author: BOYD, Justice. ENGLAND, Justice HATCHETT, Justice

text:
    STATE of Florida and Board of Trustees of the Internal Improvement Trust Fund, Appellants, v. FLORIDA NATIONAL PROPERTIES, INC., etc., Appellee.
    No. 45787.
    Supreme Court of Florida.
    July 14, 1976.
    Rehearing Denied Oct. 14, 1976.

      Robert L. Shevin, Atty. Gen., Thomas A. Harris, Asst. Atty. Gen., and Kenneth G. Oertel, Tallahassee, for appellants.
    Kenneth L. Connor and Robin Gibson of Gibson & Connor, Lake Walers, for ap-pellee.
   BOYD, Justice.

This cause is before us on appeal from the Circuit Court, Highlands County. The trial court in its final judgment passed upon the constitutionality of Section 253.-151, Florida Statutes, giving this Court jurisdiction of the direct appeal.

Section 253.151, Florida Statutes, reads as follows.

“253.151 Navigable meandered fresh water lakes
“(1) The submerged lands located under navigable meandered fresh water lakes shall be considered as a separate cláss of sovereignty lands. Such separate class of sovereignty lands shall not be construed to be of the same character as tidal lands, streams, watercourses, or rivers or as lakes attached to tidal waters by means of navigable watercourses, but, rather, shall be administered in accordance with the provisions of this section.
“(2) For the purposes of this section:
“(a) ‘Board’ means the board of trustees of the internal improvement trust fund.
“(b) ‘Boundary line’ means the line which separates the sovereignty lands of the state from those of a riparian upland owner. Such boundary line shall be described in terms of elevation above mean sea level of the state as indicated on the bench mark of the United States Coast and Geodetic Survey nearest the respective navigable meandered fresh water lake.
“(c) ‘Elevation’ means the distance above mean sea level as established by official United States Coast and Geodetic Survey bench marks.
“(d) ‘Usufructuary right’ means the temporary right of using the land lake-ward of the boundary line to the existing waterline. The term shall not be construed to convey to any riparian owner the right to erect permanent structures of any type upon sovereignty lands without the express consent of the board.
“(e) ‘Commercial operation’ means the operation of any facility located on submerged land in navigable meandered fresh water lakes for the'purpose of earning a profit from such operations.
“(3) The boundary line shall be established by, or under the supervision of, the board by use of one or more of the following procedures:
“(a) Where physical evidence exists indicating the actual water’s edge of any navigable meandered fresh water lake as of the date such body came under the jurisdiction of the state, regardless of where the water’s edge exists on the date of the determination of the boundary line, the water’s edge as evidenced on the former date shall be deemed the boundary line.
“(b) Where sufficient physical evidence cannot be found, or in conjunction with such physical evidence as may exist, affidavits of local, longtime residents attesting to the average levels of such lakes shall be used. Such affidavits shall not be used unless they can be dated back to a period of time at least twenty-five years prior to July 1, 1970.
“(c) Where gauging stations have been installed and continuous data at lake water elevations have been obtained therefrom for a period of no less than ten consecutive years, such data may be used for ascertaining the boundary line at such lake.
“(d) Actual on-site examination of the terrain (landward and lakeward of the existing waterline) and of plant life, including upland and aquatic, by qualified personnel and the other physical indications of present and past waterlines which shall be deemed reasonable may be used in determining the boundary line. This investigation may include public hearings, as well as examination of existing docks, structures, and other physical evidence which may properly be construed as germane to the location of the boundary line.
“(4) A boundary line shall become effective only after a description of its location has been approved by the formal action of the board and this description has been published in a newspaper of general distribution in the county where located at least once a week for three consecutive weeks. The boundary line elevation shall then be placed in the public records of the county or counties in which the navigable meandered fresh water lake is situated. A suitable monument shall be placed in or on such lake as a permanent point of reference so that all interested persons may be able to determine the physical boundary line by proper survey and projection onto the shoreline.
“(5) The riparian owner shall have the usufructuary right over lands lake-ward of the boundary line down to the existing waterline, but such riparian owner shall not deny the use of the water above the established boundary line to any other owner or to the general public so long as such public does not come onto the land above the existing waterline. A riparian owner shall have the right of ingress and egress to and from the water for purposes of boating, swimming, fishing, skiing, and similar activities and shall:
"(a) Be granted the privilege of clearing the aquatic vegetation, except woody plants of a diameter greater than two inches, measured at the base, out in the water to the extent necessary to enable him to use the public waters reasonably for boating, swimming, skiing, fishing! and similar activities. If an area greater than one fifth of an acre is to be cleared within a period of three months, a permit must be applied for and granted by the board.
“(b) Be permitted to fill to combat erosion. However, in no case shall this section be construed to grant a riparian owner the right to add on land out into the main body of the water in such a manner as to constitute an encroachment upon the sovereignty submerged bottoms to gain more property or to restrict others from reasonable use of the water. A permit from the board shall be necessary for such fill projects to combat erosion.
“(c) Be granted usufructuary right in any strip of land which may be exposed due to natural recession of the waters, between the boundary line and the existing waterline.
“(6) Any authorized dock, boathouse, or other structure, erected under permit, shall be for the sole use and control of the riparian owner.
“(7) Nothing contained in this section or § 253.12(1) shall be construed as affecting privately owned lakes, streams, watercourses, or submerged lands.
“(8) The board shall promulgate such rules and regulations as may be necessary to carry out the purposes of this section.”

The facts of this case are as follows.

Appellee-Plaintiff is a riparian owner of certain lands in Highlands County bordering Lake Istokpoga, a navigable lake. The ordinary high-water mark of Lake Istok-poga was meandered at different points and different times by U. S. Government surveyors in the late 1800’s and early 1900’s. Lake Istokpoga was meandered in the area of Appellee’s property in 1928. Appellee deraigns its title back to certain warranty deeds issued by Appellant-Trustees of the Internal Improvement Trust Fund, the Trustees having previously received the lands by a swamp and overflow lands grant from the U. S. Government. The land was acquired by Appellee for the purposes of development and of resale as a residential community on the shores of Lake Istok-poga; because of this, a need to do some work in the navigable waters of Lake Istok-poga arose. Approximately four years prior to the filing of this action, a dispute arose between the Trustees and Appellee as to the location of the boundary lines between the sovereignty bottom lands of the Lake and Appellee’s upland property. Efforts to resolve the dispute were fruitless; the Trustees maintained that, pursuant to Section 253.151, Florida Statutes, the boundary line should be located at a contour 41.6 feet above mean sea level, a boundary unacceptable to Appellee since this proposal laid claim to approximately half of Appellee’s purchased property (generally, throughout the trial Appellee claimed that the ordinary high-water line was at an elevation of approximately 38.5 feet above mean sea level).

Throughout the proceedings the Trustees maintained that the ordinary level of the Lake was permanently and artificially lowered during the 1920’s as the result of certain drainage operations conducted by property owners surrounding the Lake; it was the Trustees’ position that the unauthorized drainage of the Lake by the riparian owners could not be considered to have decreased the State’s ownership and that the ordinary high-water line as it existed in 1926 would remain the legal boundary between State and private ownership. The evidence showed that some of the riparian owners had exercised self-help by dynamiting obstacles from a drainage canal to return the Lake to an ordinary level and to expel flood waters from farm lands following the historic 1926 hurricane. Therefore, Appellee’s position was that any lowering of the Lake was legally reliction and that the present ordinary high-water line, regardless of the historical contour of the Lake, is the appropriate boundary between private and State-owned land. The testimony clearly shows that the survey notes, made after the mean level of the Lake was lowered, reflect that this lowering resulted in the exposure of only marshland, not of lake bottom. Furthermore, the surveyor’s notes continue to say that the Lake is contained in a well-defined basin with an almost continuous shore rim which is timbered with good timber, mostly shore variety, giving positive proof of the location of the lakeshore before the drainage operations were put into effect. There was additional testimony that this timbered shore rim, which ranged from 3 to 10 chains wide between the lakeshore and Istokpoga marsh in Section 13, and from 2 to 5 chains wide in Section 12, is essentially the same today as at the time of the survey in 1928. The survey notes also indicate that the draining by the landowners approximately equaled the amount the Lake had been raised by the hurricane, thereby balancing out.

Following a two-day trial the lower court ruled that the boundary line betwen Appel-lee’s upland property and the sovereignty bottom lands was the present ordinary high-water mark of Lake Istokpoga. The trial judge specifically found that in the disputed area the 1928 Government meander line was at all points coordinate with or upland of the present ordinary high-water mark of Lake Istokpoga; consequently, the court set aside Appellants’ claim to all property upland of the 1928 meander line in the area of Appellee’s property. The court also found that Appellants’ claim to the 41.6 feet contour had been based on Section 253.151, Florida Statutes, and adjudged the statute to be unconstitutional both on its face and as applied by Appellants, as follows:

“The Court . . . finds that the [Appellants’] claim- to the 41.6 contour is based on Fla.Stat. § 253.151. The record is replete with evidence which clearly shows that the Trustees have repeatedly asserted this Statute as their authority for the State’s claim to the 41.6 contour line. Although during the course of this proceeding the Trustees have retreated from the Statute as the basis for the State’s claim, this change in approach is not convincing. Other than § 253.151, the Court can find no authority whatsoever for fixing the boundary line at a particular elevation as urged by the Trustees.
“A provision in the State of Washington’s Constitution similar to § 253.151 which purported to fix the boundary line between sovereignty lands and private ownership as of the date Washington was admitted to the Union was struck down by the Supreme Court in Hughes v. Washington, [389 U.S. 290, 19 L.Ed.2d 530, 88 S.Ct. 438 (1967)] as a violation of Art. VI, Sec. 2, the Supremacy Clause, of the United States Constitution. It is apparent from Bonelli [Bonelli Cattle Co. v. Arizona] [414 U.S. 313, 38 L.Ed.2d 526, 94 S.Ct. 517 (1973)] and Hughes that Federal, not State, law governs the resolution of boundary line disputes between the sovereign and private owners whose lands border navigable bodies of water. In Hughes the Supreme Court stated:
‘A long and unbroken line of decisions of this Court establishes that the grantee of land bounded by a body of navigable water acquires a right to any natural and gradual accretion formed along the shore. [389 U.S. at 292, 88 S.Ct. at 439,] 19 L.Ed.2d at 533.’
This principle was extended in Bonelli to include artificial accretions where the accreted land served no navigational purpose. Rejecting the same approach taken by the Defendants in this case, the U.S. Supreme Court stated in Hughes'.
‘Any other rule would leave riparian owners continually in danger of losing the access to water which is often the most valuable feature of their property, and continually vulnerable to harassing litigation challenging the location of the original water lines. [389 U.S. at 293, 88 S.Ct. at 440,] 19 L.Ed.2d at 534.’
Fla.Stat. § 253.151 which purports to fix the public/private boundary line as of the date of Statehood, suffers from the same infirmities as the constitutional provision under consideration in Hughes; and it is likewise unconstitutional.
“Furthermore, Fla.Stat. § 253.151, as applied by the Trustees in the instant case, violates the due process clauses of both the Federal and Florida Constitutions. By relying upon § 253.151, the State, through the Trustees, claims not only the lands to which Plaintiff has already gained title through the operation of accretion and reliction, but also seeks to deny to Plaintiff the right to acquire additional property in the future through the process of accretion and reliction. Both Federal and Florida courts have held that an owner of land bounded by the ordinary high water mark of navigable water is vested with certain riparian rights, including the right to title to such additional abutting soil or land which may be gradually formed or uncovered by the processes of accretion or reliction, which right cannot be taken by the State without payment of just compensation. Bonelli, supra, [414 U.S. at 329-331, 94 S.Ct. at 527-528,] at 541-542; St. Clair County v. [Lovingston] Livingston, 90 U.S. (23 Wall.) 46, 23 L.Ed. 59; Padgett v. Central and Southern Florida Flood Control District, 178 So.2d 900 (Fla. 2d DCA 1965); Thiesen v. Gulf F&A Ry. Co., [75 Fla. 28,] 78 So. 491 (Fla.1918). By requiring the establishment of a fixed boundary line between sovereignty bottom lands and Plaintiff’s riparian lands, Fla.Stat. § 253.151 as applied by the Trustees in the instant case, constitutes a taking of Plaintiff’s property, including its riparian rights to future alluvion or accretion, without compensation in violation to the due process clause of the Fourteenth Amendment of the United States Constitution and the due process clause of Art. I, Sec. 9, of the Florida Constitution.
“The Court also finds that Fla.Stat. § 253.151 is unconstitutional in its entirety. Subsection (3), which requires the Defendant Board of Trustees to establish the boundary line between the sovereignty bottom lands of navigable meandered fresh water lakes and riparian uplands, cannot be separated from the remaining portions of the Statute, which are closely connected with and refer to the boundary line established pursuant to subsection (3). Without subsection (3), the other provisions of the Statute are meaningless since they serve no purpose independent of the establishment of the boundary line. Hence, the Statute, which contains no severability clause, is invalid in its entirety.”

It is from this final judgment that this appeal is taken.

Historically, the Crown or the government has owned for the benefit of the public the areas covered by navigable bodies of water so that the government could protect the pubic’s right of navigation and preserve commerce; the upland owners have owned the dry lands down to the high-water mark. In the instant case, the Trustees retreated from their reliance on Section 253.151, Florida Statutes, relying instead on Article X, Section 11, Florida Constitution, for their claim of ownership of the lands in question:

“§ 11. Sovereignty lands. The title to lands tinder navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.”

Appellant-State asserts that not all of Section 253.151, Florida Statutes, should be held unconstitutional as certain provisions prohibit encroachments by upland owners upon sovereignty lands and require State permits for modification of the boundary lines in elevating or lowering the submerged sovereignty lands. In our view, right of control over sovereignty lands is so inherent in the State that we feel such control can be exercised with or without specific statutory provisions.

Upon careful consideration of both the record and arguments of counsel, we conclude that the trial court correctly held the efforts of the State to fix specific and permanent boundaries were improper, and we hold that Section 253.151, Florida Statutes, is unconstitutional. We agree that subsection (3), which fixes the boundary line between sovereignty lands and riparian uplands, cannot be separated from the remaining portions of the statute, and with the exception of subsection (2), which consists entirely of definitions, all other sections are closely connected with and refer to the boundary line between sovereignty lands and riparian uplands as fixed by subsection (3). Therefore, we also agree with the lower court’s conclusion that the statute, which contains no sever-ability clause, is invalid in its entirety.

Additionally, the ancient common law relating to accretion and reliction prevails in Florida. However, we recognize that the doctrine of reliction is applicable in situations where water recedes by imperceptible degrees from natural causes and that it does not apply where land is reclaimed by deliberate drainage. This is not the situation in the instant case. Here, the evidence clearly shows that the 1926 self-help by the riparian owners did not affect a lowering of the water level below the normal high-water mark; instead, as the survey notes show, the action merely returned the water to its normal level and did not expose any lake bottom. Therefore, while the Appellee is entitled to' the land down to the present ordinary high-water line, as held by the lower court, it is not because of the doctrine of reliction but because of the location of the actual, present high-water mark. This is not to say that, where an unlawful change in the high-water mark has been precipitated, the land uncovered by the lowering would be-long to the upland owner; to the contrary, such bottomland would continue to be owned by the State. Acquiescence or failure by the State to restrain an artificial lowering of the water table for a long period might constitute laches or estoppel depending upon facts and equities in each case.

It is our opinion, and we so hold, that the property line separating sovereignty and riparian property rights is the ordinary high-water mark in meandered fresh water lakes. In doing so we recognize that such line is subject to change from natural causes or with joint consent of the State and private riparian owners. Furthermore, as stated above, we sustain the learned trial court in holding Section 253.151, Florida Statutes, unconstitutional in its entirety. An inflexible meander demarcation line would not comply with the spirit or letter of our Federal or State Constitutions nor meet present requirements of society.

Accordingly, the judgment of the trial court is affirmed.

It is so ordered.

ROBERTS and ADKINS, JJ., and KLEIN, Circuit Court Judge, concur.

ENGLAND, J., concurs in part and dissents in part with an opinion, with which OVERTON, C. J., concurs.

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

ENGLAND, Justice

(concurring in part and dissenting in part).

I concur in the Court’s affirmance of the trial court on the issues litigated in this case, but I dissent from the Court’s declaration that all of Section 253.151 is unconstitutional.

The lawsuit filed by Florida National Properties, Inc. sought a declaration of the boundary to certain of its property. After the trial judge had set that boundary he declared Section 253.151 unconstitutional in its entirety. On review here, the State concedes the invalidity of the boundary-setting provisions contained m subsection 253.151 (3). The State argues, and I believe rightly, that it was unnecessary and improper for the judge to invalidate other portions of Section 253.151 which had no relevance to this boundary dispute.

Only subsections 253.151(3) and (4) of the statute involve the setting of boundaries between private and sovereign lands. Other provisions of the statute regulate private activities in connection with sovereign lands. This lawsuit presents no occasion to invalidate this regulatory scheme. The fact that Section 253.151 contains no severability clause which would allow the invalidation of any particular subsection is no impediment to the more limited action I would approve. Cramp v. Board of Public Instruction, 137 So.2d 828 (Fla.1962); State v. Calhoun County, 127 Fla. 304, 170 So. 883 (1936).

OVERTON, C. J., concurs.

HATCHETT, Justice

(concurring in part and dissenting in part).

I concur in the view that riparian landowners take title to new lands created by natural accretion and reliction, and I see no reason why riparian landowners should be divested of title to land, which has been submerged by hurricane or other catastrophe, when they take measures necessary to restore their property to its ordinary state. In my opinion, this case requires decision of no other question, and certainly does not require striking down a statute. Accordingly, I respectfully dissent from the Court’s decision as to the validity of Fla. Stat. § 253.151 (1973).

Appellee Florida National Properties, Inc. (Florida National), filed a complaint in the trial court, alleging a dispute between appellants and appellee over ownership of land, and asking for declaratory and injunctive relief. This is the kind of question which courts have traditionally been called upon to answer in ejectment and quiet title actions, but declaratory judgment is also an appropriate means for resolution of such a controversy. State Board of Trustees of Internal Improvement Trust Fund v. Pineta Co., 287 So.2d 126 (Fla.3d App.Dist.1973); Bozeman v. Roberts, 188 So.2d 23 (Fla.1st App.Dist.1966). Contra, Stark v. Marshall, 67 So.2d 235 (Fla.1953) (alternative basis for decision). The form of action cannot, however, alter the “established maxim of statutory construction that courts have the judicial obligation to sustain legislative enactments when possible.” North Port Bank v. State Dep’t of Revenue, 313 So.2d 683, 687 (Fla.1975); State v. Aiuppa, 298 So.2d 391 (Fla. 1974); McKibben v. Mallory, 293 So.2d 48 (Fla. 1974); Burnsed v. Seaboard Coast Line R. Co., 290 So.2d 13 (Fla.1974); State v. Mayhew, 288 So.2d 243 (Fla. 1973). “It is elementary that ... if fairly possible a statute should be construed to avoid . . an unconstitutional interpretation,” State ex rel. Shevin v. Metz Construction Co., Inc., 285 So.2d 598, 600 (Fla. 1973), if it is necessary to reach the constitutional question at all. In my view, there is no need to pass on the validity of any portion of Fla.Stat. § 253.151 (1973), in deciding the parties’ rights to the property in contention.

In paragraph four of its complaint, Florida National alleged:

Following the Plaintiff’s purchase of the property, the STATE, through the TRUSTEES and by virtue of Florida Statute 253.151, made claim to all of the Plaintiff’s land lakeward of a contour 41.6 feet above mean sea level contending this land to be sovereignty bottom lands. A copy of the letter making the claim is attached as Exhibit C.

Both general counsel for the Board of Trustees, on its behalf, and the attorney general, on behalf of the State, filed answers to the complaint. The attorney general answered paragraph four to the effect that he was without knowledge as to the truth of the averment, and subsequently took the unequivocal position that Fla.Stat. § 253.151 (1973) ought not apply. The Board of Trustees answered paragraph four, as follows:

The Board of Trustees denies that this claim [that the disputed land belongs to the state] is based on Chapter 253.151 of the Florida Statutes, and state[s] that this claim is based on Florida’s sovereign ownership of lands beneath navigable waters in Article X, Section 11 of the Florida Constitution.

In short, the pleadings reflect that both sides agreed that Fla.Stat. § 253.151 (1973) ought not control on the question the complaint raised. Appellee alleged that the appellants’ reliance on the statute was misplaced and unjustified, and the appellants answered that their reliance on the statute was nonexistent.

In paragraph six of the complaint, Florida National simply “contended] that Florida Statute 253.151 is unconstitutional . ” The attorney general and the Board of Trustees answered paragraph six with “deny” and “denied”, respectively. This exchange added nothing. The mere allegation that a statute is unconstitutional cannot suffice to put the statute’s constitutionality in issue, even though opposing parties deny the allegation. Otherwise, it would lie in the parties’ power to require a court to decide a statute’s constitutionality, although such an adjudication was unnecessary to decision of the cause. The contrary rule is well-settled in Florida, as elsewhere, even if it is not followed today. For reasons it does not articulate, the Court chooses not to “adhere to the settled principle of constitutional law that courts should not pass upon the constitutionality of statutes if the case in which the question arises may he effectively disposed of on other grounds.” Singletary v. State, 322 So.2d 551, 552 (Fla.1975); Peoples v. State, 287 So.2d 63 (Fla.1973); Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973); Walsingham v. State, 250 So.2d 857 (Fla.1971) ; Overstreet v. Blum, 227 So.2d 197, 199 (Fla. 1969).

The pretrial order dated March 26, 1974, reflects the trial judge’s initial doubt whether it was necessary to decide the constitutionality of Section 253.151. The final judgment recites that evidence showed the appellants had previously relied on “this Statute as their authority for the State’s claim” and concluded that the appellants’ conceded “retreat” from this position “is not convincing.” But the position a litigant takes in a lawsuit is not a question of fact to be decided on the basis of evidence. A litigant may abandon any defense he elects to abandon, and the defendant in a civil suit may waive any right he chooses, generally simply by never asserting it. Cf. Barth v. Florida State Contractors Service, Inc., 227 So.2d 13 (Fla.1976). The court’s decision today stands for the unlikely proposition that a party claiming, in the course of out of court negotiations, that a statute lends support to his position has thereby necessitated an adjudication as to the statute’s constitutionality, when the other side files suit. I disagree.

Rehearing denied.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, and ENGLAND, JJ., and KLEIN, Circuit Court Judge, concur.

HATCHETT, J., dissents.

      . Article V, Section 3 ll), Florida Constitution.

      . Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973) ; Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927).

      . Martin v. Busch, Id. at 287.

      . Id.

      . Exhibit O reads, in pertinent part, as follows :
      Dear Mr. Ward:
      Florida National Properties, Inc.
      Lake Istokpoga Highlands County
      The staff has reviewed the exhibits you furnished as well as other pertinent data relative to the original ordinary high water line of Lake Istokpoga. Based on this information, we believe the elevation of the original ordinary high water line of this lake to be 41.6 feet above mean sea level. Sincerely,
      Joel Kuperberg Executive Director

      . Sovereignty lands. The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people.

      . In this order, the trial court delineated the “issues to be tried,” as follows:
      1. Location of the boundary line between the sovereignty bottom lands of Lake Is-tokpoga and Plaintiff’s upland property.
      2. Whether or not Lake Istokpoga has been artificially drained; and if so, the effect, if any, of such drainage on the property rights of the parties.
      3. Whether or not the State of Florida, through the Board of Trustees of the Internal Improvement Trust Fund, bases its claim to the disputed property on Florida Statute 253.151.
      4. If applicable, the Constitutionality of Florida Statute 253.151 on its face and as applied in the instant case.


source: Caselaw Access Project

author: DREW, Justice (Ret.).

license: Public Domain

text:
    SCHREIBER EXPRESS, INC., Petitioner, v. William T. MAYO et al., Respondents.
    No. 48303.
    Supreme Court of Florida.
    July 21, 1976.
    Rehearing Denied Nov. 2, 1976.

      James E. Wharton, Orlando, for petitioner.
    Prentice P. Pruitt, Jerry M. Johns, and J. B. Curasi, Tallahassee, for respondents.
   DREW, Justice (Ret.).

Following sixteen months of investigation, the Public Service Commission (hereinafter referred to as the Commission) entered an order which eventually resulted in the final order here for review, a portion of which is as follows:

“The information compiled during the past 16 months, and which is set forth hereinafter, shows an astounding disregard for the imperatives of Chapter 323, Florida Statutes, and Chapter 25-5, Florida Administrative Code. Schreiber has operated at the pleasure and convenience of Schreiber. Lack of authority or certificate restrictions leave the carrier undaunted. Time has fostered no familiarity with the scope of its authority.”

The hearing examiner found petitioner Schreiber guilty of 164 territorial violations of its certified authority and fined it $3,500; found it guilty of failure to operate on approved schedules and fined it $1,500; found it guilty of failure to register interstate operations and fined it $1,000; and, found it guilty of failure to perform under its certificate and fined it $1,000, to be suspended if it “discontinue[d] all use of agent companies within ninety days.”

On consideration of the examiner’s report and exceptions filed thereto and after argument, the Commission, on August 4, 1975, concluded the matter by the entry of its order, the material portions of which are:

“Twenty-seven of the territorial violations involve transportation between Pal-atka and Orlando. Schreiber interprets its certificate so as to authorize it to serve Palatka on the one hand and Orlando on the other, but not intermediate points. Such an interpretation is, however, contrary to the plain language of the certificate, and to the findings contained in Order No. 11260, Docket No. 72351 — CCT, wherein Respondent was similarly cited for transportation of freight between Palatka and Orlando.
“Respondent’s certificate authorizes transportation south of State Highway 686, in Pinellas County, excluding Largo. Thus, both Largo and Clearwater are outside Schreiber’s authorized territory. However, 76 instances were found where Schreiber transported freight to or from Largo and Clearwater. It does not deny making these shipments, but contends they are within the ‘commercial zone’ of Tampa, which it is authorized to serve. This argument must be rejected since the certificate specifically grants authority to serve only that portion of Pinellas County south of Higway 686. Thus, points north of this highway are excluded regardless of ‘commercial zone’ considerations.
“Bills of Lading also revealed 20 shipments involving transportation between Hillsborough, Pinellas or Polk County on one hand, and Dade or Broward County on the other. Schreiber has no authority to provide this transportation. The final 41 territorial violations involve various points which Schreiber is not authorized to serve, but which were demonstrated to have occurred by Bills of Lading and arrests (Show Cause Order 11466, §§ A4, G3 and G7).
“Schreiber is charged with failure to operate approved schedules as required by Commission Rules 25-5.19, .20. Records reveal some 167 missed schedules (of a possible 410) on seven routes during the last five months of 1972. Schreiber does not deny these violations, but contends there is no evidence of service degredation. This argument might warrant consideration were the violations few in number. Here, however, Respondent has wilfully disregarded Commission rules and its own published schedules.
“Schreiber has no certificate of registration of any interstate authority on file with this Commission, as required by §§ 323.03, .28, F.S. It is charged with making 29 interstate shipments during the last three months of 1972. Schreiber first contends such shipments, having pick-up and delivery points in Florida, are not necessarily ‘interstate’ in character. This argument must be rejected since the Bills of Lading (from Respondent’s own files) in all instances show an origin or destination outside the state. Schreiber next contends such shipments, even if interstate, are exempt from ICC certification as being within the ‘terminal area’ of the air carriers. Even if this is true, Schreiber must obtain a certificate of registration from this Commission pursuant to § 323.28(2), F.S. Since it has not done so, all such transportation is illegal.
“Respondent is charged with allowing six agent transportation companies to operate so independently as to constitute an unauthorized lease of operating authority. The Commission staff produced witnesses representing three of the six agent companies. Their testimony established that Schreiber delegates all responsibility for operations to locate agents, except the handling of insurance and processing of claims. The agent companies typically pick-up and deliver freight in their terminal areas and arrange for owner-operators to perform line-haul transportation using Schreiber trailers and/or placards. It was demonstrated that Schreiber had relinquished substantially all control over these agents, thus violating Commission Rule 25-5.22 (requiring transportation to be performed by the certificate holder). Since many of the practices engaged in by Schreiber (cartage agents, owner-operators, etc.) have been approved or tolerated by this Commission in the past, the assessed penalty should be suspended on condition that present methods of operation be discontinued.
“Respondent is charged with making ‘material misrepresentations’ in violation of Commission Rule 25-5.07. Such representations allegedly involve Schreiber’s agreement to centrally locate its records within Florida. This requirement was the subject of an earlier show cause proceeding (Docket No. 72144-CCT, Order 11261, March 6, 1974) and is apparently still not fully accomplished. However, the staff presented no evidence from which it can be determined what Schreiber’s original representations were or the degree of compliance achieved (See TR 66-68). Thus, there can be no finding that material misrepresentations were made within the meaning of Commission Rule 25-5.07.
“No evidence was introduced as to Section F of Show Cause Order 11466, pertaining to standards of service. Likewise, no evidence was presented on 32 of the 196 alleged territorial violations (§ Al; last two § A3; all page 10, § A6, §§ Gl, 2, 4, 5, 6, 8, 9, 10). These charges are, therefore, considered to be withdrawn.
“The preceding findings of fact and conclusions are taken verbatim from the Examiner’s Findings of Fact and Conclusions. The Commission adopts these findings and conclusions as its own. Respondent’s exceptions to the Examiner’s report raise no issues or arguments not covered in its Memorandum of Law which the Examiner required be filed by the Commission and Respondent before he made his report.
“Our only departure from the Examiner’s recommendation comes in assessing a proper penalty. The Examiner assessed lump sum penalties, $3500, $1500, $1000 and $1000, with the latter $1000 being suspended on condition that it discontinue all use of agent companies within 90 days. Due to the large number of territorial violations, we feel that these should bear the brunt of the penalty. We conclude that a fine of $100 for each of the 164 certificate and territorial violations will be a sufficient penalty for past violations and at the same time will deter future violation. A fine of $16,400 is, hopefully, sufficiently large to get Schreiber’s attention and should serve as warning that future transgressions will not be tolerated. Having made our point, we will not assign a monetary penalty to the other charges of which Sehreiber was found guilty. It is, therefore,
“ORDERED by the Florida Public Service Commission that Sehreiber Express, Inc. be and the same is hereby found guilty of 164 territorial violations of its certificated authority and be fined the sum of $16,400, payable within 30 days of the date of this order. §§ 323.02, .09, Florida Statutes. It is further.
“ORDERED that Sehreiber Express, Inc. be and the same is hereby found guilty of failure to operate approved schedules. § 323.02, Florida Statutes; §§ 25-5.19, .20, F.A.C. It is further
“ORDERED that Sehreiber Express, Inc. be and the same is found guilty of failure to obtain a certificate of registration of interstate operations. §§ 323.02, .28(2), Florida Statutes. It is further
“ORDERED that Sehreiber Express, Inc. be and the same is found guilty of failure to perform under its certificate in that it allowed agents to operate its certificate in its stead, and is hereby ordered to discontinue all use of agent companies in operations under its certificate within 90 days of the date of this order. § 25-5.22, F.A.C. It is further
“ORDERED that Sehreiber Express, Inc. be and the same is hereby found not guilty of all other charges in this docket.” In re Schreiber Express, Inc., Order No. 12250, Dkt. No. 74330-CCT(SC) (Fla.Pub. Serv.Comm’n 1975).

Petitioner presents five issues for our determination. We have examined each, and, with the exception of the assertion that the Commission erred in its interpretation of the Interstate Commerce Commission’s authority over certain shipments moving from or to airports in interstate traffic, we find them either to be without merit or failing to show any material departure from the essential requirements of the law. The exception merits discussion.

Sehreiber does not have on file with the Commission (if, in fact, it possesses one) a certified copy of its authority from the Interstate Commerce Commission to move interstate commerce over the Florida highways. The record establishes that it had moved twenty-nine such shipments unlawfully. Of this total, four originated at or were destined to an air freight terminal. These movements, petitioner says, are exempt motor transportation, citing Hazel Kenny, 61 M.C.C. 587, 9 Fed.Carr.Cas. ¶ 32,-735 (1953), in which the ICC defined exempt motor transportation as:

“. . . that confined to the transportation in bona fide collection, delivery or transfer service of shipments which have been received from, or will be delivered to, an air carrier as part of a continuous movement under a through air bill of lading covering in addition to the line-haul movement by air the collection, delivery or transfer service performed by motor carrier.”

The ICC earlier in its ruling stated that:

“Motor transportation is ‘incidental’ to transportation by air when that motor transportation is limited to a bona fide collection, delivery, or transfer service within a reasonable terminal area of the air carrier. Conversely stated, such motor transportation is not ‘incidental’ to transportation by air when it is transportation having the character of a connecting-carrier line-haul service.”

Subsection 323.28(2), Florida Statutes, provides in part, however, with reference to such movements:

“It is unlawful for any motor carrier transporting for compensation in interstate commerce in Florida for which a certificate of public convenience and necessity or a permit is required from the interstate commerce commission to operate over the public highways of this state without first having filed a certified copy of such interstate commerce commission authority with the Florida public service commission and having obtained from the Florida commission a certificate of registration. It is also unlawful for any such companies transporting for compensation under exemptions provided by the interstate commerce act to operate in Florida without first having obtained such a certificate of registration.” [Emphasis added.]

The Commission contends, and we agree, that as to these four shipments from or to the air terminals, the statute required that a copy of Schreiber’s certificate to move interstate commerce be filed with them before it lawfully could move them. B & G Horse Transportation, Inc. v. Yarborough, 261 So.2d 159 (Fla.1972), relied on by petitioner, while holding that the Commission had no authority to attempt to regulate such traffic by for-hire permits, acknowledged that:

“. . . [T]his decision does not preclude any otherwise authorized carriage by Murty Brothers under any other procedures which may apply, including a certificate of registration which might authorize transportation of such commodities in the area involved, if it would.” Id. at 160.

Certiorari is denied.

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


author: BOYER, Chief Judge. PER CURIAM.

text:
    Mabel O. CREARY, Appellant, v. In re the ESTATE of William Clifford CREARY, Deceased, Appellee.
    No. Z-147.
    District Court of Appeal of Florida, First District.
    July 19, 1976.
    Rehearing Denied Oct. 27, 1976.

      Ferrin C. Campbell, Sr. and Daniel C. Campbell, Ferrin C. Campbell, Crestview, for appellant.
    Angus G. Andrews, of Andrews & Miller, and W. F. Green, De Funiak Springs, for appellee.
   BOYER, Chief Judge.

An initial chronological recitation of the undisputed facts in this case will facilitate an understanding of the points of law raised by the parties. Dates are important.

James Creary died on December 31,1949. At the time of his death James Creary owned and lived on a homestead, the title to which was in his name only. The parties agree that the property was clearly homestead. James Creary was survived by a widow, Mary C. Creary, and three children, one of whom was William Clifford Creary.

On December 7, 1947, approximately two years prior to the death of James Creary, Mabel 0. Creary (appellant here) married William Clifford Creary and their marriage continued until the death of William Clifford Creary on April 7, 1969.

On February 6, 1950, after the death of James Creary, his three children, all sui juris, conveyed to their mother, Mary C. Creary, their interests in the homestead of their father. The deed was prepared by an attorney who was acquainted with the family, but who was unaware that William was married to Mabel. As a result, the attorney prepared the deed for the signatures of William and his former wife, Lillian Creary, who signed the deed as the wife of William. No fraud nor other intentional wrongdoing is alleged nor suggested.

It is clear, therefore, that upon the death of James a life estate in his homestead vested in his widow, Mary, with the remainder to his children. The conveyance by the children, including William, to their mother, Mary, vested in her (Mary) their interests, unless prevented by the failure of Mabel to join in the conveyance by her husband, William. Thus, the first point to be resolved:

Appellant urges that since she did not join in the deed by her husband, William, to his mother, Mary, she continued to have an inchoate right of dower in his one third remainder interest which vested upon the death of William on April 7,1969, citing F.S. 731.34, F.S.1969, which provides in material part as follows:

“Whenever the widow of any decedent shall not be satisfied with the portion of the estate of her husband to which she is entitled under the law of descent and distribution or under the will of her husband, or both, she may elect in the manner provided by law to take dower, which dower shall be one third in fee simple of the real property which was owned by her husband at the time of his death or which he had before conveyed, whereof she had not relinquished her right of dower as provided by law, and one third part absolutely of the personal property owned by her husband at the time of his death, and in all cases the widow’s dower shall be free from liability for all debts of the decedent and all costs, charges and expenses of administration; . .

William’s estate was administered in Bay County. Mabel, being unsatisfied with her share, elected to take dower on August 11, 1970, filing same in the Bay County probate proceeding. Apparently the election was within the time permitted by F.S. 731.35(1), F.S.1969. (We say “apparently” because the record-on-appeal and briefs are silent.)

Appellee claims that F.S. 731.34 has no application to a remainder interest in real property, and further that in order for an inchoate right of dower in property to mature into a vested interest the decedent must have actually been seized and possessed of the property during his lifetime, citing Walker v. Close, 98 Fla. 1103, 125 So. 521 (1929), rehearing denied 98 Fla. 1103, 126 So. 289. However, the statute which was the basis for the holding in that case has since been amended. The change is succinctly discussed in Redfearn, Wills, Florida, Sec. 1902, Statutory Modification, wherein it is said:

“Seizen of a legal title, which was necessary to the perfection of a freehold estate at common law, was qn essential requisite to the right of dower, for a widow was not entitled to dower in lands to which her husband held only an equitable title. This rule of the common law, that the husband must be seized and possessed of the legal title to real estate in order for the wife to have a right of dower therein, was made the law of Florida by the act of the legislative council of November 7, 1828. This continued to be the rule of law in Florida until the Probate Act of 1933, which made seizen of the legal title unnecessary. Under Florida law, the widow’s right to dower vests in all property ‘owned’ by her husband, by any title, legal or equitable, at the time of his death, and in all real estate conveyed by him during his lifetime in which she has not released her dower.”

We accordingly conclude that at the time of the death of William, his wife, Mabel, was entitled to claim as dower one third of William’s undivided one third remainder interest in his father’s homestead, which had been conveyed without Mabel’s joinder. We therefore decide the first point in favor of appellant.

The trial judge held appellant’s claim to have been barred by F.S. 95.22, F.S.1969 and F.S. 95.23, F.S.1969.

F.S. 95.22, F.S.1969, provides:

“When any person owning land, or any interest in lands in Florida, shall die, and a conveyance or conveyances shall be made by one or more of his or her heirs or devisees purporting to convey either singly or in the aggregate the entire interest of the deceased in such lands, or any part thereof, or the entire title thereto, then no person shall after seven years from the date of the record thereof, in the county where the lands lie, claim or recover the whole, or any part, of the real estate so conveyed.”

F.S. 95.23, F.S.1969, provides:

“After the lapse of twenty years from the record of any deed or the probate of any will purporting to convey lands no person shall assert any claim to said lands as against the claimants under such deed or will, or their successors in title. “After the lapse of twenty years all such deeds or wills shall be deemed valid and effectual for conveying the lands therein described, as against all persons who have not asserted by competent record title an adverse claim.”

Appellant contends that the trial court erred because under the strict construction accorded curative acts there must exist a cause of action before a curative act may destroy it. (See Curative Acts and Limitations Acts Designed to Remedy Defects in Florida Land Titles — IV by Dr. James W. Day, 9 U. of F.L.R. 145 (1956))

Appellant is correct. (See Reed v. Fain, Fla.Sup.Ct.1962, 145 So.2d 858; Wagner v. Moseley, Fla.App.2d 1958, 104 So.2d 86; Curative Acts and Limitations Acts Designed to Remedy Defects in Florida Land Titles — IV, supra)

Appellant had no cause of action to be extinguished until 1969. She filed her election in 1970. She was not barred by either of the above mentioned statutes. Neither is Chapter 712, Florida Statutes 1973 applicable. (See Marshall v. Hollywood, Inc., Fla.Sup.Ct.1970, 236 So.2d 114 and Reid v. Bradshaw, Fla.App. 1st 1974, 302 So.2d 180)

Finally, appellee, by cross appeal, asserts that appellant is caught in a procedural trap and that the trial judge erred in not granting appellee’s motion to dismiss.

As already recited, William’s estate was administered in Bay County. The property here involved is located in Walton County and Mary’s estate was administered there. After filing her election to take dower on August 11, 1970, in William’s estate in Bay County, appellant filed a petition for assignment of dower on July 28, 1971 in Mary’s estate in Walton County. At a hearing on the latter petition the county judge of Walton County denied the petition and this Court on appeal affirmed per cu-riam. (Creary v. Creary, Fla.App. 1st 1973, 277 So.2d 540)

On June 18,1973, appellant filed a proceeding pursuant to F.S. 733.11(2), F.S. 1969, in Walton County and filed therein a petition for assignment of dower together with a copy of the election to take dower which she had theretofore filed in Bay County. Appellee filed a motion to dismiss the petition on the ground that no instrument had been filed of record in the Office of the Clerk of the Circuit Court of Walton County as required by F.S. 731.35(4), which statute became effective January 1, 1972. The latter statute provides in material part:

“Whether or not her husband’s estate is administered, dower of a widow of any man who dies prior to October 1, 1973, shall be barred in any real property conveyed by her husband before his death and without her relinquishment of dower, unless within three years after her husband’s death she files for record with the clerk of the circuit court for the county where the real property is located an instrument describing the property * * * ft

The learned trial judge denied that motion to dismiss: In so ruling he was eminently correct. Generally speaking, a statute will not be construed to operate retrospectively unless a legislative intent of retrospective operation clearly appears in the statute. There is nothing in F.S. 731.35(4) to indicate any such intent. Appellant’s right to have dower assigned accrued and vested when she filed her election on August 11, 1970. There is no limitation of time provided for the filing of a petition for assignment of dower in either F.S. 733.10, F.S.1969, nor F.S. 733.11, F.S.1969. We do not construe F.S. 731.35(4) to require recordation of the instrument therein provided in relation to property in which dower was claimed by appropriate proceedings prior to the effective date thereof.

Appellant also calls to our attention the general rule that failure to record an instrument has no effect upon parties having actual knowledge of that information which the instrument would purport to reveal if recorded. However, we do not find it necessary to meet that contention in this case because of our determination that the statute operates prospectively.

Affirmed in part and reversed in part and remanded to the trial court for further proceedings consistent herewith.

McCORD, J., and LEE, THOMAS E., Associate Judge, concur.

ON REHEARING

PER CURIAM.

In our opinion we held that the trial court correctly denied appellee’s motion to dismiss appellant’s petition for assignment of dower filed in Walton County on June 18, 1973. We expressly held that F.S. 731.35(4) which became effective January 1, 1972, would not be applied retroactively. In the petition for rehearing, appellee claims that F.S. 731.35(4) is to be applied retrospectively, as evidenced by the following language contained within the statute: “This subsection shall apply even though the decedent died prior to its effective date, but no dower shall be barred because of the subsection if the instrument is filed for record before January 1, 1973.”

While acknowledging the above-quoted language, we also note the general rule of statutory construction that retroactive or retrospective statutes will be invalid if they impair the obligation of contract or vested rights. (30 Fla.Jur., “Statutes”, Section 150) F.S. 731.35(4) applies to dower. Although an inchoate right of dower is not a vested right (see Ryan v. Ryan, Sup.Ct. Fla.1973, 277 So.2d 266), the right to claim dower becomes vested on the death of the husband. (In Re: Ginsberg’s Estate, Sup. Ct.Fla.1951, 50 So.2d 539). Rather than construing the statute involved herein in such a way as would force us to hold the statute invalid as impairing a vested right, we interpret the statute to mean that it will not apply where the original claim of dower was made prior to the effective date of the statute. Sub judice, the statute became effective January 1, 1972. The original petition for assignment of dower was filed in August of 1970: Therefore, since F.S. 731.-35(4) would not apply to the case sub judice, we adhere to our prior conclusion that the trial court was correct in denying appellee’s motion to dismiss the petition for assignment of dower.

BOYER, C. J., McCORD, J., and LEE, THOMAS E., Associate Judge, concur.


author: PER CURIAM.

text:
    George CRIDLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1418.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Sept. 15, 1976.
    Phillip A. Hubbart, Public Defender, and Julian Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

George Byron Cridland was arrested while removing six television sets from a Miami hotel. He was charged by information with breaking and entering and grand larceny, found guilty, convicted and sentenced to consecutive ten-year and two-year terms in the state penitentiary.

During the presentation of the State’s case, the arresting officer was asked whether the defendant made any statements. The defendant's objection was overruled and the officer gave his answer, “No, sir.” The defendant contends that this violated his fifth amendment privilege against self-incrimination, and his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Review of the record fails to demonstrate whether the prosecutor was making reference to statements prior to or at the time of arrest. The record reflects no evidence of custodial interrogation by the police officers which would elicit a response from the defendant.

Bennett v. State, Fla.1975, 316 So.2d 41, holds that any comment upon the defendant standing mute in the face of an accusation is fundamental error requiring a new trial. This principle of law does not apply here as the arresting officer was not asked whether Cridland made a statement in the face of accusation or during custodial interrogation. In our opinion, the inquiry concerning the defendant’s failure to make any statements was not adduced to penalize the defendant for remaining silent. Rather, the purpose was to permit the jury to consider the deeply-rooted common law inference that guilty knowledge may be drawn from the fact of unexplained possession of recently stolen goods. See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380; State v. Young, Fla.1968, 217 So.2d 567; Lebowitz v. State, Fla.App.1975, 313 So.2d 473, 477. Compare United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99; Jones v. State, Fla.App.1967, 200 So.2d 574.

The remaining points raised on appeal are without merit and will not be discussed.

Affirmed.


text:
    Gladys Dominguez MARTINEZ, Appellant, v. COCA-COLA BOTTLING COMPANY OF MIAMI, a Florida Corporation, Appellee.
    No. 75-1414.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Oct. 6, 1976.
    Highsmith, Strauss & Nelson and Leonard L. Elias, Miami, for appellant.
    Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn; Jeanne Heyward, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Affirmed on the authority of Althouse v. State Farm Fire and Casualty Company, Fla.App.1966, 183 So.2d 859; Butler v. Metropolitan Dade County, Fla.App.1974, 298 So.2d 552.


text:
    Jimmy SMITH a/k/a Johnny C. Thomas, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-1780, 75-1781.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Oct. 14, 1976.

      Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY and HAYERFIELD, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

Affirmed on the authority of State v. Blount, 261 So.2d 172 (Fla.1972); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).


text:
    Bruce Michael KIRSCH, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1268.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Rehearing Denied Sept. 10, 1976.
    Miller & Russell, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant, defendant below, appeals from the judgment and sentence entered by the trial court adjudicating him guilty of murder in the first degree and sentencing him to confinement for life at hard labor in the State Penitentiary. Appellee was the prosecution below.

Appellant, along with a co-defendant, was indicted by the grand jury and charged with the first degree murder of Jacob Ludwig. Subsequently, appellant entered a plea of not guilty by reason of insanity. Thereafter, on March 13, 1975, after examination by disinterested experts appointed by the trial court, the trial court entered an order adjudging appellant competent to stand trial. Then on May 19, 1975, the cause proceeded to a jury trial.

Because his defense was that of insanity at the time of the commission of the crime, appellant did not contest that the crime had occurred or that he had committed the crime. Both appellant and appellee concede that the test currently in use by the Florida courts to determine the issue of insanity, under facts such as in the instant case, is the “M’Naughten Test.” See Anderson v. State, 276 So.2d 17 (Fla.1973); and M’Naughten’s Case, 10 Clark & F. 200, 8 Eng.Rep. 718 (1843).

During the course of the trial, expert witnesses for both appellant and appellee testified about whether or not appellant, pursuant to the M’Naughten test, knew right from wrong at the time of the crime and if he knew the nature and consequences of his actions at the same time. From this testimony and the other evidence adduced during the trial, the jury, after being given the standard jury instruction on insanity, returned its verdict finding appellant guilty of first degree murder as charged. Pursuant to the verdict, the trial court entered its judgment and sentence from which appellant appeals.

The basic point raised on appeal by appellant is that the trial court erred in failing to strike the testimony of Hans Ueli Steiner, M. D., because the testimony was incompetent by virtue of the fact that it was based upon a premise or premises in contradiction to the legal test of insanity, i. e., the M’Naughten test, which is the law in Florida. Appellant contends that he was entitled to a directed verdict upon the issue of his insanity because the sole competent evidence presented on this issue supported a finding of insanity. This latter argument assumes that Dr. Steiner’s testimony was incompetent; if not, the evidence was conflicting and the resulting factual issue was one for the jury to determine.

Appellee contends that the trial court did not abuse its discretion by denying appellant’s motion to strike the testimony of Dr. Steiner, the prosecution’s rebuttal witness, and that there was substantial competent evidence to support the decision of the jury that appellant was sane when he committed the crime.

We have carefully reviewed the record and have concluded that the questioned testimony of Dr. Steiner was in accord with the M’Naughten test for insanity and that the verdict of the jury was supported by substantial competent evidence. Further, we have considered all points in the briefs and arguments of counsel in the light of the prevailing principles of law and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment and sentence appealed are affirmed.

Affirmed.


text:
    Michael John SHOCKEY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-642.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Rehearing Denied Oct. 6, 1976.

      Eugene P. Spellman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant, Michael Shockey, was found guilty of murder in the first degree by a jury. He was adjudged guilty and sentenced to life imprisonment.

The victim was Jacob Ludwig, the elderly grandfather of Bruce Kirsch. Shockey and Kirsch were codefendants. Shockey was, pursuant to his motion, tried separately. On this appeal, he has presented three points. The first urges that the evidence of his participation in the killing was insufficient to establish that he was guilty of premeditated murder. The second urges that we should reverse upon a holding of fundamental error because the court failed to instruct the jury on the distinction between principals in the first degree, principals in the second degree and accessories after the fact. The third point claims error upon the denial of his motion for a new trial based upon a claim of newly-available evidence.

The defendant, Michael Shockey, along with Bruce Kirsch, Jacob Ludwig and Kirsch’s mother, all lived together in the same house. The victim, Ludwig, said that on September 16, 1974, he would be leaving by train for Philadelphia and asked the defendant whether he would drive him to the station in return for a fee. Two days after the defendant was supposed to have dropped Ludwig off at the train station, the deceased’s body was discovered beside a trash pile covered by a couch. The area in which the body was found was described as semi-rural and not heavily traveled. The defendant first told investigating officers that he had dropped the deceased off at the train station. Thereafter, the defendant, having been warned of his rights, made a statement to the officers which was reduced to writing and was read at the trial. In this statement, he stated that he had attempted to take a short cut to beat the traffic and that, finding the road he took blocked, he stopped the car. The defendant said at that point that Kirsch put his arm around his grandfather’s neck, started choking the victim and told the defendant to kill the motor. The defendant said he did as Kirsch told him and turned the motor and the lights off because he was afraid of Kirsch. Kirsch then got the victim out of the car and stabbed him with a knife and beat him with a billy club. Kirsch next got the deceased’s wallet and also took his watch and checks. These items were thrown away or destroyed. The defendant admitted that he took a couch that was nearby and placed it over the victim. He and Kirsch then disposed of the remaining items by throwing them in a nearby canal.

The appellant urges that while the written statement was clearly sufficient to show that the defendant was guilty of being an accessory after the fact to the murder, it was, together with the other evidence, sufficient to convict the appellant of only that particular crime. The State points to additional evidence which came out at the trial. An investigating officer testified that the defendant, upon being told that there were some discrepancies in his story, admitted, “Well, okay. I knew a couple of days before that he was planning to kill him.” The billy club and the knife were found where the defendant said he had concealed them. In addition, the defendant orally admitted that he knew that Kirsch was hiding in the back seat of the vehicle when he left the house.

A person who is charged with the commission of a crime may be convicted upon proof that he aided and abetted in the commission of the crime. See Fla.Stat. § 776.011; State v. Dent, Fla.1975, 322 So.2d 543; and McClamrock v. State, Fla. App.1975, 327 So.2d 780.

Before an accused may be convicted as an aider and abettor of a crime, his intent to participate in the crime must be proved. While this intent may be proved in many ways, it cannot be based entirely upon circumstances unless those circumstances exclude the reasonable doubt engendered by appellant’s explanation of his presence at the time and place of the crime. See Douglas v. State, Fla.App.1968, 214 So.2d 653; and cf. Jones v. State, Fla.App. 1966, 192 So.2d 285.

The evidence before this jury showed that the defendant arranged to take the victim in defendant’s car, knowing that his friend, Kirsch, was hiding in the car. Defendant knew that Kirsch was planning to kill the victim and he went along with what Kirsch was planning to do. Defendant drove to a secluded area, shut off the motor of the car and turned off the lights on the order of his friend, aided in the disposal of the body and the weapons, and told a false story to the police in an attempt to conceal the crime. We hold that the evidence was sufficient to show defendant’s intent to participate in the crime and to exclude any reasonable doubt that he did not intend to participate in the crime.

In State v. Dixon, Fla.1973, 283 So.2d 1, the Supreme Court considered the constitutionality of the method and means of determining the penalty to be imposed in capital eases pursuant to Fla.Stat. §§ 775.082 and 921.141. In discussing Fla.Stat. § 776.011, the court said:

* * * * * if
“The obvious intention of the Legislature in making this change is to resurrect the distinction between principals in the first or second degree on the one hand and accessories before the fact on the other, in determining whether a party to a violent felony resulting in murder is chargeable with murder in the first degree or murder in the second degree. As to the distinction in any particular case, we need but refer to the rich heritage of case law on the distinctions between principals in the first or second degree and accessories before the fact.”

Appellant urges that although he did not object to the instruction of the court upon the aider and abettor statute and requested no additional instruction on the subject, it was fundamental error to give the instruction. It is argued that it was absolutely necessary for the court, in its instruction, to make clear the distinction between principals in the first degree and second degree and accessories before the fact. We do not find fundamental error. The defendant was on trial for murder in the first degree. The evidence proved him guilty as a participant in the crime. The instruction given was entirely proper as a statement of the law which was and remains in full force and effect in Florida. The fact that the court did not instruct upon the law relating to principals in the first and second degree and accessories before the fact did not deprive the defendant of a fair trial. Cf. Damico v. State, 153 Fla. 850, 16 So.2d 43 (1943); and see Leake v. Watkins, 73 Fla. 596, 74 So. 652 (1917).

In addition, the objection made on this appeal, but not at trial, to the effect that the court failed to read that portion of Fla.Stat. § 782.04 pertaining to second degree murder, which relates to the killing of a human being “. . . when committed in the perpetration of, or in the attempt to perpetrate, any [of the named felonies] . ,” does not show error. There was no evidence in this case of any felony except premeditated murder. It is clear that the omitted portion in no way affected the trial of the defendant upon the issues presented. Therefore, it was not fundamental error. Cf. State v. Wilson, Fla.1973, 276 So.2d 45; DeLaine v. State, Fla.1972, 262 So.2d 655; and Roker v. State, Fla.App. 1973, 284 So.2d 454.

Appellant’s last point claims that the trial court erred in denying his supplemental motion for a new trial. The motion, in pertinent part, was:

‡ * ifc $ ifc #
“4. That it has come to the attention of counsel for the defendant that subsequent to the trial and conviction of MICHAEL JOHN SHOCKEY, a psychiatric examination consisting of regressive hypnosis analysis was conducted upon the codefendant, BRUCE MICHAEL KIRSCH, by Dr. Charles B. Mutter.
“5. That while counsel for the defendant SHOCKEY have not seen a copy of Dr. Mutter’s written report nor have they been able to listen to the tape of the examination, it is counsel’s understanding that the facts elicited from BRUCE MICHAEL KIRSCH would completely absolve MICHALE JOHN SHOCKEY from any criminal liability in this cause, said facts being consistent with the position taken on behalf of MICHAEL JOHN SHOCKEY during his trial.
“6. That the defendant, BRUCE MICHAEL KIRSCH is presently scheduled for trial in this same cause (the defendants having been severed) on May 19, 1975, and as a result thereof, counsel for KIRSCH (Assistant Public Defender Mike Tarkoff) has refused to permit counsel for SHOCKEY to submit a copy of Dr. Mutter’s report with this motion or to waive the physician-patient privilege in order that Dr. Mutter might testify before this Court concerning his examination.”
* * * * * *

Since the filing of this appeal, the trial court has, by its order, directed that Dr. Mutter’s testimony be made a part of this transcript of record. We have read the testimony and find that in all important particulars, it corroborates defendant’s written statement in this cause. It contains no material fact which was not presented to the jury in this case. The trial court did not err in denying the supplemental motion for a new trial because the tendered evidence was not admissible. See Rodriguez v. State, Fla.App.1976, 327 So.2d 903. Even if admissible, testimony of Dr. Mutter concerning Bruce Kirsch’s statements with regard to his execution of the killing was not such as should reasonably produce, on another trial, an opposite result on the merits. See Howard v. State, 36 Fla. 21, 17 So. 84 (1895); Weeks v. State, Fla.App.1971, 253 So.2d 459.

Affirmed.

      . Kirsch’s trial resulted in his conviction of first degree murder. His appeal resulted in an af-firmance by this court. See Kirsch v. State, Fla.App. 1976, 338 So.2d 32.

      . ‡ ♦ ♦ * * ♦
      “Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, is a principal in the first degree and may be charged, convicted and punished as such, whether he is or is not actually or constructively present at the commission of such offense.”

      . The following instruction was given by the court:
      “A person may commit a crime by his own personal act or through another person. Any person who knowingly aids, abets, counsels, hires or otherwise procures the commission of a crime is equally guilty with the one who actually performs the criminal act, whether he is or is not present at the commission of the offense. However, for one person to be guilty of a crime physically committed by another, it is necessary that he have a conscious intent that the criminal act shall be done and that, pursuant to that intent, he do some act or say some word which was intended to and which did incite, cause, encourage, assist or induce another person to actually commit the crime.”

      . Basically, under hypnotic analysis, Bruce Kirsch told the psychiatrist that he had gotten in the defendant’s car to go to the train station with the defendant and the victim, his grandfather, only for the purpose of apologizing to his grandfather for difficulties had in the past. The codefendant Kirsch said that he wanted to surprise his grandfather upon arrival at the train station, and at that point apologize to him, and that for this reason, he concealed himself in the back seat of the station wagon, saying that his grandfather would not have allowed him to ride in the car when going to the train station. His statement, however, also related how he choked his grandfather and struck him, explaining that he had gotten angry when his grandfather started cursing, etc.


author: PEARSON, Judge.

text:
    UNITED STATES FIDELITY AND GUARANTY CO., a Florida Corporation, Appellant, v. Ruth DARDEN and Melvin Darden, Appellees.
    No. 75-1389.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Rehearing Denied Sept. 15,1976.

      Horton, Perse & Ginsberg, Hawkesworth & Schmick, Miami, for appellant.
    Sam Bloom, Miami, and David C. Arnold, Coral Gables, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PEARSON, Judge.

The appellant, United States Fidelity and Guaranty Company, was the defendant to a complaint for declaratory relief whereby the appellees, Ruth Darden and Melvin Dar-den, sought a declaration that a policy of insurance issued by the defendant included uninsured motorist coverage although the insurance policy itself did not so provide because Ruth Darden was, at the time of the taking of her application, misled into believing that uninsured motorist coverage was provided. The cause was. tried before the court without a jury and the trial court made the following finding of fact:

“1. That the Plaintiff, RUTH DAR-DEN, did not knowingly and with knowledge waive uninsured motorist protection and, therefore, said protection was in full force and effect on the date of the accident, February 8, 1974, . . . ”

On this appeal, appellant urges that the trial court erred in finding that the plaintiff “did not knowingly and with knowledge waive uninsured motorist protection.”

The District Court of Appeal, First District, held in Wilson v. National Indemnity Company, Fla.App.1974, 302 So.2d 141, that because Fla.Stat. § 627.727 requires uninsured motorist coverage unless affirmatively rejected, it is only logical to require that the waiver be knowingly made.

The facts testified to at the trial are briefly as follows: The plaintiff first applied for insurance with the Cole Insurance Agency in 1967 and was placed with the Morrison Insurance Company. The application for this particular policy reflected a rejection by the plaintiff of uninsured motorist coverage. This policy was terminated in 1967 and no insurance by the plaintiff was reflected until 1971. On April 7, 1971, plaintiff returned to Cole Insurance Agency to obtain insurance. This time she was placed with the defendant, United States Fidelity and Guaranty Company. The application for insurance signed by the plaintiff on that date reflected a rejection of uninsured motorist coverage. Plaintiff testified that when she applied for the insurance, she requested “full coverage.” She further testified that the person who waited on her did not explain to her what uninsured motorist protection was. The record does not reflect that the plaintiff requested an explanation. The plaintiff was not charged for uninsured motorist coverage and, therefore, did not pay for that coverage. The person who waited on the plaintiff was identified as a Mrs. Cole, who testified that when Mrs. Darden came to apply for insurance, she sat across the table from Mrs. Darden, asked her name and address and how many traffic tickets she had received. Mrs. Cole admitted that Mrs. Darden did not inquire about uninsured motorist protection. After Mrs. Cole had completed the application, she marked an “X” where Mrs. Darden was to sign and Mrs. Darden signed the application without reading it.

The simple question presented on an appeal, which seeks reversal of a finding of fact made by a trial judge after a non-jury trial is whether there is sufficient evidence in the record to support the finding of the trial judge. See Travelers Insurance Company v. Odoms, Fla.App.1975, 306 So.2d 207. It is not important that the appellate court might have made a different finding of fact. If the evidence supports the finding of the trial judge, it will be sustained upon appeal even though conflicting and contradictory evidence may be convincing to the appellate court. See Shaw v. Shaw, Fla. 1976, 334 So.2d 13 (1976), and cases cited therein.

Our review of this record convinces us that there is sufficient evidence to support the finding of the trial judge. Therefore, the judgment will be affirmed.

The appellees have filed cross-assignments of error urging that they are entitled to a judgment as a matter of law because the application was ambiguous or misleading. Having reached the conclusion that the judgment must be affirmed, we do not consider the cross-assignments of error.

Affirmed.

HENDRY, J., dissents.


author: NATHAN, Judge.

text:
    George L. ZIEGLER et al., Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee.
    No. 75-1612.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Rehearing Denied Oct. 14, 1976.
    Spiegelman & Spiegelman, Miami, for appellants.
    Welbaum, Zook, Jones & Williams, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   NATHAN, Judge.

This is an appeal by the plaintiff, George L. Ziegler and Verna L. Ziegler, his wife, and Lewis M. Chernoff, and Helen C. Cher-noff, his wife, from an order on mandate cancelling and discharging a supersedeas bond posted by the defendants, Samuel J. Fountas and Equities Diversified of Ohio, Inc., as principals, and written by St. Paul Fire and Marine Insurance Company, appel-lee herein, as surety, and the order of the trial court taxing appeal costs against the plaintiffs in favor of the defendants.

The defendants, plaintiffs’ tenants, breached their lease with 24 months remaining. The plaintiffs filed suit, resulting in a judgment in the trial court for the balance of the rent due under the lease. The defendant tenants appealed to this court and posted the supersedeas bond written by St. Paul Fire and Marine Insurance Company.

On appeal, this court found that the trial court incorrectly computed the damages, affirmed the judgment in part, reversed it in part and remanded the case for further evidence on damages

“ . . . and for the entry of the amended judgment setting damages in the amount established by the evidence upon the application of the law as herein set forth.” Fountas v. Ziegler, 305 So.2d 864 (Fla. 3d DCA, 1975) at page 866.

On remand, the trial court entered an order on mandate in which it set a trial for the damage issue, cancelled and discharged the bond, and awarded the defendants their costs on appeal.

In the instant appeal from the order on mandate, the plaintiff-appellants contend that it was error for the trial court to cancel the bond since by its terms, the bond guarantees payment of “ . . . any money judgment contained and set forth in said judgment or any modification,not in-vreasing (sic) the amount there[of] . ” Thus, the judgment was only modified and the bond should remain in effect. St. Paul Fire and Marine contends that the bond was properly cancelled since by its terms, the bond guarantees payment of “ . . . any money judgment contained and set forth in said judgment . ” (emphasis supplied). Therefore, since this court’s opinion required a new trial as to damages, and not just a ministerial act, the former judgment is not effective and the bond guaranteeing its payment was properly cancelled.

The pristine issue in this case is whether the decision of this court on the former appeal was such an affirmance of the decree as to require the trial court to hold the surety liable on the supersedeas bond for the amount of the amended judgment setting damages necessarily in a lesser amount to be thereafter entered in the trial court upon taking further evidence on damages as directed by this court. In our opinion, it was error to cancel the bond and discharge the surety.

As stated in Kulhanjian v. Moomjian, 105 So.2d 783 (Fla.1958), “A partial reversal of a money judgment or decree by ordering a remittitur for excessiveness of damages, or by disallowing and deducting items of nonrecoverable damage therefrom, is quite clearly only a ‘modification’ of the judgment within the terms or the bond and not such a reversal as to discharge the surety from the obligation of the bond.” (emphasis added)

Under the facts presented in the case sub judice, after modification of judgment, there remains in effect a portion of the judgment, albeit a lesser sum, which the surety agreed to be responsible for and upon which execution can issue. The “amended judgment” mandated by this court would only be a modification of the judgment that the surety had obligated itself to satisfy. It would be part of the original judgment, applying the same legal principles to the facts and changing only the measure of damages. This being so, the partial affirmance of the judgment was effective to mature the obligation of the surety on the supersedeas bond.

Reversed.


author: ALDERMAN, Judge.

text:
    Glen Herbert RICHERT, Appellant, v. STATE of Florida, Appellee.
    No. 75-1709.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1976.
    Rehearing Denied Oct. 26,1976.

      Frank G. Whalen and Sheldon Golding, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Arthur Joel Berger, Asst. Atty. Gen., Miami, for appellee.
   ALDERMAN, Judge.

Defendant appeals his conviction of unlawful delivery of a controlled substance in violation of Sections 893.03(l)(c) and 893.-13(l)(c)(2), Florida Statutes (1975). Relying upon the defense of entrapment, the defendant testified, in substance, as follows:

He had been a police officer in Chicago for eleven years. About a year and a half prior to his arrest he moved to Fort Lauder-dale, where he worked as a bartender. During the course of his employment a group of youthful and unruly patrons started a fight in the tavern. Defendant called the police, but before they arrived another patron assisted him in breaking up the fight and ejecting the unruly customers.

Following this incident defendant became friendly with the man who had assisted him. This man, who was known to the defendant as Dave, advised defendant that he was a police officer. In the months that followed Dave made frequent visits to the tavern. During this time Dave was in the company of another man, who the defendant later knew as A.J. Dave advised defendant that the other man was also a police officer and his partner.

Sometime prior to the date of the alleged offense, Dave approached the defendant and asked him to help locate the source of hard narcotics in the area. Defendant agreed to help. In this regard, Dave gave the defendant two pills and a tinfoil package containing a type of salt substitute. He was told that A.J. and the drug users would come to the tavern later that evening. He was instructed to give the pills to A.J. and to deliver the foil package to the other individuals who would be with A.J.

Later that evening A.J. appeared at the tavern with two other persons. The three sat at the bar. A.J. approached the defendant out of the hearing of his two companions. They had a whispered conversation during which A.J. instructed defendant to give him the two white pills in view of the other two and to tell the two men that they would have to come back for the rest later. The defendant complied. Later that evening the three returned and defendant delivered the foil package to one of the men who accompanied A.J. Thereafter for the next six weeks the two men frequently returned to the tavern seeking to purchase drugs from the defendant.- Their attempts were unsuccessful and defendant repeatedly advised them that he had nothing to do with drugs.

Defendant had been told by Dave that the pills and the contents of the foil package were entirely harmless. (At trial, the evidence showed that the substance in the foil package contained a minute quantity of MDC, a controlled substance. Defendant was charged and convicted of delivery of the contents of the foil package. No analysis of the two pills was made and the defendant was not charged with any offense related to the pills.)

Defendant did not know that the two men who had come to the tavern with A.J. were police officers until after he was arrested six weeks later. (From the testimony of the police officers it appears that the person known to the defendant as A.J. was a confidential informant working for the police. However the officers denied any knowledge that their confidential informant had a partner. They knew nothing about the person known to the defendant as Dave.)

Subsequent to his arrest the defendant personally searched for the person known to him as A.J. and in addition hired a private detective in an effort to locate this person. He was unsuccessful and at trial did not know the true identity of the confidential informant known to him as A.J.

This rather long recital of the substance of defendant’s testimony has been necessary in order to evaluate the points raised on this appeal.

First, defendant contends that the trial court erred in failing to require the State to reveal the name of its confidential informant. Prior to trial defendant had filed a motion for further discovery alleging in substance that the confidential informant was a party to the incident leading to the arrest of the defendant, that he was present at the time of the incident leading to the arrest of the defendant, that he was present at the time of the incident.and took part in the alleged conversation between the officers, the confidential informant and the defendant. Defendant further alleged that he intended to rely on the defense of entrapment as instigated by the confidential informant. No testimony was presented at the hearing on this motion; however the trial judge had the benefit of the State’s answer to Demand for Discovery acknowledging that the prosecutor had material or information provided by the confidential informant. The State’s answer further acknowledged “Seizure of two tablets delivered by defendant to C.I.” as well as “Seizure of a tinfoil packet containing white powder substance.”

The State attempts to avoid identifying its confidential informant by arguing that the delivery of the two pills was a separate transaction from the delivery of the foil package, and defendant was not charged with delivery of the two pills. The State Attorney below, in answer to the trial court’s question concerning the “seizure of two tablets delivered by defendant to C.I.”, stated:

“Yes, sir; but he is not being charged with that transaction. It is a separate transaction where the C.I. was present in the bar. I believe it was with the C.I. There was some discussion, I believe some discussion, as to what was going to take place as far as what was going to be delivered; and some tablets were given to the C.I. He left. The officer returned later and there was a separate transaction at which time these charges arose.” (Transcript of motion hearing, p. 7.)

Immediately following this representation by the State the trial court denied defendant’s motion for additional discovery. The statement to the trial court was misleading because it implied that the confidential informant was not present when the officers later returned and the foil package was delivered to Officer Scotti. The testimony of Officer McCawley at trial established that the confidential informant did in fact return with the officers and was sitting there while McCawley’s partner, Officer Scotti, talked with the defendant. (Trial transcript, p. 50.)

Further, after insisting that the delivery of the pills to the confidential informant was a separate transaction with which the defendant was not charged, the State during its direct examination of Officer Scotti, specifically elicited testimony concerning the conversation which took place in his presence between the defendant and the confidential informant. He also testified as to having seen the delivery of the two pills by the defendant to the confidential informant. (Trial transcript, p. 20.)

We do not believe that the two occurrences can be fairly separated. The fact that the officers left for a short while and then returned is not sufficient to make one occurrence independent of the other. What allegedly took place in the tavern that evening between the defendant, the confidential informant, and the two undercover police officers is so interrelated that it must be considered as one continuous transaction.

We recognize as a general rule that it is the State which has the privilege of non-disclosure of the identity of a confidential informant and that the burden is on the defendant to show why an exception to the rule should be allowed. Treverrow v. State, 194 So.2d 250 (Fla.1967); State v. Anderson, 329 So.2d 424 (Fla. 3rd DCA 1976); Smith v. State, 318 So.2d 506 (Fla. 2d DCA 1975); Hawkins v. State, 312 So.2d 229 (Fla. 1st DCA 1975). We think the defendant has met this burden. Defendant’s story, if believed by the jury, would have required a verdict of not guilty based upon his defense of entrapment. The confidential informer known to the defendant as A.J. was an essential and material witness to this defense. If the informant had corroborated defendant’s testimony the State would have had no case. In addition the police acknowledge that A.J. was a confidential informant working for them, but denied any knowledge of the other person known to the defendant as Dave. If the defendant were able to identify and question A.J., he might also then be able to find Dave. Where, as in this case, the disclosure of an informant’s identity is essential to a fair determination of a case the privilege must give way. Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965). Based upon the facts of this case we hold that the trial court erred in not requiring the State to identify its confidential informant. Defendant’s conviction must be reversed and the case remanded for a new trial.

Defendant also contends that the trial court erred in not allowing the defendant to testify as to the content of conversations he had with the confidential informant. A review of the transcript reveals that the defendant was in fact allowed to testify as to conversations which took place at the time of the alleged offense. However the trial court sustained the State’s objection on the basis of the hearsay rule as to a conversation which allegedly took place between the defendant and the man known as A.J. several weeks after defendant’s arrest. The trial court correctly sustained the hearsay objection. In Brown v. State, 299 So.2d 37 (Fla. 4th DCA 1974) we held that the trial court erred in excluding defendant’s testimony concerning conversations that he allegedly had with a police informant. However in Brown the statement of the police informant was offered, not to prove the truth of the matter asserted, but rather to show defendant’s state of mind and inducement of the police informant at the time of the alleged crime. In the present case the defendant’s state of mind several weeks after his arrest was not relevant, and the trial court correctly sustained the State’s objection to this testimony.

Defendant further contends that the trial court erred in denying his motion for judgment of acquittal. He in effect asked us to accept and apply as the law of Florida the holding in United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), wherein the court held that where there was no rebuttal of the defendant’s testimony that the informer in the employ of the government gave the narcotic to the defendant and induced him to make the sale to a government agent, the defendant could not be convicted of possession, handling and sale of heroin. The question was:

“. . . whether the government has the duty of coming forward with contrary evidence when the defendant testifies to uncontradicted facts that would constitute entrapment as a matter of law, and there is no evidence to show that his testimony is untrue.” (At 904.)
“If the government cannot come forward with evidence that contradicts Defendant’s testimony, then he is entitled to discharge, as a matter of law.” (At 906.)

We do not believe that under Florida law a defendant would be entitled to discharge as a matter of law simply because he testified without contradiction to facts that constitute entrapment. For example, in State v. Liptak, 277 So.2d 19 (Fla.1973) the defendant had testified, without contradiction, to certain facts. The Supreme Court held that the facts presented a question for the jury and did not establish the defense of entrapment as a matter of law. The Florida courts have consistently held that the issue of entrapment is a jury question unless it is determined that the evidence is so clear and convincing that as a matter of law entrapment has been conclusively established. See Smith v. State, 320 So.2d 420 (Fla. 2d DCA 1975); State v. Rouse, 239 So.2d 79 (Fla. 4th DCA 1970); State v. Liptak, supra.

The only Florida case in which an entrapment defense was found to require a judgment of acquittal as a matter of law was Thomas v. State, 185 So.2d 745 (Fla. 3rd DCA 1966). The appellate court there held that entrapment was established as a matter of law by undisputed evidence that defendant, having been released on bail after being arrested and charged with similar violation, was induced by state beverage agents to act as an undercover agent for the purpose of ascertaining the identity of persons financing the moonshine activities of another, even though the agents had told the defendant not to engage in moonshine activities. Thomas v. State, supra, is distinguishable from the present case because in Thomas the defendant had supporting testimony from the state beverage agents which proved that the defendant was an undercover agent working for them at their urging. The testimony of the defendant below is uncorroborated. A different situation would exist if other evidence and testimony had supported the defendant’s version of why he delivered the controlled substance to the undercover police officer.

We adopt and quote with approval the language of the United States Court of Appeal, Tenth Circuit, in the case of United States v. Gurule, 522 F.2d 20 (10th Cir. 1975).

“The per se rule seemingly established in Bueno —and urged by appellant here— requiring a finding of entrapment when the Government fails to produce the informant-agent to rebut the defendant’s testimony as to entrapment has recently come under attack. See, Judge Weis’ dissent in United States v. West, supra; United States v. Jett, 491 F.2d 1078 (1st Cir. 1974); United States v. Hayes, supra. In United States v. Johnson, supra, we held that even absent the rebutting testimony of the Government’s informant, the jury is entitled to disbelieve the uncontra-dieted portions of testimony of a defendant alleging entrapment. See also, Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). We fail to see any reason why the jury should be accorded less discretion to disbelieve the defendant’s uncorroborated testimony that he was supplied narcotics by the informant.”

This, in our opinion, expresses the better view and conforms with the existing law of Florida. We specifically reject defendant’s contention that we should adopt the per se rule seemingly established in United States v. Bueno, supra. To the contrary we specifically hold that under Florida law when the undisputed testimony of a defendant is the sole basis for an entrapment defense, entrapment is not established as a matter of law but rather is an issue for the jury to decide.

We have considered the other points raised by the defendant and find that they are without merit and do not require discussion.

Reversed and remanded for further proceedings consistent with this opinion.

MAGER, C. J., and WEAVER, SIDNEY M., Associate Judge, concur.