author: DeCARLO, Judge.

text:
    Jeryl W. GOINS v. STATE.
    6 Div. 908.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Charles Purvis, Birmingham, at trial, for appellant.
    George Jones, Deputy Dist. Atty., Birmingham, at trial, for appellee.
   DeCARLO, Judge.

This is an appeal from an order denying a petition for writ of habeas corpus by the circuit court of Jefferson County, in which the court refused to discharge the appellant.

Jeryl W. Goins was arrested and taken into custody by an officer of the law under a rendition warrant issued by the governor of the State of Alabama, upon a requisition and warrant of extradition from the governor of the State of Ohio. From aught that appears the offense for which the appellant is charged concerns possession of a quantity of heroin in the State of Ohio in April of 1973.

Counsel for appellant states that the “basis” of appellant’s petition for habeas corpus is:

“He was not present in the State of Ohio on April 20th, 1973 or during any part of 1973. That he was here in this State. [Alabama].”

The pertinent parts of the petitioner’s allegations are as follows:

“Comes your Petitioner, Jeryl W. Goins, who is a resident citizen of Jefferson County, Alabama, and respectfully shows unto your Honor as follows:
“1. That Petitioner is now illegally restrained of his liberty and imprisoned in the Jefferson County Jail by Sheriff Melvin Bailey, and the alleged cause of such detention is a Governor’s Warrant purporting to serve as authority for his extradition to Ohio, but which is in reality void and illegal in that:
“A. It is no more than an attempt to collect a debt in contravention of the United States and Alabama Constitutions.
“B. Your Petitioner was not present in the State of Ohio at the time the alleged offense was committed.
“Your Petitioner prays that a Writ of Habeas Corpus be issued, directed to said Melvin Bailey, Sheriff for Jefferson County, Alabama, commanding him to bring the body of your Petitioner before your Honor at the time and place to be by you appointed, together with the cause of Petitioner’s detention. . . .” [Emphasis added.]

The petitioner, testifying in his own behalf, stated that he was not in the State of Ohio at the time of the alleged offense and said that he was working in Alabama. Appellant produced other testimony from his father-in-law, his wife, one of his employers, and nephew of the employer, all of whom stated that he was in Alabama during April of 1973.

The State presented no evidence on the issue of the whereabouts of appellant in 1973, nor did they present any evidence on the issue of the identity of the person named in the extradition warrant.

We observe that the appellant does not deny the charge for which he was being extradited. The only issue, therefore, concerns appellant’s alibi testimony. On the basis of the evidence presented at the hearing, the court refused to discharge the petitioner. The evidence presented by the appellant went to the merits of the alleged offense on the issue of alibi.

Although it may be said that appellant indirectly raised the issue of identity, it was not disputed that petitioner is the person for whom the governor of the demanding State has made requisition and that he is the person named in the warrant from the governor of the sovereign State of Alabama.

Under these facts, we are not prepared to say that the court committed reversible error in denying the petition. Alibi testimony is evidence of a defense to the crime charged and it is therefore an issue involving the merits of the ease. People v. Conlin, 15 Misc. 303, 36 N.Y.S. 888; People ex rel. Steele v. Mulrooney, 139 Misc. 525, 248 N.Y.S. 520; Ex parte Shoemaker, 25 Cal.App. 551, 144 P. 985.

It has been repeatedly held, in determining the question of extradition, that consideration of the charge upon its merits is immaterial to the court of the asylum state. Clayton v. State, 33 Ala.App. 371, 33 So.2d 750; In Re Baker, 310 Mass. 724, 39 N.E.2d 762; Bishop v. Jones, 207 Miss. 423, 42 So.2d 421. Appellant does not deny that the rendition warrant by the State of Alabama and its supporting papers were in proper form. The question of identity was not specifically raised in the case at bar. In Re Baker, supra.

Under the circumstances, we find no reversible error in the ruling below and the judgment is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Joyce J. POPE v. STATE.
    7 Div. 631.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.

      William W. Lawrence, Talladega, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted for the murder in the first degree of Albert Spratlin, Jr., by shooting him with a shotgun; she was convicted of manslaughter in the first degree and sentenced, in accordance with the punishment fixed by the jury, to imprisonment for five years.

Uncontroverted evidence established that defendant shot the alleged victim, who died almost instantly as he immediately dropped to the floor from the force of the shot that entered his head and disgorged a large part of his brain. He was twenty-three and she was twenty-nine years of age. The homicide occurred at her home, where she was living with her husband, a few years older than defendant, and their three children. Under her plea of not guilty she claimed she was acting in defense of herself and in defense of her husband and that the pulling of the trigger of the shotgun was the result of nervousness rather than an intention to kill Spratlin. She said:

“I wasn’t trying to shoot him. I was just wanting him to stop. ... I was nervous and scared.”

The homicide was the outgrowth of a night of preweekend revelry, in which there was considerable drinking, card playing, music and some dancing at defendant’s home, which lasted to or beyond midnight of March 24-25, 1978. Invitees at the party included two brothers of defendant’s husband. Also at the party at one time, but not at the time of the homicide, was an uncle of the victim, who danced for a while with defendant. In their testimony, defendant and her husband, Rufus Pope, disclaimed the victim as an invited guest, saying that they had repeatedly tried to get him out of the house by reason of his excessive drinking, his violent and insolent attitude, and an indecent suggestion he made to defendant.

Defendant’s husband did not stay at the party all of the time. He and the victim went in the husband’s automobile to a night club. Near the night club a fifteen-year-old boy got in the automobile and accompanied them in their return to defendant’s house. According to the husband’s testimony, but not according to the testimony of the fifteen-year-old boy, defendant’s husband and the victim were arguing, and the victim was attempting to get the keys to the automobile from defendant’s husband.

The evidence in general was to the effect that after they returned to the home of defendant, the victim and defendant’s husband were arguing, that the husband took a .22 caliber rifle and threatened to shoot the victim, that the two wrestled with one another for the rifle.

The testimony of the fifteen-year-old boy tended to show much less provocation and misbehavior, if any, by the victim than did the testimony of defendant and her husband and his brother. There was some evidence to the effect that the victim may have had a knife, but there was strong evidence that he did not display a knife or weapon of any kind.

As we view the record, there was considerable evidence of misconduct and provocation on the part of the victim, and there is some basis for a conclusion that defendant was acting more from fear, nervousness and excitement than from an intention to kill Spratlin, when she fired the shotgun. However, there is substantial evidence to the contrary, and the evidence is strong that not all the material elements of a plea of self-defense or defense of her husband were present. There is no basis for a disturbance of the judgment by reason of any possible claim that the evidence was insufficient to support it.

The homicide occurred in the City of Talladega. The authorities were promptly called at the instance of defendant and her husband. Officer Riggleman was the first to arrive. He testified in part:

“When I first arrived the door to the house was standing about half way open or a little more than half way. I saw a man laying in the floor. I seen him from his waist down. I approached the house.
“Q You could see that how?
“A From outside the door.
“Q Looking through the open door?
“A Yes, sir. I approached the house and went up on the porch and I looked around to the living room and didn’t see anyone except the man laying on the floor. And then I looked at the man laying on the floor and I could tell by looking at him that he was beyond help, that he was dead. Then I heard a noise in the back of the house and I looked up in the hall and I saw—
“Q Will you tell us, could you see that through the open door?
“A Yes, sir, the first I saw was the barrel of a rifle.
“Q Barrel of a rifle?
“A Yes, sir.
“Q Where did you see that?
“A In the hall way coming out towards the living room.
“Q Alright, sir.
“A Then I saw Rufus Pope with a .22 rifle in his hand
“Q What if anything did you say or do then?
“A I told him to put the rifle down on the floor and he immediately laid the rifle down and then I told him to come out of the house. And at that time his wife stepped out from behind the wall where I could see her. I told her to come out. They came out the front door. I was still standing on the porch. And they came out the front door and Officer Beavers was with me that night and I told him to keep them on the porch out of the house and don’t let anyone in and I was going in to see if there was anyone else in the house.”

Officer Riggleman’s entry into the house under the circumstances, his survey of the house for the purpose of determining who was in the house, his taking possession of the shotgun with which the victim was killed, his awaiting the arrival of an ambulance and the attendants to remove the body, his survey of the body, and his joining other officers to secure the building and taking the defendant and her husband and three children into custody, did not in any way violate, any Fourth Amendment rights of anyone. The officer’s testimony and the physical evidence, the shotgun, the rifle and other objects in the room pertinent to the issue, and photographs of the premises, did not constitute the fruit of any unreasonable search and seizure. We need only quote what was said by Judge Tyson in Retowsky v. State, Ala.Cr.App., 333 So.2d 193, 199-200 (1976):

“The several exceptions to the warrant requirements are ably stated in the opinion of Mr. Justice Bloodworth in Daniels v. State, 290 Ala. 316, 276 So.2d 441. It is clear here that the officers knew that a homicide had taken place upon arrival at the scene and seeing the door open and Officer Dawson’s daughter sitting in the doorway crying in a very upset condition clearly gave rise to the necessary probable cause to enter the premises and determine what had occurred.
“Clearly the authorities which are construed under the provisions of Title 15, 154, Code of Alabama 1940, permit an officer to make an investigation where, as here, he has been notified of the commission of a felony and enters the scene unaccompanied by a warrant. Many of these were reviewed by Mr. Justice Lawson in Duncan v. State, 278 Ala. 145, 176 So.2d 840. Recently, this Court has also determined, as here, that probable cause existed and we do so determine now. Bridges (and Rogers) v. State, 52 Ala.App. 546, 295 So.2d 266; Burrow v. State, 55 Ala.App. 24, 312 So.2d 596. The search of the apartment where the homicide took place was in all respects proper.”

If officers of the law cannot act with the dispatch that Officer Riggleman did after coming to the scene of a homicide in a private home, and with the efficiency that all of the officers did, there would be little left to the “right of the people to be secure in their persons, houses, papers, and effects.” Instead of condemning Officer Rig-gleman and the other officers, we commend him and them.

Appellant can take nothing from the admission in evidence of a drawing of the scene of the homicide merely because there were items at the scene which were not shown in the drawing. Cauley v. State, 33 Ala.App. 557, 36 So.2d 347, cert. denied 251 Ala. 163, 36 So.2d 354 (1948); Gamble, McElroy’s Alabama Evidence (1977), § 123.-01(4).

During a part of the testimony of Chief of Police Sparks, as a witness for the State, Officer Riggleman, who had preceded him as a witness, sat in the courtroom. Defendant objected to Officer Riggleman’s resumption of his testimony as a witness for the State, on the ground that he had been placed under the rule and had violated it by remaining in the courtroom. The objection was overruled. Whether a particular witness can be excused from the rule is within the sound discretion of the trial court. Patterson v. State, 53 Ala.App. 567, 302 So.2d 540, cert. denied 293 Ala. 770, 302 So.2d 545 (1974); Stallworth v. State, 52 Ala.App. 619, 296 So.2d 243 (1974). No abuse of discretion in this respect can be charged to the trial court in the absence of a showing of any injury to defendant by reason of any infraction of the rule. State v. Brookshire, 2 Ala. 303 (1841); Beaird v. State, 219 Ala. 46, 121 So. 38 (1929); Stinson v. State, Ala.Cr.App., 341 So.2d 185 (1977); Goldsmith v. State, Ala.Cr.App., 344 So.2d 793, cert. denied, Ala., 344 So.2d 799 (1977).

There is nothing to show that there was any intentional violation of the rule by the witness or that there was any injury to defendant resulting from the violation. There was no error in overruling defendant’s objection and allowing the witness to testify. Chancellor v. State, 291 Ala. 413, 282 So.2d 242 (1973), relied upon by appellant, is inapposite. The error in Chancellor was as to the right of defendant to have the jury so kept together as to prevent conversation and contact between the jurors and others, including particularly a witness; not involved therein was the right, subject to the discretion of the court, of a party to have the witnesses excluded from the courtroom and required not to engage in conversation about the case among themselves or with anyone else other than the parties or their attorneys.

Defendant gave a written statement as to the circumstances of the homicide at about 4:25 on the morning of March 25. There is no contention that it was not voluntary or that she was not advised of all her rights against self-incrimination and to counsel without expense to her. About the time she signed the statement, Chief Sparks came into the room where the statement was made and while in the process of reading it, he commented:

“We didn’t find the empty shell out there.” The defendant promptly responded by saying that the shell was in the front bedroom. Promptly thereafter she and Chief Sparks went to her house and found the shell in the bedroom. The circumstances did not require a second reading to defendant of her Miranda rights “prior to her subsequent statement revealing the location of the empty shell,” as urged by appellant. Jones v. State, 47 Ala.App. 568, 258 So.2d 910 (1972).

We have searched the record for any error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: ENGLAND, Chief Justice. ALDERMAN, Justice,

text:
    Norma Jean MARKERT, Petitioner, v. James Louis JOHNSTON and Allstate Insurance Company, Respondents. Margaret INGRAM, Appellant, v. Anna ROSNER and Liberty Mutual Insurance Company, Appellees. James L. O’QUINN and State Farm Insurance Company, Petitioners, v. Charles THOMPSON, Respondent.
    Nos. 52591, 53632 and 52577.
    Supreme Court of Florida.
    Dec. 21, 1978.
    Rehearing Denied Feb. 16, 1979.
    W. Dexter Douglass of Douglass, Powell & Davey, Tallahassee, for petitioner in Case No. 52591.
    Ford L. Thompson of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, for respondents, in Case No. 52591.
    Robert Orseck of Podhurst, Orseck & Parks, Miami, for Academy of Florida Trial Lawyers, amicus curiae.
    David R. Lewis of Lewis, Paul, Isaac & Castillo, Jacksonville, Fla., for appellant in Case No. 53632.
    John C. Taylor, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, Fla., for appellees in Case No. 53632.
    John E. Mathews, Jr. and Stephen E. Day of Mathews, Osborne, Ehrlich, McNatt, Go-belman & Cobb, Jacksonville, Fla., for petitioners in Case No. 52577.
    Robert F. Spohrer of Zisser & Robison, Jacksonville, Fla., for respondent in Case No. 52577.

      Robert Orseck of Podhurst, Orseck & Parks, Miami, Fla., for Academy of Florida Trial Lawyers; and W. 0. Birchfield and William A. VanNortwick, Jr. of Martin, Ade, Birchfield & Johnson, Jacksonville, Fla., for American Insurance Association, amici curiae.
   ENGLAND, Chief Justice.

These consolidated cases present for our consideration the singular legal issue of whether Section 627.7262, Florida Statutes (1977), is constitutional. That statute prohibits the joinder of a motor vehicle liability insurer as a defendant in a lawsuit brought against its insured. The statute reads as follows:

(1) No motor vehicle liability insurer shall be joined as a party defendant in an action to determine the insured’s liability. However, each insurer which does or may provide liability insurance coverage to pay all or a portion of any judgment which might be entered in the action shall file a statement, under oath, of a corporate officer setting forth the following information with regard to each known policy of insurance:
(a) The name of the insurer.
(b) The name of each insured.
(c) The limits of liability coverage.
(d) A statement of any policy or coverage defense which said insurer reasonably believes is available to said insurer filing the statement at the time of filing said statement.
(2) The statement required by subsection (1) shall be amended immediately upon discovery of facts calling for an amendment to said statement.
(3) If the statement or any amendment thereto indicates that a policy or coverage defense has been or will be asserted, then the insurer may be joined as a party.
(4) After the rendition of a verdict, or final judgment by the court if the case is tried without a jury, the insurer may be joined as a party and judgment may be entered by the court based upon the statement or statements herein required.
(5) The rules of discovery shall be available to discover the existence and policy provisions of liability insurance coverage.

The specific question crystallized by the multiple briefs in these cases is whether the joinder of a motor vehicle liability insurer is a “procedural” aspect of trial reserved to the rulemaking authority of the Supreme Court by Article V, Section 2(a) of the Florida Constitution, in which case the statute has impermissibly encroached on a prerogative of the judiciary, or a “substantive” right which the legislature can freely grant to or withhold from this class of litigants. The distinction between those two concepts is, as we know, neither simple nor certain. To understand what the statute endeavors to accomplish, it is necessary to recount the course of joinder prohibitions in Florida’s jurisprudence.

Prior to the enactment of Section 627.-7262, the joinder of insurance companies in tort litigation had been exclusively a concern of the judiciary. Until 1969, the Court barred either joinder or mention of insurers in tort suits. In that year, the Court recognized in Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), as a matter of public policy, that insurers are the real parties in interest in lawsuits against their insured tort-feasors, and it authorized a right of direct action against them. The statute now before us is the first legislative attempt to affect this issue. It is characterized by its proponents as an attempt to return the public policy of the state to its status before Shingleton.

The dispute in this case centers largely on whether the Court in Shingleton established a substantive right to sue insurers by adding them to the class of litigants within the then existing “real party in interest” rule of procedure, in the absence of a legislative act on the subject. Admittedly, language in Shingleton’s majority and dissenting opinions, and in subsequent cases, both support and refute this position. It is not essential to our decision, however, that we resolve that issue, since the plain language of Section 627.7262 makes that unnecessary. It provides rather clearly that the joinder of insurers is merely a procedural step in the conduct of a motor vehicle tort lawsuit.

Subsection 627.7262(1) prohibits the joinder of insurers at the commencement of suit, as a general matter. It also requires the insurer, at the very outset of the litigation, to file a sworn statement setting forth detailed information concerning each insurance policy and any policy or coverage defenses which the insurer believes to be available. Subsection 627.7262(3) permits joinder of the insurer as a party if the sworn statement indicates that a defense has been or will be asserted. Then, subsection 627.7262(4) allows joinder in all cases following the rendition of a verdict or entry of a final judgment.

It is abundantly clear that, by enacting the law, the legislature has not altered the Shingleton policy of recognizing insurers as the real parties in interest in this type of litigation. This statute merely specifies the precise moment during the judicial proceeding when a motor vehicle liability insurer may be formally recognized as the real party in interest. That moment may be at any early point in the litigation, if policy or coverage defenses may be asserted, or at a later point, after the issue of liability has been resolved. The insurer is joinable in either case, which is consistent with Shin-gleton.

Examining the logic of this late joinder opportunity reinforces this conclusion. Plainly, the late formal entry of the insurer is not equatable with the initiation of a new lawsuit against the insurer. The object and the effect of subsection 627.7262(4) is precisely the opposite — to assure by the required filing of a statement and the early enunciation of potential defenses that the resources of the insurer will be available to pay the insured’s judgment liability without effecting a new service of process or establishing the insurer’s contract responsibility in a distinct judicial proceeding. Late join-der also accommodates the correlative benefit to the insurer of obtaining a judgment against the injured plaintiff if the trial exonerates the insured of responsibility. The legislature obviously sought to guarantee by a single trial either the collectibility of the plaintiff’s judgment or the discharge of both the insurer and the insured. Since judgments are generally enforceable (without additional or collateral proceedings) only against parties to a lawsuit, intra-liti-gation joinder was the only mechanism which would provide that guarantee. The timing of joinder during the course of a trial is, without question, a matter of practice or procedure assigned by the Constitution exclusively to this Court.

We hold that Section 627.7262, Florida Statutes (1977), is an invasion of this Court’s rulemaking authority, in violation of Article II, Section 3, of the Florida Constitution, and therefore invalid. The certified question in Markert v. Johnston is answered accordingly; the decision of the trial court in Ingram v. Rosner is reversed; and our writ of certiorari issued to the trial court in O’Quinn v. Thompson is granted, approving the decision of the trial court. These cases are remanded to the respective courts for further proceedings consistent with this opinion.

It is so ordered.

OVERTON, SUNDBERG and HATCH-ETT, JJ., and MELVIN, Associate Justice, concur.

ALDERMAN, J., concurs specially with an opinion.

ALDERMAN, Justice,

concurring specialty-

I agree with the rationale and holding of the majority opinion that Section 627.7262 is unconstitutional because by its enactment the legislature has impermissibly encroached on the judiciary’s procedural rule-making prerogative in violation of Article II, Section 3, Florida Constitution. The joinder or non-joinder of motor vehicle liability insurers in a lawsuit against the insured under Section 627.7262 is a procedural step in the conduct of the trial proceedings.

I believe, however, that the legislature by this statute has expressed the public policy of the state in reference to motor vehicle liability insurance companies. Whether or not a defendant has liability insurance coverage should in no way affect the outcome of a lawsuit. The jury’s determination should be unrelated to defendant’s insurance coverage just as it should be unrelated to the amount of his personal wealth. Because of the wisdom of this legislation and because it is a legislative expression of the public policy of this state, I would adopt the substance of Section 627.7262 as a rule of procedure. Cf. Carter v. Sparkman, 335 So.2d 802 (Fla.1976).

        .Markert v. Johnston, No. 52,591, comes to us by certified question from the Leon County Circuit Court, pursuant to 1962 Florida Appellate Rule 4.6. Ingram v. Rosner, No. 53,632, comes by direct appeal from an order of the Duval County Circuit Court upholding the constitutionality of the statute and dismissing Liberty Mutual Insurance Company, Rosner’s insurer, as a party defendant. O’Quinn v. Thompson, No. 52,577, comes by petition for certiorari, pursuant to Article V, Section 3(b)(3) of the Florida Constitution, to review an interlocutory order of the Duval County Circuit Court declaring the statute unconstitutional.

      . In addition to the briefs of the parties, amicus curiae briefs have been filed by the Academy of Florida Trial Lawyers, contesting the statute, and by the American Insurance Association, supporting the statute.

      . “The supreme court shall adopt rules for the practice and procedure in all courts . . .”

      . Article II, Section 3 of the Florida Constitution prevents the powers of one branch of government from being exercised by another.

      . Artille v. Davidson, 126 Fla. 219, 170 So. 707 (1936). The mention of insurers, as distinct from their joinder, has been treated as a procedural subject immune from legislative alteration. See Carter v. Sparkman, 335 So.2d 802 (Fla.1976). Contrast School Board of Broward County v. Price, 362 So.2d 1337 (Fla.1978).

      . One year later we expanded the right of direct action to include all liability insurance companies. Beta Eta House Corp. v. Gregory, 237 So.2d 163 (Fla.1970).

      . A second statute of similar import was enacted in 1977 as part of an insurance and tort reform statute. Ch. 77—468, § 39, Laws of Fla., creating § 768.045, Fla.Statutes (1977). That statute is not before us, and we make no determination of its validity. In State v. Lee, 356 So.2d 276 (Fla.1978), we did hold that this statute does not violate the “one subject” provision of the Florida Constitution (Art. Ill, § 6, Fla. Const.) and that it is not invalid simply because another of its provisions was unconstitutional. We declined, however, to rule on other constitutional aspects of this provision.

      . A recurring argument advanced by proponents of the statute is that the issue of joinder of insurers is simply a matter of public policy, the declaration of which is primarily a legislative function. It is asserted that only in the absence of a constitutional or statutory declaration may public policy be determined by the courts. The fallacy in that reasoning, of course, is that, as a matter of constitutional imperative, only the Supreme Court has the power to adopt rules of practice and procedure for Florida courts. The fact that our rules may reflect the prevailing public policy — whether by design or by coincidence — obviously does not enable the legislature to encroach on our rule-making authority. The separation of powers doctrine precludes that result. Art. II, § 3, Fla.Const.

      . Fla.R.Civ.P. 1.210. Advocates for this position note that the Court in Shingleton did not adopt a rule to accommodate the objective achieved, as was later done in Carter v. Sparkman, 335 So.2d 802 (Fla.1976). This suggests to them that Shingleton created a substantive right.

      . See In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla.1972) (Adkins, J., concurring), characterizing steps in the course of litigation as “procedural.”

      . Youngblood v. Taylor, 89 So.2d 503 (Fla.1956).


text:
    David Livingston FUNCHESS, Appellant, v. STATE of Florida, Appellee.
    No. 47828.
    Supreme Court of Florida.
    Feb. 8, 1979.
    Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee.
   ORDER

Pursuant to the dictates of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), this Court ordered the trial judge who imposed the death sentence to advise the Court whether he imposed the death sentence after consideration of any information not known to appellant. His initial response stated that no information undisclosed to appellant was considered. Upon order for clarification, however, the trial judge advised the Court that he had before him a confidential portion of the presentence investigation report on appellant. Appellant asserts, by affidavit, that he was not shown that report and requests relief pursuant to Gardner.

On consideration of appellant’s petition and the trial court’s responses to our Gardner order and our order for clarification, and pursuant to the decision of the United States Supreme Court in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), appellant’s sentence of death in this cause is vacated. The case is remanded to the trial court for resentencing, without the necessity of an advisory jury, but with directions to provide counsel for the state and the defendant an opportunity to explain, contradict, and argue regarding the relevance, materiality, and import of the confidential information, as well as other matters properly considered by the trial court concerning appellant’s sentence under section 921.141, Florida Statutes (1977).

It is so ordered.

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


author: ADKINS, Justice.

text:
    Walter BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 50119.
    Supreme Court of Florida.
    Feb. 8, 1979.
    Louis R. Bowen, Jr., Public Defender, and James M. Sowell, Jr., Asst. Public Defender, Orlando, for appellant.
    George Georgieff, Asst. Atty. Gen., Tallahassee, and Rom W. Powell, First Asst. State Atty., Orlando, for appellee.
   ADKINS, Justice.

This appeal is from a judgment of conviction rendered in the County Court of Orange County, Florida. Defendant was found guilty of violating the “open profanity” statute, Section 847.04, Florida Statutes (1975). By denying a Motion to Dismiss, the trial judge passed upon the constitutionality of the statute. Defendant’s appeal to the circuit court was properly transferred to this Court. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

This Court having recently held Section 847.04, Florida Statutes (1975) unconstitutional on its face reverses the judgment of the county court. See Brown v. State, 358 So.2d 16 (Fla.1978).

It is so ordered.

ENGLAND, C. J., and BOYD, OYER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: PER CURIAM. ALDERMAN, Judge,

text:
    Carmelo GONZALEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 51242.
    Supreme Court of Florida.
    Feb. 8, 1979.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, in Gonzalez v. State, 342 So.2d 557 (Fla. 3d DCA 1977), which is in direct conflict with our decision in Dorfman v. State, 351 So.2d 954 (Fla.1977), thereby vesting jurisdiction in this Court pursuant to article V, section 3(b)(3), Florida Constitution. The instant petition questions petitioner’s sentencing.

Petitioner was charged in a three-count information with robbery, carrying a concealed firearm, and unlawful possession of a firearm while engaged in a criminal offense. The jury convicted petitioner on all three counts, and the trial court imposed a single sentence of life imprisonment for the three convictions. Petitioner appealed to the District Court of Appeal, Third District, arguing error by the trial court in imposing a general sentence rather than separate sentences upon the three convictions. The District Court of Appeal, Third District, finding the petitioner’s contention to be without merit, affirmed the trial court’s imposition of a general sentence.

On review by this Court, petitioner argues that the general sentence he received for the three convictions is invalid as being contrary to our decision in Dorfman v. State and should be vacated. Petitioner further argues that this Court, if it vacates his sentence and remands to the trial court for resentencing, should direct that no sentence be imposed on the conviction for possession of a firearm during the commission of the robbery since that offense arose from the same transaction as his robbery conviction and that under the “single transaction” rule, which petitioner alleges was the controlling law in effect at the time of the commission of the offenses, sentence can be imposed only upon his robbery conviction as it is the more serious of the two offenses. In sum, petitioner argues that his general sentence is invalid pursuant to Dorfman, but that upon resentencing, he should receive only two sentences, one for his conviction of carrying a concealed firearm and one for his conviction of robbery.

First, we deal with petitioner’s argument that the trial court should only have imposed two sentences due to the applicability of the “single transaction” rule. In our recent decision in State v. Munford, 357 So.2d 706, 707 (Fla.1978), we discussed the “single transaction” rule, stating:

Prior to October 1, 1976, the law with regard to the sentencing of an individual upon his conviction of two or more criminal offenses arising out of the same transaction was accurately reflected by the decisions in Montgomery v. State, [332 So.2d 679 (Fla. 1st DCA 1976)], and Jackson v. State, [311 So.2d 811 (Fla. 1st DCA 1975)], which held that upon the conviction of two or more offenses arising out of the same transaction, an individual could only be sentenced for the higher of such offenses. Although Section 775.-021(4), Florida Statutes (Supp.1976), as of October 1, 1976, replaced the holdings of Montgomery v. State, supra, and Jackson v. State, supra, as the controlling law on the question sub judice, the statute was not in effect on November 3, 1975, and cannot be applied retroactively to the cross-petitioner’s detriment. Higginbotham v. State, 88 Fla. 26, 101 So. 233 (1924). Cross-petitioner was entitled to be sentenced pursuant to the law in ef-feet on November 3, 1975, which required a sentence consistent with the decisions in Montgomery v. State, supra, and Jackson v. State, supra.

In the instant case, petitioner having committed the crimes on May 24, 1975, State v. Munford requires that the “single transaction” rule be employed if applicable. The decisive question thus becomes whether the offense of possession of a firearm while engaged in a criminal offense arose from the same transaction as the robbery offense so as to mandate the application of the “single transaction” rule.

Count I of the information charged robbery and stated in pertinent part:

CARMELO GONZALEZ and DONNA DERICHO on the 24th day of May, 1975, in the County and State aforesaid, did unlawfully and feloniously by force, violence or assault or putting in fear, rob, steal and take away from the person or custody of BLASINO HERNANDEZ, and against his will certain monies or other property, to-wit [sic]: CASH .

Count III of the information charged possession of a firearm while engaged in a criminal offense and stated in pertinent part:

CARMELO GONZALEZ, on the 24th day of May, 1975, in the County and State aforesaid, did unlawfully and felo-niously display a certain firearm, to-wit [sic]: A PISTOL, while at said time and place the defendant was committing a felony, to-wit [sic]: ROBBERY .

A reasonable inference to be concluded from the two violations charged is that they were a part of the same transaction involving the robbery of Blasino Hernandez. Indeed, an examination of the record establishes that the pistol which forms the basis of count III was the force employed to accomplish the robbery charged in count I. In Cone v. State, 285 So.2d 12 (Fla.1973), we held that where a single information charges the offense of armed robbery and the offense of using a firearm during the commission of the robbery, upon conviction of both charges, only a sentence for the higher offense can be imposed because each offense was no more than a facet of the same transaction. Based on an examination of the record and on our previous decision in Cone v. State, we find that count I and count III of the instant information are each facets of the same transaction and that pursuant to State v. Munford petitioner is entitled to be sentenced in accordance with the law in effect on May 24, 1975, which requires a sentence consistent with the “single transaction” rule.

We now consider the issue upon which certiorari was granted for conflict. This Court in Dorfman v. State was called upon to determine the propriety of general sentences. The defendant was adjudicated guilty of nine counts of lewd and lascivious assault on a minor female without intent to commit rape and was committed to the state hospital as a mentally disordered sex offender. After his release from the hospital, the defendant was placed on probation, but his probation was subsequently revoked and he was given a general sentence of three years without apportionment of the term among the nine counts. In disapproving of the defendant’s general sentence, we opined:

It is virtually impossible to show that there has been any prejudice to Dorfman, particularly since he pled guilty to all nine counts. The evil of a general sentence, however, inheres in the uncertainty that its inscrutability creates, for if the trial judge had committed a reversible error as to any count for any reason, the entire sentence would have to be vacated. Then, on resentencing, a failure to reduce a new sentence for the affirmed conviction or convictions could raise complications comparable to those arising from the imposition of a more severe sentence when a defendant is convicted on retrial of the charges which underlay the reversed conviction. We conclude and now hold that general sentences are no longer proper and they may not be imposed by any trial court.

351 So.2d at 957 (emphasis supplied) (footnote omitted). Our decision in Dorfman is clear and unambiguous, and it explicitly prohibits the imposition of a general sentence on any criminal defendant. Although recognizing that our decision in Dorfman had not yet been announced when the District Court of Appeal, Third District, rendered its decision in the instant case, we nevertheless hold that it controls the instant question and requires that petitioner’s general sentence be vacated. Carroll v. State, 361 So.2d 144 (Fla.1978).

It remains for us to adopt a schedule for the application of Dorfman to pending appeals. The Dorfman rule rests on policy considerations rather than the fundamental rights of persons convicted, and we therefore decline to give it a blanket retroactive application. We hold that general sentences imposed before the rendition of Dorfman are subject to being vacated on appeal only in cases not yet final on appeal at the time of the Dorfman decision, and only where a challenge to the general sentence has been made and properly preserved as a question for appellate review.

Petitioner’s general sentence is vacated and the cause is remanded to the trial court for resentencing. On resentencing, petitioner can receive only two sentences, one for his conviction of carrying a concealed firearm and one for his conviction of robbery.

It is so ordered.

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

ALDERMAN, J., concurs in part and dissents in part with an opinion, with which ENGLAND, C. J., and HATCHETT, J., concur.

ALDERMAN, Judge,

concurring in part, dissenting in part.

I concur with the holding of the majority that Dorfman v. State should apply to this case in light of Carroll v. State, 361 So.2d 144 (Fla.1978), and with the schedule adopted by the majority for the application of Dorfman to pending appeals. I cannot, however, agree with the additional holding of the majority that armed robbery and using a firearm during commission of the robbery are facets of the same transaction for which only one sentence may be imposed.

Defendants were convicted of robbery (section 813.011, Florida Statutes (1973)) and unlawful possession and display of a firearm while engaged in a criminal offense (section 790.07, Florida Statutes (1973)). By enactment of sections 813.011 and 790.-07, it is clear that the legislature intended to create two separate offenses leading to two separate convictions and two separate sentences. Our holding in Cone v. State, 285 So.2d 12 (Fla.1973), is no longer viable in light of later decisions emanating from this Court on this subject, including Estevez v. State, 313 So.2d 692 (Fla.1975). I would expressly recede from Cone and allow on remand the imposition of separate sentences for these two separate offenses.

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


text:
    FLORIDA POWER CORPORATION, Petitioner, v. Paula F. HAWKINS, William T. Mayo, and William H. Bevis, as and constituting the Florida Public Service Commission, Respondents.
    No. 52356.
    Supreme Court of Florida.
    Feb. 8, 1979.

      Sylvia H. Walbolt, J. B. Walker, Robert W. Pass, Tampa, Woodie A. Liles of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, and Stanley A. Brandimore and Richard W. Neiser, Florida Power Corp., St. Petersburg, for petitioner.
    Prentice P. Pruitt, Legal Director, and Joseph A. McGlothlin, Staff Counsel, of the Public Service Commission, Tallahassee, for respondents.
    Larry Levy, Public Counsel, Tallahassee, for Citizens of State of Fla., intervenors.
   ADKINS, Justice.

This cause is before the Court on Petition for a Writ of Certiorari to review an Order of the Public Service Commission (Commission) revoking certain interim rate increases which had been awarded to Florida Power Corporation (Florida Power). We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution; Section 366.10 Florida Statutes (1977).

Before beginning operation of its nuclear power plant at Crystal River (Crystal River Unit # 3; CR# 3), Florida Power presented the Commission with suggested rate adjustments. By its Order No. 7644 the Commission modified the fuel adjustment clause to pass on to the consumers the nuclear fuel savings. Florida Power sought review in this Court alleging the Commission had failed to take into account Florida Power’s fixed costs of ownership or investment in CR# 3. On March 29, 1977, we issued a sixty-day stay to allow Florida Power “adequate time to prepare and present to the Commission a request for appropriate rate relief, and the Commission will have the statutory 30-day period established in Section 366.06(4) Florida Statutes (1975) within which to determine whether the Company has made an adequate showing of need.” Florida Power Corp. v. Hawkins, 346 So.2d 1248 (Fla.1977).

Florida Power filed rate schedules designed to generate $62,325,262 on April 6, 1977. On April 28, 1977, the Commission suspended those schedules but consented to rates which would yield $60,767,961 “on an interim basis subject to refund pending final order.” Fla.P.S.C. Order No. 7791.

Although CR# 3 went on line in May 1977, there were difficulties during that summer which caused it to operate at a lower capacity than expected. On September 1, 1977, without notice or a hearing, the Commission revoked the interim rate increase, effective immediately. This action was reduced to writing on September 9, 1977, as Order No. 7957. It is this Order No. 7957 which is the subject of review.

Florida Power contends the Commission’s action revoking the rate increase without notice or hearing contravened Chapter 366, Florida Statutes, (1975), and procedural due process. We agree.

The general statutory scheme for making and adjusting rates embraces the traditional requirements of procedural due process, i. e. notice and a hearing. Sections 366.06(3); 366.07, Florida Statutes (1975). Within this framework is the so-called “File and Suspend Law”, Section 366.06(4), Florida Statutes (1975):

Pending a final order by the commission in any rate proceeding under this section, the commission may withhold consent to the operation of all or any portion of the new rate schedules, delivering to the utility requesting such increase, within (30) days, a reason or written statement of good cause for withholding its consent. Such consent shall not be withheld for a period longer than (8) months from the date of filing the new schedules. The new rates or any portion not consented to shall go into effect under bond at the end of such period, but the commission shall, by order, require such utility to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid, and upon completion of hearing and final decision in such proceeding shall by further order require such utility to refund with interest at a fair rate, to be determined by the commission in such manner as it may direct, such portion of the increased rate or charge as by its decision shall be found not justified.

This provision was enacted to protect utilities from the “regulatory lag” associated with full-blown rate proceedings. In Citizens of Florida v. Mayo, 333 So.2d 1 (Fla.1976), this Court analyzed the “File and Suspend Law” and the legislative intent underlying its enactment. It is clear the statute was designed to provide accelerated rate relief without sacrificing the protections inherent in the overall regulatory scheme.

In the case sub judice Florida Power filed its proposed rates and within thirty days the Commission entered its Order No. 7791 pursuant to Section 366.04(4), Florida Statutes (1975). The Commission was neither completely satisfied nor totally dissatisfied with the preliminary showing of need. Recognizing its dilemma, the Commission properly chose to exercise an alternative between the range of total consent and suspension. The proposed rates were suspended, but consent was given to interim rates subject to refund. This authorization was based upon an express finding of need for immediate rate relief. The Commission avowedly acted pursuant to Section 366.-06(4) Florida Statutes (1975) under facts which fit squarely within the situation contemplated by the statute’s enactment. At this juncture, the “File and Suspend Law” was operating smoothly for all concerned. The utility and the public had a right to rely on the continued operation of the statute and the language of Order No. 7791 to the effect that the authorized rates would be in force pending final hearing. Instead, the Commission unilaterally revoked the interim rates on September 1, 1977. Fla.P. S.C. Order No. 7957.

The Commission asserts the revocation was justified because the factual premise upon which the interim rates were authorized failed to materialize. It reached this conclusion by taking official notice of technical data from monthly reports and orders kept in the Commission’s official records.

The Commission cannot consent to an interim rate increase pursuant to Section 366.06(4) Florida Statutes (1975) then unilaterally re-evaluate the situation and deprive the utility of the very benefit the “File and Suspend Law” was designed to confer.

The statute expressly empowers the Commission to withhold consent to rate schedules within thirty days of filing, or consent to rate relief at any time after filing. There is no necessity to imply a power to revoke a prior consent, either to exercise the express powers or protect the public interest. These rates were specifically authorized “subject to refund ... to require further and more detailed audit and scrutiny to verify the accuracy of the underlying data and of the calculations, and to provide the public and other interested parties the opportunity to be heard. . [T]he public will be fully protected by the refund provision . . . ” Order No. 7791. Indeed, the File and Suspend Law itself restricts the Commission’s action and imposes time and bond requirements to protect the public. Citizens of Florida v. Mayo, 316 So.2d 262, 264 (Fla.1975).

If the Commission had taken no action, the rates would have become effective the thirty first day. Citizens of Florida v. Mayo, 333 So.2d at 5 n. 9 (Fla.1976). This result would be meaningless if the Commission could suspend on the thirty-second day. See Florida Interconnect Telephone Co. v. Florida Public Service Commission, 342 So.2d 811 (Fla.1976).

Public Counsel, Intervenor, argues the thirty-day limit is applicable only to the requirement the Commission give the utility a reason or good cause for withholding consent. Under this construction the Commission could withhold consent at any time during the eight months allotted in Section 366.06(4) Florida Statutes (1975). Such a construction is expressly rejected. Public Counsel’s argument that Florida Power has no constitutional right of due process in the benefits flowing from Section 366.06(4) Florida Statutes (1975) is without merit. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Keystone Water Company, Inc. v. Bevis, 278 So.2d 606 (Fla.1973).

Order No. 7957, which revoked the interim rate increase authorized by Order No. 7791, is hereby quashed.

It is so ordered.

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

BOYD, J., dissents.


author: OVERTON, Justice.

text:
    Peter S. HOTOPH and Norman Bruce Meyer, Appellants, v. STATE of Florida, Appellee.
    No. 53312.
    Supreme Court of Florida.
    Feb. 8, 1979.
    W. Hugh Cotney, Jacksonville, for appellants.
    Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   OVERTON, Justice.

This is an appeal from a county court judgment expressly upholding the constitutionality of a special law prohibiting net or seine fishing in certain parts of St. Johns County. We have jurisdiction.

We reverse and hold the law unconstitutionally vague for failure to specifically identify the prohibited fishing areas.

The relevant facts in the record reflect that appellants were charged by count one of the information with fishing or causing to be fished a net or seine within one mile of Matanzas Inlet in violation of section 4 of chapter 31233, Laws of Florida (1955). By count two of the information, appellants were charged with fishing or causing to be fished a net or seine more than 1100 feet in length within one-fourth mile of the shoreline within St. Johns County in violation of section 5 of chapter 31233, Laws of Florida (1955). A jury convicted the appellants of the first count of the information but acquitted them of the second. The defendants were each sentenced to serve thirty days in the St. Johns County jail and to pay a fine of $350. Prior to trial, the appellants had filed a motion to dismiss the information because section 4 of the act was unconstitutionally vague. The trial judge expressly denied this motion.

Section 4 of chapter 31233, Laws of Florida (1955), provides as follows:

It shall be unlawful for any person, firm or corporation to fish, or cause to be fished, any type of net or seine except common cast net within one mile measuring north or south of any inlet within the boundaries of St. Johns County.

A plain reading of this section requires us to agree with appellants’ challenge to this law. In our view, the average person simply cannot readily identify the boundaries of the protected area. Unlike other sections of chapter 31233, section 4 fails to delineate an eastern boundary. For example, section 5 proscribes certain activities “within one-quarter (Vi) mile of the shore line of St. Johns County.” Section 7 prohibits other activity “within one-half mile of the eastern shore line of St. Johns County.” The definitional problem is further compounded by section 1 of the act, which describes the terms “inside salt waters” and “outside salt waters.” Section 4 makes no reference to either of these definitions. Fishermen cannot be required to guess at the location of protected fishing areas. We therefore hold section 4 of chapter 31233 to be unconstitutionally vague. The other sections of the act were not in issue in these proceedings and are not affected by this decision.

The convictions of appellants are reversed, and their sentences are vacated.

It is so ordered.

ENGLAND, C. J., and ADKINS, SUND-BERG, HATCHETT and ALDERMAN, JJ., concur.

BOYD, J., dissents.

      . Art. V, § 3(b)(1), Fla.Const.


author: SUNDBERG, Justice.

text:
    Ollie R. WILLIAMSON, Petitioner, v. Veva C. WILLIAMSON, Respondent.
    No. 53413.
    Supreme Court of Florida.
    Feb. 8, 1979.

      Dedee S. Costello, Panama City, for petitioner.
    Robert B. Staats, Panama City, for respondent.
   SUNDBERG, Justice.

This cause is before us on a petition for writ of certiorari to review a decision of the District Court of Appeal, First District, reported at 353 So.2d 880, which is alleged to be in conflict with the decisions of the District Court of Appeal, Third District, in Claughton v. Claughton, 344 So.2d 944 (Fla. 3d DCA 1977), and Escobar v. Escobar, 300 So.2d 702 (Fla. 3d DCA 1974). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Petitioner, Ollie R. Williamson, filed for dissolution of his marriage to respondent, Veva C. Williamson, in the Circuit Court for Bay County, Florida, in January, 1976. The couple had been living apart since 1973. The trial court granted a dissolution on September 15, 1976, and after a supplemental final hearing on December 22, 1976, awarded to respondent $10,000 lump sum alimony and $100 per month permanent periodic alimony. At the time of the judgment of dissolution, petitioner possessed $16,000 in cash and bonds accumulated during the marriage and had an income of $354.77 per month from a disability pension. Respondent had only $155 in cash, no income, and required in excess of $400 per month for necessary expenses. In addition, the parties jointly owned a home in Bay County appraised at $36,000 and a home in Jackson, South Carolina. By stipulation, they agreed to sell the Florida home and divide the proceeds equally, and petitioner agreed to purchase for $4,500 his wife’s interest in the South Carolina property. Both parties are afflicted with permanent physical disabilities which prevent them from holding full-time gainful employment.

In addition to the foregoing factors, the trial court partially based its alimony award on a finding that petitioner was responsible for his wife’s strained economic condition because he abandoned her in 1973, taking with him a considerable portion of the family savings, and because he refused to attempt a reconciliation although respondent remained willing to do so. On this basis, the court concluded that, as a matter of equity, petitioner should bear the heaviest portion of the economic burden placed on both parties by the judgment of dissolution. On appeal, petitioner challenged the alimony award on the ground that the trial judge improperly considered evidence of his alleged marital misconduct in determining a proper alimony award. The district court rejected petitioner’s argument by stating:

[T]he relative fault of the parties is an equitable circumstance and a factor concerning which evidence should be admitted, if offered, and which, together with the other circumstances revealed by the evidence, should be considered by the trial court in determining whether or not to award alimony, and if so the amount thereof.

353 So.2d at 883.

Petitioner asserts, based on the decisions of the District Court of Appeal, Third District, in Escobar and Claughton, that the correct rule of law with respect to awarding alimony is that evidence of marital misconduct should never be considered except in cases of gross misconduct such as adultery or habitual intemperance toward one’s spouse, and that no evidence of marital misconduct by the spouse not seeking alimony should ever be considered except in mitigation or defense of the conduct of the spouse seeking alimony. Although we agree that Escobar and Claughton state the proper rule of law with respect to evidence of alleged adultery, we cannot give these cases the expansive reading petitioner suggests.

In Escobar, the District Court of Appeal, Third District, affirmed a trial court’s ruling refusing to hear testimony about the husband’s alleged adultery from a wife seeking alimony. The district court’s decision was based on section 61.08(1), Florida Statutes (1973), which, in pertinent part, provided:

The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony, if any, to be awarded to such spouse. [Emphasis supplied.]

The district court concluded that this statute permits a trial court to refuse to consider evidence of the adultery of a spouse not seeking alimony when such evidence is offered solely for the purpose of obtaining or increasing an alimony award to the spouse seeking alimony.

In Claughton, the same district court upheld a trial court’s order requiring a husband to answer questions from his wife about his alleged adulterous activities. In that case, however, the husband had previously charged the wife with adultery in an attempt to defeat her request for alimony. The district court held that, under such circumstances, section 61.08(2), Florida Statutes (1975), which permits a trial judge to “consider any factor necessary to do equity and justice between the parties” in determining a proper alimony award, requires that a spouse seeking alimony be allowed to offer evidence of the adultery of the spouse not seeking alimony in defense or mitigation of his or her own alleged adulterous conduct.

We agree with the analysis of the District Court of Appeal, Third District. The legislature has expressly provided in section 61.08(1), Florida Statutes (1975), that a trial court may consider evidence of adultery in determining a proper award of alimony. This section permits, but does not require, a trial judge to consider evidence of adulterous activities by a spouse seeking alimony as a mitigating defense to an award of alimony and the amount thereof. Likewise, we concur that section 61.08(2) requires, as a matter of equity, that a trial judge who does consider evidence of adulterous activity by a spouse seeking alimony must also consider evidence of adulterous conduct by the spouse not seeking alimony in mitigation or defense of the conduct of the spouse seeking alimony. A proceeding for dissolution of marriage is an equitable proceeding. A spouse who invokes the jurisdiction of a court of equity to resolve his or her marital difficulties must submit to the equitable doctrines that he who seeks equity must stand before the court with “clean hands” and “he who seeks equity must do equity.” Blanton v. Blanton, 154 Fla. 750, 18 So.2d 902 (1944); Engebretsen v. Engebretsen, 151 Fla. 372, 11 So.2d 322 (1942). Therefore, it would be manifestly unfair for one spouse to be allowed to defend against an alimony claim by charging the other spouse with adultery when the spouse not seeking alimony may be equally guilty of the same misconduct.

Although we construe section 61.08, Florida Statutes (1975), to permit, and in some instances require, the consideration of evidence of adulterous conduct in a proceeding to determine a proper alimony award, it must be remembered that the primary standards to be used in determining a proper alimony award are the demonstrated need of the spouse seeking alimony and the demonstrated ability of the other spouse to pay. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Firestone v. Firestone, 263 So.2d 223 (Fla. 1972). We do not suggest that these factors may in any way be ignored. As we previously pointed out in Vilas v. Vilas, 153 Fla. 102, 13 So.2d 807 (1943), alimony is not a weapon to be used solely to punish an errant spouse. We also adopt the admonition of the District Court of Appeal, Third District, in Claughton, that:

In no way should our decision today be read as lending support to any unbridled discovery into the sullied areas of adulterous activities. It is our hope that the learned chancellor would caution against “ ‘an unlimited foray into the details’ of the alleged adultery” and “restrict the inquiry ‘within reasonable bounds’ ”. It is enough that the chancellor “ ‘simply get a broad picture and understanding of the relative equities and factors necessary to do justice.’ ” Our primary concern is of course the effect a detailed probe into the private lives of the parties might have on the innocent children involved, not to mention the disruptive effect such an inquiry might have upon the married lives of third persons involved in the illicit conduct and their children. We would only hope then, that the chancellor would make the necessary safeguards to protect the above mentioned individuals from any unnecessary embarrassment, ridicule or scorn.

344 So.2d at 947 (citations omitted).

Although we conclude that a trial court should consider evidence of adultery only within the limits expressed herein, in the instant case we cannot agree with petitioner’s assertion that in determining a proper alimony award a trial judge must always be limited to consideration of only instances of extreme misconduct such as adultery. Nor can we agree, as a rule of universal application, that the conduct of the spouse not seeking alimony may be considered only in mitigation or defense of the conduct of the spouse seeking alimony. On the facts of the instant case we concur with the actions of the trial judge. Neither adultery nor any other extreme misconduct was charged. Here the trial court simply was faced, as it too frequently is in dissolution proceedings, with the extremely difficult task of providing for the welfare of both parties in a situation where there is not enough property or income to permit either party to live alone comfortably. The evidence shows that neither party was able to work for a living, nor is it likely either will ever be able to do so again. At the time of the dissolution, petitioner had only $16,000 in savings and only $354.77 per month in income, while respondent had no savings or income. Obviously, the trial judge could not divide these funds so that either party could ever again live comfortably, even considering the division of real property which the parties agreed upon. It is difficult to imagine a more desperate economic situation for two permanently disabled, middle-aged persons. Under such circumstances, we conclude that it is entirely proper, as a matter of equity, to base an alimony award partially on a finding that one spouse is more responsible than the other for the difficult economic circumstances facing both parties. This is not an assessment of fault but rather of economic reality.

Nonetheless, we cannot agree with the standard set forth by the District Court of Appeal, First District, in its opinion in this case. We unequivocally disapprove any suggestion that it is always proper for a trial court to consider the “relative fault” of both parties in determining a proper alimony award. To permit such a standard would be directly contrary to the spirit and intent of our system of no-fault dissolution. The legislature has expressly declared that the purpose of our no-fault system is “[t]o promote the amicable settlement” of marital disputes and “[t]o mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.” § 61.001, Fla. Stat. (1975) (emphasis supplied).

For a trial court to perform routinely a balancing act with testimony of alleged marital misconduct of the parties would be a step backward to the days of threats and insinuations which plagued our courts before our no-fault system was enacted and would be directly contrary to express legislative policy. Therefore, we hold that section 61.08(2), Florida Statutes (1975), which permits a trial court to consider “any factor to do equity and justice between the parties,” does not permit a court to conduct an inquiry into every aspect of the marital conduct of the parties as a matter of course. Whether such an inquiry is proper will depend upon the circumstances of each case. Today we hold only that where an analysis of the need of one spouse and the ability of the other to pay demonstrates that both parties will suffer economic hardship as a result of any division of available resources the court might make, the court may then consider, as an equitable circumstance under section 61.08(2), Florida Statutes (1975), any conduct of either party which may have caused the difficult economic situation in which they stand before the court.

Accordingly, the writ of certiorari heretofore issued is discharged, but the decision of the District Court of Appeal, First District, is approved only insofar as it accords with the views expressed in this opinion.

It is so ordered.

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

HATCHETT, J., dissents.


author: PER CURIAM.

text:
    Fred G. COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 53438.
    Supreme Court of Florida.
    Feb. 8, 1979.
    Judith J. Dougherty, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and George R. Georgieff and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

No substantial constitutional question has been raised as to the constitutionality of section 856.04, Florida Statutes (1977); accordingly, this case is transferred to the First District Court of Appeal.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, HATCHETT and ALDERMAN, JJ., concur.

ADKINS and SUNDBERG, JJ., dissent.


author: SUNDBERG, Judge.

text:
    Robert G. WILCOX, Petitioner, v. STATE of Florida, Respondent.
    No. 53907.
    Supreme Court of Florida.
    Feb. 8, 1979.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., Miami, for respondent.
   SUNDBERG, Judge.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, reported at 356 So.2d 887, which is alleged to be in conflict with Cumbie v. State, 345 So.2d 1061 (Fla.1977), and Richardson v. State, 246 So.2d 771 (Fla.1971). The issue is whether a trial court must conduct a full inquiry into the circumstances surrounding the state’s discovery violation of Florida Rule of Criminal Procedure 3.220{a)(l)(iii), when the evidence which was the subject of request for discovery has already been revealed in testimony before the jury. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Petitioner was convicted of grand larceny, armed burglary, and resisting arrest with violence. The trial judge withheld adjudication of guilt on the grand larceny and resisting arrest convictions but adjudged petitioner guilty of burglary and sentenced him to fifteen years’ imprisonment.

Prior to trial the defense requested discovery, pursuant to Florida Rule of Criminal Procedure 3.220(a)(l)(iii), of any oral statements made by petitioner which were known to the prosecution. The state responded that it was unaware of any oral statements. At trial, however, the state elicited the following testimony from an arresting officer:

Q. Did you have an occasion to actually come in contact and meet Robert Wilcox to effectuate the arrest?
A. Yes, I did.
Q. Where was that?
A. In his house.
Q. Okay. Did you tell Mr. Wilcox he was under arrest?
A. Yes, we did.
Q. Did he go with you?
A. Not willingly at first.
Q. What happened?
A. We advised him he would have to go down to the station. He said that in various words, I believe his exact words were, “Quit . . . with me, I’m not going to jail again. I’m not going to jail again.”

Defense counsel immediately moved for a mistrial due to the prejudicial nature of the testimony and the fact that the state’s response to discovery indicated no statements by petitioner. The trial judge denied the motion but instructed the jury to disregard the officer’s statement.

The District Court of Appeal, Third District, affirmed the convictions and held that the trial court did not commit reversible error by failing to conduct an inquiry into the circumstances of the state’s failure to comply with the discovery rule. They distinguished Cumbie v. State and Richardson v. State by noting that the evidence here, to the extent that it was prejudicial, had already been brought out in testimony before the jury. In contrast, the question in Cum-bie and Richardson was whether the court, after being informed of noncompliance with the discovery rules but prior to the introduction of the disputed testimony, was required to make an inquiry into whether the violation was sufficiently prejudicial to preclude introduction of the testimony.

Petitioner contends that the trial judge committed reversible error in failing to conduct a Richardson inquiry into the circumstances surrounding the state’s discovery violation. Respondent argues that petitioner failed to pursue his objection to the testimony of the arresting officer, thereby waiving it. Furthermore, the state urges that even assuming a proper objection, no prejudice resulted because the trial court instructed the jury to disregard the statement. For the following reasons, we agree with petitioner’s contention.

Florida Rule of Criminal Procedure 3.220(a)(l)(iii) provides:

(a) Prosecutor’s Obligation.

(1) After the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel and permit him to inspect, copy, test and photograph, the following information and material within the State’s possession or control:
(iii) Any written or recorded statement and the substance of any oral statements made by the accused and known to the prosecutor, together with the name and address of each witness to the statement.

The trial court has discretion to determine whether noncompliance with rule 3.220 results in harm or prejudice to a defendant, but that discretion can be properly exercised only after the court has made an adequate inquiry into all the surrounding circumstances. Cumbie v. State; Richardson v. State. The inquiry should ascertain at the least whether the state’s violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what effect, if any, it had upon the defendant’s ability to prepare for trial. Richardson, 246 So.2d at 775.

It is readily apparent that the trial court did not adhere to the mandate of Cumbie and Richardson in this case. The court did not require the state to explain the reason for its discovery violation, nor was the defense given the opportunity to show prejudice. Indeed, the trial judge had no evidence on which to rely in making the difficult determination whether the violation had prejudiced the defendant and which, if any, discovery sanction was warranted. The Richardson inquiry was designed to avoid the problems inherent in this prototypical situation.

Respondent misapprehends the nature of the prejudice Cumbie and Richardson seek to remedy. The purpose of a Richardson inquiry is to ferret out procedural, rather than substantive, prejudice. In deciding whether this type of prejudice exists in a given case, a trial judge must be cognizant of two separate but interrelated aspects. First, the judge must decide whether the discovery violation prevented the defendant from properly preparing for trial. In this case, had petitioner known what the officer was going to say, he might have successfully excluded the testimony before trial. At the very least, advance knowledge would have given petitioner time to gather rebuttal evidence. On the other hand, close scrutiny might have revealed that the statement had no bearing on petitioner’s defense. Without a Richardson inquiry, the trial court was in no position to make an accurate judgment as to these possibilities.

The second aspect of procedural prejudice deals with the proper sanction to invoke for a discovery violation. Subsections (j)(l) and (2) of Florida Rule of Criminal Procedure 3.220 authorize the imposition of a broad spectrum of sanctions, ranging from an order to comply, to exclusion of evidence, or even a mistrial. Once it has been ascertained whether the discovery violation hindered the defendant in his preparation for trial, the court must consider the nature of the violation in fixing upon a just sanction. Prejudice may be averted through the simple expedient of a recess to permit the questioning or deposition of witnesses having knowledge of the statement. Absent a Richardson inquiry, the court is left to speculate as to the proper course to pursue.

As noted previously, the record before us fails to shed light on any of the circumstances surrounding the state’s discovery violation. This Court made it clear in Cum-bie that the trial court’s investigation into the question of prejudice should be on the record so as to facilitate meaningful appellate review:

It is clear that the trial court’s investigation of the question of prejudice was not the full inquiry Richardson requires. . A review of the cold record is not an adequate substitute for a trial judge’s determined inquiry into all aspects of the state’s breach of the rules, as Richardson indicates. Especially is this so in cases such as this, where a false response is given to a request for discovery.

345 So.2d at 1062 (footnote omitted).

Respondent incorrectly asserts that because the trial judge instructed the jury to disregard the testimony it was, in fact, excluded from evidence, a sanction approved by the rule. Rather than a mere cautionary instruction to ameliorate the adverse impact of the testimony, the rule contemplates that the material not disclosed to the defense shall not be introduced in evidence.

Thus we find that the court below committed reversible error entitling petitioner to a new trial. Respondent would have us remand the cause to the trial court solely for the purpose of conducting a Richardson inquiry. Such a procedure, however, would not be sufficient in this instance. It would be difficult at best for a trial judge to determine the thorny question of prejudice in an isolated hearing without the possibility of being subconsciously affected by a jury’s prior judgment of guilt. In view of the problems inherent in this situation, we deem it expedient to grant petitioner a new trial.

Accordingly, the writ of certiorari is granted, the decision of the District Court of Appeal, Third District, is quashed, and this cause is remanded to the district court with instructions to remand to the Circuit Court of Dade County for proceedings not inconsistent with this opinion.

It is so ordered

ENGLAND, C. J., and ADKINS, OVER-TON and HATCHETT, JJ., concur.

BOYD and ALDERMAN, JJ., dissent.

      . Respondent’s first point can be disposed of summarily. The following colloquy, conducted immediately after the disputed testimony was elicited, makes it clear that defense counsel objected timely and apprised the court of a possible discovery violation:
      MR. FLYNN [DEFENSE COUNSEL]: Objection. Ask for a sidebar.
      THE COURT: Let’s excuse the jury for a minute.
      MR. FLYNN [DEFENSE COUNSEL]: May the witness, likewise, be excused for argument?
      THE COURT: Sure.
      [Thereupon, the jury retired from the courtroom and the following proceedings were had.]
      MR. FLYNN [DEFENSE COUNSEL]: Your Honor, at this point, I would move for a mistrial based on the statements of the officer concerning what the defendant said. I have before me the State’s response for discovery, it indicates there are no statements of the defendant. We now have, contrary to the State’s discovery, a statement before the jury which is number one, of extremely questionable relevance; number two, reflects that the defendant, a juvenile, has been in jail on prior occasions, and accordingly has been arrested in the past and possibly even convicted of crimes in the past. There was no need for this testimony. It’s irrelevant. [Emphasis added.]

      . (j) Sanctions.
      (1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.
      (2) Willful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, may subject counsel to appropriate sanctions by the court.

      . It should not be forgotten that the discovery sanctions are designed in part to deter willful discovery violations. See Fla.R.Crim.P. 3.2200')(2).

      . See Land v. State, 293 So.2d 704 (Fla.1974). By this statement we do not mean to disparage the integrity of the trial judges of this state. Rather, we think that a comprehensive investigation into the type of prejudice involved here would be next to impossible in an isolated proceeding.


text:
    Bernardina ARNOLD, Appellant, v. DUVAL COUNTY SCHOOL BOARD, Appellee.
    No. JJ-107.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1978.
    Rehearing Denied Feb. 20, 1979.
    William H. Maness, Jacksonville, for appellant.
    Donald R. Hazouri, Jacksonville, for ap-pellee.
   PER CURIAM.

Because of confusion resulting from multiple litigation between the parties hereto this court, on September 1, 1978, entered a lengthy explanatory order relinquishing jurisdiction to the trial court for a period of thirty days and providing that upon the revesting of jurisdiction in this court following such relinquishment to the trial court appellant would have fifteen days within which to file such further brief as she may desire and appellee would have fifteen days from date of receipt of a copy of any brief from appellant within which to respond thereto. Seventy-three days has now elapsed since the entry of said order, jurisdiction has revested in this court and no further briefs have been filed by the parties or either of them. We accordingly now consider this interlocutory appeal from an order of the trial judge dated January 31, 1978. Finding no abuse of discretion nor error of law the order here interlocuto-rily appealed is

AFFIRMED.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Since entry of the foregoing per curiam opinion appellant has filed a motion for rehearing calling to our attention that we erred in reciting in the foregoing opinion that “Seventy-three days has now elapsed since the entry of said order, jurisdiction has revested in this court and no further briefs have been filed by the parties or either of them.” Indeed we find that appellant did timely file the brief allowed by our order of September 1,1978. Accordingly, the above quoted words are hereby stricken from our foregoing per curiam opinion filed November 22, 1978.

We have now reconsidered our foregoing opinion in the light of appellant’s motion for rehearing and the brief which appellant had timely filed, as aforesaid. We find nothing therein however, to change our pri- or finding of no abuse of discretion nor error of law on the part of the learned trial judge as to the order here interlocutorily appealed. Appellant’s motion for rehearing is therefore denied.

MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur.


author: PER CURIAM. McCORD, Chief Judge,

text:
    Johnny C. RHYMES, Appellant, v. STATE of Florida, Appellee.
    No. JJ-324.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.
    Michael J. Minerva, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER and MILLS, JJ., concur.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

I dissent. See McDole v. State, 283 So.2d 553 (Fla.1973); Land v. State, 293 So.2d 704 (Fla.1974), and Greene v. State, 351 So.2d 941 (Fla.1977).


text:
    ORKIN EXTERMINATING COMPANY, INC., a Foreign Corporation, Appellant, v. Alice CULPEPPER, Appellee.
    No. 77-1961.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied March 16, 1979.
    Walton, Lantaff, Schroeder & Carson and N. James Turner, Miami, for appellant.
    Errol S. Cornell, Coral Gables and Edward Almeyda, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.
   PER CURIAM.

Appellant/defendant appeals the following final judgment rendered in favor of ap'pellee/plaintiff:

“This action was tried before the Court on July 13, 1977. The Plaintiff was present and represented by counsel, and the Defendant Corporation was present and represented by counsel. Upon the evidence adduced and exhibits admitted I find as follows:
“1. That the Court has jurisdiction over the subject matter and over the person of the Defendant.
“2. That on February 19, 1975 the Plaintiff and the Defendant entered into a Fumigation Agreement Contract whereby the Defendant would fumigate the Plaintiff’s residence located at 1991 N.W. 81st Terrace, in Miami, Florida.
“3. That on or about August 5, 1975 the Plaintiff relinquished control over her property to the Defendants at which time the Defendants placed a tent over the Plaintiff’s property and inserted a lethal gas into the tent.
“4. That during the time that the tent was placed over the Plaintiff’s home the Plaintiff was unable to go inside her home.
“5. That prior to the tenting the Defendants gave the Plaintiff a written set of instructions with which the Plaintiff complied and which required her to either unlock all exterior doors or to make the keys available.
“6. That while the Plaintiff’s home was covered by the Defendant’s tent this home was broken into by persons unknown and certain items of property belonging to the Plaintiff were taken.
“7. That the fair market value of this property was $450.00.
“8. That prior to the tenting of the Plaintiff’s home by the Defendants, other homes which have been tented by the Defendants have been broken into by persons unknown.
“9. That the Defendants failed to warn the Plaintiff of these other breaking-in incidents prior to the tenting of her home on August 6, 1975.
“10. That the Defendants were negligent in failing to provide adequate security for the Plaintiff’s home while it was being tented and in failure to warn her of the previous incidents involved in break-ins.
“ORDERED AND ADJUDGED that final judgment is hereby entered in favor of the Plaintiff, Alice Culpepper, and against the Defendant, Orkin Exterminating Company, Inc., and that the Plaintiff, Alice Culpepper, recover from the Defendant, Orkin Exterminating Company, Inc., the sum of $450.00; and it is further
“ORDERED AND ADJUDGED that the Plaintiff, Alice Culpepper shall have and recover her costs from the Defendant, Orkin Exterminating Company, Inc., to be hereinafter taxed on Motion and Notice at a later date.
“DONE AND ORDERED in Chambers at Miami, Dade County, Florida this 19th day of August, 1977.”

Needless to say, the above final judgment arrives in this court clothed with a presumption of correctness, with the burden upon appellant to make error clearly appear. Federated Department Stores, Inc. v. Planes, 305 So.2d 248 (Fla. 3d DCA 1974). While appellant persuasively argues that the relationship of bailee-bailor was not created by the contracting parties, we note that appellee’s complaint travelled upon an alternate cause of action based upon negligence. It was this alternate theory that the trial judge relied upon in rendering the final judgment set forth above.

In addressing itself to appellant’s negligence cause of action, appellee contends that the criminal act of a third party (thief) is an intervening and/or superseding cause, absolving it of any liability in a negligence action. In addressing itself to this same point, our Supreme Court, in Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977), opined that the factual question of foreseeability would control the issue of whether a criminal act amounts to an intervening cause, insulating a negligent party from liability. In paragraph nine of the above judgment, the trier of fact, in this case, the learned trial judge, impliedly found that, based upon knowledge of prior burglaries of the kind suffered by appellee, such an incident should have been foreseeable to appellant. Accordingly, it was not erroneous for the judge to conclude that appellant was negligent in both failing to warn appellee of previous break-ins and/or providing for adequate security.

All points raised by appellant having been considered by this court and, no error having been clearly shown, the final judgment is therefore affirmed.

Affirmed.


text:
    Daniel Esteve QUINTANA, Appellant, v. The STATE of Florida, Appellee.
    No. 78-376.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied March 16, 1979.
    Pollack, Spain & O’Donnell, John H. Li-pinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The defendant was found guilty by a jury of manslaughter. On this appeal, it is urged that the court erred in finding the evidence sufficient to prove defendant’s guilt beyond a reasonable doubt. An examination of the record shows this ground not to be well taken. See Taylor v. State, 139 Fla. 542, 190 So. 691 (1939).

The second point claims error upon the denial of defendant’s motion for mistrial upon a claim that evidence of a collateral crime was not relevant to the questions in issue. See Williams v. State, 110 So.2d 654 (Fla.1959). The evidence presented was clearly relevant to prove recklessness under Section 782.07, Florida Statutes (1977). See Jackson v. State, 100 So.2d 839 (Fla. 1st DCA 1958), and Fowlkes v. State, 100 So.2d 826 (Fla.3d DCA 1957).

The third and fourth points claim error upon the jury instruction. The record shows that no objection was made at the trial to this instruction. We, therefore, find no error. See Florida Rule of Criminal Procedure 3.390(d), and Bell v. State, 178 So.2d 131 (Fla.2d DCA 1965).

Affirmed.


author: OTT, Judge.

text:
    The CHESSICK CLINIC, P. A., Appellant, v. Dewitt JONES, Appellee.
    No. 78-135.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.
    Rehearing Denied Feb. 28, 1979.

      Fred M. Peed of Peed & King, Orlando, for appellant.
    Davis G. Anderson, Jr., Tampa, for appel-lee.
   OTT, Judge.

The appellant — a professional medical association — sued appellee — an orthopedic surgeon — on the ground that appellee had breached a restrictive covenant which was part of the employment agreement between the parties. The lower court granted appel-lee’s motion to dismiss Count II of appellant’s second amended complaint which sought injunctive relief. We hold that this was error and reverse.

The restrictive covenant between the parties provided as follows:

For a period of two (2) years from the date of the termination of his employment with the company, the Employee shall not, within the geographical limits of Citrus County, Florida, directly or indirectly engage in the practice of medicine.

Paragraph 22 of Count II of the appellant’s second amended complaint alleged that the appellant had been irreparably harmed as a direct result of appellee’s violation of this restrictive covenant. It was also alleged in Paragraph 22 as follows:

The plaintiff CLINIC has lost profits and goodwill as a result of defendant JONES’ wrongful competition, but it has no adequate remedy at law because the amount of this damage is impossible to determine and the damage is of a character that cannot be repaired or estimated in dollars and cents. [Emphasis supplied.]

In Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974) the supreme court was called upon to resolve the conflict between the Second District Court of Appeal in Data Supplies, Inc. v. Cowart, 240 So.2d 829 (Fla. 2d DCA 1970) and Miller Mechanical, Inc. v. Ruth, 287 So.2d 174 (Fla. 4th DCA 1973).

The supreme court in Ruth described what had taken place in the trial court and in the Fourth DCA:

The trial judge found that the contract was valid but unreasonable as to the length of time defendant was proscribed from competing with plaintiff. Although there was no question but that defendant had breached the contract, the trial judge held that the plaintiff had not suffered any pecuniary damages. In finding that the provisions of the contract were unreasonable, the trial judge refused to enforce the contract by way of an injunction and instead awarded nominal damages. The District Court of Appeal, Fourth District, in a per curiam decision affirmed.

300 So.2d at 12.

The supreme court in Ruth held that “the Court may award damages for breach of contract but the normal remedy is to grant an injunction.” 300 So.2d at 12.

In Akey v. Murphy, 238 So.2d 94, 96 (Fla.1970) the supreme court stated:

An agreement among partners that a withdrawing partner will refrain from engaging in the partnership business within a reasonable area for a reasonable time is not contrary to public policy in general . . . nor to the public policy of this state . . .

In Ruth the supreme court explained the underlying considerations thusly:

At common law agreements not to compete were usually held void as a restraint on trade and as being contrary to public policy. When the Legislature adopted Fla.Stat. § 542.12, F.S.A. (the controlling statute in this case), it recognized the public policy arguments against agreements restricting competition, but nonetheless found several exceptions from the general rule to be reasonable. The statute is designed to allow employers to prevent their employees and agents from learning their trade secrets, befriending their customers and then moving into competition with them. The agreement, however, must be reasonable as regards the time during and the area within which the employee is to be prevented from competing with the employer. In determining the reasonableness of such an agreement, the courts employ a balancing test to weigh the employer’s interest in preventing the competition against the oppressive effect on the employee, [citations omitted.]

300 So.2d at 12.

Appellant alleged the elements essential for stating a cause of action for injunctive relief under § 542.12. See Hunter v. North American Biologicals, Inc., 287 So.2d 726 (Fla. 4th DCA 1974).

The reasonableness of the durational and geographical limitations remain issues to be tried upon remand.

Reversed and remanded.

GRIMES, C. J., and DANAHY, J., concur.

      . In Foster & Company, Inc. v. Snodgrass, 333 So.2d 521, 522-23 (Fla. 2d DCA 1976) this court followed Ruth as follows:
      The [applicable statute] . . . requires that while there is discretion in injunctive enforcement, it nevertheless follows that where, as here, the violation is clear, that injunctive relief is appropriate and should be granted.

      . The Akey court also held § 542.12, Fla.Stat. (1972), infra, to apply to a “profession” as well as to a “business”.

      . 542.12 Contracts in restraint of trade invalid; exceptions
      (1)Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind, otherwise than is provided by subsections (2) and (3) hereof, is to that extent void.
      (2) One who sells the good will of a business, or any shareholder of a corporation selling or otherwise disposing of all of his shares in said corporation, may agree with the buyer, and one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area, so long as the buyer or any person deriving title to the good will from him, and so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction be enforced by injunction.
      (3) Partners may, upon or in anticipation of a dissolution of the partnership, agree that all or some of them will not carry on a similar business within a reasonably limited time and area.


text:
    Jo Marie GROVES, as Administratrix of the Estate of Leonard Michael Groves, Deceased, Appellant, v. Gary Frank LEO, Powell Motor Company, a Florida Corporation, and Federal Insurance Company, Appellees.
    Nos. 77-947, 77-2296.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.
    Rehearing Denied March 20, 1979.
    William E. Blyler of Patterson, Maloney, Blyler & Feige, Coral Springs, for appellant.
    Paul R. Regensdorf, William D. Ricker, Jr., and John W. Fleming of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

Plaintiff appeals an adverse jury verdict in a wrongful death action. The jury determined that the defendant was guilty of no negligence which was a proximate cause of the death. The accident in question occurred at an intersection at which a stop sign was posted. The precise legal basis for the existence and positioning of the stop sign was the subject of conflicting evidence at trial. It is uncontested that the plaintiff’s decedent ran the stop sign and it is admitted on appeal that this act constituted some negligence. Appellant argues that the finding of no negligence against appel-lee was against the manifest weight of the evidence and that a new trial is necessary.

We have reviewed the arguments and the evidence and find that the verdict is supported by competent, substantial evidence. This case is within the general rule that negligence and proximate cause are jury questions. Helman v. Seaboard Coastline Railroad Co., 349 So.2d 1187 (Fla.1977). This is particularly true where the evidence is conflicting and subject to various interpretations.

Appellant raises numerous other points, all of which have been reviewed and found to be without merit. The judgment below is therefore affirmed.

AFFIRMED.

CROSS and BERANEK, JJ., and SMITH, CHARLES E., Associate Judge, concur.

      . We note that this was the second trial to occur in this matter, a new trial having been previously granted. Groves v. Leo, 332 So.2d 364 (Fla. 4th DCA 1976).