text:
    James D. GEORGE v. STATE.
    8 Div. 84.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Hilary Coleman Burton, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen. for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Grand Jury of Madison County for rape. Prior to trial, appellant, being nineteen years of age, applied to be arraigned as a Youthful Offender. The trial court denied appellant’s request upon the probation officer’s report. Subsequently, in the presence of counsel, appellant entered a plea of not guilty to the charge against him. Having been tried by a jury, appellant was found guilty and sentenced to ten years of imprisonment in the penitentiary. The trial court, finding appellant to be indigent, appointed trial counsel to represent him on appeal, and ordered that he be provided a free transcript.

The sole issue on this appeal pertains to the sufficiency of the evidence to sustain appellant’s conviction. The facts of the case are summarized below.

The prosecutrix testified that she lived in Apartment E at 1411 Highland Avenue, Huntsville, Alabama. On November 17, 1977 she was awakened at about three o’clock a. m., by someone pounding on her door. When the prosecutrix asked who was there, she was told, “Police.” She opened her door, only to be confronted by a man, armed with a pistol, who forced his way into the apartment. At trial the prosecu-trix identified the intruder as appellant. She had seen him on a previous occasion when he was doing repair work in the apartment of one of her friends.

Following his entering the apartment, appellant placed the gun to the victim’s head, ordering her to undress him and then herself. Over the next hour and a half, appellant forced the prosecutrix to commit numerous acts of sexual intercourse upon him in various positions.

Appellant also shaved her pubic hair. At one point, appellant placed his pistol to the prosecutrix’s vagina, threatening to “blow that thing off” if she made any noise. Some time later, appellant ordered the pros-ecutrix to perform an act of fellatio on him, and, while his victim was about this task, he fell asleep. The victim, having made sure that appellant was asleep, left her apartment and called the police.

Appellant was the son of Mrs. Morris, the apartment manager. According to the testimony of the prosecutrix, none of the sexual acts committed by appellant was done with her consent. On the contrary she testified appellant called her a bitch and threatened her life on several occasions.

Billy Clardy testified that he was a policeman for the City of Huntsville, Alabama. On November 17,1977, Clardy testified, he answered a call to find the prosecu-trix barefoot and dressed in a robe; she told him that she had been raped. Proceeding to the prosecutrix’s apartment, Clardy found appellant naked and asleep on a mattress; a loaded pistol, out of its holster, was lying beside him on the floor. Clardy woke up the appellant, with some difficulty, and read him his “rights.” Appellant then made the following statement, which was read into the record without objection and admitted into evidence by the appellant.

“I went to see my sister that lives in apt. ‘D’, but she was asleep. I started, but noticed Linda standing on the steps in front of her apt. Her door was open and all the lights were on. She started waving for me to stop. I pulled over to the curb and got out. I walked up to where she was standing on the steps. I asked her what she wanted. She said she just wanted someone to talk to. I told her what the hell, I had until 7 o’clock in the morning. I went back to my — truck and got my pistol so no one would steal it. I walked back to where she was standing. She said, ‘Let’s go inside.’ We went into her apt and sat on the couch. We talked for about forty-five minutes. We started moving closer together. She opened her housecoat. She did not have anything else on but the housecoat. We started kissing and I began to let my hands roam. She did not try to stop me. We got up and went to the bedroom. She took off her housecoat and laid down on the bed. I took off my clothes and laid down with her. We then made love several times. She told me to wait a minute because she wanted to get the vasline (sic). She got up and went into the bathroom. She came back to the bed with a small jar of vasline (sic). We made love again then I fell asleep. The next thing I knew two police officers were wakeing (sic) me up.”

Larry Gillespie testified that he was employed as a policeman by the City of Huntsville, Alabama. Gillespie responded to a call with his partner, Clardy, on November 17,1977. Gillespie testified that, when they arrived on the scene the prosecutrix was “very frightened. She looked like she had been abused. She was disoriented; she was real frightened.”

James Parker testified that he was a Crime Scene Technician for the City of Huntsville. On November 17, 1977 Parker went to the victim’s apartment, where he took several photographs, depicting a razor in a trash can, hair in the toilet, and including a photograph of the front door of the apartment. These photographs were all admitted into evidence without objection. A piece of bread, which the prosecutrix testified appellant stuffed in her mouth to prevent her from yelling for help, and samples of the hair found in the toilet bowl were also admitted into evidence without objections.

Winnie Bailey testified that she was employed by the City of Huntsville Police Department. On November 17, 1977 Ms. Bailey carried the prosecutrix to the Emergency Room of Huntsville Hospital. There, Ms. Bailey observed a scratch between the pros-ecutrix’s eyes, bruises on the inside of the upper and lower lip, a small cut under her tongue, bruises and abrasions on the front of both shoulders, scratches on her back and sides, and a small v-shaped cut in the pubic area where it had been shaved.

Dr. Dallas B. Reynolds testified that he treated the victim on November 17, 1977. In addition to the bruises, cuts, and scratches seen on the prosecutrix by Officer Bailey, Dr. Reynolds observed bruising about the breasts. Dr. Reynolds also testified that saline slides used in an acid phosphatase test did not reveal the presence of sperm.

The State rested, and the Court asked if there were any motions and appellant’s counsel said, “No, sir.” The Court then said: “The defendant moves to exclude the evidence on the grounds that the State has failed to make out a prima facie case, and I overrule the motion.”

Three character witnesses testified on behalf of the appellant that he had a good general reputation in the community and that they would believe him under oath.

Cynthia Mills testified that the victim told her in a conversation that appellant had gained access to her apartment by a key.

Jean Morris testified that she was appellant’s mother and that she managed the apartments in which the prosecutrix lived. Mrs. Morris testified that there were no rules at the complex concerning tenants’ installation of safety locks or chains. Mrs. Morris further testified that appellant did not have access to a master key unless she or her husband was with him.

Appellant James D. George testified substantially to what appeared in the statement given by him to the police at the scene. However, appellant further testified that he had had sexual relations on several occasions with the prosecutrix and that he did so on this occasion with her consent. According to appellant the prosecutrix alone shaved her pubic area. Appellant further testified that he noticed no bruises, abrasions, cuts or scratches on the victim’s person and did not know how she came to have them. Appellant also testified that he did not reach a climax during sexual relations with the prosecutrix.

Appellant, on one occasion, did some maintenance work in the victim’s apartment with his stepfather, Arthur J. Morris. At that time he saw three or four black and white pictures of prosecutrix. The pictures were on the kitchen table. These pictures, appellant testified, depicted the prosecutrix in the nude, lying around with another girl and a man, engaged in sexual acts.

Arthur J. Morris, appellant’s stepfather, also testified to seeing photographs of the prosecutrix in her apartment, when he was there with appellant. However, these pictures were “in color,” Morris testified. Morris testified that he did not see a photograph of three people in a bed, only photographs of the prosecutrix and another man.

In rebuttal, the State recalled Mrs. Morris who testified that a clause in the lease for that apartment complex did prohibit tenants from installing locks or chains. The prosecutrix testified that new locks were put on her apartment at her request. A copy of this lease was admitted into evidence without objection.

In Gulley v. State, Ala.Cr.App., 342 So.2d 1362, at 1364, we find the following language:

“. . . Rape is the unlawful carnal knowledge of a woman by a man forcibly and against her will. Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976). The victim herself testified that the appellant had sexual intercourse with her and that such intercourse was accomplished by force and against her will and consent. This, if believed by the jury, was sufficient to sustain a conviction for rape. Williams v. State, Ala.Cr.App., 335 So.2d 249 (1976).”

Although appellant’s testimony is in direct conflict with the testimony of the prosecutrix on issue of consent, the substantial evidence presented by the State established all the elements of the charge and the trial court properly overruled appellant’s motion to exclude, which was made by the trial judge himself. Conflicting evidence always presents a jury question unless the evidence palpably fails to make out a prima facie case. Gulley, supra, at 1365. For numerous other authorities for the same proposition see Alabama Digest, Criminal Law, 1159.3(2).

A careful search of the record reflects no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Donald Ray BELUE v. STATE.
    8 Div. 86.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      B. T. Gardner, Jr., Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen. and Karen L. Daniel, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the grand jury of Colbert County, for buying, receiving, concealing, or aiding in concealing one Phil-co 19 inch black and white television valued at $125.00, the property of Arthur Carter. At arraignment, accompanied by his appointed counsel, appellant entered a plea of not guilty to the charge against him. Appellant was subsequently tried by a jury, found guilty as charged in the indictment, and sentenced by the trial court to five years in the penitentiary. Having been found to be indigent, appellant was provided counsel and a free transcript for this appeal.

The sole issue presented on this appeal concerns the sufficiency of the evidence to sustain appellant’s conviction for the offense charged. Appellant contends that the State failed in its case against him on three points. They are: (1) the television set recovered by the victim was not sufficiently identified as the set stolen from his residence; (2) there was no proof of appellant’s knowledge that the television set, which he sold to a State’s witness, was stolen; and (3) that there was a fatal variance between the allegata of the indictment and the pro-bata at trial as to the ownership of the subject property. A summary of the evidence is set out below.

Larry Carroll testified that he lived at 800 South Atlanta, in Sheffield, Alabama, and that he had known the appellant about two years. On or about January 30, 1978, Carroll bought a television set from appellant at the home of Walter Hardy. Earlier in the evening, appellant had seen Carroll at Pearlene Ford’s apartment and asked if he wanted to buy a color television for twenty-five dollars. Appellant told Carroll that he had three television sets and did not need this particular set. Carroll further testified that after purchasing the set, he plugged it in and discovered that it was a black and white television, rather than a color set as he had been told by appellant. The next morning Arthur Carter recovered the television at Carroll’s home.

Following Carroll’s identification of a television set as the one that appellant sold to him, the television was admitted into evidence without objection.

Arthur Carter testified that appellant was his wife’s nephew and that he lived next door to him. On January 30, 1978 Carter and his wife were both working an evening shift. At this time, Carter had in his home a television set, loaned to him by Otasco while his own television set was being repaired in their shop. After getting off from work that evening, Carter discovered that someone had burglarized his home, and that the television set was gone.

After notifying the Sheriff of the theft, Carter began looking for his television. Kay Frances told Carter that appellant and another individual had been by her home that evening, trying to sell the set for three dollars. Subsequently, Carter discovered the set at Larry Carroll’s home. Carter positively identified the television in evidence as the one taken from his home.

Walter J. Hardy testified that he had known appellant for three years. On the evening of January 30, 1978, appellant asked Hardy for $1.50 to pay a man who had given him a ride to Sheffield. Appellant left, returning shortly, and asked for another $1.50 to pay the man for taking him to Warehouse Groceries to cash a check. Hardy loaned the appellant the money he requested. Appellant, Hardy further testified, had a television set at this time, and he left it at Hardy’s home, while he went to the grocery store. When appellant returned thirty-five minutes later, he was accompanied by Larry Carroll. Carroll paid appellant some money and the two left Hardy’s home, carrying the television set with them. Hardy testified that the television in evidence appeared to be the same set as the one sold to Carroll by appellant, except for some “soot looking stuff” on the top of the set in evidence.

No evidence was presented by the defense.

The elements of buying, receiving or concealing stolen property are: (1) that the property in question has been feloniously taken and carried away; (2) that appellant bought, received, concealed or aided in concealing the property in question, knowing that it was stolen; and that at the time he assumed control of the property, appellant had no intent to restore the property to the owner. Eddy v. State, Ala.Cr.App., 353 So.2d 67.

Appellant’s first contention is without merit, viz., the serial number on the set should have been set out in the indictment. Arthur Carter positively identified a television set, in evidence, as the set which was taken from his home. Larry Carroll identified the same television as being the one sold to him by appellant. Appellant contends that the television set should have been identified by the most direct and positive testimony of which the case is susceptible, stating that the serial number of the stolen set should have been introduced in evidence. Had there been no positive identification of the property stolen, only the weight, not the admissibility of the evidence would have been affected. Bills v. State, 49 Ala.App. 726, 275 So.2d 706.

Secondly, contrary to appellant’s argument, the evidence was sufficient for the jury to infer that appellant knew the television to be stolen. Here the evidence tends to show that appellant was in possession of the television on the same evening that it was stolen from Carter’s residence. It is well established that such recent possession is a circumstance from which the jury may infer the requisite scienter. Eddy, supra; Haynes v. State, Ala.Cr.App., 335 So.2d 203, cert. denied, Ala., 335 So.2d 208.

Finally, no fatal variance as to the ownership of the television set is present in the case at bar. The evidence shows that the television set was loaned to the victim Arthur Carter by the Otasco Store while his own set was being repaired. As a bailee of this set, ownership was correctly laid in Carter’s name in the indictment. Eddy, supra.

In Character v. State, 51 Ala.App. 589, 287 So.2d 916, certiorari denied, 291 Ala. 775, 287 So.2d 918, this Court held:

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

There was no request for the affirmative charge; there was no motion for a new trial; no exceptions were reserved to the oral charge of the Court, and there were no errors during the trial which contained any merit. Appellant did make a motion to exclude the State’s evidence on the ground the State had failed to make out a prima facie case. This motion was overruled.

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

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Leslie JONES, Appellant, v. STATE of Florida, Appellee.
    No. 47472.
    Supreme Court of Florida.
    June 30, 1978.
    Rehearing Denied Oct. 24, 1978.
    Henry Clay Mitchell, Jr., Pensacola, for appellant.
    Robert L. .Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a conviction of murder in the first degree for which the jury recommended and the trial judge imposed a sentence of death. We have jurisdiction pursuant to Article V, Section 3(b)(1), of the Florida Constitution. We reverse the conviction and the sentence.

On December 2, 1974, appellant and one Calvin Dugan entered a liquor store in Pensacola, Florida, with the intent to commit a robbery. Both were armed; Dugan was masked. Two employees were present in the store, Mrs. Hagg and Mr. Petros. Both were forced to lie face down on the floor while Jones and Dugan emptied the cash registers. Before leaving the store, one or both of the robbers shot Mrs. Hagg and Mr. Petros. Mr. Petros was fatally wounded.

The testimony was conflicting as to who owned the gun and who pulled the trigger. Mrs. Hagg was unable to testify which man fired the fatal shots since she was lying face down on the floor, but she did notice the peculiar shoes worn by one of the robbers and was able to relate his movements during the robbery. Important portions of the state’s evidence were presented by the witness Anderson, who was initially charged with the appellant. The charges against him were later dismissed. He testified that at the time of the robbery he was standing outside the liquor store and observed Dugan and Jones enter the store and, after several minutes, make their getaway. It was his testimony that appellant was not carrying a gun when he came out of the building.

Appellant raises numerous points on appeal:

1. The trial court erred in not allowing a physician to examine the appellant prior to trial.

2. The court erred in excluding 105 members of the jury venire ex parte.

3. The court erred in failing to grant appellant’s request for a jury instruction on justifiable homicide.

4. The trial judge improperly expressed an opinion as to appellant’s guilt.

5. The court erred in denying a motion for change of venue.

6. The court erred in failing to grant a new trial because a juror fainted during the taking of testimony.

7. The court erred in holding that Section 782.04 and Section 921.141, Florida Statutes, are constitutional.

Appellant also alleges several errors in the sentencing portion of the trial.

Appellant was indicted on the 11th day of December, 1974. The case was set for trial on April 8, 1975, but was continued on motion of the defendant. On April 10, 1975, two days after the date scheduled for trial, appellant filed notice of insanity, stating his intention to rely on the defense of insanity at the time of the offense, as provided in Florida Rules of Criminal Procedure, Rule 3.210(b). Rule 3.210(b) provides that a defendant, intending to rely on the defense of insanity, must give notice of his intention at or before arraignment and must file a statement of particulars showing as nearly as he can the nature of insanity he expects to prove and the names and addresses of the witnesses by whom he expects to prove such insanity. The rule also provides that the court may appoint qualified experts, not exceeding three, to examine the defendant as to his sanity at the time of the offense.

We reject the argument advanced by the state that the court was justified in denying appellant’s motion on the grounds that appellant intended to use the examination for purposes other than determining his sanity at the time of the offense. These additional intended uses are borne out by the record, but, the question remains, may a trial court deny a defendant’s motion for psychiatric examination if it is convinced that the results of that examination will be used for more than perfecting a defense based on insanity? We think not. While defense counsel must truthfully set forth all information required by Rule 3.210 in order to receive a favorable ruling upon his motion, once the examination is completed, counsel may use the information gained therefrom in preparation for trial, for whatever lawful purposes he deems fit.

Appellant admits that his notice of insanity and motion for examination were not filed in strict compliance with the rule. He points out, however, that in this case no arraignment was ever held. The “late filing” cannot bar his right to examination since the time for filing never ended. The court refused to grant an examination on the sole ground that the motion was not properly filed.

Under the circumstances, we agree with appellant that the trial judge erred in denying his motion for examination. In effect, the court eliminated appellant’s sole defense. The last paragraph of Rule 3.210(b) states:

Upon good cause shown for the omission of the notices and procedure as to the defense of insanity, as here set forth, the court may in its discretion permit the introduction of evidence of such defense.

We think appellant was precluded from showing good cause.

In Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the United States Supreme Court held that a defendant’s due process right to a fair trial was violated when the trial court failed to suspend a trial pending the determination of defendant’s competence to stand trial, where prior to trial, counsel filed a technically insufficient motion requesting a mental examination. The court states:

The import of our decision in Pate v. Robinson, [383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)] is that evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying opinions trained psychiatrists can entertain on the same facts.

While the decision in Drope involved an examination to determine a defendant’s competency to stand trial, its reasoning is equally applicable here where examination was sought to determine the defendant’s sanity at the time of the offense. In deciding whether or not to order an examination, the trial judge must consider all the circumstances, including the representations of counsel, and unless clearly convinced that an examination is unnecessary, order an examination before beginning or proceeding with trial. Having reached this conclusion we find it unnecessary to determine the other issues raised on appeal.

Accordingly, the conviction and sentence are reversed and the case remanded for a new trial.

It is so ordered.

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

ADKINS, J., dissents.

      . Rule 3.210(b), Florida Rules of Criminal Procedure, provides as follows:
      (b) At Time of Offense. When in any criminal case it shall be the intention of the defendant to rely upon the defense of insanity, no evidence offered by the defendant for the purpose of establishing such insanity shall be admitted in such case unless advance notice of such defense shall have been given by the defendant as hereinafter provided.
      If the defendant upon arraignment, or prior thereto, notifies the court that he will rely upon insanity as one of his defenses, then the court will hear the parties and require the defendant to file, within such time as may be fixed by the court, a statement of particulars showing as nearly as he can the nature of insanity he expects to prove and the names and addresses of the witnesses by whom he expects to prove such insanity.
      Upon the filing of said statement of particulars by the defendant, upon motion of the prosecution, the court may cause the defendant to be examined, in the presence of attorneys for the State and for the defendant, if they choose to be present, by one or more disinterested qualified experts, not exceeding three, appointed by the court, at such time and place as may be designated in the order of the court, as to the sanity, or insanity, of the defendant at the time of the commission of the alleged offense and subsequent thereto.
      Upon good cause shown for the omission of the notices and procedure as to the defense of insanity, as here set forth, the court may in its discretion permit the introduction of evidence of such defense.


author: BOYD, Justice.

text:
    The SCHOOL BOARD OF BROWARD COUNTY, Florida, et al., Appellants, v. Michelle Rae PRICE, etc., et al., Appellees.
    No. 51813.
    Supreme Court of Florida.
    Sept. 21, 1978.
    William S. Gardella of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellants.
    Craig D. Savage of Mamber, Gopman, Epstein & Foosaner, North Miami Beach, for appellees.
    Robert L. Shevin, Atty. Gen., and Thomas A. Beenck, Asst. Atty. Gen., Tallahassee, for intervenor.
   BOYD, Justice.

This is an appeal from a decision of a District Court of Appeal, Price v. School Board of Broward County, 342 So.2d 1039 (Fla. 4th DCA 1977). The court, for the first time in the cause, passed directly on the validity of a state statute, giving us jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Michelle Price, a minor, and her mother brought suit against the School Board of Broward County and its insurance carrier, Unigard Mutual Life Insurance Company. The complaint alleged that the child, a student at a County elementary school, was injured on the school grounds when she fell on a drainage pipe negligently maintained by the school. The complaint was amended to bring the child’s father into the suit as a plaintiff. The amended complaint continued direction of the action against both the County and its insurer. The attorney representing dually the County and the insurer moved pursuant to the Florida Rules of Civil Procedure to sever the insurer from the suit on the authority of Section 230.-23(9)(d)(2), Florida Statutes. That section of the statutes partially waives the immunity from liability damages to which school boards are entitled by virtue of their status as political subdivisions of the State. The immunity is waived to the extent of the liability insurance carried by the school board. And, in consideration of the premium received under the insurance contract the insurer loses any claim it might have to the benefit of the school board’s enjoyment of sovereign immunity. The section contains a proviso clause, “no attempt shall be made in the trial of any action against a school board to suggest the existence of any insurance which covers in whole or in part any judgment or award which may be rendered in favor of the plaintiff. . . . ” The motion to sever was based on the proviso.

Following a hearing, Circuit Judge Min-net granted the motion to sever. He ordered that the insurer be severed “from the trial of this cause,” that no mention of insurance coverage be made by the plaintiffs to the jury, that the allegations in the complaint pertaining to insurance be stricken and that the plaintiffs be given twenty days to amend the complaint. The plaintiffs petitioned this Court for certiorari in hopes that the statute might be declared unconstitutional and the order reversed. The Court, for lack of a challenge to the validity of the statute in the record, transferred the cause to the District Court of Appeal where it was entertained as a petition for common law certiorari. The District Court denied certiorari without prejudice to the petitioners’ right to raise the constitutional issue on appeal from a final judgment. Price v. Unigard Mutual Insurance Co., 312 So.2d 482 (Fla. 4th DCA 1975). On remand to the Circuit Court the plaintiffs were ordered to amend their complaint in compliance with the court’s first order. The complaint was amended to drop the insurer as a named defendant in the style of the case and to delete any reference to the insurer or the insurance coverage.

The cause proceeded to trial. For all that appears in the pleadings and the court orders in the record the suit was against the school board, alone. The posture of the suit, therefore, was in conformance with the court order that the insurer be severed from trial. At the conclusion of the jury trial a verdict was returned for the school board. Final judgment in accord was ordered.

On appeal to the Fourth District Court the Prices renewed the claim, one made in the appellate proceedings on the interlocutory order but never passed on directly by a court, that the portion of Section 230.-23(9)(d)(2), Florida Statutes, which prohibits the mention of insurance coverage in suits against a school board is invalid. Their argument was that the statute was a legislative invasion on this Court’s constitutional power under Article V, Section 2(a), Florida Constitution, to make rules for the practice and procedure in all State courts. The Court, following the thinking in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), agreed that the statute, for the reason advanced, was unconstitutional. The Prices attacked, also, the order severing the insurance company, arguing it was error under case law. The Court agreed with this argument, too, on the authority of Godshall v. Unigard Insurance Co., 281 So.2d 499 (Fla.1973). There this Court held that it is harmful error for a trial court to sever an insurance company from a cause unless there is a justiciable issue relating to insurance which should be decided in a separate proceeding. And, the Court opinion recited that plaintiffs are entitled to present to juries the full picture of defendant’s financial responsibility, which would include insurance coverage. Based on the decision that severances and prohibitions of mentioning insurance coverage to juries are harmful, and with the declaration that the statute, on which the trial judge had predicated his “severance” and “prohibition” order, was unconstitutional, the Court vacated the final judgment and remanded the case for a new trial. This appeal followed.

Preliminary, we note that severance of the insurer was not required by the statute. In relation to the insurer, all the statute requires is that no attempt be made to suggest to the jury the existence of insurance which would cover, in whole or in part, a judgment against the School Board. As will be seen from the full opinion the error was not harmful. And we observe further that after this trial a statute was enacted which requires severance of liability insurers in actions to determine the liability of the insured. See Section 768.045, Florida Statutes (1977).

Section 230.23(9)(d)(2) was declared unconstitutional by the Fourth District Court of Appeal because the court sees it as a legislative incursion on Supreme Court power under the Constitution to make rules governing the practice and procedure in all courts of this State. The Broward County School Board and the Unigard Mutual Life Insurance Company challenge the decision because they view the statute, not as laying down a procedural rule, but, rather, as setting the limits of a substantive right given to injured parties by the Legislature through its power under the Constitution to provide by general law for bringing of suits against the State. The issue boils down to whether the prohibition against the mention of insurance coverage is procedural, and therefore within this Court’s domain, or a part of a substantive right, properly within a legislative waiver of sovereign immunity. The answer lies within the statute.

Less than two years ago, we stated that “ ‘[references’ to insurance or insurers during the course of trial is a purely procedural matter having to do with the conduct of trial proceedings.” Carter v. Sparkman, 335 So.2d 802, at 806 (Fla.1976). In Spark-man the Legislature, by statute, forbade the mention of insurance coverage or reference to joinder of insurers in civil suits based on medical malpractice. We held that the statute was an act beyond the power of the Legislature in light of this Court’s power of rule-making. But in view of the wisdom of the statute we adopted it as a Rule of Procedure. In contrast to this case, however, that statute was part of an enactment, under the Legislature’s police power, to meet a public health crisis in Florida. The prohibition of insurance reference at trial, although undoubtedly designed to reduce the crisis, was clearly not part of any substantive right.

The plain wording of the statute challenged here shows that the prohibition sets the bounds of a substantive right, the right to sue a school board enjoying sovereign immunity, for liability damages. The statute waives sovereign immunity for school boards, which is within the constitutional power of the Legislature under Article X, Section 13, Florida Constitution. But it does so only, “Provided ... no attempt shall be made in the trial of any action against a school board to suggest the existence of any insurance. . . . ” The waiver, then, is effective only if insurance coverage is not suggested to the jury. The statute’s proviso sets the bounds of the substantive right to sue a political subdivision of the State. And it conditions the waiver. Thus, the proviso is substantive, in that it delineates a substantive right.

We do not ignore our statement in Spark-man. The prohibition of the statute is surely procedural, just as it is substantive. But, given the Legislature’s power to enact the prohibition as a condition to waiving sovereign immunity and, in order to honor the separation of powers in this State’s constitutional scheme, we will not strike it from the general law. The proviso is constitutional.

Our holding demands that we recede from School Board of Broward County v. Surette, 281 So.2d 481 (Fla.1973). There the Court considered the constitutionality of a proviso substantially identical to the one considered here. The proviso appeared in subsection (2) of Section 455.06, Florida Statutes (1973), a statute which partially waived, in motor vehicle liability suits, sovereign immunity enjoyed by certain political subdivisions, among them county and district school boards. The proviso, just as the one here, conditioned the waiver on a prohibition of attempts to suggest insurance coverage. The Court struck the proviso because it intruded on Supreme Court rule-making power granted by the Constitution. In fairness to the Surette Court it does not appear from the face of the opinion that the Legislature’s constitutional authority to waive sovereign immunity and its implicit power to condition the waiver were advanced before the Court in defense of the statute. But the basic issue being identical to the one in this case and the results achieved diametrically opposed, we must recede from Surette. Recently, we were asked to adopt the statute stricken in Sur-ette as a Court rule pursuant to the Spark-man procedure when Surette came before us for a second time. As forceful as the argument was, however, we were constrained by “the law of the case” to reaffirm our first holding. School Board of Broward County v. Surette, 348 So.2d 301 (Fla.1977). In view of today’s decision the Surette holding is confined to the Surette case and is no longer controlling law.

The trial in this case proceeded without constitutional error. And, although the severance was error, no one was hurt by it in light of the verdict for the school board. The jury was not unaware of anything the plaintiff was entitled to reveal to it. The severance was harmless.

The decision of the District Court is reversed and the cause is remanded with instructions to reinstate the final judgment.

It is so ordered.

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


author: ALDERMAN, Justice.

text:
    RICHARD E. MOSCA & CO., INC., et al., Petitioners, v. Richard E. MOSCA et al., Respondents.
    No. 52132.
    Supreme Court of Florida.
    Sept. 21, 1978.

      Eugene N. Betts, Fort Lauderdale, for petitioners.
    Charles M. Pasco, Hollywood, for respondents.
   ALDERMAN, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the Industrial Relations Commission which affirms an order of the Judge of Industrial Claims awarding compensation for a ruptured cerebral aneurysm sustained by the claimant, Richard Mosca. In deciding this case, we must determine whether Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962), which heretofore has been applied only in cases involving heart attacks, should be extended to other internal failures of the cardiovascular system. We conclude that it should, and applying the doctrine of Victor Wine to the facts of this case, we hold that claimant’s ruptured cerebral aneurysm was not a compensable injury.

Claimant is a forty-three-year-old man who, prior to the ruptured aneurysm, was in good health, with a history of medically controlled hypertension. He was employed as president of Richard E. Mosca & Co., Inc. Because of a decline in the activity of the construction industry, his company suffered financial setbacks. Since October of 1974, he had been under a great deal of stress and strain and had been working long hours. Because of the decline in business, he was forced to lay off his secretary, move his business into his home, use his wife as a secretary and reduce the salaries of the personnel of the company, including his own.

In an all-out effort to increase generator sales which were not dependent on the construction industry, claimant arranged a meeting to be held October 2, 1975, with a potentially large user of such a generator. Because of the importance of the sale, which could have made his company financially sound, claimant accompanied his sales manager to the meeting with the prospective buyer. He was extremely anxious and nervous. At the beginning of the meeting, the prospective buyer chastized him for having improperly delivered a previous shipment of another product and threatened that, if this happened again, he could forget any further business from the buyer’s company. The meeting produced a tense atmosphere. Just as the buyer appeared ready to sign a purchase order and while the claimant was holding up a sample book and describing the types of generators available, the claimant suffered a rupture of a congenital cerebral aneurysm.

The physicians testifying on behalf of the claimant said that the rupture could have occurred at some other time but the tension and pressure wrought by claimant’s business problems, combined with the emotional stress and strain of the October 2nd meeting, caused an elevation of claimant’s blood pressure which resulted in the rupture of the aneurysm. The physician who testified for the employer agreed that the rupture of the aneurysm could have occurred at any time, but he testified that there was no causal relationship between the sales meeting and the ruptured aneurysm.

The Judge of Industrial Claims found the rupture to be an accident arising out of and in the course of employment, concluded that it was a compensable injury, and awarded benefits. In his order, however, the Judge made no finding that the claimant was subject to an unusual strain or overexertion resulting from a specifically identified effort not routine to the type of work he was accustomed to performing at the time he suffered the rupture. In fact, after the claimant rested his case, the judge remarked that there was no evidence that there was any unusual strain or overexertion outside the usual course of a salesman’s business.

The employer contends that a congenital weakness in an artery which suddenly bursts is synonymous with heart cases and that such an internal failure of the cardiovascular system should not be compensable unless the claimant is subjected to an unusual strain or overexertion, resulting from a specifically identifiable effort not routine to the type of work the claimant is accustomed to performing, which causes the internal failure. The employer alleges that the claimant has not met the Victor Wine test. The claimant, on the other hand, maintains that a ruptured aneurysm should not be treated the same as a heart attack. He argues that any failure of the cardiovascular system, other than the heart, should be treated as any other internal failure, such as a strained muscle, ruptured disc, “snapped” knee-cap and the like.

We conclude that the same rationale for requiring a stricter rule in heart cases is also applicable to other internal failures of the cardiovascular system. This means that, before a ruptured aneurysm can qualify as an accident arising out of employment, the rupture must be shown to have been caused by an unusual strain or overexertion by the claimant resulting from a specifically identifiable effort by him not routine to the type of work he is accustomed to performing.

Since we would not disturb the award of compensation if it were correct, even though an improper theory was utilized, we will consider whether the activity in which the claimant was engaged at the time of the rupture meets the Victor Wine test.

We have had a number of “heart” cases in which we determined what was or what was not an unusual and' non-routine strain or exertion within the definition of Victor Wine. These decisions have involved either physical strain or exertion alone or physical strain or exertion in concert with emotional strain, but in no case have we held emotional strain alone to be sufficient. Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant’s employment.

For example, the claimant in Wilkes v. Oscar’s Transfer & Storage, 164 So.2d 810 (Fla.1964), sustained a myocardial infarction after carrying materials weighing fifty to seventy-five pounds up four flights of stairs. We held the accident to be compen-sable because the labor involved on the day claimant experienced his first severe pain was not routine since he always made his deliveries to the first floor of buildings and the building in which he sustained the accident was the only building to which he made delivery in which there were stairs.

In Yates v. Gabrio Electric Co., 167 So.2d 565 (Fla.1964), the claimant was an electrician and handyman who devoted ninety percent of his working time to his duties as an electrician. After having lifted several concrete blocks weighing between 100 and 125 pounds onto a pick-up truck, he suffered a myocardial infarction which the deputy commissioner found to be compensa-ble since the heavy lifting and loading was not routine to the type of work claimant was accustomed to performing. Therein, we declared that, in ascertaining whether a particular activity is not routine, a court must look to the duty performed by the employee himself rather than by his fellow workers, and we found that the deputy’s order awarding death benefits was within the Victor Wine rule.

In G & L Motor Corp. v. Taylor, 182 So.2d 609 (Fla.1966), the claimant, a sixty-six-year-old accountant who was not required to do any heavy work or manual labor in the course of his employment, ran out of gas while delivering a car for his employer and was forced to push the car off the highway which was heavily trafficked. While pushing the car off the road, he suffered a myocardial infarction. The pushing of the car was found by the deputy commissioner to be an unusual strain, uncommon and not routine to claimant’s employment. We held that the deputy’s finding in this regard was supported by competent substantial evidence.

Although the claimant in Peltier v. Barbour, 190 So.2d 569 (Fla.1966), was accustomed to picking up tool sheds at various construction sites, on the day he sustained a heart attack, he was loading onto a trailer a tool shed bogged down in sand. The deputy found that the work effort in picking up the shed was unusual. We held that there was competent substantial evidence to support the finding of the deputy that this physical exertion was beyond that normally required of the claimant.

Simmons v. Stanley, 197 So.2d 514 (Fla. 1967), involved a claimant who worked in groceries all his adult life and who, during the unloading and stacking of 175 cases of canned fruit, each weighing fifty pounds, over a two-day period, suffered a myocardial infarction. We held that there was insufficient evidence to support a causal relationship with employment since the evidence showed that it was not unusual for claimant to stack as many as 100 to 125 cases in a day.

A heart attack suffered by the bus driver claimant while experiencing trouble shifting the gears of a bus was held not to be compensable in Fort Lauderdale Transit Lines v. Bass, 206 So.2d 390 (Fla.1968). Although claimant usually operated buses with automatic transmissions, he had, in the past, operated buses with manual transmissions. We held that the activity in which claimant was engaged at the time of the incident was usual and the alleged overexertion was routine to his type of work.

The claimant in Warman v. Metropolitan Dade County, 228 So.2d 908 (Fla.1969), a heavy equipment operator, suffered a’heart attack after digging in an embankment around his grader. While grading the road, he ran into a concrete spillway overgrown with grass. He got a shovel and commenced to dig and chop away the weeds. The evidence showed that he rarely used the shovel; normally, he had either a laborer or truck driver assigned to him to take care of shoveling or broom work. We held that there was competent substantial evidence to support the compensation award under the law announced in Victor Wine.

The act of a driver of a concrete mixer truck in throwing aside a mortar-covered plank weighing fifty to seventy pounds to clear the way for unloading concrete was determined by the Judge of Industrial Claims to be unusual strain or overexertion not routine for his work. The judge found a causal relationship between this act and the heart attack sustained by claimant. Clayton v. Lease-Way Transportation Corp., 236 So.2d 765 (Fla.1970). Pointing out that neither this Court nor the Industrial Relations Commission may overturn the Judge of Industrial Claims’ findings unless there is no competent substantial evidence to support them and that neither is justified in superimposing its interpretation of the facts in lieu of an equally valid one by the Judge of Industrial Claims, we held that the Judge of Industrial Claims’ order should have been affirmed.

Although the foregoing decisions have dealt with physical strain or overexertion, there are decisions which have mentioned unusual emotional strain in conjunction with unusual physical strain as the precipitating cause of a compensable heart attack. In Marhoefer v. Frye, 199 So.2d 723 (Pla. 1967), the deputy commissioner found a heart attack to be compensable because it was suffered while the claimant was subject to unusual physical and mental stress in his work as foreman on a multiple-story construction project. We held that the evidence established a causal relationship between the heart attack and the activities being performed at the time of the attack. In Hastings v. City of Fort Lauderdale Fire Department, 178 So.2d 106 (Fla.1965), the deceased employee of the Fire Department of the City of Fort Lauderdale sustained a ventricular fibrillation or arrhythmia. The deputy awarded benefits based upon evidence showing a causal relationship between the heart attack and unusual physical effort exerted and mental stress and strain experienced by decedent immediately prior to his attack. We held that the deputy’s order was supported by competent substantial evidence. In Hampton v. Owens-Illinois Glass Co., Paper Products Division, 140 So.2d 868 (Fla.1962), we decided that the evidence sustained the deputy commissioner’s finding that unusual emotional and physical exertion beyond the requirements of ordinary employment aggravated an employee’s pre-existing heart condition and accelerated his death.

We have also just decided another heart attack case. In Tintera v. Armour & Co., 362 So.2d 1344 (Fla.1978) (opinion filed September 21, 1978), the stress that caused the claimant’s heart attack was caused by a combination of factors consisting of claimant’s participation in the regular monthly inventory, heavy traffic and a minor automobile accident on the interstate highway, reprimands from the manager, claimant’s divorce, and apprehension that his employer was trying to get rid of him and that he was going to lose his job. The Industrial Relations Commission recognized the stressful nature of these episodes but held that they did not meet the test of Victor Wine. We agreed and denied certiorari.

After reviewing the record in the present case, we conclude that the claimant failed to meet the test of Victor Wine because there is no evidence to show that the ruptured aneurysm was caused by any unusual strain or overexertion by the claimant resulting from a specifically identifiable effort by him not routine to the type of work he was accustomed to performing. Accordingly, we grant the petition for writ of certiorari, quash the order of the Commission and remand the cause with directions to quash the order of the Judge of Industrial Claims and to dismiss the claim.

It is so ordered.

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

      . In Victor Wine, we adopted the following rule:
      When disabling heart attacks are involved and where such heart conditions are precipitated by work-connected exertion affecting a pre-exist-ing non-disabling heart disease, said injuries are compensable only if the employee was at the time subject to unusual strain or overexertion not routine to the type of work he was accustomed to performing.
      Thus, if there is competent substantial medical testimony, consistent with logic and reason, that the strain and exertion of a specifically identified effort, over and above the routine of the job, combined with a pre-existing non-disabling heart disease to produce death or disability sooner than it would otherwise have occurred from the normal progression of the disease, the employee has a right to some compensation.

      . We recede from Tracy v. Americana Hotel, 234 So.2d 641 (Fla. 1970), insofar as it is inconsistent with our present decision.


text:
    Henry Robert TINTERA, Petitioner, v. ARMOUR & COMPANY et al., Respondents.
    No. 52514.
    Supreme Court of Florida.
    Sept. 21, 1978.

      Ted L. Wells and Howard C. Hadden, Tampa, for petitioner.
    Ernest L. Currin and Gwynne A. Young, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for respondents.
   ALDERMAN, Justice.

We have for review by petition for writ of certiorari the decision of the Industrial Relations Commission reversing the order of the Judge of Industrial Claims who had found claimant’s heart attack to be an injury by accident arising out of, and in the course of, his employment. The Industrial Relations Commission reversed the judge because he had failed to follow the decision of this Court in Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962). We approve the decision of the Industrial Relations Commission and deny certiorari.

Relating to compensability of heart attacks precipitated by strain and exertion, this Court adopted the following rule in Victor Wine:

When disabling heart attacks are involved and where such heart conditions are precipitated by work-connected exertion affecting a pre-existing non-disabling heart disease, said injuries are com-pensable only if the employee was at the time subject to unusual strain or over-exertion not routine to the type of work he was accustomed to performing.
Thus, if there is competent substantial medical testimony, consistent with logic and reason, that the strain and exertion of a specifically identified effort, over and above the routine of the job, combined with a pre-existing non-disabling heart disease to produce death or disability sooner than it would otherwise have occurred from the normal progression of the disease, the employee has a right to some compensation.

In his finding that the heart attack was compensable, the Judge of Industrial Claims found:

On March 6, 1975, the claimant was employed by the employer at an average weekly wage of $230.50, and on that date sustained a compensable injury by accident arising out of and in the course of his employment with the employer when he sustained a myocardial infarction resulting from the emotional stresses of his employment. The testimony of the claimant, which I accept as true, shows that he was under severe emotional stress for several weeks immediately prior to March 6, 1975. He was concerned about being laid off from work and had been working exceptionally long hours. He was late to work on March 6, 1975, which further contributed to his anxiety. The testimony of Dr. Matthew L. Carr, his treating physician, shows that these stresses precipitated his myocardial infarction. Therefore the claim is compen-sable under the Florida Workmen’s Compensation Law. See Barlow v. Harbor Island Spa, F.I.C. Dec. No. 4-977 (1960), cert. den. Fla., 139 So.2d 879 (1962).

The Judge of Industrial Claims made no finding that the type of activity or emotional stress precipitating claimant’s heart attack constituted unusual strain or overexertion not routine to the type of work he was accustomed to performing.

Explaining that Barlow has been super-ceded and overruled by Victor Wine, the Industrial Relations Commission held that the judge’s reliance on Barlow was misplaced. Before the Industrial Relations Commission, claimant contended that he had met the “unusual strain or overexertion not routine to the type of work he was accustomed to performing” test by showing that he had been forced to labor in an unfriendly atmosphere created by an employer who was trying to drive him from his job. The employer denied this allegation. The Industrial Relations Commission found, however, that, even accepting claimant’s version of the evidence, it did not feel that this was the type of stress contemplated by Victor Wine and stated:

Victor Wine, supra, is premised upon recognition of the fact that a great portion of our work force comes upon the work scene with heart defects that would result in heart attacks in any event. Industry should not be made to compensate the employee for these attacks unless it is shown that an identifiable effort over and above that routine for the job produced a strain and exertion that combined with the pre-existing non-disabling heart disease to produce death or disability sooner than it would otherwise have occurred from the normal progression of the disease. The Judge made no such finding in the instant cause, nor do we find support in the record for such a finding. Taken in the light most favorable to the claimant, the evidence shows that claimant’s stress was caused by a combination of the following factors: claimant’s participation in the regular monthly inventory, heavy traffic and a minor automobile accident on the Interstate, reprimands from the manager, claimant’s divorce, apprehension that his employer was trying to get rid of him and he was going to lose his job. While we recognize the stressful nature of these episodes, they do not meet the test of Victor Wine, supra.

We agree with the decision of the Industrial Relations Commission and, therefore, deny certiorari. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340 (Fla.1978) filed September 21, 1978; Chicken 'n' Things v. Murray, 329 So.2d 302 (Fla.1976); Mahler v. Lauderdale Lakes Nat’l Bank, 322 So.2d 507 (Fla. 1975); Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974).

It is so ordered.

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


text:
    James C. HARRIS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 52617.
    Supreme Court of Florida.
    Sept. 21, 1978.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for petitioner.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, Florida, for respondent.
   PER CURIAM.

The petition for writ of certiorari [349 So.2d 854] reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and ALDERMAN, JJ., concur.

ADKINS and HATCHETT, JJ., dissent.


text:
    David Laverne ROUNDTREE, Petitioner, v. STATE of Florida, Respondent.
    No. 52645.
    Supreme Court of Florida.
    Sept. 21, 1978.
    Jack 0. Johnson, Public Defender, Tampa, and Wayne Chalu, Asst. Public Defender, Tampa, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry and Richard G. Pip-pinger, Asst. Attys. Gen., Tampa, for respondent.
   ALDERMAN, Justice.

By petition for writ of certiorari, the defendant, David Laverne Roundtree, seeks review of the decision by the District Court of Appeal, Second District, in Roundtree v. State, 350 So.2d 32 (Fla. 2d DCA 1977), which affirms his conviction for possession of heroin. To invoke the jurisdiction of the Supreme Court, the defendant alleges that the decision of the Second District conflicts with Bennett v. State, 316 So.2d 41 (Fla. 1975); Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976); Shannon v. State, 335 So.2d 5 (Fla.1976), and other cases in which convictions have been reversed because of improper comments on the defendant’s exercise of his right to remain silent. We initially accepted jurisdiction and heard argument in this case. However, our recent decision in Clark v. State,- So.2d-(Fla.1978), has resolved the apparent conflict.

At Roundtree’s trial, the arresting officer, pursuant to questions by the prosecutor, testified as follows:

Q. All right. So, he was arrested at that time?
A. That’s right.
Q. All right. Did Mr. Roundtree make any statements of any sort to you?
A. Not that I can recall.
MRS. CONDON: I would object to that question and answer by the witness and ask that it be stricken from the record.
THE COURT: Sustained. Strike it from the record. The jury is instructed to disregard it.
MR. SKYE: Okay. I have nothing else of this witness, your Honor.

The Court of Appeal correctly held that there is no requirement for the trial court to treat the objection in this case as including a request for mistrial, nor is the nature of the testimony such as to elevate it to fundamental error mandating reversal. In Clark, we said that reversible error occurs in a jury trial when a prosecutor improperly comments upon, or elicits an improper comment from a witness concerning, the defendant’s exercise of his right to remain silent. In Roundtree’s trial, error occurred when the prosecutor elicited an improper comment. However, as we pointed out in Clark, when'there is an improper comment, the defendant has an obligation to object and to request a mistrial.

In the present case, Roundtree objected and asked that the improper comment be stricken from the record. The trial court sustained the objection and granted his request. At the time the error occurred, Roundtree would have been entitled to a mistrial if he had asked for it. Alternatively, he had the right to have the trial proceed. The trial court gave Roundtree exactly what he requested, and he is not now in a position to complain. If he wanted a mistrial when the error occurred, he should have asked for it. By allowing the trial to proceed, he waived his right to raise this issue on appeal.

The apparent conflict having been resolved by our decision in Clark v. State and State v. Bostic, supra, Roundtree’s petition for writ of certiorari is denied.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., dissents.


author: HATCHETT, Justice.

text:
    STATE of Florida, Petitioner, v. George THOMAS and Lorenzo Holmes, Respondents.
    No. 52759.
    Supreme Court of Florida.
    Sept. 21, 1978.

      Robert L. Shevin, Atty. Gen., and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for respondents.
   HATCHETT, Justice.

If a defendant is charged with possession of burglary tools under Section 810.-06, is it necessary to instruct the jury on attempt? We have jurisdiction to answer this question, certified to us by the Fourth District Court of Appeal in its opinion at 351 So.2d 77 (Fla. 4th DCA 1977), pursuant to Article V, Section 3(b)(3), Florida Constitution (1968). We conclude that attempted possession of burglary tools is not a crime in this state, and therefore answer the question in the negative.

Respondents were convicted of attempted breaking and entering, and possession of burglary tools. The district court reversed the conviction for possession of burglary tools because the trial court refused to give a jury instruction on attempted possession of burglary tools. The district court reasoned that proper jury instructions in this case would include an instruction on attempt because of this court’s mandate in Brown v. State, 206 So.2d 377 (Fla.1968), and the “jury pardon” concept recognized in numerous opinions by this and other Florida courts. The district court noted, however, that other district court opinions have reached different conclusions on this same issue, and therefore certified the question to us.

This court held in Lomax v. State, 345 So.2d 719 (Fla.1977), that generally it is reversible error for a trial court to refuse to grant a defense request for an instruction on the lesser included offense of attempt. In Lomax, this court recognized that it is the jury’s prerogative to resolve questions of fact as to the degree of offense committed. The authority of a jury includes its ability to find a defendant guilty of the lesser included offense even where the evidence might warrant a verdict of guilt on the greater offense charged. The trial court should not usurp the jury’s role by failing to give instructions on lesser included offenses.

A different question is presented where a trial court concludes that, regardless of the evidence presented in the case, an instruction on an attempt to commit the major offense charged is not warranted because an attempt to commit that offense does not constitute a crime under the laws of this state. Usually, such a situation will arise when the major offense charged includes the attempt to commit that act. For example, this court has held that the crime of uttering a forged instrument includes the attempt to pass a forged check as well as the actual negotiating of the forged instrument. King v. State, 339 So.2d 172 (Fla. 1976).

The answer is much more difficult with regard to crimes which do not themselves include an attempt. Although it may be possible for a person to be convicted of an attempt to possess items which are contraband per se, burglary tools are not contraband per se, and it is only the actual possession of burglary tools along with a criminal intent or usage that constitutes a punishable offense. Possession of otherwise “innocent” items, coupled with a use or intended use of such tools in a burglary, is unlawful. No crime is committed until the items are in the actual or constructive possession of a person who is using or attempting to use the objects as burglary tools.

Since we have concluded that, as a matter of law,' there is no such crime as “attempted” possession of burglary tools in this state, the opinion below is quashed, and the cause remanded for further proceedings with directions to reinstate the trial court’s judgment of conviction.

It is so ordered.

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

      . Sec. 810.06, Fla.Stat. (1975) states:
      Possession of burglary tools. — Whoever has in his possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . See also, Fla.R.Crim.P. 3.510 which states:
      Conviction of Attempt; Lesser Included Offense.
      Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard. (Emphasis added.)

      . State v. Abreau, 363 So.2d 1063 (Fla.1978); Lomax v. State, 345 So.2d 719 (Fla.1977); Saunders v. State, 341 So.2d 773 (Fla.1977); Adams v. State, 341 So.2d 765 (Fla.1977); Gil-ford v. State, 313 So.2d 729 (Fla.1975); Bailey v. State, 224 So.2d 296 (Fla. 1969); Battle v. State, 362 So.2d 464 (Fla. 4th DCA 1978); Thomas v. State, 351 So.2d 77 (Fla. 4th DCA 1977); Bryant v. State, 334 So.2d 160 (Fla. 2d DCA 1976); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976); Lightfoot v. State, 331 So.2d 388 (Fla. 2d DCA 1976); Parker v. State, 330 So.2d 148 (Fla. 2d DCA 1976); Lomax v. State, 322 So.2d 650 (Fla. 2d DCA 1975).

      . See Milazzo v. State, 359 So.2d 923 (Fla. 3d DCA 1978); Henry v. State, 344 So.2d 1311 (Fla. 3d DCA 1977); Silvestri v. State, supra; Lightfoot v. State, supra.

      . State v. Abreau, 363 So.2d 1063 (Fla.1978), recognizes that such error may be harmless if the “attempt” offense is “two steps removed” from the crime of which the defendant was convicted, and if the jury failed to exercise its “pardoning” power by returning a verdict of guilty as to the next lesser offense.

      . An exception to this rule pertains to those cases involving homicides, in which judges may properly limit their instructions to the various degrees of unlawful and lawful homicide, as long as the death of the victim is not in issue. Martin v. State, 342 So.2d 501 (Fla. 1977).

      . See, Nichols v. State, 248 So.2d 199 (Fla. 4th DCA 1971), (attempted possession of marijuana).


author: ENGLAND, Chief Justice.

text:
    DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Petitioner, v. W. F. CAPLE, Respondent.
    No. 52865.
    Supreme Court of Florida.
    Sept. 21, 1978.

      William A. Hatch, Staff Atty. for Dept, of Business Regulation, Tallahassee, for petitioner.
    L. Edward McClellan, Jr., of Rentz, McClellan & Haggard, Miami, for respondent.
   ENGLAND, Chief Justice.

By petition for a writ of certiorari, the Division of Pari-Mutuel Wagering of the Florida Department of Business Regulation requests that we review a decision of the Third District Court of Appeal certified by that court as having passed upon the following question of great public interest:

“Is a thoroughbred horse trainer an absolute insurer under Administrative Rule 7E, Section 1.06(15) and (16)?”

In its decision, reported at 350 So.2d 488, the district court held that although the cited provisions of the Florida Administrative Code impose strict liability on horse trainers for compliance with applicable regulations, those rules are invalid under the principles of law announced in State ex rel. Paoli v. Baldwin, 159 Fla. 165, 31 So.2d 627 (1947). In Baldwin, this Court held predecessor rules to the same effect unconstitutional. In reality, the parties now before us argue not how the certified question should be answered — they agree it requires a “yes” answer — but whether Baldwin should be reexamined and overruled on the basis of changed circumstances during the past thirty years. Since the district court was bound by our Baldwin decision, it quite property elected to certify to us an important question of established law which it was unable to alter despite a perceived change in the jurisprudence throughout the country in this area of strict liability. We accept jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution.

The division is charged with regulatory authority over Florida’s pari-mutuel wagering industry. Caple is a trainer of thoroughbred horses. On August 18, 1974, the division’s investigator searched the barn area and tack room assigned to Caple at Calder Race Course and discovered three hypodermic needles and syringes containing a vitamin substance in an unlocked cabinet. Caple was charged with violating Florida Administrative Code Rules 7E-1.06(15) and (16), which provide:

“(15) No person within the grounds of a racing association where race horses are lodged or kept, shall have in or upon the premises which he occupies or has the right to occupy, or in his personal property or effects, any prohibited drugs, or any hypodermic syringe, hypodermic needle, or other device which could be used for the injection or other infusion into a horse of a drug, stimulant or narcotic, without first securing written permission from the stewards. Every racing association, upon the grounds of which race horses are lodged or kept, is required to use all reasonable efforts to prevent the violation of this rule.
(16) All medicines, drugs, or medications of any nature shall be kept or stored at all times in a securely locked cabinet, locker, or room. It is the responsibility of the trainer to see that this rule is complied with. Any trainer or other person found guilty of the violation of this rule shall be fined or suspended, or both.”

After a formal hearing, the course stewards found that Caple had “failed to meet his burden of overcoming the prima facie evidence” of rules violations and suspended him for 60 days. Caple promptly obtained a temporary injunction from the circuit court to restrain enforcement of the suspension order while he undertook administrative remedies. After Caple unsuccessfully exhausted his administrative remedies and certiorari to review his suspension was denied by the Third District Court of Appeal, the division moved in the circuit court to dissolve the earlier restraining order and Caple moved to make the injunction permanent. After hearings on the motions, the circuit court granted the permanent injunction and declared Rules 7E-1.06(15) and (16) unconstitutional on the basis of our Baldwin decision. On appeal the district court upheld the trial judge’s decision, but certified the question to this Court “because of changes in the Code . . . and . . . the considerable lapse of time since the Baldwin opinion.”

Baldwin involved a trainer who was suspended when it was discovered that a stimulant had been administered to one of his horses. Baldwin challenged the validity of two State Racing Commission rules prohibiting the use of drugs on horses which provided that

“[t]he trainer shall be the absolute insurer of . . . the condition of the horses . . regardless of the acts of a third party.” 159 Fla. at 167, 31 So.2d at 629.

The Court initially upheld the validity of the rules, reasoning that horse racing and wagering are subject to strict governmental regulation and that absolute insurer provisions represent a valid exercise of the state’s police power over the “privilege” of holding a trainer’s license. On rehearing, however, the Court reversed itself and invalidated the rules by a 4-3 vote. The majority relied on Mahoney v. Byers, 187 Md. 81, 48 A.2d 600 (1946), to hold that the rules in question deprived Baldwin of a “valuable property right” without due process of law by creating an irrebuttable presumption of guilt.

The division contends that Baldwin found only that an irrebuttable presumption of guilt violates due process, but that a majority of courts have now distinguished both that decision and its progenitor, Mahoney v. Byers, and have upheld absolute insurer rules on the basis of the state’s power to impose strict liability as a reasonable exercise of its regulatory authority over horse racing. The gist of the more recent decisions is that an absolute insurer rule does not establish a conclusive presumption of responsibility on the trainer, but rather imposes strict liability as a condition for holding the license. The division suggests that we overrule Baldwin because the horse racing industry has grown in complexity and as a source of revenue in the last thirty years, and because the development of sophisticated drugs which are difficult to detect makes an absolute insurer rule necessary to protect the sport’s integrity. Caple, of course, urges that we adhere to Baldwin.

Although rejected in Baldwin and Maho-ney, absolute insurer rules for horse trainers have indeed received generally favorable treatment in more recent court decisions. Absolute insurer rules substantially identical to those considered in Baldwin and Mahoney have been upheld against due process and other attacks in California, New Jersey, New Mexico, Ohio, and West Virginia. The Supreme Court of California explained why it rejected the conclusion adopted in Baldwin and Mahoney:

“State v. Baldwin . . . would at first appear persuasive since rule 117, there considered, somewhat parallels rule 313 now under attack. But that case did not consider the power of a state to impose strict liability, the existence of which is the fundamental basis of our determination. Also, it would appear that the decision in the Baldwin case was influenced decisively by analogy to Mahoney v. Byers . . . where the mechanics rested in the employment of a presumption as conclusive evidence. . . .
[I]t is not unreasonable, arbitrary or capricious to provide that the trainer guarantee the condition of a horse running in a race upon the results of which there is wagering.”
31 Cal.2d at 411-12, 189 P.2d at 23.

Similar reasoning was employed by the Supreme Court of Appeals of West Virginia:

“[W]e think it imperative that, in the conduct of racing in this State . there should and does exist the power to make rules which will effectually guard against fraud and deception in racing, which may be effected through administering drugs or narcotics, or by any other means. . Every consideration surrounding the business of operating a race track, and the racing of horses thereon, seems to us to call for firm and rigid rules placing responsibility and imposing penalties for their violation. Conceding that the rule ... is harsh and may, in some instances, result in injustice to innocent people, we think the rule can be justified on the grounds of public policy, because it is the only effective means by which fraud and deceit in connection with horse racing can be minimized.” 133 W.Va. at 202-03, 55 S.E.2d at 274-75.

The Ohio Court of Appeals dealt with the absence of proof of knowledge or intent by saying:

“Horse racing, at its best, is difficult to control, and would be practically impossible to regulate if every governing rule and regulation was made dependent for validity upon the knowledge or motives of the person charged with a violation.
[Wjhen viewed in the light of its overall purpose, the business to which it relates, and the potential evil which it is designed to prevent, we cannot say that the rule is unreasonable. Manifestly, it would be almost impossible to prove guilty knowledge or intent in cases of this kind, and the futility of prosecutions under a rule requiring probative evidence of guilty knowledge and intent would eventually leave the public interest and welfare to the mercy of the unscrupulous.” 3 Ohio App.2d at 426, 210 N.E.2d at 733.

Even Maryland has now distinguished its earlier decision in Mahoney and approved a slightly modified strict liability rule.

Additionally, the United States Court of Appeals for the Fourth Circuit has rejected the contention that immediaté suspension under an absolute insurer rule violates procedural due process. Hubel v. West Virginia Racing Commission, 513 F.2d 240 (4th Cir. 1975).

So far as we can determine, the Illinois Supreme Court is the only court that has held the absolute insurer rule unconstitutional since Baldwin. Brennan v. Illinois Racing Board, 42 Ill.2d 352, 247 N.E.2d 881 (1969). It is noteworthy, however, that in both Baldwin and in Brennan the prohibited drugs had in fact been administered to the horse by someone other than the trainer.

On review of these more recent authorities, we are now persuaded that Florida should align itself with the well-reasoned majority view. To protect the integrity of this unique industry, it is really immaterial whether “guilt” should be ascribed either directly or indirectly to the trainer. The rules were designed, and reasonably so, to condition the grant of a trainer’s license on the trainer’s acceptance of an absolute duty to ensure compliance with reasonable regulation governing the areas over which the trainer has responsibility. Whether a violation occurs as a result of the personal acts of the trainer, of persons under his supervision, or even of unknown third parties, the condition of licensure has been violated by the failure to provide adequate control, and the consequence of the default is possible suspension of the trainer’s license or a fine. We have no doubt that a rule which both conditions a license and establishes with specificity reasonable precautionary duties within the competence of the licensee to perform is both reasonable and constitutional.

As regards the proposition that due process invariably requires proof of guilty knowledge before punishment can be inflicted, that notion was long ago put to rest by the United States Supreme Court. See, e. g., United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 (1910). It is now well established that in areas of activity requiring strong police regulation to protect public interests, strict liability may be imposed upon persons “otherwise innocent but standing in responsible relation to a public danger.” United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 88 L.Ed. 48 (1943). Horse racing is such an area of activity. Western Turf Association v. Greenberg, 204 U.S. 359, 27 S.Ct. 384, 51 L.Ed. 520 (1907).

In 1936 we held that, because racing for money could be prohibited altogether in Florida, the legislature may condition a license to engage in legalized racing upon compliance with any rule that is “reasonably appropriate to the accomplishment of the purposes of the act.” In the interest of protecting both the health of thoroughbred horses and the integrity of the sport from which the state derives revenues, the state has a valid objective in seeking to prevent drugging of race horses. An absolute insurer rule for horse trainers represents a reasonable and valid exercise of the state’s police power to achieve that objective.

Caple contends that even if absolute insurer rules generally are permissible, these rules are unreasonable because they prescribe punishment whether or not there is a showing that the evil which the rules are designed to prevent — that is, the drugging of a race horse — has in fact occurred. We do note that all prior cases upholding rules as being reasonable have involved a factual context in which a horse had actually been drugged and raced. Rules 7E-1.-06(15) and (16), of course, prohibit the mere possession of unauthorized drugs or any device by which such drugs could be administered in an area where horses are kept, and they require that all medications, whether authorized or not, be kept in locked storage.

Caple bases this challenge to these rules on Jefferson v. Sweat, 76 So.2d 494 (Fla.1954), where we held unreasonable a presumption that mere possession of a federal gambling stamp without regard to evidence that some gambling had actually taken place was prima facie evidence of a gambling law violation. Jefferson is not persuasive here, however, principally because the prohibitory regulation here quite reasonably achieves the prophylactic statutory goal, while the regulation in Jefferson had no like relevance to the law’s objective. A statute which prohibits possession of federal gambling stamps could be effectively enforced and still not prevent unlawful gambling activities; it is as easy to gamble without a stamp as with it. In contrast, total compliance with Rules 7E-1.06(15) and (16) would eliminate illegal drugging since all access to prohibited drugs and devices is eliminated. Plainly, Rules 7E-1.06(15) and (16) constitute a reasonable means of eliminating or minimizing the possibility of illegal drugging, by placing total responsibility on the person most capable of controlling the problem.

The certified question is answered in the affirmative, and we hold that these absolute insurer rules for thoroughbred horse trainers are valid. Our decision in Baldwin is overruled, and the decision of the district court below is quashed. This cause is remanded with directions to dissolve the permanent injunction entered by the circuit court.

It is so ordered.

BOYD, OVERTON and SUNDBERG, JJ., concur.

HATCHETT, J., concurs in result only.

      . Hoffman v. Jones, 280 So.2d 431 (Fla. 1973).

      . Florida Administrative Code Rule 7E-1.09(2) provides that “stewards shall have general supervision and authority over owners, trainers, jockeys, grooms and other persons attendant on horses, and also over the premises . . . Rule 7E-1.09(5) empowers them to punish violators “at their discretion ... by suspension . . . for a period not exceeding sixty (60) days, or by fine not exceeding $200.00, or both.” Procedures for hearings on violations are set forth in Rule 7E-1.09(21).

      . Caple v. Division of Pari-Mutuel Wagering, 321 So.2d 475 (Fla. 3d DCA 1975).

      . 350 So.2d at 489.

      . There is no indication as to the basis for the Court’s conclusion that the trainer’s license, which had been characterized as a “privilege” in the initial opinion upholding the rules’ validity, was to be treated as a “valuable property right” within the protective ambit of the Constitution. It seems apparent, however, that the result on rehearing was attributable primarily to that change in characterization.

      . Sandstrom v. California Horse Racing Bd., 31 Cal.2d 401, 189 P.2d 17, cert. denied, 335 U.S. 814, 69 S.Ct. 31, 93 L.Ed. 369 (1948).

      . Dare v. State of New Jersey, 159 N.J.Super. 533, 388 A.2d 984 (N.J.Super.Ct.App.Div., opinion filed April 11, 1978).

      . Jamison v. State Racing Commission, 84 N.M. 679, 507 P.2d 426 (1973); Sanderson v. New Mexico State Racing Commission, 80 N.M. 200, 453 P.2d 370 (1969).

      . O’Daniel v. Ohio State Racing Commission, 37 Ohio St.2d 87, 307 N.E.2d 529 (1974); Fogt v. Ohio State Racing Commission, 3 Ohio App.2d 423, 210 N.E.2d 730 (1965).

      . State ex rel. Spiker v. West Virginia Racing Commission, 135 W.Va. 512, 63 S.E.2d 831 (1951); State ex rel. Morris v. West Virginia Racing Commission, 133 W.Va. 179, 55 S.E.2d 263 (1949).

      . Maryland Racing Commission v. McGee, 212 Md. 69, 128 A.2d 419 (1957).

      . The determination of whether and to what extent the trainer is to be penalized is discretionary with the track stewards. See note 2 above. It is possible that in exceptional cases involving acts totally beyond the trainer’s control, as where there is clear evidence that protective measures have been frustrated by force, no punitive action will be taken. In any event, administrative and judicial review are available to protect against a totally arbitrary or discriminatory exercise of the stewards’ discretion, a contention not raised by Caple in this proceeding.

      . State ex rel. Mason v. Rose, 122 Fla. 413, 419, 165 So. 347, 349 (1936). See also Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, Inc., 37 So.2d 692 (Fla.1948), appeal dismissed, 336 U.S. 948, 69 S.Ct. 885, 93 L.Ed. 1104 (1949).

      . Caple also contends that he should not be subject to penalties because the drugs found by the stewards were harmless vitamins. Even if that fact were proved, however, it would not be dispositive inasmuch as the possession of syringes and needles is in itself a violation of Rule 7E-1.06(15), and Rule 7E-1.06(16) expressly prohibits the unsecured storage of “medication of any kind.”

      .It is unnecessary under these provisions to prove that drugs have actually been administered to a horse, or that any horse has been raced in a drugged condition. In fact, no such allegation was made in this case.

      . There is a provision in these rules, moreover, for authority to possess otherwise prohibited matter for legitimate purposes. No similar exemption was present in the statute under consideration in Jefferson.


text:
    THE FLORIDA BAR, Complainant, v. James D. MORRISON, Respondent.
    No. 54823.
    Supreme Court of Florida.
    Sept. 21, 1978.
    John A. Weiss, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

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

On August 10,1978, The Florida Bar filed its Petition stating:

1. On February 21, 1978, this Court suspended respondent from the practice of law pursuant to Fla.Bar Integr.Rule, art. XI, Rule 11.10(5);

2. On February 13, 1978, the Fifteenth Judicial Circuit Grievance Committee “C” filed its report finding probable cause for further disciplinary proceedings against respondent on three separate counts. In the report the committee found that “Mr. Morrison has abandoned his active practice of law without notice to clients and without accounting to clients and courts for over $100,000 in funds;”

3. In respondent’s Conditional Guilty Plea for Consent Judgment, signed by respondent and his attorney, respondent plead guilty to the probable cause report filed by the grievance committee and agreed to the following disciplinary measures:

a. Disbarment from the practice of law;
b. Waiver of confidentiality on all grievance proceedings against him;
c. Repayment of all funds lost by clients of respondent, either to them directly or to the Clients’ Security Fund of The Florida Bar;
d. Payment of costs in this matter in the amount of $114.80;

4. On June 15,1978, the Executive Committee of the Board of Governors of The Florida Bar approved respondent’s conditional guilty plea subject to this Court’s approval.

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, James D. Morrison, is hereby disciplined by:

1. Disbarment from the practice of law effective immediately;

2. Waiver of confidentiality on all grievance proceedings against him, and

3.Repayment of all funds lost by clients of respondent, either to them directly or to the Clients’ Security Fund of The Florida Bar.

No application for readmission will be entertained until full restitution is made.

Costs in the amount of $114.80 are hereby taxed against the Respondent.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and ALDERMAN, JJ., concur.