text:
    John Tucker HIGGINBOTHAM v. STATE.
    6 Div. 360.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.

      William Conway, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

Appellant was tried on an indictment charging grand larceny, found guilty as charged, and sentenced to six years imprisonment.

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

The record filed in this Court on Feb. 4, 1977 did not contain a copy of written charges timely requested by the appellant, properly endorsed by the trial judge. It did not contain pages 34 and 55 of the transcript of the evidence by the court reporter. These omissions have been corrected, and it now appears from the record that the written charges requested by the appellant have written on them; “Refused Jack C. Riley, Circuit Judge Date 9-15-76.” This is a compliance with the Alabama Code of 1940, Title 7, Sec. 273 which provides: “Charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written; and it is the duty of the judge to write ‘given’ or ‘refused,’ as the case may be, on the document, and sign his name thereto.” The record having been corrected, we may now consider the refused charges, and the sufficiency of the evidence.

Appellant insists the trial court erred to his prejudice, and that his conviction should be set aside due to the overruling of his motion to exclude the state’s evidence at the conclusion of state’s case; and in sustaining an objection by state’s Solicitor to certain questions appellant’s counsel propounded to appellant and in overruling appellant’s objections to several questions the state’s Solicitor put to several of appellant’s character witnesses; and in refusing certain written charges requested by appellant; and in denying appellant’s motion for a new trial.

The indictment described the property as, “one Sears 7 horsepower outboard motor, color, green shaft and white top, a further and better description of which is otherwise unknown to the grand jury, of the value of $175.00.”

Appellant’s motion to exclude the evidence, his refused written Charge No. A, and his motion for a new trial, presents to this Court for its decision the sufficiency of the evidence to sustain the jury verdict, and if there was a material variance between the description of the property contained in the indictment and in the evidence.

Appellant contends that the evidence of state’s witness, Mr. Gay, was that the motor taken from him was seven and a half horsepower, while the indictment described it to be seven horsepower. Therefore, there was a fatal variance between the description of the property described in the indictment and the evidence. Looking to the transcript of the evidence, we find that state’s witness, Mr. Gay, described the motor as a seven and a half horsepower motor during his direct examination, but on redirect examination he testified that the motor taken from him was a seven horsepower motor, and that he knew of no better description of the motor than that contained in the indictment.

When there is a conflict in the evidence, the inferences to be drawn from the evidence, the weight of the evidence, and the credibility of the witnesses are all questions for the jury. Vaughn v. State, 57 Ala.App. 134, 326 So.2d 662; Byrd v. State, 213 Ala. 333, 104 So. 830. We hold that the credibility of state’s witness, Mr. Gay, was for the jury, therefore, the trial court did not err in overruling appellant’s motion to exclude the evidence, and in refusing his written Charge A, which was the general charge for appellant, and in overruling his motion for a new trial on the grounds of a variance.

The appellant further contends that he could not be convicted on the testimony of one witness unless corroborated by the testimony of other witnesses tending to connect the appellant with the offense. In the record before us we find that the only evidence connecting appellant with the offense he is charged with is the testimony of state’s witness, Mr. Gay. Mr. Gay testified he saw the appellant and two companions take Mr. Gay’s motor. The appellant and one of the companions who was with the appellant at the time testified that they did not take Mr. Gay’s motor, and did not know anything about it.

In appellant’s brief he cites cases to sustain his contention that he should not be convicted on the testimony of one witness unless corroborated by another witness with evidence tending to connect the appellant with the offense with which he is charged. We note that the cases cited to sustain this argument are perjury cases. Here, we are considering an offense of larceny. It is true that under certain circumstances one cannot be convicted of perjury on the testimony of one witness, but this rule of law is not the correct rule of law in a case involving larceny. We hold that under the facts in this record it is not necessary to have the testimony of Mr. Gay corroborated, therefore, the trial court did not err in overruling appellant’s motion to exclude the state’s evidence, and by refusing to give written Charges Nos. 2 and 19 stating that Gay’s testimony must be corroborated, and denying appellant’s motion for a new trial. The credibility of the witnesses is a question for the jury. Willcut v. State, 284 Ala. 547, 226 So.2d 328; Vaughn v. State, supra; Savage v. State, 57 Ala.App. 579, 329 So.2d 638; Kent v. State, 56 Ala.App. 1, 318 So.2d 742; Smith v. State, 53 Ala.App. 27, 296 So.2d 925.

Appellant complains that the court refused to give, at his request, certain written charges. We have examined all the written charges in the record, and from such examination find that Charges 3, 7, and 9 are abstract; Charges 1, 4, 5, 6, 8,10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, and B were substantially covered by the trial court in his oral charge to the jury; and Charge F is a no evidence charge, therefore, the trial court’s refusals were proper. Title 7, Section 273, Code of Alabama 1940; Smith v. State, 56 Ala.App. 109, 319 So.2d 729; Jones v. State, 174 Ala. 53, 57 So. 31 Ott v. State, 35 Ala.App. 219, 46 So.2d 226, certiorari denied, 253 Ala. 617, 46 So.2d 228.

Appellant complains that the trial court erred in sustaining state’s objection to the following question by appellant’s counsel to the appellant:

“Q. From the first landing there to the second landing, how many steps did you count?
MR. BLAND: We object to this. When? Unless you say when he counted them.
A. April, ’76.
Q. (BY MR. CONWAY) April, 1976?
MR. BLAND: I object to it unless he can show by his personal knowledge or proper evidence that the thing he is measuring is in the same condition and is the same as it was in September of 1975, we don’t know if he is measuring the same dock. Or the same stairs or anything else.
THE COURT: Sustained.”

There was evidence that the alleged larceny was committed on September 17,1975. We hold that the trial court did not err in sustaining state’s objection in view of the fact that it appears from the record that appellant did not have personal knowledge of the condition of the steps at the time of the alleged offense. Askew v. State, Ala.Cr.App., 331 So.2d 818; Frazier v. State, 48 Ala.App. 210, 263 So.2d 511; certiorari denied, 288 Ala. 743, 263 So.2d 516; Windham v. State, 23 Ala.App. 27, 122 So. 804. Lowery v. State, 25 Ala.App. 529, 149 So. 726.

On cross-examination of three of appellant’s character witnesses the court overruled appellant’s objections to questions propounded to them asking if they had ever heard of or did they know that appellant was convicted by the Federal Courts for distilling whiskey. They all answered that they did not. The errors of the trial judge in overruling appellant’s objections to the questions were not prejudicial to appellant in view of the negative answers of the witnesses. Baldwin v. State, 282 Ala. 653, 213 So.2d 819; Binion v. State, 57 Ala.App. 234, 327 So.2d 729; certiorari denied, 295 Ala. 391, 327 So.2d 732; Stinson v. State, 55 Ala.App. 629, 318 So.2d 325.

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:
    Wayne JONES, alias v. STATE.
    6 Div. 386.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    John H. England, Jr., Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Following denial of his motion to be treated as a youthful offender and after a plea of not guilty to the indictment for assault with intent to ravish his victim, a female, appellant-defendant was tried and convicted of the alleged assault with intent to ravish and sentenced to twenty years imprisonment. He was an indigent when tried and remains so on this appeal. Appointed counsel represented him at nisi pri-us and continues to represent him on this appeal.

The alleged offense occurred in Tuscaloosa, Alabama during the late evening of March 24, 1976, on a street at the victim’s home. She and a male friend, John Vansla-vie about 10:00 P.M. decided to visit the Checkers Lounge. They stayed there about one and one-half hours, and left,, with a male friend of John’s to go to the latter’s apartment. The victim testified that the friend’s name was Don but she did not know his last name. John and Don rode in Don’s car, while she rode in her own car.

They did not take the same route altogether to the location of the apartment, but arrived near the same time. The victim arrived first in her car.

While enroute, the victim noticed that she was being followed by a black, in a large white automobile and as she approached the apartment the black driver pulled his car up parallel with hers; on the one-way street. He was sitting in the car saying something but she did- not understand what he was saying, and “I just shook my head.” Then he got out of his car after switching off the motor. He walked to the passenger side of her car. She further testified that she thought he was lost. She slowly rolled the window down. He stuck his arm in and “pulled on the lock of the door and was in my car before I knew what was happening . . . ” He said “I want you baby,” and, “as he jumped in my car, he lunged toward me and since I had my right arm on the backseat, as he lunged toward me, I grabbed him around the neck with my right arm as he grabbed me around the neck with his left arm.” He had a knife which cut the victim during the struggle. The struggle lasted about ten minutes.

John and his friend arrived and her car lights were visible. The defendant jumped out on the passenger side of the car. No lights were on inside of the victim’s car, but she saw him. She was just a few inches from his face. The victim got out of her car on the driver’s side. She noted his license plate number. John went inside the apartment and wrote the tag number on an envelope which was turned over to the police at the police station, to which the victim and John went after the attack.

A description of the car, the attacker, and the license number were given to a dispatcher who broadcast it to the patrolling officers.

A few minutes after this episode, another episode of the same pattern occurred. This latter was admitted in evidence over defendant’s objections.

Between 12:00 and 12:05 o’clock of the same night as the episode, supra, a young married woman went off duty in the communication division of the Tuscaloosa Police Department and left alone in her automobile enroute to her residence where she and her husband resided. While enroute, she noticed that a large white automobile, driven by a black, was following closely behind her. She could not identify him. When she reached her home, she blew her car horn and her husband came out the door. The white car went a short distance and stopped. It was smoking. They telephoned the police. An officer was there in just a few minutes. He noted the license plate on the white car bore the same tag number as the white car that was the subject of the broadcast relative to the first episode, supra. It appears from the evidence that the license plate in question was registered in the name of another person and not in the name of the defendant.

Appellant-defendant was taken to the police station where the victim in the first episode positively identified him as the one who had assaulted her. She also identified him in court.

Defendant took the stand at his nisi prius trial and denied any involvement in the first episode. We will not undertake to set forth his conflicting testimony on the stand with statements allegedly made to an officer.

We have also omitted evidence involving many details that would unnecessarily burden this opinion. Suffice it is that we have stated sufficient evidence that shows the violent character of the assault and the circumstances relating thereto.

We hold that the character of the assault as related by the State’s evidence presented a jury question as to defendant’s intent at the time.

In Hogue v. State, 54 Ala.App. 682, 312 So.2d 86, this court observed:

“The intent to rape has also been described as a condition of mind coupled with an effort of force to carry out the desire over the physical resistance of the victim. The evidence must be sufficient to show that such acts of the defendant were of the nature that there will be no reasonable doubt of his intentions to gratify his lustful desires against the consent of the female and that the act would have been carried out but for the resistance of the female or some outside force which caused him to desist. Curry v. State, 23 Ala.App. 140, 122 So. 303; and Lewis v. State, 35 Ala. 380. To justify a conviction of assault, with the intent to ravish, the evidence must show that the acts and conduct of the defendant leave no reasonable doubt of his intention to gratify his lustful desires against the consent of the female notwithstanding resistance on her part. Gilbert v. State, 28 Ala.App. 206, 180 So. 306; and Wilson v. State, 22 Ala.App. 554, 117 So. 615. There is no requirement of physical abuse to the genital organs. Smith v. State, 256 Ala. 444, 55 So.2d 208.”

We hold the acts and conduct of appellant-defendant, the presence of a knife in his hand, and his comments present a jury question as to his intent at the time he began following the alleged victim after she left the lounge to go to her friend’s apartment; and also when he forcibly opened the door and got in the car with her. The jury’s conviction supports an inference that they believed the victim’s evidence and not defendant.

Appellant’s utterance of the words, “I want you baby,” construed in the light of his physical attack, were words indicating a lustful desire.

Defendant’s motion, when the State rested, to exclude the evidence, was properly overruled.

Appellant’s next contention is that the court erred in admitting in evidence details of the second episode, supra and in overruling his objection thereto.

We are not informed by the record that defendant violated any law in following the second female to her home, sans, any approach or physical attack. Defendant’s conduct was sufficient to arouse the suspicion of the police department’s employee and justified her or her husband in notifying the police, thus inviting the arrival of a police officer.

The investigation incidentally led to apprehension of defendant as the person wanted in the first episode. Without this investigation, the police might have had some difficulty in locating the driver of the large white car in view of the fact that the license plate was not registered in defendant’s name. The circumstances of the identification at the scene of the second episode were admissible in evidence to establish defendant’s possession of the automobile bearing the tag number taken down by the assaulted victim in the first episode. The second episode was closely related to the first episode in a manner that led to defendant’s apprehension and identification.

We hold that this evidence shed light on the first and led to identification. The license plate number was a connecting link that helped to establish the identification.

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.


text:
    Hurley C. BEACHUM v. STATE.
    8 Div. 872.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.

      Rodney B. Slusher, Florence, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

On an indictment containing three counts; count I charging burglary in the second degree; count II charging grand larceny, and count III charging buying, receiving, concealing or aiding in concealing stolen property of the value of $500.00, knowing that it had been stolen or having reasonable grounds for believing that it had been stolen, and not having the intent to restore it to its owner, appellant, Hurley C. Beachum, was convicted under count III of the indictment and sentenced to 4 years imprisonment in the penitentiary.

This appeal was submitted to this Court on briefs. The appellant was represented in the trial court by court appointed counsel, and is here represented by same counsel under court appointment.

There is evidence in the record tending to show that the home of Mr. Alvin Thompson in Florence, Alabama was broken into on December 11, 1975 between 7:15 o’clock, P.M. and 8:30 P.M.; that 4 heaters and a color T.V. set, all of the value of about $500.00, were stolen from the home; that on December 15, 1975 the appellant, at the home of one John Kennedy in Sheffield, Alabama, sold to one Mrs. Coffie one of the stolen heaters for $10.00. The appellant offered evidence of his wife that he was with her all night on December 11, 1975. Appellant’s testimony was that he went with one Willie Payne over to Sheffield, Alabama, and saw Payne sell a heater to Mrs. Coffie for $10.00. That he drove Payne to Payne’s house to pick up the heater, that the heater identified by Mr. Thompson as his property, and by Mrs. Coffie as the one she bought from appellant, was not the same heater that Payne sold to Mrs. Coffie. This evidence, together with all the other evidence presented to the jury, is sufficient to sustain the jury verdict finding the appellant guilty under count III of the indictment. We therefore hold that the trial court did not err in overruling appellant’s motion for a new trial due to the insufficiency of the evidence to sustain the jury verdict finding the appellant guilty under count III of the indictment. Stanley v. State, 46 Ala.App. 542, 245 So.2d 827; Lawrence v. State, Ala.Cr.App., 331 So.2d 284.

Appellant claims that the trial court committed reversible error in overruling his motion to strike a portion of a witness’ testimony. In the record before us, during the direct examination of state’s witness, Mrs. Coffie, by Solicitor Tate, the following appears:

“Q. by Mr. Tate: Does John Kennedy live with you at 727 East Reeder Street?
A. Yes, sir.
Q. State whether or not on that date you say anything of the defendant in this case?
A. Yeah, he came to John Kennedy’s house and knocked on his door and asked him if he wanted to buy any heaters and John Kennedy told him ‘no,’ he didn’t have any use for any.
MR. SLUSHER:
We move to strike the hearsay portion of the witnesses’ testimony and ask the court to advise the jury to disregard it.
THE COURT:
We overrule it if it is an objection to hearsay. That is a conversation that took place in the presence of the defendant.”

This is a part of a conversation of the appellant with Kennedy in the presence of Mrs. Coffie. We hold that Mrs. Coffie was properly allowed to state what the appellant said to Kennedy, and what Kennedy said to the appellant in reply. Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, certiorari denied, 292 Ala. 718, 299 So.2d 312; 20 Am.Jur. Evidence, Sec. 555 at page 467; 29 Am.Jur.2d Evidence, Sec. 606 at page 660.

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 Judges concur.


author: BOWEN, Judge.

text:
    Tommie Lee ROWSER v. STATE.
    6 Div. 144.
    Court of Criminal Appeals of Alabama.
    May 29, 1977.
    Rehearing Denied May 3, 1977.

      Arthur Parker, for Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted of the robbery of Patricia Leroy who managed the Eighth Avenue Quick Stop in Jefferson County, Alabama. Punishment was fixed by the jury at imprisonment in the penitentiary for a term of ten years and judgment was entered accordingly.

The state’s sole witness was Ms. Leroy who stated that on March 5, 1975, the appellant entered the Quick Stop, pulled a gun and demanded the money. Leroy took the money from the cash register, placed it in a paper sack, and gave it to the appellant who “said thank you and' went out the door”. Although Leroy saw the appellant go out the door of the store she did not see whether he left in a car, ran or walked away.

The sole witness for the accused was his sister, Jacqueline Rowser. She testified that she took the appellant to the Home-wood Police Station when they learned that the police were searching for the appellant following the robbery.

The appellant’s basis for this appeal is that the trial court erred in refusing two of the appellant’s requested charges.

I

The following requested written charge of the appellant was refused by the trial court:

“I charge you ladies and gentlemen of the jury, that the lack of flight on behalf of the defendant may evidence actions in accordance with innocence.”

The appellant argues that the state was allowed to produce the incriminating evidence that the accused fled the scene of the crime. Consequently, evidence that the accused did not flee but surrendered himself upon learning of his impending arrest was relevant and admissible.

Flight, means, as a rule, when used in connection with a prosecution for crime, that the defendant absented himself from the community of the crime out of a sense of guilt, out of fear of, or to avoid arrest. Goforth v. State, 183 Ala. 66, 63 So. 8 (1913); Gilbert v. State, 20 Ala.App. 28, 100 So. 566 (1924); Walters v. State, 24 Ala.App. 370, 135 So. 600 (1931). The state is entitled to introduce evidence of the flight of a defendant from the scene of the crime as a circumstance to show guilt. Connell v. State, 56 Ala.App. 43, 318 So.2d 782 (1974) Vaughn v. State, 57 Ala.App. 134, 326 So.2d 662 (1976); 6 Alabama Digest, Criminal Law, &wkey;351(3); McElroy, The Law of Evidence in Alabama, Vol. 1, pp. 25-28. However, where the state does not seek to show flight on the part of the defendant, it is incompetent for the defense to show that the accused voluntarily surrendered or failed to flee when the opportunity was offered. McAllister v. State, 30 Ala.App. 366, 6 So.2d 32 (1942); Coleman v. State, 87 Ala. 14, 6 So. 290 (1888); Pate v. State, 94 Ala. 14, 10 So. 665 (1891); Vaughn v. State, 130 Ala. 18, 30 So. 669 (1901); Walker v. State, 139 Ala. 56, 35 So. 1011 (1904); Hendley v. State, 200 Ala. 546, 76 So. 904 (1917); Hurst v. State, 1 Ala.App. 235, 56 So. 18 (1911); Starke v. State, 31 Ala.App. 322, 16 So.2d 426 (1944); Hayes v. State, 33 Ala.App. 364, 33 So.2d 744 (1948).

Where there is no evidence of flight offered by the state, the refusal of the accused to flee is not admissible for him as tending to' establish his innocence. The admission of such evidence would be to allow him to make testimony for himself. Pate v. State, 94 Ala. 14, 10 So. 665 (1891); Terry v. State, 13 Ala.App. 115, 69 So. 370 (1915); Jordan v. State, 81 Ala. 20, 1 So. 577 (1886).

The question in this case is whether the state introduced any evidence of flight. Absent such evidence, proof of surrender by the appellant was incompetent and immaterial.

The appellant urges that flight was shown when the state proved that the robber left the scene of the crime. Such an insistence has been previously rejected by the Alabama Court of Appeals as “untenable”. Beverett v. State, 24 Ala.App. 470, 136 So. 843 (1931). In so holding, the appellate court stated that:

“The testimony of several witnesses, to the effect that immediately after inflicting the mortal knife blows upon deceased that defendant ran from the place of killing, cannot be construed as attempting to show flight as the law contemplates. This evidence was of the res ges-tae and contemporaneous therewith — a part of the transaction complained of.” Beverett, at 471, 136 So. at 844.

However, under certain circumstances, the fact that the accused made a hurried departure from the scene of the crime immediately after the crime was committed may constitute evidence of flight. Muse v. State, 29 Ala.App. 271, 196 So. 148 (1940) (“. . . there can be no set or specific time necessary to constitute flight, and the distance the accused ran before he was apprehended is also immaterial.” at 29 Ala.App. 274, 196 So. 150). This will be true especially where the evidence shows that the accused secreted himself or left the county or jurisdiction immediately after the commission of the crime, Mitchell v. State, 53 Ala.App. 625, 303 So.2d 123, cert. denied, 293 Ala. 767, 303 So.2d 126 (1975); or that the accused was seen running from the scene of the crime after an alarm had been sounded. Muse, supra. However, the mere fact that the accused left the scene of the crime is not evidence of flight. Beverett, supra; Powell v. State, 39 Ala.App. 246, 100 So.2d 38 (1957).

Here the state introduced no evidence of flight. The appellant was not entitled to introduce any evidence of voluntary surrender.

Nevertheless, the appellant maintains that even if he was not entitled to introduce evidence of his surrender, once such evidence was admitted without objection by the state, it became relevant and the appellant was therefore entitled to a charge concerning such evidence. We disagree. This contention was faced by the appellate court in Powell v. State, 39 Ala.App. 246, 254, 100 So.2d 38, 46 (1957). We answer the appellant’s argument by referring to the language in Powell:

“Although the state waived objection to this evidence, we do not consider that the trial judge should be considered in error for refusing a charge which has for its major premise immaterial evidence.”

II

The appellant also asserts as error the failure of the trial court to give a written requested charge relating to the possibility of human error or mistake in considering testimony as to identity. There was not one iota, scintilla, suspicion, or shadow of evidence that the state’s witness was anything but positive in her identification of the appellant as the robber. There was no basis for this charge in the facts of this case. Additionally, considering the trial court’s charge as a whole and as we must, we are compelled to reach the conclusion that the key issue sought to be recognized in the written requested charge was adequately covered by the trial court in its oral instructions on credibility of the witnesses, reasonable doubt and burden of proof.

Having considered the entire record as required by law and finding the record free from error, we are of the opinion that this case is due to be and is hereby

AFFIRMED.

All Judges concur.


author: JONES, Justice.

text:
    Ex parte Tommie Lee ROWSER.
    SC 2582.
    Supreme Court of Alabama.
    June 10, 1977.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    MICHELS BELLEAIR BLUFFS PHARMACY, INC., Petitioner, v. SKAGGS-ALBERTSON’S PROPERTIES, INC., Respondent.
    No. 49726.
    Supreme Court of Florida.
    April 28, 1977.
    Rehearing Denied June 21, 1977.
    Allen P. Allweiss, Allweiss & Anderson, St. Petersburg, and Jack F. White, Jr., Clearwater, for petitioner.
    James A. Urban and James E. Slater, Maguire, Voorhis & Wells, Orlando, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. The Writ was issued; and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

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

ADKINS, J., dissents.


author: BY THE COURT.

text:
    THE FLORIDA BAR. In re AMENDMENT TO the INTEGRATION RULE AND BYLAWS RESPECTING CLIENTS’ SECURITY FUND.
    No. 51122.
    Supreme Court of Florida.
    May 12, 1977.
    Edward J. Atkins, President, Miami, Russell Troutman, President-elect, Orlando, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar.
    Harry Zukernick, Chairman, Miami Beach, for the Clients’ Security Fund Committee, petitioner.
    Henry P. Trawick, Jr., Sarasota,, for respondent.
   BY THE COURT.

By petition we are asked by the Board of Governors of The Florida Bar to amend the Integration Rule and By-laws relating to the Clients’ Security Fund to extend the Fund’s coverage to misappropriations by attorneys acting in fiduciary capacities unrelated to an attorney-client relationship, such as a personal representative, testamentary trustee, guardian or escrow agent. The Fund presently insures the clients of Florida attorneys against misappropriations of property or funds held by attorneys by reason of an attorney-client relationship.

Based on our jurisdiction to discipline attorneys, the Board requests that we expand the coverage of the Fund because there are adequate funds on hand which can be used for that purpose and because any misconduct by attorneys, even when they are not acting in their capacity as a lawyer, reflects adversely on the profession. The Board also suggests that the expansion is needed because attorneys appointed by courts to act in a fiduciary position frequently are not required to obtain fiduciary bonds in as high an amount as other individuals acting in the same fiduciary capacities.

While we appreciate the concerns of the Board and share its desire for an untarnished professional image, we nonetheless decline to expand the Fund as requested. We must be extremely cautious when we exercise our supervisory jurisdiction over attorneys in areas which are coextensive with legislative power. Two examples will illustrate the problem. On the one hand it has long been recognized that a violation of the criminal law adversely reflects on the character of an attorney to such a degree that this Court may take disciplinary action even though a client-attorney relationship is not directly involved. On the other hand it is doubtful that we have the power to establish a fund to recompense persons who are assaulted by someone who happens to be an attorney.

The Clients’ Security Fund was established to protect persons victimized as a result of an attorney-client relationship. The Legislature has already acted to protect persons who must use individual fiduciaries, and the reach of the law quite clearly encompasses persons serving as fiduciaries who happen to be attorneys.

If the trial judges of this state presume too much when they require lower bonds for attorney-fiduciaries than for others, the remedy lies within the power of trial judges to apply the law by its terms. The selection of fiduciaries requires a careful inquiry into the character of the individual, not his status or title in our society.

For these reasons, the petition is denied.

ADKINS, BOYD, ENGLAND, SUND-BERG, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., dissents.

      . Fla.Bar Integr.Rule, Art. XVII, § 1; Fla.Bar Integr.Rule By-laws, Art. XVI, § 2(f).

      . Art. V, § 15, Fla.Const.

      . The statutes of this state command the courts to require an adequate bond for all non-corporate fiduciaries, which laws would reach all but private, attorney escrow arrangements. See, for example, §§ 733.402, 733.403, 744.351, 747.-12, Fla.Stat. (1975).

      . See Times Publishing Co. v. Williams, 222 So.2d 470, 475 (Fla.2d DCA 1969), discussing the concurrent authority of this Court and the Legislature to regulate conduct of attorneys which is deemed criminal.


author:
SUNDBERG, Justice.
      BOYD, Justice,

text:
    STATE of Florida, Appellant, v. Curtis E. DYE, Appellee.
    No. 49579.
    Supreme Court of Florida.
    May 19, 1977.

      Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., for appellant.
    Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, for appellee.
   SUNDBERG, Justice.

By order of The Honorable James R. Holmes, Judge of the County Court for Broward County, Florida, Section 810.09, Florida Statutes (1975), was declared unconstitutionally vague and overbroad. Article V, Section 3(b)(1), Florida Constitution, and Fla.App. Rule 2.1(5)(a), endow this Court with jurisdiction to entertain this appeal.

Appellee was charged by information with trespass on school property in violation of Section 810.09, Florida Statutes (1975). An arrest followed his refusal to leave the premises after being so ordered by a school custodian. Appellee filed a motion to dismiss the information contending that Section 810.09, Florida Statutes (1975), is unconstitutional. Further, he argued in his motion that the wording of the information and the allegations contained therein were so vague and indefinite that the document was deficient. The trial court, in an order dealing exclusively with the constitutionality of the statute vel non found the Act: (1) overbroad because it “gives unbridled discretion to an unnamed individual who is not specified in the statute to inform an individual that he is no longer authorized, licensed, or invited to remain on the property, which by the title and subject matter of the act includes public property;” and (2) unconstitutionally vague because “[wjithout any identification of those individuals who can make the actual communication to an individual who is trespassing,” the statute not only fails “to convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice,” but also fails to inform “the alleged trespasser as to whether or not the person making the actual communication has the authority in the first place to make the communication to leave the state owned land.”

While we cannot accept the trial judge’s conclusion that the statute is unconstitutional, we affirm the result reached in the proceedings below. Our anxiety is not the product of an unconstitutional statute but is the function of an incomplete information.

An information must allege each of the essential elements of a crime to be valid. 17 Fla.Jur. Indictments & Informa-tions § 104 (1958). No essential element should be left to inference. Corn v. State, 332 So.2d 4, 12 (Fla.1976) (Hatchett, J., dissenting). Smith v. State, 324 So.2d 699 (Fla.1st DCA 1976); Evanco v. State, 318 So.2d 535 (Fla.1st DCA 1975); Haley v. State, 315 So.2d 525 (Fla.2d DCA 1975); Rodgers v. State, 325 So.2d 48 (Fla.2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla.2d DCA 1975); Ashley v. State, 292 So.2d 616 (Fla.2d DCA 1974); Priester v. State, 294 So.2d 421 (Fla.4th DCA 1974). In the instant case, the information is defective because it does not allege that “the offender defied an order to leave, communicated to him by an authorized person.” Not only does it fail to state that a person with requisite authority demanded he leave, it does not even state that anyone ordered him to leave. See Section 810.09(2)(a), Florida Statutes (1975). An essential element of the offense is therefore omitted. Such an omission must be fatal, especially where the premises are public and not the home of a named person, and it is apparent that appellee’s initial entry upon the premises was lawful. See Corn v. State, supra, (Hatchett, J., dissenting).

Ordinarily, this Court will not reach constitutional issues if the case in which the question arises may be effectively disposed of on other grounds. Singletary v. State, 322 So.2d 551 (Fla.1975); Peoples v. State, 287 So.2d 63 (Fla.1973); Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973); Walsingham v. State, 250 So.2d 857 (Fla.1971). Mounier v. State, 178 So.2d 714 (Fla.1965). However, it is foreseeable that in the instant cause the state will file an amended information. To aid in the disposition of any future proceedings below, we now consider the constitutionality of the statute vel non.

A challenge to the facial validity of a statute must be based on the test enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). In Roth, the United States Supreme Court stated at 491, 492, 77 S.Ct. at 1312, 1313:

. lack of precision is not itself offensive to the requirements of due process “ . . . [the] Constitution does not require impossible standards”; all that is required is that the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . .” That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is not sufficient reason to hold the language too ambiguous to define a criminal offense.

See also, State v. Lindsay, 284 So.2d 377 (Fla.1973).

“Common understanding” dictates that the phrase “other authorized person” is to be read in light of the preceding phrase “owner of the premises” and in pari mate- ría with other statutes controlling the delegation of authority to limit or withdraw access to specific types of public land. In regard to private land, an “authorized person” is one who receives either express or implied authorization from the owner. On public premises, authorized personnel includes those persons who have been given either express or implied authority from the chief executive. In the instant case, appellant was expelled from school property. Section 230.23(2), Florida Statutes (1975), grants to the school board the power to control property in the best interests of education. Accordingly, in the public school system, the chief executive is the school board. And those employees who are designated by the board to exercise control over school property constitute the class of “other authorized persons” under the statute.

Whether an individual has express or implied authority then is a fact which must be stated in the information and proved by the prosecution at trial. The controversy raised by appellee is not caused by a constitutionally deficient statute but is a question of proof. Roth did not intend that the statute mandatorily embody an itemized list of who may make such a demand in each instance. Indeed, an attempt to construct an all-inclusive list would undoubtedly prove futile. To deny to the Legislature the power to use generic descriptions if pressed to its logical conclusion would practically nullify legislative authority by making it essential for the Legislature to define all the specific instances to be brought within the statute. As the United States Supreme Court said in Smith v. Goguen, 415 U.S. 566, 581, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605 (1974):

There are areas of human conduct where by the nature of the problems presented, legislatures simply cannot establish standards with great precision.

Control of disorderly conduct that may inhibit the policeman in performing his duties is one such area requiring an instantaneous, discretionary judgment by the officer to maintain order. Cf. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). A school custodian can be confronted with a similar situation requiring an immediate judgment. As an employee of the school board, he is statutorily mandated to manage school property “to the best interests of education,” Section 230.23(2), Florida Statutes (1975). It seems clear that a school custodian must on occasion determine whether the presence of certain individuals on school property is “[in] the best interests of education.” The Legislature cannot statutorily adopt elucidatory standards to substitute for individual judgment. If that discretionary judgment is unsound, the alleged trespasser can defend on those grounds. If that discretionary judgment is applied arbitrarily or capriciously to the defendant, then he is protected by the due process and equal protection guarantees of the Florida and United States Constitutions.

For the reasons stated herein, we hold that the statute conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. State v. Mayhew, 288 So.2d 243 (Fla.1973); Newman v. Carson, 280 So.2d 426 (Fla.1973); Zachary v. State, 269 So.2d 669 (Fla.1972). Further, the discretion statutorily given an “authorized person” is mandated by the nature of the problem presented. While we recognize that a valid statute may be unconstitutionally applied, the precise limitations to be placed on the words in question can best be specified when actual cases requiring such interpretation are presented. Because the charging document in the instant case was defective, we affirm the result reached below but reverse the order of the county court declaring Section 810.09, Florida Statutes (1975), unconstitutional. The cause is remanded to the trial court for proceedings not inconsistent with this opinion.

It is so ordered.

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

BOYD, J., dissents with an opinion with which ENGLAND and HATCHETT, JJ., concur.

BOYD, Justice,

dissenting.

I respectfully dissent.

The statute does not clearly indicate what conduct might constitute a violation nor does it clearly establish who would be authorized to require an alleged trespasser to vacate the premises. I agree with the trial court that the statute is unconstitutionally vague.

ENGLAND and HATCHETT, JJ., concur.

      . 810.09 Trespass on property other than structure or conveyance.—
      (1) A person commits an offense if, without being authorized, licensed, or invited, he willfully enters upon or remains in any property other than a structure or conveyance as to which notice against entering or remaining is given by:
      (a) Actual communication to the defendant.
      (b) Posting, fencing, or cultivation, as prescribed in s. 810.011.
      (2) An offense under this subsection is a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084, if:
      (a) The offender defies an order to leave, personally communicated to him by the owner of the premises or other authorized person.
      (b) The offender willfully opens any door, fence, or gate or does any other act which exposes animals, crops, or other property to waste, destruction, or freedom.
      Otherwise, it is a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . The information stated that the defendant: “did then and there wilfully enter upon or remain upon property other than a structure or conveyance, to-wit: school campus, located at 3600 Northwest 5th Court, Fort Lauder-dale, property of The School Board of Bro-ward County, without being authorized, licensed or invited to be upon said property, contrary to F.S. 810.09 . . .”

      . We note that there is no Cross-Assignment of Error making mention of the deficiency of the information in this regard. However, appellee raised this objection in his Motion to Dismiss. Because the trial judge found § 810.09, Fla.Stat. (1975), unconstitutional vel non, appellee naturally had no reason to preserve the point on appeal. We therefore feel the point is proper for consideration by this Court.


text:
    Phillip H. ZINN, Jr., et al., Appellants, v. David A. STONE, D. P. M., Appellee.
    No. 50667.
    Supreme Court of Florida,
    May 19, 1977.
    Clifford B. Wentworth, the Law Offices of Clifford B. Wentworth, Fort Lauderdale, for appellants.
    Thomas E. Scott, Jr., Huebner, Shaw & Bunnell, Fort Lauderdale, for appellee.
   BY THE COURT.

The circuit court’s order entered April 1, 1976 dismissing this case on the ground that Section 768.133, Florida Statutes (1975), violates the constitution is reversed. Carter v. Sparkman, 335 So.2d 802 (Fla.1976). This case is remanded for further proceedings.

It is so ordered.

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


author: LEE, THOMAS E., Associate Judge. BOYER, Chief Judge,

text:
    Stephen L. DUKES, Sadie Dukes, and Barbara A. Albrittson, Appellants, v. Allie N. DUKES, Appellee.
    No. Z-131.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1976.
    Rehearing Denied Oct. 8, 1976.
    Martin S. Page of Jopling, Darby, Peele & Page and Marlin M. Feagle, Lake City, for appellants.
    Frank M. Gafford and Ronald H. Cole, Lake City, for appellee.
   LEE, THOMAS E., Associate Judge.

This appeal is before us on the question of the validity of the execution of a change of beneficiary form had by the deceased with Prudential Insurance Company of America. In the Trial Court, in a non-jury trial, commenced by the appellee (Allie N. Dukes) against Prudential Insurance Company of America for the payment of the k th interest in the policy on the life of Win-ton L. Dukes, deceased, which originally contained the names of appellee, his children who are the appellants herein (Stephen L. Dukes and Barbara A. Albritton), and his step-mother, Sadie Dukes, was changed to reflect only the appellants in equal shares. The lower court ordered that the change of beneficiary form was invalid as the deceased, Winton L. Dukes, was mentally incompetent at the time the form was executed (October 16, 1971). The sole question for our determination is whether or not the trial court erred in its finding that the insured was mentally incompetent at the time he executed the form.

FACTUALLY, In March, 1963 Prudential insured the life of Winton L. Dukes and named as beneficiaries therein in equal shares, appellee, Allie N. Dukes, wife, his children the appellants Stephen L. Dukes and Barbara A. Albritton, and his stepmother, Sadie N. Dukes. On October 16, 1971, Winton executed a change of beneficiary from and named appellants as beneficiaries in equal shares of the said policy eliminating Allie N. Dukes, wife, therefrom. The insurance company, upon learning of the legal dispute paid Mths of the insurance proceeds to appellants, Stephen L. Dukes, Barbara Albritton and Sadie L. Dukes, and withheld Vith under the notice of contest, insured having died on November 16, 1971. Prudential deposited the remainder of the insurance proceeds into the registry of the Court and was permitted to be dismissed from this cause.

The record reveals that on August 9,1971 in Lake Shore Hospital, Lake City, Florida, Winton was found to have had a tumor on the lobe of his right lung and after discharge, without treatment, he was referred by his physician, Dr. B. E. McRae, Jr., to Shands Teaching Hospital, in Gainesville, and on August 23, 1971, a brain tumor was also discovered. The lung tumor having been removed Mr. Dukes was released from Shands on September 2, 1971. On September 6, 1971, he was re-admitted to Shands Hospital and on September 8, 1971, the brain tumor was removed. Both of the tumors were malignant. Mr. Dukes was discharged from Shands Hospital on September 15, 1971, leaving him without the ability to speak. On October 16, 1971, Mr. Dukes’ attorney visited with him at the Dukes residence (at the request of Barbara Albritton and Stephen L. Dukes) for the purpose of having some documents executed including the disputed change of beneficiary form. The attorney had taken his secretary along, together with a long time friend of the deceased, a Mr. Harvey Dennis. Mr. Stephen Dukes also was in the home at the time. The record reflects that the attorney was assured of Mr. Winton L. Dukes’ mental capability to know his attorney and that his faculties were such that he was oriented as to place and time. The disputed form was signed with an “x” and properly witnessed. On October 19, 1971, three days after the execution of the change of beneficiary form, the deceased saw Dr. Joseph C. Cauthen as an out patient at Shands Hospital. The record also reveals that at this time Winton had difficulty in speaking but Drs. Cauthen and McRae testified Winton was able to express his thoughts and needs by the use of hands or nodding of head gestures. Mr. Dukes died on November 16, 1971. Subsequently, the litigation commenced and the cause was tried without a jury.

The record reveals that the Court was able to observe the original beneficiaries’ manner and demeanor at the non-jury trial and this constituted the only live testimony taken by the Court. The transcribed testimony of the attorney and two treating physicians was reviewed by the Court.

Generally speaking, a judgment of the Trial Court comes to the Appellate Court clothed with the presumption of correctness and the appellants have the burden of showing error. Phipps v. Sheffman, Fla.App., 211 So.2d 598 and Jovanovich v. Aeor-Tec., Inc., Fla.App., 277 So.2d 555. As in the cited cases the presumption is slight where the trial Judge used the same tools as the Appellate Court uses; that is sworn transcribed testimony. The Appellate Court and the Trial Court are “on a par” with each other because each have used their records on which to base a final decision. We also recognize that the Appellate Courts are loathe to reverse a Trial Judge who has had the opportunity to observe the manner and demeanor of live witnesses. See Julian v. Julian, Fla.App., 188 So.2d 896. In the Julian case that “there is no presumption or at best only a slight presumption in favor of the correctness Where a trial Judge bases his Final Decree upon the written pleadings and transcribed testimony and exhibits, the Appellate Court is in the same position in examining the record as is the Trial Judge, and a presumption as to determination of evidentiary matters is not as strong as when the Judge, as the trier of the facts, personally hears the witnesses.” L & S Enterprises, Inc. v. Miami Tile & Terrazzo Inc., Fla.App., 148 So.2d 299. See also Davis v. Wigfall, Fla., 70 So.2d 908.

Accordingly we reverse.

BOYER, C. J., concurring specially.

McCORD, J., dissents, without opinion.

BOYER, Chief Judge,

concurring specialty-

I concur in reversal based upon the authorities and reasoning recited in the opinion authored by Judge Lee. On October 16, 1971, or thereabouts, the attorney mentioned in the foregoing opinion, accompanied by his secretary and a friend of the deceased went to the home of the deceased and upon entering his bedroom found him lying in bed. He indicated by motions and gestures a desire to be helped to a sitting position. The attorney engaged in a conversation with the deceased for the purpose of determining his ability to understand, communicate and respond. The deceased would make hand and head gestures and would mumble and make other vocal sounds in order to communicate. Having satisfied himself that the deceased was capable of understanding and communicating, the attorney read and explained the documents which had been prepared which documents were thereupon signed by a mark and, as recited in the foregoing opinion, properly witnessed. With regard to the change of beneficiary form, the attorney asked the deceased whether it was his intention to exclude his wife from participation whereupon the deceased evidenced his approval with a nod and an audible noise. Three days later the deceased was seen by a physician as an out patient at Shands. That physician testified that although the deceased experienced difficulty in expressing his thoughts he could nevertheless communicate his needs.

Florida recognizes a presumption of sanity and mental competence of a person at the time of the execution of an instrument. (Schaefer v. Voyle, 88 Fla. 170, 102 So. 7 and Travis v. Travis, 81 Fla. 309, 87 So. 762. See also Beatty v. Strickland, 136 Fla. 330, 186 So. 542.) The burden of overcoming such presumption rests upon the party attacking the sanity or mental competence at the time of the execution of the instrument. Mere physical feebleness or mental weakness will not authorize a court to set aside a contract or other executed' document on the ground of mental incapacity unless the evidence demonstrates that such mental or physical weakness amounted to an inability to comprehend the effect and nature of the transaction. (Murrey v. Barnett National Bank of Jacksonville, Sup.Ct.Fla.1954, 74 So.2d 647 and Davis v. Wigfall, Sup.Ct.Fla.1954, 70 So.2d 908) An examination of the record sub judice reveals that there was insufficient evidence to overcome the presumption of competency.


author: McCORD, Judge.

text:
    Bill SNEAD a/k/a Bill Sneed, Petitioner, v. STATE of Florida, Respondent.
    No. BB-293.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1976.
    Rehearing Denied Oct. 7, 1976.

      James G. Sisco and Olen Meredith, St. Augustine, for petitioner.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for respondent.
   McCORD, Judge.

Petitioner seeks a writ of common law certiorari to review an evidentiary ruling of the trial court. We decline issuance of the writ to review such action at this time.

Petitioner also seeks a writ of prohibition contending that the trial court does not have jurisdiction to try the case because the time within which it could be tried has run under the speedy trial rule (Fla.R.Crim.P. 3.191).

On the night of March 14, 1975, Louise Hanna and Linda Kimbro were assaulted and robbed as they left Spuds Bar. Linda later died of her injuries. At the hearing on appellant’s motion for discharge under the speedy trial rule, Deputy Sheriff Light-sey testified that on the day after the assault upon the women, he obtained a signed complaint from the owner of Spuds Bar against appellant for trespassing. (On the night of March 14, appellant had been in the bar and had been ordered to leave. He had previously been warned to stay out.) The deputy further testified that upon obtaining the complaint, he and three other officers picked up appellant at his work, read him his rights, and advised him that they wanted to take him to the jail to discuss the robbery and assault cases; that they did not mention the trespassing charge and they did not intend to arrest him on that charge; that after twenty minutes of questioning, Lightsey told appellant he was going to book him for trespass after warning; that he had appellant fingerprinted and photographed, but these were for use in the robbery and assault cases. After appellant was locked up, Lightsey telephoned the state attorney and was advised to drop the trespass charge. He then took appellant home and released him. The next day he had appellant sign a waiver of rights form which stated that he, as a suspect, was advised by the arresting officer that the charge against him was armed robbery and assault to murder Linda Kimbro and Louise Hanna.

In spite of the recitation in the waiver, there was no charge growing out of the robbery and homicide then pending against appellant and none was filed until he was indicted on September 16, 1975, for the murder of Linda Kimbro. Subsequent to his being picked up on March 15 and released on the same day, appellant was free until he was placed in jail on March 23 on an unrelated charge. Appellant contended in the trial court and contends here that the time for his trial under the speedy trial rule began to run on March 15 — the date he was picked up and then released; that he has been continuously available for trial since that time. If appellant is correct in this conclusion, the time within which he may be tried has run under the rule and he must be released. We, however, do not so interpret the rule. Had a murder charge been filed against appellant on March 15 or subsequent thereto while he was being held to answer for that charge, he would be correct in his contention. Here, however, appellant was taken to the jail and held for a short period for investigation with no charge for the murder being on file. He was then released without a charge being filed. His subsequent arrest on March 26 was on an unrelated charge upon which he was held until an indictment was returned against him on September 16 for murder. Under these circumstances, the time within which he could be tried under the speedy trial rule began to run on September 16,^ 1975.

Our decision should not be regarded as implicitly endorsing investigatory arrests but only as holding that an arrest in which no charge is made does not commence the period in which a speedy trial is required on a later charge by Fla.R.Crim.P. 3.191. We are here concerned with whether appellant was charged with murder on March 15, 1975, by his de facto arrest and detention on that day. We are not concerned with the legality of the arrest, whether “for investigation” or on some charge other than murder, or with the consequences of the detention in the context of other questions, such as the admissibility of evidence taken from appellant in detention. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Certiorari and prohibition denied.

BOYER, C. J., and SMITH, J., concur.


author: SMITH, Judge.

text:
    Edward C. SHANLEY, Appellant, v. Phillip Morton ALLEN, Appellee.
    No. BB-299.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1976.
    William Fisher, Jr., Fisher, Bell & White, Pensacola, for appellant.
    James A. Johnston, Pensacola, for appel-lee.
   SMITH, Judge.

The defendant below presents this interlocutory appeal from an order setting aside, at plaintiff’s request, a judgment dismissing plaintiff’s action for lack of prosecution.

In October 1974, barely within the period of the statute of limitations, plaintiff sued defendant for injuries received in a December 1970 automobile accident. After issue was joined, plaintiff’s attorney was suspended from the practice of law for 6 months. No action was taken in the case during that period or for more than 6 months afterward. Abundant notice was then given plaintiff’s counsel that the action would be dismissed for failure to prosecute unless “[g]ood cause shall be shown . at least five days before the hearing” set for January 29, 1976. One day before the scheduled hearing, plaintiff’s counsel filed a motion to set aside the dismissal, reciting that he had the impression, upon his suspension, that his former law partner would continue the representation and he was uncertain following his reinstatement whether he still had responsibility for the case. The trial court set aside the judgment of dismissal. This appeal followed.

We do not consider that a trial court is disabled by Rule 1.420(e), F.C.P., to consider “good cause” shown by the defaulting party less than five days before the scheduled hearing. Nevertheless, we conceive that the trial court erred in setting aside the judgment of dismissal in this case. No justifiable reason was shown for the persistent failure of plaintiff’s counsel to prosecute the ease or place it in the hands of another for prosecution. The misimpres-sions and erroneous assumptions of plaintiff’s counsel do not constitute “good cause why the action should remain pending.” Rule 1.420(e), R.C.P. See Bakewell v. Shepard, 310 So.2d 765 (Fla.App. 2d, 1975) (misunderstanding with counsel to be associated); Fla. Power & Light Co. v. Gilman, 280 So.2d 15 (Fla.App. 3d, 1973) (change of attorneys); Conklin v. Boyd, 189 So.2d 401 (Fla.App. 1st, 1966) (secretarial inadvertence); Miller v. Hartley’s, Inc., 97 So.2d 211 (Fla.App. 3d, 1957) (attorney too busy with other work); Railway Exp. Agency v. Hoagland, 62 So.2d 756 (Fla.1952) (inadvertence). Nor is the evident hardship to appellee good cause for reinstatement. Laug v. Murphy, 205 So.2d 695 (Fla.App. 4th, 1968). The order setting aside the judgment is VACATED and the case is remanded for dismissal.

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


text:
    Jeffrey Steven WEISENFORD, Appellant, v. STATE of Florida, Appellee.
    No. Z-142.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1976.
    Ronald L. Bloom, of Greene, Greene, Smith & Davenport, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant, Jeffrey Steven Weisenford, pled nolo contendré to possession of cocaine reserving the right to appeal the denial of his motion to suppress evidence. The basic facts adduced at the hearing on the motion are not in dispute. Officer Pierotti and Officer Johnson responded to a call about intoxicated persons at the airport. They arrived to find appellant and a companion in custody of airport security officers. Both were falling out of their chairs, foaming at the mouth, and could not speak coherently. They were arrested for disorderly intoxication, but the officers could not detect any smell of alcohol on their breath. Pierotti turned their heads back and saw white powder in their nostrils. The officers checked the areas of the airport for drugs where the two had been seen but found nothing. They were searched and car keys were found on appellant. Officer Johnson then called appellant’s mother and obtained a description of his car. The two officers then went to the airport parking lot, found the car, searched it, and found cocaine in a baggie stuffed in a glasses case. Officer Johnson called appellant’s parents again and advised them that he was under arrest for possession of a controlled substance and told them they could pick up the car at the airport and save towing charges. The parents agreed to do this.

The search of appellant’s automobile in the airport parking lot cannot be sustained as a search incident to appellant’s arrest nor can it be sustained as a valid inventory search as it was not reasonably necessary that the vehicle be taken into custody for safekeeping. In addition, even if there were probable cause for the officers to believe that the vehicle contained contraband, there were no exigent circumstances justifying a search of it without a warrant. There was no legal basis for the search.

REVERSED.

BOYER, C. J., and SCHLEGEL, LEW E., Associate Judge, concur.


author: RAWLS, Acting Chief Judge.

text:
    Myrtis D. SIMMONS, Appellant, v. Theodore D. SIMMONS, Appellee.
    No. AA-390.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1976.
    Rehearing Denied Oct. 8, 1976.
    Roderic G. Magie, Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for appellant.
    Hobart 0. Worley, Jr., Pensacola, for ap-pellee.
   RAWLS, Acting Chief Judge.

The sole point on appeal is whether the trial court erred in ordering Myrtis Murphy Simmons Hilburn to repay to her former husband, Theodore D. Simmons, the sum of $5,500.00 which she had received from him in permanent alimony subsequent to her alleged common law remarriage in 1965 to William Elbin Hilburn.

The facts are uncontroverted. On May 28, 1962, the Circuit Court of Escambia County granted a decree of divorce in favor of Myrtis from Theodore. That decree restored to Myrtis her maiden name of Myrtis Murphy and required Theodore to pay to her monthly alimony in the sum of $50.00. Theodore made the permanent alimony payments until January, 1975, at which time he discovered that Myrtis had filed a petition for letters of administration of the estate of William Elbin Hilburn, claiming to be his widow. Upon discovering that Myrtis was asserting that she had married Hilburn in 1965, Theodore filed the instant petition seeking to modify the final decree of divorce by relieving him of any further responsibility to pay permanent alimony and further seeking restitution by Myrtis of all alimony payments received by her from the date of her alleged common law marriage.

In its judgment modifying the divorce decree, the trial court found that Myrtis did not advise Theodore that she had remarried; that the common law marriage was not a matter of record and that Myrtis had secreted the fact of said marriage; and that although a subsequent marriage does not automatically terminate alimony payment and ordinarily the divorced husband must apply to the court for a termination of said alimony payments, it is inequitable and unjust for a divorced wife for whom permanent alimony is declared not to advise her prior husband of her remarriage and to knowingly continue to receive said alimony subsequent to her remarriage. After reciting the foregoing material findings of fact, the trial court terminated any further alimony and entered judgment in favor of Theodore against Myrtis in the sum of $5,500.00.

A review of this record discloses without contradiction that Theodore had no reason to know of Myrtis’s remarriage, that he mailed the monthly alimony checks to her at their former marital home, and the checks were made payable to Myrtis Murphy (her maiden name) and she endorsed them in that name. Equity travels a two-way street. This record fully supports the trial court’s finding that Myrtis secreted the fact of her remarriage from Theodore. She is privileged to assert in the probate court her common law marriage to Hilburn in 1965; she is not privileged to concurrently assert her entitlement to a portion of the fruits of Theodore’s material goods during the same period of time. Material benefits from one husband during a specific time is enough. A claim of such benefits from two husbands is too much.

AFFIRMED.

SMITH, J., and WILLIS, BEN C., Associate Judge, concur.


author: MILLS, Judge.

text:
    FLORIDA EDUCATION ASSOCIATION/UNITED, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. BB-246.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1977.

      Sidney L. Matthew, Tallahassee, Tobias Simon & Elizabeth duFresne, Miami, for petitioner.
    Jack L. McLean, Jr., Tallahassee, for respondent.
    James Newton Wilhoit, III, Michael Egan and William S. Roberts, Cass D. Vickers, Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, Frank A. Howard, Jr., and Phyllis 0. Douglas, Miami, John W. Caven, Jr., Jacksonville, amicus curiae.
   MILLS, Judge.

The Florida Education Association/United (United) petitioned the Florida Public Employees Relations Commission (Commission) to adopt the following fair share rule:

“All public employees who are not members of the exclusive representative may be required by said representative to contribute a fair share fee for services rendered by the exclusive representative and the employer upon notification by the exclusive representative of such employees shall be obligated to check off said fee from the earnings of the employee and transmit the same to the exclusive representative. In no instance shall the required contribution exceed a pro rate share of the specific expenses incurred for services rendered by the representative in relationship to negotiations and administration of grievance procedures.”

The Commission denied the petition and United seeks a review. The issue presented to us is whether the proposed fair share rule is prohibited by the Constitution of Florida.

The proposed rule would require non-union public employees to pay the union a pro rata share of bargaining costs as a condition of employment. Non-union employees would be required to pay their fair share for representation by the union which they did not request and do not want. The employer would deduct the fair share assessment without the employee’s request. The employee would have two choices, accept and pay his or her fair share assessment to the union or look for another job. This is prohibited by Article I, Section 6 of the Florida Constitution which provides that:

“The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. . . ”

Anything which imposes a charge upon the free exercise of a right abridges the use and enjoyment of the right. Section 6 of Article I gives the working person a right to join or not to join a union without jeopardizing his or her job. The proposed rule is repugnant to the provisions of Section 6 because it would require non-union employees to purchase a right which the Constitution gives them. Schermerhorn v. Local 1625 of Retail Clerks International Association, 141 So.2d 269 (Fla.1962).

Although United recognizes that an agency shop provision is prohibited by the Constitution, it contends that a fair share provision is not. This contention is without merit. Both an agency shop agreement and a fair share agreement provide that employees are free to refrain from union membership. However, under agency shop nonunion employees must pay to the union an amount equal to union dues and fees as a condition of employment, whereas under fair share non-union employees must pay to the union a pro rata share of bargaining costs as a condition of employment. The required payment of a fee by a non-union employee to the union for the purpose of aiding the union in defraying bargaining costs is of bookkeeping significance only and is not a matter of real substance. Retail Clerks, Local 1625 v. Schermerhorn, 373 U.S. 746, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963). There is no real difference between agency shop and fair share. The proposed rule is no less offensive to the Constitution because it requires non-union public employees to contribute only a pro rata share of bargaining costs rather than the equivalent of a month’s union dues. Both are prohibited by the Constitution.

We have entertained United’s petition for review because the Commission’s order was final agency action on United’s petition to the Commission to adopt a fair share rule. United was permitted to submit its petition for adoption of a fair share rule and the Commission was authorized to consider it because Section 120.54(5), Florida Statutes (Supp.1976), provides in part:

“Any person regulated by an agency or having a substantial interest in an agency rule may petition an agency to adopt, amend, or repeal a rule . . .. The petition shall specify the proposed rule and action requested. Not later than 30 calendar days after the date of filing a petition, the agency shall initiate rule-making proceedings under this act, otherwise comply with the requested action, or deny the petition with a written statement of its reasons for the denial.”

In denying United’s petition, the Commission expressed the view that the proposed fair share rule violated the Constitution as we have found. It was proper for the Commission to consider the constitutional question because this question was inseparable from the question of whether to adopt the rule. When an agency thus considers the constitutional implications of a rule proposed to it under Section 120.54(5), it does not violate the doctrine of separation of powers or invade the judicial function. Article II, Section 3, Florida Constitution. To be distinguished, therefore, are State of Florida, Dept. of Admin., Div. of Personnel v. State of Florida, Dept. of Admin. Hearings, et al., 326 So.2d 187 (Fla. 1st DCA 1976); and Dept. of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976).

In entertaining this petition for review, we recognize that the issue before us is not strictly whether the Commission erred in refusing to adopt the rule proposed by United. This court has no authority to compel agency adoption of a rule representing a policy choice in the area of the agency’s statutory concern. Our authority to review an agency decision against a proposed rule is therefore quite limited. But where, as here, the agency has on constitutional grounds declined authority to adopt the rule and has so stated, we will review to that extent the agency’s final action on petition by an aggrieved party. Judicial review of an agency’s refusal to act is in these circumstances essential, else there be no remedy for an agency’s ill-conceived refusal to make policy choices which are constitutionally available to it.

The petition for review is denied.

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


author: BARKDULL, Judge. PER CURIAM.

text:
    John L. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1508.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 16, 1977.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   BARKDULL, Judge.

The appellant appeals from a final judgment after a jury verdict finding him guilty of two counts of assault with intent to commit first degree murder. He was sentenced to consecutive sentences of 15 and 10 years.

One of the defenses was not guilty by reason of insanity. No request for an instruction on the consequences of a verdict of not guilty by reason of insanity was made by defense counsel. No objections to the instructions as given by the court were made by defense counsel and, in fact, defense counsel agreed to the instructions as given.

Subsequent to the trial in this case, the Supreme Court of Florida rendered the opinion in Roberts v. State, 335 So.2d 285 (Fla.1976), wherein it adopted the so-called Lyles rule in regard to this type of instruction. Said opinion reads, in part, as follows:

******
“ * * * we decline to limit our holding to the facts of this case. In so doing we expressly adopt the so-called ‘Lyles rule,’ which is followed in an increasing number of state jurisdictions. * * * ” [emphasis supplied]

On this appeal, counsel for the appellant urges fundamental error in the failure of the trial judge to give the Lyles charge. We reject this contention.

Florida Appellate Rules of procedure makes it incumbent on a defendant to request an instruction desired. See: Fla. App. Rule 6.7g. Pursuant to Fla.R.Crim.P. 3.390(d), it is incumbent upon the defendant to object to the jury instructions if they don’t meet with his approval. Roberts v. State, supra, stands for the proposition that it is mandatory for the trial court to give a “Lyles” instruction if it is requested. No where does that case obviate the necessity of complying with applicable rules of procedure requiring the defendant to request instructions he desires be given to the jury or to object to what he considers defective or improper charges. Thus, where the defendant herein failed to request a “Lyles” instruction or to object to the trial court’s failure to give such a charge, he has no standing to raise the question on appeal. Williams v. State, 285 So.2d 13 (Fla.1973); Rayner v. State, 286 So.2d 604 (Fla. 2nd D.C.A.1973); Fla.R.Crim.P. 3.390(d).

Furthermore, even if Roberts v. State, supra, does hold it mandatory for the trial court to sua sponte give a charge on the “Lyles” rule [a holding we clearly reject herein], that case would not be applicable in the instant case. Such a ruling, which would relieve a defendant from the requirements of Fla.App. Rule 6.7g and Fla.R. Crim.P. 3.390(d), would clearly be procedural in nature and would not be given retroactive effect. See: Morris v. State, 261 So.2d 563 (Fla. 2nd D.C.A.1972). In fact, the opinion in Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), as adopted by the Supreme Court of Florida in Roberts v. State, supra, shows on its face that it was to be given prospective treatment. Said opinion states, in part:

******
“ * * * Otherwise, whenever hereafter the defense of insanity is raised, the trial judge shall instruct * * [emphasis added]

The other point urged as error herein has been examined and found to be without merit. Spencer v. State, 133 So.2d 729 (Fla.1961); Thomas v. State, 326 So.2d 413 (Fla.1976).

Therefore, the verdicts, adjudications of guilt, and sentences be and they are hereby affirmed.

Affirmed.

ON PETITION FOR REHEARING

PER CURIAM.

The appellant has filed a petition for rehearing in this matter, raising two grounds. First, he contends that Roberts v. State, 335 So.2d 285 (Fla.1976) requires that it affirmatively appear from the record that an accused does not wish the instruction on the consequences of a not guilty by reason of insanity verdict be given to the jury, or the court must give such an instruction. Secondly, he contends that the Lyles ruling should not be given retroactive effect. A direct quote from Roberts v. State, supra, wherein the Supreme Court has quoted from Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), is as follows:

******
“Sometimes a defendant may not want such an instruction given. If that appears affirmatively on the record, we would not regard failure to give it as grounds for reversal. Otherwise, whenever hereafter the defense of insanity is fairly raised the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity, in accordance with the view expressed in this opinion.”
* * * * * *

In Lyles, the trial court sua sponte charged the jury on the consequences of a verdict of not guilty by reason of insanity, to which the defendant alleged error. Af-firmance of that conviction resulted in the so-called Lyles Rule.

In Roberts, the Florida Supreme Court had before it an appeal from the trial court’s refusal to give such a charge. In adopting Lyles, the Supreme Court stated: “ * * * we reverse on the issue of refusal to give the requested instruction, * * In neither case did the courts hold failure to give an instruction on the consequences of a not guilty by reason of insanity plea to be fundamental error, so as to permit the raising of the question for the first time on appeal. In the instant case, said instruction was neither requested nor given. No objection was raised thereto in the trial court, nor was it originally assigned as error herein. Said error was raised by supplemental assignment of error, filed pursuant to order of this court.

It does not appear that this court should go beyond the holdings in Lyles v. United States, supra, and Roberts v. State, supra, and declare a failure to give a charge on the consequences of a not guilty plea by reason of insanity to be fundamental error, so as to obviate the necessity that a defendant properly raise and perserve error in the trial court.

As to the second point raised in the petition for rehearing, it would appear that on the basis set forth in this court’s original opinion that Roberts v. State, supra, should not be given retroactive effect, notwithstanding the holding to the contrary in Ringgo v. State, 339 So.2d 293 (Fla. 2nd D.C.A. 1976). Here, again, a request was made for a Lyles charge and the appeal challenged the denial thereof.

Therefore, the petition for rehearing filed herein should be denied.

Denied.


author: GRIMES, Judge.

text:
    K. D. SAUDER et al., Appellants, v. HARBOUR CLUB CONDOMINIUM NO. THREE, INC., Appellee.
    No. 76-1307.
    District Court of Appeal of Florida, Second District.
    April 15, 1977.
    As Corrected On Denial Of Rehearing May 20, 1977.

      John S. Wagstaff, of Phillips, McFarland, Gould, Wilhelm & Wagstaff, P. A., Clear-water, and Adrian S. Bacon, of Bacon & Hanley, St. Petersburg, for appellants.
    John T. Blakely, of Johnson, Blakely & Pope, P. A., and Robert R. Tench, Clear-water, for appellee.
   GRIMES, Judge.

This is an appeal from a judgment cancel-ling a common and recreation areas use agreement between a condominium association and the developers.

In order to understand this complex litigation, it is necessary to recount the facts in some detail. The appellants (developers) purchased a tract of waterfront land in Pinellas County. They conveyed portions of the land to three separate corporations of which they were the sole stockholders. Condominium buildings were built on each of the three parcels called respectively Harbour Club Condominiums No. One, Two and Three. Declarations of condominium ownership were filed with respect to each of the condominiums. The developers also organized three nonprofit corporations named Harbour Club Condominium No. One, Inc., Harbour Club Condominium No. Two, Inc. and Harbour Club Condominium No. Three, Inc., the members of which would consist of the unit owners in each of the condominiums.

The developers then entered into a service contract with each of the condominium associations in which it was agreed that for a stated fee the developers would provide specifically enumerated maintenance services for the benefit of the condominium. The developers also entered into separate common and recreation areas use agreements with each of the condominium associations, the terms of which will be discussed later. The various units in the condominiums were then purchased by those who became the members of the condominium associations pursuant to contracts which stated that the purchasers were subject to the provisions of the applicable service contract and common and recreation areas use agreement.

The total property included substantial landscaped areas, a swimming pool and shuffleboard courts. There was a recreation room in both Harbour Club Condominium No. One and Harbour Club Condominium No. Two but no recreation room in Harbour Club Condominium No. Three. It was contemplated by the developers that the residents of Harbour Club No. Three would use the recreation rooms in the other two condominium buildings. Accordingly, the three declarations of condominium provided that all common and recreation areas including those located within buildings were available to all the residents of the Harbour Club regardless of the building which they occupied. Some time thereafter, the owners of two units in Harbour Club Condominium No. Two brought suit against the developers and their development corporation seeking to quiet title to the recreation room in their condominium (suit 1).

The court held that the failure in the condominium documents to assign to the recreation room a percentage or fractional share of the common elements was a fatal defect in attempting to create the recreation room as a condominium unit subject to private ownership. Thus, the court held the recreation room to be part of the common elements which are fractionally owned by the various residents of Harbour Club Condominium No. Two and cancelled the purported conveyance of the recreation room back to the developers. This ruling was affirmed by our court in Daytona Development Corporation v. Bergquist, 308 So.2d 548 (Fla.2d DCA 1975).

In the meantime, Harbour Club Condominium No. Three brought this suit against the developers seeking to cancel its service agreement and common and recreation areas use agreement (suit 2). Then Harbour Club Condominium No. Two brought suit against the developers to cancel the service agreement and common and recreation areas use agreement applicable to that condominium (suit 3). Suits 2 and 3 were at first consolidated but they were later severed over the developers’ objections. Following the taking of testimony in suit 2, the court held that the plaintiff had failed to carry its burden of proof with respect to the cancellation of the service contract. However, the court construed the common and recreation areas use agreement to be equivalent to a lease and ordered it to be cancelled. The court reasoned that because the developers did not own the recreation room in Harbour Club Condominium No. Two they were in no position to lease it and that since the recreation room was such a significant portion of the total recreation areas, the agreement must fall in its entirety. The developers appeal that aspect of the judgment and also appeal the division of the monies which were paid under the common and recreation areas use agreement into the registry of the court during the pendency of the suit.

At the outset, the effect of suit 1 upon this case must be considered. While that suit held that the unit owners in Har-bour Club Condominium No. Two, rather than the developer, held title to the recreation room, it did not pass upon the validity of the common and recreation areas use agreement applicable to that condominium. The question of whether the unit owners in Harbour Club Condominium No. Two had the right to use their recreation room to the exclusion of any of the other residents of the Harbour Club was never placed in issue. Therefore, as to that point there could be no estoppel by judgment. Gordon v. Gordon, 59 So.2d 40 (Fla.1952). Moreover, the Harbour Club Condominium No. Three, Inc. was not a party to suit 1, so the identity of parties necessary to the application of res judicata or estoppel by judgment was not present. Matthews v. Matthews, 133 So.2d 91 (Fla.2d DCA 1961); Smith v. United Services Automobile Association, 259 So.2d 501 (Fla.1st DCA 1972).

We cannot quarrel with the court’s observation that many of the provisions in the common and recreation areas use agreement resemble a lease. However, this agreement ought not be construed in a vacuum but should be considered in light of any other pertinent documents and the circumstances surrounding the parties. Blackhawk Heat. & P. Co., Inc. v. Data Lease Fin. Corp., 302 So.2d 404 (Fla.1974); Quarngesser v. Appliance Buyers Credit Corp., 187 So.2d 662 (Fla.3d DCA 1966). Thus, paragraph 4.10 of each of the declarations of condominium defining “common and recreation areas” states:

“Those portions of the Harbour Club project whether specifically included in a building or being portions of the ground or improvements thereon outside the dedicated condominium parcel, title of which has been retained by the Developer, or others, and the use of which has been made available to all of the residents of the Harbour Club regardless of the building they occupy, said use being pursuant to either the Common and Recreation Areas Use Agreement or the Service Contract to the extent that either is applicable.” (Emphasis supplied.)

Paragraph 4 of the common and recreation areas use agreements for all three condominiums reads as follows:

“(4) Overall Development Plan. The entering into of this Agreement is part of the overall plan for the development of Harbour Club, and it is anticipated that similar agreements of this type will be entered into by and between the other Condominium Associations located in Harbour Club, and with the Owner. The Association expressly consents to the entering into of other Agreements by Owner with other Condominium Associations for the use of the Common and Recreational Areas described herein.” (Emphasis supplied.)

Paragraph 15 of each of the common and recreation areas use agreements provides as follows:

“(15) Automatic Consent and Ratification. Each and every person, whether real or corporate, who shall take any interest whatsoever in or to ‘The Harbour Club No. 3’, or any of the Apartments, or portions of the Condominium Property, after the recording of this Agreement as a part of the Declaration, by acceptance, delivery and the recording of the deed, contract, grant, assignment or other instrument granting, conveying or providing for such interest, or by the mere first exercise of the rights or uses granted herein, shall be deemed to consent to and ratify without further action being required, the provisions of this Agreement to the same effect and extent as if such person or persons had executed this Agreement with the formalities required in deeds for the purpose of subordinating and/or subjecting such person or persons’ interest, in full, to the terms of this Agreement and granting, creating, constituting, affirming and imposing, ab ini-tio and anew, the lien rights granted to the Service Contractor and/or Owner provided for in this agreement.”

Paragraph 28 of the same agreements says in part:

“. . . Association further covenants and agrees that it will use the said premises only for recreational purposes or for other uses consistent with the overall development plan of Harbour Club, and none other, without the prior written consent of the Service Contractor and owner obtained. . . . ”

Finally, paragraph 40(D) of these agreements provides:

“D. Covenants Running with the Land.
All covenants, promises, conditions and obligations herein contained or implied are covenants for all of the above-described premises and covenants running with the lands described in the Declaration of the Condominium, and the same shall attach to and be binding upon the Service Contractor and Owner, their successors and assigns, and the Association, its successors and assigns, its present and future members, occupants, and present and future Owners of the Apartments in the Condominium, their personal representatives, successors and assigns.”

It is evident that it was the intent of the developers and the associations with whom the agreements were entered into that the two recreation rooms in the Har-bour Club would be available to each resident of the Harbour Club regardless of the building in which he lived. Thus, we conclude that the fact that the developers did not own the recreation room in Harbour Club Condominium No. Two did not mean that the unit owners in Harbour Club Condominium No. Three lost their right to use that recreation room. Therefore, they cannot escape their obligation to pay the developers what they agreed to pay them when they purchased their units, and the developers are entitled to a fee for this use even though they do not own the recreation room.

The case of Mayfair Engineering Co. v. Park, 318 So.2d 171 (Fla.4th DCA 1975), tends to support this conclusion. There, the developer of a condominium dedicated in the declaration of condominium thirty-five parking spaces which he declared to be part of the common elements but retained a reservation in the declaration to the use of these spaces by the developer or his assign-ee or others. The condominium association contended that upon the filing of the declaration of condominium title to the limited or common elements became vested in the unit owners and, therefore, since the developer was no longer the fee owner, he had nothing to assign or convey. In holding that the developer was entitled to collect rent for these parking spaces, the court said:

“Appellees, unit owners, contend that upon the filing of the Declaration of Condominium, title to the limited or common elements became vested in the unit owners and that therefore the developer was no longer fee owner and had nothing to assign or convey. While there is no question that ownership of the thirty-five parking spaces passed to the unit owners upon the filing of the Declaration, we find that that ownership was subject to the use restrictions set out in Article VIII of the Declaration of Condominium and that such restrictions are not prohibited by Florida’s Condominium Act. . . ”

Apropos to the instant case, the court of appeal concluded by stating:

“The unit owners knew or should have known of this reservation clause in Article VIII of the Declaration when they purchased their condominium units and therefore were on notice then of their limited right and interest in the thirty-five parking spaces. Enforcement of the Declaration’s terms thus cannot be said to work a hardship upon them. . . . ”

The fact that we hold that the common and recreation areas use agreement should not have been cancelled does not necessarily dispose of the question of what to do with the rentals paid under that agreement into escrow while this suit was pending. The testimony clearly shows that subsequent to the judgment in suit 1 the management of Harbour Club Condominium No. Two, Inc. locked out the unit owners of Harbour Club Condominium No. Three from the use of the recreation room. While the unit owners in Harbour Club No. Three may have had a theoretical right to use the room, as a practical matter, they were unable to do so. There was considerable testimony that the availability of the recreation room was the most important feature of the overall recreation area to the unit owners in Harbour Club Condominium No. Three. Consequently, the court returned to the unit owners of Harbour Club Condominium No. Three a larger portion of the rentals than they would have received had the division been accomplished in proportion to the appraised value of the recreation room as compared to the appraised value of the balance of the recreation areas. Such a determination was well within the discretion of the court, and we approve the division of these rentals.

We recognize that because of the posture of this case we have necessarily had to address ourselves to certain rights of Har-bour Club Condominium No. Two, Inc. even though that association is not a party to this suit. This might have been avoided had suits 2 and 3 remained consolidated. Be that as it may, since our decision cannot have the effect of res judicata or estoppel by judgment upon Harbour Club Condominium No. Two, Inc., it is obvious that our resolution of this particular battle is not going to end the war. However, we do see a light at the end of the tunnel, because we have been apprised in a supplemental brief that Harbour Club Condominium No. Two, Inc. and the developers have now settled suit 3 pursuant to an agreement whereby, in consideration of the reduction of rentals paid by Harbour Club Condominium No. Two, Inc. under its common and recreation areas use agreement and other concessions by the developers, the unit owners in Har-bour Club Condominium No. Three will be permitted to use the recreation room in Harbour Club Condominium No. Two. We, therefore, remand this case for a further hearing in which the court may consider the effect of this settlement agreement and make such reductions in the rentals due under the common and recreation areas use agreement of Harbour Club Condominium No. Three as may be necessary to offset any expenses which the unit owners in Harbour Club Condominium No. Three may incur to Harbour Club Condominium No. Two, Inc. by virtue of their use of the recreation room under the settlement agreement and for such other ancillary matters as may be necessary to terminate this litigation.

AFFIRMED in part; REVERSED in part; and REMANDED.

BOARDMAN, C. J., and OTT, J., concur.

      . The club number is designated as 1, 2 or 3 depending upon which Harbour Club was party to that particular use agreement.

      . The record does not adequately reflect the status of the recreation room in Harbour Club Condominium No. 1. Apparently, because of its location and size, its use was not desirable for the unit owners of Harbour Club Condominium No. 3.