.

McCORD, C. J., and BOYER, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

.1 dissent.

I would reverse the judgment and sentence on authority of Jenkins v. State, 342 So.2d 1097 (Fla. 1st DCA 1977).

ON PETITIONS FOR REHEARING

PER CURIAM.

Both appellant and appellee have filed petitions for rehearing. Appellee’s petition contends as follows:

“In concluding that the evidence does not sustain Appellant’s conviction for being armed with a dangerous weapon while committing his burglary, this Court has overlooked that the grand larceny conviction which was affirmed is for stealing a firearm. If the jury could find that Appellant stole the firearm, the only thing missing from the victim’s home, it could also find him guilty of the higher degree of burglary, since Section 810.02(2)(b), Florida Statutes, reads as follows:
‘(b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.’ (emphasis added)”
Appellant’s petition for rehearing argues: “If there was insufficient evidence to show appellant was armed with a dangerous weapon while in the house, there could not have been sufficient evidence to show that grand larceny occurred since the only thing missing from the victim’s residence was the gun itself.”

While on their face these contentions of appellant and appellee appear to be logical, in our view the mere showing of theft of a gun after entering a structure, standing alone, is insufficient to establish burglary armed with a dangerous weapon.

Petitions for rehearing denied.

McCORD, C. J., and BOYER, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. I would grant appellant’s petition for rehearing. I would deny appellee’s petition for rehearing.


author: DAUKSCH, Judge.

text:
    Joanne FLOYD and John E. Floyd, her husband, Petitioners, v. Dr. S. A. GOSS, and Orange Memorial Hospital, Respondents.
    No. 76-1650.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Rehearing Denied Jan. 9, 1978.
    Michael P. Falkowski of Parker, Conrad, Falkowski, Johnson & Owen, P. A., Orlando, for appellants.
    Howard R. Marsee of Pitts, Eubanks, Ross & Rumberger, P. A., Orlando, for ap-pellee-Orange Memorial Hospital.
    Janis M. Halker of Gurney, Gurney & Handley, P. A., Orlando, for appellee-Dr. S. A. Goss.
   DAUKSCH, Judge.

We take this matter as a Petition for Writ of Certiorari to the Circuit Court in order to review an Order of a circuit judge sitting as a judicial referee in a medical mediation panel as provided in Section 768.-133, Florida Statutes (1975), now Section 768.44, Florida Statutes (Supp.1976). Because the statutory creation of the medical mediation panel provides very narrowly what the duties of the judicial referee are, and the case law consistently supports the narrow construction, we must quash the Order of the judicial referee because it was not within his authority to dismiss the case or enter a Judgment on the Pleadings. In Koota v. Parkway, 346 So.2d 124 (Fla.3d DCA 1977), it was held “ . . .a judicial referee of a medical panel under Section 768.44 Florida Statutes (Supp.1976) is not a ‘judge of a lower court’ within the meaning of Fla.App.Rule 4.6(a).” Also see State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla.3d DCA 1977).

We hold that a circuit judge sitting as a judicial referee in a medical mediation panel is limited to act as a member of the panel with his or her authority limited by the act, supra, creating the panel and In re Transition Rule 21, 316 So.2d 38 (Fla. 1975). Such judicial referee has no authority to enter a judgment on the pleadings when the statute of limitations is pleaded and not contravened.

The Amended Judgment on the pleadings is quashed and this cause remanded to the medical mediation panel for disposition of its duties within the statutorily mandated time.

QUASHED and REMANDED.

CROSS and MOORE, JJ., concur.


text:
    UNITED STATES AUTOMOBILE ASSOCIATION, Thomas M. Le Retilley, and Thomas C. Le Retilley, Appellants, v. Lori Lynn JOHNSTON, a minor, by and through her mother and next friend, Toby A. Johnston, and Toby A. Johnston, Individually, Anthony A. Bevilacqua, Jr., and State Farm Mutual Automobile Insurance Company, an Illinois Corporation, Appellees.
    No. 76-2301.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Rehearing Denied Jan. 9, 1978.
    Janis M. Halker of Gurney, Gurney & Handley, P.A., Orlando, for appellants.
    John C. Briggs of Robertson, Williams, Duane & Lewis, P.A., Orlando, for appel-lees — Lori Lynn Johnston and Toby Johnston.
    James M. Hess and James 0. Driscoll of Driscoll, Baugh, Langston, Layton & Kane, Orlando, for appellees — Anthony A. Bevi-lacqua and State Farm Mut. Auto. Ins. Co.
   DAUKSCH, Judge.

Appellants were among several Defendants against whom Judgments were entered as a result of a personal injury suit. Appellees-Bevilacqua and State Farm were the other Defendants who had settled out after the jury verdict of liability but before the verdict on damages. The court assessed costs against Appellants but not against Bevilacqua and State Farm. Appellants complain that the court should have assessed costs against all Defendants equally even though the Appellee-Defendants settled before the verdict on damages.

Costs awards are generally within the sound discretion of the trial judge, del Real v. Dawson, 320 So.2d 20 (Fla. 4th DCA 1975). Appellants have not shown the trial judge abused his discretion. We have considered the remaining points on appeal and find them without merit.

AFFIRMED.

ALDERMAN, C. J., and LETTS, J., con- • cur.