author: BOYD, Justice. OVERTON, Chief Justice, ENGLAND, Justice, ADKINS, Justice,

text:
    Thomas NOWLIN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 47061.
    Supreme Court of Florida.
    May 26, 1977.

      Richard L. Jorandby, Public Defender, and Martin H. Colin and Craig S. Barnard, Asst. Public Defenders, for petitioner.
    Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., for respondent.
   BOYD, Justice.

In the Circuit Court of Orange County petitioner was convicted of robbery, use of a firearm in the commission of a felony and aggravated assault and sentenced to life imprisonment, fifteen years and five years respectively. The District Court of Appeal, Fourth District, decided to vacate the convictions of use of a firearm in commission of a felony and aggravated assault because they were included in the greater offense of robbery.

By writ of certiorari we are reviewing the District Court opinion because it conflicts with the decision in Crawford v. State, 70 Fla. 323, 70 So. 374 (1915).

In the case under review petitioner had been shot by a policeman in the course of the robbery for which he was convicted. Without being advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the petitioner was interviewed by police officers while he was in the hospital and made incriminating statements under circumstances which appear to us to raise some questions of whether the statements were voluntarily given. At trial he elected to take the stand in his own defense. On cross-examination he denied under oath that he had made any incriminating statements. The trial court permitted the State on rebuttal to introduce his prior incriminating statements to impeach his testimony and despite petitioner’s objection that no showing of voluntariness had been made would not allow an inquiry into the volun-tariness of the statements. Being not persuaded there was error, the District Court of Appeal affirmed holding that, in the event there was error, it was harmless.

We are required to grant to all accused persons the constitutional rights provided by the United States Constitution as construed by the United States Supreme Court and such rights as may be required by the Florida Constitution, statutes and rules of court. Over the last few decades special attention of all state courts has been focused on United States Supreme Court decisions which have evinced an increased concern for human rights.

In Crawford, supra, this Court held that incriminating statements made after arrest in the presence of a magistrate or investigating coroner who failed to advise the accused of his constitutional rights could not be admitted into evidence to impeach his trial testimony, just as the statements were not admissible in the prosecution’s case-in-chief because of failure to advise the accused of his constitutional rights. This Court additionally stated that involuntary confessions are not admissible for impeachment of the defendant’s trial testimony. Id., 70 So. at 377, 378. Petitioner asks that we reaffirm Crawford, adopt it as the controlling law of this State and reverse the decision of the District Court of Appeal, Fourth District. For solution of the problem and to conform to the United States Constitution as construed by the United States Supreme Court we turn to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) and Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).

In the Walder case the Court permitted evidence inadmissible in the case in chief to be used for impeachment purposes. The Court said, “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths . . . there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” Id., at 65, 74 S.Ct., at 356. Walder, on trial for sale of narcotics, testified on direct examination that he had never sold or possessed narcotics. On cross-examination he reiterated this assertion. The government then introduced evidence that, in connection with an earlier proceeding, a heroin capsule had been found in his possession. The trial judge admitted this evidence over defendant’s objection that the heroin capsule had been obtained through an unlawful search and seizure. In permitting the testimony of prior possession of heroin under conditions which constituted unlawful search and seizure the judge instructed the jury to consider the tainted testimony only for impeachment of the defendant’s credibility and not as to his guilt. The U.S. Supreme Court agreed, establishing the principle that evidence illegally obtained may be admitted into evidence against a defendant who denies under oath at trial the existence of such evidence, so long as the use of the evidence is not permitted to be used to establish guilt but limited to impeachment.

Harris, supra, is almost directly on point with the case before us. The Court relied upon Walder, supra, and held that a statement which was inadmissible against a defendant in prosecution’s case in chief because the defendant had not been advised of his rights to counsel and to remain silent prior to making the statement but which otherwise satisfied legal standards of trustworthiness was properly usable for impeachment purposes to attack the credibility of the defendant’s trial testimony.

At his trial Harris denied he had made a sale of narcotics to an undercover officer. On cross-examination he was asked whether he had made statements which the prosecution specified in its questioning immediately after his arrest. The statements referred to by the prosecutor contradicted, in part, his trial testimony. Upon saying he could not remember the incriminating statements the defendant’s attorney requested the written material used by the State in the impeachment questions to be included in the record on appeal. The Court approved, but instructed the jury to consider use of the statements attributed to the defendant by the State only for impeachment of the defendant’s credibility and not for determination of guilt.

In the opinion authored by Chief Justice Burger the Court said in part:

“At trial the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, conceding that they were inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the police were coerced or involuntary.
“Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. Id., 401 U.S. at 224, 91 S.Ct. at 645.
“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment. “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” Id., at 225, 226, 91 S.Ct. at 645.

We are unsure of precisely what the Court means by statements the “trustworthiness” of which “satisfies legal standards.” Harris at 224, 91 S.Ct. 643. Surely, at the very least the Court means that the statements must be voluntarily given. Therefore, whenever the state, in order to impeach a defendant’s credibility, chooses to present evidence of a defendant’s incriminating statements which are inconsistent with trial testimony of the defendant and which are inadmissible in the case-in-chief because of the failure of custodial officers to give Miranda warnings, the statements must be shown to be voluntary before they may be admitted.

In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) it was held that the Fourteenth Amendment requires that an initial determination of vol-untariness be made, outside the hearing of the jury, before a confession may be allowed to be considered by the jury. Though Jackson did not involve incriminating statements offered for the purposes of impeachment we believe its principle applies to this case. It was error for the trial judge not to make a determination of vol-untariness outside the presence of the jury once petitioner objected to introduction of the statements for failure of a showing of voluntariness. As in other situations, the State has the burden of proof to show by a preponderance of the evidence that the confession was voluntarily obtained. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Johnson v. State, 294 So.2d 69 (Fla.1974).

We cannot agree with the District Court of Appeal that, at the most, harmless error was committed by the trial court. Reviewing courts may not regard constitutional error as harmless if there is a reasonable possibility that the error may have contributed to the accused’s conviction or if the error may not be found harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The admission of the incriminating statements, by undermining the credibility of Nowlin, destroyed a great part of his defense. Unless the jury was fairly sophisticated the statements were probably considered on the issue of guilt.

Asking a jury to use incriminating statements to determine credibility but not guilt is a distinction the Crawford court thought a jury should not be forced to make. The United States Supreme Court in Harris did not agree. To conform to federal standards we recede from Crawford to the degree that it forbids introduction of incriminating statements made by an accused, uninformed of his constitutional rights, for purposes of impeachment. We reaffirm Crawford to the extent that it requires that incriminating statements be voluntarily made before they may be used for impeaching the credibility of a defendant who testifies at trial.

Accordingly the cause is remanded to the District Court of Appeal, Fourth District, to be remanded for a new trial consistent with this opinion.

It is so ordered.

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

OVERTON, C. J., concurs with an opinion with which ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs with an opinion.

ADKINS, J., dissents with an opinion.

OVERTON, Chief Justice,

concurring.

I concur with the majority opinion. The use of a prior inconsistent statement of the defendant to impeach his testimony, in accordance with Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), is a sensitive part of the trial. It must be approached by prosecutors with considerable caution.

The purpose of impeachment is to attack the credibility of a witness. The admission of the prior inconsistent statement must be used only for the purpose of questioning the credibility of the witness, not as evidence in chief. The procedure for the impeachment of a witness is prescribed by Section 90.10, Florida Statutes (1975), as follows:

Impeachment of witness by adverse party. — If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the cause and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to witness, and he must be asked whether or not he made such statements.

Prosecutors should proffer to the trial court any impeachment examination of a defendant concerning prior inconsistent statements outside the presence of the jury. Failure to do so may contaminate the trial and require a mistrial. The standard evi-dentiary rules establishing the proper predicate for the impeachment of a witness are applicable. The proper predicate for impeachment requires the State to advise the defendant the substance of the prior inconsistent statement and the time and place it was made as well as the person or persons to whom made. Although this rule does not require perfect precision, the predicate for impeaching the testimony must be such that the defendant cannot be taken by surprise. Further, an opportunity must be afforded the defendant to refresh his memory, to make intelligent answers, and to offer such explanations as he may desire. Brown v. State, 46 Fla. 159, 35 So. 82 (1903); Rowe v. State, 128 Fla. 394, 174 So. 820 (1937); Bright v. State, 250 So.2d 10 (Fla.3d DCA 1971); Whitley v. State, 265 So.2d 99 (Fla.3d DCA 1972); Walter v. State, 272 So.2d 180 (Fla.3d DCA 1973); Jones v. State, 281 So.2d 398 (Fla.2d DCA 1973); see Florida Evidence Code, Section 90.614(2) (effective July 1, 1977); Berger et al., Evidence, 30 U. Miami L.Rev. 561, 594 (1976).

As required in the majority opinion, the defendant must be given an opportunity to present testimony that any statement, if made, was involuntary, and the court must make a determination of voluntariness before the statement may be used for impeachment purposes.

In the instant case not only was the vol-untariness not determined, but the basic trial procedure for impeachment of witnesses was either unknown or ignored. No proper predicate for impeachment was ever established.

The cause must be remanded for a new trial.

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

ENGLAND, Justice,

concurring.

In this case we are required to resolve one of the most difficult problems of policy to come before this Court during my tenure here. Very compelling arguments can be made both for the majority view and for Justice Adkins’ dissenting view. It is unnecessary for me to set out the arguments in full since, as Justice Adkins notes, there is extensive discussion as to both views elsewhere. See particularly the opinions in People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (1976), a 4-3 decision opting under the state constitution to reject the federal rule of permissible impeachment announced in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

I have joined the majority, or Harris view, for basically two reasons. For one, this Court recently adopted that view unanimously, and in this area of the criminal law particularly, where our decisions are expressly designed to guide law enforcement behavior, we have an obligation to maintain reasonable decisional stability.

Secondly, I am not fully persuaded by the reasons offered against the Harris view. I do not believe that law enforcement officials will violate Miranda with abandon if inadmissible statements are available to impeach the credibility of the defendant. These officials can never know if a particular defendant will testify, and I cannot attribute to these officials a general desire to pile up illegally obtained evidence in all cases in the hope that they can either snare a defendant at his trial or force him to waive his right to testify because of what they are holding in reserve. Nor do I believe that the judiciary will be seriously inconvenienced or prejudiced by the loss of the precision which Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), undoubtedly brought into the judicial handling of “voluntary” v. “coerced” determinations. The imprecision which Harris has introduced is confined to the impeachment of inconsistent testimony — a relatively limited area.

I am more troubled by the last argument against Harris — that juries cannot intellectually separate the use of a prior inconsistent statement into mental compartments which differentiate between the impeachment of a defendant’s credibility and the substance of the statement itself. In fact, I am reasonably certain that jurors cannot exercise that mental gymnastic in most cases. But, I am led to conclude, as Justice Richardson stated in Disbrow, that we indulge any number of similarly indefensible assumptions in defense of the sanctity of our jury system. So, until a better system comes along, our system of jurisprudence is best served by recognizing the difficulties with our logic and resolving them as best we can (in these impeachment situations we require a limiting jury instruction), rather than scrapping the entire system.

More significantly, I am persuaded to the Harris view by the rationale which supports its adoption, namely that the goal of Harris, which happens to be the polestar of all judicial proceedings, is a search for the truth. I cannot accept the view that any inconvenience or difficulty in the process can outweigh the need to ascertain the truth, and especially is this the case when the problem of impeachment is triggered in the first instance by a criminal defendant’s willingness, under oath in his own defense, to offer statements inconsistent with pronouncements made at an earlier date. The anti-Harris view tolerates these inconsistencies, from their mildest forms of honest mis-recollection to their extreme forms of plain perjury, not because either inconsistent statement is necessarily untrue but as a price to be paid by society for police overreaching. That accommodation is simply beyond my level of tolerance.

ADKINS, Justice,

dissenting.

It is time that we reaffirm the independent nature of the Florida Constitution and assume our responsibility to define and protect the rights of Florida citizens, despite conflict in decisions of the United States Supreme Court interpreting the Federal Constitution. Reasonable men can and do differ about the balance to be struck between “liberty” and “order.” Swinging to the “order” side in this case will not only infringe upon the “liberty” of our citizens, but create a chaotic trial problem.

Prior to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), state courts were barred by the Fifth and Fourteenth Amendments from admitting into evidence confessions that were “involuntary.” Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). The courts held that a confession must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). This test spawned multiple categories identifying impermissible interrogatory practices.

The principal objective of Miranda, supra, was to establish safeguards that would liberate courts, insofar as possible, from the difficult and troublesome necessity of adjudicating in each case whether coercive influences had been employed to secure admissions or confessions. Miranda, supra, established broad procedural guidelines as well as a precise manual for conducting custodial interrogations. It created a single, uncomplicated, universally applicable test for determining whether a particular confession was coerced. If proper warnings are given voluntariness is assured, at least in the absence of evidence of coercion. Conversely, if an accused is inadequately informed of his rights involuntariness is assumed, and the statements are inadmissible at trial.

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court held that statements which were inadmissible as affirmative evidence because of a failure to comply with Miranda, supra, could nevertheless be used for impeachment purposes to attack the credibility of a defendant’s trial testimony, as long as the statements were not “coerced,” or “involuntary.” Language to the contrary in Miranda, supra, was dismissed as dictum.

The Harris rule resurrects the remains of the earlier voluntariness test. Under this rule the following may be anticipated: A defendant will testify in a manner the prosecution considers contrary to his extra-judicial statement. The defendant will contend that the statement is involuntary under one of the pre-Miranda definitions of that term. The proceedings will then be interrupted, not only at mid-trial but at mid-examination, for an evidentiary hearing. The outcome of this hearing will be subject to later review on appeal. Only if the statement is ruled voluntary will it be admissible to impeach. There will then arise an impressive body of law on the involuntariness issue, as the various appellate courts grapple with the problem on a case by case basis.

Although the statement or confession is admissible for the purpose of impeachment, the jury in all probability will review prior inculpatory statements as substantive evidence of guilt rather than as merely reflecting on the defendant’s veracity. The use of a limiting instruction by the court does not solve this problem, for we cannot expect a juror to undergo the mental gymnastics required to treat a confession as mere impeachment instead of an absolute admission of guilt.

A defendant, faced with the prospect of the jury hearing his illegally obtained confession if he testifies in his own behalf, will be under considerable pressure to forego this most basic right of an accused.

Also, to permit admissibility leaves little or no incentive for police to comply with Miranda’s requirements. Law enforcement has made great strides in up-grading investigations. Officers are more intelligent and are better trained. No longer do they rely upon mere evidence of commission of a crime coupled with a confession by the defendant in order to secure a conviction. There is a likelihood that police misconduct may be encouraged by the Harris rule, and some of the ill-trained officers will revert to former procedures.

I am motivated to agree with Harris because of my abhorrence of the possibility of perjured testimony, although as a former trial judge, I recognize that defendants in criminal actions are prone to commit a “little” perjury when their life or liberty is at stake. I do not condone such conduct. On the other hand, I could not conceive that evidence obtained in flagrant violation of Miranda should ever be presented to a trier of fact. Miranda articulates a simple, workable rule which is still the law of this land. This rule can be abrogated by police officers when they ignore their duty to give the simple warnings prescribed in Miranda, knowing full well that the illegally obtained statements may be admissible for impeachment purposes if a defendant elects to testify. The rights of our citizens under our State constitution should not be impaired when police officers ignore a duty imposed upon them by the United States Supreme Court and this Court.

Other courts have rejected Harris on state constitutional grounds. People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (1976); State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971).

Academic reaction to Harris has in general been strongly critical. See, e. g., Dershowitz & Ely, Harris v. New York: Some Anxious Observations (1971) 80 Yale L.J. 1198; Note, Harris v. New York: The Retreat from Miranda (1972) 32 La.L.Rev. 650; Note (1971) 40 Fordham L.Rev. 394; Note (1972) 85 Harv.L.Rev. 44; Note (1971) 24 Vand.L.Rev. 843; Note (1971) 39 Geo.Wash. L.Rev. 1241: Note (1973) 73 Colum.L.Rev. 1476).

Just as in Tsavaris v. Scruggs (opin. filed March 17, 1977), we are receding from a time-honored principle of law enunciated by this Court in Crawford v. State, 70 Fla. 323, 70 So. 374 (1915). See also Annotation, 89 A.L.R.2d 478. We should assert an independence in construing the State constitution so as to maintain stability in the law and protect individual rights.

To convict a person on the basis of statements procured in violation of his constitutional rights is intolerable. Our system of government at all times protects the accused’s privilege freely to choose whether or not to incriminate himself.

We are called upon to referee the bout between “order” and “liberty.” Even though the clout of public opinion strengthens the corner of “order,” the judiciary is charged with the unpopular responsibility of safeguarding the weakened underdog, the “liberty” of each citizen, however serious the criminal charge against him may be. We cannot “help stop crime” by trampling upon the rights of any individual defendant. Over-zealous officers and over-zealous courts could seriously impair, if not destroy, the basic rights of our people, while other branches of government bodaciously proclaim our interest in nurturing these human rights throughout the rest of the world.

Under the Constitution of the State of Florida, the State should not be allowed to impeach a defendant with statements made by him to officers who have failed to give him the warnings required by this Court.

      . 320 So.2d 468 (Fla. 4th DCA 1975).

      . Cone v. State, 285 So.2d 12 (Fla.1973).

      . The conflict gives us jurisdiction. Art. V, § 3(b)(3), Fla.Const.

      . State v. Retherford, 270 So.2d 363 (Fla.1972).

      . 16 Cal.3d 124-26, 127 Cal.Rptr. 375-76, 545 P.2d 287-88 (dissent).

      . Were it feasible I would change the process by which voluntariness is determined, at least to a limited extent. Conceding there exists the possibility of impeachment whenever a criminal defendant elects to testify on his or her own behalf, where the state knows of an inadmissible statement it has obtained I would hold the voluntariness hearing, out of the jury’s presence, before the defendant first takes the stand in order to get that determination out of the way. This would minimize disruption of the trial during his testimony if the matter of impeachment ever comes up. I understand the danger of adopting this procedure in all cases.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Benita WILLIAMS, Appellee.
    No. 49321.
    Supreme Court of Florida.
    May 26, 1977.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for appellant. .
    David A. Demers, Law Offices of Robert W. Pope, St. Petersburg, for appellee.
   PER CURIAM.

Reversed. See State v. Bales et al., 343 So.2d 9 (Fla.1977).

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


text:
    STATE of Florida, Appellant, v. Deborah Ann MERAYO, Appellee.
    No. 49322.
    Supreme Court of Florida.
    May 26, 1977.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for appellant.
    David A. Demers of Law Offices of Robert W. Pope, St. Petersburg, for appellee.
   PER CURIAM.

Reversed. See State v. Bales et al., 343 So.2d 9 (Fla.1977).

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


author: HATCHETT, Justice.

text:
    RAY LEIN CONSTRUCTION, INC., Plaintiff, v. Jack M. WAINWRIGHT, Individually, and Wainwright Plumbing, Inc., a dissolved Florida Corporation, Defendants, First Federal Savings & Loan Association of Fort Pierce and Frank Harris as Receiver, Garnishees.
    No. 50153.
    Supreme Court of Florida.
    May 26, 1977.

      Edgar A. Brown, of Bryan, Koblegard & Brown, Fort Pierce, for plaintiff.
    Michael Jeffries, of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for defendants.
   HATCHETT, Justice.

We have for review an interlocutory order of the Circuit Court in and for St. Lucie County, which directly passes on the constitutional validity of Florida’s prejudgment garnishment statutes. Since the order of the Circuit Court would be directly appealable to this court upon final judgment or decree, we may properly exercise certiorari jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

On May 13, 1976, petitioner, Ray Lein Construction, Inc., filed a complaint against the respondents, claiming moneys due and owing. On June 29, 1976, upon motion by petitioner, the Clerk of the Circuit Court issued a writ of garnishment against First Federal Savings & Loan Association of Fort Pierce et al., garnisheeing the proceeds of a judgment obtained by the respondents against First Federal. On July 1, 1976, respondents filed a motion to dissolve the writ on the ground that the statutory provisions under which it was issued are unconstitutional, in that they provide for a prejudgment garnishment procedure, which deprives the debtor of his property without prior notice or hearing. The court entered an order denying defendant’s motion and specifically upheld the validity of the challenged statutes. We disagree. In light of recent judicial treatment of similar prejudgment procedures, we hold that Sections 77.031, 77.04, 77.06, and 77.07, Florida Statutes (1975), insofar as they pertain to prejudgment garnishment, are unconstitutional.

Garnishment is but one form of summary remedy historically available to the creditor. It is a method whereby a person’s property, money, or credits in the possession, under the control, or owing by another are applied to payment of the former’s debt to a third person by proper statutory process against the debtor and garnishee. Because this remedy works a deprivation of debtor's property, it must comply with the requirements of procedural due process.

For more than a century the central meaning of procedural due process has been clear: “Parties whose rights are to be affected are entitled to be heard, and in order that they may enjoy that right, they must first be notified.” Baldwin v. Hale, 1 Wall. 223, 233, 17 L.Ed. 531. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972).

The United States District Court for the Middle District of Florida recently reviewed the statutes in question and held the procedure, as outlined in Chapter 77, Florida Statutes, unconstitutional. See Bunton v. First National Bank of Tampa, 394 F.Supp. 793 (M.D.Fla.1975). In arriving at its decision, the District Court relied upon the Supreme Court’s decision in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), wherein a similar Georgia prejudgment garnishment statute was declared unconstitutional. In North Georgia Finishing, the Court referred to its earlier decision in Fuentes v. Shevin, supra, wherein the Florida and Pennsylvania replevin statutes were held invalid. Those statutes permitted a secured installment seller to repossess goods sold without prior notice and without opportunity for a hearing or other safeguard against mistaken repossession. A writ was issuable by a clerk of the court upon ex parte application and posting of bond. It was not necessary to show that the goods were wrongfully detained. Nor was provision made for prompt post-seizure hearing. Thus, the debtor was deprived of his property until final outcome of the repossession suit. The Georgia statute was condemned on similar grounds. A writ of garnishment was issuable at the behest of the seller, without notice or opportunity for early hearing and without participation by a judicial officer. As in Fuentes, debtor’s only remedy was to post a security bond.

Respondents argue that Florida's statutory procedure for prejudgment garnishment is equally defective. It allows a writ to issue by a clerk of the court, without judicial supervision, upon the conclusory allegations of the applicant, without prior notice or opportunity to be heard.

Petitioner argues that prior notice and hearing are not necessary where the statutes provide sufficient constitutional safeguards to the debtor. In Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), decided two years after Fuentes, the Supreme Court upheld a Louisiana sequestration statute which permitted the seller-creditor, holding a vendor’s lien, to secure a writ of sequestration to forestall waste or alienation of the encumbered property. The writ could issue on ex parte application, without notice or hearing. The court ruled that the statute provided sufficient constitutional safeguards to protect the debtor, while affording the creditor a quick and effective remedy. The writ was issuable by a judge upon the filing of an affidavit, clearly stating the facts entitling the debtor to sequestration. The statute expressly entitled the debtor to an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor. Petitioner argues that the Florida garnishment statute, like that of Louisiana, provides sufficient constitutional safeguards and points specifically to Section 77.07(2), Florida Statutes, which provides for an immediate post-garnishment hearing before a judge. In addition, debtor is provided an opportunity to free his assets by posting adequate security. See Section 77.24, Florida Statutes (1975).

We agree with the petitioner that prior notice and hearing are not required in order to satisfy the demands of due process. Otherwise, the remedy of the statute is likely to be defeated. Unique Caterers, Inc. v. Rudy’s Farm Co., 338 So.2d 1067 (Fla.1976). However, under the standards set by the United States Supreme Court, the statutes are constitutionally deficient in the following respects:

1. Section 77.031, Florida Statutes (1975), allows a writ to issue without judicial supervision.

2. The writ may issue on an unsworn complaint by a plaintiff, his agent, or attorney and the applicant need allege no facts entitling the plaintiff to garnishment.

3. The statute does not require an immediate post-seizure hearing; it simply keeps the court open at any time to hear dissolution motions. In Phillips v. Guin & Hunt, Inc., Fla., 344 So.2d 568, opinion filed March 31, 1977, we stated:

We read North Georgia Finishing, supra, and Mitchell, supra, to require a hearing either before the alleged taking or promptly thereafter. In Unique Caterers v. Rudy’s Farm Co., supra, we found Chapter 76 constitutionally deficient because it did not require an immediate post-seizure hearing. Rather, it simply kept the court open at any time to hear motions for dissolution. .

We also stated:

[I]t is constitutionally imperative that a writ issue only after an impartial factual determination is made concerning the existence of the essential elements necessary for issuance of the writ. Consequently, a writ must be issued by a judicial officer based upon a prima facie showing rather than pro forma by the clerk of court, unless the initial pleading is made under oath to a clerk who makes an independent factual determination that the requirements of the statute have been complied with. Only then can the individual have his use and enjoyment of property protected from arbitrary encroachment. (footnote omitted)

For the reasons stated herein, the order of the Circuit Court is reversed. Sections 77.031, 77.04, 77.06, and 77.07, Florida Statutes (1975), insofar as they pertain to prejudgment garnishment, are declared unconstitutional and the writ of garnishment dissolved. The cause is remanded to the Nineteenth Judicial Circuit Court for proceedings consistent herewith.

It is so ordered.

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

ADKINS, J., dissents.

      . 77.031 Garnishment before judgment; procurement.—
      (1) Before judgment has been obtained by plaintiff against defendant, no writ of garnishment shall issue until plaintiff, his agent or attorney, files in the court where the action is pending, a motion (which shall not be verified or negative defendant’s exemptions) stating that the debt for which plaintiff sues is just, due and unpaid, that the garnishment is not sued out to injure either defendant or garnishee, and that movant does not believe that defendant will have in his possession after execution is issued, visible property in this state and in the county in which the action is pending on which a levy can be made sufficient to satisfy plaintiffs claim.
      (2) Except when plaintiff has had an attachment, no writ of garnishment before judgment shall issue until the person applying for it, his agent or attorney, gives a bond with surety to be approved by the clerk payable to defendant in at least double the debt demanded conditioned to pay all costs and damages which defendant sustains in consequence of plaintiffs improperly suing out the writ of garnishment.
      (3) Any bond in garnishment is not void as against the obligors, nor shall they be discharged therefrom on account of any informality in it, although the garnishment is dissolved because of the informality.
      77.04 Writ; form. — The writ shall require the garnishee to serve an answer to it on plaintiff within 20 days after service stating whether he is indebted to defendant at the time of the answer, or was indebted at the time of service of the writ, or at any time between such times; and in what sum and what tangible or intangible personal property of defendant he has in his possession or control at the time of his answer, or had at the time of the service of the writ, or at any time between such times; and whether he knows of any other person indebted to defendant, or who may have any of the property of defendant in his possession or control. The writ shall state the amount named in plaintiffs motion.
      77.06 Writ; effect —

      (1)Service of the writ shall make garnishee liable for all debts due by him to defendant and for any tangible or intangible personal property of defendant in his possession or control at the time of the service of the writ or at any time between the service and the time of his answer.
      (2) A bank or other financial institution authorized to accept deposits, upon being served with a writ of garnishment, shall report in its answer and retain, subject to the provisions of s. 77.19 and subject to disposition as provided in this chapter, any deposit, account or tangible or intangible personal property in the possession or control of such garnishee, if the deposit or ownership records of such bank or other financial institution relating to such deposit or property reflect that any defendant named in the writ has or appears to have an ownership interest therein, whether solely or with another or others not named in the writ; but the answer shall state the name or names and address if known to the garnishee of the defendant and any such other or others having or appearing to have an ownership interest therein as shown on said records, and the plaintiff shall, within 5 days of the service of the answer on him, serve by delivery or by mail on the defendant and each such other person notice of the writ and the garnishee’s answer and shall file in the proceeding a certificate of such service at the address of the defendant as shown on the records of the bank.
      (3) In any case where a garnishee in good faith is in doubt as to whether any indebtedness or property is required by law to be included in the garnishee’s answer or retained by it, the garnishee may include and retain the same, subject to the provisions of s. 77.19 and subject to disposition as provided in this chapter, and in such case the garnishee shall not be liable for so doing to the defendant or to any other person claiming the same or any interest therein or claiming to have sustained damage on account thereof.
      (4) Service of a writ on a garnishee shall render him liable as provided in this chapter in any fiduciary or representative capacity held by him if the fiduciary or representative capacity is specified in the writ.
      77.07 Writ; dissolution.—
      (1) The court to which a garnishment is returnable shall always be open for hearing motions to dissolve the garnishment.

        (2) On motion by defendant served within 20 days after service of the writ stating that any allegation in plaintiffs motion for the writ is untrue, this issue shall be tried, and if the allegation in plaintiffs motion which is denied is not proved to be true, the garnishment shall be dissolved.
      (3) If the motion denies the debt demanded before judgment, the judge may require pleadings on motion of either party on the debt demanded to be filed in such time as he fixes.
      (4) The issue, if any, raised by the pleadings shall be tried at the same time as the issue, if any, made by defendant’s motion to plaintiffs motion.

      . Upon entering its order below, the Circuit Court certified the following question to the Fourth District Court of Appeal who, in turn, transferred it here:
      Are the provisions of §§ 77.031, 77.04 and 77.06, FLA.STAT., which provide for garnishment of monies owed the Plaintiff before judgment and without prior notice and an opportunity to be heard, violative of the Due Process Clause of the Fourteenth Amendment to the United States Constitution?


text:
    STATE of Florida, Petitioner, v. In the Interest of J. R. M., R. L. M., and R. L. N., children, Respondents.
    No. 50676.
    Supreme Court of Florida.
    May 26, 1977.
    Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., for petitioner.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, for respondents.
   PER CURIAM.

We granted the petition for writ of cer-tiorari to review the decision of the District Court of Appeal, Fourth District, in In the Interest of: J. R. M., R. L. M. and R. L. N., reported at 937 So.2d 340 (Fla. 4th DCA, 1976), because it affects a class of state or constitutional officers, thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3).

We agree with and approve the decision of the Fourth District Court of Appeal under review. Accordingly, the writ of certio-rari heretofore issued is discharged.

It is so ordered.

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


author: PER CURIAM. ENGLAND, Justice,

text:
    In the Matter of THE FLORIDA BAR Petition for Amendment of the Integration Rule of the Florida Bar and the Bylaws under the Integration Rule (Trust Accounting Procedures).
    No. 51451.
    Supreme Court of Florida.
    May 26, 1977.
    Edward J. Atkins, President, Miami, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for The Florida Bar.
    Gerald L. Brown, Pensacola, William M. MacKenzie, Clearwater, and Joel H. Sharp, Jr., Ad Hoc Committee Members, Orlando, for the Board of Governors, Petitioner.
   PER CURIAM.

The Petition of The Florida Bar for Amendment of the Integration Rule of The Florida Bar and the Bylaws Under the Integration Rule, dealing with trust accounting procedures, is hereby denied.

The Motion of The Florida Bar for Temporary Relief is granted and the members of The Florida Bar are hereby relieved from the requirement found in the Bylaws under Article XI, Rule 11.02(4)(c) that they file between June 1,1977 and August 15,1977 a certificate reflecting compliance with minimum record keeping and procedural requirements.

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

ENGLAND, J., dissents with an opinion.

SUNDBERG, J., dissents and concurs with ENGLAND, J.

ENGLAND, Justice,

dissenting.

I would not eliminate the trust accounting certification requirement for 1977. On July 20, 1975 the Board of Governors brought to this Court a petition requesting that we amend Rule 11.02(4)(c) of the Integration Rule to improve trust accounting procedures for attorneys in the State of Florida. On February 26, 1976 we granted the petition, and on October 21, 1976 we approved by-laws, one of which requires an annual certification of compliance, to implement the new rule. At the time the petition and by-laws were presented we had every reason to believe that the mechanics of the proposed changes had been carefully evaluated by the Board. It now appears that this was not the case. Less than one year after this Court adopted the Board’s proposal, and almost two years after the Board first brought us the concept, the Board now asks that we abandon the certification requirement, which we have declined to do, or at least suspend it for 1977. This request is made on essentially two grounds.

First, the Board asserts that the certification requirement was predicated on the premise that attorney certification would be made on the annual dues statement sent to each bar member, and that it now appears impractical to proceed in that manner. I reject this as a basis for recision or suspension of the rule. Whatever may have been the bar’s premise in regard to the mechanics of certification, the by-law which this Court adopted had no dues statement requirement.

Second, the Board asserts that burdensome costs in money and time will result from a certification process which is not made an adjunct to the annual dues statement. In support of this contention, the Board has mustered figures showing a cost ranging from $3,400 to $8,000, depending on the method used to provide notice to and obtain compliance from all members of the Bar. Simple notice in the Bar News, with a follow-up letter, is alleged to cost $3,400. I am not impressed with this late gesture toward fiscal conservatism. The Board proposed an annual certification requirement on the ground that Florida attorneys for the first time would have a simple reminder to check on their compliance with minimum trust accounting procedures, which in turn would avoid disciplinary problems and save grievance costs. It is inconceivable to me that the Board of Governors is now willing to abandon this simple preventive tool by describing as “an unnecessary expenditure of the dues dollar” an outlay of $3,400, out of a total annual budget of $4,713,495.

It is apparent to me that the Board of Governors has retreated from the accountability requirement which it so heartily recommended to the Court just seven months ago. I will not speculate as to why the Board has had this change of heart, but it distresses me to contemplate the Bar’s lack of care in presenting the initial proposal to this Court, and its lack of resolution to see it through.

SUNDBERG, J., concurs.

      . The Florida Bar, In re Amendment to Integration Rule Article XI, 332 So.2d 1 (Fla.1976).

      . The Florida Bar, In re Amendment to Integration Rule Article XI, 338 So.2d 1072 (Fla.1976).

      . The dues statement “premise” in fact appeared for the first time not in the Board’s original petition but in its response to an objection that the procedure would be unwieldly and costly.

      . 1977-78 Proposed Budget, as published in 51 Florida Bar J. 192 (Apr. 1977). The Bar’s direct disciplinary costs for 1977-78 are projected to be $589,290. Id. at 193.


text:
    STATE of Florida, ex rel. David Lamar OGILVIE, a minor, by and through his next friend, Mrs. Francis Brady, Relator, v. Honorable Robert G. STOKES, Judge of the Juvenile Division of the Circuit Court of the Tenth Judicial Circuit, State of Florida, Respondent.
    No. 77-335.
    District Court of Appeal of Florida, Second District.
    April 15, 1977.
    Rehearing Denied May 13, 1977.
    Robert A. Young, of Moorman & Young, Winter Haven, for relator.
    Quillian S. Yancey, State’s Atty., and James G. Horrell, Asst. State’s Atty., Bar-tow, for respondent.
   PER CURIAM.

Relator seeks the issuance of the extraordinary writ of prohibition. After careful consideration of the fundamental grounds and circumstances which must of necessity be present to justify the granting of the writ, the Suggestion for Writ of Prohibition is denied. This decision is rendered without prejudice to the relator to pursue other existing, adequate remedies.

DENIED.

BOARDMAN, C. J., and McNULTY and GRIMES, JJ., concur.


author: PER CURIAM. DOWNEY, Judge,

text:
    Michael J. GOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 76-730.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1977.
    Rehearing Denied June 28, 1977.
    Robert Randolph, Jr., of Randolph & Randolph, Stuart, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of State v. Barnett, 339 So.2d 1159 (Fla. 2d DCA 1976).

AFFIRMED.

ALDERMAN, J., and PARHAM, HARRY C., Associate Judge, concur.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting:

I would reverse the judgment appealed from on authority of State v. Ostergard, 343 So.2d 874 (Fla. 3d DCA 1977).


author: NEWELL, EMERY J., Associate Judge.

text:
    Cheryl Florence CHRISTIANA, Appellant, v. James D. WHITE and State Farm Mutual Automobile Insurance Company, a Foreign Corporation doing business in the State of Florida, Appellees.
    No. 75-2275.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Rehearing Denied June 28, 1977.
    James R. Lavigne, of Nichols & Tatich, Orlando, for appellant.
    James 0. Driscoll, of Driscoll, Langston & Layton, Orlando, for appellees.
   NEWELL, EMERY J., Associate Judge.

This is an appeal from a final judgment in favor of appellee (defendant below) following a jury verdict in appellee’s favor.

Plaintiff was southbound in her automobile on a divided open highway which had a median strip separating opposing traffic. As she approached an intersection she observed the traffic signal for southbound through traffic change from red to green. The particular traffic signal at this intersection is described as a five phase fully actuated traffic control signal which responds to the demands of traffic. There was no evidence of any unlawful or unreasonable speeding by plaintiff. As she moved closer to the intersection she noticed defendant’s vehicle blocking her lane of traffic; she swerved to the right, missing defendant’s vehicle, but striking a concrete traffic control box off to the right hand side of the roadway.

The defendant had been proceeding northbound in his station wagon. He pulled into the left turn lane at the intersection and stopped behind other cars. Several cars ahead of him turned left on a green arrow. The defendant testified the green arrow went off before he got into the intersection. He saw the green arrow turn yellow and then red as he proceeded into the intersection. He stopped in a position described by him as a little bit to the south of the middle of the intersection and waited for a clear space to make his left turn. He then turned left on the red light. As he was entering the centermost of the through lanes for southbound traffic, defendant heard a horn or screeching of brakes, slammed on his own brakes and stopped. Defendant further testified it was a beautiful day, clear and bright, the pavement was dry and that nothing obstructed his view to the north.

The facts in the instant case are strikingly parallel to those reported in Kinsey v. Kelly, Fla.App., 312 So.2d 461. That case involved a collision between a motorcyclist and a left turning automobile moving on a green light; other than these dissimilarities the facts in the two cases are virtually identical.

As in Kinsey, supra, this case was tried on comparative negligence. By its verdict for the defendant-appellee herein, the jury necessarily concluded that defendant was without negligence which was a legal cause of the accident and that plaintiff was 100% at fault.

The record in the instant cause clearly shows some negligence on the part of appel-lee. We find that this jury verdict was against the manifest weight of the evidence and that the trial judge abused his discretion in denying appellant’s motion for a new trial.

Reversed and remanded for a new trial.

CROSS and DOWNEY, JJ., concur.


author: MAGER, Chief Judge.

text:
    John Ross WILCOX, Douglas Montgomery Wilcox and the Hartford Accident & Indemnity Company, Appellants, v. Bobby JONES, as Administrator of the Estate of Rhonda Perry Jefferson, Deceased, Appellee.
    No. 76-1604.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Rehearing Denied June 23, 1977.
    Richard V. Neill and Michael Jeffries, of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for appellants.
    William M. Cobb, of Sullivan Cobb & Petersen, Vero Beach, for appellee.
   MAGER, Chief Judge.

The issue presented in this appeal, which is one of first impression in Florida, is whether the father of an illegitimate child may recover damages for the wrongful death of his illegitimate child.

Based upon our reading of Sections 768.16-768.27, Florida Statutes (1975) (the Florida Wrongful Death Act), and, in particular, the recent decision of the United States Supreme Court in Trimble v. Gordon et al., — U.S. —, 97 S.Ct. 1459, 52 L.Ed.2d 31, opinion filed April 26, 1977, the question is answered in the affirmative.

The wrongful death statute, which permits an action to be brought on behalf of decedent’s “survivors,” define?. “survivors” as follows:

“(1) ‘Survivors’ means the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support.”

It is settled that the predecessor wrongful death statute has been construed to recognize the right of a mother of an illegitimate child to recover damages for the death of such child. City of West Palm Beach v. Cowart, 241 So.2d 748 (Fla. 4th DCA 1970), rev’d on other grounds, 255 So.2d 673 (Fla.1970); Glona v. American Guarantee and Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968). The natural mother has, therefore, been recognized as a “parent” within the above cited statute. The natural father is no less a parent than the natural mother. Moreover, the newly adopted wrongful death act reflects a philosophy that lends itself to this construction.

To recognize the right of the natural mother of an illegitimate child to maintain a wrongful death action but in the same breath to refuse to recognize the corresponding right of the natural father, would violate the equal protection clauses of the state and federal constitutions. Trimble v. Gordon, supra; Glona v. American Guarantee and Liability Ins. Co., supra. As was observed in Moore v. Thunderbird, Inc., 331 So.2d 555 (La.App.1976), at page 557, “The father is no more nor less guilty of immorality than is the mother.”

Accordingly, we hold that the father of an illegitimate child may maintain an action to recover damages for the wrongful death of his illegitimate child and the final judgment is AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.

      . Those Florida decisions to the contrary were based upon an interpretation of the old wrongful death act and are deemed not to be controlling. But see Comment, “Wrongful Death: Does a Bastard Have a Father,” 24 U.Fla.L.Rev. 190 (1971).

      . See case comment, 24 U.Fla.L.Rev. 190, fn. 1, supra.

      .The final judgment below was rendered pursuant to a jury verdict awarding damages to the natural father for the wrongful death of his illegitimate child arising out of a vehicular accident. We are satisfied that the evidence supports the jury determination, inherent in its verdict, that the father had provided support for the deceased child.


author: HOBSON, Judge.

text:
    Elizabeth KECKLER and Vernon V. Keckler, husband and wife, Appellants, v. PALMETTO FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 76-1386.
    District Court of Appeal of Florida, Second District.
    May 20, 1977.
    Harry G. Goodheart III, Bradenton, for appellants.
    William E. Partridge of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellee.
   HOBSON, Judge.

In this case the plaintiffs/appellants appeal a summary judgment finding no negligence on the part of the defendant/appellee in a slip and fall case.

We have carefully examined the briefs and record on appeal and find that there are genuine issues of material fact existing as to the negligence of the defendant. Accordingly, the summary judgment is reversed and the cause remanded for further proceedings. McKay v. Motley, 343 So.2d 668 (Fla.2d DCA 1977).

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


text:
    Joseph WILLIAMS and Horace Mann Mutual Insurance Company, a Foreign Corporation, Appellants, v. Charles James COTTON, a minor, by his mother and next friend, Lucille Cotton, and Lucille Cotton, Individually, Appellees.
    No. CC-273.
    District Court of Appeal of Florida, First District.
    May 25, 1977.
    Rehearing Denied June 30, 1977.
    Davisson F. Dunlap, Jr., Pennington, Wilkinson & Sauls, Tallahassee, for appellants.
    Harold E. Regan, M. Howard Williams, Tallahassee, for appellees.
   DREW, E. HARRIS (Ret.), Associate Judge.

Plaintiffs, on being called for trial on an amended complaint charging negligence, announced on the record in open court a voluntary dismissal pursuant to Rule 1.420(a), F.C.P.R., whereupon the c ase was dismissed by order of the trial court. Shortly thereafter, a second suit was filed sounding in negligence. Defendants, Williams and his insurance carrier, filed a joint answer generally denying the charge of negligence and, in addition thereto, alleged, jointly,

“As a separate and distinct defense to the actions alleged above, Defendants hereby state that any personal injury allegedly occasioned by physical contact between Charles James Cotton and Joseph Williams was the direct and proximate result of a verbal and physical assault and battery initiated by Charles James Cotton upon the person of Joseph Williams.
Any personal injury sustained by Charles James Cotton allegedly resulting from said altercation was a direct and proximate result of the acts initiated by said Charles James Cotton.”

We make reference to the dismissal of the first suit because of the question of costs in that suit raised here by the plaintiff on cross-assignment of error. We will dispose of that question first.

Plaintiffs argue that the defendants should not have been awarded costs in the first case because there was no motion to tax costs in that case. The motion was made under the case number in the first case but the order taxing costs was entered by the trial court in the second case, under the case number of that case. Included in the same order was an award of costs in the second case. We find nothing irregular about this. Although it would have been appropriate to assess costs in the first action, Rule 1.420(d) contemplates, and orderly procedure clearly permits the matter of assessing costs to await the determination of the second action. The cost judgment questioned in the cross-appeal is affirmed.

We now turn to the sole question raised in the main appeal, viz.,

“Simple negligence and intentional torts, such as assault and battery, are mutually exclusive causes of action, and evidence of assault and battery is fatal to an action based exclusively on simple negligence.”

The motion for directed verdict at the close of plaintiff’s case, renewed at the close of all the evidence, was made by both defendants, the individual Williams who was charged with negligence and his insurance carrier, jointly. The question is presented here under the lone assignment of error, viz.,

“The Circuit Court of the Second Judicial Circuit of Leon County, Florida erred in failing to grant Motion for Directed Verdict made by Defendants at the close of the Plaintiffs’ case and renewed at the close of all of the evidence in that said denial is contrary to the law.”

We are also concerned with the provisions of § 232.27, F.S.A., viz.,

“Each teacher or other member of the staff of any school shall assume authority for the control of pupils as may be assigned to him by the principal and shall keep good order in the classroom and in other places in which he is assigned to be in charge of pupils, but he shall not inflict corporal punishment before consulting the principal or teacher in charge of the school, and in no case shall such punishment be degrading or unduly severe in its nature. Under no circumstances may a teacher (except of a one-teacher school) suspend a pupil from school or class.”

Cotton, one of the plaintiffs, 16 years of age at the time of the injuries received, was a mentally retarded person enrolled in Griffin Middle School. Williams, the defendant, was a teacher in the school and Cotton was one of his pupils. Cotton had been emotionally upset and unruly during the earlier part of the day and had been on one or more occasions reprimanded by Williams. The record establishes the fact that, in the class Williams was teaching, Cotton was unruly, boisterous and was disturbing the other students. After repeated requests by Williams to quiet down and take his seat, Williams and Cotton engaged in a physical confrontation necessitated, according to Williams and the other students, by the attempt of Williams to restore order in the classroom, a power and clear duty imposed on him under the provisions of § 232.27, F.S.A., supra. This statute, in authorizing — in fact requiring — a teacher to “keep good order” in his classroom necessarily implies the power to the teacher to use reasonable physical force [not amounting to corporal punishment] to do so. Without such reasonably implied power, the requirement to “keep good order” would be meaningless.

In this case, on the evidence before it, and pursuant to the instructions of the trial judge defining negligence, the jury found the use of excessive force by Williams resulting in serious injury to Cotton, amounted to actionable negligence and awarded damages therefor. We think there was sufficient evidence before the jury to support the verdict and that under the law it was justified.

In their motion for directed verdict appellants relied on the McDonald case from the Second District. Appellants’ attorney stated, “ * * * the basis for my motion for a directed verdict at this point is found in the 1969 case of McDonald v. Ford.” In granting a motion for a directed verdict in that case the court observed that the “testimony of the plaintiff in this case” established that the acts of the defendant constituted an intentional tort and that therefore, “There is nothing to submit this case to the jury on the negligence count.” (Emphasis in quotation added.) In the case we now consider the testimony of the plaintiff does not establish an intentional tort. The vital difference in the case here and the case in McDonald is that here the record establishes that the defendant was authorized by law to take the action he did, to lay hands on the plaintiff, but in doing so used excessive force resulting in serious injury to Cotton. The use of excessive force in the performance of a lawful and authorized act, resulting in injury to another, may constitute actionable negligence.

The question of whether the corporate defendant’s policy covers intentional torts committed by Williams was not raised — nor has it been determined — by the trial court. There is nothing in this record on which a determination of this question could be reached. Whether this question has been foreclosed by the failure of the carrier to assert such defense in the trial court must await another day. The validity of the defense attempting to raise the intentional tort question (supra) pled by both defendants jointly, was not raised below, nor is it decided here. Obviously, it could have been presented only as a possible defense on behalf of the Insurance Company. Had Williams been the sole defendant in this case, it is difficult for us to perceive any circumstances under which he would have filed a defense (even if legally permissible) that he “intentionally” caused the injury alleged in the complaint. It is, therefore, not difficult for us to understand why both parties concede they have found no case directly on point. The cases cited by appellant are inapposite. These cases turn on the other points. For instance, in Jenkins v. North Carolina Dept. of Motor Vehicles, 244 N.C. 560, 94 S.E.2d 577 (1956), the court held the act committed by a police officer was a tort — not negligence — in determining whether the State was immune under its immunity statute for torts committed by its representatives — and in Williams v. Pressman, 113 N.E.2d 395 (Ct.App.Ohio 1953), the question was whether the statute of limitations (different in actions for assault and battery and negligence) was applicable.

We conclude, in summarizing, that the evidence was sufficient to have supported a finding that in the performance of his duty as a teacher, the defendant Williams was in the process of restoring order to his classroom caused by the conduct of the plaintiff and in doing so he exceeded the bounds of a reasonable and prudent person by using excessive force which caused plaintiffs injuries.

Affirmed.

BOYER, C. J., and RAWLS, J., concur.

      . (d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed the claim in any court of this State commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.

      . This law was amended by Ch. 76-236, ¶ 6, Laws of Florida 1976, and now reads:
      “232.275 Liability of teacher or principal.— Except in the case of excessive force or cruel and unusual punishment a teacher or other member of the instructional staff, a principal or his designated representative, or a bus driver shall not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules regarding the control, discipline, suspension, and expulsion of students.”

      . McDonald v. Ford, 23 So.2d 553 (Fla. 2 DCA 1969).

      . Such use of excessive force — as in this case — falls within the classic definition of negligence. See Am.Jur.2d 57 (Negligence) ¶ 1, page 333.


text:
    Clyde KNOWLES, Appellant, v. C. I. T. CORPORATION, Appellee.
    No. DD-138.
    District Court of Appeal of Florida, First District.
    May 25, 1977.
    Rehearing Denied June 30, 1977.
    John T. Trekel and R. Craig Hemphill, Jacksonville, for appellant.
    Carlton L. Welch, Terrance E. Schmidt, Jacksonville, for appellee.
   PER CURIAM.

The judgment here appealed arises from a claim by appellee Butler against appellant Knowles based upon an alleged agreement or representation involving the transfer, repair and use of a crane. From the allegations of the pleadings it is impossible to determine whether the claim was intended to be based upon an alleged breach of an alleged oral contract or on the theory of fraud. However, it makes no difference in this particular case since the evidence supports neither. A reading of the record though reflects that Butler’s attorney specifically disavowed, while arguing against a motion for directed verdict, any claim for fraud; thereby leaving only an alleged claim for breach of contract. It is elementary that in order to recover on a claim for breach of contract the burden is upon the claimant to prove by a preponderance of the evidence the existence of a contract, a breach thereof and damages flowing from the breach. Sub judice, ap-pellee proved neither.

Reversed and remanded with directions that a judgment be entered in favor of Knowles as to Butler’s claim allegedly based upon the breach of an alleged oral contract.

IT IS SO ORDERED.

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


text:
    Donald Eugene HARTMAN, Petitioner, v. STATE of Florida, Respondent.
    No. DD-154.
    District Court of Appeal of Florida, First District.
    May 25, 1977.
    Rehearing Denied June 27, 1977.
    Dan R. Warren, Judge & Warren, Dayto-na Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Defendant petitioned this court for common law writ of certiorari after the Circuit Court of Volusia County affirmed his county court conviction under Section 316.028, Florida Statutes (1975). Were this a direct appeal we would be inclined to reverse on the ground that the state had failed to exclude every reasonable hypothesis except that of defendant’s guilt. See State v. Allen, 335 So.2d 823 (Fla.1976). To do so however would necessarily require us to review the weight of evidence. This we may not do on certiorari review. E. g., Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.1964); Awtrey v. City of St. Petersburg, 193 So.2d 468 (Fla. 2nd DCA 1967); Ellis v. State, 202 So.2d 576 (Fla. 1st DCA 1967). The petition for writ of certio-rari is

DENIED.

RAWLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


author: BOYER, Chief Judge.

text:
    Spencer P. ELLIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. DD-127.
    District Court of Appeal of Florida, First District.
    May 27, 1977.
    Rehearing Denied June 30, 1977.

      Leo A. Thomas, Levin, Warfield, Middle-brooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti L. Englander, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant, having been charged by amended information with possession of heroin and possession of more than five grams of marijuana, moved to dismiss the amended information, pursuant to Fla.R. Crim.P. 3.190(c)(4), on the ground that the undisputed material issues of fact failed to establish a prima facie case. The State, in its traverse filed pursuant to Fla.R.Crim.P. 3.190(d), merely denied that the undisputed material facts did not establish a prima facie case. After a hearing, the trial court denied the motion to dismiss. Appellant thereupon entered a plea of nolo contendere to the charges, expressly reserving his right to appeal the denial of his motion to dismiss which is the sole issue with which we are concerned in this appeal.

Before delving into the facts of the case, we find it desirable to briefly discuss the nature and purpose of a 3.190(c)(4) proceeding. (We here address the procedural issue which did not appear, but was mentioned in footnote (1), in State v. Snowden, Fla.App., 345 So.2d 856, Opinion filed May 11, 1977.) In State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971), our sister court explained that the purpose of the rule was “to permit a pretrial determination of the law of the case where the facts are not in dispute, in a sense somewhat similar to summary judgment proceedings in civil cases (except that a dismissal under the rule is not a bar to a subsequent prosecution).” The proceeding is designed to create neither a trial by affidavit nor a dry run of a trial on the merits, nor is it supposed to serve as a “fishing expedition”.

The question arises: Upon whom does the burden of proof fall under the rule? Initially, the defendant in his sworn motion must allege that the material facts of the case are undisputed, describe what the undisputed material facts are, and demonstrate that the undisputed facts fail to establish a prima facie case or that they establish a valid defense (either an affirmative defense or negation of an essential element of the charge). Obviously, if the undisputed facts as alleged in the motion to dismiss do not meet such burden then any response from the State would be superfluous, and the motion may be summarily denied. If, however, the allegations of the motion meet the above test, then the burden shifts to the State. If the State wishes to avoid the effect of the motion, then its traverse or demurrer, as described in Rule 3.190(d), must place a material issue of fact in dispute or establish that the undisputed facts do establish a prima facie case. In the former instance, denial by the State under oath in its traverse of a specific material fact alleged in the motion to dismiss requires automatic denial of the motion to dismiss. Conversely, those facts alleged in the motion to dismiss which are not specifically denied by the State are, for the purpose of the motion, deemed admitted. For the State’s traverse to effectively deny a material fact alleged in the motion to dismiss, it need not be based in whole or in part on the personal knowledge of the state attorney who files it nor must it be buttressed by the affidavit of the victim or other witness. State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975). While the rule does not require the State to allege any facts which negate the factual matters set forth in the motion to dismiss, the State must nevertheless, when it purports to deny material facts, deny those facts with specificity. See State v. News-Press Pub. Co., 338 So.2d 1313, 1318 (Fla. 2d DCA 1976). When a motion to dismiss meets the criteria mentioned above and causes the burden of proof to shift to the State, then the State’s failure to file a traverse will mandate granting the motion. Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974). It should go without saying that any denial by the State must be in good faith, and not be based upon speculation, conjecture, presumption nor assumption. It has been held, for example, that a traverse which merely states, “the State traverses to the defendant’s sworn motion to dismiss” is insufficient under the rule as a matter of law. State v. Kemp, 305 So.2d 833 (Fla.3d DCA 1975).

Sub judice, the State’s traverse did not deny that any material fact was undisputed, but merely denied that the undisputed material facts did not establish a prima facie ease. Having failed to specifically deny the facts as alleged in the motion to dismiss, the State is deemed to have admitted those facts. The rule, however, is silent as to whether the State in its traverse must list those material facts, either disputed or undisputed, upon which it will rely at hearing on the motion and which were not contained in defendant’s motion to dismiss. Although, in our view, the better practice would be for all such factual matters to be contained or alluded to in the State’s traverse and that the State should not be permitted (absent an amendment to the traverse) to present evidence at the hearing on the motion to dismiss concerning facts which were not contained or alluded to within the motion to traverse, that problem does not arise in this case because apparently the State did not present evidence at the hearing held on defendant’s motion. Accordingly, we reserve that determination until the issue is properly raised.

In its brief, the State misconceives the purpose of Rule 3.190(c)(4), arguing that appellant is seeking a premature trial on the merits in the guise of a motion to dismiss. The record does not so reflect. Appellant has merely alleged certain facts which he claims are undisputed and material. The State could have either denied any of the material facts in its traverse, or presented additional facts. The State’s position, then, must stand or fall on the bare denial that the undisputed facts do not establish a prima facie case.

Turning to the facts of the case as revealed by the motion to dismiss, it appears that on March 25, 1976, Officers Cotton, Boswell, and Hughes executed a search warrant at 1121 Hope Street in Pensacola. Although appellant had lived at that address by himself since November of 1975, other individuals had been inside the premises and had stayed overnight on occasion during the weeks prior to the execution of the search warrant. Further, appellant occasionally stayed overnight at his mother’s residence in Pensacola. At the time the search of his home was conducted, appellant was out of town. When the officers arrived to search the premises, there was no one there. As the warrant was being executed, Ernest Riggs, whom appellant had requested to take care of his dog while he was out of town, approached the house and was arrested. The police found numerous drugs in the kitchen of the home. Although appellant’s fingerprints were found on a small mirror on the kitchen table, it could not be determined when the prints were made.

Under the rationale of the appellant, the State failed to establish a prima facie case because, under the undisputed facts, the essential element of possession, either actual or constructive, could not be found. By judicial interpretation, possession or control within the meaning of a drug statute means either actual physical possession with knowledge of same or constructive possession where the accused knows of the presence of the item on or about his premises and has the ability to maintain control over it. Griffin v. State, 276 So.2d 191 (Fla. 4th DCA 1973). The State asserts that appellant’s motion to dismiss is deficient because of his failure to deny that he was in actual or constructive possession of the drugs. Such reasoning is specious. Normally, it is up to the trier of facts to determine from the evidence whether the State has established either actual or constructive possession. Thus, where the material facts are undisputed, the trial court, in considering a defendant’s motion to dismiss, must determine whether the undisputed facts raise a jury question as to the issue of possession in much the same manner as the judge evaluates a motion for directed verdict of acquittal made at trial.

Since the undisputed material facts in this case clearly show that appellant was not in actual possession of the drugs, the dispositive question is whether a jury could have concluded from the undisputed facts that the appellant was in constructive possession of the drugs, i. e., whether appellant knew of the presence of the drugs on or about his premises and had ability to maintain control over them. Under the circumstances of this case, it is clear that appellant was not in constructive possession. Although appellant was owner of the premises upon which the drugs were found, he was not at home at the time of the search, being out of town. Other persons had been in or about the premises over a period of time and the drugs were not found in a location which would have been within appellant’s exclusive knowledge or under his exclusive control, but were discovered in the kitchen which was easily accessible to all persons entering the premises. Since the State under the undisputed facts did not establish possession which is an essential element of the crime charged, appellant’s motion to dismiss should have been granted.

Accordingly, the cause is reversed and remanded with directions that the information filed against appellant be dismissed.

REVERSED AND REMANDED WITH DIRECTIONS.

RAWLS and McCORD, JJ., concur.


author: OTT, Judge.

text:
    Philena C. COHEN, Appellant, v. Max B. COHEN, Appellee.
    No. 76-1037.
    District Court of Appeal of Florida, Second District.
    May 27, 1977.
    Rehearing Denied June 27, 1977.

      Helen S. Hansel and Cynthia R. Young, the Law Offices of Helen S. Hansel, St. Petersburg, for appellant.
    No appearance for appellee.
   OTT, Judge.

Appellant, Philena C. Cohen, appeals the final judgment entered in favor of appellee, Max B. Cohen, terminating separate maintenance payments by appellee to appellant and granting a dissolution of marriage between appellant and appellee. We affirm in part and reverse in part.

In 1966, appellant filed an action for separate maintenance. Appellee counterclaimed for divorce. The trial court denied the counterclaim and awarded appellant $500 per month separate maintenance. The court retained jurisdiction for enforcement of the final decree.

In 1971, appellee filed a separate action for divorce but did not pursue the suit.

In August, 1975, appellee’s attorney, at the instance of appellee’s daughter, filed a petition for modification of the 1966 final decree awarding appellant separate maintenance. A hearing was held on the petition on August 18. Testimony at that time established that appellee had been in declining health for the past several years and was now incompetent and obviously unemployable. Appellee’s daughter was appointed guardian ad litem for appellee. She then filed an answer as guardian ad litem the effect of which was to ratify the employment of counsel to seek modification of the separate maintenance decree and to continue or revive the 1971 suit for divorce. At the final hearing ample evidence was presented supporting the trial court’s determination that the appellee had no immediate funds, no income other than social security and VA, was unemployable and continued to be incompetent. At the conclusion of the final hearing the trial court entered an order terminating the separate maintenance payments and dissolving the marriage.

Generally, modification of alimony, separate maintenance or support payments may be sought only by the parties to the decree. See Section 61.14, Florida Statutes (1975). However, the state and the courts, sitting as courts of equity, are charged with the responsibility of protecting an incompetent and his property. American Surety Co. v. Andrews, 152 Fla. 638, 12 So.2d 599 (1943); See 17 Fla.Jur. Insane and Other Incompetent Persons §§ 3, 18, 54 (1959). A court appointed guardian of an incompetent may initiate and maintain an action to preserve his ward’s property. If the guardian can establish that the equities are in favor of and that the relief requested is in the best interest of his ward, the court is authorized to grant relief. See First National Bank v. MacDonald, 100 Fla. 675, 130 So. 596 (1930). We hold that this extends to the right, under appropriate circumstances, to seek modification of the separate maintenance award. Since appellant has not shown the ruling of the trial court terminating separate maintenance payments to be an abuse of discretion or otherwise erroneous, that part of the final judgment is affirmed.

We agree with appellant, however, that a guardian cannot initiate or maintain a suit seeking dissolution of his ward’s marriage. This court considered and determined this proposition in Wood v. Beard, 107 So.2d 198 (Fla. 2d DCA 1958). The issue in Wood was whether a guardian ad litem may pursue a divorce action for a petitioner who was competent when he filed the petition but who was adjudged incompetent during the pendency of the action. We held that one seeking a dissolution of marriage must remain capable, throughout the proceedings, of effectively participating in the litigation and of exercising his reason and will to terminate or continue the suit as he chooses.

Where an injured spouse is adjudged insane during the pendency of a divorce suit, although consent having been expressed by him through his institution of the action prior to adjudication of mental incompetency, he nevertheless lacks the will to exercise the all important prerogative of condonation; he lacks the will to effect a reconciliation; and he lacks the comprehension necessary to participate in prosecution of the action begun. In short, he lacks the will to proceed with or desist from the divorce action instituted or to exercise the right of condonation.

Wood, supra, at 201; accord, Scott v. Scott, 45 So.2d 878 (Fla.1950). Accordingly, that part of the final judgment granting dissolution is reversed.

Affirmed in part, reversed in part.

HOBSON, Acting C. J., and GRIMES, J., concur.

      . It should be noted that appellant has reduced previous arrearages to judgment which were then filed as judgment liens against assets of the appellee which were held in trust (either owned individually by appellee or jointly with appellant) and were the subject of independent legal proceedings by the United States I.R.S. for unpaid income taxes of appellee.

      . The trial court need not expressly reserve jurisdiction to modify an award of separate maintenance. See Kosch v. Kosch, 113 So.2d 547 (Fla.1959); § 61.14, Fla.Stat. (1975).