author: ELLIS, Judge:

text:
    Mary Louise BERNARD v. LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION et al.
    No. 10830.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Christopher Zaunbrecher, Rayne, for appellant.
    Floyd J. Falcon, Jr., Baton Rouge, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

On June 2, 1975, Mary Louise Bernard’s employment as a Custodial Worker II at Lafayette Charity Hospital was terminated. The letter of dismissal contained the following reasons for her termination:

“1. During the period November 27, 1974, through May 30, 1975, you have taken a total of 304 hours of leave time. Of this leave time you have taken 104 hours of sick leave; 112 hours of annual leave and 64 hours of compensatory leave.
“It is noted that the record indicates that you have taken eight long weekends and/or legal holidays. This has created a hardship in the operational procedures of the hospital.
“2. On December 17, 1974, in violation of hospital rules and regulations and during your working hours you circulated a written instrument to certain employees of this hospital without knowledge of proper supervision, disrupting hospital operations, and creating an atmosphere of dissent such as to be detrimental to the efficient operation of our hospital. (A copy is attached hereto and made a part thereof).
“3. On March 3, 1975, at approximately 9 a. m. in the area of the Clinic, you were observed to be smoking in a no smoking area designated as a high risk area in the hospital; namely, the Out-patient Clinic. You continued to smoke in spite of being asked by Mrs. Ernestine Broussard to stop smoking. A memo dated December 2, 1974, clearly delineates the smoking and the no smoking areas in this hospital. (A copy is attached hereto and made a part thereof).
“4. On May 12, 1975, at 7 a. m. you reported to work without your identification badge which is in strict violation of the policies of this hospital. This policy was instituted in an effort to keep security at a maximum level. (A copy is attached hereto and made a part thereof). “5. You failed to report for your assigned duty at 11 p. m. on the nights of May 25, 26, 27, 1975. You did report for duty at 11 p. m. on the night of May 28, 1975; however, you failed to bring in the required Doctor’s certificate which is a breach of policy at Lafayette Charity Hospital. For these three days you were given 0 time because of this breach of policy.
“At the insistence of your supervisor, you obtained a note dated May 29, 1975, and signed by Dr. Lamarche stating, ‘Above employee was seen on Admit Room on Monday 26 because of high blood pressure she was out of work 3 days.’ You presented this note to Mr. Dalton Perron when you reported for work at 11 p. m. on Thursday, May 29, 1975. All employees were reminded of the existing sick leave policy by written memo on May 5, 1975. (A copy is attached hereto and made a part thereof).
“6. On the night of May 29, 1975, you requested of Mrs. Thecle Stewart, Switchboard Operator, that she listen to a conversation between Mr. Dalton Perron and myself. Mrs. Stewart refused to do this and informed me of your request. This is not only a violation of hospital policy but also a serious invasion of privacy.
“7. On the night of June 1, 1975, you failed to report at 11 p. m. for your assigned duty. You did not notify anyone that you would not be coming to work, therefore, again violating the policies of this hospital. (See memo dated May 5, 1975, a copy is attached and made a part thereof).”

The dismissal was timely appealed to the State Civil Service Commission. After a hearing, the Commission ruled that the appointing authority had carried its burden of proof as to allegations 1 and 3 only, and that those offenses were not of sufficient gravity to justify her discharge. The Commission directed that Miss Bernard be placed on suspension without pay for 15 days from June 2,1975, and thereafter that she be reinstated to her position as Custodial Worker II. From that ruling, the State of Louisiana, through the Louisiana Health and Human Resources Administration, Southwest Charity Hospital, Lafayette, Louisiana, has appealed.

The first specification of error is that the Commission erred in finding that the appointing authority failed to prove allegation 6 of the letter of dismissal, that Miss Bernard asked the switchboard operator to listen in on a telephone conversation. The gist of the operator’s testimony is contained in the following exchange:

“Mr. Bell: Did Miss Bernard ever ask you to either listen in or permit her or anyone else to listen in on a telephone conversation?”
“A. No. She asked me if I could listen in.”
“Mr. Johnson: And what did you tell her?”
“A. I told her no.”
“Q. Did she ask you about listening in on any particular conversation?"
“A. Dr. Voorhies had called Dalton Per-ron. That was the conversation.”
“Q. She asked you about listening in on that?”
“A. If I could listen in — I told her no.”

It is contended by Miss Bernard that she was inquiring about the capabilities of the switchboard. The State interprets the above testimony to mean that Miss Bernard wanted the switchboard operator to listen in on the conversation and report what was said. The Commission found that there was no specific request made that the operator listen in. The above testimony is certainly susceptible of that interpretation, and there is therefore no manifest error in the Commission’s findings, particularly in light of the fact that the appointing authority now bears the burden of proving the correctness of its allegations of misconduct. Article 10, § 8, Constitution of 1974.

The State next contends that the Civil Service Commission no longer has the constitutional authority or the statutory authority to alter the sanction imposed on an employee by the appointing authority, if there exists legal cause for some disciplinary action.

It is argued that the authority of the Commission to change or reduce a penalty was based on Article XIV, Section 15(0)(3) of the Constitution of 1921, which provided:

“If any Commission after any hearing orders a dismissed or suspended employee reinstated, it may reinstate such employee under such conditions as it deems proper and may order full pay for lost time.”

The argument is without merit. The foregoing article simply states what the Commission can do in the event it decides on reinstatement. The fundamental authority to change or reduce the sanction imposed by the appointing authority was found in Article XIV, Section 15(0)(1) which gave the Commission the right to “hear and decide” appeals. The Supreme Court so held in Brickman v. New Orleans Aviation Board, 236 La. 143, 107 So.2d 422 (1958), and our courts have adhered to that interpretation. See Simmons v. Division of Employment Security, 144 So.2d 244 (La.App. 1 Cir. 1962).

Article 10, Section 12 of the Constitution of 1974 grants to the Commission the authority “to hear and decide all removal and disciplinary cases”, and we are of the opinion that it embodies the same authority as did Article XIV, Section 15(0)(1) of the Constitution of 1921.

The State also argues that the disposition of the case made by the appointing authority is subject to a presumption of correctness, and can only be altered if a strong evidentiary showing of its impropriety is made by the employee. This was not the law of this State prior to the adoption of the Constitution of 1974, and, in view of the fact that the appointing authority now bears the burden of proof in cases such as this, there is no basis for such a rule.

We turn now to the question of the propriety of reducing the sanction imposed by the appointing authority. Allegation No. 1 of the letter of dismissal was shown to be substantially correct, in that Miss Bernard did take 96 hours of sick leave, 112 hours of annual leave, and 64 hours of compensatory leave. The record further reflects, however, that she had many more hours of leave earned which were available to her. With respect to the sick leave taken, there was no showing that she was not sick, and she testified that she took no sick leave unless she was actually indisposed. She stated she suffered from high blood pressure, and had broken a toe during the period in question.

Allegation No. 3 is that Miss Bernard, on one occasion, smoked a cigarette in a no smoking area of the hospital, despite being told not to do so.

We believe that the decision of the Commission that those two offenses alone were not sufficiently serious to justify dismissal is neither arbitrary nor capricious, and is certainly well within the authority accorded to it by the Constitution.

The final point to be considered arises out of the following circumstances: the hearing herein was held on August 13, 1975, at which time the proceedings were recorded by some sort of recording device. The opinion was rendered on September 18, 1975. After the appeal was taken, it was discovered that the recording device had failed to function during part of the testimony of Miss Bernard and all of the testimony of one of her witnesses, Margaret Dural. The Commission ordered that the record be reconstructed by taking the testimony of these two witnesses before a referee. This was done over the objections of counsel for Miss Bernard and for the appointing authority.

It appears that there was some variance between the testimony of Miss Bernard at the original hearing and at the hearing conducted before the referee, George T. Hamner, Jr., on February 11, 1976.

In view of the shift in the burden of proof from the employee to the appointing authority made by the Constitution of 1974, and the granting thereby to this court of the authority to review the findings of fact of the Commission, it is essential that the transcript furnished this court contain the testimony on which the opinion below is based, or that the Commission and the parties comply with the provisions of Article 2130-2132 of the Code of Civil Procedure. Article 10, §§ 8, 12, Constitution of 1974.

We do not find it necessary to remand this case, however, because the only portion of the testimony taken at the second hearing which must be considered on this appeal is that of Miss Bernard relative to Allegation No. 6. Although it is that part of her testimony which appears to be inconsistent, we do not think it makes any difference to the decision herein, since we have already found that the State failed in its affirmative burden of proof as to that allegation.

The ruling of the Civil Service Commission is therefore affirmed. The State shall pay all costs for which it may be liable under the law.

AFFIRMED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Johnnie A. JONES v. The STATE of Louisiana et al.
    No. 11041.
    Court of Appeal of Louisiana, First Circuit.
    July 27, 1976.
    Writ Refused July 29, 1976.

      Adair G. Jones, Baton Rouge, for appellant.
    Carmack M. Blackmon, Asst. Atty. Gen., for State of La., Governor Edwards, Secretary of State Paul Hardy, President of the Senate Michael O’Keefe, and Speaker of the House E. L. Henry, Winston G. DeCuir, Baton Rouge (with Mr. Blackmon representing all of the above).
    Fred A. Kroenke and Theodore L. Jones, Baton Rouge, for Democratic State Central Committee and 19th Judicial District Committee (Bankston and Goodwin).
    Before COVINGTON, LOTTINGER, CHIASSON, EDWARDS and PONDER, JJ.

      . Albert Tate, Jr., Associate Justice of the Louisiana Supreme Court, then and now.

   PER CURIAM.

This is an appeal from the judgment of the Trial Court recalling, vacating, and setting aside the rule nisi previously issued by it for a preliminary injunction and dismissing appellant’s suit at his costs.

Defendants-Appellees are:

Honorable EDWIN W. EDWARDS, in his official capacity as Governor of the State of Louisiana;

Honorable PAUL J. HARDY, in his official capacity as Secretary of the State of Louisiana;

Honorable MICHAEL H. O’KEEFE, in his official capacity as President of the Senate of the State of Louisiana;

Honorable E. L. HENRY, in his official capacity as Speaker of the House of Representatives of the State of Louisiana;

Honorable JESSE H. BANKSTON, in his official capacity as Chairman of the Democratic State Central Committee of the State of Louisiana;

Honorable RANDALL GOODWIN, in his official capacity as Chairman of the Nineteenth Judicial District Democratic Committee of the State of Louisiana.

Jurisdiction of this Court on appeal is predicated on Code of Civil Procedure Article 2083, which provides that an appeal may be taken from an interlocutory judgment which may cause irreparable injury.

Plaintiff-appellant, Johnnie A. Jones, instituted these proceedings on July 13, 1976, seeking injunctive relief to enjoin the implementation of Act 46 of the Louisiana Regular Session of 1976 as respects the conducting of an election for a newly created judgeship within and for the Nineteenth Judicial District in and for the Parish of East Baton Rouge, State of Louisiana. The Trial Court issued a rule nisi and a hearing was held on July 16, 1976, at which time evidence, testimony and arguments of counsel were presented. For oral reasons assigned, later transcribed, the Trial Court rendered judgment on July 16, 1976, vacating, recalling and setting aside the rule nisi previously issued and dismissing plaintiff-appellant’s suit at his cost. Judgment was signed on July 19,1976, and plaintiff-appellant perfected this appeal on July 21, 1976.

Plaintiff-appellant seeks to have Act 46 of 1976 declared unconstitutional or alternatively to have this court re-open the qualifying period to enable him to qualify as a candidate for the newly created judgeship in and for East Baton Rouge Parish.

Plaintiff-appellant’s specifications of errors are:

“1. Whether a law that serves notice after its repeal upon those expected to be effected by it is invalid for want of compliance with LSA-C.C. article 4, which provides:
‘As laws can not be obligatory without being known, they must be promulgated.’
and, is, therefore, unconstitutional for failure to meet due process requirements? 2. Whether Act 46, of the 1976 Regular Session of the Louisiana Legislature, which fixed the qualification period for newly-created judgeships, is unconstitutional for want of promulgation prior to the repeal of Section 16 thereof, which mandated the qualification period to commence July 2, 1976 and to end 5:00 P.M. on July 5, 1976, the 3, 4 & 5 of July all being holidays?
3. Whether effective promulgation of laws is dispense with under the provision of Article III, Section 19, of the 1974 Constitution, merely because it provides that “any bill may specify an earlier or later effective date”?”

Specification of Error No. 1.

Act 46 of 1976, was duly passed by the Legislature and signed by the appropriate officers on June 30, 1976. The Act was received by the Governor on June 30, 1976, at 2:50 P.M., and then signed by him on the same date. It was filed with the Secretary of State and recorded by him on that same day. Section 18 of Act 46 of 1976 provides:

“Section 18. This Act shall become effective upon signature by the governor or, if not signed by the governor, upon expiration of the time for bills to become law without signature by the governor, as provided by Article III, Section 18 of the Constitution.”

Promulgation is “The order given to cause a law to be executed, and to make it public; it differs from publication.” Black’s Law Dictionary, 4th Ed. p. 1380.

Under Article 4, Section 7 of the Louisiana Constitution of 1974, the Secretary of State shall “promulgate and publish all laws enacted by the legislature.” (underscoring supplied)

The distinction between promulgation and publication was recognized by the drafters of the Louisiana Constitution of 1974. In the discussion of Article 3, Section 19 of the Constitution it was stated:

“MR. WILLIS
Mr. Justice Tate, don’t you think that the ... an explanation of the distinction between promulgation and publishing would be edifying to understand what you are driving at?
MR. TATE
Yes. Would you ask it in the form of a question because . .
MR. WILLIS
Well, let me ask you this question. Isn’t it a fact that the Secretary of State promulgates the laws? — and that you are talking about publishing in the State-Times, and that there is a distinction between the two?
MR. TATE
Yes, sir. That’s exactly right.”

Louisiana Constitutional Convention, XXIX Proceedings (89th Day, November 18, 1973) pg. 99.

We are of the opinion that Act 46 of 1976 was promulgated on June 30, 1976, when it was received and recorded by the Secretary of State.

Having been promulgated prior to the opening of the qualification period, there is no violation of Article 4 of the Louisiana Civil Code.

Act 46 of 1976 was enacted as required by law. There was no denial of due process because there was no act contrary to law. The record reflects that no one person was given an advantage over another because information as to the creation of the new judgeship was published in local newspapers. Further, it appears that qualifying was not accomplished in a secret manner. The record indicates that prospective candidates made numerous inquiries to Mr. Randall Goodwin, Chairman of the 19th Judicial District Committee, as to the qualifying period.

Specification of Errors No. 2 and No. 3.

These specifications of errors will be treated together. Because the appellant stated in his oral argument that he considered the words “promulgation” and “publication” to be synonymous we will treat them as such in our consideration of his specification of errors even though, for reasons already stated, we do not consider them synonymous.

Article 3, Section 19 of the Louisiana Constitution of 1974 provides:

“Section 19. All laws shall take effect on the sixtieth day after final adjournment of the session in which they were enacted, and shall be published prior thereto in the official journal of the state as provided by law. However, any bill may specify an earlier or later effective date.”

We are of the opinion that the delegates to the Constitutional Convention of 1973 in adopting the language in the above quoted article and section intended no substantive change from that language as found in Article 3, Section 27 of the Louisiana Constitution of 1921. Thus, in certain instances it is possible for a legislative act to be effective prior to its publication. State v. St Romain, 292 So.2d 531 (La.1974).

This was recognized by LSA-R.S. 43:87 as amended by Act 1 of the First Extraordinary Session of 1975, enacted following the adoption of the Constitution of 1974, which provides in part:

“The state printer of the Official Journal of the State shall print in full in the official Journal of the State all laws and joint resolutions to the legislature. All acts, including joint resolutions, shall be published in the Official Journal of the State prior to the sixtieth day after final adjournment of the session in which they are enacted. Any act which contains an effective date prior to the sixtieth day after final adjournment shall be printed prior to the effective date contained therein, if possible, or, if not possible, as soon as possible after said effective date. * * * ” (Emphasis supplied)
Section 16 of Act 46 of 1976 provides: “Except as provided in Section 19 of this Act, the qualification period for the judges to fill the posts created herein shall commence on July 2, 1976, and shall end at 5:00 P.M. on July 5, 1976.”

In this instance the Act became effective upon signature of the governor and promulgation by the Secretary of State.

In oral argument before this Court the appellant contended that there was an abuse of discretion in fixing the qualification time. Considering that the Legislature, in creating this new judgeship, called for the election to be held concurrently with the congressional election, and further considering that this act was finally passed by the Legislature on June 30,1976, and signed by the governor on that date, we do not believe that there was any abuse of discretion in fixing a qualifying period to commence July 2, 1976 and end at 5:00 P.M. on July 5, 1976.

In the Trial Court, plaintiff-appellant argued that Act 46 of the 1976 Regular Session was a “local or special” law and thus violative of Art. 3, Section 13, Louisiana Constitution (1974) for failure to publish the intention to introduce this legislation. Inasmuch as appellant has neither briefed nor argued orally this point before this Court, we consider it abandoned.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed at appellant’s cost.

AFFIRMED.


author: MILLER, Judge.

text:
    Carrie Mae HALL et al., Plaintiffs-Appellees, v. Greggory J. PONDS et al., Defendants-Appellants.
    No. 5594
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Gist, Methvin & Trimble, by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.
    J. Q. Davis, of Bethard & Bethard, Cous-hatta, for defendants-appellants.
    Bice & Wiley, by Charles B. Bice, Winn-field, for plaintiffs-appellees.
    Before MILLER, DOMENGEAUX, and WATSON, JJ.
   MILLER, Judge.

Following oral argument of this case, both parties learned they had received an incorrect notice of judgment indicating the trial court signed the judgment submitted by one party when in fact the trial court signed the judgment submitted by the other party. The appeal was perfected on the basis of the wrong judgment.

LSA-C.C.P. arts. 1913 and 1974 contemplate that the Clerk of Court shall mail a correct notice of judgment in order to begin the delays for taking an appeal.

To protect both parties we are dismissing this appeal and remanding the case to the trial court to allow the parties to receive a correct notice of judgment. LSA-C.C.P. art. 2164. The parties can then protect their interests by taking new appeals. Costs of this appeal will be taxed when this litigation is next before us.

REMANDED.


author: SIEGENDORF, ARDEN M., Circuit Judge: HATCHETT, Justice

text:
    STATE of Florida, Petitioner, v. Gwendolyn TERRY, Respondent.
    No. 46370.
    Supreme Court of Florida.
    Feb. 25, 1976.
    Rehearing Denial April 22, 1976.

      Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for petitioner.
    Louis O. Frost, Jr., Public Defender, and James O. Brecher and Steven E. Rohan, Asst. Public Defenders, Jacksonville, for respondent.
   SIEGENDORF, ARDEN M., Circuit Judge:

By petition for certiorari, we have for review a decision of the District Court of Appeal, First District, (Terry v. State, 302 So.2d 142). The District Court, finding two issues to be of great public interest, certified the cause to the Supreme Court pursuant to Article V, 3(b) 3, Florida Constitution.

The first issue certified concerned the trial court’s refusal to instruct the jury on the applicable penalties as provided by Rule 3.390(a), F.R.Cr.P. The District Court held that it was error to refuse Respondent’s request that the jury be so instructed.

Subsequent to filing of the instant proceeding, but prior to oral argument, this Court decided Johnson v. State, 308 So.2d 38 (Fla.1975). Johnson held that Rule 3.-390(a), supra, was discretionary, not mandatory, and that the trial judge was not obliged to include in his instructions the penalty for the offense charged. That rule clearly applies to the case sub judice. Accordingly, we pretermit further discussion of this issue and remand same to the District Court for further proceedings consistent herewith.

The second question certified concerns the refusal of the trial court to instruct the jury as to certain lesser-inoluded offenses. See Rule 3.510, F.R.Cr.P.

Respondent was charged by information with the crime of assault with the intent to commit murder in the first degree. The jury found Respondent guilty of aggravated assault after considering her testimony that she shot the victim with a pistol in self defense. The trial judge instructed the jury on the offenses of assault with intent to commit murder in the first degree, assault with intent to commit murder in the second degree, assault with intent to commit manslaughter, aggravated battery, and aggravated assault, but refused to instruct the jury on assault and battery, and bare assault. The District Court affirmed the trial court in this regard, holding that under the evidence presented, it was not error to refuse to so instruct the jury.

Respondent contends that under Brown v. State, 206 So.2d 377 (Fla.1968) and its progency, the failure of the trial court in the instant case to instruct the jury on assault and battery, and bare assault, is reversible error.

In Brown v. State, supra, Justice Thor-nal presented an historical analysis of lesser-included offense situations and a definitive statement of applicable rules. Lesser-included offenses were classified into four distinct categories: 1) crimes divisible into degrees; 2) attempts to commit offenses; 3) offenses necessarily included in the offense charged; and 4) offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Addressing himself to the third category, Justice Thor-nal stated that:

“This category also stems from [Fla. Stat.] § 919.16, which requires an instruction on ‘any offense which is necessarily included in the offense charged’. The statutory mandate here requires that the lesser offense be necessarily included in the major offense charged by the accusatory pleading. This simply means that the lesser offense must be an essential aspect of the major offense. In other words, the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. For example, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny. Arnold v. State, 83 So.2d 105 (Fla.1955). It is legally impossible to prove a robbery without also proving a larceny. In such a situation, § 919.16, requires the instruction on the lesser offense, even though the proofs might satisfy the trial judge that the more serious offense was committed. This is so because under the quoted statute it is not within his province to make this decision. Section 919.-16, grants to the jury the discretion to convict of a necessarily included lesser offense, . . .”

Just as it is legally impossible to prove a robbery without also proving a larceny, so too it is legally impossible to prove an assault with intent to commit murder in the first degree without also proving a bare assault. Therefore, if the trial judge in the case sub judice found sufficient evidence to instruct the jury on the major offense of assault with intent to commit murder in the first degree, he should have instructed the jury on the necessarily included lesser offense of bare assault.

Petitioner cites Rafuse v. State, 209 So.2d 260 (Fla.App. 1st 1968) for the proposition that the trial court properly declined Respondent’s request that the jury be instructed on the offenses of assault and battery, and bare assault. In Rafuse, the First District Court of Appeal relied upon Tanner v. State, 197 So.2d 842 (Fla.App. 1st 1967). The rationale for Rafuse and Tanner is that a judge is not required to instruct on lesser-included offenses if he is convinced the major offense has been proven. In Hand v. State, 199 So.2d 100 (Fla.1967), this Court specifically rejected this doctrine.

“There is authority supporting the proposition that a trial court is not in error in refusing to instruct the jury on the lesser included offense of larceny when the court is of the opinion the evidence adduced is not reasonably susceptible of inference by the jury that the articles involved were taken from the victim without force, violence, assault, or putting in fear. See, for example, Brown v. State, Fla.App., 191 So.2d 296, and Silver v. State, Fla.App., 174 So.2d 91. We do not, however, agree with this view, although it has been advanced and even prevailed in appellate decisions in our state. The giving of such instruction should not hinge upon whether the trial court believes the evidence is susceptible of inference by the jury that the defendant is guilty of the lesser offense and not of the greater offense charged. In our opinion such judicial determination at trial level obviously takes a most critical evidentiary matter from the proper province of the jury and vests it improperly as a matter of law with the trial judge. Would it be, we ask hypothetically, consistent with trial fairness to allow the state to charge a person with robbery and in the event of acquittal bring him back into court for another trial on a subsequent charge of larceny which stemmed solely from the commission of the robbery offense originally charged? We answer in the negative. Such a defendant being tried for robbery should upon timely request be permitted to have an instruction on larceny, a necessarily included element of robbery both in statutory definition and in general law, given to the jury for its consideration.”

Recognizing the confusion surrounding Brown and its progeny, Justice Dekle, in Gilford v. State of Florida, 313 So.2d 729 (Fla.1975), attempted to clarify the entire subject. In a category three-type necessarily lesser-included offense, proof of the lesser-included offense inheres in the evidence of the greater offense. Where proof of the lesser offense may nor may not be included in the offense charged, as in a category four-type lesser-included offense, then the trial judge should instruct the jury on the lesser offense if the allegata and probata are present, with the one exception explained in Gilford which is inapplicable to the instant case. In other words, in a category four-tyue lesser-included offense, a judge should instruct the jury on a lesser-included offense only after making a determination that such lesser-included offense has an evidentiary basis in the accusatory pleading and the proof tendered in support thereof. As explained by Justice Thornal in Brown,

“In the first three categories, the offenses of which the defendant may be convicted can be determined from the information or indictment and the cited statutes. In category four situations the lesser offense must be comprehended by the allegations of the information and supported by the proof.” 206 So.2d at 383.

Sub fudice, proof of the greater offense of assault with intent to commit murder in the first degree was also proof of the necessarily included lesser offense of bare assault. Accordingly, an instruction on bare assault should have been given. However, proof of the greater offense of assault with intent to commit murder in the first degree is not always proof of assault and battery. Thus, assault and battery comes within the ambit of Brown’s category four.

The crime of assault and battery requires both an assault and a battery. Since the crime which the Respondent is charged with, to-wit: assault with the intent to commit murder in the first degree, does not require proof of a battery, the offense of assault and battery is not a necessarily included lesser offense. But when, as in the case at bar, the accused is charged with not only assaulting the victim with the intent to commit murder in the first degree, but also of causing some actual physical contact with the victim, then the greater crime of assault with intent to commit murder in the first degree includes the lesser crime of assault and battery. Since the information charged the Respondent with shooting the victim, and the evidence revealed that the victim was shot with a pistol, it is apparent that the major crime for which the Respondent was charged did include the lesser offense of assault and battery. We note that the jury was instructed on both aggravated assault, and aggravated battery. Hence, the refusal of the trial court to give the requested instruction on assault and battery was error.

To summarize, the refusal of the trial court herein to instruct the jury on the category three necessarily included lesser offense of bare assault, and on the category four lesser-included offense of assault and battery, was prejudicial error.

Any prior appellate decisions conflicting with the principles announced herein are expressly overruled. The decision of the District Court is quashed and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

ADKINS, C. J., and ROBERTS and OVERTON, JJ., concur on the first question certified, but dissent on the second question certified.

SUNDBERG, J. and SALFI, Circuit Court Judge,

dissent on the first question certified, but concur on the second question certified.

HATCHETT, J., concurs with an opinion, with which SALFI, Circuit Judge, concurs.

HATCHETT, Justice

(concurring).

I concur in the judgment of the Court and subscribe to that portion of Judge Sie-gendorf’s opinion devoted to jury instructions on lesser included offenses. As to whether the trial judge had a duty “to include in his instructions the penalty for the offense charged,” ante, the decision in Johnson v. State, 308 So.2d 38 (Fla.1974) must control if the principle of stare decis-is is to be honored. I agree that the principle of stare decisis should apply to such recent precedent. Otherwise we would introduce uncertainty, instability and confusion into the law not only on this particular question but generally. In my opinion, however, the Johnson decision itself has done serious damage to the values of certainty, stability and comprehensibility in an important area of the law. I write in this case to dissociate myself from the proposition that mandatory language in court rules signifies nothing different than directory language.

This Court has the responsibility for promulgating “rules for the practice and procedure in all courts.” Fla.Const. art. V, § 2(a). It thus has the constitutional power to amend a rule of procedure. In practical effect, the Court did just that with respect to Rule 3.390(a), RCrP in Johnson v. State, supra. But the means employed raise serious questions as to the viability of all other court rules. The unequivocal language of Rule 3.390(a), RCrP reads, as follows:

The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.

In Johnson v. State, supra, the Court announced that Rule 3.390(a), RCrP “is directory and not mandatory.” At 40.

The reasoning in the Johnson case is subversive of the whole body of court rules. With Johnson, it is now impossible for this Court to impose a mandatory, procedural requirement by court rule. The supposed distinction between mandatory language in Rule 3.390(a), RCrP and mandatory language elsewhere in the criminal rules is specious. The rationale of the Johnson decision is that language almost identical to the language of Rule 3.390(a), RCrP is also found in a statute, and that this statute was construed to be directory rather than mandatory, before Rule 3.-390(a), RCrP was adopted. Simmons v. State, 160 Fla. 626, 36 So.2d 207 (1948). But it has been held that every statute on a procedural subject must be construed as directory, and a majority of the rules of criminal procedure were formerly enacted as statutes.

Shortly after this Court adopted the first Rules of Criminal Procedure, In re Florida Rules of Criminal Procedure, 196 So.2d 124 (Fla.1967), the chairman of the Criminal Rules Subcommittee wrote, as follows:

Actually, most of the Rules are patterned after statutes which were in existence at the time the Rules were adopted; and, in many instances the statutes were lifted verbatim and placed into the Rules. Datz, Florida’s New Rules of Criminal Procedure, 42 Fla.Bar J. 285 (1968).

The State’s effort to distinguish the mandatory language in Rule 3.390(a), RCrP, from all other mandatory language in the Rules of Criminal Procedure, is unconvincing, “[sjince most were patterned after existing procedural statutes.” Note, The Rulemaking Power of the Florida Supreme Court: The Twilight Zone Between Substance and Procedure, 24 U.Fla.LRev. 87, 90 (1971). (emphasis supplied) Listed in an appendix to this opinion are those-Rules of Criminal Procedure which, according to the committee notes, are based, in whole or in part, on language originally appearing in a statute.

Furthermore, it is not clear why, in the Johnson opinion, “the matter [was] referred to the Committee on Standard Criminal Jury Instructions for immediate consideration.” At 40. What is the committee to consider? What can the committee do about a court which one year unanimously adopts a rule requiring that something must be done, In re Florida Rules of Criminal Procedure, 272 So.2d 65, 115 (Fla.1973), and the next year announces that must means may for purposes of the rule? Johnson v. State, supra. Committees do not adopt rules of practice and procedure for Florida courts. This Court does. If the Court has decided that Rule 3.390(a), RCrP should be amended, so be it. But judicially created confusion of the kind generated by Johnson v. State, supra, should have no place in the jurisprudence of Florida.

SALFI, Circuit Judge, concurs.

APPENDIX

RULES OF CRIMINAL PROCEDURE ADOPTING LANGUAGE FROM STATUTES, ACCORDING TO ACCOMPANYING COMMITTEE NOTES

Rule 3.121 Rule 3.130 Rule 3.131

Rule 3.140 Rule 3.150 Rule 3.152

Rule 3.160 Rule 3.170 Rule 3.180

Rule 3.190 Rule 3.210 Rule 3.220

Rule 3.230 Rule 3.240 Rule 3.250

Rule 3.270 Rule 3.280 Rule 3.290

Rule 3.300 Rule 3.320 Rule 3.330

Rule 3.340 Rule 3.350 Rule 3.360

Rule 3.370 Rule 3.380 Rule 3.390

Rule 3.400 Rule 3.410 Rule 3.420

Rule 3.430 Rule 3.440 Rule 3.450

Rule 3.460 Rule 3.470 Rule 3.490

Rule 3.500 Rule 3.510 Rule 3.520

Rule 3.530 Rule 3.540 Rule 3.550

Rule 3.560 Rule 3.570 Rule 3.580

Rule 3.590 Rule 3.600 Rule 3.610

Rule 3.620 Rule 3.630 Rule 3.640

Rule 3.650 Rule 3.670 Rule 3.680

Rule 3.690 Rule 3.700 Rule 3.720

Rule 3.730 Rule 3.740 Rule 3.750

Rule 3.760 Rule 3.770 Rule 3.790

Rule 3.800 Rule 3.810 Rule 3.820

Rule 3.840

      . The rule decided in Johnson, supra, has been followed by this Court in Winston v. State, 308 So.2d 40 (Fla.1975); Dorminey v. State, 314 So.2d 134 (Fla.1975) and Lavatt v. State, 316 So.2d 261 (Fla.1975). Also by the District Courts of Appeal in Boykin v. State, 305 So.2d 831 (Fla.App. 1st 1975); Howard v. State, 306 So.2d 153 (Fla.App. 1st 1975); McIntyre v. State, 306 So.2d 160 (Fla.App. 4th 1975); Ballard v. State, 307 So.2d 826 (Fla.App. 1st 1975); Cooper v. Wainwright, 308 So.2d 182 (Fla.App. 4th 1975); Gomez v. State, 309 So.2d 56 (Fla.App. 2d 1975); Pullman v. State, 311 So.2d 753 (Fla.App. 3rd 1975); Sweet v. State, 313 So.2d 130 (Fla.App. 2nd 1975); Beamon v. State, 314 So.2d 604 (Fla.App. 3rd 1975); Wheat v. State, 315 So.2d 203 (Fla.App. 1st 1975); Roper v. State, 315 So.2d 206 (Fla.App. 1st 1975); Howard v. State, 316 So.2d 654 (Fla. App. 3rd 1975); Kelsey v. State, 317 So.2d 445 (Fla.App. 1st 1975) and Davis v. State, 319 So.2d 611 (Fla.App. 3rd 1975).

      . E. g., Brown v. State, 245 So.2d 68 (Fla.1971); State v. Washington, 268 So.2d 901 (Fla.1972); State v. Anderson, 270 So.2d 353 (Fla.1972); Rayner v. State, 273 So.2d 759 (Fla.1973); State v. Wilson, 276 So.2d 45 (Fla.1973).

      . Of more than one hundred rules of criminal procedure, only thirteen are completely devoid of mandatory language (“shall” or “must”) : Rule 3.050, Enlargement of Time; Rule 3.120, Committing Magistrate; Rule 3.150, Joinder of Offenses and Defendants; Rule 3.231, Substitution of Judge; Rule 3.-260, Waiver of Jury Trial; Rule 3.310, Time for Challenge; Rule 3.420, Recall of Jury for Additional Instructions; Rule 3.-520, Verdict in Case of Joint Defendants; Rule 3.540, When Verdict May be Rendered; Rule 3.550, Disposition of Defendant; Rule 3.580, Court May Grant New Trial; Rule 3.630, Sentence Before or After Motion Piled; Evidence At Hearing; Rule 3.650, Judgment Defined.
      Aside from rules of criminal procedure, numerous other court rules employ mandatory language.

      . Codified as Fla.Stat. § 918.10(1) (1973), the statute provides:
      At the conclusion of argument of counsel, the court shall charge the jury. The charge shall be only on the law of the case and must include the penalty for the offense for which the accused is being charged.
      As Fla.Laws, ch. 70-339 § 117, it was recently reenacted by unanimous vote of the House, 1970 Journal of the House 1275, and of the Senate. 1970 Journal of the Senate 907.

      . The Court, and not the legislature, has the responsibility for adopting rules governing practice and procedure, in the first instance. Where a court rule conflicts with a statute, the latter must fall, e. g., Bernhardt v. State, 288 So.2d 290 (Fla.1974), unless the legislature repeals the court rule “by general law enacted by two-thirds vote of the membership of each house.” Fla.Const. art. V, § 2 (a). Where a statute governs a procedural matter but does not conflict with a court rule, there are two lines of cases in Florida. Under one view, mandatory language in the statute should be given mandatory effect. E. g., State v. Dixon, 283 So.2d 1 (Fla.1973). Under the other view, mandatory language in the statute is construed to authorize, but not to require the procedure. E. g., Simmons v. State, supra; McBride v. State, 197 So.2d 850 (Fla.App.1st Dist.1967). In Simmons v. State, supra, at 208, this Court said:
      The preservation of the inherent powers of the three branches of government — legislative, executive, and judicial — free from encroachment or infringement by one upon the other, is essential to the safekeeping of the American system of constitutional rule. This statement is found (11 Am.Jur., p. 908) :
      Any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional.
      Quoting language from Becker v. Lebanon & M. St. R. Co., 188 Pa. 484, 41 A. 612 (1898), the Court said further, at 209:
      The word “shall” when used by the Legislature to prescribe the action of a court is usually a grant of authority, and means “may,” and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power.
      It is a rule of statutory construction that an interpretation will be adopted which will avoid objectionable consequences. 50 Am.Jur., p. 372 et seq.
      The provision of the statute in question must be interpreted as being merely directory, and not mandatory. It follows that the trial judge was privileged to ignore the statute in so far as it attempts to require the inclusion in the charge of the penalty for the offense for which the defendant was on trial.
      It is one thing for the trial judge to be “privileged to ignore” a statute purporting to regulate procedure, but it is quite a different thing for the trial judge to be “privileged to ignore” a rule of criminal procedure adopted by this Court. See Wills, Criminal Law Survey, 140 Miami L.Rev. 521, 529 (1960).


author: ROBERTS, Justice.

text:
    Mercedes M. RAMOS, Petitioner, v. NORTHWESTERN MUTUAL INSURANCE COMPANY and Lawrence J. Williams, Respondents.
    No. 48510.
    Supreme Court of Florida.
    May 26, 1976.
    Rehearing Denied Aug. 31, 1976.

      Edward A. Perse, of Horton, Perse & Ginsberg, and Grover Ciment, Weinstein & Stauber, Miami Beach, for petitioner.
    Magill & Sevier, P.A., and Jeanne Hey-ward, Miami, for respondents.
   ROBERTS, Justice.

This cause is before us on petition for writ of certiorari, buttressed by the District Court of Appeal, Third District’s certificate that in disposing of the cause, it had passed upon a question of great public interest. We have jurisdiction pursuant to Article V, Section 3(b)(3).

The controlling question in the cause certified to us by the District Court involves whether or not an automobile insurance carrier may still be permitted to avoid liability pursuant to a provision in its contract requiring the insured to give his cooperation in connection with any claim of which the carrier would have responsibility under the contract notwithstanding recent developments in the law. These recent developments referred to include Florida’s Financial Responsibility Act, provisions contained in Florida Automobile Reparations Reform Act, and decisions of this Court including Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), Beta Eta House Corp., Inc. v. Gregory, 237 So.2d 163 (Fla.1970), Thompson v. Commercial Union Ins. Co., 250 So.2d 259 (Fla.1971), Stecher v. Pomeroy, 253 So.2d 421 (Fla.1971), Godshall v. Unigard Ins. Co., 281 So.2d 499 (Fla.1973), and Allred v. Chittenden Pool Supply Co., Inc., 298 So.2d 361 (Fla.1974).

Petitioner, Mercedes Ramos, sued Lawrence Williams and Respondent Northwestern Mutual Insurance Company to recover for injuries resulting from an automobile collision proximately caused by the negligence of Williams. Respondent Northwestern answered admitting the issuance of the policy of automobile liability insurance to defendant Williams but further affirmatively alleging that the policy of insurance does not provide coverage for the defendant in this case because the accident was not reported by him to his insurance carrier nor has he cooperated with Northwestern as required by the terms of the policy of automobile liability insurance. The trial judge granted Northwestern’s motion to sever the trial on coverage from the original claim relating to liability and damages. Except as to the issue of coverage the cause proceeded by jury trial on October 21, 1974, and verdict was returned in the amount of $52,037.00. Final judgment was entered against Williams in the amount of $52,037.00. Entry of judgment with respect to Northwestern was reserved by the trial court for determination at a later date.

After non-jury trial on the issue of insurance coverage, examination of the pleadings, evidence, and memoranda of law submitted by the respective parties, the trial court entered final judgment finding no coverage by the insurance carrier because of the total non-cooperation of the insured. Specifically, the trial court made the following findings of fact and conclusions of law:

“1. The plaintiff and Lawrence J. Williams, hereinafter referred to as WILLIAMS, were involved in a motor vehicular accident on November 28, 1969. At the time, WILLIAMS was the insured under a policy of automobile liability insurance issued by Northwestern Mutual Insurance Company, hereinafter referred to as NORTHWESTERN.
“2. On August 9, 1971, the plaintiff initiated this action against WILLIAMS and NORTHWESTERN.
“3. ' NORTHWESTERN answered plaintiff’s complaint alleging, among other things, that there was no coverage for WILLIAMS because of his failure to give NORTHWESTERN notice of the accident and his failure to cooperate with NORTHWESTERN.
“4. Actual service of process was never made upon WILLIAMS, notwithstanding valiant and persistent efforts by plaintiff’s counsel to locate WILLIAMS and effect such service.
“5. Upon appropriate motion the Court found that WILLIAMS was concealing his whereabouts and attempting to avoid service of process and, accordingly, impressed jurisdiction over WILLIAMS on May 2, 1974.
“6. The cause proceeded to trial, except as to the issue of coverage, on October 21, 1974, and verdict was returned for plaintiff in the sum of $52,037.00.
“7. NORTHWESTERN received notice of the accident from plaintiff’s counsel on December 29, 1969. However, WILLIAMS never contacted NORTHWESTERN, failed to report the accident, failed to notify NORTHWESTERN of his apparent changes of address and, despite efforts of NORTHWESTERN and plaintiff’s counsel, was never located.
“8. WILLIAMS breached the terms of the policy issued by NORTHWESTERN because of his total failure to cooperate. Further, the breach was material and substantially prejudiced NORTHWESTERN.
“It is, therefore, the opinion and judgment of this Court that WILLIAMS was not entitled to coverage under the policy and that NORTHWESTERN was correct in its denial of coverage. The plaintiff relies in part upon the case of American Fire and Casualty Company v. Collura, Fla.[App.] 1964, 163 So.2d 784. Such reliance, however, is misplaced because there the insured notified his carrier of the accident and his whereabouts were known to all parties throughout the proceedings. Further, in considering the issue of cooperation in that case the Second District Court of Appeal stated at page 788:
“ ‘In considering the issue of breach of a cooperation clause in an insurance policy, it must always be borne in mind that in order for the company to avoid liability by reason of the insured’s breach, the company must show that it has exercised diligence and good faith in bringing about the cooperation of the insured, and that it has in good faith complied with the terms and conditions of the policy, [cases cited] On the other hand the insured is bound to cooperate with his insurer and to abide, 'both in letter and in spirit, with the terms of the contract; or he should at least be held to reasonably strict compliance with the terms thereof.’
“Here, not only did NORTHWESTERN exercise diligence in attempting to locate WILLIAMS but, also, was precluded by WILLIAMS’ concealment from ‘bringing about’ his cooperation. Moreover, WILLIAMS totally disregarded his own responsibility in the premises. [Emphases supplied]”

Plaintiff appealed to the District Court of Appeal, Third District, which affirmed the judgment of the trial court although expressly stating that it did so in reliance on past precedent. The District Court opined that the plaintiff made a persuasive argument and but for precedent and this Court’s ruling in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), wherein this Court stated that District Courts should not change law as a matter of public policy, the District Court would have been inclined to reverse the trial court’s judgment. Relative to existing precedent, the District Court stated:

“Under existing Florida law, we conclude that the trial judge’s order should be affirmed. American Fire and Casualty Company v. Vliet, 148 Fla. 568, 4 So.2d 862; American Fire and Casualty Company v. Collura, Fla.App.1964, 163 So.2d 784; Bordettsky v. Hertz Corporation, Fla.App.1965, 171 So.2d 174; Anno. 60 ALR2d 1146. However, the appellant has made a persuasive argument that because of the modern trend of requiring that motorists carry insurance [§ 627.733, Fla.Stat.; 7 Am.Jur.2d, Automobile Insurance, §§ 4, 6] insurance carriers are real parties in interest in automobile accident litigation. Stecher v. Pomeroy, Fla.1971, 253 So.2d 421; Godshall v. Unigard Insurance Company, Fla.1973, 281 So.2d 499; Allred v. Chittenden Pool Supply Inc., Fla.1974, 298 So.2d 361. That, because of the mandatory requirements of the no fault insurance act adopted in recent years in Florida, these older decisions should be ignored and the law should be changed as a matter of public policy and a carrier should suffer the responsibility of finding its insured and, if it could not, it should then be required to respond for any damages within the limits of its policy to the injured innocent party and be left to its remedy by seeking indemnification from its insured.”

The District Court concluded that it would certify the matter to this Court as one passing upon a question of great public interest in that it determines that, notwithstanding recent developments in the law, an automobile insurance carrier may still be permitted to avoid liability pursuant to a provision in its contract requiring the insured to give his cooperation in connection with any claim of which the carrier would have responsibility under the contract.

Respondent, Insurance Company, suggests in line with past precedent of this Court and other Florida Appellate Courts, that where an insured has a contractual duty to cooperate with the insurer and there is undisputed evidence that the insured failed to cooperate, thereby breaching his contractual obligation to the substantial prejudice of the insurer in that the insurer was (1) unable to confirm that the vehicle listed was the one involved in the accident, (2) unable to determine the liability situation, (3) unable to determine if there were any passengers in the vehicle in order to obtain their version of the in-tersectional accident and the existence of injuries inasmuch as the police report indicated no visible injuries, and (4) unable to obtain the insured’s cooperation in the defense of the case, an automobile insurance carrier may still be permitted to avoid liability based upon lack of cooperation. Respondent posits that neither Florida Statutes nor recent Florida decisions have abrogated the insured’s duty to cooperate. Sub judice, the trial court found that the insured failed completely to cooperate with Northwestern Mutual and found that this breach of the terms of the insurance policy was material and substantially prejudiced Northwestern Mutual. Restating the findings and conclusions of the trial court, the District Court affirmed the final judgment denying coverage.

In light of current public policy as reflected by Shingle ton v. Bussey, supra, and its progeny, petitioner requests that this Court recede from the Florida decisions which stand for the proposition that an insurer may deny coverage and avoid payment of compensation to the victim of the insured’s tort where the insured has been guilty of lack of cooperation which is material and is of such a nature as would substantially prejudice the rights of the insurer, where the insurer has exercised diligence and good faith in seeking to bring about the cooperation of the insured, and where the insurer has in good faith complied with the terms and conditions of the policy.

Relating to petitioner’s assertion that the financial responsibility law renders obsolete the defense of prejudicial non-cooperation, the District Court of Appeal, Third District, in Atlantic National Insurance Co. v. Johnson, 178 So.2d 733 (Fla.App. 3, 1965), held that the financial responsibility law does not preclude the insurer from raising the defense of failure to give notice to the insurer for a period of seventeen months after the accident at which time Allstate, the insurer of the other vehicle involved in the accident, notified it.

We are not unmindful of the decisions cited by petitioner, but we adhere to the general philosophy of the precedent set out in American Fire and Casualty Co. v. Vliet, supra; American Fire and Casualty Co. v. Collura, supra; and Bordettsky v. Hertz Corporation, supra. American Universal Insurance Co. v. Stotsberry, 116 So.2d 482 (Fla.App. 3, 1959), Barnes v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Co., 146 So.2d 119 (Fla.App. 3, 1962), cert. den. 153 So.2d 305 (Fla.1963). We do not feel that the compulsory insurance law or third party beneficiary concept are sufficient justification to recede from that reasoning.

This Court in American Fire and Casualty Co. v. Vliet, supra, emphasized that to constitute the breach of a policy, the lack of cooperation must be material and the insurance company must show that it was substantially prejudiced in the particular case by failure to cooperate. Furthermore, as is stated in Collura, supra, the insurer must show that it has exercised diligence and good faith in bringing about the cooperation of its insured and must show that it has complied in good faith with the terms of the policy.

Not every failure to cooperate will release the insurance company. Only that failure which constitutes a material breach and substantially prejudices the rights of the insurer in defense of the cause will release the insurer of its obligation to pay. The question of whether the failure to cooperate is so substantially prejudicial as to release the insurance company of its obligation is ordinarily a question of fact, but under some circumstances, particularly where the facts are admitted, it may well be a question of law. Cf. Norwich Union Indemnity Co. v. Willis, 124 Fla. 137, 168 So. 418 (1936), American Fire and Casualty Co. v. Vliet, supra, and American Fire and Casualty Co. v. Collura, supra.

Accordingly, the decision of the District Court is affirmed and the writ is discharged.

It is so ordered.

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

ADKINS, J., dissents.

      . Section 324.011, Florida Statutes, announcing the purpose of the Financial Responsibility Act provides:
      “It is the intent of this chapter to recognize the existing rights of all to own motor vehicles and to operate them on the public streets and highways of this state when such rights are used with due consideration for others; to promote safety, and provide financial security by such owners and operators whose responsibility it is to recompense others for injury to person or property caused by the operation of a motor vehicle, so it is required herein that the owner and operator of a motor vehicle involved in an accident shall respond for such damages and show proof of financial ability to respond for damages in future accidents as a requisite to his future exercise of such privileges.”

      . American Fire and, Casualty Co. v. Vliet, supra; American Fire and Casualty Co. v. Collura, supra; Bordetisky v. Hertz Corporation, supra.


text:
    THE FLORIDA BAR. In re E. Jackson HAASZE.
    No. 49671.
    Supreme Court of Florida.
    July 30, 1976.
    David G. McGunegle, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

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

On June 30, 1975, the Ninth Judicial Circuit Grievance Committee “A” filed its complaint with The Florida Bar. The Complaint reads as follows:

“1. The Respondent, E. Jackson Haasze, is and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
“2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
“3. On or about March 24,1973, Respondent filed suit on a promissory note in the name of John H. Griffis, plaintiff, versus Bryce W. Oliver and Betty W. Oliver, defendants, in county court, Orange County, Florida, Case No. S0731336. Respondent acted as plaintiff’s attorney in this suit at all times herein material.
“4. On or about May 28, 1973, Betty W. Oliver, codefendant in the above mentioned suit, counterclaimed against John H. Griffis and cross-claimed against Bryce W. Oliver, codefendant. Respondent represented Griffis in defending against the counterclaim.
“5. Before, during, and after the aforementioned suit and counterclaim, Respondent had little or no contact with John H. Griffis, alleged client of Respondent.
“6. . During the pendency of this aforementioned legal action, Respondent had several conferences with Bryce W. Oliver, whom he was suing.
“7. Respondent's fee for representing John H. Griffis in the counterclaim was $500, paid by Bryce C. Oliver, pursuant to agreement made prior to trial of the main suit and counterclaim.
“8. At no time during the pendency of the case did Respondent’s alleged client, John H. Griffis, enter into an agreement for nor directly pay attorneys’ fees to Respondent.
“9. During the pendency of the case Respondent became aware, should have known or it was obvious, that John H. Griffis was merely a nominal plaintiff, and that the suit was instigated by Bryce C. Oliver, codefendant, for the purpose of harassing and/or maliciously injuring Betty W. Oliver.
“10. Respondent continued to prosecute the claim on the promissory note until final judgment was entered, a copy of which is attached hereto, even though he knew or it was obvious that the suit was brought for the purpose of harassing and/or maliciously injuring Betty W. Oliver.
“11. By reason of the foregoing conduct, Respondent has violated Rule 11.02(3)(a) of the Integration Rule, and Disciplinary Rules 2-110(B)(l) and 7-102(A)(l) of the Code of Professional Responsibility.”

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

Costs in the amount of Five Hundred Thirty-Four Dollars and Fifty-Five Cents ($534.55) are hereby taxed against Respondent.

IT IS SO ORDERED.

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


text:
    THE FLORIDA BAR. In re Abe SCHONFELD.
    No. 49660.
    Supreme Court of Florida.
    July 30, 1976.
    Lewis S. Eidson, Jr. and John A. Weiss, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

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

On November 11, 1975, Bar counsel for The Florida Bar filed with the referee a Complaint charging respondent with violating Rule 11.02(3)(a) and (b) of the Integration Rule and Disciplinary Rule 1-102(A)(4) of the Code of Professional Responsibility. The Complaint reads as follows:

“1. The respondent, Abe Schonfeld, is, and at all times hereinafter mentioned was, a member of the Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
“2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of this Complaint, required by the Integration Rule, have been fulfilled.
“3. The respondent was charged with violating Title 26, United States Code, Section 7203, in a six-count information filed in the United States District Court, Middle District of Florida, on December 12, 1973; a copy of said information is attached to this complaint and made a part thereof.
“4. A violation of Title 26, United States Code, Section 7203, is a misdemeanor and constitutes the crime of wilfully and knowingly failing to file an income tax return.
“5. The respondent was adjudged guilty of violating Section 7203 of Title 26 of the United States Code by United States District Judge William 0. Mehrtens on July 15,1974, pursuant to a plea of guilty submitted by respondent to Count V of the information filed against him. A copy of the judgment and commitment is attached to this Complaint and made a part thereof.
“6. Respondent was sentenced to 60 days imprisonment and was fined $1,000.
“7. By reason of the foregoing, respondent has violated Rule 11.02(3)(a) and (b) of the Integration Rule of The Florida Bar and DR 1-102(A)(4) of the Code of Professional Responsibility.”

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

Costs in the amount of One Hundred Thirty-Five Dollars and Two Cents ($135.02) are hereby taxed against Respondent.

IT IS SO ORDERED.

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


text:
    CLEARWATER FEDERAL SAVINGS AND LOAN ASSOCIATION, Petitioner, v. Joseph E. SAMPSON, Respondent.
    No. 48158.
    Supreme Court of Florida.
    July 28, 1976.

      Dennis P. Thompson and Emil G. Pratesi, Richards, Nodine, Gilkey, Fite, Meyer & Thompson, Clearwater, for petitioner.
    William J. Castagna, MacKenzie, Castag-na, Bennison & Gardner, Clearwater, for respondent.
   ROBERTS, Justice.

This cause is before us on certiorari granted to review the decision of the District Court of Appeal, Second District, in Sampson v. Clearwater Federal Savings and Loan Association, denying a motion to quash appeals in the cause, which purportedly conflicts with Wagner v. Bieley, 263 So.2d 1 (Fla.1972), and Home News Publishing Co. v. U-M Publishing Co., Inc., 246 So.2d 117 (Fla.App. 1, 1971).

Petitioner, Clearwater Federal, filed an action in the Circuit Court in and for Pinel-las County to foreclose a mortgage encumbering certain motel property in Clearwater against respondent. By agreement of the parties a “quasi receivership” was established to continue operation of the motel. Funds arising from operations of the Sea Captain Motel were to be deposited in the court’s registry, pending further order of the court. Final judgment of foreclosure was entered on April 18, 1974. The mortgagors objecting to the sale procedure appealed the judgment of foreclosure to the District Court of Appeal, Second District. (In Bloznalis v. Clearwater Federal Savings and Loan Assoc., 306 So.2d 219 (Fla.App. 2, 1975), the District Court of Appeal, Second District, affirmed the judgment of foreclosure.) During the pendency of the interlocutory appeal of the judgment of foreclosure, petitioner filed a motion directed to the funds held in the court’s registry requesting that the balance of the funds in the registry be paid to petitioner. After hearing, the trial court denied portions of the request without prejudice.

Subsequent to the District Court of Appeal’s, Second District, affirmance of the sale procedure, petitioner renewed its motion directed to the remaining funds in the registry. By order dated April 9,1975, filed April 10, 1975, the Circuit Court entered a “Second Order on Motion to Direct Payment” holding that petitioner was entitled to the funds remaining in the registry. Within 10 days, respondent filed a petition for rehearing directed to the order permitting payment of the funds to petitioner. By order dated May 22,1975, the trial court denied the petition for rehearing. Respondent thereupon filed his notice of interlocutory appeal and notice of appeal from the “Second Order on Motion to Direct Payment” which notice was timely if measured from denial of the motion for rehearing and untimely if measured from the order directing payment. Petitioner filed a motion to quash the appeal as untimely filed since both notices of appeal were filed more than 30 days from the rendition date of the order being appealed. The District Court of Appeal, Second District, consolidated the notices of appeals and denied the motion to quash appeals.

An interlocutory order entered after judgment, post decretal order, is not to be confused with one entered during the pendency of the proceedings before final judgment. Cf. Wagner v. Bieley, supra. Post decretal orders are not true interlocutory orders, and perhaps the term “interlocutory” is a misnomer. Where an order after judgment is dispositive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment, and, therefore, a petition for rehearing could be properly directed to such a post decretal order which constitutes a final and distinct adjudication of rights which have not been adjudicated in the original final judgment. Sub judice, the post decretal order by the trial court to which the petition for rehearing was directed was disposi-tive of the question of disposition of the money paid to the receiver, and in itself, was a distinct adjudication so final in nature as to partake of the character of a final decree. A petition for rehearing could properly be addressed to it as one could be addressed to any final decree.

Wagner v. Bieley, supra, and Home News Publishing Co. v. U-M Publishing Co., Inc., supra, cited as the basis for conflict jurisdiction in this cause are to be distinguished from the instant matter since they did not involve post decretal orders final in nature, but rather involved interlocutory orders entered during the pendency of proceedings prior to final judgment. In Wagner, petitioner sought review to this Court of the District Court of Appeal’s, Third District, order denying a motion to quash an interlocutory appeal from an order of the trial court which denied summary judgment. This Court therein held:

“Our rules as currently amended do not permit motions for rehearing directed to interlocutory orders, such as orders denying summary judgment; accordingly, such motions cannot operate to toll the time for filing an interlocutory appeal under the Rules.”

This Court quoted with approval the following excerpt from Home News Publishing, supra:

“ ‘. . .A literal interpretation of the rule would seem to indicate that a motion for rehearing may be directed only to final judgments rendered by a court, since that is the only judicial action specified in the rule authorizing the filing of such a motion. If the rule-making authority had intended to authorize the filing of a motion for rehearing directed to an interlocutory order, it could easily have so provided. Unless the filing of a motion for rehearing to an interlocutory order is authorized by a rule of court promulgated by the rule-making authority, then its filing is improper and would not toll the rendition date of the order or the running of the time for seeking appellate review of the order complained about.’ ”

In Home News, defendants filed a motion to dismiss the action against them on ground of improper venue which motion was denied. They sought rehearing of the denial which was also denied and subsequently sought review by interlocutory appeal. The appellees moved to dismiss the appeal as untimely filed since the improper rehearing petition did not toll the running of the appeal time.

Since we find that the post decretal order in question is a final decree subject to petition for rehearing, the decision of the District Court refusing to dismiss the appeal therefrom was without error and is approved.

Accordingly, the writ of certiorari heretofore issued is discharged.

It is so ordered.

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

ENGLAND, J., concurs in result only.