author: OVERTON, Chief Justice. ROBERTS, Justice

text:
    Estelle Jones WILLIAMS, formerly Estelle Jones Foerster, Appellant, v. David Wendell FOERSTER, Appellee.
    No. 45949.
    Supreme Court of Florida.
    July 21, 1976.

      William H. Maness, Jacksonville, for appellant*
    William L. Durden of Kent, Sears, Dur-den & Kent, Jacksonville, for appellee.
   OVERTON, Chief Justice.

This is an appeal from a decision of the First District Court of Appeal reported at 300 So.2d 33 (Fla.App. 1st 1974), which declared part of Section 689.11(1), (2), Florida Statutes (1975), unconstitutional. We have jurisdiction.

The parties were husband and wife and the real property inter-spousal conveyance issue in this cause results from their domestic relations dispute. The property was the home of the parties and was held as a tenancy by the entirety. In 1965 during a marital dispute the appellee husband executed a deed conveying the home property to the appellant wife. The deed was witnessed by one person. The wife neither joined in the conveyance nor recorded the deed, placing it instead in the hands of a priest. . .WJ.

The appellant wife contends that the deed executed by the appellee husband in her favor did, as a matter of law, operate to convey to her the family residence. The appellee husband asserts that the deed was made prior to an initial separation of the parties for a one-year period, after which they were reconciled and lived together in the home for approximately one year. He testified that he had assumed the deed had been destroyed and that he gave it to his wife solely to appease her during the earlier period of marital unrest.

The trial court held that the deed executed by the husband purporting to convey to the wife the family home was ineffective.

The wife appealed to the First District Court of Appeal contending the deed was valid even if she did not join her husband in its execution by the operation of Section 689.11(1), (2), Florida Statutes. The District Court held this act unconstitutional, stating as follows:

“While the 1971 Act does do away with the necessity of joinder of the other spouse where a homestead is involved, that legislative enactment is not worth the proverbial plugged nickel in light of Article X, Section 4(c) of the Florida Constitution of 1968, F.S.A., as amended in 1972, as contended by appellee. That constitutional provision reads in material part:
“‘(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. . . ’
“The provisions of Article X, Section 4 of the 1885 Constitution, which were in effect at the time the deed in question was executed likewise required joinder of both spouses for the alienation of a homestead.” 300 So.2d at 35.

We agree with the finding of the trial judge, but disagree with the constitutional holding of the District Court. There is a distinction between inter-spousal alienability of solely owned homestead property and inter-spousal alienability of an estate by the entireties occupied as the home of the parties. This distinction was clearly established by Mr. Justice Sebring in Denham v. Sexton, 48 So.2d 416, 418 (Fla.1950), where he said the following:

“. . . [T]he title to the property was held as an estate by the entireties. As respects property so held, it becomes upon the death of one spouse the sole property of the remaining spouse to the exclusion of the heirs of the decedent, even though occupied during the lifetime of both parties as a homestead. See Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223; Knapp v. Fredericksen, 148 Fla. 311, 4 So.2d 251. The homestead provisions of the Constitution adopted for the benefit of heirs of the head of a family to take effect upon his demise do not apply to such property and it may be disposed of by tenants by the entireties as may any other property not exclusively owned by the head of a family and occupied by him as a homestead. . . .”

The provisions of Article X, Section 4, of the 1885 Constitution, which Justice Seb-ring was construing, were in effect at the time the deed was made in the instant case. The same basic requirements are in our present constitutional provision. All the cases cited in the District Court opinion concern homestead property owned solely by the head of the household.

We agree with the appellant that the District Court erred in holding Section 689.11, Florida Statutes, unconstitutional. The record, however, does support the finding of the trial judge that the deed was ineffectual, it being uncontroverted that the deed was signed by only one witness in contravention of Section 689.01, Florida Statutes (1975), together with evidence that the husband had no actual intention to effectively convey the property to his wife. The decision of the trial judge, who heard and evaluated the testimony in evidence in this cause and entered an extensive order concerning the property interests of the parties, is supported by the record.

The decision of the First District Court of Appeal, affirming the trial court, is approved, but its opinion holding Section 689.-11(1), (2), Florida Statutes (1975), unconstitutional, is vacated.

It is so ordered.

BOYD, ENGLAND and DREW (Retired), JJ., concur.

ROBERTS, J., concurs in part and dissents in part with an opinion.

ADKINS, J., and MASON, Circuit Court Judge, dissent and concur with ROBERTS, J.

ROBERTS, Justice

(dissenting in part, concurring in part).

On May 28, 1965, appellee gave to his wife a deed whereby he purported to deed to the wife all right, title and interest in and to the homestead of the parties which was held as a tenancy by the entirety. The evidence clearly shows that the husband deeded the tenancy by the entirety owned by him and his wife to his wife to induce her to stay with him during a time when their domestic relationship was turbulent. Appellee, an attorney, aware of the requirements for conveyance of realty, expressly testified that he deeded the property to his wife to appease her and that he purposely did not put the second signature on the deed. Respondent was Chairman of the Eminent Domain Committee of The Florida Bar.

Relative to the circumstances surrounding the conveyance, appellant testified that her husband had given her the deed spontaneously to make her feel secure and to convince her that he was genuinely sorry that he could not control himself when he came home and physically roughed her up. Appellee never told appellant that the deed was defective although he admits purposely controlling the execution in such a manner as to cause the deed to be defective. In response to appellant’s inquiry of him as to whether the deed should be recorded, he answered negatively telling her that only people not honest in business would do that.

In light of appellee’s apparent misconduct in giving appellant a defective deed, I would find that he is now estopped from contesting the validity of the contract affecting the real property in question.

This Court in Cox v. LaPota, 76 So.2d 662 (Fla.1955), stated:

“In this case the record shows that the appellants attempted to lull the appellees to sleep by their conduct. They caused the appellees to change their position. It was peculiarly within the knowledge of the appellants that the contract had not been signed by them in the presence of two witnesses. . . . They should not be permitted to repudiate their contract or refuse to comply with it on the ground that it had not been signed by them in the presence of two witnesses. To permit the appellants to take advantage of such a defense under the facts disclosed by this record would permit them to plead their own wrong, which was known to them, as an excuse for non-compliance. The defense which they imposed was an affirmative defense and the record shows that they did not come into a court of equity with clean hands.”

Pursuant to the principle of estoppel, I must agree with appellant’s position that where taking advantage of superior legal knowledge (appellee’s area of expertise was real property) and a confidential relationship, an attorney-husband gives his wife a deed which, unbeknownst to her, is purposely and designedly not in compliance with statutory requisites for conveyance of realty — want of an attesting witness — to deceive her and pretend atonement for many physical abuses, the contract of conveyance of the subject realty will be enforced.

Emphatically, I reiterate that which I previously elucidated in my dissent to Ryan v. Ryan, 277 So.2d 266 (Fla.1973), relative to the principle of “unclean hands,” and which may most appropriately be applied sub judi-ce:

“One of the most elementary and fundamental concepts of equity jurisprudence and a universal rule which affects the entire system of equity jurisprudence is the maxim that ‘He who comes into equity must come with clean hands.’ This principle is founded upon conscience and good faith.
“‘Whatever may be the strictly accurate theory concerning the nature of equitable interference, the principle was established from the earliest days, that while the court of chancery could interpose and compel a defendant to comply with the dictates of conscience and good faith with regard to matters outside of the strict rules of the law, or even in contradiction to those rules, while it could act upon the conscience of a defendant and force him to do right and justice, it would never thus interfere on behalf of a plaintiff whose own conduct in connection with the same matter or transaction had been unconscientious or unjust, or marked by a want of good faith, or had violated any of the principles of equity and righteous dealing which it is the purpose of the jurisdiction to sustain. While a court of .equity endeavors to promote and enforce justice, good faith, uprightness, fairness, and conscientiousness on the part of the parties who occupy a defensive position in judicial controversies, it no less stringently demands the same from the litigant parties who come before it as plaintiffs or actors in such controversies.’ 2 Pomeroy, Equity Jurisprudence, 5th Edition, § 398, p. 93.
“If one who seeks to set the judicial machinery in motion has violated conscience or good faith, the doors of the court of equity will be shut against the actor. By employing the doctrine of unclean hands the courts of chancery will refuse to acknowledge his right or to award him any remedy. A litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair or unconscientious in respect to the matter concerning which he seeks relief. National Fire Insurance Co. v. Thompson, 281 U.S. 331, 50 S.Ct. 288, 74 L.Ed. 881 (1930); Keystone Co. v. Excavator Co., 290 U.S. 240, 54 S.Ct. 146, 78 L.Ed. 293 (1933); Nedd v. Starry, 143 So.2d 522 (Fla.App.1962); Gables Racing Association v. Persky, 148 Fla. 627, 6 So.2d 257 (1940). In the very early decision of Bein v. Heath, 6 How. 228, 247,12 L.Ed. 416, the Supreme Court of the United States opined,
“ ‘It is a principle in chancery that he who asks relief must have acted in good faith. The equitable powers of this court can never be exerted in behalf of one who has acted fraudulently or who by deceit or any unfair means has gained an advantage. To aid a party in such a case would make this court the abetter of inequity.’
“Subsequently, in Deweese v. Reinhard, 165 U.S. 386, 390, 17 S.Ct. 340, 341, 41 L.Ed. 757, the Supreme Court of the United States stated:
“ ‘A court of equity acts only when and as conscience commands; and, if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses, and whatever use he may make of them in a court of law, he will be held remediless in a court of equity.’
'"v “The maxim of unclean hands has continuously been held to be applicable to divorce suits. Previous to the enactment of Florida’s new dissolution law, it was held that a court of equity would not grant a divorce to a spouse who is responsible for the wrongs and injuries complained of, that is one who comes into equity with unclean hands. Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944); Gordon v. Gordon, 59 So.2d 40 (Fla.1952) cert. den., 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680; Hudson v. Hudson, 59 Fla. 529, 51 So. 857 (1910); Busch v. Busch, 68 So.2d 350 (Fla.1953); Stewart v. Stewart, 158 Fla. 326, 29 So.2d 247 (1947); Stehli v. Thompson, 151 Fla. 566, 10 So.2d 123 (1942); Devlin v. Devlin, 157 Fla. 17, 24 So.2d 704 (1946); Furman v. Furman, 130 So.2d 316 (Fla.App.1961); Choucherie v. Choucherie, 120 So.2d 821 (Fla.App. 1960).”

Appellee effectually admits that he executed the deed in a knowingly defective manner as a trick to deceive his wife.

The Second District Court of Appeal in Medina v. Orange County, 147 So.2d 556 (Fla.App.2, 1962), explicated:

“When viewed in such posture, the Me-dinas’ technical assault upon their conveyance, grounded solely upon the fact that but one of four witnesses subscribed their deed prior to delivery, is fruit out of season in a garden of equity. Equity regards as done that which ought to have been done and will sustain such a deed, even though subscribed by only one of several witnesses prior to delivery.” (emphasis supplied)

Cf. Alexander, et al. v. Colston, 66 So.2d 673 (Fla.1953).

Appellee is estopped from contesting the validity of the deed on the basis that it did not comply with Section 689.01, Florida Statutes.

I do, however, concur with the majority that this property as tenancy by entirety could properly be conveyed by husband to wife without the wife’s joining in execution. _*■

Accordingly, I dissent and would enforce the contract of conveyance.

ADKINS, J., and MASON, Circuit Court Judge, concur.

      . Art. V, § 3(b)(1), Fla.Const.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    George THAYER, etc., et al., Plaintiffs, v. STATE of Florida, etc., et al., Defendants.
    No. 47481.
    Supreme Court of Florida.
    July 21, 1976.

      S. LaRue Williams, Kinsey, Vincent, Pyle & Williams, Daytona Beach, for plaintiffs.
    Charles L. Curtis, Tallahassee, for defendants.
   BOYD, Justice.

Pursuant to Rule 4.6 of the Florida Appellate Rules we are responding to questions certified to this Court by the Circuit Court of the Seventh Judicial Circuit, in and for Volusia County. See Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla.1963).

The questions are:

1. Does the enactment of Section 561.-20(2)(a)3, Florida Statutes, by Chapter 72-230, Laws of Florida, which states in pertinent part: “(2)(a) No such limitation of the number of licenses as herein provided shall henceforth prohibit the issuance of a special license to: . 3. Any restaurant . deriving at least fifty-one percent of its gross revenue from the sale of food and nonalcoholic beverages” apply to those special restaurant licenses issued prior to the effective date of Chapter 72-230?

2. If the answer to the preceding question is in the affirmative, does that application violate those sections of the Florida and Federal Constitutions guaranteeing due process, equal protection, non-discrimination and non-impairment of contract and, if so, are all provisions of Chapter 72-230 unconstitutional or only that provision relating to the 51% requirement?

We have jurisdiction even though our answer to the first question makes it unnecessary to reach the constitutional issues. Trustees of Tufts College v. Triple B. Ranch Inc., 275 So.2d 521 (Fla.1973); McKibben v. Mallory, 293 So.2d 48 (Fla.1974).

In answering the first question we must determine whether the Legislature intended for the statute to apply prospectively or to all special restaurant licenses even if issued prior to the effective date of the statute.

The respondents claim the Legislature simply amplified and made more restrictive a rule of the Beverage Department existing since 1969 which required special license restaurants to derive at least 30% of all proceeds from food and non-alcoholic beverages.

To determine the legislative intent we look to the plain language of the statute.

Section 561.20(2Xa)3, Florida Statutes, speaks in terms of future licenses only:

“No such limitation of the number of licenses as herein provided shall henceforth prohibit the issuance of a special license to: 3. Any restaurant . . deriving at least fifty-one per cent of its gross revenue from the sale of food and nonalcoholic beverages. . .

According to Webster’s New International Dictionary (unabridged edition) the word “henceforth” is defined as “From this time forward.” The Legislature is simply imposing the 51% requirement on special restaurant licenses issued after the effective date of the Act.

The law clearly requires that the legislative intent be determined primarily from the language of the statute because a statute is to be taken, construed and applied in the form enacted. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918); Vocelle v. Knight Bros. Paper Co., 118 So.2d 664 (Fla.1st DCA 1960). The reason for this rule is that the Legislature must be assumed to know the meaning of words and to have expressed its intent by the use of the words found in the statute.

In the same subsection of Section 561.-20(2)(a)3, the Legislature made three direct references to the treatment of existing licenses. In one instance the following language appears:

“However, any license heretofore issued to any such hotel, motel, motor court, or restaurant or hereafter issued to any such hotel, motel, or motor court under the general law shall not be moved to a new location. . . .”

At another point in the same subsection the Act says:

“Any special license now in existence heretofore issued under the provisions of this law cannot be renewed except in the name of the owner . . . and must remain in the name of said owner or lessee so long as the license is in existence.”

Finally, the Act attempts to protect those persons relying on the predecessor section of the statute:

“[N]othing herein provided shall limit, restrict, or prevent the issuance of a special license for any restaurant or motel which shall hereafter meet the requirements of the law existing immediately prior to the effective date of this act, if construction of such restaurant has commenced prior to the effective date of this act and is completed within thirty days thereafter, or if an application is on file for such special license at the time this act takes effect; and any such licenses issued under this proviso may be annually renewed as now provided by law.”

If the Legislature intended to protect those licenses which had not even been issued and allow such licenses to come under the old section of the law then certainly petitioners’ licenses, which have been in existence for a number of years, are likewise protected.

It is, of course, a general principle of statutory construction that the mention of one thing implies the exclusion of another; expressio unius est exclusio alteráis. Hence, where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to.be construed as excluding from its operation all those not expressly mentioned. Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234 (1944). By the Legislature’s use of the term “henceforth” in the subject statute, and by its obvious reference to “the issuance” of special licenses in the future, the implication is that those licenses in existence prior to the effective date of the Act are excluded from the 51% requirement. Any other interpretation would extend the meaning of the language of the subject Act to include a class of persons not referred to by the Legislature.

The final applicable rule of statutory construction relates to whether a statute should be applied retrospectively or prospectively. ’The rule is stated succinctly in 30 FlaJur., Statutes, § 151, as follows:

“A statute operates prospectively unless the intent that it operate retrospectively is clearly expressed. Indeed, an act should never be construed retrospectively unless this was clearly the intention of the legislature. This is especially so where the effect of giving it a retroactive operation would be to interfere with an existing contract, destroy a vested right, or create a new liability in connection with a past transaction. The presumption is that it was intended to operate prospectively, unless its language requires that it be given a retroactive operation. The basis for retrospective interpretation must be unequivocal and leave no doubt as to the legislative intent.”

By its use of prospective language only, i. e. “henceforth” and “the issuance” of a special license, by its failure to mention existing licenses and by its obvious attempt to protect those restaurants under construction or in which applications have been filed by allowing them to meet the requirements of the old law, the Act is unequivocal in leaving no doubt as to the legislative intent. It should therefore be applied prospectively to those licenses issued after the effective date of the Act and not applied retroactively to petitioners’ licenses.

Respondents argue that if this Court interprets the Act in favor of petitioners’ contentions, then a great deal of mischief will result because petitioners’ licenses would contemporaneously with the Court’s ruling be converted to “quota” licenses contrary to Section 561.20(1), Florida Statutes. This argument is without merit for the following reason. Respondents have promulgated “bona fide restaurant” requirements for special licenses in Chapter 7A-3.-15, Florida Administrative Code. “Quota” licenses are not held to these requirements. Even if the 51% requirements of Section 561.20(2)(a)3, Florida Statutes, is not applied to petitioners, the Chapter 72-3.15, Florida Administrative Code, requirements save petitioners’ licenses from effective conversion into quota licenses.

Having held that the statute does not operate retroactively it is unnecessary that we reach the second certified question.

We have dealt only with the narrow question of whether the statute applies retroactively. It is not our duty nor our right to invade the legislative domain by expressing our views on the wisdom of the law.

Accordingly the first certified question is answered in the negative and the second question is not reached. The cause is remanded to the Circuit Court, Seventh Judicial Circuit, for proceedings consistent with this opinion.

It is so ordered.

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


author: ROBERTS, Justice.

text:
    Donald C. LAMBERT and Myrtle E. Lambert, his wife, Petitioners, v. Jimmy E. JUSTUS and Janice F. Justus, his wife, et al., Respondents.
    No. 47608.
    Supreme Court of Florida.
    July 21, 1976.

      J. Michael Hayes, of Gregory, Cours, Pan-iello, Johnson & Hayes, Tampa, for petitioners.
    Frank A. McClung, Brooksville, for respondents.
   ROBERTS, Justice.

We have for review the decision of the District Court of Appeal, Second District, in Lambert et al. v. Justus et al., reported at 313 So.2d 140 (Fla.App. 2, 1975), certified to us as passing upon a matter of great public interest.

Briefly the facts which are succinctly stated in the decision of the District Court are as follows:

Appellants, Petitioners-herein, filed a complaint seeking declaratory judgment as to the validity of certain restrictions on the use of their property. The restrictions in question limited the use of the property to residential purposes. The complaint in effect alleged that there had been such a change of circumstances since the restrictions were placed upon the property that it would be inequitable to enforce the restrictions. The trial court held that the complaint raised purely factual disputes which were unrelated to the construction of the restrictions and that the restrictions were clear and unambiguous. Thereupon, the court dismissed the complaint with prejudice for failure to state a cause of action under the declaratory judgments act.

Petitioners appealed to the District Court and relied on Sinclair Refining Company v. Watson, 65 So.2d 732 (Fla.1953), cert. den. 346 U.S. 872, 74 S.Ct. 121, 98 L.Ed. 381, and Batman v. Creighton, 101 So.2d 587 (Fla. App. 2, 1958), as basis for their declaratory judgment action.

Although recognizing that the procedure followed in Sinclair and Batman makes good sense, because, if petitioners are denied their right to have the issues determined through declaratory judgment relief, they may be forced into the position of affirmatively violating the restrictions so as to provoke a suit against them which would provide a forum for adjudication of this matter, the District Court of Appeal, Second District, affirmed the dismissal and opined:

“The problem lies in a long line of decisions which unmistakably hold that where there is no doubt as to the meaning of a written instrument and the only issue is one of fact with respect to whether the parties fall within the terms of the instrument, a declaratory judgment cannot be maintained. See, e. g., Travelers Indemnity Company v. Johnson, Fla.1967, 201 So.2d 705; Columbia Casualty Co. v. Zimmerman, Fla.1952, 62 So.2d 338; New Amsterdam Cas. Co. v. Intercity Supply Corp., Fla.App. 4th, 1968, 212 So.2d 110. In the face of these decisions, the trial court was eminently correct in dismissing the complaint. The propriety of using the declaratory judgment procedure was not passed upon in Sinclair and Batman. Hence, we have no alternative but to affirm.”

Section 86.021, Florida Statutes, provides:

“Power to construe, etc. Any person claiming to be interested or who may be in doubt about his rights under a deed, will, contract or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum or instrument in writing, or any part thereof, and obtain a declaration of rights, status or other equitable or legal relations thereunder.”

and Section 86.011, Florida Statutes, provides:

“Jurisdiction of circuit court. The circuit courts have jurisdiction to declare rights, status and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence:
(1) Of any immunity, power, privilege or right; or
(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend, whether such immunity, power, privilege or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent or supplemental relief in the same action.”

Florida Declaratory Judgments Act which by its express language is to be liberally administered and construed states its purpose to be “to settle and to afford relief from insecurity and uncertainty with respect to rights, status and other equitable and legal relations.”

Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808 (1946), involved the question of whether or not the facts stated were such as to authorize a declaratory decree adjudicating the rights, status, and other equitable or legal relations of a complainant under a certain lease. Therein, Justice Terrell explicated in great detail the purpose of the Declaratory Judgment Act (formerly Chapter 87, Florida Statutes, referred to as the Uniform Declaratory Judgment Act) and the test to activate jurisdiction thereunder, as follows:

“The test to activate jurisdiction under the instant act is whether or not the moving party shows that he is in doubt as to the existence or nonexistence of some right, status, immunity, power or privilege that he is entitled to have such doubt removed and if shown to be existent, seek such relief as the circumstances warrant. He may pray for ‘additional, alternative, coercive, subsequent or supplemental relief’.”

By its complaint for declaratory decree, petitioners sought a construction of certain restrictions on their property and a declaration that these restrictions are invalid and unenforceable.

This Court in Sinclair Refining Company v. Watson, supra, considered the validity and enforceability of a similar restrictive covenant in review of a declaratory judgment action which had been brought by a purchaser of certain property to have a covenant restricting the use of the subject property solely for street, highway, or sidewalk purposes, declared invalid in light of change of circumstances. This Court determined that the only question involved was whether there had been such a change of circumstances as would make it inequitable to enforce the restrictive covenant, and concluded that there was no such change of circumstances as would make it inequitable to enforce the covenant.

Batman v. Creighton, supra, also involved a suit for declaratory judgment seeking to have declared certain restrictive covenants invalid on the ground that conditions had sufficiently changed. The trial court dismissed the complaint after making a complete determination of facts and concluding that there was no such change of circumstances as to warrant removal of restrictions. The District Court of Appeal, Second District, affirmed.

Petitioners urge that the propriety of maintaining a declaratory judgment action to contest the validity or enforceability of a restriction where there has been a change of circumstances — a change of character in the neighborhood was implicitly recognized by this Court in Sinclair, supra, and the District Court of Appeal, Second District, in Batman. We agree.

The three decisions cited by the District Court to support its position that the declaratory judgment action could not be maintained, i. e. Travelers Indemnity Company v. Johnson, Columbia Casualty Co. v. Zimmerman, and New Amsterdam Cas. Co. v. Intercity Supply Corp., are distinguishable from the instant cause. Each dealt with actions for declaratory decree brought by insurance companies seeking only a judicial determination of disputed facts, unrelated to the construction or validity of the insurance contracts. The sole question sought to be determined in Zimmerman, supra, was whether or not Mary Yates was driving the automobile with the knowledge and consent of the owners, or either of them. The insurer, Travelers, in Johnson, supra, sought declaratory action to determine only the sufficiency or insufficiency of notice as required by the policy. By declaratory judgment action the insurer in Intercity Supply Corp., supra, sought to have determined only whether the conduct of defendant met the requirements of the assistance and cooperation provision of the insurance policy.

Petitioners posit that if there has been a change of circumstances as they allege as would make it inequitable to enforce the restrictions, then the construction and validity of said restrictions are very definitely in question and a Declaratory Judgment action is available as a remedy to petitioners.

Relative to prerequisites to the maintenance of a declaratory judgment action, in May v. Holley, 59 So.2d 636 (Fla.1952), this Court opined:

“Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power; privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.
“With these requirements met there is almost no limit to the number and type of cases that may be heard under this statute. Of course, the court should never lose sight of the right to jury trials in those cases not strictly equitable in nature.”

Under the particular circumstances alleged, we find that a declaratory judgment action was an appropriate and available remedy to the petitioners. It was conceded at the bar of the Court that all interested persons were parties to the litigation.

Accordingly, we find that the declaratory judgment procedure was an appropriate and available remedy to petitioners under the facts of this case. The decision of the District Court of Appeal, Second District, is quashed and the cause is remanded for further proceedings not inconsistent herewith.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and DREW (Retired), JJ., concur.


author: SUNDBERG, Justice.

text:
    Joseph Michael SPRADLEY, Petitioner, v. Elvera Correne SPRADLEY, Respondent.
    No. 47657.
    Supreme Court of Florida.
    July 21, 1976.
    Michael C. Murphy of McDavid & Murphy, Lake City, for petitioner.
    William J. Roberts, Jr., of Bergen & Roberts, Lake City, for respondent.
   SUNDBERG, Justice.

This case is on petition for writ of certio-rari to the District Court of Appeal, First District. We have dispensed with oral argument and consider the case on the briefs submitted by the parties. Our jurisdiction vests under Article V, Section 3(b)(3), Florida Constitution.

After a divorce between petitioner father and respondent mother, custody of their child was awarded to the mother. Subsequently, the father petitioned for an order modifying the custody award, and after a hearing in the Circuit Court in and for Okaloosa County, the trial judge modified the earlier order and awarded custody to the father. In a decision reported at 312 So.2d 215, the First District Court of Appeal reversed, holding that the trial court abused its discretion by modifying the order since the father had failed to demonstrate either of two criteria: (1) that there had been a material and substantial change in the circumstances of the parties and (2) that the best interests of the child would be promoted by a change in custody. Judge Boyer dissented, finding that the father had met these criteria by evidence adduced at the hearing and that, in any event, there was “more than sufficient basis for the decision of the learned trial judge.” Id. at 217.

As outlined in Judge Boyer’s dissenting opinion, the trial court’s order was supported by the following evidence. After her divorce, the mother married one Terrell Dicks; at the time of this marriage she was four months pregnant and in fact had another two-year old child of whom Dicks is the admitted father. Dicks, an ex-convict, has been charged since the marriage with possession of marijuana. The mother’s job as a waitress demands that she work from 10:30 a. m. to 2:00 p. m. and from 5:00 p. m. to 9:00 p. m. four days each week. Respondent has been separated from Dicks on three different occasions and at the date of the hearing on modification of custody, she was not living with him. Neighbors testified to disturbing incidents occurring at the home of the mother and her new husband. Petitioner testified that on several occasions the child had been left with him for periods of time of up to three weeks and that during such time he had been unable to locate the mother. Furthermore, the mother has moved five times since her second marriage.

In Grant v. Corbitt, 95 So.2d 25, 28 (Fla.1957), we said:

“. . [T]his Court cannot, in any type of case, overturn the decision of a Chancellor made in the exercise of his judicial discretion in the absence of a clear showing of an abuse thereof; and, in a child custody case, the opportunity of the Chancellor to observe the demeanor and personalities of the parties and their witnesses and to feel forces, powers and influences that cannot be discerned by merely reading the record, assumes a new importance because of the many intangibles that must be evaluated in deciding the delicate question of child custody.”

These principles were recently reaffirmed by this Court in Gregory v. Gregory, 313 So.2d 735 (Fla.1975).

Our review of the record in the instant case convinces us that respondent made no clear showing of an abuse of discretion by the trial court. There was sufficient evidence before the trial judge to support a finding that there had been the requisite change in circumstances of the parties and that the best interests of the child would be promoted by a change in custody to the father. It is our view that the District Court of Appeal simply re-evaluated the facts and came to a different conclusion. In so doing the District Court departed from the well-established principles enunciated by the Grant and Gregory Courts.

Accordingly, the petition for writ of cer-tiorari is granted, and the decision of the District Court of Appeal, First District, is quashed with directions that the order of the circuit court be reinstated.

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


author: ENGLAND, Justice.

text:
    STATE of Florida, Petitioner, v. Tommy Earl ALLEN, Respondent.
    No. 47785.
    Supreme Court of Florida.
    July 21, 1976.

      Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz and Joseph W. Lawrence, Asst. Attys. Gen., for petitioner.
    Bartley K. Vickers, of Mahon, Farley & Vickers, Jacksonville, for respondent.
   ENGLAND, Justice.

This case was brought here by petition for a writ of certiorari alleging direct conflict between the decision of the First District Court of Appeal, reported at 314 So.2d 154, and Sciortino v. State, 115 So.2d 93 (Fla.2d DCA 1959). We find the requisite direct conflict to be present in the form of an announcement of a rule of law different from that announced by another Florida appellate court. We have jurisdiction for review under Article V, Section 3(b)(3) of the Florida Constitution.

The sole point of law involved in this case concerns the state’s burden of proving the “corpus delicti” before a defendant’s confession may be admitted into evidence. The rule of law announced in Sciortino is to the effect that before a confession is admitted the state has the burden of proving by substantial evidence that a crime was committed, and that such proof may be in the form of circumstantial evidence. This rule of law was first announced by this Court in Holland v. State, 39 Fla. 178, 22 So. 298 (1897). It has been re-affirmed more recently by this Court in Frazier v. State, 107 So.2d 16 (Fla.1958), and applied by the Third District Court of Appeal in County of Dade v. Pedigo, 181 So.2d 720 (Fla.3d DCA), cert. denied, 188 So.2d 817 (Fla.1966), and in Jackson v. State, 192 So.2d 78 (Fla.3d DCA 1966).

In its opinion in this proceeding, the First District Court of Appeal appears to have adopted a legal standard which requires overwhelming proof by direct evidence that the crime charged was committed and that the defendant is the guilty party. The Court’s opinion states:

“Appellant’s confession is the only direct evidence that places him in the driver’s seat at the time of the accident. However, there is strong circumstantial evidence.
The State failed to establish a prima facie case independent of the admission of the defendant.”

This was error which requires reversal, and we reaffirm that circumstantial evidence may be presented prior to admission of a defendant’s confession in order to establish the occurrence of the necessary elements of the alleged crime. We also reject the implication in the district court’s opinion that identification of the defendant as the guilty party is a necessary predicate for the admission of a confession.

It is a fundamental principle of law that no person be adjudged guilty of a crime until the state has shown that a crime has been committed. The state therefore must show that a harm has been suffered of the type contemplated by the charges (for example, a death in the case of a murder charge or a loss of property in the case of a theft charge), and that such harm was incurred due to the criminal agency of another. This usually requires the identity of the victim of the crime. A person’s confession to a crime is not sufficient evidence of a criminal act where no independent direct or circumstantial evidence exists to substantiate the occurrence of a crime. The judicial quest for truth requires that no person be convicted out of derangement, mistake or official fabrication.

This rule obviously does not require the state to prove a defendant’s guilt beyond a reasonable doubt before his or her confession may be admitted. Indeed, as this Court has stated before, it is preferable that the occurrence of a crime be established before any evidence is admitted to show the identity of the guilty party, even though it is often difficult to segregate the two. The state has a burden to bring forth “substantial evidence” tending to show the commission of the charged crime. This standard does not require the proof to be' uncontradicted or overwhelming, but it must at least show the existence of each element of the crime. The state’s burden of proof “beyond a reasonable doubt” is a requirement to establish the defendant’s guilt, not to authorize admission of his confession.

On the facts of this case, the state has met its preliminary burden. The sole contention of Allen was that, before his confession was admitted, the state had not proved he was driving the vehicle from which Curtis Black was thrown and killed. This question is relevant, since there would have been no crime if Black had been the driver. Our review of the pre-confession showing by the state reveals that there was adequate circumstantial evidence that Black was the passenger. Allen was seen entering the driver’s side of his car within 5 to 10 minutes of the accident which took Black’s life. Black’s body was found several feet from the demolished automobile under circumstances from which investigators could reasonably conclude that he occupied the passenger’s side of the vehicle. Allen was found at the wreck site hanging out the passenger’s side of the vehicle, with his feet on the driver’s side. The car was owned by Allen, and he had been seen driving the car with Black earlier in the day.

While the facts just recited might not constitute proof beyond a reasonable doubt that Allen was driving the vehicle at] the time of the accident (or more importantly for present purposes, Black was not), they are in the aggregate sufficient circumstantial evidence to lay the predicate for the admission into evidence of Allen’s confession that he was the driver. We are well aware that varying interpretations of circumstantial evidence are always possible in a case which involves no eye witnesses. Circumstantial evidence, by its very nature, is. not free from alternate interpretations. The state is not obligated to rebut conclusively every possible variation, however, or to explain every possible construction in a way which is consistent only with the allegations against the defendant. Were those requirements placed on the state for these purposes, circumstantial evidence would always be inadequate to establish a preliminary showing of the necessary elements of a crime.

The decision of the First District Court of Appeal is quashed, and the case is remanded for further proceedings consistent with this opinion.

OVERTON, C. J., and ROBERTS, BOYD and DREW (Retired), JJ., concur.

      . See Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960).

      . This Latin phrase means literally “the body of the crime.” It is regularly used in appellate decisions to mean the legal elements necessary to show that a crime was committed.

      . 314 So.2d at 155-56.

      . Sciortino, above. See also, Lee v. State, 96 Fla. 59, 117 So. 699 (1928).

      . Spanish v. State, 45 So.2d 753 (Fla.1950).

      . Tucker v. State, 64 Fla. 518, 59 So. 941 (1912); Lambright v. State, 34 Fla. 564, 16 So. 582 (1894).

      . See, Harris v. State, 72 Fla. 128, 72 So. 520 (1916).

      . Lambright, n. 6 above. See also, Deiterle v. State, 101 Fla. 79, 134 So. 42 (1931) (concurrence).

      . See Savage v. State, 152 Fla. 367, 11 So.2d 778 (1943), for discussion of degree of circumstantial evidence required to meet the burden of proving guilt beyond a reasonable doubt.


author: ADKINS, Acting Chief Justice.

text:
    STATE of Florida, Appellant, v. Leonard David WEBB, Appellee.
    No. 48471.
    Supreme Court of Florida.
    July 21, 1976.

      Robert L. Shevin, Atty. Gen., and Donna H. Stinson, Asst. Atty. Gen., for appellant.
    Leonard David Webb, in pro. per.
   ADKINS, Acting Chief Justice.

This is a direct appeal from the County Court in and for Leon County which held Fla.Stat. ch. 318, F.S.A., to be unconstitutional. We have jurisdiction pursuant to Fla.Const. art. V, § 3(b)(1), F.S.A.

The appellee was stopped on July 23, 1975, by a Tallahassee Police Officer. Ap-pellee was driving his automobile without a valid inspection sticker and with an expired Georgia temporary driving permit. He was issued a uniform traffic ticket and complaint charging him with a violation of Fla. Stat. § 325.12, F.S.A. (driving a motor vehicle without a valid inspection certificate).

On September 8, 1975, appellee filed a “Motion for Directed Verdict of Not Guilty and Request for Permanent Restraining Order” and, in a separate document, amendments and additions to same. Appellee raised numerous constitutional challenges to the requirement of obtaining a valid inspection certificate, use of the uniform traffic ticket and complaint and the “Notification to Individual Charged with a Non Criminal Infraction” supplement to the uniform traffic ticket, the procedures followed in obtaining a hearing and the use of law enforcement officers to enforce the traffic laws of Florida. Among other things, the appellee asked for a directed verdict of not guilty or that the court provide for the appointment of a public defender and a trial by jury.

Appellee’s motion was heard on October 1,1975. Treating the appellee’s motion as a “Motion for Dismissal” on the basis of a denial of appellee’s constitutional rights to a jury trial as preserved by Fla.Const. art. I, § 22, F.S.A., the trial judge denied the motion for restraining orders but granted the motion to dismiss, finding that, in denying the right to a jury trial, Fla.Stat. ch. 318, F.S.A., was unconstitutional.

Under Fla.Stat. § 318.14(1), F.S.A., “any person cited for a violation of . chapter 325, part II shall be deemed to be charged with a noncriminal infraction and shall be cited for such an infraction and cited to appear before an official.” Appellee was charged with violating Fla.Stat. § 325.12, F.S.A., which falls within the provisions of part II of chapter 325 and is therefore classified as an infraction. Fla.Stat. § 318.13(3), F.S.A., defines “infractions” as follows:

“[A] noncriminal violation which is not punishable by incarceration for which there is no right to a trial by jury or a right to court appointed counsel.”

Under chapter 318, several options are given the alleged offender by which a citation may be disposed of. The options include posting bond, payment of a specified penalty, an appearance before a hearing official or, under Rule 6.330 of the Florida Rules of Practice and Procedure for Traffic Courts, completion of a driver improvement course. In this case, appellee elected to appear before a hearing official and contest the alleged violation.

Decriminalization of traffic offenses, although new in Florida, has long been recommended as an alternative to the traditional procedures used in handling more serious criminal matters. Procedures now utilized pursuant to Florida’s decriminalization law are now being used in at least 18 states and will probably be adopted by others in the future. Although such procedures have not been constitutionally tested in most of the 18 states which have adopted decriminalization, in New York, where traffic offenses have been decriminalized in a few of the state’s cities and are actually handled by an administrative agency, decriminalization has been challenged and declared constitutional. See Rosenthal v. Hartnett, 36 N.Y.2d 269, 367 N.Y.S.2d 247, 326 N.E.2d 811 (Ct.App.1975). Rosenthal, however, dealt with issues not involved in this case and is of course not controlling in this Court.

In the case before us, the trial court’s decision was predicated on the following portion of Fla.Const. art. I, § 22, F.S.A: “The right of trial by jury shall be secure to all and remain inviolate. . .” Our Constitution, which became effective upon Florida’s admittance to the Union in 1845, has contained similar language throughout our history. ' Although this right has been carefully protected and enforced by this Court, it is not unlimited. It has long been established that this provision guarantees the right to trial by jury in only those cases in which the right was recognized at the time of the adoption of the State’s first constitution. Tilton v. Horton, 103 Fla. 497, 137 So. 801 (1931); Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722 (1904); Hunt v. Jacksonville, 34 Fla. 504, 16 So. 398 (1895); Flint River Steam Boat Co. v. Roberts, 2 Fla. 102 (1848). It does not extend to those cases where the right and the remedy with it were unknown at the time of the adoption of' the first constitution. Pugh v. Bowden, 54 Fla. 302, 45 So. 499 (1907).

Turning to the case before us, it seems obvious that the right to a trial by jury has never been constitutionally required for violations of Fla.Stat. § 325.12, F.S.A., or for any other traffic law violation. While it is true that jury trials were provided for prior to the enactment of Florida’s decriminalization law, the right was a statutory one only; it has never been, and is not now, a constitutionally required right.

Although not controlling in this casé, we note two lines of decisions concerning the trial of traffic violation cases prior to the decriminalization of traffic laws which have influenced our decision. Firstly, it has been well established that there is no constitutional right to a trial by jury for a violation of a municipal ordinance. State v. Hendricks, 309 So.2d 232 (Fla.App.4th 1975); Fort Lauderdale v. Byrd, 242 So.2d 494 (Fla.App.4th 1970). This is true of cases involving violations of municipal traffic ordinances, including those governing driving while intoxicated. Boyd v. Dade County, 123 So.2d 323 (Fla.1960).

Finally, we are influenced by the fact that, even if this statute had not been decriminalized and still involved a criminal violation for which incarceration was a possible punishment, the right to a jury trial as provided by the sixth amendment of the United States Constitution would not apply. For although the sixth amendment has been held to apply to the states through the due process clause of the fourteenth amendment it has been recognized that there is a class of petty offenses, i. e., those which carry a maximum penalty of imprisonment for six months or less and a $500 fine or less, which may be tried summarily before a judge sitting alone without a jury. See Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Prior to the enactment of the decriminalization law the maximum penalty for a violation of Fla.Stat. § 325.12, F.S.A., as well as most other traffic law violations, ranged from a fine of not more than $100 or by imprisonment for not more than 10 days for a first conviction to a fine of not more than $500 and/or by imprisonment for not more than 60 days for a third or subsequent conviction within one year of the first conviction.

We therefore hold that, there being no right to a trial by jury for this traffic violation at the time of the adoption of Florida’s first constitution, the denial of a jury trial by chapter 318 is not prohibited by Fla.Const. art. I, § 22, F.S.A.

Accordingly, the decision of the trial court declaring Fla.Stat. ch. 318, F.S.A., unconstitutional is reversed and this cause is remanded for further proceedings.

It is so ordered.

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


text:
    In re the ESTATE of Eneida FERNANDEZ, Deceased. STATE of Florida on the relation of Leopoldo FERNANDEZ, Appellant, v. The Honorable Joseph NESBITT, Appellee.
    No. 48524.
    Supreme Court of Florida.
    July 21, 1976.
    Arnaldo Velez, Taylor, Brion, Buker & Greene, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Bernard S. McLendon, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for appellee.
   ENGLAND, Justice.

This case is before us on direct appeal from the probate division of the Dade County Circuit Court. We are asked to review an order denying letters of administration to Leopoldo Fernandez, the husband of Eneida Fernandez who died intestate while a resident of Dade County.

Mr. Fernandez is a resident of Dade County, but is not a citizen of the United States. Solely because of his lack of citizenship, the trial judge denied his petition for letters of administration, relying upon Section 733.302, Florida Statutes (1975), and holding the citizenship requirement of the statute constitutional. We have jurisdiction to review the trial court’s order under Article V, Section 3(b)(1) of the Florida Constitution.

The sole question presented for our review is the validity of the requirement that an applicant for letters of administration be a citizen of the United States. Although Mr. Fernandez has asserted several constitutional grounds for invalidating, the citizenship requirement in Section 733.302, we deem it unnecessary to discuss them all since we find that particular requirement violative of the equal protection clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Florida Constitution.

The Florida Constitution prohibits statutory classifications which discriminate between persons unless there exists “some valid, substantial basis in [sic] real, practical differences affecting the subjects regulated.” The trial judge in his written order and the Attorney General in his argument before us support the citizenship requirement of this probate statute on two bases: (1) that a citizen is more likely than an alien to possess the practical experience, education and understanding of the English language necessary to administer an estate effectively; and (2) that a citizen is more likely than an alien to be amenable to the service of court process. Fernandez contests these assumptions as a matter of logic in light of other requirements built into the probate law, and we agree with his views.

Section 733.302 requires that persons appointed as administrators be residents of this state, and it expressly provides that persons “incompetent to discharge the duties of a personal representative” are not qualified to serve. These requirements guarantee the basic ability to perform the duties of a personal representative and amply meet the first concern raised by the state. The additional requirement that a person possess United States citizenship has no bearing on ability to perform. In addition, the bonding requirement applicable to intestate estates also protects against the mismanagement of an estate to which the state’s first concern is directed.

In regard to the second alleged basis for a citizenship requirement, the state relies upon In re Phillips, 305 Mich. 636, 9 N.W.2d 872 (1943). In that case the Supreme Court of Michigan upheld, against an equal protection attack, a Michigan statute prohibiting the appointment of aliens as administrators of estates, based on an express legislative intention to assure amenability to process. The residency requirement in Section 733.302 fulfills the same goal without regard to citizenship status. The general service of process statute, Section 48.031, Florida Statutes (1975), provides for service on natural persons found within Florida without distinction between citizens and non-citizens. Moreover, Section 48.193, Florida Statutes (1975), providing for service on persons outside the boundaries of Florida “whether or not a citizen or resident of this state”, guarantees that administrators who depart the state will remain amenable to service of process.

We conclude that there exists no substantial and real difference between resident aliens and resident citizens which bears on any valid legislative purpose within the contemplation of this statute. Our Constitution requires equal treatment for both classes.

Our conclusion is bolstered by recent decisions of the United States Supreme Court applying the equal protection clause of the Fourteenth Amendment to the United States Constitution. In Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), the Supreme Court made it clear that “classifications based on alienage, like those based on nationality or race, are inherently suspect.” As a result, state laws placing unequal burdens on aliens have been stricken in such diverse areas as the availability of medical and public assistance benefits, admission to licensed professions, and eligibility for government employment. It is also clear now that even the “broad power” of the federal government over immigration and naturalization does not permit discrimination against aliens by federal agencies acting without explicit authorization of the Congress and the President. The citizenship requirement of Section 733.302 is certainly no more justifiable for the administration of an intestate estate than for the purposes and subjects involved in those cases.

The order of the circuit court denying the petition of Leopoldo Fernandez is vacated, and this cause is remanded for further proceedings consistent with this opinion.

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

      . Formerly § 732.45(1), Fla.Stat. (1973).

      .On the facts of this case, the limitation in Article I, Section 2 of the Florida Constitution for “aliens ineligible for citizenship” is not applicable.

      . Davis v. Florida Power Co., 64 Fla. 246, 267, 60 So. 759, 766 (1913). See also, Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla.1974).

      . § 733.402(1), Fla.Stat. (1975).

      . 403 U.S. at 372, 91 S.Ct. at 1852 (footnotes in Graham opinion omitted).

      . Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971).

      . In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973) (practice of Law). See also Examining Bd. of Eng’rs v. Flores de Otero,-U.S. -, 96 S.Ct. 2264, 49 L.Ed.2d 65, 44 L.W. 4890 (1976).

      . Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973).

      . Hampton v. Mow Sun Wong,-U.S.-, 96 S.Ct. 1895, 48 L.Ed.2d 495, 44 L.W. 4737 (1976).


author: RAWLS, Judge. BOYER, Chief Judge

text:
    ASSOCIATED DRY GOODS CORPORATION, a Virginia Corporation, d/b/a Robinson’s of Florida, Petitioner, v. The DEPARTMENT OF REVENUE, State of Florida, Respondent.
    No. BB-125.
    District Court of Appeal of Florida, First District.
    July 20, 1976.
    Rehearing Denied Aug. 25, 1976.
    Joel D. Bronstein of Fisher, Sauls, Ad-cock, DeLoach & Gowen, Port Richey, and C. Graham Carothers & James D. Beasley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and Larry Levy, Asst. Atty. Gen., for respondent.
   RAWLS, Judge.

By petition for review of final agency action, Associated Dry Goods (Robinson’s) challenges a penalty imposed by the Department of Revenue (Department) pursuant to the provisions of Florida Statute 201.17(2) (b).

Robinson’s began operating stores in Florida in September, 1973. A major portion of its retail sales in Florida is made pursuant to revolving charge accounts. In March of 1975, the Department audited all revolving charge account sales which had been made by Robinson’s since September, 1973. As a result of this audit, the Department issued a proposed notice of assessment of tax in the sum of $17,925.00 (Florida Statute 201.08[2]) and a penalty in a like sum (Florida Statute 201.17[2]). Robinson’s contested the assessments in an administrative proceeding (Chapter 120, Flor- . ida Statutes), and the hearing officer entered a recommended order which upheld the validity of the assessment of documentary tax (F.S. 201.08[2]) and rejected the applicability of the penalty (F.S. 201.17[2]). The Governor and Cabinet, sitting as the Department of Revenue, after reviewing the hearing officer’s recommendation, entered the order now appealed which sustained the assessment and penalty initially imposed by the Department. In this review, Robinson’s challenges only the assessment of the penalty in the sum of $17,925.00, on the ground that the penalty assessment is without legal authority.

In support of its contention, Robinson’s correctly asserts that the sole statutory authority for imposition of same is found in Florida Statute 201.17 which provides, in pertinent part, as follows:

“(2) Any document, instrument, or paper upon which the tax under this chapter is imposed and which, upon audit or at time of recordation, does not bear the proper value of stamps shall subject the person or persons liable for the tax upon the document, instrument or paper to:
(a) Purchase of the stamps not affixed ; and
(b) Payment of penalty to the department of revenue equal to the purchase price of the stamps not affixed. This penalty is to be in addition to and not in lieu of any other penalty imposed by law.”

Robinson’s then argues that the authority for assessment of documentary stamp tax on the accounts involved here is found in the last sentence of Florida Statute 201.-08(2) which provides: “No documentary stamps shall be required to be attached to instruments under the provisions of this subsection.” Robinson’s then poses the following question and answer:

“What is the purchase price of stamps not affixed to the revolving charge agreements and sale tickets encompassed by the Department of Revenue’s audit, which stamps were required by law to be affixed to such instruments? The answer, quite simply is none.”

In rebutting Robinson’s argument, the Department emphasizes that Robinson’s construction would result in an absurd result. As pointed out by the Department, Florida Statute 201.17(2) provides that “[a]ny document, instrument, or paper upon which the tax under this chapter is imposed and which, upon audit does not bear the proper value of stamps shall subject the person or persons liable for the tax” (emphasis supplied) to purchase of the stamps not affixed, and payment of penalty to the Department of Revenue equal to the purchase price of the stamps not affixed.

Robinson’s syllogism is basically that Florida Statute 201.08(2) states “[n]o documentary stamps shall be required to be attached” to the subject document; therefore, the provision of Florida Statute 201.-17(2) (b) which states that “[pjayment of penalty to the department of revenue equal to the purchase price of the stamps not affixed” (emphasis supplied) is inapplicable, since the subject stamps were not to be affixed. To use a West Florida colloquialism, “that dog won’t hunt”. The sophistical argument of Robinson’s rejects the clear legislative scheme to extract taxes on documents utilized by Robinson’s in the conduct of its business in Florida. First, the sole means of collecting the tax, which Robinson’s concedes that it owes, is by its purchase of documentary stamps. Second, the nature of the modern invention of “revolving credit” does not lend itself to the practice of department stores affixing the requisite stamps upon each charge slip resulting from a sale. The legislature recognized the impracticality of such a procedure by exempting such affixing. Third, the legislature required the purchase by the seller of the stamps “not affixed”, and then mandated a penalty upon the failure to purchase the stamps not affixed. As stated in George v. State, 203 So.2d 173 (Fla.App.2d 1967):

“A logical and practical intent should be ascribed to every legislative act. Silver Sands of Pensacola Beach, Inc. v. Pensacola Loan & Sav. Bank, Fla.App.1965, 174 So.2d 61. And the manifest intent of the legislature will prevail over any literal import of words used by it; and no literal interpretation leading to an unreasonable conclusion or a purpose not intended by the law should be given. Worden v. Hunt, Fla.App. 1962, 147 So. 2d 548.
“Penal statutes must be strictly construed, but they are not to be construed so strictly as to emasculate the statutes and defeat the obvious intention of the legislature. State v. Hooten, Fla.App., 122 So.2d 336. In other words, such strict construction is subordinate to the rule that the intention of the lawmakers shall be given effect. Chapman v. Lake, 1933, 112 Fla. 746, 151 So. 399; Haworth v. Chapman, 1933, 113 Fla. 591, 152 So. 633. ...”

The cardinal rule in the construction of statutes is to ascertain the legislative intent in the enactment of law. Dade Fed. Sav. & L. Ass’n v. Miami Title & Abstract Div., 217 So.2d 873 (Fla.App. 3d 1969). In our view it is crystal clear that the legislature intended that those who failed to timely purchase required documentary stamps, whether same were to be “affixed” to a deed or “not affixed” to a charge slip, would be subject to a penalty in the amount not timely purchased. By way of caveat, we recognize that the inflexible penalty equal to the purchase price of the stamps not affixed mandated by the legislature may well be an unduly harsh penalty in many instances; however, relief of same is a matter of legislative conscience — not of the judiciary.

AFFIRMED.

WARREN, LAMAR, Associate Judge, concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I dissent. The penalty here appealed is harsh indeed. Penal statutes must be strictly construed. I am of the view that Robinson’s logic, as recited in the majority opinion, is correct. I would reverse the final agency action here appealed and reinstate the recommended order entered by the hearing officer. If the legislature desires to amend the statutory language then it is free to do so, but in the meantime I would not visit the unusually harsh penalty upon the citizenry contrary to the express wording of the statute as it now exists.


author: PER CURIAM. MAGER, Judge

text:
    Tommy Lee BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 75-624.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.
    Rehearing Denied Aug. 27, 1976.
    Order Vacating Denial of Rehearing Sept. 13, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS, J., and GALE, JOHN, Associate Judge, concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting).

A review of the record reflects testimony by the arresting officer which can only be characterized as commenting on defendant’s exercise of his right to remain silent constituting fundamental reversible error. Bennett v. State, 316 So.2d 41 (Fla.1975); Jones v. State, 200 So.2d 574 (Fla.App.3rd, 1967). Although no objection was made the trial court perceptibly recognized the gravity of the matter and commendably proceeded to preserve defendant’s constitutional right to remain silent by admonishing the jurors in that respect. However, in my view the error was of such constitutional proportion that neither objection nor admonition could correct. Gordon v. State, 104 So.2d 524 (Fla.1958). Accordingly, I would reverse and remand for a new trial.

ORDER

ORDERED, sua sponte, this Court’s August 27, 1976 Order denying Appellant’s July 22, 1976 Petition for Rehearing is hereby vacated, and further

ORDERED, that said Appellant’s Petition for Rehearing shall remain under consideration until further Order of this Court.


author: ALDERMAN, Judge.

text:
    Walter Gordon RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1606.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1976.
    Rehearing Denied Aug. 27, 1976.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Appellant, the defendant below, appeals his conviction of attempted breaking and entering with intent to commit petit larceny.

He first asserts that the trial court erred in denying his motions for acquittal. The evidence was in part circumstantial and a close question was presented. In reference to circumstantial evidence, the test to be applied is whether the jury might reasonably conclude that the evidence excludes every reasonable hypothesis but that of guilt. Piantadosi v. State, 311 So.2d 742 (Fla.App. 3rd, 1975); Duran v. State, 301 So.2d 486 (Fla.App. 3rd, 1974); Amato v. State, 296 So.2d 609 (Fla.App. 3rd, 1974).

Applying this principle to the testimony in this case, we find that the trial judge correctly submitted the case to the jury. There was sufficient evidence from which the jury could reasonably exclude every hypothesis but that of guilt.

Defendant’s second point is based upon certain remarks made by the prosecutor during closing argument. The following took place before the jury.

'‘MR. PICCHI: [Prosecutor]: Ladies and gentlemen, I have done my job. My job is to present the facts. I could have brought in a lot of police officers.
MR. TAYLOR: [Defense Counsel]: I will object. He could have brought in anybody, but he did not do it.
THE COURT: Go ahead.
MR. PICCHI: I am trying to say, we are finishing this case now. It could have lasted longer.
MR. TAYLOR: Your Honor, I will object. Come on, please.
MR. PICCHI: The facts of the case have been presented to you as succinctly and as plainly as possible. I ask you to use your common sense. I have done my job. I presented it to you. It is your turn. This is your community. This is your courtroom. These are your laws.”

The state concedes that the prosecutor’s remarks were improper, but asserts that they were of a general nature not likely to prejudice the accused and therefore harmless error. In a close case we must give particularly careful attention to any improper and prejudicial remarks. The jury verdict in this case hinged upon the defendant’s credibility. We cannot say that the prosecutor’s allegation that he “. . . could have brought in a lot of police officers”, might not have had the effect of unfairly tipping the scales against the defendant. Thompson v. State, 318 So.2d 549 (Fla.App. 4th, 1975).

Reversed and remanded for a new trial.

WALDEN, C. J., and BERANEK, JOHN R., Associate Judge, concur.


author: RAWLS, Acting Chief Judge. JOHN J. CREWS, Associate Judge

text:
    Truman P. MORRELL, Appellant, v. STATE of Florida, Appellee.
    No. W-234.
    District Court of Appeal of Florida, First District.
    June 30, 1976.

      C. P. Maddox, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

Appellant Morrell was informed against and tried for the crime of rape. The jury returned a verdict of the lesser included offense of assault to commit rape; hence this appeal.

The major point asserted by Morrell is that the trial court erred in not permitting cross examination of the prosecutrix as to her addiction to narcotics and continuing methadone treatment.

The facts primarily reveal a “one on one” situation. The prosecuting witness testified that on the afternoon of her encounter with Morrell, she was walking home from her doctor’s office. At this time a late model Thunderbird automobile pulled alongside her, and the two male occupants offered her a ride. She did not know the two males, however, she accepted their offer. Instead of taking her home, Morrell (the driver of the car and who she later identified) drove to a remote area. There, pursuant to the threat of shooting her to death, Morrell proceeded to rape her. A pistol was found in Morrell’s possession at the time of his arrest in the early evening. Without detailing the facts further, suffice it to say that substantial, competent evidence was adduced to uphold the jury’s verdict.

On cross examination, Morrell’s attorney sought to elicit from the victim the fact that she was addicted to narcotics and, at that time, was taking methadone. Objection to this line of inquiry was sustained. In the jury’s absence, Morrell’s attorney examined the victim in developing a proffer of her testimony. She testified that she first became addicted to narcotics at age 18 (she was 21 years old at the time of trial), and that a week and a half prior to trial she had been confined in the Duval County Jail for possession of heroin. In answer to the question, “Are you under the influence of narcotics at the present time and or methadone?”, the witness answered, “Well, I’m on methadone now.”

Morrell’s defense was predicated upon his testimony that the victim was hitchhiking down Kings Road, and when he slowed up she ran over to his car and acted like she knew his companion. Morrell further related that after she got into the car, she pulled out some marijuana and began talking about something stronger. The gist of Morrell’s version was they had sexual intercourse in exchange for Morrell offering her some cocaine; although Morrell did not intend to uphold his end of the bargain.

Two main functions of cross examination are: 1) to shed light on the credibility of the direct testimony, and 2) to bring out additional facts related to those elicited on direct examination. As to the first function, the test' of relevancy is whether it will, to a useful extent, aid the court or the jury in appraising the credibility of the witness and assessing the probative value of the direct testimony. More than half a century ago, the Supreme Court stated in Pittman v. State:

“It is settled in this court that, for the purpose of discrediting a witness, a wide range of cross-examination is permitted as a matter of right in regard to his motives, interest, or animus as connected with the cause or the parties thereto, upon which matters he may he contradicted by other evidence . . . .” (Emphasis supplied)

The credibility of the prosecutrix being essential to the issue involved cannot be disputed. Although Morrell did not conclusively proffer proof that the prosecutrix was under the influence of drugs when the event occurred, or when she was on the stand to the extent that her mental faculties were impaired, it is evident that her drug addiction was a subject that was relevant to the facts charged. Thus, for the purpose of impeaching the credibility of the one witness’s testimony upon which the conviction had to be founded, the trial judge committed reversible error in precluding cross examination as to the prose-cutrix’s drug addiction and treatment.

REVERSED.

SMITH, J., concurs.

CREWS, JOHN J., Associate Judge, dissents.

JOHN J. CREWS, Associate Judge

(dissenting) .

I differ with the majority’s conclusion that the victim’s “drug addiction was a subject . . . relevant to the facts charged.”

I follow the authorities cited, but respectfully suggest that they are neither in point, nor germane to the issue resulting in reversal.

In Pittman, cited by the Court, the issue was whether the defendant who was charged with forgery, uttering and publishing a forgery, could on cross-examination be required to answer questions relating to a possible collateral crime of a similar nature. After stating the general rule as quoted and referring to earlier precedent, the Supreme Court concluded that such questioning and requirement to answer was not error. From the authorities cited by the Court in Pittman, page 394, it is apparent that such testimony was admissible for the purpose of illustrating the intent of the defendant in committing the crime for which he was being tried.

It is interesting to note that the late revered Justice Thornal, in pronouncing the rule for our Supreme Court relative to the admissibility of collateral crimes in Williams v. State, 110 So.2d 654, referred to authority which the Pittman Court noted in arriving at the majority’s quotation from the latter case.

The Appellant sub judice wanted the jury to know that his victim became addicted to heroin at the age of 18, had been arrested for possessing that drug a week and one-half prior to the event charged and had been taking methadone for the past two years.

I cannot find any evidence in the record, or proffer thereof, that she was on either her prescribed “treatment” or heroin at the time of the offense, or on the day of trial. In fact, during the proffer, she testified that she had not taken any methadone that day, but would at night.

In Eldridge v. State, 27 Fla. 162, 9 So. 448, the Supreme Court of Florida in reversing a conviction where testimony of a witness’s habit of indulging in morphine had been admitted quoted and said as follows on page 453:

“In section 418, 1 Whart. Ev., it is said, ‘The use of opium cannot be introduced to impair credit, unless it be shown that the witness was under the influence of opium when examined, or when the litigated event occurred.’ In the case of McDowell v. Preston, 26 Ga. 528, it was held that in order to discredit or weaken the testimony of a witness it is not enough to show that the witness was in the habit of using opiates. The proof must go further, and establish either that the mind of the witness was impaired generally by the use of it, or at least under influence of the opiate at the time the testimony was taken. The testimony here offered by the state falls short of this test, and should have been excluded. There was no testimony to show that the witness Smith was under the influence of morphine either at the trial or at the time of the event about which he testified; nor is it shown that his mind was impaired generally by the use of morphine.”

In Nelson v. State, 99 Fla. 1032, 128 So. 1, the Supreme Court in addressing itself to the assignments of error based upon the trial court sustaining objections of the state to questions propounded to complaining witness, relative to his using dope and cocaine, had the following to say:

“This court has held that, for the purpose of discrediting a witness, a wide range of cross-examination is permitted as a matter of right in regard to his motives, interests, or animus, ‘as connected with the cause or with the parties thereto,’ and in the discretion of the court a like inquiry may be made into the past life and history of the witness when the matters inquired about tend to affect credibility and that the rules which should govern the trial court in exercising its discretion in allowing or disallowing inquiries into collateral matters to affect credibility do not authorize questions to he put for the sole purpose of disgracing the witness, (emphasis supplied) and the court should not allow inquiries into matters which do not tend to affect credibility. The transaction inquired about must be one which bears directly upon the present veracity of the witness, (cit. omit.) .
“When the character of a witness is gone into, the only proper object of inquiry is as to his reputation for truth and veracity, as neither his general character nor particular phases of character can be gone into.” (cit. omit.)
“The general rule is that evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness.” (cit. omit.)
“There is no evidence in this case that Philip (the complaining witness) was under the influence of ‘dope’ either at the time he was robbed or at the time of testifying.” (cit. omit.)

The Court then cited Eldridge supra, and quoted from Wharton on Evidence as stated above.

In Kelly v. Maryland Casualty Company, 4 Cir., 45 F.2d 782, the Court quoted The Rule expressed in 40 Cyc. 2775 as follows:

“The mere fact that a witness uses or has used drugs does not impair his credibility in the absence of any showing that his mind or memory has been affected thereby, or that he was under the influence of drugs at the time of the occurrence as to which he testifies, or is under such influence when his testimony is given.”

Eldridge, Supra, was cited.

The Supreme Court of Alabama cited Eldridge in holding in Standard Oil Company v. Carter, 210 Ala. 572, 98 So. 575, that :

“The use of opium cannot be introduced to impair the credit of a witness unless it be shown that he was under the influence of the drug at the time of testifying or at the time of the occurrence of the event to which he is testifying, or that his mind was generally impaired by the use of said drug.”

In briefs and argument appellant contends that the prosecutrix’s “credibility” should be valued by the jury. Credibility for what? The appellant did not proffer any evidence that addiction to heroin two years previously and the taking of methadone since would in any way impair one’s veracity, accuracy, memory, nor one’s ability to discern what is happening or one’s awareness of time, place, space or events.

Contrarily, the victim testified in detail the route taken to the scene and the surroundings where she suffered the outrage resulting in trial. She had the presence of mind upon being released by appellant and companion two blocks from her home to write down the license tag number of her assailant’s car, and to telephone the police who were waiting at her residence by the time she could walk the short distance involved. Further, unchallenged, she testified that methadone did not affect her senses.

Since credibility could not be an issue without evidence, or the proffer thereof, to show the witness’s unfortunate addiction had or was affecting her senses as above stated, the trial judge was correct in sustaining the objection to the questioning proffered. Further, and more importantly, where there was not any proffer of testimony that the witness was on narcotics the day of the event or at the time of trial, for the court below to have admitted the testimony proffered would have been contrary to the law of evidence pronounced by the Supreme Court of Florida. Eldridge, Nelson, supra. This the trial judge apparently did not want to do; and neither shall this associate judge.

Credibility is not the issue in the case at bar as there is no factual basis upon which to predicate its being. The information sought was an inflammatory assault on the victim’s character, calculated to prejudice the jury, and to divert attention from the principal question being tried.

After duly considering the latitude granted on cross-examination, assaulting a rape victim’s character which is inflammatory, irrelevant, immaterial, and which sheds no light on the issue being tried, should be condemned instead of approved by courts of justice.

      . McCormick on Evidence (2nd ed. 1972) at 57.

      . Pittman v. State, 51 Fla. 94, 41 So. 385 (1906).

      . Eldridge v. State, supra, 35 Fla.Pur., Sections 193, 194. Kelson v. State, supra.


author: PER CURIAM.

text:
    SUNSHINE VILLA APARTMENTS, INC., a Delaware Corporation, Appellant, v. Ann K. SNYDER, Appellee.
    No. 74-1686.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1976.
    Rehearing Denied Aug. 27, 1976.
    Cecil T. Farrington, of Farrington & Farrington, Fort Lauderdale, for appellant.
    A. J. Ryan, Dania, for appellee.
   PER CURIAM.

This appeal involves occupancy rights in a cooperative unit. Appellant, a nonprofit corporation, owned and operated an 88-unit cooperative apartment including the subject apartment. Appellee-Snyder occupied the cooperative unit in question pursuant to the transfer of a certificate of ownership made by appellee-Young. Appellant contended below that it was necessary for the Board of Directors of appellant to first approve the transferee in order for occupancy rights to be acquired.

The final judgment in favor of the appellees stated that appellees were entitled to occupy the cooperative unit in question because of the transfer of the certificate of ownership (representing membership in the corporation) and assignment of the proprietary lease. However, pursuant to the by-laws of the corporate form cooperative the exchange of these instruments only conferred “equity” membership upon the appellee-Snyder and did not entitle her to “occupancy” rights or “residency” membership absent board of director approval which the record reflects was not granted. See Sunshine Villa Apartments, Inc. v. Haddad, 312 So.2d 810 (Fla.App. 4th, 1975). The final judgment which found for appellees was therefore erroneous.

Whether or not Board of Director approval of appellee’s request for occupancy rights was improperly or unreasonably refused in this instance is moot in light of facts now appearing in the appellate record, i. e., appellee-Young no longer occupies the unit in question having transferred ownership to a third party whose occupancy rights appellant has approved. See 2 Fla.Jur., Appeals, § 291. Accordingly, the final judgment is vacated and set aside and the cause remanded for such other proceedings as may be consistent herewith.

CROSS and MAGER, JJ„ and WALKER, WILLIAM L., Associate Judge, concur.


text:
    GUIN & HUNT, INC., and Continental Casualty Company, Appellants, v. HUGHES SUPPLY, INC., a Florida Corporation, et al., Appellees.
    No. 75-1678.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1976.
    Rehearing Denied Aug. 27, 1976.

      Jeffry R. Jontz of Yount, Turnbull & Linscott, Orlando, for appellants.
    Thomas B. Drage, Jr., Orlando, for ap-pellee United of Fla., Inc.
   ALDERMAN, Judge.

Guin & Hunt, Inc. and Continental Casualty Company appeal a summary final judgment entered against them in favor of United of Florida, Inc.

Briefly stated the facts are as follows: In 1973, Guin & Hunt, as general contractor, entered into a construction contract with Southern Realty Group, Inc. for the construction of a condominium complex in Orlando, to be known as “Lake-in-the-Forest”. Continental Casualty Company issued a bond for the project in the amount of $2,085,000, naming Guin & Hunt (contractor) as principal, and Southern Realty (owner), and Great American Mortgage Investors (lender) as dual obligees. The bond contained this special condition:

“Surety shall not be liable under this bond, unless Owner or Lender shall make payment to Contractor strictly in accordance with the terms of the contract as to payments and shall perform all other obligations to be performed by Owner under the contract at the time and in the manner therein set forth.”

United of Florida, Inc., under a subcontract agreement with Guin & Hunt, Inc., provided labor and material to the project. The general contractor failed to pay the amount due under the subcontract. The subcontractor then sought to recover on the bond as provided by § 713.23, Florida Statutes.

As an affirmative defense the contractor and its surety asserted:

“The Defendant, GUIN AND HUNT, INC., asserts that it has not received payments from SOUTHERN REALTY GROUP, INC., or the lendor of the construction proceeds to SOUTHERN REALTY GROUP, INC., and that this position is adopted by the Defendant, CONTINENTAL CASUALTY COMPANY, and therefore, Defendant, CONTINENTAL CASUALTY COMPANY, has no obligation to pay the Plaintiff under its payment bond.”

On motion of the subcontractor, the court below struck the affirmative defense, and after determining that there were no genuine triable issues as to any material fact, found as a matter of law that the subcontractor was entitled to summary judgment.

We agree and affirm.

Appellants contend that the bond in question is a common law bond and not given pursuant to § 713.23. They argue that they are free to contract for any type bond they desire, and that as a part of their freedom to contract they may agree to provisions restricting payments under the bond. This might be true as between the surety and the prime obligees; however, a different situation exists in reference to appellee.

Under the terms of the subcontract, payment to subcontractor was in no way conditional upon the general contractor receiving any payment from the owner or lender. All the subcontractor was required to do in order to be entitled to receive its payment was to perform in accordance with the terms of the subcontract.

A review of the bond shows it to be more than a performance bond intended only to assure the physical completion of the work. A requirement of the bond that the contractor “ . . . keep the property and construction funds free and clear of any and all liens for labor or material furnished in connection with the contract .” suggests that it is also a payment bond.

The bond also provides in part:

“No right of action shall accrue on this bond to or for the use or benefit of any person or corporation, other than the Owner and Lender herein named, unless such person or corporation shall be granted right of action by applicable laws relating to liens for labor and material furnished in connection with the contract . . .”

Although stated negatively, this provision must be construed to mean that a person or corporation, other than the Owner and Lender, may have a cause of action on the bond if such person or corporation is granted a right of action by applicable Florida law.

Does Florida law grant to appellee a cause of action on this bond? The U.S. Court of Appeals, Fifth Circuit, considering a related question, held that under Florida law when a surety on private construction work issues a bond that purports to protect against mechanics’ liens, the bond must be construed and applied in accordance with the conditions and provisions of § 713.23. Houdaille Industries, Inc. v. United Bonding Ins. Co., 453 F.2d 1048 (5th Cir. 1972). Although not bound by that decision we concur with the rationale of Houdaille.

It is not mandatory under § 713.23 for a private owner to require a bond to protect lien claimants. But if the private owner, rather than remaining subject to the lien laws, chooses the alternate of a bond which protects against liens, he may not employ a bond other than a § 713.23 bond. It would be inconsistent with the Mechanics’ Lien Law and the statutes allowing a bond in lieu of exposure to liens that potential lien claimants be left in doubt as to whether they may rely on the bond or must perfect their liens.

In the present case appellee filed a claim of lien as well as his claim against the bond. The fact that he perfected his lien right, in the event he is not protected under the bond, does not diminish his claim under the bond.

The surety in this case issued a bond that purports to protect against mechanics’ liens. As such the bond should be construed as a “payment bond” in accordance with the provisions of § 713.23. The effect of the bond is to exempt the owner’s property from lien foreclosure and substitute the security of the bond in lieu thereof. That being the case, appellee, as a subcontractor, is a third party donee obli-gee of the bond. His rights as such are vested and may not subsequently be defeated by the failure of the owner or lender to comply with the special conditions of the bond. The trial judge properly struck appellants’ affirmative defense.

Appellants also contend that the trial court erred in granting summary judgment because appellee failed to prove that certain supplies had been delivered to the work site. We have reviewed appellee’s uncontradicted affidavit in support of its motion for summary judgment and find that the trial court correctly entered summary judgment.

Affirmed.

WALDEN, J., and BERANEK, JOHN R., Associate Judge, concur.


author: SMITH, D. C., Associate Judge.

text:
    In re ADOPTION OF Michael Shane DeGROOT, a minor.
    No. 75-1376.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.
    Rehearing Denied Aug. 27, 1976.
    Johnie A. McLeod, Apopka, for appellants, Neal Freeman and Dorothy Freeman.
    Frederick J. DeGroot and Jeannine M. DeGroot, appellees, in pro. per.
   SMITH, D. C., Associate Judge.

The appellees petitioned to adopt a three and one-half year old male child who was born out of wedlock. A written consent of the child’s mother and a written consent of the child’s father were attached to the petition. The appellant, Neal Freeman, the child’s maternal grandfather, filed an objection to the adoption by the appellees and he and his wife filed a cross-petition for adoption of the child.

At the trial the court heard the testimony of a number of witnesses including the appellants, appellees and the child’s mother. The child’s mother testified that she wanted the appellees to adopt her child. The court found that it is in the manifest best interest of the child that he be adopted by the appellees.

The principal assaults made on the order of adoption are that (1) the written consents of the child’s mother and father do not meet the requirements of Section 63.-082(2) Florida Statutes; (2) no notice was given to the father as required by Section 63.122 Florida Statutes; and (3) that the order of adoption entered by the trial court was contrary to the weight of the evidence.

Section 63.082(2) Florida Statutes provides':

“A consent that does not name or otherwise identify the adopting parent is valid if the consent contains a statement by the person consenting that the consent was voluntarily executed and that identification of the adopting parent is not required for granting the consent.”

The consent of the mother and the consent of the father attached to the petition did not contain the names of the petitioners and did not state that the identification of the adopting parents is not required for the granting of the consent. However the child’s mother appeared and participated in the adoption proceedings and testified that she wanted her son to be adopted by the appellees. It therefore appears that the mother’s oral consent in the presence of the court meets the requirements of Section 63.082(1) (c) Florida Statutes and, in view of her appearing and participating in the adoption proceedings, the service of process statute for adoption proceedings does not apply to her. In Re Adoption of Cox, Supreme Court of Florida, 1976, 327 So.2d 776.

The record shows that the child’s father was killed in an accident before trial rendering any defective consent or service of process on him in these adoption proceedings moot.

As previously stated, the trial court found that it is in the manifest best interest of the child that he be adopted by the appellees. The weight of the evidence supports such finding. In In Re Adoption of Cox, supra, the Court stated:

“. . . We recognize the difficulties inherent in making a decision in matters of this nature, and we are most reluctant to substitute our judgment (or let the district courts substitute their judgments) in the resolution of these emotionally-charged matters. Where the trial judge has guided his decision by reference to the best interest of the child and fully considered all of the evidence before him, there is very little room for the exercise of appellate discretion.”

We have examined the other points raised on this appeal and find them without merit.

The order appealed from is affirmed.

CROSS and MAGER, JJ., concur.