author: CATES, Presiding Judge.

text:
    William C. PERRY v. STATE
    8 Div. 842.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Rehearing Denied Nov. 16, 1976.
    J. Terry Huffstutler, Jr., Guntersville, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State, ap-pellee.
   CATES, Presiding Judge.

Murder, first degree: sentence, life imprisonment.

Perry was found guilty on the testimony of one W. A. Stephens. The latter was the admitted owner of the pistol which Perry used to kill Buddy Jim Hutchins. Hutchins was shot in his trailer near Arab early one morning in August, 1975. It is inferable that he was asleep.

Stephens, who had ridden in. Perry’s car with him from Gadsden, saw Perry unlock the trailer, heard a shot and shortly thereafter was shown Hutchins’ body by Perry. Stephens testified he had to threaten Perry that he would throw a knife Indian fashion at Perry unless the latter gave him his pistol back. The threat was successful. Stephens had not tried vigorously to get the gun back beforehand.

According to Stephens’ account, however, he did nothing to aid, abet or encourage Perry. Nor did he know of, nor do anything in furtherance of Perry’s killing. Perry did not testify. Thus Stephens was not refuted except to the extent that cross examination may have impinged on his credibility.

The trial judge, sua sponte, covered Code 1940, T. 15, § 307 as to the definition of an accomplice and the extent of corroboration required where an accomplice testifies for the prosecution. In this state of the case the jury were the judges of whether in fact Stephens was an accomplice of Perry.

Having examined the entire record we consider that Stephens’ complicity vel non was a fact question and not one of law. Therefore, the trial judge did not err in denying the defendant’s motion to exclude because of the State’s not corroborating to the extent required under the facts in Sor-rell v. State, 249 Ala. 292, 31 So.2d 82.

The judgment below is

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte William C. PERRY.
    SC 2210.
    Supreme Court of Alabama.
    Dec. 10, 1976.
   ALMON, Justice.

WRIT DENIED, Ala.Cr.App., 340 So.2d 895.

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


author: DeCARLO, Judge.

text:
    Roy Vernon SMITHERMAN v. STATE.
    3 Div. 464.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Rehearing Denied Nov. 16, 1976.

      Frank W. Riggs, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Buying, receiving, concealing or aiding in concealing stolen property; thirteen months.

After being tried and convicted on December 12, 1975, appellant applied for probation and the case was continued for a hearing. At the hearing the probation request was denied and the appellant filed this appeal.

The facts surrounding this conviction are, that on November 21, 1974, Emory Lee Head drove his 1974 Ford Maverick to Courtesy Ford in Montgomery for maintenance. It was 8:15 or 8:30 A.M. when he left the car and on his return the same day, it was not there. The car was a two-toned brown with a vinyl top, four-door Ford Maverick and valued at approximately $4,000. It carried a 1975 Montgomery tag bearing the number, 10293. On that afternoon Head returned to Courtesy Ford and was informed his car was not there. He asked that the service manager call the police and report the car stolen. It was not until December 6,1974 that Detective Kenneth A. Hitson returned his car.

Kenneth A. Hitson, a detective for the Montgomery Police Department saw the brown Ford Maverick on the morning of December 6,1974, and recalled that it was a “wanted vehicle.” At the time Hitson saw the vehicle, he and his partner were parked near Fleming Road next to Herman Robinson’s Used Car Lot, in Montgomery. When the Maverick passed, he pulled in behind it and noticed that another vehicle was following. After receiving information, in response to their radio inquiry, that the vehicle was stolen, they stopped the car. According to Hitson, appellant was driving the car and no one was with him. Hitson’s partner got out and walked to the stolen vehicle. About the same time the vehicle that had been following the Maverick went on to the end of the road and started picking up speed as it returned. When Hitson picked up his weapon, the other car stopped and an individual whom Hitson recognized as Arnold McArthur Jones got out. Jones was taken over to the car and Hitson informed him and appellant that they were in possession of a stolen vehicle.

Afterwards appellant was taken to the police station where he was advised of his rights before a statement was taken. Hit-son recalled that a rights form and the statement were read to the appellant and explained that although appellant could not read, he indicated he understood. Hitson said that the statement was signed by appellant and that he witnessed his signature.

During the trial, the statement was introduced and read to the jury over appellant’s objections. In that statement the appellant admitted having the Maverick in his possession, and stated that three weeks before, he had bought the car from a man at Courtesy Ford. Appellant stated that he had given him eight-hundred dollars cash and was to meet the man at the Varsity Pool Room and receive a bill of sale. According to appellant, that was the last time he saw the man and he had looked for him on two other occasions. In the statement, the appellant said he could not remember the man’s name but it was Ronald something. Further, in answer to the question: “Didn’t you think the car was hot for that price?” he responded: “I figured it was.” Appellant explained in the statement that he parked the car near the Holiday Inn in Prattville because he did not have a bill of sale for it and “. . . did not want to drive around too much.” Appellant also stated that he did not intend to sell the car but intended to keep it.

The State completed its case at the end of Hitson’s testimony. A motion to exclude the State’s evidence was made by the appellant on the grounds that the State had not proved that the car was stolen. Counsel argued there was no proof that the appellant intended to steal the car or that the offense had been committed in Montgomery County.

The motion was overruled and the appellant rested his case without presenting any evidence.

I

The appellant contends the State failed to prove that the 1974 Maverick the appellant was charged with buying, receiving and concealing, was stolen.

To establish the offense of buying receiving and concealing stolen property, it must appear that the property listed in the indictment had disappeared, from where the owner left it, without his knowledge or consent. This along with other evidence that the owner reported its disappearance to the police was sufficient for the jury to infer that the property had been stolen. Johnson v. State, 41 Ala.App. 351, 132 So.2d 485; Franklin v. State, 47 Ala.App. 62, 249 So.2d 882.

In the present case, the testimony was that Head took his car to Courtesy Ford in Montgomery for minor repairs and when he returned the car was not there. The police were alerted and about sixteen days later his car was returned to him by an officer of the Montgomery Police Department.

Under these facts and circumstances we believe the evidence was sufficient for the jury to conclude that the appellant had possession of the stolen vehicle. The sufficiency of any explanation that the appellant made for having possession of the vehicle was a question for the jury. Ellis v. State, 43 Ala.App. 157, 182 So.2d 910.

II

Counsel for appellant maintains that the admission of any confession without independent proof of the corpus delicti was erroneous.

The prevailing rule is that the corpus delicti may be shown by facts and circumstances from which the jury might legally infer that the offense has been committed. Direct evidence is not required. McKee v. State, 24 Ala.App. 175, 132 So. 68.

It is undisputed that Head was the owner of the vehicle in question and that it disappeared without his knowledge or consent. Later it was seen in the possession of the appellant and after his arrest the car was returned to the owner.

Under the rule announced in McKee v. State, supra, we believe the facts outlined above were sufficient to establish the corpus delicti and permit the introduction of the statement.

III

Appellant’s complaint that the State failed to prove venue is unsupported by the record. In our examination of the testimony of Head, we found that on being asked where Courtesy Ford was located he responded that it was in Montgomery County, Alabama. In view of this evidence adduced by the State, we believe the jurisdictional requisite of venue was met.

IV

Appellant insists that the court was in error when in its instructions to the jury concerning the elements of buying, receiving, and concealing stolen property, the judge stated:

“Such reasonable grounds being knowledge of circumstances by the Defendant which circumstances were such that any reasonable man of ordinary observation would have known it was stolen. (3) That the Defendant so bought, received, or concealed, or aided in concealing with such knowledge or with such reasonable grounds for believing that such goods were stolen, and not having the intent to restore such goods to the owner.”

Counsel argues that these instructions were erroneous because the defendant was not a man of ordinary observation and the instruction was not a correct statement of the law under T. 14, § 338, Code of Alabama 1940, Recompiled 1958. Counsel maintains that § 338 of T. 14, provides for an ordinary “reasonable man” test but contends appellant’s inability to read showed he had a limited intellect and should not be considered a “reasonable man.”

The fact that a person cannot read would not in and of itself, prevent a person from being a man of reason and having the ordinary power of observation. Whether this appellant’s intellect was so impaired by his inability to read that he could not be considered a reasonable man, was a question addressed to the trier of the fact. This was a matter that the jury could take into consideration during its deliberations.

Although the indictment omitted any allegation that appellant had reasonable grounds for believing that items were stolen, both the Supreme Court and the Court of Criminal Appeals of Alabama, have held that the code form indictment used here was broad enough to cover the charge outlined in T. 14, § 338, supra. Franklin v. State, supra.

V

It is insisted that it was improper for any judge other than the judge presiding at the trial to rule on appellant’s probation. Counsel argues that the trial judge has the benefit of certain knowledge acquired because he presided over the trial, which another judge would not have.

The granting of probation is a matter of grace and entirely within the discretion of the trial court. Sparks v. State, 40 Ala. App. 551, 119 So.2d 596.

The power to suspend execution of sentence and place a person on probation after a conviction of crime has been vested in the circuit courts and courts of record. T. 42, § 19, Code of Alabama 1940, Recompiled 1958. The authority and jurisdiction bestowed by this statute empower those specified courts to act in matters of probation. It does not designate any particular judge, although it can be argued that the better practice would be for the judge who tried the case to act on matters of probation. We do not believe it is improper for another judge of the same court to adjudicate the matter, especially in view of the ever increasing case load in our courts.

VI

Finally, the appellant complains that the legislature did not have the power to brand as criminal, the act of concealing property which in fact has not been stolen. Appellant maintains the statute makes no requirement that the property be stolen if there is reasonable cause to believe the property is stolen when in- fact it was not.

In Farzley v. State, 231 Ala. 60, 163 So. 394, the Alabama Supreme Court in speaking on this point, stated:

“The statute in our opinion is plainly expressed, and means that if ‘reasonable grounds for believing’ exist, that element is established, although defendant may have had no ‘knowledge’, and that ‘reasonable grounds for believing’ are not inserted in the statute as a means of proving knowledge, but that it is a substitute for knowledge, in the alternative. Under the statute now, if the jury believes beyond a reasonable doubt the existence of facts which were known to the defendant and which are sufficient in the opinion of the jury to show the existence of ‘reasonable grounds for believing’ that the goods were stolen, and they were in fact stolen, no further inquiry in that respect need be pursued.”

We believe what the court was saying in substance was that a conviction resting on an inference is authorized if the defendant had reasonable grounds for believing that the goods had been stolen. However, if as a matter of fact they had not been stolen, there could be no conviction, no matter how strong the evidence tending to show that a defendant had reasonable grounds for believing they were stolen.

We do not believe, due to the foregoing that the appellant’s contention was well taken.

No error appears in the record.

AFFIRMED.

TYSON, HARRIS and BOOKOUT, JJ., concur.

CATES, P. J., dissents.


author: EMBRY, Justice.

text:
    Ex parte Roy Vernon SMITHERMAN.
    SC 2208.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    Carl BRANTLEY v. STATE.
    7 Div. 494.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.
    Rehearing Denied Nov. 16, 1976.
    Eason Mitchell, Calera, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

This is an indigent appeal from a revocation of probation where, after a hearing, a five year sentence was reinstated.

On June 21, 1974, the appellant pled guilty to the offense of burglary in the second degree and was sentenced to five years imprisonment, which was later suspended when he was granted probation.

On September 13, 1974, a writ of habeas corpus ad prosequendum was issued by Shelby County Circuit Court, asking that the appellant, Carl Brantley, who was then incarcerated in Jefferson County Jail, be brought to Shelby County for the purpose of a probation revocation hearing on September 18, 1974. In that order, the court stated that the purpose of the hearing was to afford the appellant an opportunity to give testimony concerning the second degree burglary case bearing the Shelby County Circuit Court number 12402.

The appellant entered a plea of guilty to a charge of burglary in the second degree on December 13,1974, and was sentenced to 24 months hard labor for Shelby County. The court ordered that the sentence in this case bearing Shelby County Circuit Court number 12402, should run concurrent with a sentence and judgment of the case bearing Jefferson County Circuit Court number 110373.

A probation delinquency report was filed on May 31, 1976, with the Shelby County Circuit Court, and a probation hearing was set for June 18,1976. A copy of the court’s order along with the probation delinquency report, was served upon appellant’s appointed counsel and the district attorney.

During the hearing the appellant through his counsel insisted that his previously filed motion for the case’s dismissal be granted because the appellant was not afforded a speedy hearing. The motion was overruled and the defendant without offering any evidence rested his case. The court determined that due to appellant’s having been adjudged guilty of burglary in case number 12402 and sentenced to 24 months hard labor, his probation should be revoked and the five-year sentence in case number 12246 reinstated.

The appellant complains that the refusal of his request to dismiss the case because he was not granted a speedy hearing was error. He argues that the offense for which his probation was revoked occurred in 1974, and that he had remained in the custody of the State of Alabama, except for a short period during which he is alleged to have escaped.

The application of the speedy trial principle to probation revocation hearings has not been determined in Alabama. This is the first occasion when such an insistence has been made. It is our judgment that a probation violator’s warrant could be issued and probation revoked any time before the expiration of the term for which probation was granted. The right to a speedy trial is not involved. Cox v. Feidkamp, 438 F.2d 1 (5th Cir. 1971); Moultrie v. State of Georgia, 464 F.2d 551 (5th Cir. 1972).

The facts in this case indicate that prior to the revocation hearing, appellant was serving a valid sentence and did not serve any additional time because of the delay.

There was no error in refusing the motion.

AFFIRMED.

TYSON, HARRIS and BOOKOUT, JJ., concur.


author: FAULKNER, Justice.

text:
    Ex parte Carl BRANTLEY.
    SC 2205.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   FAULKNER, Justice.

WRIT DENIED.

HEFLIN, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


text:
    Carl BRANTLEY v. STATE.
    7 Div. 498.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.
    Eason Mitchell, Calera, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State, ap-pellee.
   DeCARLO, Judge.

Escape; two years.

This is an indigent appeal from a conviction by a Shelby County jury on a charge of escape.

The indictment in this case, omitting the formal parts, charged that:

“. . . Carl Brantley ... a convict, did escape or attempted to escape from the penitentiary or from a person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary before the expiration of the term for which he was sentenced . . . ”

The code section supporting this indictment is T. 14, § 153, Code of Alabama 1940, Recompiled 1958, which reads:

“Any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary before the expiration of the term for which he was sentenced, shall, on conviction be imprisoned for an additional term of not less than one year.”

The testimony in this case showed that on December 14, 1974, the appellant was adjudged guilty of the offense of burglary in the second degree and his punishment was fixed at 24 months hard labor for the use of Shelby County. On October 13,1975, appellant, while serving this sentence in the Shelby County Jail, escaped.

It is clear from the facts recited above that the appellant should have been charged under T. 14, 151(1), Code of Alabama 1940, Recompiled 1958, 1973 Cum. Supp. to Vol. Five; it reads as follows:

“Any convict sentenced to imprisonment in the county jail, or to hard labor for the county, who escapes from such confinement, or departs or runs away from such labor, before the expiration of the time for which he was sentenced, shall be guilty of a felony, and upon conviction, shall be punished by imprisonment in the county jail for not more than twelve (12) months, or by imprisonment in the penitentiary for not less than one (1) nor more than three (3) years, or by fine of not more than one thousand dollars ($1,000.00) or by both such fine and imprisonment.”

These facts demonstrate to us a fatal variance between the material allegations of the indictment and the proof. Owens v. State, 46 Alá.App., 591, 246 So.2d 478. This precise issue was raised in a motion to exclude the State’s evidence. The motion should have been granted.

For the error designated, the judgment is reversed, and the cause remanded.

REVERSED AND REMANDED.

TYSON, HARRIS and BOOKOUT, JJ., concur.


author: BOYD, Justice. ENGLAND, Justice SUNDBERG, Justice

text:
    STATE of Florida ex rel. MIAMI HERALD PUBLISHING COMPANY, etc., et al., Relators, v. Russell H. McINTOSH, Circuit Court Judge, Respondent.
    No. 48264.
    Supreme Court of Florida.
    July 30, 1976.
    As Modified on Denial of Rehearing Jan. 10, 1977.

      Parker D. Thomson, Susan W. Diner and Dan Paul of Paul & Thomson, Miami, for relators.
    Joseph P. Metzger, Michael B. Davis and Norman E. Taplin of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for respondent.
    Harold B. Wahl of Wahl & Gable, Jacksonville, for Fla. Pub. Co., amicus curiae.
    William C. Ballard of Baynard, Lang & Ballard, St. Petersburg, for Times Pub. Co., amicus curiae.
    Talbot D’Alemberte and Patricia A. Seitz of Steel, Hector & Davis, Miami, for Post-Newsweek Stations, Fla., Inc., amicus curiae.
    W. S. Rodgers, Jr., and Ted R. Manry, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for The Tribune Co., amicus curiae.
    William G. Mateer of Mateer, Harbert, Bechtel & Phalin, Orlando, John W. Fleming and Rex Conrad of Fleming, O’Brian & Fleming, Fort Lauderdale, and Don H. Reuben, Lawrence Gunnels, Samuel Fifer and James A. Klenk of Kirkland & Ellis, Chicago, Ill., for Gore Newspapers Co. and Sentinel Star Co., amicus curiae.
    Dan Paul of Paul & Thomson, Miami, for The New York Times Co., amicus curiae.
    Daniel Neal Heller of Heller & Kaplan, Miami, for The Miami Daily News, Inc., amicus curiae.
    C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Fla. Society of Newspaper Editors, ami-cus curiae.
   BOYD, Justice.

This cause is before us on petition for certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 320 So.2d 861 (Fla.App.4th DCA 1975), which purportedly conflicts with State ex rel. Miami Herald Publishing Co. v. Rose.

The facts of the case as alleged in the pleadings, and as argued both in the briefs and orally are as follows.

Three mortgage brokers and three corporate brokerage firms are charged with . . selling unregistered securities, selling securities while not registered as a securities salesman, securities fraud, grand yl'arceny and conspiracy to sell unregistered securities and to commit grand larceny . .” These charges are the first to emerge from the Comptroller’s statewide investigation into what he terms a mammoth securities and mortgage fraud within the State. Since this investigation has been the subject of widespread coverage by state and national press, the six criminal defendants joined in a Motion to Control Prejudicial Publicity, which motion was served only on counsel for the State and for the defend-., ants and was heard along with other pretrial motions. Upon consideration of the motion, argument of counsel, a file of press clippings and the authorities presented by the parties to the criminal action, Respondent entered his first order in which he ordered:

“1. The defendant’s Motion to Control Prejudicial Publicity, in order to afford a fair trial of this cause, is hereby granted and the Court orders as follows:
“A. Members of the news media shall not report any testimony presented and/or evidence exhibited in the absence of the jury unless same shall have been admitted in evidence by the Court, or is a public record, or is presented in open court in the presence of the jury;
“B. Defense Counsel, all members and employees of the Palm Beach County State Attorney’s Office, all members and employees of the Attorney General’s office, members and employees of the Division of Securities, and members and employees of the Office of the Comptroller, and all officials of the State of Florida, including the Comptroller and the Attorney General of the State of Florida, law enforcement officers, subpoenaed witnesses, bailiffs, clerks and other officials ifTattendance to this Court, shall not give or authorize any extrajudicial statement or interview relating to. the trial of this cause or the parties or issues in the trial for dissemination by any means of public communication during the course of this trial, except they may quote from or refer without comment to public records, or testimony or evidence that has been admitted in evidence during the course of this trial.
“2. The intendment of this Order is to prevent publicity of a nature that would tend to adversely affect the rights of the defendants to a fair trial.”

On his morning arrival at the courtroom Relator Schwartz, a reporter for Relator newspaper, was instructed to pick up a copy of this order, which he did. That afternoon, Relators sought revocation of Respondent's first order; a hearing was scheduled for the following morning. At that hearing, Rela-tors filed a Motion to Vacate Respondent’s first order, supporting their Motion with a memorandum of law. No additional factual support for the first order was submitted. At the conclusion of the hearing, Respondent entered his second order in which he not only denied Relators’ Motion on the ground that they had no standing to challenge the first order but he also made the following gratuitous “findings of fact”:

“That there has been a considerable amount of publicity by news media throughout the State, some of which quotes high government officials on the subject matter of this prosecution;
“That it is reasonable to expect that this publicity will continue during the course of this trial; and
“That the continuance of this publicity if it is permitted to include proffered testimony and/or documents or other physical evidence which are inadmissible against the defendants or opinions of public officials, attorneys, court personnel, and other restrained by the contested order constitutes a ‘clear and present danger’ that the defendants in this prosecution will not receive a fair trial unless the order entered herein be enforced.”

On October 15, 1975, immediately after the denial of their Motion, Relators sought expedited review in the District Court of Appeal, Fourth District, by filing a Suggestion for Writ of Prohibition, which Suggestion was denied Per Curiam, with a dissenting opinion on October 17, 1975. The selection of the jury which began October 14, 1975, concluded on Friday, October 17,1975. The taking of testimony commenced on Monday, October 20, 1975. Thereafter, on October 28th, some eleven days after the decision of the District Court, Petitioners filed for relief in this Court, seeking, among other things, a Stay Order suspending operation of the trial judge’s orders. An emergency hearing was set and oral argument heard on Monday, November 3,1975. After careful review of the record, we made the following determinations:

“1. That the Petition for Prohibition, Mandamus and Stay Order is denied.
“2. Pursuant to Section 2(a), Article V, Constitution of Florida, the Court has classified the Petition as a Petition for Conflict Certiorari . . . Relief requested for any other constitutional relief is denied.
“3. [The parties] shall file their briefs on jurisdiction and merits . . . with oral argument . . . to be heard on jurisdiction and merits on November 17th. ...”

Briefs having been filed by all parties and a multiplicity of amicus curiae and oral argument having been heard, we find that in considering this petition for certiorari we are confronting the monumental task of balancing equally important constitutional rights: the right of a defendant to a fair trial and the right of the public to know facts by way of a free press.

Initially, let us consider the arguments for a “free press” as presented by Petitioners. Any form of prior restraint of expression comes to a reviewing court bearing a heavy presumption against its constitutional validity; therefore, the party who seeks to have such a restraint upheld carries a heavy burden of showing justification for the imposition of such a restraint. While a court is legitimately concerned with preventing prejudicial publicity from poisoning the impartial atmosphere essential to a fair trial, the court’s action in restricting the media must relate to the danger sought to be avoided and it must not be unconstitutionally overbroad. “For instance, in C.B.S., Inc'.~v.' Young, the court held that to justify imposition of a prior restraint, the activity restrained must pose a clear and present danger or a serious or imminent threat to a protected competing interest and that such a restraint cannot be upheld if reasonable alternatives are available.” In U. S. v. Dickinson, the court observed that before First Amendment freedoms can be abridged, substantive evil must be extremely serious and the degree of imminence extremely high. The standard to be met is that the expression by the press must constitute “an immediate, not merely likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.”

It has been recognized in Florida and elsewhere that the news media, even though not a party to litigation below, has standing to question the validity of an order because its ability to gather news is directly impaired or curtailed. This is so, because the public and press have a right to know what goes on in a courtroom whether the proceeding be criminal or civil. A member of the press or newspaper corporation may be properly considered as a representative of the public insofar as enforcement of public right of access to the court is concerned; and the public and press have a fundamental right of access to all judicial proceedings. In determining restrictions to be placed upon access to judicial proceedings, the court must balance the rights and interest of the parties to litigation with those of the public and press. Reporters are plainly free to report whatever occurs in open court through their respective media. A trial is a public event, and there is no special perquisite of the judiciary which enables it to suppress, edit or censor events which transpire in proceedings before it, and those who see and hear what transpired may report it with impunity, subject to constitutional restraints mentioned herein.

Nevertheless, a trial court has the' inherent power to control the conduct of the proceedings before it, and it is the trial court’s responsibility to protect a defendant in a criminal prosecution from inherently prejudicial influences which threaten fairness of his trial and the abrogation of his constitutional rights. Florida has held already that through admonition to jurors and through sequestration of the jury, a trial judge has ample power to insure a fair trial for a criminal defendant without suppressing First Amendment rights of the news media as regards reporting proceedings.

We now turn our attention to Respondent’s arguments upholding his actions as necessary to secure a fair trial for the criminal defendants. Respondent asserts that the Orders before this Court must be considered not only in light of the First Amendment as it relates to freedom of the press, but also in connection with the due process requirements of both the Fifth and Fourteenth Amendments and the provisions of the Sixth Amendment securing a defendant a fair trial.

In Estes v. Texas the Court stated that “fair trial [is] the most fundamental of all freedoms.” In that case the Court went on to say:

“While maximum freedom must be allowed the press in carrying on this important function in a democratic society its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process. . . .We have always held that the atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms — must be maintained at all costs.” (emphasis supplied)

The leading case in this area is Sheppard v. Maxwell, in which it was stated:

“Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the persuasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to insure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances.”

In United States v. Tijerina the following is found:

“ . . . The defense argument [that the statements in Sheppard are dicta] necessarily places freedom of speech in a preferred position above fair trial. Some decisions of the Supreme Court place First Amendment rights in a preferred position. . . . This preferred position has never been approved in a case where balance must be had between free speech and fair trial. Indeed, the Court has awarded the preference to fair trial . Estes v. Texas . . . The order against extrajudicial statements was designed to maintain atmosphere essential to the preservation of a fair trial, ‘the most fundamental of all freedoms.’ ”

In Allegrezza v. Superior Court of Alame-dia County trial courts were directed not to accord the press greater rights than are assigned to defendants in criminal proceedings.

Clearly, the essence of this case is reconciliation and application of Federal and State constitutional rights to achieve both a fair trial and freedom of the press. Those who adopted the Bill of Rights had personally experienced the actions of King George, III, in denying these and other rights. It is reasonable to assume they recognized the interdependence of each provision of the Constitution of the United States upon all other provisions. Without fair trial freedom of the press could not exist, and without freedom of the press fair trials could not be assured. The federal Constitution constitutes a uniform and cohesive umbrella to protect the people against oppression, injustice and tyranny. Since no two criminal trials are exactly alike, each trial judge must apply federal and state interpretations of the Bill of Rights and must-balance^ the rights of free press and fair triaPto assure that justice and fairness prevail in each trial. To attain true justice the written law must be seasoned with a proper amount of common sense.

The inconvenience suffered by jurors who are sequestered to prevent exposure to excluded evidence which may be published in the press is a small price to pay for the public’s right to timely knowledge of trial proceedings guaranteed by freedom of the press. It is argued that a temporary withholding of news from the public may aid in assuring a fair trial and that if the State and defendant agree to muzzling the press no one else has a right to object. We firmly reject any suppression of news in a criminal trial except in those rare instances such as national security and where a news report would obviously deny a fair trial as stated above in Federal cases.

Freedom of the press is not, and has never been a private property right granted to those who own the news media. It is a cherished and almost sacred right of each citizen to be informed about current events on a timely basis so each can exercise his discretion in determining the destiny and security of himself, other people, and the Nation. News delayed is news denied. To be useful to the public, news events must be reported when they occur. Whatever happens in any courtroom directly or indirectly affects all the public. To prevent star-chamber injustice the public should generally have unrestricted access to all proceedings.

Although freedom of the press belongs to all the people those who gather and distribute news have special concerns which entitle them to notice and a hearing before any trial court enjoins or limits publication of court proceedings. The circumstances may require a summary hearing but reasonable notice under prevailing conditions and a hearing must be had in each instance. The court should serve notice to news reporters present, but no order entered in good faith is invalid for lack of notice to one or more who may be unavailable to receive notice. Announcement from the bench or publication in writing in the courtroom should be adequate.

Limitations placed upon lawyers, litigants and officials directly affected by court proceedings may be made at the court’s discretion for good cause to assure fair trials. Muzzling lawyers who may wish to make public statements to gain public sentiment for their clients has long been recognized as within the court’s inherent power to control professional conduct. The constant spotlight of public attention focused upon public officials during litigation makes it imperative that they be more subject to judicial restrictions against inflammatory and prejudicial statements than other persons. With the exception of lawyers, litigants, witnesses, jurors and court personnel, the court should limit restrictions against comments to those areas in which clear and present danger of miscarriage of justice might arise from statements affecting or relating to the trial. _

In Nebraska Press Ass’n et a 1. v. Stuart, - U.S. -, 96 S.Ct. 2791, 48 L.Ed.2d 683, 44 U.S.L.W. 5149 (1976), the United States Supreme Court reviewed an order entered by a trial court in a sensational murder trial. The order, as modified by the Nebraska Supreme Court restrained the press from publishing accounts of confessions or admissions of the accused and other facts “strongly implicative” of the accused. Although the order expired by its own terms upon impanelment of the jury which indeed had been impaneled at the time of its decision the Court held the issue of whether the order unconstitutionally impinged on freedom of the press in violation of the First Amendment was not moot since the controversy between the parties is capable of repetition, yet evading review. The Court then held that the heavy burden imposed as a condition to securing a prior restraint was not met in this case for several reasons, among them, that there was no showing that alternative measures might have protected the accused’s rights, that there existed doubt that the accused would have been protected by the prior restraint and that to the extent the order prohibited publication adduced at an open preliminary hearing it violated the principle, enunciated in Sheppard, that the press may report events that transpire in the courtroom. Although the trial in this case is over the issue of violation of the guarantee of freedom of the press is not moot, just as it was not moot in Stuart, and although the prior restraint in Stuart is not precisely the same as it is here, the accommodation of the two constitutional guarantees at which we arrive is strengthened by the holding in Stuart.

To conclude, we issued a writ of certiorari and exercised jurisdiction herein because the decision of the District Court of Appeal, Fourth District, reported 320 So.2d 861 (Fla.App.4th DCA 1975), conflicts with State ex rel. Miami Herald Publishing Co. v. Rose. We have examined the facts and the law; we conclude that Rose, supra, correctly states the law. Accordingly, the decision of the District Court in this cause is quashed.

It is so ordered.

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

ROBERTS, J., concurs in conclusion.

ENGLAND, J., concurs with an opinion.

SUNDBERG, J., concurs with an opinion.

ENGLAND, Justice

(concurring).

I concur in the result achieved by the majority’s opinion, and in the procedural suggestions formulated by Mr. Justice Sundberg.

This case is really quite easy, it seems to me, since it presents for our review a form of court order least capable of withstanding constitutional scrutiny — one which imposes a prior restraint on reporting a public trial without notice to the media or any opportunity to be heard, and without any factual foundation demonstrating a need for the restraint. See Nebraska Press Ass’n v. Stuart,- U.S. -,-, 96 S.Ct. 2791, 2809, 48 L.Ed.2d 683, 44 L.W. 5149, 5159 (Brennan, J., concurring).

SUNDBERG, Justice

(concurring).

While I concur in the thoughtful opinion by Mr. Justice Boyd, for guidance of the bench, bar and media, I would suggest that it is appropriate to be more precise with respect to procedures to be employed in accommodating the First and Sixth Amendment guarantees discussed by the majority.

Although counsel for relators makes a very persuasive historical argument against any prior restraints upon the press in reporting judicial proceedings, the decisions of the United States Supreme Court and of this Court to date have not accepted his thesis. In fact, decisions of the federal circuit courts of appeal have assumed that there is some limitation upon the right of the press to publish some portions of judicial proceedings. See, for example, United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969). Consequently, until such time as the United States Supreme Court holds that the rights under the First and Sixth Amendments are not correlative we must establish procedural parameters to accommodate the force and operation of the respective rights guaranteed by those Amendments when they come into conflict. I subscribed to the proposition that an actual confrontation between these two essential concepts — freedom of the press and the right of a criminal defendant to a fair trial — need occur very infrequently because there are numerous means within the power of the court, such as explicit instructions to the jurors and sequestering, to insure a fair trial short of imposing a restraint on the press. Recourse to these measures, in my judgment, must be totally exhausted and found wanting before consideration be given to an order directly restraining the press in publishing events occurring in open court.

So as to facilitate review by the appropriate appellate tribunal, the trial court should explicitly set forth the reasons why the customary means available to the court to protect against the influence of prejudicial trial publicity are insufficient to provide the defendant a fair trial. In its deliberations the trial court must conclude not only that the alternative measures available are not sufficient, but also that there is a “clear and present danger” or “serious and imminent threat” that publication will preclude the fair administration of justice in the cause. See Schenck v. United States, 249 U.S. 74, 39 S.Ct. 247, 63 L.Ed. 470 (1919); United States v. Dickinson, 465 F.2d 496 (5th Cir. 1972); and Chicago Council of Lawyers v. Baur, 522 F.2d 242 (7th Cir. 1975).

As suggested by the report of the American Bar Association’s Legal Advisory Committee on Fair Trial and Free Press, 62 A.B.A.J. pp. 63-64, persons representing the news media are best equipped to provide the input concerning the First Amendment ramifications of any action which effectively restricts the flow of information to the public. Accordingly, fair notice and an opportunity to be heard should be afforded to the news media whenever an order restraining publication is contemplated by the court. As further suggested by the report of the A.B.A. committee, whenever possible the hearing should be held sufficiently in advance of the trial to permit review of the court’s order by interested parties before the matter becomes moot. A corollary of this procedure should be the willingness of representatives of the media to participate in the review on appeal of any such order when restraint is denied at the urging of the media.

It is clear to me that the action of the trial court in each of these consolidated proceedings failed procedurally to measure up to the mandate of the First Amendment when brought into accord with that of the Sixth Amendment. However, this is not stated critically because as indicated by Mr. Jack A. Landau in his article, “The Challenge of the Communications Media” the progeny of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), has brought an abundance of confusion to this area of the law. It ill behooves us to criticize the trial judge who heretofore has been placed in the delicate and emotionally charged situation of balancing two of our most precious constitutional guarantees with little real direction from the myriad of cases on the subject.

      . Art. V, § 3(b)(3), Fla.Const.

      . 271 So.2d 483 (Fla.App.2d DCA 1972).

      . 322 So.2d 544 (Fla.1975).

      . New York Times Company v. U. S. and U. S. v. The Washington Post Company, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822; Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963).

      . U. S. v. C. B. S. Inc., 497 F.2d 102 (5th Cir. 1974).

      . 522 F.2d 234 (6th Cir. 1975).

      . 465 F.2d 496 (5th Cir. 1972).

      . See Craig v. Harney, 331 U.S. 367, 375, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); see, also, U. S. v. C. B. S. Inc., supra, Note 5.

      . See C. B. S. Inc. v. Young, supra, and State ex rel. Gore Newspaper Company v. Tyson, 313 So.2d 777 (Fla.App.4th DCA 1975).

      . State ex rel. Gore Newspaper Company v. Tyson, supra, Note 10.

      . Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), reh den. 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118; Pennekamp v.

        Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946).

      . United States v. Dickinson, supra, Note 7.

      . State ex rel. Gore Newspaper Company v. Tyson, supra, Note 9.

      . United States v. Dickinson, supra, Note 7.

      . State ex rel. Miami Herald Publishing Co. v. Rose, supra, Note 2.

      . Supra, Note 11.

      . Id.

      . 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

      . Id. at 363, 86 S.Ct. at 1522.

      . 412 F.2d 661 (10th Cir. 1969).

      . Id. at 667.

       47 Cal.App.3d 948, 121 Cal.Rptr. 24s 1975).

      . Supra, Note 2.

      . 62 A.B.A.J. 55 (1976).


author:
BOYD, Justice.
      ENGLAND, Justice

text:
    BOTANICAL GARDENS et al., Petitioners, v. Willie SMITH et al., Respondents.
    No. 48337.
    Supreme Court of Florida.
    Sept. 30, 1976.
    Opinion adhered to On Rehearing Jan. 20, 1977.
    Lewis F. Cohen, Miami, for petitioners.
    Stephen Marc Slepin of Kaplan, Schwartz & Slepin, Miami and David F. Roemer, Coral Gables, for respondents.
   BOYD, Justice.

We here review by certiorari a decision of the Industrial Relations Commission. We have jurisdiction under Article V, Section 3(b)(3), Florida Constitution.

Claimant Smith suffered a right inguinal hernia and a lumbosacral sprain from the same accident. Temporary total disability benefits were paid beginning July 30, 1974. On August 13, 1974 hernia surgery was performed. The carrier continued to pay temporary total disability benefits until December 17, 1974, well beyond six weeks after the hernia surgery.

Claimant sought payment of an additional six weeks of compensation relying on Section 440.15(6)(f), Florida Statutes, which provides:

“Compensation shall be paid for a period of six weeks from the date of the [hernia] operation.”

Despite the fact that for more than six weeks following the hernia surgery claimant was receiving temporary total disability benefits for the back injury, the Judge of Industrial Claims awarded the hernia compensation benefits. The Industrial Relations Commission affirmed by short form order with Commissioner Friday dissenting.

Commissioner Friday stated in his dissent that if claimant was allowed to receive the benefits of Section 440.15(6)(f), Florida Statutes, in addition to temporary disability benefits for his back injury, the question of when the former benefits should be paid would arise. He declined to reach this “vexatious” question because he did not think claimant should be entitled to recovery of both benefits.

We agree with Commissioner Friday. Claimant should not be entitled to multiple recovery.

The decision of the Industrial Relations Commission is reversed and the cause remanded for proceedings consistent with this opinion.

It is so ordered.

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

ENGLAND, J., concurs with an opinion.

ROBERTS and ADKINS, JJ., dissent.

ENGLAND, Justice

(concurring).

I concur with the majority in reversing the Industrial Relations Commission. Section 440.15(6)(f), Florida Statutes (1975), does not require an award of dual benefits in this case, as the Commission has ordered and respondents now contend. The “scheduled” benefit prescribed for a hernia operation, which guarantees an injured party an ample period of recovery from this particular operation, may be appropriate in conjunction with unscheduled permanent disability benefits, but it is incompatible with temporary disabilities benefits which are required to be paid during the employee’s “healing period”. See Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969).

Opinion adhered to On Rehearing; OVERTON, C. J., BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

ADKINS, J., dissents.

      . We do not reach this issue here because that case is not before us. But cf. Royal Palm Market v. Lutz, 126 So.2d 881 (Fla.1961), holding that permanent disability benefits may be awarded for different injuries arising from the performance of a hernia operation.


author: ROBERTS, Justice. SUNDBERG, Justice

text:
    FLORIDA PUBLISHING COMPANY, a Florida Corporation, Petitioner (Defendant), v. Klenna Ann FLETCHER, etc., Respondent (Plaintiffs).
    No. 48372.
    Supreme Court of Florida.
    Oct. 7, 1976.
    Rehearing Denied Jan. 10, 1977.
    Writ of Certiorari to the District Court of Appeal, First District.
    Harold B. Wahl, of Wahl & Gabel, Jacksonville, for petitioner.

      Ellis E. Neder, Jr., and Rudolph J. Inman, Jr., Jacksonville, for respondent.
    George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, and Richard N. Winfield and Betty B. Robbins, of Rogers & Wells, New York City, for Associated Press.
    Charles S. Isler, Jr., and George P. Daniels, of Isler, Higby, Brown & Smoak, Panama City, for Florida Freedom Newspapers, Inc.
    William C. Ballard, of Baynard, Lang & Ballard, St. Petersburg, for Times Publishing Co.
    Ted R. Manry, III, of MacFarlane, Ferguson, Alison & Kelly, Clearwater, for The Tribune Co.
    J. Laurent Scharff, of Pierson, Ball & Dowd, Washington, D.C., and George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, for Radio Television News Directors Association.
    George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, for The Greater Jacksonville Chapter of the Society of Professional Journalists/Sigma Delta Chi.
    William G. Mateer, of Mateer, Harbert, Bechtel & Phalin, Orlando, and John W. Fleming and Rex Conrad, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for Gore Newspapers Co. and Sentinel Star Co.
    Dan Paul and Sanford L. Bohrer, of Paul & Thomson, Miami, for The Miami Herald Publishing Co., The New York Times Company and Gannett Company, Inc.
    DuBose Ausley and C. Gary Williams, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for The Tallahassee Democrat and Florida Society of Newspaper Editors.
    James D. Whisenand, Deputy Atty. Gen., and Sharyn L. Smith, Asst. Atty. Gen., for Robert L. Shevin, Atty. Gen., State of Florida, amici curiae.
   ROBERTS, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in Fletcher v. Florida Publishing Co., reported at 319 So.2d 100 (Fla.App. 1, 1975), which directly conflicts with Jacova v. Southern Radio and Television Co., 83 So.2d 34 (Fla.1955), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

The facts supported by the record are succinctly stated in the summary final judgment of the trial judge who determined that there was no real dispute as to the material facts. Respondent, Mrs. Fletcher, left Jacksonville for New York on September 15, 1972, to visit a friend. She left in Jacksonville her three young daughters, including seventeen-year-old Cindy. A “baby sitter” was to spend the nights with the children, but there was no one with them in the home during the daytime except a young man who had a room in the house and whom Mrs. Fletcher described as Cindy’s “boy friend.” On the afternoon of September 15, 1972, while Cindy was alone in the house, a fire of undetermined origin did large damage to the home, and Cindy died.

The fire and police departments were called by a neighbor who discovered the fire, but too late to save the child. A large group of firemen, news media representatives, and onlookers gathered at the scene and on Mrs. Fletcher’s property.

When the Fire Marshal and Police Sergeant Short entered the house to make their official investigation, they invited the news media to accompany them, as they deposed was their standard practice. The media representatives entered through the open door; there was no objection to their entry; they entered quietly and peaceably; they did no damage to the property; and their entry was for the purpose of their news coverage of this fire and death.

The Fire Marshal desired a clear picture of the “silhouette” left on the floor after the removal of Cindy’s body. He and Sergeant Short in their depositions explained that the picture was important for their respective investigations to show that the body was already on the floor before the heat of the fire did any damage in the room. The Fire Marshal took one polaroid picture of the silhouette, but it was not too clear, he had no further film, and he requested photographer Cranford to take the “silhouette” picture which was made a part of the official investigation file of both the Fire and Police.

This picture was not only a part of the investigation but News Photographer Cran-ford turned it and his other pictures over to the defendant newspaper. It and several other pictures appeared in the news story of The Florida Times-Union on September 16, 1972.

Respondent first learned of the facts surrounding the death of her daughter by reading the newspaper story and viewing the published photographs.

Respondent filed an amended complaint against petitioner alleging (1) trespass and invasion of privacy, (2) invasion of privacy, (3) wrong intentional infliction of emotional distress — seeking punitive damages.

The trial court dismissed Count II and granted final summary judgment for petitioner as to Counts I and III. Relative to the granting of summary judgment for Petitioner as to Count I, the trial judge cogently explicated:

“As to Count I, the question raised by the motion for summary judgment is one of law as there is no genuine issue of material fact. The question raised is whether the trespass alleged in Count I of the complaint was consented to by the doctrine of common custom and usage.

“The law is well settled in Florida and elsewhere that there is no unlawful trespass when peaceable entry is made, without objection, under common custom and usage. See Prior v. White (1938) 132 Fla. 1, at 19, 180 So. 347; Boston v. Fornalski (Fla. DCA 4, 1970) 234 So.2d 386, 387; 52 Am.Jur., Trespass, Section 39; 87 C.J.S., Trespass, Section 49b; Conley on Torts (4th Edition) Sections 251 and 248; Harper and James on Torts, Section 1.11; Restatement of the Law of Torts, Section 167(d), Trespass, page 403.

“In Martin v. Struthers (1943) 319 U.S. 141, 149 [63 S.Ct. 862, 87 L.Ed. 1313], the Court struck down an unconstitutional and ‘invalid in conflict with the freedom of speech and press’ a city ordinance which made it unlawful trespass to knock on doors and ring doorbells to distribute literature. In so doing, at pages 147-149 [63 S.Ct. 862] it made the far reaching pronouncement followed by the Florida Supreme Court in Prior v. White (Fla.1938) 132 Fla. 1, 180 So. 347, 356:

“ ‘Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. * * We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away.’
“In McKee v. Gratz (1922) 262 [260] U.S. 127 [43 S.Ct. 16, 67 L.Ed. 167], the Supreme Court recognized the rule that it was not trespass when under the ‘habits of the country’ entry was commonly made.
* * * # * *
“Not only did the Fire Marshal and Detective Sergeant Short testify it was common custom and usage to permit the news media to enter under the circumstances here, and of the great number of times they had permitted it in private homes, but many affidavits were filed to the same effect, including those of Duval County Sheriff Carson and Florida Attorney General Shevin.
“Similar affidavits have been filed from the Chicago Tribune; the ABC-TV News, New York; the Tallahassee Democrat; the Pensacola Journal; the Associated Press; the President of the American Newspaper Publishers Association; the President of the Radio Television News Directors Association; the Miami Herald; United Press International; The Florida Times-Union and Jacksonville Journal; The Washington Post; TV-12 at Jacksonville; TV-10 at Miami; TV-4 at Jacksonville; the New York Daily News; the Milwaukee Journal; the Birmingham Post-Herald; the Memphis Commercial Appeal; the Macon Telegraph; and the Tampa Tribune; all attesting that it is common usage, custom and practice for news media to énter private premises and homes under circumstances like those here.
“Plaintiff filed no affidavits except her own; she makes no attempt to qualify as an expert; and she simply states her personal belief generally, without going into the situation involving coverage of a news story of public interest. She shows no qualifications to make an affidavit on the custom and usage in such matters.
“In Mrs. Fletcher’s deposition, she stated she was in New York at the time of the fire; there was no one at the scene who objected to the entry; and she makes it clear she does not contend there was any force used for entry, or any physical damage done to the premises.
“Plaintiff likewise concedes that it was perfectly proper for the Fire and Police to enter without permission. The Fire and Police used the picture as part of their official investigation and actually requested that such picture be taken and would have made such request even had the Plaintiff been there and objected. There is no evidence that any restriction was placed upon the Defendant’s photographer in the use of the photographs he took at the request of the Police and Fire Marshal.
“Numerous affidavits, as above set forth, have been filed by the Defendant in support of its motion for summary judgments. All these affidavits attest to the fact that it is common usage, custom and practice for news media to enter private premises and homes to report on matters of public interest or a public event. The court therefore finds that there is no genuine issue of material fact and that as a matter of law an entry, that may otherwise be an actionable trespass, becomes lawful and non-actionable when it is done under common usage, custom and practice. The court further finds that the entry complained of in Count I of the Plaintiff’s complaint was one permitted by common usage, custom and practice, and that the Defendant is entitled to a summary judgment as a matter of law as to matters alleged in Count I of the Plaintiff’s complaint.”

On appeal, the District Court of Appeal reversed as to the granting of summary judgment on Count I, stating:

“We do not here hold that a trespass or ‘intrusion’ did in fact occur sub judice: We simply find that such is alleged in Count I of the amended complaint and that the proofs before the learned trial judge are insufficient to resolve the point by summary judgment.”

Although recognizing that consent is an absolute defense to an action for trespass and that the defense of custom and usage is but another way of expressing consent by implication — that is consent may be implied from custom, usage or conduct — the District Court commented that the emergency of the fire was over and that there was no contention that petitioner’s employees entered the premises to render assistance, explained that respondent did not either impliedly or expressly invite petitioner’s employees into her home, and concluded that the proofs before the court were not sufficient to show that there was no genuine issue of material fact as to whether implied consent by custom and usage authorized entry into the premises without invitation by appellant.

As to the other points on appeal, the District Court of Appeal, First District, determined that although punitive damages are recoverable in a proper case for trespass resulting in invasion of privacy, the trial judge did not err in granting summary judgment for petitioner on issue of punitive damages, held that the trial court correctly dismissed Count II with prejudice, and correctly granted summary judgment for petitioner as to Count III.

The District Court erred in reversing summary judgment for petitioners as to Count I. The trial court properly determined from the record before it that there was no genuine issue of material fact insofar as the entry into respondent’s home by petitioner’s employees became lawful and non-actionable pursuant to the doctrine of common custom, usage, and practice and since it had been shown that it was common usage, custom and practice for news media to enter private premises and homes under the circumstances present here.

Judge McCord in his dissenting opinion could not agree with the majority that the news photographer who entered the burned out home was a trespasser or that the photograph published by petitioner and the news story resulting from the entry were an actionable invasion of privacy. We agree with and approve the following well-reasoned explication by Judge McCord in his dissenting opinion:

“The only photographs taken and published were of fire damage — none were of deceased or injured persons. There, is no contention that the particular photograph complained of (the silhouette picture) and the news story were in any way false or inaccurate. There could, therefore, be no recovery under the ‘false-light’ doctrine of invasion of privacy. See Cantrell v. Forest City Publishing Company, 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974). Thus, there could be no recovery from the publication if the same photograph had come from a source other than from the news photographer’s entry upon the premises. Any recovery in this case must necessarily be based upon trespass, and, therefore, the only question is whether or not there was a trespass by the news photographer. The majority opinion discusses the implied consent doctrine under which a person, who does not have express consent from the owner or possessor of premises, may legally enter under circumstances which infer or imply consent (common usage, custom and practice). It is my view that the entry in this case was by implied consent.
“It is not questioned that this tragic fire and death were being investigated by the fire department and the sheriff’s office and that arson was suspected. The fire was a disaster of great public interest and it is clear that the photographer and other members of the news media entered the burned home at the invitation of the investigating officers. (Numerous members of the general public also went through the burned house.) Many affidavits of news editors throughout Florida and the nation and affidavits of Florida law enforcement officials were filed in support of appellee’s motion for summary judgment. These affidavits were to the general effect that it has been a longstanding custom and practice throughout the country for representatives of the news media to enter upon private property where disaster of great public interest has occurred — entering in a peaceful manner, without causing any physical damage, and at the invitation of the officers who are investigating the calamity. The affidavits of law enforcement officers indicate that the presence of the news media at such investigations is often helpful to the investigations in developing leads, etc.
“The affidavits as to custom and practice do not delineate between various kinds of property where a tragedy occurs. They apply to any such place. If an entry is or is not a trespass, its character would not change depending upon whether or not the place of the tragedy is a burned out home (as here), an office or other building or place. An analysis of the cases on implied consent by custom and usage, indicates that they do not rest upon the previous nonobjection to entry by the particular owner of the property in question but rest upon custom and practice generally. Implied consent would, of course, vanish if one were informed not to enter at that time by the owner or possessor or by their direction. But here there was not only no objection to the entry, but there was an invitation to enter by the officers investigating the fire. The question of implied consent to news media personnel to enter premises in a circumstance such as this appears to be one of first impression not only in this jurisdiction but elsewhere. This, in itself, tends to indicate that the practice has been accepted by the general public since it is a widespread practice of long-standing. Due to such widespread and longstanding custom, reason and logic support the application of implied consent to enter the premises in the case before us. It, therefore, was not a trespass, and I would affirm the trial court.” (emphasis supplied)

Accordingly, that portion of the decision of the District Court of Appeal, First District, reversing summary judgment for petitioner as to Count I is quashed, and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

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

SUNDBERG, J., dissents with an opinion.

ENGLAND, J., did not participate in this decision.

SUNDBERG, Justice

(dissenting).

I dissent from the majority opinion. I dissent not because of the decision reached on merits, but because I cannot conscientiously conclude, as does the majority, that there is direct conflict between the decision of the District Court of Appeal in the instant case and Jacova v. Southern Radio & Television Co., 83 So.2d 34 (Fla.1955). Jaco-va dealt altogether with the issue of whether a communications medium has a qualified privilege to publish the name or photo of a person who has become an “actor” in a newsworthy event. No element of trespass was presented in that case as it is here. In Jacova the plaintiff was photographed by television camera during a police “raid” at a cigar shop located in a hotel.

As explicated by the majority, the issue sub judice is whether the trial court erred in entering summary judgment on the count of the amended complaint which alleged trespass and invasion of privacy. The District Court of Appeal concluded that the proofs were insufficient to determine on summary judgment that there was no trespass based on the affidavits of “custom and usage” utilized to supply the implied consent to the entry found by the trial judge. The opinion below expressly recognized the principle of Jacova with respect to the privilege to publish matters of legitimate, general public interest without being subject to a claim of invasion of privacy:

“Unquestionably the fire in appellant’s home coupled with the tragic death of her daughter was of obvious legitimate public interest. That the published matter complained of is of general public interest has always been considered a defense to a claim of invasion of privacy by publication. Finding that the matter published was of obvious legitimate public interest, the publication, per se, was not an invasion of privacy. However, if the entry by appellee’s employees into appellant’s home constituted a trespass or ‘intrusion’ it follows that such intrusion constituted a sufficient basis for the tort of invasion of privacy, entitling the injured party (appellant here) to such damages incident to the trespass action as may be proved to have resulted therefrom. . . . ”
(Footnotes omitted)
Fletcher v. Fla. Publishing Co., 319 So.2d 100, 111 (Fla. 1st DCA 1975).

It might be asserted that there is conflict on the issue of trespass with the decision of this Court in Prior v. White, 132 Fla. 1, 180 So. 347 (1938). The Prior case dealt with the constitutionality of a municipal ordinance declaring solicitation “in and upon private residences” a nuisance. As pointed out by the majority below, the opinion discussed the principle of implied consent supplied by custom and usage but in the context of the city’s exercise of its police power to declare certain conduct a nuisance. The District Court of Appeal opinion carefully discussed and distinguished the Prior decision as not being determinative of the trespass issue sub judice. Fletcher v. Fla. Publishing Co., supra, at 105.

Judge McCord in dissenting from the majority opinion below recognized that this is a case of first impression when he stated, “The question of implied consent to news media personnel to enter premises in a circumstance such as this appears to be one of first impression not only in this jurisdiction but elsewhere.” 319 So.2d 100, 113 at 114.

There is little doubt in my mind that this case is one of great public interest which would justify consideration by this Court. Nonetheless, our jurisdiction is circumscribed by Article V of the Constitution, and it is the function under our constitutional scheme of the district courts of appeal to initiate review by this Court of questions of great public interest through certification. See Article V, Section 3(b)(3), Florida Constitution.

As so aptly stated by Justice Drew in Fla. Power & Light Co. v. Bell, 113 So.2d 697, 699 (Fla.1959):

“. . . Although the question at hand is not whether certiorari should be granted but whether the case is one within the express limitations of our constitutional provisions, the same principles of division of appellate jurisdiction were plainly operative in the drafting of our amended judiciary article and must influence any interpretation of its terms. The constitutional objectives can be achieved and the creation of the district courts justified only if we recognize that the primary function of this Court, particularly in the area of ‘conflicts’ here involved, is to stabilize the law by a review of decisions which form patently irreconcilable precedents. . . .”

Finding no decisional conflict and the absence of certification of the question to this Court by the District Court of Appeal, First District, I would discharge the writ for lack of jurisdiction.

Rehearing denied; OVERTON, C. J., ADKINS, BOYD and HATCHETT, JJ., and ROBERTS, RET. J., concur.

SUNDBERG J., dissents.


author: ENGLAND, Justice.

text:
    MIMS AND THOMAS MANUFACTURING CO. and Insurance Company of North America, Petitioners, v. Dorothy G. FERGUSON and Industrial Relations Commission, Respondents.
    No. 48230.
    Supreme Court of Florida.
    Nov. 4, 1976.

      H. Jack Miller and H. George Kagan of Miller & Hodges, Coral Gables, for petitioners.
    Jonathan L. Alpert, Miami, for respondents.
    Richard A. Sicking of Kaplan, Dorsey, Sicking & Hessen, Miami, for Fla. Academy of Trial Lawyers, amicus curiae.
    John McQuigg, Tampa, for amicus curiae.
   ENGLAND, Justice.

We have before us for review an order of the Industrial Relations Commission which held with respect to so-called “scheduled injuries” under Section 440.15(3), Florida Statutes (1975), that disability benefits awarded for a partial loss of limb must be determined by reference to “the occupational impact of the injury upon the scheduled member . . . In so ruling the Commission reversed an award of benefits rendered by the Judge of Industrial Claims who had found that a compensable injury to the claimant’s right arm had resulted in a 10% impairment of physical use. The judge had disregarded as being irrelevant testimony that the injury had caused a 20-25% loss of wage earning capacity.

The Commission’s decision in this case recedes from a line of precedent in Commission decisions which have held that the statutory schedule replaces a factual inquiry into the economic loss actually suffered by the injured claimant. While we acknowledge the power of the Commission to interpret the workmen’s compensation statutes, the Commission in this case exceeded its authority by construing particular language in the statute to thwart the intent of the Legislature. In so doing it departed from essential requirements of the law.

Over the years this Court has said that diminished earning capacity is not a criterion for determining a compensation award in a case of “scheduled” injuries under the legislative scheme. Jewell v. Wood, 130 So.2d 277 (Fla.1961); Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959); Southern Bell Tel. & Tel. Co. v. Bell, 116 So.2d 617 (Fla.1959) (dicta). None of these cases directly held that compensation for a partial loss of limb should be based on physical impairment rather than economic impact, but the opinions in each case were based on an assumption that such was the obvious meaning of the statute. While the Commission’s written order puts forth cogent policy arguments in support of its conclusion, we are not persuaded that the generally held understanding of the statute does not reflect the intent of the Legislature.

Scheduled benefits are authorized in statutes in all American jurisdictions having workmen’s compensation laws. As explained in Magic City, the rationale for scheduling the benefits for certain injuries is to establish a conclusive presumption based on the observed economic effect of such injuries in many similar cases. The statutory schedules in fact relate to the actual earning loss of all individuals suffering the same employment related injury, by basing awardable benefits on defined durations of weekly wages.

While it may be illogical to treat as comparable a lawyer’s loss of hand and a pianist’s, insofar as this part of the workmen’s compensation law is concerned (permanent partial disabilities) any adjustment must emanate from the Legislature.

It was error for the Commission to inject individual loss of earnings into compensation awards in partial loss cases. Accordingly, the petition for the writ of certiorari is granted, the order of the Commission is quashed, and the cause is remanded with directions to reinstate the order of the judge of industrial claims.

OVERTON, C. J., and BOYD and SUND-BERG, JJ., concur.

ADKINS, J., dissents.

      .It was argued before the Commission that the judge of industrial claims improperly accepted expert medical evidence as conclusive on the issue of physical impairment. The Commission did not rule on the question. Our review of the order awarding benefits, however, discloses no basis to believe that all relevant evidence was not considered. The judge expressly stated: “The claimant’s testimony is not in substantial conflict with the reports of Dr. Glucroft. I accept the opinion of Dr. Glucroft regarding the employee’s permanent physical impairment.” There was no clear departure from the law regarding expert testimony. See Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959).

      . 2 A. Larson, Workmen’s Compensation Law, § 58.10, at 164 (1976).

      . See also, id. at § 58.11, p. 168 (1976).


author:
ENGLAND, Justice.
      SUNDBERG, Justice

text:
    Margaret W. INGRAM, Petitioner, v. Robert Leslie PETTIT, Jr., and the Liberty Mutual Insurance Company, an Insurance Corporation, Respondents.
    No. 46679.
    Supreme Court of Florida.
    Dec. 9, 1976.

      David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for petitioner.
    John C. Taylor, Jr., Marion R. Shepard aná John E. Mathews, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for respondents.
   ON REHEARING GRANTED

ENGLAND, Justice.

Margaret Ingram was injured as a result of a rear end collision to her car, for which she sued Robert Pettit for compensatory and punitive damages. The trial judge removed the issue of punitive damages from the jury by granting Pettit a summary judgment. This judgment was affirmed by the First District Court of Appeal, after which Ingram properly invoked our jurisdiction to review that decision.

The sole issue presented for our review is whether a jury should be allowed to consider an award of punitive damages where negligence is coupled with intoxication. The record in this case indicates that Ingram’s car was hit by Pettit from the rear while standing at an intersection in a well-lit area. Pettit’s car had not been moving at an excessive rate of speed, and it had not been seen to swerve or veer outside the marked lines of traffic. In fact, except for conflicting evidence as to whether Pettit applied his brakes before his vehicle struck Ingram’s, there was no indication that the operation of Pettit’s car up to the time of the accident was other than normal. This accident is before us solely because Pettit submitted to a breathalizer test which showed his blood alcohol content to be .26% on a scale where the legal presumption of intoxication arises at .10%.

Ingram claims that a jury should be allowed to consider an award of punitive damages, suggesting that a person who voluntarily intoxicates himself and then drives an automobile on the public highways of this state should be exposed to financial punishment. Her argument is based primarily upon decisions in other jurisdictions which have found voluntary intoxication to provide the willfulness necessary for an award of punitive damages. Pettit contests this notion, suggesting that the cases relied upon by Ingram involve persons whose automobiles were being driven in a manifestly careless manner prior to the liability-generating accident. He suggests further that the law of this state permits an award of punitive damages only where there is willful conduct tantamount to criminal negligence.

It has long been established that the availability of punitive damages is reserved to those kinds of cases where private injuries partake of public wrongs. The intentional infliction of harm, or a recklessness which is the result of an intentional act, authorize punishment which may deter future harm to the public by the particular party involved and by others acting similarly. Cases in this category may be likened, in general terms, to culpable negligence in criminal proceedings. The higher burden of proof in a criminal suit, however, prevents the comparison of results in similar factual situations as a means of resolving civil disputes. For this reason, Pettit’s reliance upon Smith v. State, 65 So.2d 303 (Fla.1953), is misplaced.

Our jurisprudence reflects a history of difficulty in dividing negligence into degrees. The distinctions articulated in labeling particular conduct as “simple negligence”, “culpable negligence”, “gross negligence”, and “willful and wanton misconduct” are best viewed as statements of public policy. These semantic refinements also serve a useful purpose in advising jurors of the factors to be considered in those situations where the lines are indistinct. We would deceive ourselves, however, if we viewed these distinctions as finite legal categories and permitted the characterization alone to cloud the policies they were created to foster. Our guide is not to be found in the grammar, but rather in the policy of the state in regard to highway accidents. From that perspective, we see that the courts and the Legislature have evolved the notion that drunk drivers menace the public safety and are to be discouraged by punishment. The state’s policy is supported by adequate current, factual data. In line with that policy, therefore, we hold that juries may award punitive damages where voluntary intoxication is involved in an automotive accident in Florida without regard to external proof of carelessness or abnormal driving, provided always the traditional elements for punitive liability are proved, including proximate causation and an underlying award of compensatory damages. We do not hold that intoxication coupled with negligence will always justify an award of punitive damages. We affirmatively hold that the voluntary act of driving “while intoxicated” evinces, without more, a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages if it determines liability exists for compensatory damages. In this context the term “while intoxicated” means the same as it does in criminal proceedings. It is not synonymous with “while under the influence of intoxicating liquors.” Cannon v. State, 91 Fla. 214, 107 So. 360 (1926). The term “intoxicated” is stronger than and includes the term “under the influence of intoxicating liquor.” Taylor v. State, 46 So.2d 725 (Fla.1950). As used in this opinion, the term “intoxicated” is identical to the degree of intoxication required in Section 860.01, Florida Statutes (1975), pertaining to automobile manslaughter.

Florida courts have recognized that an automobile on the highway is a dangerous instrumentality. Its dangerous propensities are heightened when operated by a person who is, by definition, incapable of exercising vigilance and caution.

Judicial attempts to protect Florida citizens from drunk driving dangers have paralleled like efforts in the Legislature. Our Legislature has enacted progressively more harsh criminal laws directed at drunkenness. Today it is illegal to drive an automobile in the State of Florida if blood alcohol content is .10% or more, regardless of proof as to the driver’s carelessness. Drinking to the point of intoxication is a voluntary act. Driving in an intoxicated condition is an intentional act which creates known risks to the public. We believe that the potentiality of an adverse award of punitive damages is a suitable corollary to those criminal laws designed to discourage this reckless disregard for the public safety.

The decision of the district court is quashed and the trial court is directed to submit the issue of punitive damages to a jury-

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

SUNDBERG, J., dissents with an opinion.

SUNDBERG, Justice

(dissenting).

I must respectfully dissent from the majority opinion in this case. Today the majority has discarded literally hundreds of years of jurisprudence developed in the law of torts. Not only are the painstakingly developed concepts of “simple negligence”, “gross negligence”, “culpable negligence”, “willful and wanton misconduct” spurned, but the bedrock concept of liability predicated on fault which has evolved carefully in the law of torts is dismissed. In cases where an accident involving an intoxicated driver is concerned, the injured party need only prove the accident, provide evidence of intoxication and, thereupon, the driver will be subject to assessment of punitive damages. This is strict liability, not only for compensatory damages, but for exemplary damages. The intoxicated driver becomes an insurer, to the full extent of punitive damages, irrespective of any showing that his conduct in the operation of the automobile fell below that standard of care which is expected of a reasonable, prudent man under similar circumstances. To quote, “. . .we hold that juries may award punitive damages where voluntary intoxication is involved in an automotive accident in Florida without regard to external proof of carelessness or abnormal driving . . ” (emphasis supplied).

This extraordinary position is justified by the assertion that the Legislature has enacted progressively harsher criminal penalties for drunken driving. Such a trend by the Legislature, as pointed out in footnote 12 to the opinion, is obvious. It is the Legislature’s prerogative, even duty, to respond on behalf of the public in Florida to known dangers inherent in operating an automobile while intoxicated, through the enactment of penal laws. Notwithstanding the concept that punitive damages in tort law are premised upon the idea of punishment as an example to others, the guiding principle in this area of law always has been that liability should be predicated upon fault. In an active and vibrant society accidents are bound to occur. The philosophical decision was long ago made, and I believe rightly, that to make one the insurer of any injury to another caused by him would inhibit the development and progress of that society. (A sure way to do nothing wrong is to do nothing at all.) Hence, there developed the principle that one should respond in damages for injury to another only in those instances where his or her conduct fails to measure up to the conduct expected of a reasonable, prudent person acting under similar circumstances. True, this concept has been tempered over the years with the advent of workmen’s compensation and like programs for the benefit of employees who enjoy a disparate bargaining and economic position and most recently, to a limited extent, in the instance of no-fault insurance laws. But in each instance this has been accomplished through acts of the Legislature.

The majority opinion extends the strict liability concept to the recovery of punitive damages, but says that the traditional elements such as proximate causation and an underlying award of compensatory damages must still be proved. But what does this mean — that the accident caused injury or that the intoxication, without more, caused the accident to occur? If the latter, then the position is untenable in a situation such as we have at bar where there is no evidence at all that the intoxication caused any irregularities in the operation of the vehicle. If the former, then, notwithstanding the lip service paid to it, the concept of proximate causation has gone by the boards.

Classically, in the law of torts, it is substandard conduct in the performance or non-performance of an act which subjects the actor to liability for compensatory damages. If the conduct of an individual in operating an automobile is not otherwise substandard, evidence of intoxication on the part of that individual, in and of itself, logically cannot convert the conduct into a category which will permit recovery of punitive damages without totally emasculating the principle of proximate causation.

Without explicating it, the majority has today, at the very least, overruled the well-reasoned decision in Carraway v. Revell, 116 So.2d 16 (Fla.1959), in which it was held “ ‘that the character of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages’ Carraway v. Revell, supra, at 20. In the earlier case of Miller v. State, 75 So.2d 312 (Fla.1954), Mr. Justice Drew characterized the conduct necessary to sustain a conviction for manslaughter in the following terms:

“The culpable conduct necessary to sustain proof of manslaughter under Section 782.07, supra, ‘must be of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them." ’ ” (pp. 313, 314)

The majority opines that Pettit may not rely upon cases decided under the culpable negligence manslaughter statute because of the higher burden of proof in a criminal action. It is submitted, however, that the only distinction between the two cases lies in the quantum of proof required for a conviction under the criminal statute. The character of conduct proscribed is the same in manslaughter actions as in tort actions seeking recovery of punitive damages. Cases under the manslaughter statute have consistently held that excessive speed alone, or some other single act of simple negligence, coupled with evidence of intoxication is not sufficient to constitute culpable negligence necessary for conviction. See Smith v. State, 65 So.2d 303 (Fla.1953); Fowlkes v. State, 100 So.2d 826 (3d D.C.A.Fla.1957); Jackson v. State, 100 So.2d 839 (1st D.C.A. Fla.1958); Peel v. State, 291 So.2d 226 (1st D.C.A.Fla.1974). In its opinion the majority has eliminated even the necessity for a single separate act of simple negligence where evidence of intoxication is present.

Another indication that the majority has gone astray appears in its statement:

. . We affirmatively hold that the voluntary act of driving ‘while intoxicated’ evinces, without more, a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages if it determines liability exists for compensatory damages.” (Emphasis supplied)

I suggest that the law of torts as it has been carefully developed over the years permits an award of punitive damages in personal injury cases involving vehicles where reckless conduct is involved, not reckless attitude. See Carraway v. Revell, supra.

The public policy arguments of the majority are enticing. There can be no question that drunk drivers endanger the lives of citizens of our state. But the Legislature can and has dealt with this problem through enactment of criminal statutes. The Legislature is the appropriate body to assert the public policy of Florida in this regard. That body having done so, it is unnecessary and improvident to cast aside a body of law which has evolved carefully through generations of legal thought and decisions. The majority in furtherance of a commendable social policy has thrown out the proverbial baby with the proverbial bath water.

I would discharge the writ of certiorari.

      . Ingram v. Pettit, 303 So.2d 703 (1st DCA Fla. 1974).

      . Fla.Const. art. V, § 3(b)(3). The district court’s decision is in direct conflict with Busser v. Sabatasso, 143 So.2d 532 (3d DCA Fla. 1962).

      . Section 322.262(2)(c), Fla.Stat. (1973). This presumption applies “upon the trial of any civil action . . arising out of acts alleged to have been committed by any person while driving ... a vehicle while under the influence of alcoholic beverages to the extent that . . . normal faculties were impaired.”

      . Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (1970); Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841 (Iowa 1954); Colligan v. Fera, 76 Misc.2d 22, 349 N.Y.S.2d 306 (Sup.Ct.1973).

      .See, Carraway v. Revell, 116 So.2d 16, 20 (Fla.1959); State v. Smith, 65 So.2d 303 (Fla.1953). Pettit also relies upon Frazee v. Gillespie, 98 Fla. 582, 124 So. 6 (1929), for the proposition that driving while intoxicated does not alone constitute negligence in Florida, much less gross negligence sufficient to justify punitive damages. Reliance on Frazee is not possible, however, as the Court was equally divided on the issue and made no decision. The debate begun in that case was resolved in Allen v. Hooper, 126 Fla. 458, 171 So. 513 (1937), where we held the violation of a traffic law to raise a rebuttable presumption of negligence. This principle was reaffirmed in Clark v. Sumner, 72 So.2d 375 (Fla.1954).

      . Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 11 So. 506, 513 (1892).

      . See, Carraway v. Revell, 116 So.2d 16, 19-20 (Fla.1959); Bridges v. Speer, 79 So.2d 679, 682 (Fla.1955).

      . Farrey v. Bettendorf, 96 So.2d 889, 895 (Fla.1957).

      . The most recent report of the Florida Department of Highway Safety and Motor Vehicles shows that in 1974 drinking was a contributing cause in 24,869 automotive accidents within Florida. Department of Highway Safety and Motor Vehicles, Traffic Accident Facts 3 (1975). The Florida Highway Patrol reports 570 deaths, and 18,703 injuries from the same cause for the same period. Florida Highway Patrol, Accident Records Section, Special Study Alcohol Involvement in Traffic Accidents 1972-74 (1975).

      .The term “intoxication” is defined in Fla. Std.Jury Instr. in Crim.Cases, Manslaughter-DWI, 84 (1975), as follows:
      “ ‘Intoxication’ means more than merely being under the influence of intoxicating liquor. As used in these charges, intoxication means that the defendant must have been so affected from the drinking of intoxicating liquor as to have lost or been deprived of the normal control of either his body or his mental faculties, or both. Intoxication is synonymous with ‘drunk.’ ”

      . Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). See, Comment, The Dangerous Instrumentality Doctrine: Unique Automobile Law In Florida, 5 U.Fla.L.Rev. 412 (1952).

      . The first drunk driving statute was enacted in 1915. Ch. 6882, Laws of Florida (1915). It provided that persons operating “an automobile in the State of Florida who are at the time intoxicated” are guilty of a misdemeanor, then punishable by a fine not to exceed $200 and/or imprisonment not exceeding 90 days. Section 3176a, Fla.Comp.Laws (1914). In 1923 the statute was expanded to prohibit driving any powered vehicle while intoxicated or under the influence of intoxicating liquor, and three categories of guilt were established. Mere drunk driving became punishable by a penalty ranging from $100 to $250 or imprisonment up to 60 days and license suspension for six months. If property damage or personal injury were caused, the penalty ranged from three to six months imprisonment with a $500 fine and one year license suspension. If a death occurred, the person was deemed guilty of manslaughter. Ch. 9269, Laws of Florida (1923).
      In 1927 the non-financial penalty for drunk driving causing property damage or injury was increased to a range of three months to 12 months imprisonment. Ch. 11809, Laws of Florida (1927). In 1941, revocation of a driver’s license became a mandatory administrative duty of the Department of Public Safety. Ch. 20451, Laws of Florida (1941). That duty exists today. Section 322.26, Fla.Stat. (1973).
      In 1943, the minimum financial penalty for mere drunk driving was reduced to $25.00 and a series of harsher punishments were developed for habitual offenders. Ch. 22000, Laws of Florida (1943) (incorporating Section 317.20, Fla.Stat. (1941). In 1959, penalties were again increased. Chapter 59-94, Laws of Florida (1959). (Code revisions replaced Section 317.-20 with Section 317.201, which now appears as Section 316.028, Fla.Stat. (1973).
      In 1967 the Legislature conditioned the right to use public highways on consent to undergo tests for blood alcohol content upon demand of a police officer having reasonable grounds to believe the vehicle is being driven while under the influence of alcohol. It also declared that blood alcohol content of .10% raised a presumption that the person was under the influence of alcohol. Ch. 67-308, Laws of Florida (1967).
      In 1971, the penalty for causing damage to property or personal injury while driving under the influence of alcohol was raised to a first degree misdemeanor, punishable by up to one year in county jail and a $1,000 fine. Ch. 71-136, Laws of Florida (1971) (incorporating, the penalties appearing in Sections 775.082 and 775.083, Fla.Stat. (1971).
      In 1974 the Legislature increased the penalties on subsequent offenders and made it illegal to drive with a blood alcohol level of .10% or more. This new crime is punishable by 90 days in jail and a $250 fine, with subsequent offenders subject to penalties as high as 12 months in jail and a $500 fine. Section 316.028, Fla.Stat. (Supp.1974). Further, the law was amended to provide a minimum 30 days driver’s license revocation for persons violating the amended Section 316.028, and to increase the period of revocation for driving under the influence of alcohol to a range of 90 days to one year. Section 322.28, Fla.Stat. (Supp.1974). Section 322.281, Fla.Stat. (Supp.1974), was also enacted both to deny courts the power to withhold adjudication of guilt in cases involving drinking drivers and to prohibit acceptance of guilty pleas to any lesser offense where blood alcohol content is .20% or more. Ch. 74-384, Laws of Florida (1974).

      .Section 316.028(3), Fla.Stat. (Supp.1974).


author: PER CURIAM.

text:
    Darryl FARMER, Petitioner, v. STATE of Florida, Respondent.
    No. 49036.
    Supreme Court of Florida.
    Dec. 16, 1976.
    Richard S. Rhodes, Orlando, for petitioner.

      Robert L. Shevin, Atty. Gen., and Richard P. Zaretsky, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. The Writ was issued, and upon further examination of the record and briefs, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Marlene SILVESTRI, Respondent.
    No. 49751.
    Supreme Court of Florida.
    Dec. 16, 1976.
    Robert L. Shevin, Atty. Gen., and Anthony J. Golden, Asst. Atty. Gen., for petitioner.
    Robert L. Saylor, North Palm Beach, for respondent.
   PER CURIAM.

This case is before the Court on a Petition for Writ of Certiorari to the District Court of Appeal, Fourth District, 332 So.2d 351.

The Court is of the opinion that the Petition for Writ of Certiorari should be and is hereby granted, the filing of briefs on the merits is dispensed with and the decision of the District Court of Appeal is hereby approved on the authority of King v. State of Florida, Fla., 339 So.2d 172, opinion filed October 7, 1976.

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