text:
    TRAX, INC., a corporation v. John P. TIDMORE et al.
    SC 1473.
    Supreme Court of Alabama.
    April 23, 1976.
    Edwin K. Livingston and Drayton N. Hamilton Montgomery, for appellant.
    J. Garrison Thompson, Selma, for appel-lees.
   MERRILL, Justice.

This appeal is from a judgment in favor of defendants on their counterclaim to a suit in detinue. We reverse the judgment.

Appellant, Trax, Inc. (hereinafter Trax), filed a complaint, Count One in detinue, Count Two for conversion, of a Caterpillar tractor. The alternative value was stated to be $9,130.19. After filing the proper bond, and after a hearing, Trax, acting under the trial court’s writ of seizure, took possession of the tractor pending trial. Defendants (hereinafter Tidmore) filed an answer and counterclaim. The counterclaim also claimed the right of possession and charged conversion of the tractor.

The jury found in favor of Tidmore for property sued for, or its alternative value of $22,000.00, plus $5,000.00 damages, for unlawful detention and breach of warranty. Appellant filed a motion for new trial which was denied.

Appellees, John and Cary Tidmore, brothers, owned three tractors. These tractors were subject to a mortgage held by Thorpe Sales Corporation, of Mississippi. Thorpe was threatening to foreclose. John Tidmore persuaded appellant to pay off the mortgage. Trax paid “in the neighborhood of sixteen thousand dollars for the three pieces.” Under the agreement made between Tidmore and Trax, Tid-more was given an option to buy back the three tractors within a 180-day period at specified prices plus hauling, repairs and interest. If Trax sold any of the tractors during the option period, Tidmore was to be paid an agreed upon sum by Trax for relinquishment of the option to buy.

Tidmore bought back one of his former tractors; Trax sold one. The remaining tractor, a Caterpillar D8H, serial number 46A7799, is the subject of this lawsuit. It seems that John Tidmore called Trax to see if he could rent the D8H so that Cary could build some catfish lakes. Trax agreed to repair the tractor (it had a faulty crankshaft and an oil leak, among other infirmities) and received the first month’s rent from Tidmore. No more rental payments were received by Trax. Also, Tid-more failed to pay insurance charges and shipping charges itemized by Trax on the first month’s invoice, which also itemized the rent.

A year later, Tidmore asked Trax for a bill for the tractor. Up until the time, John had maintained that he was only interested in renting the tractor. The bill sent by appellant was in the amount of $5,612.47— the sum of repairs made to the tractor. Trax explained to John that if Tidmore bought the tractor they had to pay the repair bill, but if they rented it they would not be responsible for the repairs.

Tidmore questioned the correctness of the repair bills, so Trax sought estimates from two other Caterpillar dealers. (The estimates were comparable.) Trax sent the estimates to Tidmore and reminded them that if they chose to buy the D8H, they would be liable on the repair bill. Tidmore made no attempt to pay the repair bill, pay the rent, or purchase the tractor. Finally, in December, 1973, fifteen months after the rental agreement was made, Trax initiated the detinue action. The trial followed, and the verdict was in favor of Tidmore on their counterclaim. Trax’s motion for new trial was denied. Counsel on appeal for Trax is different from Trax’s trial counsel.

Five assignments of error are argued by Trax. Since this judgment is to be reversed, we write to only one, that being the question of implied warranty.

There is a definite question of fact as to whether there ever was a sale of the tractor from Trax to Tidmore, but the jury had to find that there was a sale in order to find for Tidmore on the counterclaim. This opinion is written on the basis that there was a sale, but the question of sale remains open in the event of another trial.

Trax, by objections during the trial and in its motion for a new trial, raised the issue that there was no question of an implied warranty in the case. Tidmore contends that there was an implied warranty under the Uniform Commercial Code, § 2-314. We cannot agree.

The UCC, § 2-313(1)(b), provides that “Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” There is no contention that this express warranty was breached. The tractor involved in this suit was the tractor described. This is different from the former Uniform Sales Act which provided that “While the Uniform Sales Act spoke of a sale by description as giving an implied warranty, the Uniform Commercial Code treats such a sale by description as an express, not an implied, warranty.” 67 Am.Jur.2d, Sales, § 449, p. 615.

The law in Alabama regarding sales of used or second-hand vehicles was stated in Kilborn v. Henderson, 37 Ala.App. 173, 65 So.2d 533 (1953): “The general rule is that there is no implied warranty of the quality or condition of a used automobile and the rule of caveat emptor applies.” The UCC became effective in this state at midnight, December 31, 1966. We are aware of no appellate cases in Alabama dealing with implied warranties on the sale of used motor vehicles, as is the case here, under UCC. The following statement appears in 22 A.L.R.3d 1401 in the annotation “Used Motor Vehicle—Implied Warranty.” “No case has been found so far in which the provisions of the Uniform Commercial Code were applied to questions relating to the liability of a seller on implied warranties in the sale of a used motor vehicle.”

The Official Comment on § 2-314 states that “A contract for the sale of secondhand goods, however, involves only such obligation as is appropriate to such goods for that is their contract description.” We list a case where an implied warranty was applied to the sale of used automobiles. In Overland Bond and Investment Corp. v. Howard, 9 Ill.App.3d 348, 292 N.E.2d 168 (1972), the court after discussing the probability that § 2-314 was “inapplicable to used car sales,” held that § 2-315 is not applicable to the instant case.

Anderson, 1 Uniform Commercial Code, § 2-314:104 (2d Ed. 1971), states in part as follows:

“The fact that the subject of the contract for sale is secondhand goods does not in itself preclude the existence of a warranty of merchantability, although this fact is to be considered in determining what the actual intent of the parties was.
“Although there is a conflict of authority, it is the general rule that there is no implied warranty as to the condition, adaptation, or suitability for the purpose for which made or the quality of an article sold as and for a secondhand article.”

We make no attempt to set out any broad principles to govern implied warranties in the ordinary sales of used motor vehicles in the future. We hold only that there was no implied warranty connected with the transaction in this particular case. The facts here are unique. Tidmore had owned the tractor, used it, and knew much more of its quality and condition than did Trax. Tidmore persuaded Trax to purchase it by paying off the mortgage on it and two others Tidmore had owned and used. Tid-more either rented or purchased the tractor from Trax after Trax had repaired it.

There could be no implied warranty under § 2-315 because there was no evidence that the buyer (or renter) Tidmore was “relying on the seller’s skill or judgment to select or furnish suitable goods.” Here, the Tidmores selected the tractor they wanted, and John Tidmore testified that his brother Cary needed to rent a tractor to build some catfish ponds:

“ * * * And I said, ‘Cary, you might as well rent this D-8, or buy it back and we can get it back for five thousand dollars and do some work on it and you can go ahead and build the lakes and then sell the thing’. That is what we agreed to do and Cary said he would do it.
“Q Did you contact Mr. McCondichie?
“A I did and told him what we wanted to do and how we had talked about getting' it back that way and he said the engine needed some repair on it and I was busy and Cary was busy and didn’t have time to do it and I asked him would he do the repairs on the engine, he agreed to do it.”

It is evident that Tidmore did the selecting of the tractor without any reliance on Trax.

The trial court erred to reversal in submitting the issue of implied warranty to the jury.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    ROBERTSON BANKING CO., a Banking Corporation, et al. v. Ladean EBERSOLE.
    SC 1446.
    Supreme Court of Alabama.
    April 16, 1976.
    W. W. Dinning, Demopolis, for appellants.
    No brief for appellee.
   SHORES, Justice.

This appeal is from a judgment granting the defendant’s motion for new trial.

The plaintiff bank and Mrs. McClusky, as executrix under the will of Mrs. Fannie Settoon, brought an action for declaratory-judgment seeking a determination of ownership of funds in the bank in the name of Mrs. Fannie DeSear Settoon, deceased. Mrs. Settoon, during her lifetime, had placed money in a savings account in the bank in the name of Mrs. Ebersole, her niece. Mrs. Settoon retained the passbook. Thereafter, Mrs. Settoon had her name added to the account and, even later, had Mrs. Eber-sole’s name removed from the account. Mrs. Settoon at all times retained the passbook; and it was in her possession at the time of her death.

The bank and executrix asked for a determination of ownership of these funds, i. e., whether Mrs. Ebersole was entitled to them by way of an inter vivos gift, or whether the funds were a part of the estate.

The case was tried to a jury, which returned a verdict in favor of the executrix. It should be noted, however, that the form of the verdict was “We, the jury, find the issues in favor of the Plaintiff, Joyce Mc-Clusky, in the amount of “$ Full Amount.”

Mrs. Ebersole filed a motion for new trial raising some six grounds, among them, that the verdict was contrary to the law and the evidence; and that the verdict was defective in that the jury did not state the amount of the verdict in favor of-the executrix.

The trial court heard arguments of counsel on the motion for new trial, but took no evidence; hence Title 7, § 764(B), requiring the evidence on motion for new trials to be reduced to writing by the court reporter, has no application, contrary to the contentions of the appellants here.

We have repeatedly said that when a trial court grants a motion for new trial and does not specify what ground such judgment is based on, its ruling must be sustained on appeal if the motion contains any good ground. Johnson v. Hodge, 291 Ala. 142,279 So.2d 123 (1973); Shepherd v. Southern Ry. Co., 288 Ala. 50, 256 So.2d 883 (1970); City of Tuscaloosa v. Townsend, 274 Ala. 268, 147 So.2d 824 (1962).

It has also been said many times that granting or refusing a motion for new trial rests largely in the discretion of the trial court; and such exercise of that discretion carries with it a presumption of correctness and should not be disturbed at the appellate level unless some legal right was abused and the record plainly and palpably shows that the trial court was in error. Johnson v. Hodge, supra; Whitman v. Housing Authority of City of Elba, 272 Ala. 245, 130 So.2d 362 (1961).

We have carefully reviewed the evidence in this case; and, while we find ourselves in agreement with the argument of appellants that there was abundant evidence to support the jury verdict in favor of the executrix, we cannot say that the trial court abused its discretion in granting the motion for new trial based upon other grounds in the motion, particularly since the verdict was somewhat irregular since it referred to the “Full Amount.” Did this mean the full amount involved at- the time the suit was filed or the amount on deposit in Mrs. Settoon’s account at the time of the verdict? The amounts differed.

Finding no error to reverse, the cause is affirmed.

Affirmed.

HEFLIN, €. J., and MERRILL, MADDOX and JONES, JJ., concur.


author: BRADLEY, Judge.

text:
    VULCAN LIFE INSURANCE CO. and Life Insurance Co. of Georgia v. Doris Y. McDUFFIE.
    Civ. 624.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1976.
    Rehearing Denied March 17, 1976.

      Holberg, Tully, Holberg & Morgan, Mobile, for appellants.
    Johnston, Johnston & Kendall, Mobile, for appellee.
   BRADLEY, Judge.

James Harold McDuffie was shot to death on October 13, 1972. On November 8, 1974 his widow, Doris Y. McDuffie, filed this action in the Circuit Court of Mobile County against defendants Vulcan Life Insurance Company and Life Insurance Company of Georgia. Her complaint alleged that defendants had insured the life of her husband against accidental death in amounts totalling $4,500; that such policies were in force on the date of insured’s death; that plaintiff is the beneficiary of those policies; and that the insured’s death was accidental.

In their answers both insurers admitted that the policies were in effect on the date of insured’s death. Both companies denied that the death was “accidental” under the specific terms of the respective policies; both also pleaded accord and satisfaction based on purported releases executed by plaintiff on the 19th and 25th of October, 1972.

Trial was had before a jury. Defendants moved for directed verdict at the conclusion of plaintiff’s evidence and at the conclusion of all the evidence. Both motions were denied and the jury rendered a verdict for plaintiff in the amount of $4,-500. Motion for new trial was denied and this appeal resulted.

The facts show that plaintiff’s husband obtained three life insurance .policies from defendant Life Insurance Company of Georgia. These policies provided that the insurer would pay twice the face amount if the insured lost his life by external and accidental means. Under “Exceptions and Limitations,” the policies provided that no accidental benefit would be paid if death was due to injuries occurring while insured was committing or attempting to commit an illegal act, or to “injuries intentionally inflicted upon the insured either by himself or by another person.”

The insured also had in force at the time of his death, three life policies issued by defendant Vulcan Life Insurance Company. These policies also provided for double accidental death benefits. Accidental death was defined in the policies as death due to accidental injury, which was in turn defined as “any bodily injury effected solely through violent, external and accidental means.” The Vulcan policies also provided that no accidental death benefit would be paid should death result wholly or in part while insured was committing or attempting to commit an assault or felony or if his injuries were “intentionally inflicted by another person.”

Defendants’ first motion for directed verdict came at the close of plaintiff’s case. This motion was denied. Defendants then put on their own evidence, and, under federal authority, thereby waived any possible error in the denial of the motion, Hansen v. Boyd, 161 U.S. 397, 16 S.Ct. 571, 40 L.Ed. 746. This conclusion is consistent with the principle in Alabama that plaintiff is entitled to any favorable inferences to be drawn from defendant’s evidence, Stewart Bros. v. Ransom, 200 Ala. 304, 76 So. 70. In the instant case, defendants made a second motion for directed verdict at the close of all the evidence. In ruling on this latter motion, the trial court must consider the evidence introduced 'by both parties to determine whether the case is for the jury, Auto Transport v. Potter, 197 F.2d 907 (8 Cir.1952). Applying this analysis, we hold that the trial court erred in denying the second motion for directed verdict.

At the close of plaintiff’s case the insurance policies themselves and a coroner’s certificate that Mr. McDuffie had died as a result of homicide constituted all of the evidence introduced relating to cause of death. With the evidence in this posture, plaintiff had made out a prima facie case of accidental death.

In Provident Life & Accident Ins. Co. v. Hanna, 294 Ala. 37, 311 So.2d 294, the supreme court quoted the following statement from O’Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580 which promulgates the test for determining whether a death is accidental:

“To constitute an accidental death, it must have resulted from something unforeseen, unexpected, and unusual. Carroll v. Fidelity, etc., Co., supra, [4 Cir., 137 F. 1012], or ‘which happens as by chance, or which does not take place according to the usual course of things,’ or ‘without foresight or expectation’ or ‘by reason of some violence, casualty, or vis major to the assured, without his design or consent or voluntary cooperation.’ Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201, 206, 9 So. 869, 870, 13 L.R.A. 267.”

And in Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 130 So.2d 178, our supreme court adopted the following language from Mutual Life Ins. Co. of New York v. Sargent, 51 F.2d 4 (5th Cir. 1931):

“Upon the matter of proof it is the law, though there are one or two authorities contra [citing cases], that while the burden is upon plaintiff in cases of this kind to prove death resulting from external, violent and accidental means, proof without more that insured was killed by another raises the presumption that death was accidental, and makes out a prima facie case in the absence of evidence to the contrary. [Citing cases.]”

The coroner’s certificate in this instance is presumptive evidence that insured was killed by another person, United Security Life Ins. Co. v. Clark, 40 Ala.App. 542, 115 So.2d 911, cert. den. 271 Ala. 700, 123 So.2d 19. Under the above-quoted tests for establishing accidental death, the coroner’s certificate satisfied plantiff’s initial burden of proof.

Furthermore, the certificate alone does not show that defendants’ exclusionary clauses are applicable.

The word “homicide” appearing on the certificate does not equate with the intentional infliction of fatal injury on which the policy exclusions are based. Title 14, § 320, Code of Alabama 1940, establishes the crime of second-degree manslaughter : it is not a crime requiring intent to kill, Duncan v. State, 30 Ala.App. 356, 6 So.2d 450, cert. den. 242 Ala. 329, 6 So.2d 454, yet it is a “homicide”, subsumed under that rubric by its placement in Chapter 49, Title 14 of the Alabama Code. Viewed in its statutory context, the coroner’s report leaves open the possibility that the insured died as the result of an unintended act of another person. The defendants’ first motion for directed verdict was therefore properly denied, defendants’ waiver of this issue notwithstanding.

The defendant insurance companies then had the burden of establishing that the insured’s death was not to be treated as accidental. Under the express terms of the policies this could be accomplished by showing that death was the result of injury intentionally inflicted by another.

The evidence for the defendants consisted of the testimony of Mr. and Mrs. Benjamin Miller, the only eyewitnesses to the insured’s death. Their uncontradicted testimony revealed the following:

On October 13, 1972 insured left his home to visit a friend—an elderly woman confined to a wheelchair. During the time that insured was at the friend’s house, her daughter and her daughter’s husband, Mr. and Mrs. Benjamin Miller, came in and went to a bedroom. Mrs. Miller stated that she was not feeling well and wanted to lie down. She and her husband went to their bedroom and, according to his testimony, Mr. Miller was sitting on the edge of the bed on which his wife was reclining when in walked the insured. The insured sat down in a chair that he had brought with him and started to make lewd and suggestive remarks to Mrs. Miller. According to testimony of both Mr. and Mrs. Miller, they asked the insured to shut up and go back to the kitchen where her mama was sitting and leave them alone. Insured refused and was then told that if he not shut up and leave, they would call the police.

Upon insured’s failure to comply with their request to leave, the couple got up to go call the police. As Mrs. Miller, who was walking in front of her husband, approached the bedroom doorway, the insured picked up the chair in which he was sitting and struck her across the back, knocking her into a stereo and TV sitting next to the doorway. As she was getting up, she took a .22 caliber revolver out from under the stereo and fired once into the ceiling. As Mrs. Miller stood up, the insured struck her again with the chair, knocking her down. As she was getting up the second time, she fired the pistol into the door. Mr. Miller then told insured not to hit his wife again. The insured once more drew back the chair as if to strike her, and Mr. Miller took the gun out of his wife’s hand and shot the insured in the chest. The insured was dead on arrival at the hospital. Mr. and Mrs. Miller were the only witnesses to the altercation. This uncontradicted evidence established that insured’s death was intentionally caused by Benjamin Miller. With this proof, the defendants had met their burden of showing that the death was excluded from coverage as an accidental death.

The burden then shifted back to the plaintiff to go forward with evidence which would cast doubt on or explain defendants’ evidence in a manner consistent with an inference that the death was accidental :

“ ‘If however, defendant makes proof that the death occurred as the result of an affray or an encounter, then it is incumbent upon the deceased (this should read ‘plaintiff’) to take the initiative again and show by other evidence that the death was accidental. [Citing cases] . In each case if there is any issue of fact as to how the matter occurred, and as to what ought to have reasonably been expected as likely to ensue, the matter is for the jury. [Citing cases].”’ Aetna Life Insurance Company v. Beasley, supra.

Plaintiff failed to meet this burden. There was no further proof on plaintiff’s part showing or attempting to show that death resulted from accidental means; therefore the uncontradicted evidence showed that death was intentionally inflicted, and plaintiff failed to carry its burden of proving that insured’s death was an accident. As a matter of fact, the sum total of all the evidence both for plaintiff and defendants proved that insured died as a result of injuries intentionally inflicted by another person. In such a case there is no room for the jury to draw a contrary inference, Woodward Iron Co. v. Goolsby, 242 Ala. 329, 6 So.2d 11. Defendants’ motion for directed verdict at the close of all the evidence should have been granted.

There being error in the denial of defendants’ second motion for directed verdict, the judgment below is reversed and the case remanded to the trial court for entry of a verdict and judgment consistent with our present opinion.

REVERSED AND REMANDED.

WRIGHT, P. J., and HOLMES, J., concur.


author: ALMON, Justice.

text:
    In re VULCAN LIFE INSURANCE COMPANY and Life Insurance Company of Georgia v. Doris Y. McDUFFIE. Ex parte Doris Y. McDUFFIE.
    SC 1792.
    Supreme Court of Alabama.
    April 30, 1976.
    Robert G. Kendall, Mobile, for petitioner.
    Jack W. Morgan, Mobile, for respondent.
   ALMON, Justice.

Petition of Doris Y. McDuffie for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Vulcan Life Insurance Co. v. McDuffie, 57 Ala.App. —, 331 So.2d 280.

Writ Denied.

BLOODWORTH, FAULKNER, SHORES and EMBRY, JJ., concur.


author: HARRIS, Judge.

text:
    Harold LAWRENCE v. STATE.
    4 Div. 418.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.

      J. M. Albritton, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of buying, receiving, concealing or aiding in concealing one .357 Magnum pistol of the value of $175.00, the personal property of Jack Jam-bón, knowing that the same had been stolen or having reasonable grounds for believing that it had been stolen, and not having the intent to restore it to the owner. He was represented at arraignment and trial by court-appointed counsel. He pleaded not guilty. After conviction he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

Jack Jambón testified that he lived in Gallion, Louisiana and that on December 12, 1974, he was engaged in the business of operating a restaurant and lounge. That his place of business was broken into and the burglar or burglars took a 30-30 Winchester rifle, a .357 Magnum, a watch and $800.00 in cash. He stated he gave no one permission to enter his place and remove this property. He further testified that the serial number of the pistol was 3205745. He was shown the pistol during the trial and identified it as his Magnum and the same was introduced in evidence. He stated the fair market value of the pistol was $175.00.

On cross-examination he said he could recognize the pistol without reference to the serial number. He stated that a person whose first name he knew brought the pistol to him and said he needed some money to put in his bank account and he advanced $150.00 to this man and took the pistol as security for this loan. He said he knew one of the men who broke in his place and there were three or four from Alabama. He stated he had never seen appellant before he came to Alabama for this trial.

Auburn McGraw, a Deputy Sheriff of Covington County, testified that he received a telephone call from DeFuniak Springs, Florida and the caller identified himself as Fred Alford. Alford told him he had a .357 Magnum that he wanted to turn in. McGraw stated that Alford turned the pistol in to him and he kept it under lock and key until the date of appellant’s trial. He identified the pistol in court.

Fred Alford testified that he lived in Opp, Alabama and he called Deputy Sheriff McGraw and told him he had a .357 Magnum he wanted to turn over to him and that he did give the pistol to the Deputy. He further testified that appellant brought this pistol to him and tried to sell it to him but he told appellant he didn’t need it, that it was too big a gun. That appellant told him he was overdrawn at the bank and needed some cash. Alford told appellant he would loan him $100.00 and hold the pistol. He said that after he loaned appellant the $100.00 and took the pistol, he learned that the Sheriff’s Department was looking for the pistol. He stated that he was in DeFuniak Springs and his son and appellant called him and said the Sheriff was looking for the pistol. Alford called the Sheriff and he was out of his office and he talked to Deputy McGraw and McGraw told him that the pistol had been reported stolen. Following this conversation the pistol was subsequently surrendered to Deputy McGraw.

On cross-examination he testified that he had known appellant for about twenty years and knew he was in the refrigeration business and had done several jobs for him on his trailer and mobile home. That at one time appellant lived in one of his mobile homes and gave him a check for the rent and the check bounced.

On re-direct, examination Mr. Alford stated that appellant pawned the gun to him at 106 West Stewart Avenue, Opp, Alabama, in Covington County. That this was his mother’s home who had died recently and he was there to clean up the place and take things out of the freezer.

Mr. Don Harrell, Deputy Sheriff of Covington County, testified that in December of 1974 and January 1975, he was assigned to investigate the theft of some articles in Louisiana that were reported to have been stolen by some men from Alabama. He went to Opp looking for appellant and learned that he was in Green Bay. He left Opp for Green Bay accompanied by a Deputy Sheriff, Sgt. Galbana, of the La-fourche Parrish, Louisiana. They found appellant in a Green Bay store and he came out to the car and Deputy Harrell placed him under arrest. Mr. Harrell gave the appellant the Miranda rights and warnings by reading them from a card. Appellant responded by saying he understood his rights.

The pre-Miranda predicate was laid showing that no promises, threats, rewards or any other type of inducements, were made by the officers to get appellant to make a statement. Deputy Harrell then asked appellant about the .350 Magnum pistol and appellant said “Don, you all need to help me,” and Harrell told him that the best way he could help himself was to come up with that pistol. Appellant then said Fred Alford had it. They went to Alford’s trailer and knocked on the door but no one answered the door. They then returned to Andalusia.

Deputy Harrell further testified that his investigation revealed that one Lavonne Mason at one time had possession of the pistol and had been indicted about the same pistol.

Sergeant Anthony Wilson Galbana, Jr., testified that he was in the car with Deputy Harrell when they went to the store in Green Bay. That appellant came out the store and Deputy Harrell told him he was under arrest for receiving stolen goods and gave appellant the Miranda rights in his presence by reading from a card he had in his possession. On the way to Opp to try to find Mr. Alford, appellant kept asking Harrell to help him and Harrell kept telling him if he wanted help himself, he had better come up with the pistol.

Galbana further testified that appellant discussed the pistol and made the statement that he knew the pistol was hot and he paid $20.00 for it and being a hot pistol is the reason he paid such a small price for it. He stated that he was not sure that Deputy Harrell was present in the car when appellant made this statement as he got out of the car at Alford’s trailer house looking for him and he was gone about five minutes.

On cross-examination this witness was asked if he knew what relation David Mason was to Lavonne Mason and he said they were brothers. He was asked if Lavonne Mason was in Louisiana on the burglary and said, “No, sir, as far as we found out in the course of our investigation his vehicle was used,” but so far as he knew Lavonne was not in the group of four people who committed the burglary. He further stated that so far as he could recall they did not pick up Lavonne Mason at the time they picked up appellant and that to the best of his recollection Lavonne was not in the back seat with appellant at the same time when they left Green Bay for Opp.

Deputy Harrell was called for further re-direct examination and stated that on the trip from Andalusia to Opp he stopped at the Fun House located in Opp and got Lavonne Mason to go with them to Green Bay for the purpose of taking appellant into custody. On the way back he let Lavonne Mason out at the Fun House to get his car with instructions that he follow them to Andalusia.

On recross-examination Harrell testified that he got appellant’s name from Lavonne Mason. That Mason was one of his informers and that he knew Mason had been indicted in connection with the .357 Magnum, but that he had not been tried prior to appellant’s trial. He further stated that Mason was in the courthouse during appellant’s trial and he had seen him talking to the District Attorney.

The defense sought to call Lavonne Mason as an adverse witness after the State had rested its case against appellant. Mason was not called as a witness for the State. At first the Court granted the defense motion to examine Mason as an adverse witness but later changed his ruling and would not permit the defense to examine Mason as an adverse witness. This last ruling was made outside of the presence and hearing of the jury.

It must be noted that Mason was indicted for the same offense that appellant was on trial for having committed. Had he been called as a witness the Court would have been compelled to admonish him of his rights against self-incrimination and if he had declined to testify that would have ended the matter.

The general rule on this subject is stated in Am.Jur.2d, Section 3, page 28, as follows :

“In a number of instances the propriety of the court’s action in calling as its own witnesses persons who were personally present at the transaction forming the basis of the prosecution, or whose testimony was material to the issues in the case, has been upheld under the facts and circumstances shown. In some instances, accomplices and co-indictees have been held properly called as court’s witnesses, and the propriety of the trial court’s making a witness its own after the latter had commenced to testify as a witness of the prosecution, has occasionally been recognized. But while it seems that it is within the discretion of a trial judge to honor a request by the defendant that a person be called as the court’s witness, attempts to predicate error on a refusal by the trial court to grant such a request have been uniformly unsuccessful.” Emphasis supplied.

In McCullough v. State, 40 Ala.App. 309, 113 So.2d 905, this Court held that a request by the State to have the Court call an apparently reluctant witness was a matter addressed to the sound discretion of the trial court.

The converse of the above rule is equally true when the request is made by the defense. The trial court did not abuse its discretion in not permitting appellant to examine Mason as an adverse witness under the circumstances of this case.

Appellant reserved an exception to the following portion of the Court’s oral charge:

“Now our courts have said that the unexplained possession of recently stolen property is a circumstance, together with all of the evidence in the case, to which the jury may look to determine whether or not the defendant either knew that the property was stolen or had reasonable grounds to believe the property was stolen.”

The Court at the request of appellant the following written charge:

“The Court charges the Jury that under the indictment in this case, the elements must be proven by the State beyond all reasonable doubt and to a moral certainty to each and every one of you are, first, that the defendant did buy, receive or conceal or aid in concealing personal property, knowing that it had been stolen and not having the intent to restore it to the owner. Those are the elements necessary and you must believe from the evidence presented to you here, beyond all reasonable doubt and to a moral certainty, that those elements were present before you can find this- defendant guilty under the charge in the indictment.”

In Character v. State, 51 Ala.App. 589, 287 So.2d 916, this Court said:

“It is the law of this state that the unexplained possession of property does not raise the presumption that the property was stolen. There must be other evidence of the corpus delicti. When this has been shown, and the stolen property, soon after the offense, is found in possession of a person, who is unable to give a satisfactory explanation of his possession, then the jury is authorized to infer his guilt. Orr v. State, 107 Ala. 35, 18 So. 142; Buckles v. State, 291 Ala. 352, 280 So.2d 814 (1972).
“The requisite scienter for the crime of receiving stolen property may be in-’ ferred from the recent possession of stolen goods. Stanley v. State, 46 Ala.App. 542, 245 So.2d 827.
“In Buckles, supra, our Supreme Court cited with approval the following quotation from the case of Aron v. United States, 8 Cir., 382 F.2d 965, 970:
‘The doctrine that possession of recently stolen property gives a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession, is a factually sound and a necessary evidentiary rule. Without this evidentiary rule in criminal cases it would be almost impossible to consider for conviction any of the possessors or fences of stolen property unless they admitted that they knew the property to be stolen, which is an admission not likely to be forthcoming.’ ”

Appellant did not testify or offer any evidence in his behalf. He did move to exclude the State’s evidence on the ground the State failed to prove a prima facie case against appellant. This motion was overruled. Appellant requested the affirmative charge which was refused. He filed a motion for a new trial which was overruled and denied.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court held:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

Under the evidence in this case, the guilt vel non of appellant was for the jury and this Court is without warrant to disturb the verdict of the jury. Accordingly, the case is due to be affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


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

text:
    Charles Thomas CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 46530.
    Supreme Court of Florida.
    March 31, 1976.
    Rehearing Denied May 25, 1976.
    Leo A. Thomas, Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum and Magie, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   SUNDBERG, Justice.

This cause is before us on appeal from the Escambia County Court. In its order denying appellant’s motion to dismiss and granting his motion for a bill of particulars, the trial court declared that Section 798.02, Florida Statutes, is constitutional. Subsequently, a jury having found appellant to be guilty of engaging in open and gross lewdness and lascivious behavior, the court sentenced him to pay a fine in the amount of $350. This Court has jurisdiction under Article V, Section 3(b) (1), Florida Constitution.

On the weekend of July 4, 1974, there was a homosexual conclave in Pensacola, Florida. Local police officers were made aware of this event and visited bars and lounges frequented by Pensacola area homosexuals. Among these establishments was Robbie’s YumYum Tree Lounge, where appellant was employed as a waiter. At approximately 2:00 a. m. on July 6, 1974, two of four undercover agents who had been in the YumYum Tree for some two hours saw appellant fondle one Jeffries, a patron; both Campbell and Jeffries were arrested for violating Section 798.02, Florida Statutes.

At trial, there was evidence that appellant fondled the fully-clothed Jeffries in the pubic area for some five seconds with his right hand while holding aloft a tray full of glasses with his left hand. After presentation of the State’s evidence, the trial court dismissed the charges against Jeffries. Testifying in his own defense, appellant denied that such an event had ever occurred. The jury returned a verdict of guilty but had its foreman write the words “with leniency” on the verdict form.

On appeal, Campbell alleges that Section 798.02, Florida Statutes, supra, is unconstitutionally vague and was applied to him in an unconstitutional manner. Finding as we do that the conviction cannot stand because the conduct proven does not constitute a crime under that statute, it is not necessary to reach the issue of constitutionality.

There have been only three reported appellate opinions construing the second clause of Section 798.02, Florida Statutes, (proscribing “open and gross lewdness and lascivious behavior”), which provides the basis for the charges against this appellant. In Coile v. State, 212 So.2d 94 (Fla.App.3rd 1968), defendant was charged with the violation of Section 800.04, Florida Statutes, (lewd, lascivious, or indecent assault or act upon or in the presence of a child), and the trial court reduced the charge to a violation of the second clause of Section 798.02, supra. Coile involved offensive touching of a member of a Girl Scout troop on a holiday outing. A conviction under this clause was reversed in Kittleson v. State, 152 Fla. 242, 9 So.2d 807 (1942), for failure of the State to charge an offense under the statute. There, the State attemped to supply allegations necessary to the information through a bill of particulars which was neither sworn to nor verified. In Pitchford v. State, 65 Fla. 146, 61 So. 243 (1931), a white married man and a single black woman were observed by a deputy sheriff to be sitting on the edge of a bed, both in a state of semi-dress. In reversing the conviction, this Court observed that the behavior “denounced by the statute must be such conduct as would bring upon a husband and wife the penalty of the statute * * * extremely indecent, immoral and offensive.” (Emphasis supplied.)

Pursuant to the dictates of Pitchford, supra, the trial judge charged the jury in the instant case:

“You are further advised that open and gross lewdness and lascivious behavior must be extremely indecent, immoral, and offensive in order to come within the provisions of the statute upon which it is alleged that the Defendant violated.” (Emphasis supplied.)

Given the prior construction of the instant statute, the evidence in the record does not substantiate behavior which was “extremely indecent, immoral, and offensive”. The term “indecent” is difficult enough of precise definition, but the term “extremely indecent” must certainly refer to an act more outrageous than that perpetrated by the appellant. Additionally, who in the dark and crowded recesses of the YumYum Tree at 2:00 a. m. on July 6, 1974, was “offended”? This is not to say that such establishments provide sanctuary from enforcement of our criminal laws. Our holding today is that there must be more to constitute “open and gross lewdness and lascivious behavior” than this record discloses and that a jury of reasonable persons could not reasonably have concluded that appellant’s conduct at the time and place and under the circumstances it occurred constituted a violation of Section 798.02, Florida Statutes.

The judgment will be reversed.

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

ENGLAND, J., concurs with an opinion.

BOYD, J., dissents with an opinion.

ROBERTS, J., dissents and concurs with BOYD, J.

ENGLAND, Justice

(concurring).

With increasing frequency we are being requested to test the constitutionality of vintage sex offense laws against society’s current, and changed, contemporary understanding of subjects, experiences and expressions. In a recent challenge to one of these statutes, penalizing the commission of an “abominable and detestable crime against nature”, we not only struck the law as fatally vague but we noted that other vintage sex offense statutes warranted “immediate legislative review and action.” This increasing pressure to cleanse Florida’s statutes of anachronistic moral codes is highly relevant to our analysis of the statute now under review. This statute was enacted in 1868 and it appears in our laws today in virtually the same way it was first enacted.

I agree with Justice Sundberg that no reasonable jury could have found Campbell guilty of “open and gross lewdness and lascivious behaviour” by applying the standard this Court established in Pitchford v. State, 65 Fla. 146, 61 So. 243 (1913). Additionally, however, it seems to me that the terms “open and gross”, “lewdness” and “lascivious behaviour”, necessarily cast a net of potential arrests so broad that contemporary persons of common understanding cannot know whether their be-haviour is permitted or criminal. For that reason, I would not only reverse appellant’s conviction, but invalidate the statute.

This case re-emphasizes the need for legislative review of the unused, vintage, sex offense statutes which are still in force in this state.

BOYD, Justice

(dissenting).

I must dissent.

During the weekend of July 4, 1974, there was a homosexual convention in Pensacola; testimony shows that the Pensacola Police Department was aware of this “gay” assemblage. At approximately 2:00 a. m. on July 6, 1974, two of the four undercover agents in Robbie’s YumYum Tree Lounge saw Appellant, a waiter in that establishment, fondle one Mr. Jeffries, a customer there; whereupon, both Appellant and Jeffries were arrested for violation of Section 798.02, Florida Statutes. The Yum Yum Tree, a bar which caters to homosexuals, has a sign in front which welcomes everyone into the club but states that it does cater to “gay” people and that anyone offended by this should not enter.

On this appeal Appellant (1) challenges the constitutionality of the second clause of Section 798.02, Florida Statutes; (2) contends that the manner of his arrest was an unconstitutional application of that Section; and (3) asserts that the information fails to charge a crime under that Section.

Despite the majority’s refusal to reach the constitutional issues I feel compelled by the majority opinion and Justice England’s concurrence to discuss them.

It is Appellant’s position that the second clause of Section 798.02, Florida Statutes (“. . . if any man . . . engages in open and gross lewdness and lascivious behavior, [he] shall be guilty of a misdemeanor of the second degree . . . .”), is unconstitutionally overbroad and void in that the terms “lewdness” and “lascivious behavior” are too vague that ordinary individuals must guess at their meaning and would differ as to their application, contrary to the requirement of due process of law.

I cannot agree with this contention. In Webster’s Third New International Dictionary (unabridged), the lexicon of contemporary society, the term “lascivious” is defined as “tending to arouse sexual desire” ; the adjective “lewd” is defined as “inciting to sensual desire or imagination,” while the noun “lewdness” is explained as being “the quality or state of being lewd.” These definitions parallel the definition previously accepted by this Court in similar criminal statutes, i. e.:

“The words ‘lewd’ and ‘lascivious’ behavior when used in a statute to define an offense has been held to have the same meaning, that is, an unlawful indulgence in lust, eager for sexual indulgence. . . . ”

Furthermore, lewdness or open and public indecency were offenses even at common law. Other criminal statutes containing this language have been held to be constitutional and not to be void for vagueness and uncertainty in that the words “unnatural and lascivious” or “lewd and lascivious” have been found to be of such a character that an ordinary citizen can easily determine what character of act is intended. • Furthermore, this Court has observed that, to make a statute sufficiently certain to comply with constitutional requirements, it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited. Therefore, I conclude that Section 798.02, Florida Statutes, is constitutional. I am aware of the series of early cases interpreting “lewd and lascivious” as contained in Section 798.02, Florida Statutes; however, I distinguish these cases on the grounds that they related to the first, not the second, clause thereof and that each involved acts of sexual intercourse, an element not pres-sent sub judice.

The Information charged as follows:

“. . . that Charles Thomas Campbell . did unlawfully engage in open and gross lewd and lascivious behavior by fondling the groin area or the penis of a male person ... in Robbie’s YumYum Tree . . . contrary to the provisions of section 798.02, Florida Statutes. . . .”

Since the fondling of another’s sexual organ in public is clearly a lewd and lascivious act and since the Information tracks the language of the statute, I cannot agree that the Information was insufficient in that it failed to charge a crime under that statute. I am not.unmindful of Appellant’s argument that the instant case involved a consensual touching of adults in an establishment catering to homosexuals where no children were present and where no one became offended.

The fact it was 2:00 a. m. at Robbie’s YumYum Tree Lounge at a congregation of consenting homosexuals does not give immunity from the criminal statute which prohibits open, lewd and lascivious conduct. Such a rationale could be used to excuse other “victimless” crimes. In my opinion, homosexual activity does not acquire “constitutional immunity” from state statutes pertaining to lewd and lascivious behavior because it is committed in places frequented by consenting adults.

I would affirm Appellant’s conviction.

ROBERTS, J., concurs.

      . “798.02 Lewd and lascivious behavior.—-If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.”

      . Chesebrough v. State, 255 So.2d 675 (Fla.1971) (as to Section 800.04, Fla.Stat.); Bell v. State, 289 So.2d 388 (Fla.1973) (as to Section 796.07, Fla.Stat.); Thomas v. State, Fla., 326 So.2d 413, filed December 3, 1975; State v. Fasano, 284 So.2d 683 (Fla.1973) and Witherspoon v. State, 278 So.2d 611 (Fla.1973) (as to Section 800.02, Fla.Stat.); Franklin v. State, 257 So.2d 21 (Fla.1971) and Parisi v. State, 265 So.2d 699 (Fla.1972) (as to Section 800.01, Fla.Stat.); Washington v. State, 302 So.2d 401 (Fla.1974) (as to Section 794.01(2), Fla.Stat.).

      . Franklin v. State, 257 So.2d 21, 22 (Fla.1971).

      . It is interesting to note the very modest deterrent effect on society which is detectable from these ancient sex offense laws. The statute now under review, for example, has produced trial convictions brought to the appellate courts of this state on only ten occasions (only four of which were in the last 63 years). Seven involved that portion of the act affecting the conduct of unmarried men and women, and all involved acts of sexual intercourse. Luster v. State, 23 Fla. 339, 2 So. 690 (1887); Pinson v. State, 28 Fla. 735, 9 So. 706 (1891); Thomas v. State, 39 Fla. 437, 22 So. 725 (1897); Penton v. State, 42 Fla. 560, 28 So. 774 (1900); Whitehead v. State, 48 Fla. 64, 37 So. 302 (1904); Cloud v. State, 64 Fla. 237, 60 So. 180 (1912); Wildman v. State, 157 Fla. 334, 25 So.2d 808 (1946). This Court reversed each of those seven convictions. The other three convictions were generated by that portion of the statute which contains the language now under review. Two were reviewed by this Court and reversed. Kittleson v. State, 152 Fla. 242, 9 So.2d 807 (1942); Pitchford v. State, 65 Fla. 146, 61 So. 243 (1913). The other conviction, reviewed by the Third District Court of Appeal, was affirmed. Coile v. State, 212 So.2d 94 (Fla.App.3rd 1968). Today we again reverse a conviction. In sum, this Court has never sustained a conviction under this 107 year old statute. If criminal convictions provide deterrence to conduct unacceptable to civilized society, this law has been a dismal failure.

      .For example, a lone male who endeavors to relieve the strain of tight undershorts while standing in a public place and being observed by a keen-eyed law official cannot be sure whether he has committed a criminal offense or not.

      . “798.02 Lewd and lascivious behavior.— If any man and woman, not being married to eacli other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.”

      . Brock v. Hardie, 114 Fla. 670, 154 So. 690, 694 (1934).

      . Chesehrough v. State, 255 So.2d 675, 677 (Fla.1971).

      . Id. at 678.

      . Section 796.07, Florida Statutes: Bell v. State, 289 So.2d 388 (Fla.1973); Miami Health Studios, Inc. v. City of Miami Beach, 491 F.2d 98 (5th Cir.1974); Section 800.02, Florida Statutes: Murray v. State of Florida, 384 F.Supp. 574 (S.D.Fla.1974); Bell v. State, supra, at 390; State v. Fasano, 284 So.2d 683 (Fla.1973); Witherspoon v. State, 278 So.2d 611, 612 (Fla.1973); Franklin v. State, 257 So.2d 21, 24 (Fla.1971); Section 800.04, Florida Statutes: Chesebrough v. State, supra, Note 3.

      . Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972).

      . Luster v. State, 23 Fla. 339, 2 So. 690 (1887); Pinson v. State, 28 Fla. 735, 9 So. 706 (1891); Thomas v. State, 39 Fla. 437, 22 So. 725 (1897); Penton v. State, 42 Fla. 560, 28 So. 774 (1900); Whitehead v. State,
        48 Fla. 64, 37 So. 302 (1904); Cloud v. State, 64 Fla. 237, 60 So. 180 (1912); Wildman v. State, 157 Fla. 334, 25 So.2d 808 (1946).

      . Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57, 93 S.Ct. 2628, 2635, 37 L.Ed.2d 446, 456 (1973).


author: PER CURIAM. ENGLAND, Justice BOYD, Justice

text:
    Charles Jimmy CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 46692.
    Supreme Court of Florida.
    April 21, 1976.

      Bartley K. Vickers, Mahon, Farley & Vickers, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, 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 ROBERTS, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs specially with an opinion.

BOYD, J., dissents with an opinion.

ADKINS, J., dissents and concurs with BOYD, J.

ENGLAND, Justice

(concurring specially).

I concur with a majority of my colleagues in finding that there is no “direct conflict” between the decision of the First District Court of Appeal in this case and any other Florida appellate decision, as the Constitution requires. The district court’s decision, reported at 303 So.2d 649, is merely a one paragraph recitation of facts followed by a statement that the evidence justifies the jury’s verdict. There is not one citation of legal authority, and no reference to the principles of law which the district court applied.

This is a classic case in which a district court of our state has accorded a criminal defendant a complete appellate review based on a trial record, in accordance with its responsibility to accept appeals of that type. The court was not obliged to write a legal opinion if, in its judgment, it merely applied established precedent to particular facts without creating new jurisprudence. A complete second appeal can be provided here if we dig through the trial transcript and all other facets of the trial record, and if that is done a majority of the Court may disagree with the result reached by the district court below. But that is not our function. That second appellate analysis is precisely the type of review against which we were warned when the district courts were created. See, Lake v. Lake, 103 So.2d 639 (Fla.1958), overruled, Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965). See also, Gibson v. Maloney, 231 So.2d 823, 826 (Fla.1970) (dissent).

It may be difficult, but I believe we are required by the Constitution to exercise restraint on matters once fully tried and once fully reviewed, to insure that the district courts remain “final” rather than intermediate appellate tribunals.

BOYD, Justice

(dissenting).

I respectfully dissent to the majority opinion discharging the writ of certiorari heretofore granted in this cause.

In this matter we are asked to review by certiorari Petitioner’s conviction and five year sentence for stealing a 1973 Chevrolet automobile because of conflict between the decision of the District Court of Appeal, First District, reported at 303 So.2d 649, and Davis v. State, 90 So.2d 629 (Fla.1956); Harrison v. State, 104 So.2d 391 (Fla.App.1958), and others. While the District Court affirmed Petitioner’s conviction based upon circumstantial evidence not meeting the standards set forth in Davis, Harrison and others, it agreed with the conclusions of law in those cases as to the degrees of proof required of circumstantial evidence for conviction.

The facts of this case are as follows.

On June 22, 1973 a young woman parked her new Chevelle in a parking lot in Jacksonville. Later that day a woman contacted a car dealer and secured the number for an ignition switch key fitting the car. The caller was not identified. Later the same day a young woman and two young men, who were never clearly identified, secured a key to fit the Chevrolet from a locksmith. The man who made the key at one time told a policeman that Petitioner had secured the key, basing his identification on a photograph. At the trial he said only that Petitioner looked like the man but that the key purchaser had shaggy hair and a beard and that, without those, he could not identify the Petitioner.

About 4:30 a. m. on June 23rd two policemen stopped to assist Petitioner on Interstate Highway 95 in Jacksonville. He had been stopped in his truck trying to cover the motor and transmission of what he said was a 1969 Chevelle. The policemen found no numbers on the motor, but one said he thought it was newer than 1969. Petitioner told them he had removed the parts from his home on Monroe Street; about 7:00 a. m. the policemen went by, but they did not enter the premises and did not see the car.

The record does not show how, why or when Petitioner became a suspect, but he had a long criminal record. After being charged, Petitioner surrendered to officers and said he did not steal the car but made a mistake by permitting others to dismantle it on his property. Petitioner did not say he was aware that the car was stolen when it was dismantled, but he said he would secure the return of all stolen parts if charges against him were dropped; however, when this offer was rejected, he remained silent. His offer to assist in securing return of stolen property is circumstantial evidence but is not sufficient to prove him guilty beyond and to the exclusion of every reasonable doubt.

There was no direct evidence offered by the Respondent to link the Petitioner with the theft of the car; the only evidence that even cast a suspicion of guilt on him was uncertain testimony of the keymaker that the Petitioner was the man who had ordered the key made and to whom the key had been given. This testimony regarding the making and the delivering of the key was circumstantial evidence, and that one piece of circumstantial evidence was legally insufficient to establish the Petitioner’s guilt.

The court in Harrison, supra, stated the rule of law to be applied in determining whether circumstantial evidence is sufficient to sustain a conviction as follows:

“When circumstantial evidence is relied upon for conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense. If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent as to which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be. It is the actual exclusion of each other reasonable hypothesis which clothes mere circumstances with the force of proof. Circumstantial evidence which leaves nothing more than a suspicion that the accused committed a crime is not sufficient to sustain a conviction.”

This rule has been consistently applied and this rule should have been applied by the trial court. Smith v. State, 194 So.2d 310 (Fla.App.1967); Rhoden v. State, 227 So.2d 349 (Fla.App.1969); Gayle v. State, 258 So.2d 455 (Fla.App.1972). In the instant case, the circumstantial evidence that Petitioner bought the key used to take the car left nothing more than a suspicion that Petitioner committed the crime. There was no other evidence presented by Respondent that linked Petitioner with the theft of the car.

Petitioner maintains that the circumstances of his having the key made is as equally consistent with the reasonable hypothesis of his innocence as with his guilt: 1. e., Respondent failed to show how the key got into the hands of the person who drove the car away; and Respondent failed to show that Petitioner had any knowledge that the key would be used to steal the car. In Herring v. State, 121 So.2d 807 (Fla.App.1960), the court reversed the conviction of a defendant, Roark, who had been convicted of breaking and entering a motor vehicle with intent to commit a felony. The only fact offered to prove Roark’s guilt was her presence in a Buick with two other defendants who had broken into the car. The court noted:

“. . . The state argues that sufficient circumstantial evidence was offered to support appellant Roark’s conviction, and from this concludes that it was a jury question as to what her association was with the perpetration of the crime. Nowhere have we been able to find evidence and the state has cited us none, circumstantial or otherwise, upon which to premise the state’s contention. . . ”

This case is analogous to Herring, supra, in that there was no proof here of Petitioner’s association with the perpetrator of the theft of the Chevrolet. As held in Davis, supra, evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, is not sufficient to sustain a conviction. Petitioner contends that the evidence here only furnished a suspicion of his guilt and did not furnish legally sufficient proof of his guilt.

In denying Petitioner’s motion for a judgment of acquittal, the trial court appeared to believe that Petitioner had given the key to the person who had driven the car away. There is nothing in the record to indicate that Petitioner gave the key to anyone or, assuming arguendo he did deliver the key, that he had any knowledge of the use of the key to steal the car or that he had an intent to steal the car, even as a principal. There are reasonable hypotheses of Petitioner’s innocence: (1) that Petitioner did not know the key was to be used to steal the car; (2) that Petitioner did not give the key to the perpetrator of the theft of the car.

Respondent had the burden of making a prima facie case, establishing the guilt of Petitioner beyond and to the exclusion of every reasonable doubt; whether Respondent achieved the burden was strictly a question of law for the court. Adams v. State, 102 So.2d 47 (Fla.App.1958). In my view the trial court erred in failing to direct a verdict of acquittal since Respondent failed to establish Petitioner’s guilt beyond and to the exclusion of every reasonable doubt.

I would hold that the flimsy circumstantial evidence in this case is not sufficient to support the conviction of Petitioner and accordingly I would quash the decision of the District Court of Appeal, First District, and direct said court to require the trial court to vacate Petitioner’s conviction.

ADKINS, J., concurs.

      . Article V, Section. 3(b)(3), Florida Constitution.

      . 104 So.2d 391 at 394-395.

      .121 So.2d 807 at 809.


author: ROBERTS, Justice.

text:
    Honorable Reubin O’D. ASKEW, Governor of the State of Florida, et al., Appellants, v. Joel Edward SCHUSTER et al., Appellees.
    No. 48137.
    Supreme Court of Florida.
    April 21, 1976.
    Robert L. Shevin, Atty. Gen., and Donna Holshouser Stinson, Asst. Atty. Gen., Tallahassee, for appellants.
    Harry Lewis Michaels, Tallahassee, David C. Holloman and John H. Treadwell, Arcadia, for appellees.
    D. Stephen Kahn, Tallahassee, for Lew Brantley, Tom Gallen, Julian B. Lane and Guy Spicola, amicus curiae.
   ROBERTS, Justice.

We have for review by direct appeal a final judgment by the Circuit Court in and for DeSoto County holding the latter portion of Section 945.025(3), Florida Statutes, relating to the conversion of G. Pierce Wood Memorial Hospital to be unconstitutional. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.

Appellees, mental patients at G. Pierce Wood Memorial Hospital, a mental hospital in Arcadia, Florida, brought a class action for declaratory relief seeking to permanently enjoin appellants from housing convicted felons on any part of the premises or in the vicinity of G. Pierce Wood Memorial Hospital and to permanently enjoin them from establishing a medium security prison within the confines or vicinity of said hospital.

To assist in alleviating the critical shortage of prison facilities in Florida, appellants proposed plans which involved a conversion of a portion of said hospital into prison facilities. The plan entailed the taking over of approximately fourteen structures as prison area which area would be surrounded by a double row of chain-link fences, one twelve feet high with an umbrella arm of mesh and the inner one four feet high. Between the two fences, there will be a peri-guard electronic security alarm system, an underground perimeter surveillance system between the two fences. This consists of a pressure sensitive four-pipe buried underground sensor alarm system which operates on constant equalized pressure. The alarm is set off by zones and there will be eleven zones in the configuration which reflect back to the control room and the outside patrol cars when violated. Correctional officers will be in patrol vehicles around the perimeter 24-hours a day.

After hearing and an extended tour of G. Pierce Wood Memorial Hospital facility, the trial judge permanently enjoined appellants from committing any act toward the conversion of G. Pierce Wood Memorial Hospital into a prison facility and ordered them to return G. Pirece Wood Memorial’s physical facilities to their original state. Recognizing the critical shortage of prison facilities and the statutory authority for construction of such a facility as this, the trial court found from what it stated to be uncontradicted evidence which it evaluated in detail in its final judgment, that such a proposal by the State would:

“(a) Significantly impair the committed use of the hospital, reduce its operation as a treatment facility and cause it to be downgraded in its status as a State Hospital on the level of other treatment facilities set forth in F.S. 394.457(8), thus violating this section of the Baker Act.
“(b) Result in a lack of respect for the individual dignity to which the mental patients of G. Pierce Memorial Hospital are entitled, thus violating F.S. 394.459 of the Baker Act.”

The trial court determined that the latter portion of Section 945.025(3), Florida Statutes, relating to the conversion of G. Pierce Wood Memorial Hospital is unconstitutional and explicated:

“The general rule is that the latter legislative expression governs where two statutes are inconsistent. State v. Board of Public Instruction (Fla.1959) 113 So.2d 368. As set forth in State v. Haddock ([Fla.App.] 1st Dist. 1962) 140 So.2d 631, this is true and in the absence of irreconcilable provisions or manifest overriding considerations, the last in point of time or order of arrangement prevails. “In applying these rules of construction, it is impossible for this Court to reconcile the provisions regarding the conversion of G. Pierce Wood Memorial Hospital in F.S. 945.025(3) with the provisions set forth in F.S. 394.457(8) and F.S. 394.459. If the G. Pierce Wood provision of F.S. 945.025(3) is allowed, it would violate the rights given to the patients under the Baker Act and would thus be unlawful and invalid.”

This statutory provision provides:

“(3) There shall be other correctional facilities, including detention facilities of varying levels of security, work-release facilities, and community correctional facilities, halfway houses, and other approved community residential and nonresidential facilities and programs; however, no adult correctional facility shall be established by changing the use and purpose of any mental health facility or mental health institution under the jurisdiction of any state agency or department without authorization in the General Appropriation Act or other approval by the Legislature. Any facility the purpose and use of which was changed subsequent to January 1, 1975, shall be returned to its original use and purpose by July 1, 1977. However, the conversion of the G. Pierce Wood Memorial Hospital located at Arcadia, De-Soto County, into a correctional facility may be completed and continued only after a demonstration that it would be less costly and that substantial economic benefit would accrue to the state when compared with other viable alternatives to the conversion of said facility. Any community residential facility may be deemed a part of the state correctional system for purposes of maintaining custody of offenders, and for this purpose the [department] may contract for and purchase the services of such facilities.”

The following statutes are relevant to the disposition of this cause. Section 394.-459, Florida Statutes, provides in pertinent part:

“(1) Right to individual dignity.—The policy of the state is that the individual dignity of the patient shall be respected at all times and upon all occasions, including any occasion when the patient is taken into custody, detained, or transported. Procedures, facilites, including jails, vehicles, and restraining devices utilized for criminals or those accused of crime shall not be used in connection with the noncriminal mentally ill except for the protection of the patient or others. If, in an emergency, a mentally ill person is placed in a jail, such a facility may be used only as long as the emergency exists and in no case, except felony criminal cases, longer than five (5) days. In criminal cases, a jail may be used as an emergency facility no longer than forty-five (45) days. Treatment shall be provided to the patient by his physician or the receiving facility staff. No person who is receiving treatment for mental illness in a hospital shall be deprived of any constitutional rights. However, if such a person is adjudicated incompetent pursuant to the provisions of this part, his rights may be limited to the same extent the rights of any incompetent person are limited by general law.
“(4) Quality of treatment.—
(a) Each patient in a facility shall receive treatment suited to his needs, which shall be administered skillfully, safely, and humanely with full respect for his dignity and personal integrity. Each patient shall receive such medical, vocational, social, educational, and rehabilitative services as his condition requires to bring about an early return to his community. In order to achieve this goal the department is directed to coordinate the programs of the division with all other divisions of the department.”

Section 394.457(8), Florida Statutes, provides :

“(8) Designation of treatment facilities. —Florida State Hospital located at Chattahoochee, Gadsden County; G. Pierce Wood Memorial Hospital located at Arcadia, DeSoto County; South Florida State Hospital located at Hollywood, Broward County; and Northeast Florida State Hospital located at Macclenny, Baker County; and such other facilities as may be established by law or designated by the department, including facilities of the United States Government, if such designation is agreed to by the appropriate governing body or authority, are designated as treatment facilities.”

We cannot agree with the trial judge that Section 945.025(3), Florida Statutes, is unconstitutional in part and, therefore, cannot concur that the conversion of the facilities constitutes a violation of the Baker Act.

By Section 945.025(3), Florida Statutes, the most recent enactment by the Legislature on this subject, the Legislature recognized and expressly approved the conversion of a portion of the hospital to house prisoners. Appellants contend that by its ruling in this cause, the trial court sought to legislate to obtain a result which it felt was just, thereby imposing its own social view in place of the Legislature’s which was not within its province to do. The trial judge in its final judgment did not determine that this statute conflicted with any constitutional provision either state or federal but rather found that it was inconsistent with prior statutory provisions.

Absent a violation of due process or a specific constitutional guarantee, courts cannot substitute their judgment for that of the Legislature. As this Court explicated in In re Apportionment Law, Senate Joint Resolution No. 1305, 263 So.2d 797 (Fla.1972), in emphasizing the constitutional principle of separation of power:

“Hence, this Court, in accordance with the doctrine of separation of powers, will not seek to substitute its judgment for that of another coordinate branch of the government, but will only measure acts done with the yardstick of the Constitution. The propriety and wisdom of legislation are exclusively matters for legislative determination.”

In City of Jacksonville v. Bowden, 67 Fla. 181, 64 So. 769 (1914), cited as authority in In Re Apportionment Law, supra, Judge Whitfield stated:

“[N]o duly enacted statute should be judicially declared to be inoperative on the ground that it violates organic law, unless it clearly appears beyond all reasonable doubt, that, under any rational view that may be taken of the statute, it is in positive conflict with some identified or designated provision of constitutional law . The courts have no veto power, and do not assume to regulate state policy, but they recognize and enforce the policy of the law as expressed in valid enactments, and decline to enforce statutes only when to do so would violate organic law. (Emphasis supplied.) (p. 772).”

Recently the Supreme Court of the United States in Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), upholding a Florida Statute granting a widow an annual $500 property tax exemption, reiterated the basic constitutional proposition that courts do not substitute their social and economic beliefs, for the judgment of legislative bodies which are elected to pass the laws. See Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). Cf. Pepper v. Pepper, 66 So.2d 280 (Fla.1953); State v. Barquet, 262 So.2d 431 (Fla.1972). By the judgment below, the trial judge effectually substituted her social beliefs in place of legislative judgment.

Although we find no inconsistency between the Act in question and Sections 394.457(8) and 394.459, Florida Statutes, we restate the fundamental rule of statutory construction which would be applicable here were the statutes inconsistent, that the last expression of legislative will prevails. Cf. State v. Board of Public Instruction, 113 So.2d 368 (Fla.1959); Jacksonville Beach v. Albury, 291 So.2d 82, Fla.App., affirmed, 295 So.2d 297 (Fla.1974); Johnson v. State, 157 Fla. 685, 27 So.2d 276 (1946).

Accordingly, we find that Section 945.025(3), Florida Statutes, is constitutional and as the last expression of the Legislature’s will prevails over Sections 394.457(8) and 394.459, Florida Statutes. By Section 945.025(3), Florida Statutes, the Legislature approved the conversion of a portion of G. Pierce Wood Memorial Hospital into a correctional facility. The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

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

      . Chapter 75-49, Laws of Florida, effective date July 1, 1975.


author: ADKINS, Justice.

text:
    Charles WILLIAMS, Petitioner, v. GATEWAY INSURANCE COMPANY, Respondent.
    No. 45641.
    Supreme Court of Florida.
    April 21, 1976.
    Mark Poses, So. Miami and L. Barry Keyfetz, Ser & Keyfetz, Miami, for petitioner.
    Robert J. Schramm, Tallahassee, for respondent.
   ADKINS, Justice.

We have before us a petition for conflict certiorari which correctly alleges that the decision of the District Court of Appeal, Third District, in Williams v. Gateway Ins. Co., 294 So.2d 422 (Fla.App.3d 1974) conflicts with the decision of the Fourth District in Reyes v. Banks, 292 So.2d 39 (Fla.App.4th 1974). In turn Reyes conflicts with the Third District’s decisions in Gateway Insurance Co. v. Lymus, 295 So.2d 326 (Fla.App.3d 1974), State Farm Mutual Auto Insurance Co. v. Manee, 292 So.2d 52 (Fla.App.3d 1974) and State Farm Automobile Ins. Co. v. Hauser, 281 So.2d 563 (Fla.App.3d 1973). Additionally, both Williams and Reyes are in conflict with the First District’s decisión in White v. Reserve Insurance Co., 299 So.2d 661 (Fla.App.1st 1974). Furthermore, conflict is also present in that the First District in White on rehearing held that its decision therein did not conflict with the Third District’s decision on the same point of law in State Farm Insurance Co. v. Manee, supra, since it subsequently expressly disapproved Manee in Unigard Insurance Co. v. Davis, 299 So.2d 667 (Fla.App.1st 1974). Thus, we have jurisdiction pursuant to Art. V, § 3(b)(3), Fla.Const., predicated upon conflict between decisions of the First, Third and Fourth Districts and between separate decisions of the First District itself.

We have also granted conflict certiorari jurisdiction in Creel v. Government Employees Ins. Co., 313 So.2d 772 (FlaApp.3d 1975) which involves the same point of law, to-wit: whether an insured in a motor vehicle accident is entitled to an equitable distribution of P.I.P. benefits following settlement with a third party tortfeasor where suit has not been filed prior to the settlement ?

The pertinent facts in Williams are as follows: Petitioner was injured in an automobile accident, and respondent, his insurance carrier, paid him $3,927.26 in personal injury protection benefits. Prior to instituting suit, the petitioner’s lawyer negotiated a settlement with the third party carrier for $10,000, the policy limit. The circuit court awarded the respondent an equitable distribution of that recovery in satisfaction of its claim of a lein for personal injury protection benefits paid, pursuant to Fla.Stat. § 627.736(3) (b). The circuit court later entered an amended order which awarded respondent the full sum of $3,927.26, pursuant to Fla.Stat. § 627.-736(3)(a), based on the Third District’s decision in State Farm Mutual Auto Insurance Co. v. Manee, supra. The District Court of Appeal, Third District, affirmed upon the authority of its earlier decision in Hauser, supra.

In Creel, supra, the petitioner, the insured, Creel was injured in an automobile accident and incurred medical bills in excess of $4,000 and lost time from work. Creel settled his claim against the third party tortfeasor (Ryder Truck Rental) for $20,000. As of this settlement, Creel’s insurer, Government Employees Insurance Co. had not provided wage loss benefits nor paid any of Creel’s medical bills. Consequently, Creel filed suit against his insurer alleging non-compliance with the terms of the insurance policy. During discovery, Creel was deemed to have admitted that settlement with the third party tortfeasor was concluded prior to the institution of suit. Based upon this admission, the trial court granted the insurer’s motion for summary judgment and the Third District, in affirming, held:

“Accepting Creel’s admissions, it is clear from a line of holdings by this court that the appellee owed him no payment as equitable distribution. State Farm Mutual Auto Ins. Co. v. Mance, Fla.App.1974, 292 So.2d 52; Gateway Insurance Co. v. Lymus, Fla.App.1974, 295 So.2d 326.” Creel, supra, at 773-74.

The decision enunciated herein shall be dispositive of both Williams and Creel.

In State Farm Automobile Insurance Co. v. Hauser, supra, Mrs. Hauser was injured because of the collision of her vehicle with one driven by Lazaro Delgado. State Farm Ins. Co. (hereinafter referred to as State Farm) was Mrs. Hauser’s insurer and paid her $1,339.60 in “no fault” P.I.P. benefits. Thereafter, Mr. and Mrs. Hau-ser filed suit against Delgado, the third party tortfeasor, and his insurer, Travelers Insurance Co. (hereinafter referred to as Travelers), seeking in excess of $5,000 in damages for Mrs. Hauser’s personal injuries and derivative damages claimed by her husband. Prior to the filing of the answer by the defendants, the parties (the plaintiffs, the Hausers, and the defendants, Delgado and his insurer, Travelers) agreed upon a settlement of $5,000. Pursuant to plaintiffs’ motion for equitable distribution, the trial court awarded the plaintiffs’ insurer, State Farm, $150.00 under the equitable distribution reimbursement provisions of Fla.Stat. § 627.736(3) (b). State Farm appealed contending that the trial court should not have employed equitable distribution under paragraph (b), but should have ordered the plaintiff to make full reimbursement of the $1,339.60 “no fault” P.I.P. benefits paid to her. In construing paragraphs (a) and (b) of subsection (3) of Section 627.736, the Third District stated that the two paragraphs “resist reconciliation” in that paragraph (a) requires full reimbursement to the no fault insurer (State Farm) by the insured (Mrs. Hau-ser) if the latter obtains settlement from the third party tortfeasor (Delgado) and his insurer (Travelers) prior to the institution of suit against the latter two parties; whereas, paragraph (b) requires equitable distribution, rather than full reimbursement, if the insured plaintiff (Mrs. Hau-ser) recovers judgment or settles her claim after suit has been instituted against the third party tortfeasor (Delgado) and his insurer (Travelers). Thus, even though the Third District stated that paragraphs (a) and (b) resisted reconciliation it harmonized the two by holding that paragraph (a) requires full reimbursement to the “no fault” insurer by its insured if the claim is settled prior to institution of suit by its plaintiff insured against the third party tortfeasor and his insurer and that equitable distribution under paragraph (b) only applies if settlement or recovery is obtained after suit has been filed.

The Fourth District on the other hand in Reyes v. Banks, 292 So.2d 39 (Fla.App.4th 1974) upon a substantially indentical factual situation agreed with the Third District’s decision in Hauser that paragraphs (a) and (b) resist reconciliation, but repudiated the Hauser court’s harmonization of the two by holding

“. . . [T]here is a positive repug-nancy between paragraphs (a) and (b), and they are so inconsistent that they cannot be harmonized or reconciled. We therefore must construe the statute in a manner which will give effect to the purpose of the statute and to the legislat-tive intent.” Reyes, supra, at 41. (Emphasis added)

The Reyes court held that paragraph (b) would control as the last expression of the legislative will. Reyes, supra, at 42, citing with approval Sharer v. Hotel Corp. of America, 144 So.2d 813 (Fla.1962); State v. Board of Public Instruction, 113 So.2d 368 (Fla.1959); 30 Fla.Jur., Statutes § 144 (1974). The Fourth District also held that

“. . . [P]aragraph (b) should govern in all cases to which it is applicable, and paragraph (b) revises the subject matter of . . . paragraph (a). City of St. Petersburg v. Pinellas County Power Co., 87 Fla. 315, 100 So. 509, 510 (1924). Thus, the insurer’s right of reimbursement shall be based upon equitable distribution in accordance with paragraph (b).” Reyes, supra, at 42.

Equitable distribution under paragraph (b) was therefore held to apply irrespective of whether suit has or has not been filed prior to settlement or recovery.

As noted earlier, the First District in White v. Reserve Insurance Co., 299 So.2d 661 (Fla.App.1st 1974) reached the same result as the Fourth District did in Reyes by harmonizing paragraphs (a) and (b).

The conflict among the decisions of the First, Third and Fourth District Courts of Appeal bear witness to the confusion this statute has engendered. It was the legislature’s intent in enacting the Florida Automobile Reparations Act to encourage settlements and to minimize litigation. Yet, the decisions of the Third District require the institution of suit before equitable distribution may be employed. Lymus, Manee and Hauser, supra. This encourages litigation and defeats the legislative intent. Consequently, the decisions of the Third District in Lymus, Manee and Hauser, supra, are overruled. The First District in White, Unigard and Catches v. Government Employees Insurance Co., 295 So.2d 116 (Fla.App.1st 1974) has given effect to the legislature’s intent by harmonizing the paragraphs (a) and (b). However, to adopt these holdings would only engender further confusion as to the correct interpretation of the two paragraphs. Thus, the above decisions of the First District are overruled insofar as they attempt to harmonize paragraphs (a) and (b). We expressly approve, however, the First District’s holding that equitable distribution is to be employed regardless of whether or not suit has been filed prior to settlement with the third party tortfeasor.

As pointed out by the First District in White, supra, 299 So.2d at 663, the Florida Statutes omitted part of the third line of paragraph (b). As enacted by the legislature Section 627.736(3) (a)-(b) correctly reads:

“(3) Insurer’s rights of reimbursement and indemnity.—
“(a) No subtraction from personal protection insurance benefits will be made because of the value of a claim in tort based on the same bodily injury, but after recovery is realized upon such a tort claim, a subtraction will be made to the extent of the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery, but only to the extent that the injured person has recovered said benefits from the tortfeasor or his insurer or insurers. If personal protection insurance benefits have already been received, the claimant shall repay to the insurer or insurers, out of the recovery, a sum equal to the benefits received, but not more than the recovery, exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery, but only to the extent that the injured person has recovered said benefits from the tortfeasor or his insurer or insurers. The insurer or insurers shall have a lien on the recovery to this extent. No recovery by an injured person or his estate for loss suffered by him will be subtracted in calculating benefits due a dependent after the death, and no recovery by a dependent for loss suffered by the dependent after the death will be subtracted in calculating benefits due the injured person except as provided in paragraph (1) (c).
“(b) The insurer shall be entitled to reimbursement of any payments made under the provisions of subsection (3) of this section based upon such equitable distribution of the amount recovered as the court may determine less the pro rata share of all court costs expended by the plaintiff in the prosecution of the suit to recover such amount against a third-party tort feasor including a reasonable attorney’s fee for the plaintiff’s attorney” (Laws of 1971, Ch. 71-252, § 7(3) (b). Emphasis added.)

We read these two paragraphs as being repugnant to one another. Consequently, we adopt the holding of the Fourth District in Reyes v. Banks, supra, in that paragraph (b, supercedes paragraph (a). Sharer v. Hotel Corporation of America, supra, State v. Board of Public Instruction, supra. Thus, equitable distribution is to be employed in cases both where suit has and has not been filed before settlement with the third party tortfeasor.

This Court has previously stated that no precise mathematical formula exists with which to determine equitable distribution. However, the guidelines formulated by the Fourth District in Reyes v. Banks supra, at 42, should be considered. These being:

“(1) The extent, if any, to which plaintiff failed to obtain full recovery for his entire damages;
“(2) The amount of the attorney’s fee (which is usually a contingent fee and runs anywhere from 25% to 50% depending on the circumstances);
“(3) The amount of expense incurred in investigating and prosecuting the claim;
“(4) The amount (and value) of the time, inconvenience and responsibility involved on the part of the injured person (who may have not only missed work but have necessarily undergone much anxiety and worry in regard to the claim, the law suit, being ‘in court’ for the first time in his life, etc.);
“(5) The fact that the client has to put up or stand good for the court costs, the investigation costs and other expenses of litigation while the carrier did not take this risk, and if the injured person has to end up paying all of these expenses without reimbursement, in the event of no recovery because of a defense verdict or no valid insurance or some other reason, it would be much harder on him ordinarily than it would have been on a large corporation.” (Footnotes omitted.)

These guidelines were amplified in American Fire and Casualty Company v. Oiler, 313 So.2d 67 (Fla.App.4th 1975), as follows:

“[A] study of the guidelines which we announced in the Reyes case, supra (which decision was not available to the trial court at the time the appealed order was entered) will reveal that the principles governing equitable distribution do contemplate some mathematical relationship, though not exact, between the amount of recovery made by the plaintiff in the tort claim and the amount to which the insurer is entitled to be reimbursed. To amplify, the first three of the suggested guidelines in the Reyes opinion necessarily imply a mathematical relationship between the full value of the plaintiff’s claim and the net amount actually received (after deducting attorney’s fees and expenses of litigation), the resulting figure to be utilized by the court in determining equitable distribution.
“The initial step is to determine the extent, if any, to which a plaintiff failed to obtain full recovery for his entire damages. This requires an evaluation to be made of the full or true value of the claim where, as here, it is settled prior to the value being established by verdict of judge or jury. Necessarily, the matter of evaluating a claim for personal injuries prior to the time such value has been established by verdict is at best only an estimate. It is here, more than anywhere else, that it can be said that there is no precise formula that can be applied with mathematical exactness and thus it is in this area that the trial judge, in determining equitable distribution, must necessarily have the widest range of discretion. As in all cases involving the exercise of a sound judicial discretion, it must be one which finds a reasonable basis in the record.
“Once the trial court has made a determination that the reasonable value of a plaintiff’s claim was ‘x’ amount of dollars, and it is shown that the plaintiff received from the tort-feasor (after deducting attorney’s fees and costs) only the net sum of ‘y’ dollars, simple mathematical calculations come into play as it can then be said that the plaintiff’s net recovery was that the plaintiff’s net recovery was that fractional part of the full value of the claim as ‘y’ bears to ‘x’. Once this fraction is determined, absent other equitable considerations, the insurance carrier is entitled to be reimbursed the same fractional part of the amount it paid in PIP benefits. The presence of other equitable considerations may well justify, if not require, the resulting figure being further reduced, but if there are such other equitable considerations which bring about a further reduction, they should appear in the record and be expressly recognized by the court as the basis for its ultimate determination of equitable distribution.” (Emphasis theirs.) 313 So.2d at 68-69.

These are the guidelines which should be followed by the trial court.

The decision of the District Court of Appeal is quashed and this cause is remanded to the District Court of Appeal, Third District, for further proceedings consistent with the views expressed in this opinion.

It is so ordered.

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

ENGLAND, J., dissents.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re Herman COHEN.
    No. 49083.
    Supreme Court of Florida.
    April 14, 1976.
    L. George Scheer, Bar Counsel, Miami Beach, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

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

On February 16, 1976, as a result of a stipulation between Respondent, Herman Cohen, and The Florida Bar, Bar counsel filed with the referee in these proceedings an Amended Complaint charging Respondent with violations of Disciplinary Rules 5-101 (A), 5-105(A), 5-105(B) and 6-102(A) of the Code of Professional Responsibility. The Amended Complaint reads as follows:

AMENDED COMPLAINT
“THE FLORIDA BAR, complainant, files this Complaint against HERMAN COHEN, respondent, pursuant to Article XI of the Integration Rule of The Florida Bar, as amended and alleges:
COUNT 1
1. The respondent, HERMAN COHEN, is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of this Complaint, required by the Integration Rule, have been fulfilled.
3. On or about August 28, 1972, Mr. Leslie J. Castroarias contacted respondent to inquire about his representing Mr. Castorarias (sic) in various legal matters, including respondent’s obtaining a loan for Mr. Castorarias (sic).
4. At the August 28, 1972, meeting, respondent loaned Mr. Castroarias the sum of $1,000, in the form of two checks: one check for $800 made payable to John Frederick, Realtor, Escrow Account, and one check for $200 made payable to Leslie Castro. Leslie Castro and Leslie Castroarias are the same person.
5. At the time the loan was made, Mr. Castroarias executed a 30-day promissory note for $1,000, and both Mr. and Mrs. Castroarias executed a second mortgage on the home they were about to buy.
6. Although the note and the mortgage executed by Mr. and Mrs. Cas-troarias were blank at the time they signed it, they believed that the money was being loaned to them by respondent.
7. Sometime after Mr. and Mrs. Cas-troarias left respondent’s office the name of the payee on the note and the mortgagee on the second mortgage was filled in as Charlotte Vogel, respondent’s sister and client.
8. When respondent loaned $1,000 to Mr. Castroarias on August 28, 1972, he was representing either himself or his client, Mrs. Charlotte Vogel.
9. At the time of the $1,000 loan to Mr. Castroarias, respondent agreed to represent Mr. Castroarias in several minor legal matters arising out of Mr. Cas-troarias’ operation of a gasoline station, and respondent subsequently did handle various legal matter for Mr. Castroarias.
10. Respondent represented Mr. Cas-troarias at the closing of the house Mr. Castroarias was purchasing on or about September 22, 1972, despite the fact that Respondent knew prior to accepting this employment that he already represented a client, Mrs. Charlotte Vogel, who had interests adverse to those of Mr. and Mrs. Castroarias.
11. In November 1972, respondent foreclosed against his client, Mr. Cas-troarias, in behalf of either himself or his client, Mrs. Vogel, on the second mortgage on Mr. Castroarias’ house.
12. Hearing on Mrs. Vogel’s suit to foreclose the mortgage was held on or about December 28, 1972, and final judgment was entered on January 5, 1973, for Mrs. Vogel. The judgment included an award of $500 as attorney’s fees.
13. The house Mr. Castroarias had purchased was sold at public auction on or about February 8, 1973, and was purchased by Mr. Ronald Barron, an acquaintance of respondent.
14. By reason of the foregoing, respondent has violated Disciplinary Rules 5-101 (A), 5-105(A) and 5-105(B) of the Code of Professional Responsibility.
COUNT II
15. Complainant realleges the matters contained in paragraphs one through 13 of Count I.
16. On or about July 17, 1973, respondent handed to Mr. Castroarias two blank general release forms with pencil notations on how to fill out the blanks.
17. Respondent advised Mr. Castroar-ias that if he would release respondent from all liability for professional misconduct in his transactions with Mr, Castroarias, that respondent would assist him in obtaining title to Castroarias’ house.
18. Mr. Castroarias refused to sign the release given him by respondent.
19. By reason of the foregoing, respondent has violated Disciplinary Rule 6-102(A) of the Code of Professional Responsibility.”

The Conditional Guilty Plea filed by Respondent, Herman Cohen, is hereby approved by the Court and said Respondent is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of Six Hundred Fifteen Dollars and Ninety-Nine Cents ($615.99) are hereby taxed against Respondent.

IT IS SO ORDERED.

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