author: HARRIS, Judge.

text:
    William N. LOWERY v. STATE.
    3 Div. 542.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Feb. 1, 1977.

      Von G. Memory, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Eric A. Bowen, Asst. Atty. Gen., for the State, ap-pellee.
   HARRIS, Judge.

In 1972 appellant was convicted of murder in the second degree under an indictment charging murder in the first degree. The jury fixed his punishment at twenty years in the penitentiary. He appealed this conviction and the case was reversed. Lowery v. State, 55 Ala.App. 511, 317 So.2d 357; 294 Ala. 347, 317 So.2d 360; 55 Ala.App. 514, 317 So.2d 365.

When the case was called for retrial the State struck the charge of murder in the first degree and proceeded to trial on the charge of murder in the second degree to which charge appellant pleaded not guilty. He was again found guilty of murder in the second degree and the jury fixed his punishment at twenty years in the penitentiary. He has been represented by retained counsel throughout all of these proceedings.

The evidence was in sharp conflict which made a clear-cut case for the jury to resolve. The major issue presented on this appeal is whether the trial court properly charged the jury on the element of malice. The record clearly shows that at the conclusion of the oral charge appellant stated to the Court that he desired to take up some matter outside the presence of the jury. After the jury was excluded, appellant reserved certain exceptions to the Court’s oral charge. The law is well settled in this State that exceptions to the oral charge, or any part of it, to be availing, must be taken and reserved in the presence of the jury and before the jury retires. Ennis v. State, 37 Ala.App. 716, 76 So.2d 183; Owens v. State, 53 Ala.App. 553, 302 So.2d 240; Franklin v. State, 45 Ala.App. 27, 221 So.2d 919; Cox v. State, 280 Ala. 318, 193 So.2d 759.

It is not disputed that the deceased, James T. Parham, was shot by appellant on the night of May 13,1972, outside the Golden Nugget, a nightclub located across the highway from Gunter Field in Montgomery County, Alabama. Parham was carried to a local hospital where he became a patient of Dr. William H. Chambliss who performed three surgical operations on him in an attempt to save his life. Parham’s condition deteriorated to the point that Dr. Chambliss referred him to Dr. James Hollanback at the University Hospital in Birmingham where he subsequently died.

Dr. Richard A. Roper, Director of the Montgomery Regional Laboratory of the State Department of Toxicology, performed a postmortem examination on the body of Parham to determine the cause of death. This witness stated his educational background, training and experience. He stated that the autopsy was performed in the presence of a pathologist and that he and the pathologist were in complete agreement that the cause of death resulted from a massive infection of the gastric-intestinal tract which was consistent with a gunshot wound that penetrated the intestines a number of times. Photographs of the body of Parham were made during the autopsy and two of these were admitted into evidence over appellant’s objections.

Officer Harold Hicken of the Montgomery Police Department was assigned to investigate the shooting at the Golden Nugget. He described in detail the layout of the premises where the shooting occurred and identified photographs of the nightclub. He stated he found a club made from a cue stick under the front of an automobile that was parked near the front door of the club. He said that Mr. Parham had already been carried to the hospital when he arrived at the scene. Hicken further testified that the front door had at least one bullet hole in it. He stated that the next night or two he found another club in the parking lot of the Golden Nugget, but he did not see it the night of the shooting and did not know how long it had been on the parking lot.

Joel Wesley Lambert testified that he arrived at the Golden Nugget between 10:30 and 11:00 p.m. on the night of the shooting. He stated that he first noticed appellant playing pool at one of the two pool tables in the place. Lambert started playing pool on the other pool table. In order to make a shot Lambert asked appellant, who was in his way, to move, by saying, “excuse me.” At this point appellant told Lambert, “Boy, if I has a face like that, I’d go get some pills for it.” Lambert said again, “Excuse me,” and appellant said, “Did you hear me,_, I said if I had a face like that, I would go get some pills.” Lambert replied, “One thing about it, they don’t make pills for your face.” When Lambert made this statement, appellant made a move to strike Lambert with his fist and Lambert struck appellant in his face with the cue stick causing his nose to bleed. A number of men present, including the deceased and the bartender James Hudson, came over and broke up the fight. The deceased told appellant to leave the place. Appellant had come to the Golden Nugget that night with a couple — Bill Heartsill and Carol Ryals, and when the deceased told appellant to leave, he walked out of the place with this couple.

Lambert further testified that when the trio got outside, appellant was cursing and trying to get Lambert to come out of the building. The deceased told appellant again to leave and he remembered that he had dropped some beer he had purchased before the fight and the deceased told him to get his beer and leave. Lambert said he helped them pick up the beer and gave it to them and they walked out of the place. Carol Ryals kept saying they should not be made to leave and they did not start the trouble. Appellant was still trying to get Lambert to come outside. Lambert went to the door and looked outside. James Hudson was standing in the door to keep the people inside the place and the deceased was standing just outside the door. The deceased told appellant again to leave. At this point, according to Lambert, appellant pulled a pistol from under his shirt and started firing. Hudson was shot in the side and elbow. Parham was shot in the abdomen and walked behind a car parked at the front door and fell. He remained where he fell until the ambulance came and got him. After the shooting appellant and his two companions ran to their car and drove away.

On cross-examination Lambert admitted that he had previously been convicted of forgery and that he was a good friend of both the deceased and James Hudson. He denied making any remarks to Heartsill about the scars on his face but admitted that Heartsill had some bad looking scars.

James Hudson testified that he had a full-time job as an appliance salesman and was a part-time bartender at the Golden Nugget. He stated that he first noticed appellant the night of the shooting when he came to the bar to buy a six-pack of beer and the waitress gave him the wrong kind and he asked her to exchange it for another kind. Hudson was mixing drinks and noticed appellant because of the manner in which he spoke to the waitress.

Hudson next observed appellant when there was a disturbance and fight involving appellant, Lambert and Chuck Norton. He saw Lambert strike appellant in the face with a cue stick. Hudson and the deceased went to break up the fight. They stopped the fight and the deceased told appellant to leave. Carol Ryals kept urging appellant to stay and fight once they. were outside. Carol and Heartsill went back inside the club to get the beer that appellant dropped on the floor during the fight. Appellant remained outside arguing with Lambert who was still inside the place, about who started the fight and kept trying to get Lambert to come outside so they could fight. The deceased told appellant that he did not care who started the fight, he wanted him to leave. Hudson was standing in the doorway with his club — pool cue in his hand — but he did not use it to strike anyone. He further testified that the deceased did not have a weapon of any kind; that appellant kept trying to get the fight started again and the deceased started toward appellant. At that point the shooting began and both Hudson and the deceased were shot.

On cross-examination Hudson testified that the only weapons in the Golden Nugget the night of the shooting were the end of a cue stick and an unloaded pistol.

Mr. John W. Wilson testified that in May of 1972 he worked part time at the Golden Nugget. His job was to check membership cards and to have people register before they were permitted to enter the club. That he was on duty the night of the shooting. He remembered appellant and Lambert arguing and fighting at the pool tables and a number of people intervened and broke up the fight. Appellant and his friends went outside and began shouting to Lambert on the inside urging him to come outside and fight. He stated that the deceased and Hudson came to the front door and told appellant and his friends to leave. He said he thought the deceased and Hudson had billy clubs. He heard appellant and the deceased arguing and the deceased and Hudson started to go outside. At that time Wilson said he heard three to five shots and saw that Hudson was hit. He did not see the deceased when he was shot as he was to the left of the door and out of his vision. He further testified that he had never seen the deceased use a club on anyone during the time he worked there.

Bill Heartsill testified that he and appellant were good friends and that on the night of May 13, 1972, he delivered to appellant a pistol which he had agreed to sell him a week before. He delivered the pistol to appellant at Fort Deposit just before they got in the car to come to Montgomery. Appellant stuck the pistol in his pocket. They went by Carol Ryals’ house and stayed a few hours and then they came to Montgomery. Carol called a friend of hers trying to get appellant a date but was unsuccessful. They went to the Satellite Nightclub on the Southern Bypass where they had some beer to drink. They decided to go the Golden Nugget where Carol and Heart-sill danced and later Carol played pool. Appellant moved around in the dance hall trying to find a dance partner. His activities were reported to Hudson who went up to appellant and accused him of being a trouble maker. He further testified that they started to leave and appellant went to the bar and purchased a six-pack of beer to carry with them. On the way out someone said something to Heartsill about the scars on his face and appellant asked what was wrong and was hit in the face with a cue stick. He further stated that two or three men jumped on appellant and struck him with their fists. The fight was broken up and appellant and his friends were asked to leave. After they got outside the club, Heartsill remembered the beer that had been dropped during the fight inside and he went back to get it.

Heartsill further said that Lambert was at the door cursing and screaming about what he was going to do to appellant, and appellant was inviting Lambert outside to finish the fight. This witness further testified that Hudson came out and struck appellant across the forehead with a cue stick and both Hudson and the deceased went after appellant and began hitting him until the shots were fired by appellant. He claimed that appellant was cornered against a car in the parking lot and there was no way for him to escape.

Carol Ryals testified substantially to the same story as Heartsill except that she did not hear anyone make any statements about the scars on Heartsill’s face. She did not remember going back into the club to get the beer and she denied that she encouraged appellant to stay and fight after the deceased told them to leave.

Appellant testified in his behalf and stated that he had a permit to carry the pistol he purchased from Heartsill. He said he didn’t have any trouble at the Golden Nugget until he got ready to leave. On the way out of the club Heartsill stopped before they got to the door and appeared to be talking to someone. That he asked what was going on and was hit in the head with a cue stick and several men hit him with their fists. That he and his two friends walked out of the club. He further testified that while they were outside the club Lambert appeared in the door waving a cue stick and threatening to beat him up. He stated that the deceased and Hudson were also in the doorway and were shouting at him and then he was knocked down with a club. He claimed he did not remember shooting his pistol but he suddenly realized he had it in his hand. He said that because of the crowded conditions of the parking lot he had no way to escape but he managed to get to Heartsill’s car. They left the Golden Nugget and went to Greenville and to his mother’s house and contacted an attorney. The next day he returned to Montgomery and surrendered to the police.

The trial judge in this ease charged the jury on malice in the following language: “Malice in law doesn’t necessarily mean hate or ill-will, but is defined as an unlawful act willfully done without just cause or legal excuse. That is, it’s that mental state of condition which prompts the doing of an unlawful act without legal justification or extension.” It is obvious to us that the underlined word extension, was meant to be “extenuation,” and this was a typographical error and as so treated the Court’s oral charge is correct. It is identical with the charge in Patterson v. State, 156 Ala. 62, 47 So. 52, cited with approval by the Supreme Court in reversing this Court when this case was originally here on appeal. See Lowery v. State, 294 Ala. 347, 317 So.2d 360.

The trial court gave at the request of appellant seventeen written charges and refused eight. We have carefully considered the refused charges in the light of the oral charge and the given charges and find that the refused charges were substantially covered in the oral charge and many of the given charges. Title 7, Section 273, Code of Alabama 1940.

We are not too impressed with appellant’s plea of self-defense. He had ample time to leave the premises of the Golden Nugget when he was asked to do so and several minutes before the shooting. Instead of leaving he remained outside the door and kept urging Lambert to come out and finish the fight. However, the trial court fully charged the jury on the law of self-defense and also gave the following written charge at appellant’s request:

“It is not necessary under the evidence in this case that the defendant should have been actually in danger of death or great bodily harm at the time he shot the deceased in order for him to be justified in shooting the victim. He had the right to act on the appearance of things at the time, taken in the light of all the evidence. He had the right to interpret the conduct of the victim in the light of any threats that the evidence shows the victim to have made against him. If the circumstances attending the incident were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death and he honestly believed such to be the case, and there was not open to him any avenue or retreat without enhancing his danger or the circumstances were such that a reasonable man would not have deemed that retreat was safe, then he had the right to shoot the victim in his own defense, although as a matter of fact he was not in actual danger. If you believe that the defendant acted under such conditions and circumstances, the burden of showing that he was not free from fault in bringing in the difficulty is on the State, and if not shown you must acquit the defendant.”

We have carefully searched the record for errors which injuriously affected the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except CATES, J., who concurs in the result.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte William N. LOWERY.
    SC 2374.
    Supreme Court of Alabama.
    March 4, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    William Thomas WILLIS v. STATE.
    8 Div. 838.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.

      Robert S. Thomas, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged William Thomas Willis with the first degree murder of his wife, Judy Sandra Bradford Willis. The jury found the appellant guilty of murder in the second degree and fixed his punishment at twenty years imprisonment. The trial court entered judgment in accordance with this verdict. The appellant’s motion for new trial was denied.

On November 30, 1975, Judy Sandra Bradford Willis died after being shot with a .243 Sako rifle which fired while in the hands of her appellant-husband. The appellant claimed in his testimony at trial, and in a statement which he had given to the Jackson County Sheriff’s Department shortly after the shooting incident, that his rifle had malfunctioned and fired accidently. The jury found otherwise.

The evidence revealed that the appellant had planned a 4:30 a.m. deer hunt on the morning in question, but that he had temporarily postponed his hunting trip after he awoke that day to what he indicated was an unfavorable deer hunting condition, “blowing wind.” However, around 8:00 a.m., the wind had subsided somewhat, and the appellant decided to proceed with his hunting plans. The appellant requested that his wife get up and cook his breakfast, which she did reluctantly while the appellant gathered his hunting gear. Moments later the fatal shot was fired. The appellant’s account at trial of what transpired was as follows:

“Q. What part of the trailer was the gun in before you picked it up that morning to go out?
“A. It was sitting in the corner beside the couch.
“Q. Near the kitchen, near where your wife was working?
“A. Like I said, the kitchen is here and the living room right about here beside it, maybe fifteen or twenty feet from where the gun was standing.
“Q. Is that the place from which you picked up the gun?
“A. Right.
“Q. All right, and did you walk over there and get it by itself, or did you get some other piece of equipment with the gun at that time?
“A. I kept all of it; I had my clothes on the couch; like the vest and my hat, I put on and picked up the vest and the gun.
“Q. What did you do then?
“A. Well, I started out the front door.
“Q. All right.
“A. And,—
“Q. Did you arrive at the front door?
“A. Yes, I had the front door open.
“Q. All right, what did you do after you opened the front door?
“A. Well, I worked the bolt on the rifle and looked; and, well, I forgot what he called it, but I call it the chamber.
“Q. The chamber?
“A. Yeah.
“Q. All right, where was the vest at this time?
“A. It was in my hand right here.
“Q. All right.
“A. And I didn’t see anything in it.
“Q. You say you didn’t see anything in it. What do you mean by that?
“A. I didn’t see any shells in the gun.
“Q. All right, how far were you from a light in the trailer at that time, overhead light, or post or floor lamp, or anything, or any kind of lamp?
“A. There was a light in the kitchen over the sink, I believe.
“Q. All right, how bright was it outside at that time?
“A. Well, it was cloudy and windy, the best I can remember.
“Q. All right, you looked down in the chamber? Go on.
“A. And as I started to pull the bolt back up, she spoke to me; and as I turned around, she had turned, too, standing facing me; and as I pulled the bolt up and snapped it together, the gun went off.
“Q. Did you pull the trigger?
“A. No, sir.
“Q. The gun fired without your pulling the trigger, is that what you’re saying?
“A. Yes, sir.
“Q. Then what happened?
“A. Well, of course, the bullet struck her and she fell and I, on impulse, threw the gun out the door, kind of reflex, just threw it; and naturally, I run to see what I could do for her.”

When the above portion of the appellant’s trial testimony is contrasted with his oral statement given to Officer Tubbs and Coroner Henshaw only hours after the shooting incident, no material conflicts arise between the two. Officer Tubbs recited the pertinent content of the appellant’s November 30th statement as follows:

“A. Judy Willis, the deceased, making biscuit dough in a glass bowl in the kitchen area; and during this time, he was bringing his gun outside to put it in the car to go on this hunting trip when she, according to Mr. Willis, made some indication to him to wait and eat breakfast since he had already gotten her up, before he left; Mr. Willis said that he raised the rifle and pointed it towards Judy Willis and it went off. He said he did not touch the trigger, that he held the gun between the stomach and chest height and that he had just checked the gun and said it was not loaded.
“Q. Did he indicate how he had checked the gun?
“A. He unbolted the gun and saw the gun was clear of any ammunition.
“Q. This was what he told you he did?
“A. He was sure of this.
“Q. Okay, did he indicate whether or not the gun did, in fact, go off or not?
“A. He indicated that the gun fired; he was holding the gun and it was an accident.
“Q. Okay, what did he say he did with the gun, if anything?
“A. He slang the gun outside the front trailer residence door approximately fifteen feet out in the grass.”

However, contained in the record was evidence of serious prior difficulties between the appellant and his wife. On one occasion the appellant was arrested in Tennessee for feloniously assaulting his wife. There was evidence presented which revealed that as a result of one beating inflicted by the appellant, his wife required hospitalization and that the appellant had stated to his wife on another occasion in the presence of several witnesses that, “Judy, I could kill you and I wouldn’t serve three to five years.”

The appellant admitted that his wife was afraid of him and that they “had had difficulties” for a long time. The appellant also testified that it was not uncommon for him and his wife to point guns at each other, commenting that they “had done it a thousand times,” and further acknowledged that this time, “it just happened to go off ..” The appellant’s rifle, which he thought was unloaded, was found with one spent cartridge in the firing chamber and four rounds of live ammunition in the clip.

I

The appellant contends that the trial court erroneously allowed Officer Tubbs and Coroner Henshaw to relate to the jury the substance of his oral statement which he made to them at North Jackson Hospital shortly after the incident in question since at the time he made this statement, he was heavily sedated, thus rendering anything he might have said involuntary and inadmissible.

In accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, an evidentiary hearing was held outside of the jury’s presence to determine the voluntariness of the appellant’s statement. During this hearing, it was established that the appellant had been given an injection of Thorazene, and later an injection of Vistar-arl at North Jackson Hospital prior to the making of his statement.

Dr. Joe E. Hall, the appellant’s physician, testified that he prescribed the medication in order to tranquil the extreme nervous and agitated condition his patient demonstrated at the hospital on the morning in question. Dr. Hall stated that the effect these drugs would have on a man’s ability to relate “what happened” in response to questioning would vary greatly from patient to patient, but that the drugs’ usual effect produced drowsiness to a degree that the patient might appear “somewhat intoxicated.” Dr. Hall testified that he did not observe the appellant after these shots had been administered, and therefore could not state with certainty what actual effect, if any, they had on his patient’s ability to answer questions concerning Judy Willis’ death.

Officer George Tubbs, the investigator for the Jackson County Sheriff’s Department, testified that he interviewed the appellant in a “secluded” room at North Jackson Hospital with Coroner Henshaw and a Deputy Adams present. Officer Tubbs stated that the appellant was brought to the room in a wheelchair, and that he was not advised by the attending nurses that the appellant was under sedation. Officer Tubbs stated he did not make a personal inquiry into the matter since the appellant did not appear to him to be under the influence of any drug. Officer Tubbs testified that the appellant was advised of his Miranda rights, that appellant indicated he understood his rights, and that the appellant at no time was threatened, offered any reward or hope of reward, or offered any inducement to make a statement. Officer Tubbs indicated that the appellant had no difficulty in understanding questions, and that the appellant spoke calmly and deliberately throughout their fifteen minute conversation. Officer Tubbs further noted that the appellant left the interrogation room without the aid of a wheelchair.

A trial court’s determination of the effect tranquilizers or sedatives have on the voluntariness of a defendant’s statement is based on the same criteria as that used to determine the voluntariness of a statement made by one under the influence of alcohol. Vinzant v. State, 28 Ala.App. 220, 180 So. 736. This Court, per Harris, J., in Carter v. State, 53 Ala.App. 43, 297 So.2d 175, held:

“. . . The law is clear that proof of intoxication amounting to mania or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words renders a confession so made by him inadmissible, but a lesser state of intoxication will not render the confession inadmissible. The voluntariness of an alleged confession is a question of law for the court and should be decided by the trial court upon preliminary proof, showing the circumstances surrounding the alleged confession, taken outside the hearing of the jury, and such finding will not be disturbed unless it appears contrary to the great weight of the evidence or is manifestly wrong. Stewart v. State, 49 Ala.App. 681, 275 So.2d 360.”

Thus, the established rule is that intoxication short of mania, or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words, will not in itself render a statement inadmissible. Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408; Anderson v. State, 45 Ala.App. 653, 235 So.2d 902; Woods v. State, 54 Ala.App. 591, 310 So.2d 891; Daniels v. State, 53 Ala.App. 666, 303 So.2d 166, and authorities therein cited.

Once a finding is made by the trial court that a defendant’s statement was voluntarily and freely given, the fact of intoxication is left with the jury to consider in their determination of whether such statement is entitled to weight and credibility. Anderson v. State, supra. Compare Lowery v. State, 51 Ala.App. 387, 286 So.2d 62, cert. denied 291 Ala. 787, 286 So.2d 67, and authorities cited therein.

The evidence, which revealed the facts and circumstances that attended the taking of the appellant’s statement, was sufficient for the trial court to establish the statement’s voluntariness. See Jones v. State, 292 Ala. 126, 290 So.2d 165.

Supportive of, but not necessary to, our holding that the trial court made no error in determining that the appellant understood the meaning of his words at the time he gave his statement to Officer Tubbs and Coroner Henshaw is the fact that appellant’s testimony at trial was substantially the same as that used by him in the statement in question. See Jones v. State, 50 Ala.App. 36, 276 So.2d 621, and cases therein cited.

We have carefully considered the entire record, as required by Title 15, Section 389, Code of Alabama 1940, and find no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte William Thomas WILLIS.
    SC 2349.
    Supreme Court of Alabama.
    March 4, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


author: HARRIS, Judge. CATES, Judge,

text:
    Damon Lee KIRKLAND, alias v. STATE.
    4 Div. 487.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.
    Denny L. Holloway, Smith & Smith, Do-than, for appellant.

      William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., Montgomery, for the State.
   HARRIS, Judge.

Appellant was tried and convicted upon an indictment charging him with possession of marijuana. Appellant’s employed counsel was present with him at arraignment and he entered a plea of not guilty. The jury returned a verdict of guilty as charged and declined to assess a fine. The Court adjudged appellant guilty pursuant to the verdict of the jury and sentenced him to eight years in the penitentiary. Appellant gave notice of appeal, and the sentence was suspended pending appeal and his bond was fixed at eight thousand dollars. He made bond and is presently free from custody.

There was no motion to exclude the State’s evidence; there was no motion for a new trial, and no exceptions were reserved to the oral charge of the Court. Appellant requested the affirmative charge which was refused. He filed a motion to suppress the marijuana that was found in his 1973 Chevrolet Vega station wagon on the ground that his vehicle was searched without a search warrant and without probable cause. A hearing was conducted on this motion out of the presence and hearing of the jury.

The testimony on the hearing of the motion to suppress tended to show that on Saturday, February 7, 1976, appellant, his wife and one of their three children left their home in Dothan, Alabama, to visit appellant’s mother near Orlando, Florida. On Sunday morning, February 8, 1976, at about 7 o’clock Central Standard Time they started on the return trip to Dothan. As they were approaching Dothan around 2 o’clock p.m. on Highway 84, they were stopped by Lamar Hadden, an ABC Board Officer.

Hadden approached the car driven by appellant and started to show him his badge when appellant told the officer, “I know you Birddog.” Appellant testified that the officer told him that he had received a telephone call informing him that appellant would be in Dothan that afternoon with marijuana in his car and that the officer asked to search the car. Appellant told the officer that he didn’t know anything about it and that he never had any marijuana. He further testified that the officer stated that he received the telephone call that morning at 9:00, informing him that appellant had marijuana in his car and that he needed to search the car and told him to open the tailgate to his station wagon. Appellant stated that he opened the tailgate upon the order of the officer and he observed the officer push some oranges forward, raise up the spare tire case and take out a brown paper bag with something in it. The officer took the paper bag and its contents to his patrol car and told appellant he would follow them to the jail. When appellant and his wife arrived at the jail, they were given the Miranda rights and warnings. Appellant further stated that his vehicle was searched without a search warrant, and that he did not consent to the search. Appellant further stated he signed the waiver of rights form and waited for someone to sign his bond.

Appellant’s wife, Carol Kirkland, testified at the hearing to suppress and her testimony was substantially the same as that of her husband. She denied knowing anything about the marijuana being in the car and she further stated that Officer Hadden said he received a telephone call that morning at approximately 9 o’clock that there was marijuana in the car and that he had to search the car. That the officer told her husband to open the tailgate to the station wagon and she saw the officer remove a brown paper bag and he told her husband he would have to go to jail. She stated her husband asked the officer if he could carry his wife and child by his home first and the officer said no and that he would follow him to jail. She said when they got to the jail, she and her husband were read their rights. She stated her husband was arrested but she was allowed to call a friend to take her and her child home.

Officer Lamar Hadden testified that he was an Agent with the ABC Board and on February 8, 1976, was assigned to the Enforcement Division dealing with drugs and whiskey. He stated that on Sunday morning, February 8, 1976, he came home from Sunday School about 11 o’clock and his telephone was ringing. He answered the telephone and recognized the voice of the person calling. He said the caller was a police informer and he had known him for eight, ten or twelve years and knew him to be a reliable person. That this informer had given him information in the past that proved to be true. That the information furnished him by this informer had led to the arrest of three persons. Of the three persons arrested one had been convicted and cases involving the other two were presently pending in Court.

Hadden further testified that the informer told him that appellant was en route from Florida to Dothan with approximately five pounds of marijuana and that he should be in Dothan almost anytime, and that he would be driving a 1978 Chevrolet Vega green station wagon. Hadden called another agent and related this information to him and asked him to go with him but this agent was busy on another matter and could not go. Hadden then left his house and drove by appellant’s home and did not see the station wagon. He then drove out on Highway 84 and set up a surveillance. While waiting at an appointed place on Highway 84 Hadden called the State Troopers Station and requested that they run appellant’s name through the NCIC and give him the tag number on this 1973 Chevrolet Vega station wagon, and in a few minutes he was furnished the tag number.

From the record:
“THE COURT: But going further on, you say that the informer told you that Damon Kirkland was on route from Florida to Dothan with marijuana in his car?
“THE WITNESS: Yes, sir.
“THE COURT: How did he tell you that he knew this to be true?
“THE WITNESS: Yes, sir. He said he saw the marijuana in the car.
“THE COURT: Saw the marijuana in Damon Lee Kirkland’s car?
“THE WITNESS: Yes, sir.
“THE COURT: When did he say he saw it in Damon Lee Kirkland’s car?
“THE WITNESS: Just prior to his leaving Florida.
“THE COURT: Did he say who was around at this time?
“THE WITNESS: No, sir. - He didn’t.
“THE COURT: Okay. Go ahead Mr. Martin. I wanted to find out how the informer knew or what he said about how he knew.”

Hadden further testified that he continued to watch the traffic and at approximately 2:00 p.m., he saw appellant driving the green 1973 Chevrolet Vega station wagon on Highway 84 headed toward the city of Dothan and saw his wife and child in the vehicle. He started chasing appellant and finally turned on the blue light and stopped him. The officer walked up to the driver’s side of the station wagon and started to identify himself when appellant said, “Bird-dog, I know you.” Hadden told appellant he had a report that appellant had marijuana in his car and appellant said he didn’t have any. According to Hadden’s testimony he told appellant that he had to search the car and appellant said, “go ahead and search it.” Hadden found the bag of marijuana and appellant was placed under arrest at the jail after he was given the Miranda rights and warnings.

At the conclusion of the hearing to suppress the Court overruled the motion and the evidence was presented to the jury.

The evidence before the jury was essentially the same as presented on the motion to suppress with the officer testifying that appellant gave him consent to search the station wagon and appellant denying that he consented to the search.

Hadden further testified that he personally delivered the bag he removed from the station wagon to Mrs. Melinda Long, a Crime Laboratory Analyst at the Enterprise Division of the State Department of Toxicology.

Mrs. Long testified that she received the bag from Officer Hadden and conducted a laboratory examination of the substance found in the bag and determined the substance to be marijuana. The bag was introduced into evidence over appellant’s objections, and consisted of four pounds, nine ounces marijuana.

Appellant called four witnesses who testified to his good character and that they would believe him on oath.

In rebuttal the State called two police officers who testified that appellant had a bad reputation in the community.

The major question presented on this appeal is whether the trial court committed reversible error in overruling the motion to suppress the State’s evidence on the ground that the contraband was illegally seized without a valid search warrant. Stated another way, was the warrantless search of appellant’s vehicle valid under the facts and circumstances in this case?

Laying aside the conflicting evidence relating to appellant’s consent to search his station wagon wé think the search was constitutionally valid because of the existence of “exigent circumstances” coincidental with “probable cause.” This is one of the well recognized exceptions under which warrantless searches have been upheld. Daniels v. State, 290 Ala. 316, 276 So.2d 441; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Osner v. State, 54 Ala.App. 520, 310 So.2d 241; Welden v. State, 57 Ala.App. 379, 328 So.2d 630.

Officer Hadden certainly had “probable cause” to believe that appellant had marijuana in his automobile based upon an informer’s tip and especially in the light of the fact that the informer had proved to be reliable in the past as set out in the facts of this case. The informer told Officer Had-den that appellant was en route to Dothan with approximately five pounds of marijuana and should be in Dothan almost anytime. It would have been foolish for Officer Had-den to leave his observation post and try to find a Magistrate on Sunday to issue a search warrant. We hold the search of appellant’s station wagon was constitutionally valid in this case.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.

CATES, J., concurs with opinion.

CATES, Judge,

concurring:

In Tranum v. Stringer, 216 Ala. 522, 113 So. 541, we find the Supreme Court of Alabama adopting Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, as giving “ * * * the sheriff and other law enforcement officers * * * the same authority to search automobiles without warrant as federal * * * officers, all subject to the rule of probable cause *

In this case some concern has been expressed as to the use of prohibited liquor agents to ferret out drug law violations, particularly because § 501(a)(l)(2) and (3) of the Alabama Uniform Controlled Substances Act limits the power of arresting without warrants and seizures to named officers. The officers given such powers are:

“The agents and officers of the Department of Public Safety, the drug inspectors of the State Board of Pharmacy and the drug and narcotic agents and inspectors of the Department of Public Health $ * * If

I don’t think that a person arrested may claim ultra vires against an ABC agent. Admittedly, under § 5, T. 29, 1940 Code, as amended, liquor agents are commissioned solely to enforce the liquor laws. However, an exception to the rule of exclusion is that a seizure by a non agent of the government is not a breach of the Fourth Amendment. Burdeau v. McDowell , 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; Anno., 36 A.L.R.3d 553.

Hence, I concur in the affirmance.

      . Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.R. 349 at 407.


author: ALMON, Justice.

text:
    Ex parte Damon Lee KIRKLAND.
    SC 2369.
    Supreme Court of Alabama.
    March 4, 1977.
   ALMON, Justice.

WRIT DENIED.

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


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Robert Randolph NORDONE, Respondent.
    No. 47147.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Rehearing Denied Feb. 9, 1977.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for petitioner.
    Phillip A. Hubbart, Public Defender, Karen M. Gottlieb and Steven M. Rappaport, Asst. Public Defenders, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court, and we issued the writ. Upon further consideration, however, we have determined that we are without • jurisdiction in this cause. The writ is therefore discharged and the petition for writ of certiorari dismissed.

It is so ordered.

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

ROBERTS, ADKINS and BOYD, JJ., dissent.


author: SUNDBERG, Justice.

text:
    FLORIDA INTERCONNECT TELEPHONE CO., a Florida Corporation, Petitioner, v. FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 47839.
    Supreme Court of Florida.
    Dec. 22, 1976.
    Rehearing Denied March 14, 1977.

      H. Vernon Davids, Davids, Henson & Hadley, Winter Garden, and Edwin B. Spie-vack, Cohn & Marks, Washington, D. C., for petitioner.
    Prentice P. Pruitt and J. B. Curasi, Tallahassee, for respondent.
    Earl B. Hadlow, Mahoney, Hadlow, Chambers & Adams, Walter H. Alford, Miami, and Robert W. Sterrett, Jr., Atlanta, Ga., for Southern Bell Tel. & Tel. Co., inter-venor-respondent.
   SUNDBERG, Justice.

This case is a certiorari proceeding from the Public Service Commission. Article V, Section 3(b)(3), Florida Constitution.

Petitioner Florida Interconnect Telephone Company (Interconnect) is a Florida corporation which sells, leases, installs, and maintains customer-provided terminal communications equipment and systems, including automatic private branch exchanges. It is thus a competitor of Southern Bell Telephone and Telegraph Company.

Southern Bell filed with respondent Public Service Commission on May 24, 1975, a General Exchange Tariff for Private Branch Exchange Service. A portion of this tariff constituted a rate reduction, accompanying the introduction of a new line (trademarked Dimension) of Private Branch Exchange Service equipment. On June 27, 1975, before the Public Service Commission had acted upon the proposed tariff, Interconnect filed a complaint, application for denial, and request for hearing on the proposed rate changes, which alleged that substantial interests of petitioner would be affected by approval of the proposal. Southern Bell served an answer by mail to petitioner’s complaint on or about July 3, 1975; this pleading was received by petitioner on or about July 7, 1975.

After considering the matter at agenda conference on July 7,1975, respondent Commission ostensibly approved the proposed tariff reduction, to be effective on July 10, 1975. This action was taken without individual notice to, or knowledge of, petitioner.

On August 6, 1975, petitioner filed in this Court its petition for writ of certiorari and motion to stay the PSC order (No. T-75 — 74) approving the tariff reduction. The motion was denied on August 14, 1975. Subsequently, Southern Bell filed a petition to intervene, which was granted, and a motion to quash and dismiss Interconnect’s petition, which was denied. The cause was then argued orally before this Court.

Petitioner’s argument is that the Commission’s approval of Southern Bell’s tariffs sheets was improper because Interconnect was not afforded an opportunity for hearing after reasonable notice, incidents of due process required by Section 120.57(l)(b) and generally by Chapter 120, Florida Statutes, the Administrative Procedure Act (the Act). Since its interests in intervenor’s application were “substantial” within the meaning of Section 120.57, Interconnect reasons that it was entitled to participation in any hearing on the matter held before the Commission. Petitioner prays, therefore, that this Court quash the Commission order granting rate changes to Southern Bell and remand the cause to the Commission with instructions to hold a new hearing at which petitioner will be able to present a case against the rate change. The effect of such a ruling by this Court would be to quash approval of the rate change and place the parties in statu quo ante.

Although Interconnect’s reasoning appears plausible at first blush, we find that the relief requested is inappropriate in this case based on facts presented to this Court. We therefore deny the petition for writ of certiorari. Central to this determination is our specific finding that the Commission’s Order No. T — 75-74, which we review today, does not constitute final agency action within the contemplation of the Act.

Section 120.52(9), Florida Statutes (1975), reads as follows:

“ ‘Order’ means a final agency decision which does not have the effect of a rule and which is not excepted from the definition of a rule, whether affirmative, negative, injunctive, or declaratory in form. An agency decision shall be final when reduced to writing.”

Several aspects of the instant controversy persuade us that the Commission’s order is not “a final agency decision.” First, the record discloses that Mr. David L. Swaf-ford, Director of the Commission’s Rate Department, notified Southern Bell and Florida Interconnect by letter July 10,1975, that its complaint would be set for hearing. The letter noted that Southern Bell’s tariff had been “approved” pending disposition of the complaint. On July 14, 1975, Mr. H. E. Smithers, the Commission’s Chief Hearing Examiner, wrote to both companies, requesting certain information in order to expedite the hearing. Rather than cooperate with this effort to expedite its complaint, petitioner chose to seek review of the Commission’s tentative approval in court. But the actions of Messrs. Swafford and Smithers indicate that the agency decision was not “final” and hence not reviewable by this Court. Cf. Citizens of Florida v. Mayo (Southern Bell Tel. & Tel. Co.), 322 So.2d 911 (Fla.1975); Citizens of Florida v. Mayo (Florida Power Corp.), 316 So.2d 262 (Fla.1975); Citizens of Florida v. Mayo (Florida Power & Light Co.), 314 So.2d 781 (Fla.1975).

Another reason why Interconnect’s petition in this Court is not well taken is that the “order” of which petitioner complained was in a very real sense surplusage. This is so because of the provisions of the “file-and-suspend” law, enacted as Chapter 74-195, Laws of Florida. If the Commission does not object to the proposed tariff changes within thirty days, the proposed rates automatically go into effect:

“Pending a final order by the public service commission in any rate proceeding under this section, the commission may withhold consent to the operation of all or any portion of the new rate schedules, delivering to the utility requesting such increase, within 30 days, a reason or written statement of good cause for withholding its consent. Such consent shall not be withheld for a period longer than 8 months from the date of filing the new schedules. The new rates or any portion not consented to shall go into effect under bond at the end of such period, but the commission shall, by order, require such utility to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid, and upon completion of hearing and final decision in such proceeding, shall by further order require such utility to refund with interest at a fair rate, to be determined by the commission in such manner as it may direct, such portion of the increase [sic] rate or charge as by its decision shall be found not justified. Any portion of such refund not thus refunded to patrons or customers of the utility shall be refunded or disposed of by the utility as the commission may direct; however, no such funds shall accrue to the benefit of the utility.” Section 364.-05(4), Florida Statutes (1975).

This procedure survives the adoption of the new Administrative Procedure Act. See Section 120.72(3), Florida Statutes (1975). Here the Commission delivered no such “reason or written statement of good cause for withholding its consent.” By the time Interconnect filed its complaint with the Commission on June 27, 1975, more than thirty days had elapsed from Southern Bell’s May 24, 1975 filing of its proposed tariff rates.- Thus, the Commission was without authority to suspend intervenor’s new rate tariffs had it chosen to do so, and consequently Interconnect is in no position to complain about the new schedule’s having gone into effect on at least an interim basis.

In any event, the agenda conference could not have been the occasion for taking “final agency action” because it was preceded by inadequate notice. We are unable to accept intervenor’s inference that Interconnect should have known the conference was to consider Southern Bell’s new tariffs by virtue of the following published in Florida-Administrative Weekly, Vol. 1, No. 25, June 27, 1975, at 15-16:

“The FLORIDA PUBLIC SERVICE COMMISSION announces its regularly scheduled conference to which all interested persons are invited.
DATE AND TIME: July 7,1975 at 9:30 A M
PLACE: Hearing Rm., 700 So. Adams St., Tallahassee, FL 32304
PURPOSE: To consider those matters ready for decision, and other related matters.
A copy of the Agenda may be obtained by writing to: Commission Clerk, Public Service Commission, 700 S. Adams Street, Tallahassee, Florida 32304.”

Adequacy of notice is not a factor in reaching our decision- in this case because the action taken at the hearing (i. e., intermediate consideration of the new rates) would have occurred had the hearing not been held. Nevertheless, we do not find the foregoing quoted material to constitute adequate notice within the contemplation of Section 120.57(l)(b)2.b., Florida Statutes (1975).

We pause to note our disagreement with petitioner’s contention that Section 364.05, supra, is inapplicable to this proceeding because this section is limited in terms to rate “increases.” We find from the statutory context of other provisions of Chapter 364 that the procedure outlined in Section 364.05 is designed to apply to any rate change. It is apparent that references in the section to “increases” were intended by the legislature to relate to the bond procedure applicable at the expiration of eight months when suspension is invoked by the Commission. This conclusion is reinforced by the prefacing phrases “Pending a final order by the Public Service Commission in any rate proceeding under this section, the commission may withhold consent to the operation of all or any portion of the new rate schedules. . . . ” Such a construction is compatible with the notion that the Commission has authority for good cause, to suspend even decreases in telephone service rates if, for example, it deemed them to be destructive of a particular competitive balance in the industry. Thus, the fact that the portion of Southern Bell’s new tariffs under consideration constitutes a rate reduction is not relevant. The Commission has tendered petitioner the opportunity for a hearing which we must presume will be conducted in a fashion compatible with the requirements of law.

Accordingly, the petition for writ of cer-tiorari is denied without prejudice to petitioner’s right to seek relief in this Court from a duly-entered final order.

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

      . To reduce confusion wrought by changes in the numbering of relevant statutory enactments, all citations to existing enactments are made to their current numbers as reflected in the 1975 Florida Statutes.


author: BOYD, Justice. HATCHETT, Justice

text:
    David B. FLEEMAN et al., Appellants, v. Clark CASE et al., Appellees. DEPARTMENT OF BUSINESS REGULATION et al., Appellants, v. William A. JOHNSON et al., Appellees. PLAZA DEL PRADO CONDOMINIUM ASSOCIATION, INC., Appellant, v. DEL PRADO CORPORATION, etc., et al., Appellees.
    Nos. 48488, 48752 and 48682.
    Supreme Court of Florida.
    Dec. 22, 1976.
    Rehearing Denied March 14, 1977.
    Harold Tannen, Bernstein, Hodsdon & Tannen, Miami, for David B. Fleeman.
    Charles L. Curtis, Tallahassee, for Dept, of Business Regulation.

      Michael L. Hyman, Weissenborn, Burr & Hyman, Miami, for Plaza Del Prado Condominium Assn., Inc.
    George I. Platt and Alan S. Becker, Becker & Poliakoff, Miami Beach, for Clark Case.
    Sam Spector and Cynthia S. Tunnicliff, Law Office of Sam Spector, Tallahassee, for William A. Johnson.
    Norman S. Klein, Schwartz, Klein & Ste-inhardt, North Miami Beach, Robert C. Jo-sefsberg, Pearson & Josefsberg, Miami, and James C. Smith and Roy C. Young, Smith, Young & Blue, Tallahassee, for Del Prado Corp.
    Robert L. Shevin, Atty. Gen., and Charles S. Ruberg, Asst. Atty. Gen., for State of Florida, amicus curiae.
    Joe N. Unger and Smith, Mandler, Smith, Parker & Werner, Miami Beach, for Maison Grande Condominium Assn., Inc., amicus curiae.
    Cynthia S. Tunnicliff, Law Office of Sam Spector, Tallahassee, for Florida Improvement Assn., Inc., amicus curiae.
    Charles L. Curtis, Tallahassee, for Div. of Florida Land Sales and Condominiums, ami-cus curiae.
    Michael B. Small, West Palm Beach, for Century Village Condominium Assn., ami-cus curiae.
    William A. Foster, Jones, Paine & Foster, West Palm Beach, for Century Village, Inc., amicus curiae.
    Joseph S. Paglino, Miami, for Buckley Towers Condominium, Inc., Burleigh House Condominium, Inc., Royal Bahamian Assn., Inc., and Commodore Plaza at Century 21 Condominium Assn., Inc., amicus curiae.
    Henry P. Trawick, Jr., Millican, Trawick & Griffis, Sarasota, for Trustees of the J. Wesley Buchanan Trust, amicus curiae.
    Barry A. Mandelkorn, Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for Lester Roth, Trustee, ami-cus curiae.
    Richard T. Earle, Jr., St. Petersburg, for Ridge Seminole, Inc., amicus curiae.
   BOYD, Justice.

We have before us three appeals. Although they arrive at this Court in different postures each involves the same issue, namely the constitutionality of Section 711.-231, Florida Statutes (1975), upon which, in each case, a court below directly and initially passed. The statute was enacted in response to what the Legislature apparently regarded as a practice inimical to the health of this State’s economy because of its inflationary nature. That practice is to insert in leases, for commonly used condominium facilities or condominium management contracts, rental escalation clauses tied to commodity or consumer price indexes. The statute provides the following:

“711.231 Escalation clauses in leases for recreational facilities or management contracts for condominiums prohibited. —It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in leases [for recreational facilities or other commonly used facilities serving condominiums] or management contracts for condominiums, and such clauses are hereby declared void for public policy. For the purposes of this section, an escalation clause is any clause in a condominium lease or management contract which provides that the rental under the lease or fee under the contract shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.”

The lessor in each of the appeals before us attacks the statute insofar as it operates retroactively, both as being without the ambit of the statute and as an impairment of the obligation of contract in violation of the United States and Florida Constitutions. All parties agree that these suits involve only the application of Section 711.231 to recreation leases and management contracts entered into before the effective date of the statute, that is June 4, 1975. Section 3, Chapter 75-61, Laws of Florida.

With respect to the first question posed by asserted retroactive application of the statute, we fail to find in the enactment any basis to apply the law to pre-existing contracts. Statutes are presumed to be prospective in application unless the Legislature manifests an intention to the contrary. E. g., Keystone Water Co. v. Bevis, 278 So.2d 606 (Fla.1973). Appellees urge us to discern an intent for retroactive application (i) from the statute’s proscription against the “enforcement” of escalation clauses as well as their mere inclusion in leases and management contracts, and (ii) from the action of the House of Representatives in tabling a substitute amendment to the proposed legislation which would have expressly made the law prospective in operation. We decline to divine legislative intent for an issue as important as retroactive operation either from one ambiguous reference in a declaration of legislative purpose or from one attempt to amend the proposed law in one chamber of the Legislature. We can restrict the debate on a legislative “intent” for retroactivity to the floor of those chambers, as well as avoid judicial intrusions into the domain of the legislative branch, if we insist that a declaration of retroactive application be made expressly in the legislation under review. By this means the forward or backward reach of proposed laws is irrevocably assigned in the forum best suited to determine that issue, and the judiciary is limited only to determining in appropriate cases whether the expressed retroactive application of the law collides with any overriding constitutional provision.

There being no express and unequivocal statement in this legislation that it was intended to apply to leases and management contracts which antedate its enactment, we hold the statute inapplicable to the contracts in these consolidated proceedings.

Even were we to conclude that the Legislature intended retroactive application of this statute, we would be compelled to hold it invalid as impairing the obligation of contract under Article I, Section 10 of both the United States and Florida Constitutions. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975). While we ordinarily do not reach constitutional questions not necessary to the disposition of the case, in this instance the principle contention of the parties and the rulings of the trial courts below are predicated on this constitutional issue. Therefore, we deem it appropriate to resolve this issue in this proceeding.

Given the narrow issue presented by these appeals we do not decide questions as to the validity of these leases on any other grounds. Thus, although there is reference to the possibility that in some instances lease arrangements for individual unit owners may be unconscionable, inequitable or contain other deficiencies recognized in law as a basis for judicial invalidation, these matters are not considered or decided here.

For the reasons expressed these cases are remanded to the circuit courts of their origin for proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and ROBERTS (Retired), JJ., concur.

HATCHETT, J., concurs with an opinion.

HATCHETT, Justice

(concurring).

I concur in the judgment of the court, but I do not believe it is necessary to reach the constitutional issue in this case. Division of Beverage v. Foremost-McKesson, Inc., 330 So.2d 143 (Fla.1976); Metropolitan Dade County Transit Authority v. State Department of Highway Safety and Motor Vehicles, 283 So.2d 99 (Fla.1973); Williston Highlands Development Corporation v. Hogue, 277 So.2d 260 (Fla.1973).

      . Ik Fleeman v. Case five condominium unit owners joined by the lessee condominium association of which they are members brought suit against the lessor. Their complaint requested a declaratory judgment that the escalation clause in their lease was void under § 711.236, as created by Ch. 75-61, Laws of Florida- [now codified as § 711.231, Fla.Stat. (1975)]. The lessors moved to dismiss the complaint for failure to state a cause of action since the statute did not apply to them because either it was not retroactive or it was unconstitutional to the extent it was retroactive. The motion to dismiss was denied and the lessors took an interlocutory appeal to the District Court of Appeal, Third District. Jurisdiction was relinquished to the Circuit Court by the District Court to provide the lower court an opportunity to explain whether it intended to pass on the constitutional validity of the statute in its order denying the motion. The lower court amended its order to show clearly it passed on the statute’s constitutionality. The cause was transferred by the District Court to this Court to be treated as a direct appeal from the Circuit Court.
      In Plaza Del Prado Condominium Association v. Del Prado Corporation the lessee brought a complaint for reformation of contract and declaratory relief from their lease. The Circuit Court ordered the lessee to continue to make rental payments as required by the lease. The lessee sought modification of the order on the basis of the enactment of Ch. 75-61, Laws of Florida, now § 711.231. The court refused to modify its order, found the statute to be retroactive and declared it unconstitutional. This direct appeal followed.
      In Department of Business Regulation v. Johnson the lessors instituted an action for a declaratory judgment that Ch. 75-61, Laws of Florida, now § 711.231, is unconstitutional. The Circuit Court entered a judgment declaring the statute unconstitutional insofar as it is retroactive. This direct appeal was filed by the Department, which is charged by law, § 711.-801, Fla.Stat. (1975), to enforce certain provisions of Ch. 711, Fla.Stat.

      . Our jurisdiction vests under Art. V, § 3(b)(1), Fla.Const.

      . U.S.Const., Art. I, § 10; Art. I, § 10, Fla. Const.

      . In his brief the Attorney General states:
      “In Case No. 48,572 the court below did not rule on the prospective application of § 711.-236, as it relates to this issue, denying the Motion for Summary Judgment of the Appel-lees (Plaintiffs, below), without prejudice. (R. 389) Appellees have not raised this issue in this appeal, nor have Appellants.
      In Case No. 48,488, the lower court found § 711.236, F.S., to be constitutionally valid in so far as it applies prospectively. It does not appear from the record that Appellants, (Defendants, below) have raised this issue on appeal. Therefore, it is assumed that this issue is unlikely of treatment, at least with regard to Cases No. 48,488 and 48,572.”

      .It can be argued with equal facility that the need for an “enforcement” proscription arose from a perceived need to provide an express remedy in the event the prohibited provision was argued to be incorporated by reference or by implication, rather than simply included in future contracts or leases.

      . See, for example, § 672.302, Fla.Stat.:

        “Unconscionable contract or clause.—
      “(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
      “(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.”


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. Robert William ADAMS, Respondent.
    No. 49209.
    Supreme Court of Florida.
    Feb. 10, 1977.

      Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for petitioner.
    Richard W. Ervin, III, Public Defender, for respondent.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, First District (Adams v. State, 328 So.2d 48), which allegedly conflicts with a prior decision of this court (Brown v. State, 245 So.2d 41) on the same point of law. Article V, Section 3(b)(3), Florida Constitution.

The respondent, defendant in the trial court, and two other persons were charged with the crime of robbery. Defendant withdrew a plea of not guilty and entered a plea of guilty to the offense of robbery, pursuant to plea bargaining, in accordance with the following announcement by defendant’s attorney:

“Your Honor, at this time, in behalf of Robert William Adams, wish to withdraw our plea of not guilty and enter a plea of guilty to the offense of robbery under the plea bargaining. .
“The terms of the plea bargaining, Your Honor, was that the State would recommend not over ten years sentence in the event the Court felt that the Defendant should be sentenced.”

The trial judge did not participate in the plea bargaining between the State and defense counsel. Before accepting the plea of guilty, he made the necessary inquiry to determine that the plea was voluntarily and intelligently entered, and that there was a factual basis for the plea. After a presen-tence investigation, the trial judge refused to accept the recommendation of the state attorney and sentenced the defendant to a term of twenty years.

On appeal the District Court of Appeal vacated the sentence and remanded the case so that the trial court could either impose sentence in accordance with the plea bargain or vacate the judgment and offer respondent an opportunity to withdraw his guilty plea. In its opinion, the Court said:

“While the trial court emphasized when appellant tendered the guilty plea that the court was not bound by the prosecutor’s recommendation and that the maximum sentence was life imprisonment, at no point did the sentencing judge advise appellant that judicial concurrence with the bargain was impossible.” 328 So.2d 48.

In Brown v. State, supra, the defendant was led to change his plea from not guilty to guilty due to an honest misunderstanding and mutual mistake as to the expected sentence. This resulted, to a large extent, from statements made in a conference attended by defense counsel, prosecutor and judge. This Court held that defendant’s motion to substitute the plea of not guilty for a plea of guilty should have been granted by the trial court. We recognized that the trial court was not bound by any recommendations made by the state attorney when we said:

“[A] judge is not bound to grant probation and ... an accused cannot withdraw his guilty plea merely because the sentence did not conform to what he hoped it might be. .
“If the State and defense counsel agree upon a specific statement of facts constituting the crime to be admitted and with the further understanding regarding the effect of subsequent presentence investigation, we see no reason why a judge should not, if he chooses, make a specific announcement of the sentence he will impose upon a guilty plea.
“We repeat that a judge is never bound in sentencing by these negotiations.” 245 So.2d at 43 — 44.

In Davis v. State, 308 So.2d 27 (Fla.1975), we stated once again:

“[A] judge is never bound in sentencing by the negotiations which occur between the prosecuting attorney and the defense counsel. . . . It is our view that, even if the trial judge’s indication of leniency is the only inducement a defendant has in pleading guilty, the court is not bound by it.” At 29.

The requirement of the District Court of Appeal in the case sub judice that the sentencing judge should “advise appellant that judicial concurrence with the bargain was impossible” is in conflict with the above cases, and we have jurisdiction.

The record of the sentencing procedure contains the following:

“BY THE COURT: You understand that I am not bound by the State’s recommendation as to any sentence in this case?
“BY DEFENDANT ADAMS: Yes, sir.
“BY THE COURT: On the robbery charge, I could sentence you to life imprisonment and on the accessory after the fact charge, fifteen years. Do . you understand that?
“BY DEFENDANT ADAMS: Yes, sir. # # * * * *
“BY THE COURT: That the recommendation is a recommendation only which I am not bound to follow, on the robbery charge.
Has any person assured you or led you to believe that you will be placed on probation or given a lighter sentence or otherwise rewarded, for pleading guilty?
“BY DEFENDANT ADAMS: No, your Honor.”

The only bargain was that the state attorney would make a recommendation to the court. This was done. When the sentence was imposed, the judge was not bound by the recommendation of the state attorney or any negotiations which occurred between the state attorney and the defense counsel.

The decision of the District Court of Appeal is quashed and the cause is remanded for the purpose of a further remand to the trial court with instructions to reinstate the sentence.

It is so ordered.

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


text:
    THE FLORIDA BAR. In re Fred Anderson VAUGHT, Jr.
    No. 49779.
    Supreme Court of Florida.
    Feb. 10, 1977.

      Terrell Griffin, of Griffin & Jones, Orlando, for petitioner.
    Michael C. Whittington and David G. McGunegle, Asst. Staff Counsels, Tallahassee, for respondent.
   PER CURIAM.

This case is before the Court on Petition for Leave to Resign from The Florida Bar filed by Fred Anderson Vaught, Jr. pursuant to Rule 11.08 of the Integration Rule of The Florida Bar.

The Report of the Ninth Judicial Circuit Grievance Committee A Investigation Member reads in part as follows:

“CASE NO. 9A — 76-60

HEINMILLER vs. VAUGHT

This case involves the return of a trust account check for insufficient funds. The trust account check was drawn against uncollected funds in conjunction with a real estate closing on the alleged agreement that the payee of the check would not attempt to negotiate it until the passage of several days. The check was originally dishonored upon being deposited before the agreed date and thereafter ten days after its return was again presented and was dishonored a second time for insufficient funds.

Review of the Accused attorney’s records indicated that at the time this check was drawn funds had been misappropriated from the trust account, and so the failure to honor the check for insufficient funds by the bank was not solely the result of the uncollected nature of the funds against which it was drawn. The misappropriation of trust account funds generally affected this account along with several dozen other accounts.

On the evidence available to the Committee, the Committee voted a finding of probable cause that there had been a violation of Integration Rule 11.02(4) and DR-9-102 and DR — 1-102(A)(4).

CASE NO. 9A-76-65

SCOTT vs. VAUGHT

This complaint by Cpt. Scott, USMC stationed in Cuba alleged that the Accused attorney had collected a note and mortgage for Cpt. Scott in conjunction with the sale of Cpt. Scott’s house when he moved from Orlando and that the Accused had failed to disburse to Cpt. Scott the proceeds of that note and mortgage received and held in trust.

The Accused attorney first informed the investigating member that the check had been transmitted to Cpt. Scott but because he was stationed in Cuba had been returned for improper address. Further investigation indicated that this was not true and it was this case that finally resulted in the first evidence that there had been misappropriation of trust account funds.

Cpt. Scott was eventually paid the proceeds of the mortgage by Vaught some five months after their collection and only after the grievance had proceeded for approximately one month.

The Committee found probable cause that there had been a violation of Integration Rule 11.02(4) and DR-9-102 and DR-1-102(A)(4).

CASE NO. 9A-76-75

HAUSER vs. VAUGHT

The complaining party, an instructor at Rollins College, and acquaintance of the Accused attorney, employed the Accused attorney to handle his father’s small estate. In the course of handling this estate the Accused attorney was required to transfer title to two automobiles, a few securities, receive dividend checks, obtain the proceeds from insurance and satisfy two creditors. The Accused attorney failed after repeated requests to properly handle this case, and in the course of handling the estate approximately $1,400.00 came into his hands and into trust and was not disbursed as it should have been until the filing and investigation of the complaint by the complaining party. The complaining party employed new counsel who was unable to communicate with the Accused attorney or obtain the complaining party’s file for several weeks. I am informed that the complaining party has now been paid and all of his files have been turned over to new counsel.

The complaining party filed a formal complaint with the State Attorney’s office and according to counsel for the Accused attorney the State Attorney’s office by agreement with the Accused attorney’s counsel to nol pross the case upon resignation from the Bar by the Accused attorney and based upon the correspondence from the complaining party that he had been paid in full and has obtained his files.

Upon this information, the Committee voted a finding of probable cause that there had been a violation of Integration Rule 11.02(4) and DR-9-102, DR-1-102(A)(4), DR-6-101(A)(3) and 7-101(A)(2).

CASE NO. 9A-76-90

BETS vs. VAUGHT

This case involves a combination of failure of the Accused attorney upon request to return the files of the complaining party to him and also an utter neglect of the client’s affairs and failure to both keep the client advised and to properly prosecute the client’s lawsuits. It also involves misrepresentation to a client of the status of the client’s case and the undertaking of legal proceedings without the permission of the client. Here the client was being sued by a corporation and suffered a judgment but was misinformed by the Accused attorney that the same had not occurred and the Accused attorney thereupon and on his own without permission or knowledge of the client filed an appeal which was unsuccessful. Thereafter supplementary proceedings were begun against the client and only after the second noticing of deposition and having been informed by the Accused attorney that it was unnecessary for him to attend and just short of being held in contempt did the complaining party learn of what had occurred.

In addition, the complaining party has been informed that the Accused attorney recovered a judgment against a corporation against whom the complaining party had a complaint in substantial amount, but whether it was collected or not or in fact was recovered is unspecified and unknown at this time. The Accused attorney failed to notify or inform the client about the status of any of these matters and refused after repeated requests to return the files to the client or to the client’s new attorney. The files of the complaining party contain various original documents.

As of the date of this report, the complaining party’s files have not been returned to him. These files and all of the other files it is hoped will soon be placed into the hands of the Accused attorney’s counsel for proper distribution to the clients.

On this information, the Grievance Committee voted a finding of probable cause that there had been a violation of DR-9-102, DR-6-101(A)(3), DR-7-101(A)(2) and DR — 1-102(A)(4) and (6).

CASE NO. 9A-76-101

STOPFUL (ex rel. KIMSEY) vs. VAUGHT

This case was filed by an attorney for the father of an accused Rollins College student who was arrested for turning in six false fire alarms as a prank and who posted a bond of $1,036.00 with the City of Winter Park Municipal Court. The boy was fined $1,100.00 and the father sent to the Accused attorney $1,400.00 to cover the $1,100.00 fine and a $300.00 fee. This made a total from the father of $2,400.00 including the bond. Instead of utilizing the $1,100,00 from the second fund sent by the father, the bond was forfeited in payment of the fine and there remains due $66.00 on that fine. The $1,400.00 sent by the father was appropriated by the Accused attorney without passing through his trust account.

The Accused attorney misrepresented the facts of this case to the investigating member stating that the funds were still in the hands of the Municipal Court Clerk. Inquiry of the Municipal Court Clerk revealed the true facts. The Accused attorney states that he will reimburse the father.

Based upon these facts, the Committee voted a finding of probable cause that there had been a violation of DR-9-102.

CASE NO. 9A-76-105

RICHARD RUSSELL vs. VAUGHT

This case involves the mishandling of an action in the County Court in Seminole County in which the complaining party was the plaintiff seeking a judgment. There was an utter failure of communication and failure to handle this case properly. After more than year the complaining party was requested to appear at Court whereupon the defendant allegedly did not show up and a default was allegedly taken. The Accused attorney informed the complaining party that a judgment had been recovered in his behalf for approximately $1,500.00 upon which levy would be executed. Several weeks later the complaining party called the Accused attorney and asked the status of the execution and was informed that money had been collected and he should come to the Accused attorney’s office to pick it up. Upon arrival at the attorney’s office he was presented with a check for $220.00 and informed that more money would be forthcoming.

It appears that no judgment was recovered and indeed that no suit was ever filed, that there was no levy of execution, and that the funds paid were from the Accused attorney. Upon confrontation of the Accused by these facts, he admitted mishandling of the case, would not discuss details of it and stated his willingness to pay the complaining party all of the losses incurred by him.

This case also involves the failure of the Accused attorney to turn over the complaining party’s files to him or his new attorney. The Accused attorney insists that he has turned over the files but several documents from the files were mislaid and apparently have been lost in the course of the closing of his law practice. He promised to search for them further, but as of the date of this report, unsuccessfully. These documents are also being requested by the Accused’s counsel in hopes that they may be properly returned to the complaining party.

Based upon these facts, the Committee voted a finding of probable cause that there had been a violation of DR-9-102, DR-1— 102(A)(4), DR-6 — 101(A)(3) and DR-7-101(A)(2).”

In replying, petitioner states:

“CASE NO. 9A — 76-60

Petitioner did issue a Trust Account check to Mr. Heinmiller which was returned for insufficient funds because of the fact that Petitioner had misappropriated from his Trust Account certain funds which, although subsequently reimbursed, did have the effect of leaving the Trust Account at the time of the issuance of the check to Mr. Heinmiller, with insufficient funds to pay said cheek.

CASE NO. 9A-76-65

Petitioner did misappropriate the funds deposited in his Trust Account for the use and benefit of Cpt. Scott, USMC, but subsequently did reimburse his Trust Account and paid the proceeds to Cpt. Scott some five months after their collection.

CASE NO. 9A-76-75

Petitioner did mishandle the Estate of Mr. Hauser in that he did not properly communicate with Mr. Hauser and although Petitioner had approximately $1,400.00 of the estate’s money in his Trust Account did not timely disburse said $1,400.00, but subsequent to the filing did disburse the $1,400 to Hauser’s designated attorney and further, after the filing of the grievance, provided Hauser’s designated attorney with all files.

CASE NO. 9A-76-90

Petitioner did undertake to represent Mr. Bets and did misrepresent to Mr. Bets the status of his case and the undertaking of legal proceedings. During the course of the representation of Mr. Bets, Petitioner did neglect Bets’ affairs and did not properly advise Mr. Bets. Further, Petitioner did not return upon request Mr. Bets’ files but did subsequently provide Bets with all information in Petitioner’s possession.

CASE NO. 9A — 76-101

Petitioner did undertake the representation of a Rollins student and upon receipt of $1,400 from the father of said student did misappropriate the $1,400 and did not utilize it to pay the fine subsequently assessed by the Municipal Court of Winter Park against said student. Further, Petitioner did misrepresent the facts of this case to the investigating member of the Orange County Grievance Committee but has subsequently reimbursed the father of the student.

CASE NO. 9A-76-105

Petitioner did undertake the representation of Richard Russell and subsequently failed to communicate with Russell or to handle his case properly. Petitioner admitted that he advised Russell that a judgment had been entered in Russell’s favor on a suit filed by Petitioner on behalf of Russell when, in fact, Petitioner did not file suit and no judgment was rendered in Russell’s favor. Petitioner further states that he has turned over to the complaining party all the files in his possession but admits that some of these documents may be mislaid.”

A Response filed by the Investigating Member of the Grievance Committee states:

“Based upon the investigation of the undersigned, the Amendment to the Reply by the Petitioner is in substantial accordance with the facts as I found them. The investigation conducted by the undersigned was terminated upon the filing of reports by the Committee with the Florida Bar finding probable cause and, at that time, reimbursement of the Petitioner’s clients from misappropriation from the trust funds was, insofar as the undersigned could determine, essentially complete with the exception of reimbursement in Case No. 9A-76-101 which had not been made. Some client’s files had not, at that time, been returned to clients. In preparation of this Response, I have determined that the funds in Case No. 9A-76-101 are still not reimbursed and the client’s file in Case No. 9A-76-90 is apparently permanently lost. Accordingly, the undersigned, as investigating member of the Grievance Committee involved in this matter, agrees to the Amendment to the Reply of the Petitioner, with the foregoing exceptions.”

It is ordered by the Court that the Petition for Leave to Resign is hereby granted upon the following agreed upon conditions by petitioner:

1. conditioning acceptance of any future reinstatement/readmission application for processing by proof of full restitution to any and all injured clients whether the subject of this proceeding or as otherwise may be discovered,
2. proving he has rehabilitated himself emotionally in any reinstatement proceeding,
3. satisfactorily passing all portions of the regular Florida bar examination after any future application but prior to any reinstatement/readmission,
4. admitting the truth of the charges against him, that they warrant a disbarment and that he is choosing this resignation process rather than undergo a full disbarment proceeding,
5. having full costs of this case now totaling $2,780 assessed against him prior to acceptance of any reinstatement/readmission application including those of the audit; and
6. waiving confidentiality in regard to a public opinion in the Southern Reporter setting forth the full facts and circumstances which led to the resignation petition based on a stipulation of facts to be filed in order to better advise the Bar, bench and public.

It is so ordered.

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


text:
    LEU MACHINERY CORP., a Florida Corporation, Appellant, v. WENKO TRAILER AND BODY CO., INC., a Florida Corporation, et al., Appellees.
    No. 76-21.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied March 14, 1977.
    Guy B. Bailey, Jr., Miami, for appellant.
    Mahoney, Hadlow & Adams and Paul C. Huck, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The plaintiff below appeals from a judgment rendered in part in its favor and in part adverse. Plaintiff sold certain specialized machinery to the defendant Wenko Trailer & Body Co., Inc., herein referred to as Trailer. The corporate stock of Trailer was owned by the defendant Wenko Realty Corporation. The stock of the latter and of the defendant Wenko Equipment Co., a Florida Corporation, was owned by the defendant James H. Wenck.

Plaintiff filed an action against Trailer, seeking recovery of the unpaid portion of the cost of the machinery, and for damages for alleged fraud on the ground that Trailer acquired the machinery with intent not to pay therefor. Later, with leave of court, plaintiff filed a second amended complaint, in which it joined Wenck, Wenko Realty Corporation and Wenko Equipment Co., and in added counts alleged that the negotiations which resulted in sale of the machinery to Trailer were made by Wenck, acting for himself or for the other named corporations, and that Wenck and said other corporations thereby incurred liability to plaintiff for the cost of such machinery; that Wenck and said other corporations had represented to plaintiff that they would be the purchasers; that such representation was false; that Trailer was a sham corporation, and was employed by the other defendants for “illegal and unlawful purposes”, whereupon plaintiff sought judgment piercing the corporate veil of Trailer, and judgment against all defendants.

Following a non-jury trial, judgment was entered in favor of the plaintiff against Trailer for $19,302.14, with costs and attorney fees (to be determined later), and in favor of Wenck, Wenko Realty Corporation and Wenko Equipment Co., absolving them of liability. The appellant contends the latter portion of the judgment was error. In consideration thereof and in the light of the record, briefs and argument we hold no reversible error has been shown.

Inherent in the judgment were findings of the court, as the trier of the facts, adverse to the plaintiff that Wenck and the realty or equipment corporations had not so acted as to become liable for the obligation of Trailer for the cost of the purchased machinery. There was no evidence of any agreement by Wenck or said corporations guaranteeing the indebtedness or to become obligated to pay the same. The judgment of the court so ruling and holding that Wenck and the realty corporation and the equipment company were not liable for the cost of the machinery was supported by substantial competent evidence.

The judgment is affirmed.


author: DAUKSCH, Judge.

text:
    CITY STORES COMPANY d/b/a Richard’s Department Store, et al., Appellants, v. Florence B. MAZZAFERRO, Appellee.
    No. 75-1415.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Rehearing Denied March 17, 1977.
    Steven R. Berger of Carey, Dwyer, Austin, Cole & Selwood, P.A., Miami, for appellant-City Stores Company, d/b/a Richard’s Department Store.
    Nancy Little Hoffmann of Druck, Grim-mett, Norman, Weaver & Scherer, Fort Lauderdale, for appellants Ogus and Benen-son.
    Edward A. Perse and Arnold R. Ginsberg of Horton, Perse & Ginsberg and Stanley Rosenblatt, Miami, for appellee.
   DAUKSCH, Judge.

This is a malicious prosecution and false imprisonment case wherein Appellant was Defendant below and Appellee was Plaintiff. The Judgment appealed was based on a jury verdict awarding Plaintiff $5,000 compensatory damages against Defendants Ogus, Rabinovich, Ogus, Inc. and Rudolph J. Benenson jointly and $10,000 punitive damages against Ogus, Rabinovich, Ogus, Inc. solely. It also awarded $13,000 compensatory and $40,000 punitive damages against Defendant City Stores Company.

Three primary questions are presented here. One, was there a lack of proof as a matter of law to permit the jury to find a lack of probable cause for the imprisonment and prosecution giving rise to this suit. Simply stated, was there sufficient evidence to go to a jury. Two, was the award of $10,000 punitive damages against the Defendant Ogus, Rabinovich, Ogus, Inc. improper since the unrefuted testimony indicated that Defendant was insolvent and an award of that amount would “bankrupt” that Defendant. Three, was it proper for a policemen to testify about his advice to the Defendants Ogus, Rabinovich, Ogus, Inc. and Benenson. Precisely, did his testimony constitute impermissible opinion testimony and did it invade the province of the jury.

We find the question of the quality and quantity of evidence very close and thus hold that the trial court did not err in its decision to let the jury decide.

As to the second and third questions we reverse and remand for a new trial.

When all the testimony is considered it appears the jury in this case could properly award punitive damages to the Plaintiff and against the Defendant but the amount to be extracted from the Defendant cannot be such that would bankrupt him. It is clearly established that Defendant Ogus, Rabinovich, Ogus, Inc. is insolvent and unable to pay exemplary damages of $10,000. Therefore the jury should not have been permitted to award that amount and Judgment should not have been rendered therefor. See Lehman v. Spencer Ladd’s, Inc., 182 So.2d 402 (Fla.1965) which holds that punitive damages is “. . . punishment of each wrongdoer by exacting from his pocketbook a sum of money which, according to his financial ability, will hurt, but not bankrupt.” See also Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975). It is up to the Plaintiff to establish the Defendant is able to pay and the Defendant may present evidence in mitigation.

Now we turn to the police officer through whom certain opinion testimony was presented which either invaded the province of the jury or was opinion testimony of a nonqualified expert depending on how it is viewed. Either way it was prejudicial error to admit it in the manner in which it was admitted. The police officer was asked by the Appellee, over objection by the Appellant, what he had told agents of the Appellants and he answered “I cited the law to Mr. Fineberg as defined in Florida Statutes . . . that her action did not warrant her being taken into custody .” “I told him that her arrest and detention and custody at that time was not justified.” “Well, again I explained that I felt her arrest and detention at that particular time was not justified; that this offense, if there was an offense, had occurred would constitute petty larceny.” “I told him that the essential element of the offense necessary to clearly establish intent, you have to establish the person intended to permanently deprive the owner of the property and that also that the taking must be with criminal intent and if it was not, if the taking was in good faith or a mistake, it did not constitute larceny.” “I told him that based upon the information furnished that an offense had not been in fact committed.” “I told her certainly the circumstances did not fall within the purview of the shoplifting statute and that if at all an offense had been committed, it would have been petty larceny and, therefore, our officers would have the right to make the arrest directly.” This is a sampling of what was presented before the jury thru this police officer who was not qualified as an expert witness and was admitted on the basis that it was merely what he had told someone just after the detention of the Appellee but the court did not caution the jury that that was the purpose for which it was admitted nor did it instruct the jury concerning any limitations that might be placed on it. It is noted that the police officer continued to testify in this same vein.

The Appellee argues this testimony was offered to show malice on the part of the Appellants and not for the purpose of showing a lack of probable cause for the imprisonment and prosecution. If it was asked and answered once we might agree or at least call it harmless error. But the way it was repeatedly hammered in leads us to believe the purpose was other than to show malice only. Since the court gave no limiting instruction concerning the testimony of the police officer the problem was not cured.

The testimony of the police officer should not have been admitted in the first place without a limiting instruction because he was not qualified as an expert in regard to questions of law and should not have been permitted to tell the jury his opinion of the law. Also he should not have been allowed to testify as he did without a limiting instruction and a limit on the number of times he repeated himself, because his testimony ultimately invaded the jury’s province. As to the invasion of the jury’s province see Smaglick v. Jersey Insurance Company of New York, 209 So.2d 475 (Fla. 4th DCA 1968); Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975) and Mills v. Redwing Carriers, Inc., 127 So.2d 453 (Fla.2d DCA 1961); and as to opinion testimony see Mach v. Mayo, 80 Fla. 372, 86 So. 222 (1920).

Reversed and remanded for a new trial.

ANSTEAD and LETTS, JJ., concur.