text:
    Ruth Mary LAYTHE, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1304.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Rehearing Denied April 27, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart and Julian Mack, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendant, Ruth Mary Laythe, was charged by indictment with first degree murder. She was tried by jury, found guilty of second degree murder, and convicted and sentenced to 25 years in the state penitentiary.

The evidence showed that defendant Laythe and a friend, Rick Carter, conspired to steal money from one Eladio Ramon “Lalo” Diaz, a black Cuban drug dealer whom Laythe knew to have a lot of money. Carter stated “we’ll have to kill him,” and Laythe said “no, forget it.” The next day, Laythe brought Lalo to her apartment. Carter was there. Laythe stated that she looked at Carter and shook her head, meaning no. Some thirty minutes later, she followed Carter into the bathroom and stated, “Rick I want you to leave, I’m not going to do it, I don’t ever want to see you again.” Rick started to leave. Laythe went into the kitchen to fix a drink and then she heard a shot. Over a period of two or three minutes, Carter shot Lalo three more times until he was dead.

At the charge conference, defense counsel requested that the jury be instructed as to withdrawal from the conspiracy based on the defense that Laythe timely terminated her involvement well before Carter committed the offense. The court denied the instruction proposed by defense counsel, but acknowledged that, “somewhere in the deal, a person could withdraw,” and suggested a different instruction on withdrawal. The state objected to any charge on withdrawal, the court reserved ruling and then decided not to instruct on withdrawal.

On appeal, defendant Laythe contends that the trial court erred in failing to include the defendant’s requested instruction or the court’s own alternative instruction on withdrawal. We agree. “However disdainfully the trial Judge may have felt about the merits of such defense from a factual standpoint, however even we may feel about it, is beside the point.” Koontz v. State, Fla.App. 1967, 204 So.2d 224, 227. A defendant is entitled to have the jury instructed on the law applicable to his theory of defense if there is any evidence introduced to support the instruction. Canada v. State, Fla.App.1962, 139 So.2d 753; Stiglitz v. State, Fla.App. 1972, 270 So.2d 410. As stated in 41 C.J.S. Homicide § 368, where there is evidence in support of any defense offered by an accused which raises an issue of fact in his favor,

“. . . the court should present the issue by an affirmative instruction which fairly and fully declares the law applicable thereto . . . and it is error for the court, while stating the charge on the evidence against accused, to refuse or omit to charge the jury as to the defenses which are set up by him, and which there is evidence to support

It appears from the record that there is evidence to support defendant Laythe’s defense of withdrawal. Accordingly, we reverse and remand for a new trial. The other point raised by the defendant on appeal will not be discussed.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Howard SCHULMAN, Appellant, v. CORT AVIATION CORPORATION, Appellee.
    No. 75-696.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Rehearing Denied April 26, 1976.

      Pelzner & Schwedock, Miami, for appellant.
    Richard W. Wasserman, Miami Beach, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.) Associate Judge.
   PER CURIAM.

From a judgment in favor of the plaintiff for $2,420.80 and interest thereon in the amount of $329.60, plus costs of $240.45, the defendant below has appealed, contending the allowance of interest was error.

The arguments in the briefs dealt with the propriety of the inclusion of interest in the judgment as depending upon whether the indebtedness for which judgment was awarded was liquidated or unliquidated.

We are relieved of the necessity to evaluate those opposing arguments of counsel and to chose between them, because the verdict rendered by the jury did not allow or provide for the allowance of interest, and therefore it was error for the court, in entering judgment on the verdict, to add to the sum assessed by the jury an additional sum for interest thereon. See Shoup v. Waits, 91 Fla. 378, 107 So. 769; Bailey v. Swartz, Fla.App.1957, 97 So.2d 310; Wabash Fire & Casualty Insurance Co. v. Holloway, Fla.App.1962, 139 So.2d 145; Grayson v. Fishlove, Fla.App.1972, 266 So. 2d 38.

For the reason stated, the judgment is hereby amended to eliminate therefrom the item of $329.60 interest, and as so amended the judgment is affirmed.


text:
    Julio R. REGALADO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-770.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 26, 1976.
    A. V. Bethencourt, Marco Loffredo, Miami, for appellant.

      Robert L. Shevin, Atty. Gen., Margarita G. Esquiroz, Asst. Atty. Gen., and Roy J. Kahn, Legal Intern, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant appeals his conviction for carrying a concealed firearm and unlawful possession of a firearm by a convicted felon.

On January 25, 1974, three police officers observed the defendant Julio Ramon Regalado receive a package from a female and put it in his automobile. When the officers ordered the defendant to halt he reached behind his back, the police officers drew their guns and placed the defendant against the wall. Upon patting him down, the officers removed a pistol which was tucked under the defendant’s trousers at the small of his back. Defendant was charged and at the preliminary hearing the magistrate dismissed the charges on the grounds of an illegal search and seizure. Thereafter, an information was filed charging defendant with carrying a concealed firearm and unlawful possession of a firearm by a convicted felon. Defendant filed a motion to suppress the pistol found on his person. This motion was denied and the cause proceeded to a non-jury trial at which defendant again moved to suppress. The motion was denied and defendant was adjudicated guilty and sentenced to concurrent sentences of 5 years for carrying a concealed weapon and 15 years for possession of a firearm by a convicted felon.

Defendant first urges as error the trial court’s overruling the determination of the magistrate at the preliminary hearing that the search and seizure of the pistol was illegal.

The sole purpose of a preliminary hearing being to determine probable cause and the magistrate’s duties being limited to examination, discharge, binding over and/or setting bail, we find that the magistrate’s court has no jurisdiction to suppress evidence. See State v. Everly, Fla.App.1969, 228 So.2d 923; Caves v. State, Fla.App. 1974, 303 So.2d 658.

Appellant secondly contends the trial court erred in refusing to allow the defendant to present an additional witness at trial for the purpose of testifying on the renewed motion to dismiss.

There was no abuse of discretion on the part of the trial judge as there was no need to permit new testimony with regard to the motion to suppress which had been disposed of prior to trial. See Davis v. State, Fla.App. 1969, 226 So.2d 257.

Affirmed.


author: PER CURIAM. PER CURIAM.

text:
    Gerald Joseph HERZOG, Appellant, v. Flora HERZOG, Appellee.
    No. 75-13.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Rehearing Denied April 22, 1976.

      Prunty, Ross, DeLoach & Olsen, Miami, for appellant.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Gerald Joseph Her-zog from those portions of a final judgment of dissolution of marriage in which permanent alimony and the home were awarded to Flora Herzog, the wife, and from an order taxing costs, awarding attorneys fees and denying the husband’s petition for rehearing.

The husband contends that the trial court erred in (1) requiring him to pay lump sum alimony in the amount of $5,000 in addition to the monthly alimony payments; (2) conveying to the wife, the residence property owned by the parties by the entireties, and (3) awarding an attorneys fee of $5,000 for the services of the wife’s attorney.

As to the first point, we initially note that the final judgment does not state whether the transfer of the husband’s interest in the house is by way of special equity, lump sum alimony or for some other purpose. It appears from the record that Flora Herzog owned the house at the time of her marriage to Gerald Herzog. During the course of the marriage, Flora transferred the house into both names, allegedly because of fraudulent misrepresentations made by the husband. Flora later agreed to sell Gerald her one-half interest in the house for $10,000, and he proceeded to pay the agreed monthly payments up to a total of $4,700. Gerald subsequently became ill and advised Flora that he wanted to sell the house. She refused and instituted this suit for divorce.

Review of the record indicates that there is no evidence to justify the award of the home to the wife as lump sum alimony or as a special equity. An ordinary conveyance to the entireties of one spouse’s property is presumed a gift. Such a presumption is not easily overcome. Calligarich v. Calligarich, Fla.App.1971, 256 So.2d 60; See Steinhauer v. Steinhauer, Fla.App.1971, 252 So.2d 825. In the instant case, there are no facts to support rebuttal of the presumption of a gift. Therefore, it was error to order the husband to convey to the wife the property held by the entireties. See Owen v. Owen, Fla.1973, 284 So.2d 384. In spite of the oral agreement to sell it to the husband, we hold that the properties owned by the en-tireties, now be held as tenants in common. § 689.15, Fla.Stat.

As to the second point, the cases are legion that a trial judge has broad discretion in determining whether, what type, and in what amount, alimony will be awarded, and that his decision will not be disturbed by an appellate court unless an abuse of discretion is shown. Christianson v. Christianson, Fla.App.1973, 274 So.2d 562; Primato v. Primato, Fla.App.1973, 274 So.2d 568; Sapp v. Sapp, Fla.App. 1973, 275 So.2d 43. No abuse of discretion having been made to appear on the record presented in this case, the award of permanent alimony must be affirmed.

As to the third point relating to attorneys fees, we find no clear abuse of discretion in the award of attorneys fees in this case. See Bosem v. Bosem, Fla.1973, 279 So.2d 863; Greenberg v. Greenberg, Fla.App.1974, 289 So.2d 439. However, due to the relative financial status of each party, we find that it was error to order the husband to pay the entire amount of the attorneys fee. See Mertz v. Mertz, Fla.App.1973, 287 So.2d 691, and compare Melton v. Melton, Fla.App.1971, 251 So.2d 705. Therefore, for the reasons stated and on the authorities cited, the final judgment of dissolution of marriage and the order taxing costs, awarding attorneys fees and denying the petition for rehearing are affirmed in part and reversed in part and remanded to the trial court with instructions to place title of the former marital domicile in both parties’ names, as tenants in common, as provided by § 689.15, Fla.Stat., and to order that Gerald Herzog pay no more than one-half, ($2,500) of the wife’s attorneys fees.

It is so ordered.

ON REHEARING

PER CURIAM.

A petition for rehearing having been filed in this case by Flora Herzog, the ap-pellee, and the court having taken into consideration the points raised in such petition, the opinion of this court is amended in the following respect:

Due to the fact that the appellee wife owned the marital residence at the time of her marriage to the appellant, and that the transfer of the house to their joint names occurred prior to the date of adoption of the 1968 Florida Constitution, we recede from our holding that the house is to be held as tenants in common based on the presumption of a gift. Rather, we hold that it is to be held as tenants in common since the appellant gave good and valuable consideration in keeping with the agreement between the parties.

The remaining points raised in the petition are without merit and will not be discussed. No useful purpose would be served by rehearing this cause. Accordingly, the petition for rehearing is denied.

It is so ordered.

      . See Yandell v. Yandell, Fla.1949, 39 So.2d 554.

      . See Hanzelik v. Hanzelik, Fla.App.1974, 294


author: JOHNSON, Judge. PER CURIAM.

text:
    David R. BARNES, Appellant, v. The LINCOLN NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. U-375.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1975.
    On Rehearing April 15, 1975.
    Roderic G. Magie of Levin, Warfield, Graff, Mabie & Rosenbloum, Pensacola, for appellant.
    Robert P. Gaines of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellee.
   JOHNSON, Judge.

Appellant herein, plaintiff below, seeks reversal of a final summary judgment in favor of defendant-appellee. After consideration of the pleadings, the affidavit of plaintiff, the depositions of two physicians taken on behalf of each of the parties, and the motions for summary judgment filed by both parties, the trial court granted appellee’s motion, holding that appellant is not entitled to recover any further benefits under his insurance policy due to the fact that his disability did not result solely from accidental bodily injury occurring subsequent to the effective date of the policy.

We have carefully examined the record on appeal and the briefs submitted by the parties. Upon our consideration thereof, we conclude that the record does not reflect any genuine issues of material fact which stand in the way of judgment as a matter of law, and the entry of summary judgment in appellee’s behalf was proper. The trial court had before it the depositions of two physicians, who had previously treated appellant, concerning the nature and cause of appellant’s present disability. The testimony of each physician corroborated the other to the effect that appellant’s present disability and problems all relate back to his 1963 surgery for a disc disease. Thus, we find that the trial court was correct in entering summary judgment for appellee on the basis that appellant’s present disability did not result solely from accidental bodily injury occurring subsequent to the effective date of the policy — February 24, 1965.

Affirmed.

BOYER, Acting C. J., and McCORD, J., concur.

ON PETITION FOR REHEARING

PER CURIAM.

On February 25, 1975, our opinion was filed in this cause. Thereafter, petition for rehearing was filed by appellant calling attention to § R 8(b) of the insurance policy which provides as follows:

“(b) No claim for benefit provided by this policy as a result of disability commencing after two (2) years from the policy date hereof shall be reduced or denied on the ground that a disease or physical condition, not excluded from coverage by name or specific description, which caused or contributed to the disability which had existed prior to the effective date of this policy.”

Appellant contends in the petition for rehearing that appellee does not have the right to contest the claim for additional benefits under the policy on the basis that a disease or physical condition, not excluded from coverage by name or specific description, which caused or contributed to the disability had existed prior to the effective date of the policy.

The petition for rehearing assumes a new ground or position from that taken in the original argument and briefs upon which this cause was submitted and is, therefore, in violation of Rule 3.14, F.R. App.P. Further, we are unable to determine that this contention was made in the trial court. In spite of the violation of the aforesaid rule, however, in the interest of justice, we temporarily remand this cause to the trial court for its consideration of appellant’s contention and its determination of whether or not its final summary judgment should or should not be modified.

Upon the trial judge’s entry of a supplemental order in this cause, it is directed that the Clerk of the Circuit Court, First Judicial Circuit of Florida, forward a certified copy of same to this court. The parties hereto will be allowed 10 days from the filing in the circuit court of the trial judge’s supplemental order within which to each file a supplemental brief. Thereafter, this court will make such further ruling on the petition for rehearing as it may deem appropriate.

BOYER, Acting C. J., and McCORD and JOHNSON, JJ., concur.


author: BOLIN, Judge.

text:
    William B. LAWRENCE, Plaintiff-Appellant, v. George E. WILLIAMS et al., Defendants-Appellees.
    No. 12860.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Writ Refused June 15, 1976.
    Kidd, Katz & Strickler by Stephen J. Katz, Monroe, for plaintiff-appellant.
    Hudson, Potts & Bernstein by W. Craig Henry, Bruscato & Loomis by Anthony J. Bruscato, Monroe, for defendants-ap-pellees.
    Before BOLIN, HALL and MARVIN, JJ-
   BOLIN, Judge.

Plaintiff, William B. Lawrence, has appealed from a judgment of the district court which dismissed without prejudice his demands against defendants, George E. Williams, Joyce Williams, and Allstate Insurance Company. The dismissal was based on plaintiff’s failure to cure defects of his petition within the time specified by the court in its ruling sustaining defendants’ dilatory exception of vagueness. We reverse and remand.

Plaintiff filed suit against six defendants on February 20, 1974, to recover damages for personal injuries he sustained in an automobile accident on February 20, 1973. Three of the named defendants filed a dilatory exception of vagueness alleging plaintiff’s petition failed to describe with specificity the injuries sustained and the medical expenses incurred.

The trial court, acting through the Honorable William Norris, III, sustained defendants’ dilatory exception and ordered plaintiff to amend his petition within fifteen days to cure the vagueness of his petition. The order signed by the judge stated: “. . .in default of such further amendment within the said 15 days, plaintiff’s suit will 'be dismissed with prejudice.”

On June 10, 1975, one week after the expiration of the fifteen day period, plaintiff amended his. petition to remedy the vagueness of his original pleading.

On June 19, 1975, the three defendants filed a rule to show cause why plaintiff’s suit should not be dismissed with prejudice for plaintiff’s failure to amend his petition within the fifteen day period which the court had allowed.

The trial court, acting through the Honorable Robert T. Farr, heard the argument on defendants’ rule. In rendering judgment for the defendants which dismissed plaintiff’s suit without prejudice, the judge stated:

. the Court holds that in face of a clear unambiguous judgment as was rendered by Judge Norris, the Court has no discretion and with respect to the moving defendants, plaintiff’s case will be dismissed without prejudice, and at plaintiff’s cost.

Thereafter, plaintiff filed a supplemental petition which attempted to bring the three defendants back into the suit. The defendants filed an answer and a peremptory exception of prescription in which they alleged plaintiff’s cause of action had prescribed since the original petition which had been dismissed did not serve to interrupt the prescriptive period.

Fearing the possible sustaining of the plea of prescription, plaintiff then perfected a devolutive appeal from the judgment dismissing his suit without prejudice. In this court, he urges the action of the trial court was an abuse of discretion.

The statutory authority for the trial court’s action is found in Code of Civil Procedure Article 933, which provides in part:

When the grounds of the other objections pleaded in the dilatory exception may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the suit shall be dismissed only for a noncompliance with this order.

In commenting on this article, the court in Washington v. Flenniken Construction Company, 188 So.2d 486 (La.App.3d Cir. 1966), stated:

The basis of this dismissal is the power of the court to enforce compliance with a lawful procedural order in connection with a dilatory exception, Bogan v. Byrom, La.App. 3 Cir., 151 So.2d 718, for by definition the dilatory exception “merely retards the progress of the action” and “it is not filed in order to defeat the action”, LSA-C.C.P. Art. 923. For this reason, the judgment of dismissal for failure to cure the defect urged by dilatory exception has consistently been without prejudice, with trial court dismissals being so amended when not so providing. Martin v. Garon, La.App. 4 Cir., 172 So.2d 751; Bogan v. Byrom, La.App. 3 Cir., 151 So.2d 718; LaFleur v. Dupuis, La.App. 3 Cir., 147 So.2d 724.

It is apparent from his reasons that Judge Farr predicated his decision to dismiss plaintiff’s petition on the belief he had no discretion to do otherwise in view of Judge Norris’ statement in the interlocutory order that, “. . . in default of such further amendment within the said 15 days, plaintiff’s suit will be dismissed with prejudice.”

Contrary to the holding of the trial court, we find the decision to dismiss is discretionary. Code of Civil Procedure Article 933 admittedly vests the court with the power to dismiss a suit for the failure of a litigant to comply with a lawful order of the court to correct defects properly raised by a dilatory exception. However, the exercise of that power is within the discretion of the trial court and is in no way mandatory. Bogan v. Byrom, 151 So.2d 718, 721 (La.App.3d Cir., 1963). Due to its discretionary nature, the decision to dismiss depends on the particular facts of each case.

The pleadings and arguments on defendants’ rule reveal that plaintiff’s original attorney had been discharged and his present counsel enrolled after the dilatory exception had been fixed for hearing. On May 19, 1975, the court sustained the defendants’ dilatory exception and ordered plaintiff to amend within fifteen days. The information needed to cure the vagueness of plaintiff’s petition was in the files of plaintiff’s first attorney. Plaintiff’s present counsel telephoned and wrote plaintiff’s first attorney on May 19, and on several dates thereafter, asking that the information be forwarded to him. He finally received the material on June 9 and filed his amended petition on June 10, one week after the expiration of the fifteen day period allowed by the trial court’s order. On June 19 defendants filed the rule to show cause why plaintiff’s petition should not be dismissed for failure to amend within the fifteen day time frame. It is worthy of note that this rule was filed after plaintiff had amended his petition and cured the vagueness objected to by defendants’ dilatory exception.

This is not a case in which defendants have been prejudiced by the short delay (witness the filing of defendants’ rule after the amendment); nor is it a situation in which the plaintiff’s failure to amend was a willful refusal of a court’s order (plaintiff’s counsel diligently tried to comply within the time prescribed by the court) ; nor has the authority of the trial court been compromised (the amendment was actually made and the short delay did not interfere with orderly judicial administration).

As noted above, defendants have filed a peremptory exception of prescription to plaintiff’s supplemental petition. While we express no opinion on the merits of defendants’ exception, we do recognize the pend-ency of the exception; that the exception must be argued and ruled on in the court; and that judgment could possibly be rendered against plaintiff. In view of the pend-ency of the prescriptive plea and the other facts of. this particular case, we conclude it would be unduly harsh to dismiss plaintiff’s suit. Had the trial court in its discretion dismissed plaintiff’s suit without prejudice, we would reverse as being an abuse of such discretion. We therefore see no useful purpose in remanding this case to the district court in order to permit that court to decide whether or not to dismiss plaintiff’s petition.

The judgment dismissing without prejudice plaintiff’s petition against the defendants, George E. Williams, Joyce Williams, and Allstate Insurance Company, is reversed and set aside. Defendants’ rule to dismiss plaintiff’s suit is rejected. The case is remanded for further proceedings consistent with the views expressed herein. All costs are to await the final determination of the cause.


author: EDWARDS, Judge.

text:
    William J. GUSTE, Jr., et al. v. Gordy DEMARS, d/b/a Superior Construction & Remodeling Service.
    No. 10609.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.

      Wm. J. Guste, Jr., Atty. Gen., C. James Gelpi, Executive Asst. Atty. Gen., Thomas S. Halligan, Asst. Atty. Gen., and Charles R. Albright, II, Staff Attorney, Baton Rouge, for appellant.
    Jerry H. Bankston, Baton Rouge, for ap-pellee.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   EDWARDS, Judge.

Plaintiff-appellant filed suit under the provision of La. R.S. 51:1401 et seq. (Unfair Trade Practices and Consumer Protection Law) to enjoin defendant-appellee roofing contractor from making certain representations concerning the quality and service warranty of his work. Defendant-appellee filed an exception of no cause of action, which was overruled after a hearing on December 9, 1974. Pursuant to a rule nisi for the preliminary injunction, a hearing on the merits was held on December 16, 1974, and testimony was adduced. Judgment was rendered and signed accordingly on May 19, 1975, in favor of defendant-appellee and against plaintiff-appellant, recalling the rule therein issued. Plaintiff-appellant timely moved for an appeal, and the same was ordered on May 22, 1975.

FACTS

For about two years prior to this suit, appellee had been operating a business under the name of Superior Construction and Remodeling Service. Most of his work involved roofing; he had performed some fifty roofing jobs over this period. Complaints were made to the Governor’s Consumer Protection Division following three of the jobs. The testimony at trial concerning these three jobs showed the following :

Appellee contracted with Mrs. Odra Le-teff on February 27, 1974 to remove the old roof from her home and to install a new one. The contract represented that “All work to be completed in a workmanlike manner” and “according to the City, State and National (Roofing) Code.” Three days after the job was completed, it rained and the roof leaked. Mrs. Leteff called the appellee, who offered to repair the roof. Mrs. Leteff refused, hiring instead another roofer to replace it with a new roof.

In March, 1974, appellee contracted with Mrs. Emile Noto to replace her old roof. In addition to the printed specification of workmanlike manner of performance, the contract also provided that the contractor guaranteed the roof for one year. A week after installation the roof leaked. When he was notified by Mrs. Noto, appellee came to the house to inspect the problem. Appellee testified that he had been willing to repair the roof but could not until the rain stopped. In the meantim'e, Mrs. Noto hired someone else.

Appellee performed the third job on the home of Mrs. Lucille Weiss. The contract again specified that the work would be done in a workmanlike manner. After completion of the roof, the rains came and it leaked. Appellee had one of his employees nail the gutter back into place in an attempt to correct the problem, but the leak remained.

It was also stipulated that, during this two year period, there were some fifty other roofing jobs performed by appellee. Other than one or two minor repairs which appellee corrected, all work was done satisfactorily and without complaint.

The issue herein is two-fold: Did the appellee in fact make false representations and guarantees as alleged; and, if so, are the misrepresentations such unfair and deceptive acts or practices as are prohibited by La. R.S. 51:1401 et seq. ?

Appellant contends that it is an unfair and or deceptive act or practice for appel-lee to represent that he guarantees the quality of his work unless that guarantee be true and to imply falsely that his service is guaranteed if he does not intend to perform the guarantee. Involved here are two alleged misrepresentations: one concerns the quality of the work and the other the service, or willingness to correct any defects afterwards.

We will initially treat the representation concerning the quality of appellee’s work, or, as stated by appellee in his contracts, “all work to be performed in a workmanlike manner.”

It is axiomatic that the measure of success in roofing work is basically a roof that keeps out the rain. By this standard appellee failed in the three documented instances. The trial court so found, but held that this conduct was not the type practice that the law sought to prohibit.

The substantive prohibition of the Unfair Trade Practices and Consumer Protection Law is broad and does not specify particular violations. La. R.S. 51:1405 (A) declares that:

“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.”

The language of this section tracks closely that of the Federal statute, 15 U.S.C. Section 45(a). Because of the variety of possible unfair and deceptive practices, the Federal statute was intentionally broadly written, leaving the determination of individual violations to the Commission and the courts. Our legislature has expressed a similar intention in patterning our law so closely on the Federal statute. Therefore, we may and should consider interpretations of the Federal courts and of the Commission relative to such similar statutes to adjudge the scope and application of our own statute. State, through Dept. of Highways v. Baddock, 170 So.2d 5 (La.App. 1st Cir. 1964).

Appellant in brief cites a wealth of Federal materials dealing with unfair trade practices. Among the citations are five Federal Trade Commission decisions concerning misrepresentations and false guarantees that we may look to for guidance in the instant case. In three of the cases — In re United Factores, Inc., 32 F.T.C. 340 (1941); In re Copper Roofs Corp., 35 F.T.C. 816 (1942); In re Luxury Industries, Inc., 59 F.T.C. 442 (1961) — the respondent companies had falsely represented that their products possessed qualities that in fact they did not possess, and they were enjoined from so representing. We find no authority in these cases for enjoining the appellee herein: there is no allegation concerning the quality of materials used by appellee nor any representation of appellee relative to materials employed. Further, the misrepresentations in the above cases were false in each and every instance made because the product did not and could not possess the quality alleged. Appellee, on the other hand, has shown his ability to perform competently by some fifty satisfactory roofing jobs.

The other two decisions deal with service guarantees. The Commission, In re L. T. Baldwin d/b/a Baldwin Gas Products Co., 50 F.T.C. 975 (1961), enjoined a distributor of water heaters from representing that his product was unconditionally guaranteed for five years where the distributor, “in many cases,” failed and refused to perform under the terms of the guarantee. Likewise, in the matter of In-fraglass-Heater Co., Inc., 58 F.T.C. 124 (1958), a distributor of electric heaters was enjoined from guaranteeing its products when, “in a vast number of instances,” it refused to replace or repair defects.

Appellee, in two of the three documented instances, expressed a willingness at the time the defect was manifested to repair it. Moreover, appellee had in but one instance expressly guaranteed his work for any period of time, that being the Noto job. Because of the paucity of evidence of refusal or unwillingness on appellee’s to perform his service guarantee, this court neither finds any support, in fact or in law, for enjoining appellee under Louisiana’s Unfair Trade Practices and Consumer Protection Law.

The decision of the trial court accordingly is affirmed. All costs as are permitted by law are assessed against appellant.

Affirmed.


author: MARVIN, Judge.

text:
    Wanda J. WAGES v. Robert RIDDLE, d/b/a “Big Star”. Mary L. SKAINS v. Robert RIDDLE, d/b/a “Big Star”.
    Nos. 12863, 12864.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Writ Refused June 11, 1976.

      Holloway, Baker, Culpepper & Brunson, by Donald C. Brown, Jonesboro, for plaintiff-appellant.
    Emmons, Henry & Reeves, by Joseph A. Reeves, Jr., Jonesboro, for defendant-ap-pellee.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

In these actions consolidated on appeal, each plaintiff instituted a separate suit under LSA-R.S. 23:631 and 632 claiming wages, penalties, and attorney fees from defendant, the former employer of plaintiffs. Plaintiffs contend that defendant arbitrarily and without their authorization, deducted from their paychecks 17 percent of one hour’s pay {}/(, of one hour wage rate) for each day worked during their respective periods of employment. Defendant contends that the deduction was explained to and agreed to by plaintiffs before either accepted employment. We affirm judgments rejecting plaintiffs’ demands.

Defendant is the owner and manager of a grocery store. Plaintiffs were employed in the meat market of the store at a wage of $1.60 per hour and were usually paid for a five and one-half day work week of 40 hours. For reasons not stated in the record, Mrs. Skains quit working in October, 1973, and Miss Wages quit work in March, 1974.

Defendant allotted his meat market employees 10 minutes of each working day to attend to personal needs and grooming before and after their work period. The 17 percent deduction resulted from this 10 minute period. After the termination of their employment, Miss Wages and Mrs. Skains, believing the deduction to be unwarranted confronted their former employer on March 26, 1974, with demands for compensation. Miss Wages claimed $76.00 and Mrs. Skains claimed $37.20. Although the testimony as to what transpired at the confrontation is in conflict, the employer refused to meet the demands and suits were promptly filed. During appellate argument, plaintiffs’ counsel stated that plaintiffs’ claims were not founded on federal statutes.

The lower court found that plaintiffs were paid according to their agreement with the employer for the several months periods they were employed and that no further wages were owed by the employer.

The issue as to what agreement defendant and plaintiffs entered into with regard to their employment presents questions of fact, the resolution of which is best determined by the trial court. The trial court’s findings will not be disturbed on appeal in the absence of manifest error (Canter v. Koehring Co., 283 So.2d 716 (La. 1973)). The record adequately reflects that the contested wage deduction was made known to the plaintiffs before and during the period they were employed. Plaintiffs admitted during trial they were aware of the deduction at the beginning of or shortly after beginning their employment. We see no manifest error in the trial court’s finding.

At appellant’s cost, the judgment in each case is

AFFIRMED.


author: PER CURIAM:

text:
    In re TRANSITION RULE 20 TRAFFIC COURT RULES 6.110 and 6.156.
    No. 46571-F.
    Supreme Court of Florida.
    March 31, 1976.
    Larry J. Sartin, Tallahassee, for the Traffic Court Review Committee, petitioner.
   PER CURIAM:

Pursuant to a petition from the Traffic Court Review Committee, rules 6.110 and 6.156 of the Florida Rules of Practice and Procedure for Traffic Courts, are amended in the manner as appended to this opinion and said amendments are hereby adopted. The present members of the Traffic Court Review Committee are reconstituted as the members of committee under the amendment to rule 6.156. These amendments shall be effective immediately.

It is so ordered.

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

Rule 6.156 Review Committee

(a) A committeee is hereby established to be known as the Traffic Court Review Committee. Its members shall be appointed by the Supreme Court. It shall be composed of at least ten (10) members who shall serve without compensation. The State Traffic Courts Director shall serve as Executive Secretary of the committee.

(b) All appointments shall be for three year terms or until a successor is appointed, whichever is longer.

(c) The Supreme Court shall designate one of the members to be chairman from time to time. The members of the Committee shall be selected on the basis of experience and interest in traffic adjudication, administration and safety. When practicable the members shall include representation from the following:

(1) The Florida Bar;

(2) County or municipal court level judges';

(3) Prosecuting attorneys from either the county or municipal level;

(4) Law enforcement;

(5) County or municipal court level clerks and deputy clerks;

(6) Administrative agencies such as the Department of Highway Safety and Motor Vehicles; and,

(7) The general public.

(d)The Committee shall meet at least once annually on the call of the chairman and at such other times as the chairman or the Supreme Court may direct. All matters or complaints concerning the administration of these rules by Traffic Courts shall be considered by the committee. Any continued or willful violation or evasion of the rules by a judge, official, clerk or other court personnel shall be brought to the attention of the Supreme Court. If the Supreme Court deems it proper, a contempt proceeding may be initiated against the judge, official, clerk or other court personnel. The Supreme Court shall appoint a circuit judge from a different judicial circuit to take evidence in the matter and report his findings and recommendations to the Supreme Court. Notice of the time and place of the hearing before the circuit judge or the Supreme Court and a specification of the alleged violation or evasion shall be given to the judge, official, clerk or other court personnel complained against. The rules applicable to criminal contempt proceedings shall apply to these proceedings. After receiving the findings and recommendations of the circuit judge or hearing the matter itself, the Supreme Court may punish any willful violation or evasion of these rules in the same manner as criminal contempts. Until such time as the matter is referred to the Supreme Court all such proceedings shall be confidential.

Rule 6.110 Driver Improvement, Student Traffic Safety Council, and DWI Counter Attack Schools

(a) In those areas where traffic law violators are sentenced or are allowed to elect to attend a driver improvement school or student traffic safety council school or are sentenced to a DWI Counter Attack School, the chief judge of the circuit shall issue a local rule designating the schools to which attendance is required. No DWI Counter Attack School shall be approved by the chief judges until approval is first granted by the DWI Schools Coordinator or the Traffic Court Review Committee.

(b) Any school not designated by the chief judge may seek approval by petition to the Traffic Court Review Committee.

(c) Any schools designated to serve an area of the state are subject to the inspection and supervision of the Traffic Court Review Committee.


text:
    THE FLORIDA BAR, Complainant, v. Philip E. PFEILMAIR, Respondent.
    No. 47335.
    Supreme Court of Florida.
    March 24, 1976.
    Robert T. Scott, Bar Counsel, Palm Beach and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

This case is before us on petition by The Florida Bar seeking review and modification of the recommendation of discipline for respondent made by the referee after hearings on two complaints against the respondent. The referee found all material allegations in the Bar’s complaint had been proved. It was recommended that respondent be suspended from the practice of law for one year and thereafter until such time as rehabilitation was shown and restitution had been made of certain converted funds. The Bar requests that respondent be disbarred.

The hearing on the first complaint disclosed breaches of the Code of Professional Responsibility in regard to the affairs of eight clients. The facts in regard to each client are as follows:

Respondent was retained by Mr. and Mrs. Glenn A. Geer to represent them in the sale of some real estate to an out of state couple. At the closing in November 1971, he accepted checks in connection with the sale for the down payment, title insurance and fees. He placed these funds in his general account, rather than a trust account, but never disbursed the title insurance payment. Prior to the sale, a commitment and binder to insure title had been issued by William Brant and sent to respondent. On November 16, 1971, at respondent’s direction, a warranty deed was executed by Mrs. Geer as an individual and as guardian for Mr. Geer inasmuch as Mr. Geer had been declared incompetent. This deed was not recorded by respondent until June 30, 1972. By that time, Mr. Geer was restored to competency, thereby invalidating the deed. After Mr. Brant learned of the problem he contacted respondent who denied any knowledge of Mr. Geer’s restoration to competency. Respondent then attempted without success to have Mrs. Geer correct the situation. No title policy ever issued, and the binder was returned. Respondent never learned whether the buyers received good title, and he never checked with them. At his disciplinary hearing he still retained the buyers’ title insurance payments, which he said he would return. Respondent admitted that the delays in processing this transaction, especially the deed recordation, were caused by his own dilatory actions.

Respondent assisted and counseled Mrs. Doris Press in the sale of her deceased husband’s business to an associate. He drafted the agreement which was signed on August 3, 1971, calling for transfer on November 1, 1971. The terms stipulated a price of $5,200 with a down payment of $500 and the balance due before November. The buyer exercised an option to give a note drafted by respondent calling for monthly payments of $100 beginning in November. He received several payments, deposited them in his general account until they cleared, and then put the cash in his safe. After he had accumulated $700 or $800, the buyer began sending the money to a different attorney. Respondent testified he did not forward the money on to Mrs. Press because she had not provided him with a bill of sale. It is disputed whether he ever sent her one. Payment to Mrs. Press was made from respondent’s general account after a grievance committee formally began disciplinary proceedings.

Robert Wright, a blind man, hired respondent in October 1972 to compel the seller of a mobile home to perform on a contract as promised. Respondent accepted a retainer of $150 and filed suit in January 1973. Aside from two conversations with opposing counsel, nothing further was accomplished until Mr. Wright later dismissed him and sought other legal help. Although respondent claimed he had communication and service of process problems with the defendant corporation, and that he had visited the site on several occasions, he also told the referee he had done very little after January. The retainer was placed in his general account, and no refund was offered because respondent believed he had earned the money.

In October 1972 respondent represented Mr. David Lipford, who was divorced, in the sale of a house to buyers who were not represented by counsel. The buyers wrote a $1,000 check to Mr. Lipford as a down payment on October 13, 1972. They were advised the former Mrs. Lipford would have to sign the contract prepared by respondent before the transaction could be completed. Respondent made no attempt to get the signature and stated his belief that Mr. Lipford had secured her signature. In January 1973, respondent contacted the buyers after Mr. Lipford informed him they were three months in arrears. They sent three checks for $162.40 each, explaining that they had been waiting for a coupon book. Respondent placed the money in his general account and, pursuant to an apparent oral agreement with Mr. Lipford, used it for a previously owed fee, for mortgage payments, and for transcripts for his clients. Six months after the October transaction, Mrs. Lipford acquired full ownership of the property and succeeded in evicting the buyers. Respondent had never contacted her regarding the purchase, and no closing ever occurred despite the fact the buyers took possession in October.

, Mrs. Rebecca Ann Paden retained respondent in November 1972 to obtain a divorce, paying an advance fee of at least $325. A complaint was filed on November 10, 1972, and a summons obtained from the clerk a week later. The summons was not forwarded to the sheriff for service on the defendant until April 25, 1973 and then it was incorrectly addressed. Respondent could not recall the reason for the delay, but did manage to secure a final decree in July 1973.

Mr. and Mrs. Tirillo paid respondent a $95 retainer in May 1973 to recover their automobile from a mechanic who refused to surrender it. After promptly filing suit, respondent did little else with the case until he turned it over to another attorney in November 1973. He claimed service of process problems; the Tirillos testified they could not contact him. The Tirillos located their car and discovered the mechanic was going to sell it, at which time they learned that respondent had turned the case over to another attorney who represented the mechanic. Eventually they got their car back, in a badly damaged state, after filing a complaint against respondent with the grievance committee. Respondent informed them he was turning the file over to another attorney, and that he had earned the fee. He failed, however, to forward their file on that case, or on a dog bite matter to another attorney despite a demand letter.

Mr. George Cuskaden hired respondent in August 1973 to collect approximately 11 delinquent accounts for him. He paid respondent $318 for costs, agreeing that the attorney’s fee would be a percentage of the amount collected. Respondent collected on one or two accounts, turned the rest over to another attorney, and left the state. The money was placed in his general account. Eventually he sent a check for the amounts he collected from Atlanta, but only after the second grievance committee meeting. He testified the reason for late payment was that the client did not demand the funds and was not concerned.

Margaret Sweat, now Chester, hired respondent to secure a dissolution of marriage in August 1973, paying him $200. Although respondent never filed suit, he told her a final hearing was scheduled in January 1974. Respondent stated he thought the case had been filed, and he admitted he was negligent. The fee from Mrs. Sweat was returned after grievances against him were heard.

Respondent testified that he maintained a trust account only once, for a month or so in a specific transaction. Thereafter, he operated his law office and personal business out of his general account in the First Marine Bank of Riviera Beach. All monies, including clients trust funds, were placed there upon receipt. Respondent admitted he was aware of the trust accounting rules, especially after the June 1973 grievance hearing, but failed to establish one. Respondent decided to leave private practice about that time. He transferred his open cases in November 1973, and took a position with the federal government in Atlanta.

The hearing on the second complaint disclosed that on July 11, 1973, respondent represented Mr. Harry M. Harris at a real estate closing from which the proceeds were to be divided eqüally. Mr. Harris’ share was to be $5,649.34 at the closing. At a previous date, Mr. Harris had signed the closing statement and other papers because he would be in New Jersey on vacation on the date of closing. Upon Harris’ return in July, he went to respondent’s office and gave his secretary a check for $100 for legal representation. He did not then see respondent, nor was he able to contact him for three weeks. At that time respondent took Harris to lunch and broached the idea of investing his proceeds. Mr. Harris declined. At a second luncheon on or about August 31, 1973 Harris told respondent he wanted his money and was told he would have it in a few days. On September 11, respondent advised Harris that he had invested the money but would get it back as soon as possible. Despite repeated promises to return the money over the next several weeks, respondent failed to do so. In November he closed out his practice and left the area. Harris located him in Atlanta but failed to secure his money, despite several more calls and promises extending over several months. During this period Harris also contacted the real estate people to ascertain his exact share, never having been told by respondent, and learned that the check had been made out to respondent. Respondent testified that he had cashed the check the next day and used the funds for his own personal use and for investment purposes, claiming Harris’ permission. He indicated that Harris had approved the loan prior to the closing, but admitted he never gave him a note or any other written evidence of indebtedness. He later admitted that only $200 was invested, and the rest was used for personal items such as living expenses. As of the date of final hearing, respondent had not delivered any of Harris’ money.

These facts support the finding that respondent violated Disciplinary Rules 7-101(A)(2),' 7-101 (A) (3), 6-101 (A) (2), 6-101(A)(3), 9-102(A)(1), 9-102(A) (2), 9-102(B)(1), 9-102(B) (2), 9-102(B)(3), 9-102(B)(4), 1-102(A) (3), 1-102(A)(4), 1-102(A)(5) and 1-102(A)(6). It is obvious that respondent is entirely unsuited to the practice of law and that the referee’s recommendation is far too lenient. The Florida Bar’s request that respondent be disbarred is granted.

Philip E. Pfeilmair is hereby disbarred. The disbarment shall be effective on May 10, 1976, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. The filing of a petition for rehearing shall not alter the effective date of this disbarment. Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $1,807.12.

It is so ordered.

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


author: PER CURIAM. .

text:
    Ben D. WILDER, etc., Petitioner, v. Thomas J. ZAYDON et ux., Respondents.
    No. 46897.
    Supreme Court of Florida.
    March 24, 1976.
    Rehearing Denied April 30, 1976.
    Allen Kornblum of Caidin, Rothenberg, Kogan, Kornblum & Benjamin, Miami, for petitioner.
    S. Harvey Ziegler of Meyer, Weiss, Rose & Arkin, Miami Beach, for respondents.
   PER CURIAM. .

Certiorari was granted in this cause because of apparent conflict between the instant decision of the District Court of Appeal, Third District, reported at 305 So.2d 81 (Fla.App.1974) and the decision of the District Court of Appeal, Third District, in Block v. Drucker, 212 So.2d 890 (Fla.App. 1968).

After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ heretofore issued is discharged.

It is so ordered.

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


author: BOYD, Justice. ENGLAND, Justice

text:
    Paul Eugene CUMMINGS, Petitioner, v. Dorothy June CUMMINGS, Respondent.
    No. 44908.
    Supreme Court of Florida.
    March 31, 1976.
    England, J., dissented and filed an opinion in which Overton, C. J., and Sundberg, J., concurred.

      Michael L. Hastings, of Parker, Battag-lia, Parker, Ross & Stolba, St. Petersburg, and Antinori, Cohen & Thury, Tampa, for petitioner.
    Ann Loughridge Kerr, Tampa, for respondent.
   BOYD, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 287 So.2d 368. Our jurisdiction is based upon conflict between the decision sought to be reviewed and Gordon v. Gordon; Steinhauer v. Steinhauer, Farrow v. Farrow, Thigpen v. Thigpen, inter alia. The facts of the case are as follows:

Respondent-wife sought a dissolution of marriage from Petitioner-husband, which was granted, Respondent being awarded the marital home, together with furniture, fixtures and appliances therein, as lump sum alimony. Also, Petitioner was directed to pay $535.00 as attorney’s fees and costs. The District Court of Appeal, Second District, modified the judgment by setting the attorney’s fees at $350.00 and deleting the reference to costs without prejudice to Respondent to file a motion to tax costs in the trial court. The District Court also provided that Petitioner would not be foreclosed from seeking an order under Rule 1.540, Rules of Civil Procedure, “whereby the party who received property as a result of the divorce would be declared primarily liable, as between the parties, for debts which are secured by liens on that property”. The parties had been married five years and had no children, and the wife’s income was approximately equal to that of the husband, at least during the last few years when both parties were public school teachers.

As stated in Thigpen, supra:

. . The new concept of the marriage relation implicit in the so-called ‘no-fault’ divorce law enacted by the legislature in 1971 [Chapter 71-241, Laws of 1971; Chapter 61, F.S.] places both parties to the marriage on a basis of complete equality as partners sharing equal rights and obligations in the marriage relationship and sharing equal burdens in the event of dissolution.”

With this fundamental concept in mind, we turn our attention to the problem of the marital home, which was given to Respondent as lump sum alimony. It is Petitioner’s position, and we agree, that the marital home and furnishings owned by the parties in a tenancy by the entireties shall be held after dissolution of marriage of the parties as tenants in common pursuant to Section 689.15, Florida Statutes. Furthermore, in light of the substantially equal income of the parties prior to separation, it is evident that the award of lump sum alimony sub judice is unsupported since there is no positive showing of necessity on the wife’s part, even though the husband may possess the pecuniary ability to supply the necessity.

Concerning Petitioner’s complaint regarding the order requiring him to pay Respondent’s attorney’s fees, the parties agree that the stipulation below went only to the reasonableness of an attorney’s fee and did not constitute a stipulation by Petitioner to pay such a fee. We think Petitioner is justified in his protest. As stated in Mertz v. Mertz:

. . the purpose of awarding attorney fees under the new dissolution of marriage law has not changed, in our view, from the purposes contemplated by its predecessors; that purpose is to insure that both parties will have reasonably the same ability to secure competent legal counsel. Here, the wife is clearly on equal if not superior footing with the husband to secure such counsel.

We find it was an abuse of the court’s discretion to require Petitioner to pay Respondent’s attorney’s fees.

Petitioner’s final challenge to the lower court’s ruling relates to its failure to make any findings as to the responsibility of the parties regarding the debts incurred by them during marriage. Petitioner suggests that, inasmuch as the individual income of the parties is substantially equal, the debts of the parties as of the date of separation should be divided between them on an equal or 50-50 basis; he adds that to insure equality between them, each party should be given credit for all monies paid toward the satisfaction of any debt if such payment was made subsequent to the separation of the parties. Under the facts of this case, which show that Respondent-wife is in at least as good a financial position as Petitioner-husband, this seems to be an equitable solution. We find that the following quotation from the case of Beard v. Beard, as it relates to alimony, applies equally to the general financial situation of parties to a dissolution of marriage action:

“. . . In this day and time, women are as well educated and trained in the arts, sciences, and professions as are their male counterparts. The law properly protects them in their right to independently acquire, encumber, accumulate, and alienate property at will. They now occupy a position of equal partners in the family relationship resulting from marriage, and more often than not contribute a full measure to the economic well-being of the family unit. Whether the marriage continues to exist or is severed through the device of judicial decree, the woman continues to be as fully equipped as the man to earn a living and provide for her essential needs. The fortuitous circumstance created by recitation of the marriage vows neither diminishes her capacity for self-support nor does it give her a vested right in her husband’s earnings for the remainder of her life.

We hold, therefore, that in light of the facts and circumstances of the instant case, the trial court erred in awarding Respondent the marital home, together with the furniture, fixtures and appliances therein, as lump sum alimony; that it erred in directing Petitioner to pay Respondent’s attorney’s fees and costs, and that it was error for the court to fail to specify the parties’ responsibilities regarding the obligations incurred by them during marriage. By adopting such an equal position regarding the parties’ indebtedness, the court will insure that women have both equal rights and equal responsibilities and obligations as required by Article X, Section 5, Florida Constitution. We therefore must reverse the District Court of Appeal on this point.

Accordingly, the decision of the District Court of Appeal, Second District, is quashed and the cause remanded for further proceedings consistent herewith.

It is so ordered.

ROBERTS, ADKINS and HATCH-ETT, JJ., concur.

ENGLAND, J., dissents with an opinion.

OVERTON, C. J., and SUNDBERG, J., dissent and concur with ENGLAND, J.

ENGLAND, Justice

(dissenting).

I respectfully dissent. We have no jurisdiction to review the district court’s decision. Whatever our personal views may be as to the “justice” of the cause, they are not appropriately expressed at this third judicial level unless there is a “direct conflict” between the district court’s decisions and those of other Florida appellate courts. Article V, Section 3(b)(3), Florida Constitution. Here there is none.

The trial court had the responsibility to exercise its discretionary authority to consider all facts necessary to do equity and justice between the parties. Section 61.-08(2), Florida Statutes (1974). Its decision was reviewed in depth by the district court. A majority of the Court, after reviewing the record for a third time, simply disagrees with the result those lower courts reached. Not only is that disagreement constitutionally improper, it is necessarily made from the least reliable source — a second level appellate record.

I would discharge the writ.

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

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

      . 192 So.2d 514 (Fla.App.1966).

      . 252 So.2d 825 (Fla.App.1971).

      . 263 So.2a 588 (Fla.App.1972).

      . 277 So.2d 583 (Fla.App.1973).

      . Id. at 585.

      . Naf v. Wahlberg, 288 So.2d 576 (Fla.App. 1974) ; Steinhmer, supra, see Note 4.

      . Gordon v. Gordon, supra, see Note 2.,

      . 287 So.2d 691 (Fla.App.1973).

      . 262 So.2d 269, 272 (Fla.App.1972).


author: SUNDBERG, Justice.

text:
    Charles Dwight MESSER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 46849.
    Supreme Court of Florida.
    March 31, 1976.

      James Ron Shelley, Public Defender, and John W. Fleming, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   SUNDBERG, Justice.

Appellant, a 29-year-old male, appeals his conviction for first degree murder and robbery and sentence of death. This Court has jurisdiction under Article V, Section 3(b)(1), Florida Constitution, and Section 921.141(4), Florida Statutes. The facts of the case are as follows.

On the morning of November 27, 1973, two hunters discovered the body of a male, 25 to 30 years old, in a partially wooded area called Garcon Point. The hunters called the Sheriff’s Department, and subsequent investigation revealed that the body was that of Henry N. Fowler, III, who died of a bullet wound in the brain. In January, 1974, appellant advised Alabama authorities that he wanted to clear his conscience about a Florida killing. The Florida State Attorney traveled to Alabama; when immunity was refused, appellant agreed to “talk” anyway, waiving his Miranda rights. He told the State Attorney that he and Ronnie Brown (subsequently his co-defendant) were present when a third man killed and robbed the victim; appellant identified photographs of the victim and the scene of the crime. The following day appellant waived for the second time his Miranda rights and made a second statement which was similar to the first but with certain differences; he agreed to travel to Florida in order to point out the location of the crime. On January 23, 1974, appellant visited and identified the scene of the crime; also, he waived his Miranda rights for the third time and gave two more recorded statements. In the meantime, a statement had been taken from co-defendant Brown. According to appellant’s final statement, he and Brown had been traveling on the Interstate Highway, he had been drinking liquor and beer, and they stopped at a rest area to look for toilet facilities. When they stopped, they decided to rob the victim, who was asleep in a parked car in the rest area. The pair entered the victim’s car, held him up, drove him to several locations; ultimately Brown struck the victim, and appellant shot him once in the head. Brown had previously taken the victim’s wallet and watch, and the pair divided $120.00 and disposed of the victim’s wallet, personal effects, and car tag.

Appellant was indicted on February 6, 1974, for the first degree murder and robbery of Henry N. Fowler, III. Appellant’s motion to suppress confession was heard by the trial court on December 2, 1974, which motion was denied, the court finding that appellant was fully aware of his Miranda rights at the time he made his statements, that appellant’s statements were not the result of any promise, threat or undue influence, that his statements were freely and voluntarily made, and that appellant intelligently waived his Miranda rights. At the close of the suppression hearing appellant’s jury trial commenced. On the second day of the trial appellant moved for a mistrial on the ground that two deputies who were witnesses went to lunch with the jury; that motion was denied after court investigation revealed that no discussion about the case occurred between the deputies and the jurors. During the course of the trial appellant’s attorney was permitted to place in the record (but not put before the jury) the fact that appellant’s co-defendant Brown had entered a plea of guilty to second degree murder and had been sentenced thereon. After the jury found appellant guilty as charged the court proposed to commence the advisory sentencing hearing on the following morning; appellant’s attorney objected on the grounds that he had not had sufficient time to prepare for such hearing, but this objection was overruled. During the advisory sentencing hearing, appellant’s counsel was not allowed to introduce into evidence a demonstration with a metronome designed to show the jury the severity and length of twenty-five years in prison as a sufficiently severe alternative to the death penalty; this demonstration was ruled inadmissible as being irrelevant to the issue. A majority of the jury recommended the death penalty, which recommendation was followed by the court which sentenced appellant to die in the electric chair. This appeal followed.

We first turn our attention to the fact that an outburst by the victim’s mother occurred in the courtroom during appellant’s closing argument to the jury. According to the record, appellant’s attorney was in the midst of his closing argument when the events with which we are concerned took place. These events are documented in the record as follows:

“(At this point, a woman seated in the courtroom was overcome with emotion and was taken from the courtroom. It was later determined by the court reporter that this was the victim’s mother.)”

Immediately following that notation, the record reveals that appellant’s attorney did not object or request a mistrial at this point but, instead, continued his closing statement as follows:

“That’s what we’re dealing with right there — a boy is dead, and I want someone to die. It is the same total disregard for life and breath that God gives that led Charles Messer to kill an innocent man in the wilderness.”

At this point appellant’s attorney requested a break in his argument; a brief recess was taken after which the court recessed for lunch. Thereafter, appellant’s attorney continued his closing argument — again without objection regarding the outburst earlier, without having the jury instructed to disregard it, and without moving for a mistrial. He argued as follows:

“Just before we broke for the luncheon recess the lady that I think you know who she is because of the questions that were asked you before we selected the jury that’s in the box now — there was an outburst, and the court has offered to give an instruction to disregard it because you are not to consider it — that’s not something you should consider under the law and instructions of the court. I made a comment just before we broke, and I feel that we have to go back to that comment to pick up the continuity of where I was at ... [W]hat we saw there — what was taking place with that lady — is exactly what’s involved in whether or not this community is going toward the execution of this defendant. It is called revenge .... And that’s the point I was trying to make when we had that difficulty before.”

In his rebuttal argument, appellant’s attorney in referring to the death penalty statute stated as follows:

“ . . . [Tjhat’s not a bad law. It simply says we will admit the feelings of wrath, of vengence, or resentment, the desire to take the mother of this boy and take her to one side and say, ‘we’re going to try to make things right

After the jury’s verdict of guilty was returned the court held a sentencing hearing. At the beginning thereof the court conducted an evidentiary hearing on a motion for new trial based on the statements made by the victim’s mother during the closing argument. The State Attorney did not object to the hearing of witnesses on this matter, stating that he was in the court and could not hear the mother’s remarks and that he wanted to clarify for the record whether or not the jury was able to hear her. Three witnesses were examined under oath, the first being a newspaper reporter who testified as follows:

“A It was during arguments to the jury as to the death penalty. You were making your comments to the jury at that time.
“Q What occurred, sir ?
“A ... I turned to observe Mrs. Fowler being led from the courtroom in tears.
“A She was the mother of the victim.
“Q Were you able to make out any of the words or anything that she said?
“A No, sir, I was not. I did hear some words being spoken, but it took me in such a surprise that I didn’t actually hear myself.
“A ... I don’t recall observing any emotion the jury might have had.
“JUDGE: That would put you some 30 — 35 feet from the jury box yourself, is that correct?
“A Yes, sir.
“JUDGE: So [Mrs. Fowler] would have been roughly 25 feet from the jury, wouldn’t you say ?
“A Yes, sir, I would say that.
“JUDGE: And you didn’t understand what she said ?
“A No, sir. It was not audible to me.
“Q Did you feel it was a dramatic outburst?
“A I felt it was. . . .”

The second witness examined was a deputy sheriff who testified as follows:

“Q Did you hear, and can you describe what occurred?
“A I heard a sound, but I cannot describe the words that were said.
“Q At the time you heard them, could you hear what was said ?
“A No, sir. It was not something that I could understand.
“JUDGE: So you would have been roughly 20 to 25 feet from the lady as she was speaking, is that correct?
“A Yes. And it would be approximately 20-25 feet.”

The third witness examined was an investigator with the sheriff’s department who characterized the occurrence as a “disruption” ; he stated under oath:

“A . There was some statement made to the jury when I observed her or heard her make some statement, which I couldn’t put it all together, and then she was taken out of the courtroom.
“Q Were you able to hear anything that she did say ?
“A I couldn’t put it all together, no sir.
“Q Could you give it to us in pieces?
“A . . . She stated, ‘How do you know that he done something. . .’, and at that point she was taken out of the courtroom, and I couldn’t hear the rest of it. She didn’t say it all that loud.”

The record indicates that, having heard this testimony, and having considered appellant’s motion for new trial, the court entered its denial.

We note with interest that on page eight of appellant’s own brief he states: “In all candor Appellant concedes that there is ample evidence to sustain the judgment of conviction and that said evidence was properly admitted. Appellant also concedes that there was no substantial prejudice caused by the minor incidents raised in Appellant’s assignments of error . 4 [relating to the mother’s courtroom outburst].”

We must agree with appellant’s characterization that this event was a “minor incident” which did not substantially prejudice him. We are particularly inclined to this view in light of the fact that appellant’s counsel in his argument emphasized both the outburst, which apparently was not heard by the jury, and the revenge motive which allegedly was expressed. Having taken advantage of the situation, appellant may not be heard to complain of it now merely because his argument was not accepted.

We have considered appellant’s remaining points on appeal with respect to the verdict and judgment of guilt of the crimes charged and find them to be without merit.

We now turn our attention to the question of whether the death penalty statute was properly applied by the trial court during the sentence advisory hearing portion of the trial. It is our conclusion that the trial court erred in application of the statute in two particulars. First, although there is evidence in the record of the plea-bargained second degree murder sentence received by appellant’s accomplice Brown, appellant was not permitted, during the sentencing portion of the trial, to submit this evidence to the jury. We believe the jury was entitled to know that the co-defendant, Ronnie Brown, negotiated a plea of guilty to second degree murder and was sentenced to 30 years imprisonment. See Slater v. State, 316 So.2d 539 (Fla. 1975). Although the Slater case, supra, involved evidence that the “trigger man” was permitted to negotiate a plea for a sentence of life imprisonment, under the facts of this particular case we believe the reasoning of Slater applies with equal force. It was there stated, “Defendants should not be treated differently upon the same or similar facts.” In the instant case, although the appellant did fire the shot into the head of the victim, this shooting occurred after Brown took a wallet containing $120 and a watch from the victim, then struck him in the back of the head. There is little to separate out the joint conduct of the co-defendants which culminated in the death of the decedent. The sentence afforded to Brown certainly is not determinative of the sentence which appellant should receive; however, the jury should have had the benefit of the consequences suffered by the accomplice in arriving at its recommendation of the sentence to be visited upon the appellant.

Additionally, we believe counsel for the defendant was effectively deprived of establishing an important mitigating circumstance when he was not afforded the opportunity to present psychiatric testimony to the jury during the sentencing portion of the proceedings. Subsection 921.-141(6) (b), Florida Statutes, provides as a mitigating circumstance that “[t]he capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.” Counsel for the appellant represented to the court that, if given the opportunity, he would come forward with evidence establishing such condition. The expression by the trial court that the verdict of the jury is merely advisory and that he could consider psychiatric reports at the time he performed the actual sentencing, in our opinion, violates the legislative intent which can be gleaned from Section 921.141, Florida Statutes. It is clear that the Legislature in the enactment of Section 921.141, Florida Statutes, sought to devise a scheme of checks and balances in which the input of the jury serves as an integral part. The validity of the jury’s recommendation is directly related to the information it receives to form a foundation for such recommendation. Subsection 921.141(1), Florida Statutes, provides in part:

“ . . . In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) [sic] and (7) [sic] [of this section]. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. . . . ”

The quoted language indicates that the circuit judge should exercise the broadest latitude in admitting evidence during the sentencing portion of the jury’s deliberations.

Accordingly, we are compelled to the conclusion that this cause should be remanded to the trial court for the purpose of conducting another sentencing hearing before a jury impaneled for that purpose at which the evidence improperly excluded may be considered. We recognize that this will result in a hearing before a different jury from that which heard the evidence upon which the verdict of guilty was rendered. However, we find authority for such procedure in that portion of Subsection 921.141(1), Florida Statutes, which states:

“ . . .If the trial jury has been waived or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the defendant. . . .”

Also, by Chapter 74 — 379, Laws of Florida, effective October 1, 1974, the following language was added to Subsection 921.-141(1), Florida Statutes:

“. . . If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in Chapter 913 to determine the issue of the imposition of the penalty. . . .”

Even though the last-quoted provision was not in effect at the time of the offense or at the time the appellant was indicted, it buttresses our conclusion that the proper course in this analogous situation is to impanel a special jury to consider the evidence of aggravating and mitigating circumstances and make its recommendation to the trial court for proper sentencing pursuant to Section 921.141, Florida Statutes.

The judgments of guilt of robbery and of first degree murder are affirmed but the cause is remanded to the trial court with' directions to conduct further proceedings consistent with the views expressed herein.

It is so ordered.

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

      . Fla.Stat. § 921.141 (1973).

      . Castle v. State, 330 So.2d 10 (Fla.1976).


author: HATCHETT, Justice. ENGLAND, Justice

text:
    The DIVISION OF BEVERAGE of the STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, Appellant, v. FOREMOST-McKESSON, INC., a corporation, Appellee.
    No. 47334.
    Supreme Court of Florida.
    March 31, 1976.

      J. Riley Davis, Tallahassee, for appellant.
    Chester Bedell, John A. DeVault, III, and Peter D. Webster, Bedell, Bedell, Dittmar, Smith & Zehmer, Jacksonville, for appellee.
   HATCHETT, Justice.

Appellee, Foremost-McKesson, Inc. (Foremost), applied to the appellant, Division of Beverage (Division), in the fall of 1973 for renewal of its license to distribute liquor in Florida. On account of Foremost’s interest in an out of state rectifying plant, the Division took the position that Fla.Stat. § 561.24 (1973) precluded renewal, and denied Foremost’s application. Foremost then filed in United States District Court for injunctive and other relief and secured a temporary restraining order against the Division, which order is still in force. A three judge district court was convened; that court voted to postpone consideration of the merits until conclusion of state court proceedings. When the federal court granted the Division’s motion to abstain, Foremost filed in circuit court, seeking a declaration that Fla.Stat. § 561.24 (1973) was inapplicable to it or, if applicable, then unconstitutional, as a state matter.

The circuit court, per the Hon. Hugh M. Taylor, ruled that Foremost was entitled to the benefit of the grandfather clause, Fla.Stat. § 561.24(5) (1973), but also considered and explicitly rejected Foremost’s argument that Fla.Stat. § 561.24 was bad as a state constitutional matter. The Division took an appeal from this summary judgment to the District Court of Appeal, First District, assigning as error the ruling that Foremost was covered by the grandfather clause. Foremost cross-appealed and assigned as error the ruling that Fla.Stat. § 561.24 (1973) validly prohibited renewal of its license, but for the grandfather clause. Thereafter, motion to transfer the appeal to this Court was granted, because the judgment under review construes a constitutional provision, Fla.Const. art. I § 9 (1973). This Court has jurisdiction, pursuant to Fla.Const. art. V § 3(b)(1) (1973), but we share Judge Taylor’s view that it was unnecessary to reach the constitutional question, in order to decide the case. Metropolitan Dade County Transit Auth. v. State Dept. of Highway Safety & Motor Vehicles, 283 So.2d 99 (Fla. 1973); Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973).

Continuously since 1934, Foremost has distributed liquor in Florida. When originally licensed, Foremost was not itself a rectifier, distiller or manufacturer of liquor, nor was it affiliated with any such concern. Foremost was initially licensed to distribute under a predecessor to the present Fla.Stat. § 561.24. The predecessor statute was amended in 1947, in response to this Court’s decision in State ex rel. Continental Distilling Sales Co. v. Vocelle, 158 Fla. 100, 27 So.2d 728 (1946) (distributor entitled to license even though controlled by corporation which controlled out of state manufacturer). As amended, the statute also prohibited the grant and renewal of licenses to distribute liquor, where the applicant for license renewal, although not itself engaged in producing liquor, was affiliated with an out of state rectifier, distiller, or manufacturer. Fla.Laws 1947, ch. 23899 § 1. Simultaneously with the enactment of these amendments, a grandfather clause effected an exemption from their operation for certain licensees. Fla. Stat. § 561.24(5) (1973).

Foremost acquired an interest in an out of state rectifier for the first time, some 23 years after the amendments had been enacted. In 1970, “21” Brands, Inc., became a wholly owned subsidiary of Foremost, at a time when “21” Brands, Inc. had a controlling interest in Mohawk Liqueur Corporation, a Michigan rectifier. Mohawk Liqueur Corporation is now wholly owned by “21” Brands, Inc. The Division denied Foremost’s application to renew its license to distribute liquor in Florida, on account of Foremost’s ownership of “21” Brands, Inc.

The Division here urges that the history and purpose of the statute be looked to, rather than the literal wording- of the grandfather clause. The original statute prohibited vertical integration between manufacturers and wholesalers in the liquor business but exempted Florida manufacturers. The 1947 amendments, Fla. Laws 1947, ch. 23899 § 1, broadened the scope of the prohibition by treating affiliated corporations as a single unit. Florida manufacturers continued to enjoy an exemption, however, and a distributor who was already licensed was entitled to license renewal even if it distributed an affiliated out of state manufacturer’s products, so long as such products did not constitute more than 40 per cent of sales. By its terms, the grandfather clause applies to all distributors holding licenses as of June 3, 1947, without regard to whether the distributor was affiliated with an out of state rectifier, distiller or manufacturer at that time.

The Division argues that the legislature inadvertently omitted to limit the exemption to licensed liquor distributors who were affiliated with out of state rectifiers, distillers or manufacturers on June 3, 1947. If this inadvertent omission is not supplied, the Division maintains, statutory changes intended to strengthen the Division’s hand in suppressing the “tied house” evil, see Pickerill v. Schott, 55 So.2d 716 (Fla. 1951), cert. den., 344 U.S. 815, 73 S.Ct. 9, 97 L.Ed. 634 (1952), will have had the contrary effect of making possible further integration of producers and distributors. The evil which the amendments were intended to suppress would thus be fostered. A grandfather clause of this kind, moreover, is ordinarily aimed at protecting existing investment against a sudden shift of public policy. Cf. Berger v. Board of Psychological Examiners, 521 F.2d 1056, 44 USLW 223. (D.C. Cir., decided Oct. 28, 1975) Such a clause should not be construed to authorize a distributor to acquire an interest in a rectifier two decades after enactment of the amendment, the Division maintains.

These arguments might well carry the day, if the grandfather clause had been enacted at the most recent session of the legislature. But the legislature has convened repeatedly since enactment of the grandfather clause and has been content to leave subsection 5, the grandfather clause, unaltered. In contrast, each of the other subsections has been amended as to one detail or another since 1947. In such circumstances we are not free to ignore the plain language of the statute. See Armstrong v. City of Edgewater, 157 So.2d 422, 425 (Fla.1963). We share the Division’s doubt whether the purposes manifested by the statute as a whole are well served by Fla.Stat. § 561.24(5) (1973), but if the wording of the statute is to be revised, it is a task for the legislature, and not for this Court.

The judgment is affirmed.

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

ENGLAND, J., dissents with an opinion.

ADKINS, J., dissents on merits and concurs with ENGLAND, J., on jurisdiction.

ENGLAND, Justice

(dissenting).

I do not share my colleague’s judgment that this case is properly before us. It came to us, at appellee’s request, by transfer from the First District Court of Appeal. I hold the view that the district court unnecessarily relinquished its jurisdiction to us.

No one disputes the fact that the trial judge did not have to pass on the constitutionality of the statute involved in this proceeding. The court’s final judgment initially and expressly held that the grandfather clause in Section 561.24 excluded appellee from the limitations in the other subsections of that provision. The order states:

“Insofar as the present needs of the plaintiff are concerned, this court is of the opinion that Subsection (5) of § 561.24, F.S., precludes the defendant from refusing to renew plaintiff’s license.”

After so ruling, the trial court went on to say:

“Ordinarily, this court would end its labors here, but in view of the judgment of the three-judge 'federal court suggesting the construction of § 561.24 by a state court, other questions argued by counsel will be considered.”

Plainly, the trial court was not required to pass on the constitutional issues in order to resolve this litgation. I favor the notion that if any non-constitutional ground will support a trial court’s order, direct appeal to this Court is not available under Article V § 3(b)(1). A review of nonconstitutional issues is properly within the province of the district courts, and under our constitutional scheme their disposition of those issues is final.

ADKINS, J., concurs on jurisdiction.

      . Rule 7A-1.02, Rules of Division of Beverage, provides, as follows:
      The term “rectifier” shall include every person, firm or corporation which rectifies, purifies or refines distilled spirits or wines by any process other than by original and continuous distillation from malt, wort or wash until the manufacture is completed; every person, firm or corporation which has custody or possession of any apparatus designed for the purpose of refining in any manner distilled spirits; and every person, firm or corporation which mixes spirits, wines or other liquors with any other material or substance or which manufactures any spurious, imitation or compound liquor for sale under any name or brand.

      . The statute provides in part, as follows:
      (1) No manufacturer, rectifier or distiller, manufacturing, rectifying or distilling spirituous liquors, in any state other than Florida, shall hereafter be granted a license as a distributor or exporter.
      (2) No manufacturer, rectifier or distiller, manufacturing, rectifying or distilling spirituous liquors, in any state other than Florida, shall be granted a renewal of a license theretofore held as a distributor or exporter.
      (3) If the applicant for a distributor’s or exporter’s license or renewal thereof shall be an individual or copartnership,
      (4) If the applicant for a distributor’s or exporter’s license, or for the renewal thereof, shall be a corporation, such corporation shall be deemed within the provisions of subsections (1) and (2), as the case may be, when such corporation is affiliated with, directly or indirectly any other corporation which is engaged in manufacturing, rectifying or distilling spirituous liquors in any state other than Florida, or when such applicant corporation is controlled by, or the majority of stock therein is owned by, another corporation, which latter corporation is engaged, directly or indirectly, in manufacturing, rectifying or distilling spirituous liquors in any state other than this state.
      (5) Notwithstanding any of the provisions of the foregoing subsections, any corporation which holds a license as a distributor on June 3, 19Jfl, shall be entitled to a renewal thereof, provided such corporation shall comply with all of the provisions of the beverage laws of Florida, as amended, and of this section and shall establish by satisfactory evidence to the board of county commissioners of the county wherein the original license was issued that during the six months period next preceding its application for such renewal, that, of the total volume of its sales of spirituous liquors, in either dollars or quantity, not more than forty per cent of such spirituous liquors sold by it, in either dollars or quantity, were manufactured, rectified or distilled by any corporation, in any state other than Florida, with which the applicant is affiliated, directly or indirectly, including any corporation which owns or controls in any way any stock in the applicant corporation or any corporation which is a subsidiary or affiliate of the corporation so owning stock in the applicant corporation.

      (6) Any jierson, copartnership or corporation applying for a distributor’s or exporter’s license or a renewal thereof under the provisions of this section, shall file a written or printed application therefor with the division. .
      (7) The procedure otherwise provided in this chapter with regard to every application for license as a distributor or exporter with the addition thereto of the procedure provided by this section, shall be followed with regard to every application for license as distributor or exporter and every application for any renewal of such license; provided, § 561.27, shall have no application to the renewal of a license of any distributor or exporter, except that no license of any distributor or exporter shall be renewed if the license of such distributor or exporter and continuations thereof shall have been revoked or the qualifications of such distributor shall have been impaired.
      (8) Any maneuver, shift or device by any applicant whereby any provision of this section, in any manner, is sought to be avoided or evaded shall constitute a felony of the third degree, punishable as provided in §§ 775.082, 775.083, or 775.084. (Emphasis supplied)

      . Foremost’s federal constitutional objections to Fla.Stat. § 561.24 (1973) were reserved for determination in United States District Court and were not advanced in state court proceedings.

      . Fla.Laws 1935, ch. 16774 provided, in pertinent part, as follows :
      No manufacturer, rectifier or distiller, manufacturing, rectifying or distilling spirituous liquors, in any state other than the State of Florida shall be licensed as a distributor.

      . The statute is set out in pertinent part in the preceding footnote.

      . See Fla.Laws 1972, ch. 72-230 § 1 (reenacting grandfather clause) ; Fla.Laws 1971, ch. 71-136 § 559; Fla.Laws 1969, ch. 69-106; Fla.Laws 1963, ch. 63-562.

       It is significant to note that this litigation could not have come to us directly from the three-judge federal court which abstained pending a state determination of the controlling legal issues. Fla.App.Rule 4.61(a).


author: HOBSON, Acting Chief Judge.

text:
    Webb PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1294.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    James A. Gardner, Public Defender, and Harold H. Moore, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Parker was charged with assault with intent to commit first degree murder; he was convicted of that crime after a jury trial and sentenced to 15 years imprisonment. He argues on appeal that the evidence of assault was legally insufficient and that the trial court erred in refusing to instruct on assault with intent to commit murder in the second degree.

At Parker’s trial, Jessie Robinson testified that on the night of December 29, his wife got into a fight with appellant’s girlfriend, Hattie Ruth Johnson, in a St. Petersburg bar. Robinson denied appellant’s accusations, made the next morning, that he and his wife had ganged up on Miss Johnson. On the night of the 31st, appellant approached Robinson as he was playing cards in the same bar and stated, “I still hear that both of you jumped my girlfriend.” When Robinson again indicated that only the two women had been involved, Parker backed up several paces, pulled out a .38 caliber hand gun and fired three times at Robinson, hitting him once in the back and twice in the leg. As Robinson lay on the floor, Parker walked up, pointed the gun at Robinson’s face, and pulled the trigger three more times, but the gun did not fire. According to Mrs. Robinson’s testimony appellant went out to “reload” and the police were called.

The victim’s version of the crime was corroborated by his wife and by James Spradley, who positively identified Parker as the assailant. Since Spradley left immediately when the shooting started, however, he did not see Parker point the gun in Robinson’s face.

Parker testified that he had been out of town visiting his godmother at the time the shooting occurred. Hattie Ruth Johnson testified that Parker was not her boyfriend and that although she knew him, she had neither seen nor talked to him during the week-end of the incident.

At the charge conference the trial court indicated that it would charge on assault with intent to commit second degree murder but subsequently failed to do so, explaining to the defense counsel that there was no such crime.

We reject appellant’s argument that the evidence failed to show that the victim had been placed in fear. Although the victim did not specifically testify as to his apprehensions during the incident, we think this record adequately establishes the element of fear as required by State v. White, Fla. 1975, 324 So.2d 630, Opinion filed September 10, 1975.

The judge’s failure to instruct on assault with intent to commit second degree murder presents a more difficult question. RCrP 3.490, which was copied verbatim from repealed Florida Statute § 919.14 provides:

Determination of Degree of Offense
If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.

The language of this rule has been construed to require the trial judge to instruct on all lesser degrees of the crime charged, regardless of whether they are sufficiently charged by the information or supported by the proof at trial. Killen v. State, Fla. 1957, 92 So.2d 825; Brown v. State, Fla. 1968, 206 So.2d 377. Under this rule, the responsibility of determining the degree of guilt “rests peculiarly within the bosom of the trial jury.” Brown v. State, Fla.1960, 124 So.2d 481. Instructions are mandated on all degrees simply because the rule “clearly requires it,” and authorizes “jury pardons” of the higher degree. Bailey v. State, Fla. 1969, 224 So.2d 296. Thus, since assault with intent to commit second degree murder is a lesser degree of the crime charged, it was error, after a proper request, to refuse to instruct upon it. Bailey v. State, supra.

Because Bailey, supra, emphasizes the jury’s power to disregard the evidence and “pardon” the defendant of the higher degree, we doubt that the strong evidence of Parker’s premeditated intent to kill would be sufficient in itself to render the error harmless. But in light of this strong evidence and the fact that the crimes are of equal magnitude and carry the same maximum punishment, there is no reasonable possibility that the jury would have “pardoned” Parker by convicting him of the lesser degree. The difference between the crimes is so insubstantial that even if they had, he would have been in no better position. Cf., Yarborough v. State, 1927, 94 Fla. 143, 114 So. 237; Davis v. State, 1895, 35 Fla. 614, 17 So. 565.

We conclude, therefore, that under the facts of this case, the appellant has not been prejudiced by the trial court’s failure to instruct on assault with intent to commit second degree murder.

Affirmed.

BOARDMAN and SCHEB, JJ., concur.

      . Brown v. State, Fla.1967, 206 So.2d 377.

      . In State v. Wilson, Fla.1973, 276 So.2d 45, the Supreme Court held that the refusal to instruct on a lesser included offense was harmless in view of the substantial evidence in support of the jury’s verdict. See Lomax v. State, Fla.App.2d 1975, 322 So.2d 650. Our research has indicated no cases which have applied this rule of harmless error to crimes divided into degrees.

      . Since the only arguable objection to the instructions related to assault with intent to commit second degree murder, we need not consider the possibility that the jury might have found defendant guilty of some other lesser crime. Moreover, Bailey v. State, Fla.1969, 224 So.2d 296, is distinguishable from the instant case since it involved a refusal to instruct on assault with intent to commit third degree murder; that crime was a lesser degree of felony and carried a lesser penalty than the crime of which Bailey was convicted.