author: HOLMES, Judge. WRIGHT, Presiding Judge

text:
    TENNECO OIL COMPANY, a corporation v. Willie F. CLEVENGER and Helen Ramsey Clevenger.
    Civ. 1499.
    Court of Civil Appeals of Alabama.
    Sept. 20, 1978.
    Rehearing Denied Oct. 18, 1978.

      Andrew W. Bolt, II of Wilson, Propst, Isom, Jackson, Bailey & Bolt, Anniston, for appellant.
    Charles Thomason, Anniston, for appel-lees.
   HOLMES, Judge.

The plaintiff-mortgagor brought suit against the defendant-mortgagee for the defendant’s failure to satisfy a mortgage. A jury returned a verdict in favor of plaintiff. The amount of the verdict and resulting judgment was $2,750.

The defendant appeals, contending that the statutory penalty as provided by Code of Ala.1975, § 35-10-30, is the exclusive remedy available to the plaintiff and therefore the case is due to be reversed. We disagree and affirm.

The plaintiff’s complaint alleges that the plaintiff executed a promissory note and mortgage to the defendant; that the note was paid and request was made to the defendant to mark the mortgage satisfied; that the defendant did not satisfy the mortgage and as a result thereof the plaintiff was not able to sell the property upon which the mortgage existed. Specifically, the plaintiff alleges that a buyer had been obtained to purchase for a specific amount and that this buyer did not purchase because of the defendant’s action as indicated above. The plaintiff later sold the property at an amount less than that offered by the original purported purchaser.

For purposes of this opinion, suffice it to say that there is evidence to support the above allegations of the complaint.

As indicated above, the defendant, through able counsel, contends that plaintiff’s exclusive remedy against the defendant is the penalty provided for in Code of Ala.1975, § 35-10-30(a). This code section in pertinent part provides as follows:

“(a) If, for 30 days after such request, the mortgagee or assignee or transferee, trustee or cestui que trust, fails to make any entry required by this article he forfeits to the party making the request $200.00 unless there is pending, or there is instituted, an action within that time, in which the fact of partial payment or satisfaction is or may be contested. In construing this article, the right of action given herein shall be considered as a personal right, and shall not be lost or waived by a sale of the property covered by the mortgage or deed of trust before a demand was made for the satisfaction to be entered upon the record.”

We do not construe § 35-10-30(a) to have created a unitary and exclusive remedy for a mortgagor who has suffered damages separate and apart from the statutory penalty.

As noted in 86 C.J.S. Torts § 15, it has been held that generally any violation of a statute is a delict, and that a violation of a penal statute may also constitute a civil tort. In addition, the Supreme Court of Alabama has stated that an “injury” should have a remedy, defining “injury” as damage which results from a breach of legal duty. See Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939).

Furthermore, the law of torts is anything but static, and the limits of its development are never set. New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression. When it becomes clear that the plaintiff’s interests are entitled to legal protection, lack of precedent will not bar his recovery. See W. Prosser, The Law of Torts § 1 (4th Ed. 1971).

It has been held that the statute is penal in nature, and therefore it is to be strictly construed. We decline to give it effect beyond that which has been expressly set forth by its language. Fallon v. Hackney, 272 Ala. 17, 130 So.2d 52 (1961); Brandon v. Garland, 211 Ala. 150, 100 So. 132 (1924). Under the rule of strict construction, the statute has a limited application; it penalizes the mortgagee to the extent of the sum set forth for the sole fact of his failure to enter satisfaction of the mortgage on the appropriate record within thirty days after such entry has been rightfully demanded by the mortgagor. Williams v. Bowdin, 68 Ala. 126 (1880). The gravamen of a complaint premised entirely on § 35-10-30(a) is the fact of the defendant’s failure to discharge a statutory duty notwithstanding any other remedy to which the injured mortgagor may be entitled.

In essence, the action is one for a debt, and the plaintiff need not prove damages in order to recover the fixed sum. Id. Inasmuch as the statute is penal and not remedial, the penalty is not in lieu of compensatory damages suffered by the mortgagor and resulting from the mortgagee’s wrongful failure to exonerate. When, as here, the mortgagor pleads and proves damages quite apart from the penalty arising from the fact of failing to discharge the statutory duty to exonerate, the mortgagor is not precluded from asserting other theories to recover his damages.

Additionally, other sections of the Code of Alabama which provide penalties for wrongful acts have been held not to preclude an injured party from asserting alternative remedies to recoup his entire loss. For example, § 35-14-l(a) provides that the owner of land may recover a specified penalty from another who wrongfully cuts down the owner’s trees, said penalty, as in the instant case, being assessed for the fact of commission of the wrongful act alone. The penalty may be recovered in connection with and in addition to other damages which the plaintiff proves pursuant to other alternative causes of action. Dawsey v. Newton, 244 Ala. 661, 15 So.2d 271 (1943).

We are aware that subsection (c) of § 35-14-1 and § 35-14-3 provide for join-der of additional claims and further actions for damages in addition to that of the penalty, but the absence of such a provision in § 35-10-30(a) does not compel the conclusion that a plaintiff is barred from asserting other theories of recovery. This is so because where a statute is silent as to its scope of application, there is a presumption that the legislature does not intend to make any alteration in the law beyond that which it declares either expressly or by unmistakable implication. Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971). Thus, in the instant situation, absent such a clear manifestation of legislative intent, the fundamental principles and the general system of common law are deemed to coexist with the statutory scheme. Duncan v. Rudulph, 245 Ala. 175, 16 So.2d 313 (1944).

In view of the above, in this instance the mortgagor is not limited in his recovery to the amount of the penalty specified in § 35-10-80(a).

The case is due to be affirmed.

AFFIRMED.

BRADLEY, J., concurs.

WRIGHT, P. J., dissents.

WRIGHT, Presiding Judge

(dissenting).

I must respectfully dissent from the decision of the majority in this case. The effect of the decision as I understand it, is to create a new common-law cause of action. The statute, § 35-10-30(a), Code of Alabama (1975), specifically states that it gives a personal right of action to the person entitled to make the request for satisfaction under the provisions of §§ 35-10-27, 29. This right of action was unknown to the common law, Morrill v. Title Guaranty & Surety Co. et al., 94 Wash. 258, 163 P. 733 (1917), for there was no such duty at common law. The Alabama courts in applying this statute have declared it to be strictly penal in nature and as such is to be strictly construed. Fallon v. Hackney, 272 Ala. 17, 130 So.2d 52 (1961). It is the general rule that if a statute creates a new right or duty not existing at common law and prescribes a penalty for its violation, the action for the penalty is the exclusive remedy unless the statute provides otherwise. 1 C.J.S. Actions § 6. This statute cannot be compared with that setting a penalty for the cutting of trees. § 35-14-l(a). That statute provides that the right of action created thereby may be joined with other actions. Such other actions are in trespass and were actions at common law in any event and needed no statutory approval.

I am convinced that this statute creates a cause of action unknown to common law and provides the exclusive remedy for a breach of the duty created thereby. It is not the province of nor within the power of this court to declare an extension nor expansion of the common law right or remedy. That is a legislative function. For I believe that majority has surpassed its authority. I must dissent.

      . We would be remiss in not commenting on the dissent by Presiding Judge Wright. The dissent misconstrues what we have said, when it states that this court is creating new common law rights or remedies. We are simply noting that torts may be recognized in cases of first impression.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    BLUE DOLPHIN POOLS OF THE TRI-CITIES, INC. v. Robert E. JOHNSON.
    Civ. 1518.
    Court of Civil Appeals of Alabama.
    Oct. 18, 1978.
    John R. Formby, Jr., Wetumpka, for appellant.

      John R. Barnes, Florence, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant for breach of a contract in failing to construct a swimming pool in a “workmanlike” manner. After an ore tenus hearing, the trial court rendered a judgment for $750 in favor of the plaintiff.

The defendant appeals, contending the evidence fails to support the conclusion by the trial court that the swimming pool was constructed in an “unworkmanlike” manner. Additionally, the defendant argues in brief that there is insufficient evidence as to the amount of damages. We disagree with defendant’s contention and affirm.

Viewing the record before this court with the attendant presumption of correctness, we find there is evidence that the swimming pool was constructed in a deficient manner. To wit, there is evidence that: The liner for the pool came loose and fell into the pool. The handrails on the slide were not installed. The diving board was not tightened down. Rocks were left in the pool. There was a hole in the liner that was required to be patched. The pool leaks. The motor on the pump did not function properly. The water supply to the slide was not connected.

Additionally, there is evidence to support a judgment in excess of $2,000. Specifically, there was testimony that the pool in its presently constructed condition was worth only approximately one-half the contract price. Put another way, the plaintiff paid approximately $5,900 for the pool; its value as indicated by the testimony, because of the defects, was approximately $2,400. We, therefore, find no error in the judgment of $750.

Upon appeal of a judgment rendered by the trial court after oral hearing, such judgment is presumed correct and will not be set aside by this court if supported by credible evidence. See Industrial Maintenance Contractors, Inc. v. Sales Consultants of New Orleans, Inc., Ala.Civ.App., 342 So.2d 377 (1977). Here, in this instance as seen from the above, there is such credible evidence.

Additionally, a judgment or decree entered by a trial court after the hearing of testimony is presumed correct and will be reversed on appeal only if, after consideration of all the evidence and all reasonable inference to be drawn therefrom, the appellate court concludes that it is plainly and palpably wrong. 2A Ala.Digest Appeal & Error &wkey;931(1). In this instance, the judgment of the learned trial judge is not plainly and palpably wrong.

The case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: ALDERMAN, Justice.

text:
    EASTERN SHORES SALES CO., Petitioner, v. CITY OF NORTH MIAMI BEACH, Respondent.
    No. 51127.
    Supreme Court of Florida.
    June 1, 1978.
    Rehearing Denied Nov. 7, 1978.
    James E. Tribble and J. Frost Walker, III of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.
    Burton B. Loebl, City Atty., North Miami Beach, for respondent.
   ALDERMAN, Justice.

We grant certiorari to review the decision of the District Court of Appeal, Third District in City of North Miami Beach v. Eastern Shores Sales Company, 341 So.2d 825 (Fla.3d DCA 1977). The Third District reversed the trial court, expressly relying upon the decision of the Fourth District in Watson v. City of Hallandale, 193 So.2d 195 (Fla. 4th DCA 1966), cert. den. 201 So.2d 233 (Fla.1967). The factual situation in Watson varies materially from the facts set forth in the body of the opinion under review. The Third District’s reliance upon Watson creates a misapplication of law sufficient to vest jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution. Wale v. Barnes, 278 So.2d 601 (Fla.1973).

This ease involves an annexation agreement entered into between the City of North Miami Beach and the predecessors in interest of Eastern Shores Sales Company. The determinative issue is whether the City, because of a 1957 final decree of the Circuit Court expressly upholding the validity of the agreement, is now estopped from contesting the validity of that agreement. We quash the decision of the Third District and hold that the City is collaterally es-topped. We also disapprove the decision of the Fourth District in Watson.

In 1956, the City and the predecessors of Eastern Shores entered into an agreement to annex certain land to the City. The agreement provided that the City would not levy taxes against the annexed land until buildings had been constructed or revenue-producing improvements had been placed on the land. The agreement further provided:

[T]his contract shall become effective and operative only after the same has been duly approved by a final decree in the Circuit Court of Dade County, Florida, declaring that this contract is legal and can be carried out by both the parties hereto and that said decree has become final by virtue of having been affirmed by the Supreme Court of the State of Florida, or that the time for appeal to the Supreme Court of the State of Florida has expired. Upon the above events taking place, then and in that event, this contract shall become binding and operative between the parties.

The City filed suit in the Circuit Court seeking a declaratory decree approving the annexation and ratifying the agreement. Several resident taxpayers were permitted to intervene. These intervenors alleged that the agreement was unconstitutional.

In 1957, the Circuit Court approved the annexation and the agreement. Its final decree specifically found the agreement to be binding and, further, declared:

. [Both] the actions and proceedings of the officers of the plaintiff, City of North Miami Beach, in executing said contract, and the terms of said contract are hereby found to be legal, valid and proper under the Constitutions of the State of Florida and the United States of America and the Statutes of the State of Florida.

No appeal was taken from this decree, and after the decree became final, the City, in accordance with the agreement, annexed the land.

The Circuit Court reserved jurisdiction to enforce the terms of the agreement. In 1965, the court enforced the agreement, finding that the City was in contempt of court because it had levied taxes for the years 1961, 1962, 1963 and 1964 on Maule Lake (which is a part of the annexed land). The court ordered the City not to levy taxes on Maulé Lake until a building or revenue-producing improvements are placed thereon. No appeal was taken from this order.

In 1973, Eastern Shores’ land was placed on the City’s tax roll, and city taxes were assessed retroactively to 1970. Eastern Shores was granted leave to intervene as a party defendant in the original 1957 law suit. The court entered an order requiring the City to show cause why it should not be held in contempt for violating the court’s earlier decree. Eastern Shores alleged that no buildings had been constructed on its property nor had revenue-producing improvements been placed thereof. The City, in response, sought to be relieved from that portion of the 1957 decree that prohibits the City from taxing undeveloped land.

In its order, the trial court again held the City in contempt of court and adjudged that it could purge itself by terminating and cancelling any attempt to collect city taxes on Eastern Shores’ property until buildings ' or revenue-producing improvements are constructed thereon. On appeal, the Third District was confronted with the issue of whether the City is estopped from contending that the agreement is unlawful. Relying on Watson v. City of Hallandale, supra, the District Court held that the City was not estopped to assert the invalidity of the 1956 judgment which would have barred the assessment of taxes on Eastern Shores’ property. We disagree and hold that the prior final decree is binding upon the parties to this suit.

The trial court was wrong when, in 1957, it allowed the City to contract away its taxing power relative to the undeveloped land described in the agreement. This, however, is not sufficient reason now to void that portion of the final decree. In Einstein v. Davidson, 35 Fla. 342, 17 So. 563 (1895), we said:

A judgment that is absolutely null and void — a mere brutum fulmen — can be set aside and stricken from the record, on motion, at any time, and may be collaterally assailed. . . . But the judgment that is voidable only, because irregular or erroneous, must be moved against in time, by motion to vacate, or by resort to an appellate tribunal; otherwise it becomes an absolute verity, and passes beyond the control of the courts to disturb.

In Aldrich v. Aldrich, 163 So.2d 276 (Fla. 1964), we concluded:

In summary, it is our opinion that the Circuit Court of Dade County in 1945 had “subject matter” jurisdiction of the cause and that, in exercising such jurisdiction, its decision as to alimony after the death of the husband was erroneous. It is our further view, however, that when the husband failed to take an appeal and give a reviewing court the opportunity to correct the error, the decree of the Circuit Court on such question passed into verity, became final, and is not now subject to collateral attack. .

In the present case, the trial court had “subject matter” jurisdiction; therefore, the final decree, although erroneous, became binding upon the parties when no appeal was taken. Once the authority to decide has been shown, it cannot be divested by being incorrectly employed. Aldrich v. Aldrich, supra.

A distinction exists between the effect of a judgment as a bar to a second action on the same claim or demand and its effect as an estoppel in another action between the same parties on a different claim or cause of action. The difference to be drawn between these two doctrines is explained in Gordon v. Gordon, 59 So.2d 40 (Fla.1952):

We have held as a general proposition that when a final decree or judgment of a court of competent jurisdiction becomes absolute it puts at rest and entombs in eternal quiescence every justiciable, as well as every actually adjudicated, issue. This pronouncement is considered by us as controlling only when res adjudicata is the proper test. By this we mean it is not controlling except in an instance wherein the second suit is between the same parties and is predicated upon the same cause of action as was the first. If the second suit is bottomed upon a different cause of action than that alleged in the prior case estoppel by judgment comes into play and only those matters actually litigated and determined in the initial action are foreclosed — not other matters which “might have been, but were not, litigated or decided.” .

The appropriate doctrine to be applied in this case is estoppel by judgment or collateral estoppel, which terms are used interchangeably. In the present litigation, there are issues that were not determined in the initial action, such as whether revenue-producing improvements have been placed on Eastern Shores’ property and whether annual requests for tax exemptions are required to have been made. The 1957 decree did, however, unequivocally uphold the validity of the agreement between the city and the predecessors of Eastern Shores. This issue can not now be relitigat-ed by these parties. The fact that the trial court retained jurisdiction for the purpose of enforcing its decree did not make the judgment any less final or more subject to collateral attack. Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948).

Although all of the elements essential to the application of the doctrine of estoppel by judgment are present, the City urges that this doctrine, which produces certainty as to individual rights and gives dignity and respect to judicial proceedings, should yield to what it terms the overriding public policy against a municipality’s contracting away its taxing powers. Confronted with this question in a case involving an uncontested consent decree, the Fourth District, in Watson v. City of Hallandale, supra, at 199, stated:

At this point we have established that the consent decree was invalid when rendered and should have been reversed on appeal if one had been taken (and if a party who urged a court to enter a decree could then appeal it, a point we happily do not have to reach). The troublesome problem that remains, however, is whether an improper decree which has become final is binding upon the litigants. The general rule is that a court having jurisdiction of the parties and the subject matter has the power to make a mistake which is not subject to collateral attack. [Citations omitted.] Thus, we have two matters of public policy in conflict: the policy that it is good for decrees to have finality and the policy that it is bad for cities to contract away their power to tax.
In the ultimate analysis it appears to us that since the public policy against allowing cities to contract away their power to tax is constitutionally based, since the effect of enforcing the consent decree here could perpetually limit the city in securing fair tax revenue from this property, and since the plaintiffs bear the burden of proof, an exception to the finality of decrees policy should be made in the present circumstances. Such a limitation upon the taxing power of a city is so horrendous that an uncontested judicial approval of it may not perpetually bind the city and its other taxpayers.

We reject this rationale. The fact that the decree in Watson was by consent did not make it any less conclusive or binding on the parties to the suit. Cf. Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926); Cabinet Craft, Inc. v. A. G. Spanos Enterprises, Inc., 348 So.2d 920 (Fla.2d DCA 1977). We therefore hold in the present case that the doctrine of collateral estoppel does apply. The constitutional validity of the annexation agreement was determined in the original declaratory judgment action, and a decree was entered which, as to the parties to this suit, became conclusive as to that issue. The decree is no less final because no appeal was taken.

Accordingly, the decision of the District Court of Appeal, Third District, is quashed; the decision of the District Court of Appeal, Fourth District, in Watson v. City of Hallandale, supra, is disapproved; and this cause is remanded for further proceedings.

It is so ordered.

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

SUNDBERG, J., concurs in result only.

      . The decree in Watson was a consent decree by stipulation of the parties, while the decree involved in the present case was the result of contested adversary proceedings.

      . Lykes Brothers, Inc. v. City of Plant City, 354 So.2d 878 (Fla.1978); City of Naples v. Conboy, 182 So.2d 412 (Fla. 1965); St. Lucie Estates, Inc. v. Ashley, 105 Fla. 534, 141 So. 738 (Fla. 1932); Tampa Shipbuilding & Engineering Co. v. City of Tampa, 102 Fla. 549, 136 So. 458 (1931).

      . Ch. 87, Fla.Stat. (1955); Art. V, § 6(3), Fla. Const. (1885).


author: ALDERMAN, Justice. ENGLAND, C. J., and SUNDBERG, J.,

text:
    The STATE of Florida, Petitioner, v. Robert SOBEL, Respondent.
    No. 52633.
    Supreme Court of Florida.
    July 20, 1978.
    Rehearing Denied Nov. 8, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Arthur Joel Berger, Asst. Atty. Gen., Miami, for petitioner.
    Stanley M. Goldstein and Geoffrey C. Fleck of Kogen & Kogen, Miami, for respondent.
   ALDERMAN, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, in Sobel v. State, 349 So.2d 747 (Fla. 3rd DCA 1977), which directly conflicts with State v. Smith, 342 So.2d 1094 (Fla. 2d DCA 1977), and Ludwick v. State, 336 So.2d 701 (Fla. 4th DCA 1976). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

The defendant, Robert Sobel, on a two-count information, was convicted of sale or delivery and possession of a controlled substance. In his appeal to the District Court, two issues were presented. The first was whether the charges against the defendant should have been dismissed because the state failed to preserve a tape recording made by police officers during the alleged criminal drug transaction. The second was whether the defendant's conviction should be reversed because of an alleged variance between the state’s proof that the controlled substance was lysergic acid diethyla-mide and the allegation of the information that the controlled substance was lysergic acid. The District Court considered only the first issue, finding it unnecessary to rule on the second. It reversed the defendant’s conviction, holding that the trial court erred in not granting the defendant’s motion to dismiss. We disagree and quash the decision of the District Court.

Prior to trial, the defendant filed a motion to dismiss, claiming that he was denied due process because the police had destroyed a taped recording of the alleged drug transaction. He asserted that the tape was crucial to his defense because, if it corroborated his contention that he took no part in the sale and never entered into any discussions about the drugs or the price or anything to do with the drugs, then he would be entitled to discharge. He said that the tape should have been preserved even though the police said it was inaudible.

Prom the testimony given during the hearing on the motion to dismiss, it appears that several police officers and a confidential informant met at the Miami Police Department where they made preparations for a controlled buy of drugs from the defendant. The informant had agreed to meet the defendant later in the day at the Grove Pub in Coconut Grove. Officer English accompanied the informant to the pub, posing as his “girlfriend” and carrying a concealed transmitter. The other officers were stationed nearby in a surveillance car which was equipped with a receiver and recording device. When the defendant arrived, he conversed with the informant out of the presence of Officer English. She could not hear any of their conversation, nor did she hear the defendant make any inculpatory statements when she, the informant and the defendant left the pub and walked to the defendant’s car. While the defendant was in the pub, the officers in the surveillance car said that they could pick up nothing but music and static on their receiver, and when the defendant and the others left the pub and walked to the defendant’s car, they could pick up no intelligible conversation. When they attempted to follow the defendant’s car, their car became blocked by traffic, and they lost contact. The recorder was then turned off. The drug sale allegedly took place in the car sometime after it had been driven from the pub. Sometime later that same day, one of the officers played the tape back and heard only noises and static — nothing clear from which he could make any sense. He put the tape back in the reusable tape bin. The transmitter and receiver were subsequently tested at the station and found not to be functioning correctly and were submitted for repair.

The trial court, having considered the questions of materiality and prejudice and having accepted the officer’s testimony as to the unintelligibility of the tape, denied the motion to dismiss. The District Court reversed, holding that the mere possibility that the tape could have served to corroborate defendant’s contention that he was not involved in the drug deal was critical.

The Supreme Court, in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), held:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. [Emphasis supplied]

Fla. R. Crim. P. 3.220(j)(1) provides:

If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.

Confronted with the question of whether the prosecutor’s failure to tender certain evidence deprived the defendant of a fair trial, the Supreme Court, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), described the requirements of Brady and defined what is meant by “materiality,” which gives rise to the duty of the state to disclose:

The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. 427 U.S. at 109, 112-113, 96 S.Ct. at 2400, 2401.

The state, conceding that the tape in the present case would have been discoverable evidence under Fla. R. Crim. P. 3.220, argues that the prejudice to the defendant was minimal since the tape was unintelligible and valueless. It relies on United States v. Bryant, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971), and its progeny for the proposition that, where evidence has been lost by the state, a balancing approach should be taken which gives the trial court broad discretion to determine what, if any, sanction should be utilized against the state for loss of this evidence. Bryant involved a situation where a recording of a narcotics transaction held to be discoverable under the Jencks Act was lost by an agent of the Bureau of Narcotics and Dangerous Drugs. The court concluded that, although the negligence was great, it must be weighed against other factors, and explained:

The lost tape here had major potential importance to the question of guilt or innocence, since it might have enabled appellants to contradict the testimony of the undercover agent involved in the narcotics transaction. It developed on remand, however, that the Bureau agents had played the tape and found it to be almost entirely unintelligible. The District Court credited the agents’ testimony in this regard and concluded that the tape would have been of little use to appellants. There is nothing in the record which could justify our rejection of that conclusion. In the future, of course, investigative agencies will not be allowed to excuse nonpreservation of evidence by claiming that it contained nothing of interest to defendants. But, under the more pragmatic balancing approach which we have adopted for these cases, the unintelligibility of the tapes — when combined with the very strong evidence of guilt adduced at trial — outweighs the negligence involved in the loss of the tape.

See also U. S. v. Quiovers, 176 U.S.App.D.C. 265, 539 F.2d 744 (1976); United States v. Carpenter, 166 U.S.App.D.C. 358, 510 F.2d 738 (1975); United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057 (1972); Jones v. United States, 343 A.2d 346 (D.C. App. 1975), (which hold that nothing in Bryant requires that dismissal be an automatic sanction where nonpreservation of evidence is attributable to negligence of the state and hold that no public policy would be served by dismissing an indictment where the risk of prejudice is slight).

The courts in this state have likewise adopted a balancing approach. In State v. Smith, 342 So.2d 1094 (Fla. 2d DCA 1977), which involved a situation where a tape recording had been made of a drug transaction but was subsequently misplaced, the District Court of Appeal, Second District, emphasized that dismissal of charges against a defendant under the circumstances there presented was an extreme sanction to be utilized with the greatest caution and deliberation.

Stating that the purpose of the discovery rule is to aid a defendant in the preparation of his case, not to give him a procedural escape hatch for the avoidance of prosecution, the District Court of Appeal, Fourth District, in Ludwick v. State, supra, held that the mere fact that a taped recording which may have been utilized in evidence was destroyed does not require automatic reversal.

Most recently, in Wiese v. State, 357 So.2d 755 (Fla. 4th DCA 1978), opinion filed April 18, 1978, which involved destruction of a tape recording of a conversation between the police and an accomplice of the defendant, the Fourth District affirmed the defendant’s conviction and held that the state had carried its burden to show lack of prejudice. The District Court indicated, in a footnote, that it receded from Ludwick v. State, supra, only to the extent that Ludwick stated that the burden of proof to show lack of prejudice is upon the defendant. In Wiese, Judge Downey, referring to the decision presently before us for review, said:

In Sobel v. State, 349 So.2d 747 (Fla. 3rd DCA 1977), the court held that, since the tape was destroyed, due process required the conviction be reversed even though the officer who destroyed the tape testified that he did so because the tape contained only indistinct sounds and static. We feel due process requirements can be met where a showing is made that the contents of the lost or destroyed tape would not have been beneficial to the accused thus demonstrating a lack of prejudice. See State v. Smith, 342 So.2d 1094 (Fla. 2nd DCA 1977).

We agree and hold that a defendant is not denied due process where the contents of a lost or destroyed tape recording would not have been beneficial to the accused, thus demonstrating a lack of prejudice. The trial judge in the present case considered all of the evidence and found that the tape in question was valueless. We conclude that the state met its burden of showing that there was no prejudice to the defendant, and we hold that the trial court acted correctly in denying the defendant’s motion to dismiss.

The next issue involves an alleged variance between what was charged in the information and what was proved. This matter was not considered by the District Court. Having acquired jurisdiction of the cause, we will proceed to dispose of this issue. Cf. Marley v. Saunders, 249 So.2d 30 (Fla. 1971).

The controlled substance named in the information is lysergic acid. During the course of the trial, a chemist testified that his tests on the substance in question revealed that it was lysergic acid diethyla-mide. When questioned by defense counsel on cross-examination as to whether there is a difference between lysergic acid and ly-sergic acid diethylamide, he responded affirmatively and stated the difference to be that diethylamide is missing from the acid group. He testified that lysergic acid is a different compound but that it is a building block for lysergic acid diethylamide, which contains lysergic acid, and it is possible to reduce lysergic acid diethylamide to lysergic acid. It is the addition of diethylamide which changes the compound. At the close of the chemist’s testimony, the state moved to amend the information to change lyser-gic acid to lysergic acid diethylamide. The trial judge denied the motion, explaining that, in his opinion, the proof offered was such that the jury could find that lysergic acid is contained in lysergic acid diethyla-mide.

We find no reversible error. In deciding whether or not the variance is fatal, we must determine whether the information is “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” Fla. R. Crim. P. 3.140(o); Lackos v. State, 339 So.2d 217 (Fla. 1976). The information charged lysergic acid. From the chemist’s testimony, the jury could have found that lysergic acid diethyl-amide contains lysergic acid. We conclude that the information in this case did not mislead or embarrass the defendant in the preparation of his defense, nor can he be subjected to a subsequent prosecution. Cf. Cole v. State, 142 Ga.App. 461, 236 S.E.2d 125 (1977); United States v. Dolan, 544 F.2d 1219 (4th Cir. 1976). Jiminez v. State, 231 So.2d 26 (Fla. 3rd DCA 1970), is distinguishable because in that case the information charged the unlawful sale of heroin, a derivative of opium, while the state proved the unlawful sale of morphine, a derivative of opium. Heroin is not morphine, nor is it contained in morphine.

Accordingly, we hold that the trial court did not err in denying the motion to dismiss, and further, that there was not a fatal variance between the state’s proof and the offense charged. We quash the decision of the District Court of Appeal, Third District, and remand the cause with directions to reinstate the judgment and sentence of the trial court.

It is so ordered.

ADKINS, BOYD and OVERTON, JJ., concur.

ENGLAND, C. J., and SUNDBERG, J.,

concur with that portion of the Court’s decision which holds that destruction of the tape recording did not deny defendant due process of law, but they dissent from that portion of the decision which holds that there was no fatal variance between the state’s proof and the offense charged.

HATCHETT, J., dissents.


text:
    Vincent P. ANOLL, Appellant, v. Rocky POMERANCE, as Chief of Police for the City of Miami Beach, and the City of Miami Beach, a Municipal Corporation, Appellees. Rocky POMERANCE, as Chief of Police for the City of Miami Beach, and the City of Miami Beach, a Municipal Corporation, Appellants, v. Vincent P. ANOLL, Appellee.
    Nos. 50550, 50713.
    Supreme Court of Florida.
    July 27, 1978.
    Rehearing Denied Nov. 6, 1978.

      Douglas L. Williams of Orr, Nathan & Williams, Miami, for appellant/appellee.
    Joseph A. Wanick, City Atty., Miami Beach, and Lee H. Schillinger of Reichen-thal & Weinstein, Sp. Counsel, Miami, for appellees/appellants.
   ALDERMAN, Justice.

This cause is before us on consolidated direct appeals. One appeal is by Rocky Pomerance, as Chief of Police for the City of Miami Beach, and by the City of Miami Beach from the final judgment of the Circuit Court, in and for Dade County, mandating that Vincent P. Anoll be reinstated as a city police officer. The other appeal is by Anoll from an order of the Circuit Court denying his request for attorney’s fees and declaring that part of Ch. 27735, § 8, Laws of Florida (1951), allowing the assessment of attorney’s fees against the City to be unconstitutional. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Since we agree with the Police Chief and the City that the Circuit Court erred in mandating Anoll’s reinstatement, it is not necessary for us to reach the constitutional question related to the denial of Anoll’s request for attorney’s fees. This, however, does not divest us of jurisdiction to dispose of this cause. P. C. Lissenden Co., Inc. v. Board of County Commissioners of Palm Beach County, 116 So.2d 632 (Fla.1959).

In 1974, after Anoll allegedly discharged a firearm in a crowded bar, he was served with a notice of termination of his employment as a city police officer. He sought a review of the termination, and in accordance with Ch. 18696, Laws of Florida (1937), a special act creating the City of Miami Civil Service System, and Ch. 27735, Laws of Florida (1951), amending Ch. 18696, the City of Miami Beach and the Chief of Police convened a hearing before the Personnel Board. On June 4, 1975, the Personnel Board, by a tie vote, denied Anoll’s request for reinstatement. Thereafter, on August 28, 1975, eighty-five days after the Personnel Board affirmed Anoll’s termination, Anoll filed a petition for writ of mandamus and a complaint for declaratory relief. He alleged, among other things, that Ch. 18696, as amended, is unconstitutionally discriminatory insofar as it diminishes, fractional-izes and dilutes the votes of the employee members of the Personnel Board.

After hearing, the Circuit Court ordered that Anoll be reinstated. The court concluded that, because of the manner in which Anoll’s appeal was denied at the Personnel Board hearing, a ruling on the constitutionality vel non of Ch. 18696, as amended, was unnecessary. However, relying on Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3d DCA 1976), the court held that the tie vote in this cause improperly and illegally deprived Anoll of his position as a police officer.

The decision in Fitzpatrick v. City of Miami Beach, supra, involved a similar factual situation. In that case, Fitzpatrick had been suspended from his position as a police officer with the City of Miami Beach due to his alleged misconduct. He filed an appeal of his suspension with the Personnel Board which denied his appeal and upheld his suspension based upon a tie vote. Fitzpatrick, however, is distinguishable from the present case because, in that case, Fitzpatrick timely filed a petition for writ of certiorari to the Circuit Court challenging the validity of the Personnel Board’s decision. After his petition for certiorari was denied, he then timely appealed to the District Court which reversed the Circuit Court, holding that a tie vote of the Personnel Board denying an employee’s appeal and upholding his suspension did not show that the City had met its burden of proof of showing, by a preponderance of the evidence, that the charges against the employee which resulted in his suspension were true.

In this case, certiorari, rather than mandamus, would have been the appropriate remedy for Anoll to seek review of the decision of the Personnel Board. Mandamus may not be employed as an appellate remedy to review the quasi-judicial action of an administrative agency. Solomon v. Sanitarians’ Registration Board, 155 So.2d 353 (Fla.1963). As we explained in De Groot v. Sheffield, 95 So.2d 912 (Fla.1957), a judgment becomes judicial or quasi-judicial, as distinguished from executive, when notice and hearing are required and the judgment of the board is contingent on the showing made at the hearing. In such cases, certiorari, not mandamus, should be employed as the proper method of review. Davies v. Howell, 192 So.2d 43 (Fla. 2d DCA 1966).

Accordingly, we hold that the trial court erred in granting the petition for writ of mandamus upon grounds which were reviewable only by timely petition for writ of certiorari and reverse the judgment of the trial court. In view of the fact that Anoll’s reinstatement is reversed, we need not consider the question of his entitlement to attorney’s fees, and therefore, we do not reach the question of whether that part of Ch. 27735, Laws of Florida (1951), is unconstitutional.

.It is so ordered.

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

HATCHETT, J., dissents.


author: ALDERMAN, Justice. ADKINS, Justice,

text:
    James Francis CLARK, etc., Petitioner, v. STATE of Florida, Respondent; STATE of Florida, Petitioner, v. John C. BOSTIC, Respondent.
    Nos. 50336, 49846.
    Supreme Court of Florida.
    July 28, 1978.
    Rehearing Denied Nov. 8, 1978.

      Jack 0. Johnson, Public Defender, and Wayne Chalu, Asst. Public Defender, Tampa, for James Francis Clark, petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, William I. Munsey, Jr., Richard G. Pip-pinger and Anthony C. Musto, Asst. Attys. Gen., for State of Fla., respondent.
    Robert L. Shevin, Atty. Gen., Tallahassee, Anthony C. Musto, Asst. Atty. Gen., Miami, for State of Fla., petitioner.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for John C. Bostic, respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, Fourth District, in Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976), and the decision of the District Court of Appeal, Second District, in Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976), which conflict with each other. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

We must determine whether a contemporaneous objection is necessary to preserve as a point on appeal an improper comment on a defendant’s exercise of his right to remain silent. We hold that a contemporaneous objection is necessary.

Bostic was convicted of possession of marijuana. At the time of his arrest, when he was advised of his Miranda rights, he asserted his right to remain silent. The arresting officers testified at trial that Bostic had chosen to remain silent. No objections to these statements and no motion for mistrial were made by defense counsel. Bostic appealed his conviction to the District Court of Appeal, Fourth District, on the basis that the comments on his silence constituted reversible error. The State conceded that the testimony of the officers was improper but contended that Bostic had waived his right to raise this error on appeal since he failed to object. Reversing the conviction and remanding for a new trial, the District Court held that a trial objection was not required and that, under the circumstances of this case, the testimony of the arresting officers as to Bostic’s choice to remain silent was harmful.

Clark was convicted of breaking and entering with intent to commit grand larceny. During the State’s case, an arresting officer purportedly commented on Clark’s exercise of his right to remain silent. No objection was made to this testimony, and no motion for mistrial was made. In affirming the conviction, the District Court of Appeal, Second District, analyzed federal .and Florida cases relating to harmless error and the contemporaneous objection rule and concluded that the interests of justice would not be served by the adoption of an absolute rule that would allow the defendant to object for the first time on appeal. Reciting that not all errors of constitutional dimension are fundamental, the District Court found that the admission of the testimony in Clark’s case did not amount to fundamental error and affirmed the judgment of conviction.

The Fifth Amendment to the Constitution of the United States provides:

No person . . . shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; .

The Supreme Court of the United States, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), construed this right to mean that the prosecution may not use at trial the fact that the defendant claimed his privilege to remain .silent in the face of accusation. Indisputably, evidence of post-arrest silence is improper because it violates the defendant’s right against self-incrimination. If properly preserved for appeal through objection, the admission of such testimony constitutes reversible error. Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975).

In the present cases, we must consider the effect of the defendant’s failure to object. This issue was not decided in Shannon, Bennett or Willinsky v. State, 360 So.2d 760 (Fla.1978), filed April 5, 1978, where timely objection had been made to the improper comments. In Bennett, we announced that the error complained of was of constitutional dimension and warranted reversal without consideration of harmless error, but we have consistently held that even constitutional errors, other than those constituting fundamental error, are waived unless timely raised in the trial court. Sanford v. Rubin, 231 So.2d 134 (Fla.1970). “Fundamental error,” which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. An improper comment on defendant’s exercise of his right to remain silent is constitutional error, but it is not fundamental error. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

The Supreme Court of the United States, in Chapman v. California, supra, declined to adopt a rule that the constitutional error of comment on silence should automatically require reversal of a conviction, as petitioners therein urged. The Supreme Court announced that the test to be applied in determining whether a federal constitutional error can be held harmless is whether the Court finds the error to be harmless beyond a reasonable doubt.

In Doyle v. Ohio, supra, wherein the Supreme Court held that it is unfair to allow defendant’s silence to be used to impeach an explanation given by him at trial, defense counsel made timely objections to the prosecutor’s questions, which objections were overruled by the trial court. The Supreme Court, however, did not preclude application of the harmless error doctrine since, in its conclusion, it emphasized that the State had not claimed that such use of petitioner’s silence for impeachment purposes in the circumstances of his case might have been harmless error.

This Court has long recognized the contemporaneous objection rule. The justification for such a rule was explained in State v. Jones, 204 So.2d 515 (Fla.1967), where, in reference to a previously recognized exception to the rule, we said:

At the present time all defendants in criminal trials who are unable to engage counsel are furnished counsel without charge. Application of the exception is no longer necessary to protect those charged with crime who may be ignorant of their rights. Their rights are now well guarded by defending counsel. Under these circumstances further application of the exception will contribute nothing to the administration of justice, but rather will tend to provoke censure of the judicial process as permitting “the use of loopholes, technicalities and delays in the law which frequently benefit rogues at the expense of decent members of society.”
The Court now recants the statement of the exception upon which respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.

More recently, in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the United States Supreme Court recognized the value of the contemporaneous objection rule, holding that the defendant’s failure to make timely objection to the admissibility of his inculpatory statement, without a showing of cause for noncompliance with the rule or actual prejudice, barred review of his Miranda claim through federal habeas corpus. The Court said:

A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary to properly deciding the federal constitutional question. .

Finding that the Federal Constitution and the holdings of the United States Supreme Court do not mandate the adoption of an absolute rule requiring reversal in every case where there has been an improper comment on the defendant’s right to remain silent, and concluding that the application of the contemporaneous objection rule in this type of case will promote the administration of justice in the State of Florida, we determine that Bostic and Clark, because of their failure to object at trial, may not for the first time raise this issue on appeal. In reaching this decision, we hold the following:

1. 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. Likewise, reversible error occurs when any state, defense or court witness in a jury trial spontaneously volunteers testimony concerning the defendant’s exercise of his right to remain silent.

2. In a non-jury trial, an improper comment concerning the defendant’s exercise of his right to remain silent is not necessarily reversible error, and it may be disregarded by the trial courts; however, it may serve as grounds for appropriate sanctions against the offending prosecutor or witness.

3. No error occurs when defense counsel comments upon or elicits testimony concerning the defendant’s exercise of his right to remain silent. The same is true if defense counsel were to improperly suggest to a friendly witness that he “spontaneously” comment on the defendant’s exercise of his right to remain silent so as to give him a mistrial. A defendant may not make or invite an improper comment and later seek reversal based on that comment.

4. When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection. The trial may then proceed, but he may not again raise that objection as a point on appeal. If the defendant fails to object or if, after having objected, he does not ask for a mistrial, his silence will be considered an implied waiver. Cf. Spenkelink v. State, 350 So.2d 85 (Fla.1977), cert. den. 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). The important consideration is that the defendant retain primary control over the course to be followed in the event of such error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

5. When an objection and motion for mistrial are made, the trial court must determine whether there was an improper comment on the defendant’s exercise of his right to remain silent. If the court finds that there was not, the objection should be overruled. In that event, the objection is preserved, and if the defendant is convicted, it may be raised as a point on appeal.

6. If the defendant, at the time the improper comment is made, does not move for mistrial, he cannot, after trial, in the event he is convicted, object for the first time on appeal. He will not be allowed to await the outcome of the trial with the expectation that, if he is found guilty, his conviction will be automatically reversed.

Accordingly, we uphold the result reached by the Second District in Clark and affirm the defendant’s conviction, and we quash the decision of the Fourth District in Bostic and affirm the defendant’s conviction.

It is so ordered.

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent.

Technicalities in the law should be avoided, not fostered. Our fundamental responsibility is to protect the constitutional rights of individuals, so that justice is rendered without regard to the ability of attorneys to recognize reversible error when it springs forth in the heat of a trial. The opinion of the majority seriously impairs the constitutional right of a defendant to represent himself by requiring him to exercise the same expertise as an experienced trial attorney.

The life expectancy of our decisions has been seriously reduced, as the opinion of the majority recedes from principles enunciated in Bennett v. State, 316 So.2d 41 (Fla.1975), and Willinsky v. State, 360 So.2d 760 (Fla. 1978), filed April 5, 1978.

Fundamental error is committed when improperly admitted evidence is of such character that neither rebuke nor retraction may entirely destroy its sinister influence. The majority opinion says that if a defendant objects, but does not ask for a mistrial, his failure to seek the mistrial will be considered an implied waiver of the objection. In other words, if a question relating to the silence of accused is of such character that neither rebuke nor retraction may entirely destroy its sinister influence, the defendant will be precluded from asserting this fundamental error on appeal unless he takes the further step of moving for a mistrial. Such a rule places form above substance and is a serious deterrent to the administration of justice.

The procedure to be followed during trial as explained by the majority, has not been briefed by the attorneys and is not necessary for the determination of this case. Perhaps we can lessen the impact of the opinion by considering such procedural suggestions as dicta and reconsider these principles in various cases which will surely arise under the principles enunciated by the majority.

My views are adequately stated by Justice Thornal in Gordon v. State, 104 So.2d 524 (Fla.1958). Speaking for a unanimous court, he said:

“As early as Jackson v. State, 45 Fla. 38, 34 So. 243, this court recognized that the prosecuting officer would not be permitted comment on the failure of an accused to take the witness stand even though he does so by innuendo under the guise of disclaiming any intention of doing so. This was in 1903. We have throughout the years consistently adhered to the proposition that this is a binding and obligatory restriction placed on prosecuting officers as an aspect of due process in order to preserve to defendants the full measure of their constitutional privilege against self-incrimination.
“Since Rowe v. State, 87 Fla. 17, 98 So. 613, this court has been aligned with the courts of other states which hold that when the prosecuting officer violates this rule, the trial becomes infected with error even though no exception is taken at the time and despite the fact that the trial judge might immediately rebuke the prosecutor for the violation. For the alignment of courts on this proposition see Pollard v. State, 201 Ind. 180, 166 N.E. 654, 84 A.L.R. 779. The courts which apply the rule in this fashion do so for the reason that when the prosecutor brings to the attention of the jury the failure of a defendant to testify, he naturally gives emphasis to the fact that the defendant could have testified if he had so desired and that by failing to do so he has something to hide. Immediately there is created in the mind of the average juror an ill-founded and prohibited prejudice which cannot be erased or eradicated either by apology or by judicial admonition. Barnes v. State, Fla.1951, 58 So.2d 157. As so aptly described by Mr. Chief Justice Terrell in Carlile v. State, 129 Fla. 860, 176 So. 862, 864, such a prejudice “clings to the mind like a tattoo on the epidermis”. Ordinarily improper remarks of counsel to the jury can be remedied by appropriate instructions by the trial judge. Consequently under ordinary circumstances such inappropriate remarks will not be reviewed by an appellate court unless timely objection is made in the lower court. This rule, however, is subject to the exception that if the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influence then on appeal they may be considered as error even in the absence of an objection in the trial court. Carlile v. State, supra.
“We have repeatedly held that comments by the prosecuting officer on the failure of defendants, to testify come within this exception to the general rule. This is so for the reason that when the comment is made the seed of the evil result is sowed and no manner of correction will prevent its fruition into a fixed prejudice against the defendant. In Simmons v. State, 139 Fla. 645, 190 So. 756, this court reaffirmed its traditional position on this subject. Perhaps it is understandable that under the tension of a heatedly contested trial the prosecuting officer will momentarily and even in good faith violate the prescriptions of the statute. We feel certain that this was the situation in the matter before us. Likewise also it is understandable that the prosecutors as well as many others might deem the rule to be unwise and too much for the benefit of the defendant. We are not in a position to elaborate upon the merits of such a viewpoint. Our responsibility as an appellate court is to apply the law as the Legislature has so clearly announced it. We are not endowed with the privilege of doing otherwise regardless of the view which we might have as individuals. Way v. State, Fla.1953, 67 So.2d 321. Also see Trafficante v. State, Fla.1957, 92 So.2d 811. The harmless error statute, Section 54.23, Florida Statutes, F.S.A., does not apply to this type of error.”

I would quash the decision in Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976), and approve the decision in Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976).

      . It is not necessary to our disposition of Clark’s appeal to determine whether such testimony in fact constituted a comment on silence.


author: PER CURIAM. BOYD, Justice, ALDERMAN, Justice,

text:
    FLORIDIANS AGAINST CASINO TAKEOVER, etc., et al., Appellants-Petitioners, v. LET’S HELP FLORIDA, etc., et al., Appellees-Respondents.
    Nos. 54571, 54535.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Rehearing Denied Nov. 9, 1978.

      Richard H. M. Swann of Hall & Swann, Coral Gables, for appellants-petitioners.
    Tobias Simon and Theodore L. Tripp, Jr. of the Law Offices of Tobias Simon, Miami, for appellees-respondents.
    Maurice Rosen, North Miami Beach, for The Tenants Ass’n of Florida, Inc., amicus curiae.
   PER CURIAM.

Floridians Against Casino Takeover have appealed the judgment of the circuit court which held Proposition 9, popularly known as the Casino Gambling Amendment, to “embrace but one subject and matter directly connected therewith,” in accordance with Article XI, Section 3 of the Florida Constitution. Because the trial court construed this constitutional provision, we have jurisdiction under Article V, Section 3(b)(1), Florida Constitution. We affirm the trial court.

The appellants, a group of state residents, property owners, and taxpayers, brought suit to enjoin the gathering and the certification of constitutional amendment initiative petition signatures, on the ground that the amendment sought to be proposed is violative of the single-subject requirement of Article XI, Section 3, of the Florida Constitution, which provides: “The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment shall embrace but one subject and matter directly connected therewith.”

The wording of the proposed amendment, which was set out in full on the petition forms, is as follows:

Art. X, § 15, Fla.Const. is created to read: Casino Gambling: The operation of state regulated privately owned gambling casinos is hereby authorized only within the following limited area:
That area of Dade and Broward Counties, Florida, bounded on the East by the Atlantic Ocean; on the West by the centerline of State Road A1A as designated on March 1, 1978 to the center-line of 5th Street (U.S. # 41) and also bounded on the West by the centerline of Collins Avenue from its intersection with 5th Street Southerly to Biscayne Street and the Southerly prolongation of the centerline of Collins Avenue to an intersection with the centerline of Government Cut; bounded on the South by the centerline of Government Cut; and bounded on the North by the North line of Lot 1, Block 14, Beverly Beach, according to the Plat thereof recorded in Plat Book 22, Page 13, Bro-ward County Records.
Taxes upon the operation of gambling casinos shall be collected by the State and appropriated to the several counties, school districts and municipalities for the support and maintenance of the free public schools and local law enforcement.

The trial court held that the proposed amendment contains only one subject and does not violate Article XI, Section 3, and dismissed the complaint with prejudice. The appellants would have us reverse the trial court and enforce our judgment by asserting jurisdiction over the Secretary of State by appropriate process and remove the proposed amendment from the ballot of the upcoming general election.

The appellants present two arguments in support of their contention that the proposed amendment is invalid under Article XI, Section 3. The first is that the inclusion of several matters in one proposed amendment constitutes “logrolling,” the evil the single-subject requirement is designed to prevent. The trial court correctly stated that in the face of such a challenge a court’s duty is to uphold the proposal unless it can be shown to be “clearly and conclusively defective.” Weber v. Smathers, 338 So.2d 819 (Fla.1976); Goldner v. Adams, 167 So.2d 575 (Fla.1964).

This Court has recognized previously that the evil sought to be avoided by requirements such as the one we deal with here is “logrolling.” In Adams v. Gunter, 238 So.2d 824 (Fla.1970), the opinion of this Court quoted extensively from McFadden v. Jordan, 32 Cal.2d 214, 196 P.2d 787, 796-797 (1948), which dealt with an initiative amendment to the constitution of California. The concern over “logrolling” is expressed there:

The proposal is offered as a single amendment but it obviously is multifarious. It does not give the people an opportunity to express the approval or disapproval severally as to each major change suggested; rather does it, apparently, have the purpose of aggregating for the measure the favorable votes from electors of many suasions who, wanting strongly enough any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder. Minorities favoring each proposition severally might, thus aggregated, adopt all.

By way of analogy, Section 1 of Article XVII, Constitution of 1885, prior to amendment in 1948, required that legislatively-proposed amendments “shall be so submitted as to enable the electors to vote on each amendment separately.” This requirement was interpreted in City of Coral Gables v. Gray, 154 Fla. 881, 19 So.2d 318 (1944). The issue there was whether a proposed amendment contained more than one “amendment” under this provision. Because the amendment at issue would have worked numerous and diverse changes in the powers, duties, and characters of a number of the constitutional officers of two counties, the Court invalidated it. The Court discussed the rule being applied. If a proposed amendment has but one main purpose and all else included is incidental and reasonably necessary to effectuate the main object and purpose contemplated, it is not susceptible to the charge that it contains more than one amendment.

[T]he fact that an amendment may be capable of separation into two or more propositions concerning the value of which diversity of opinion might arise is not alone sufficient to condemn the proposed amendment; provided the proposi- ' tions submitted may be logically viewed as having a natural relation and connection as component parts or aspects of a single dominant plan or scheme. Unity of object and plan is the universal test, and it is to be looked for in the ultimate end sought, not in the details or steps leading to the end.

19 So.2d at 320.

Article XI, Section 3, of the Florida Constitution of 1968, originally provided that the people had the power to propose by initiative, amendment of any “section” of the Constitution. In Adams v. Gunter, supra, the Court was faced with an initiative proposal calling for a unicameral legislature. The Court distinguished the concepts of “amendment” and “revision”:

It is clear . . . that the power reserved to the people to amend any section of the Constitution, includes only the power to amend any section in such a manner that such amendment if approved would be complete within itself, relate to one subject and not substantially affect any other section or article of the Constitution or require further amendments to the Constitution to accomplish its purpose.

238 So.2d at 831.

The Court sustained the Secretary of State’s refusal to place the proposal on the ballot.

In response to this decision, the people adopted a legislatively-proposed amendment to Article XI, Section 3, to provide for revision or amendment of “any portion or portions” of the Constitution by initiative, upon the condition that the proposal embrace a single subject and matter directly connected therewith. H.J.R. No. 2835, p. 1665, Laws of Florida (1972).

Article XI, Section 3, as thus amended was before the Court in Weber v. Smathers, supra. At issue was the validity of the Sunshine Amendment, which was proposed by initiative, under the single subject requirement.

In this first decision to deal with the initiative process subsequent to the 1972 amendment several principles evolved which, to our mind, settled the standard of review by the judiciary when confronted by an assault upon a particular initiative proposal. First, “the 1972 change was designed to enlarge the right to amend the Constitution by initiative petition.” Second, the burden upon the opponent is to establish that the initiative proposal “is clearly and conclusively defective.” Third, “the ‘one subject’ limitation was selected to place a functional, as opposed to locational, restraint on the range of authorized amendments.” Last, in applying the foregoing principles to the amendment there under consideration, which arguably embraced at least five “subjects” ranging from financial disclosure by public officials to limitations on lobbyists and civil penalities on nongovernmental employees, the philosophy emerged that the one subject limitation should be viewed broadly rather than narrowly. The narrow view would have compelled a finding that at least five “subjects” were embraced within the proposal. The broad view accepted, in fact, by the Court led to upholding the proposal as a single subject — “ethics in government.” This pragmatic and common sense judicial philosophy applied to the proposal here under consideration leads inexorably to the conclusion that it, too, possesses the requisite functional unity to pass muster under Article XI, Section 3, Florida Constitution.

The present proposal (1) authorizes state regulated, privately operated casino gambling in a specific geographical area and (2) directs the anticipated tax revenues from that source to education and local law enforcement. The amendment in Weber encompassed several classes of people, several types of disclosures, and several kinds of penalties. There were at least eight categories of individuals affected by the amendment including elected constitutional officers, candidates, state-wide elected officers, public employees, legislators and former legislators, former state-wide elected officers and all other persons and entities who might induce a breach of the public trust. The amendment also referred to two types of financial disclosures: (1) full disclosure for all constitutional officers and candidates and (2) disclosure of campaign finances by all public officers and candidates. Moreover, it authorized two distinct penalties— pension forfeiture and civil damages. Just as the Court in Weber concluded that financial disclosure and loss of pension are elements within the ambit of a single subject — ethics in government — so is the generation and collection of taxes, and the distribution thereof, part and parcel of the single subject of legalized casino gambling. In both instances the various elements serve to flesh out and implement the initiative proposal, thereby forging an integrated and unified whole.

Furthermore, as perceived by Justice England in Weber, it seems appropriate to draw a parallel between Article XI, Section 3, and Article III, Section 6, Florida Constitution, because each utilizes the restraining phrase “shall embrace but one subject.” The former applies to the constitutional initiative process while the latter deals with enactment of laws by the legislature. However, the need for germanity is common to both. Noting that there “is gloss aplenty on the ‘one subject’ limitation for legislation” he concluded “that widely divergent rights and requirements can be included without challenge in statutes covering a single subject area.” (Emphasis supplied.) His observation is correct. See the authorities cited by Justice England in Weber.

The second ground espoused by appellants for invalidation of the initiative proposal is that it will create inconsistencies and confusion in the Constitution. Appellants argue that the proposed amendment conflicts with Article VII, Section 8, Florida Constitution, which reads as follows:

Aid to local governments. — State funds may be appropriated to the several counties, school districts, municipalities or special districts upon such conditions as may be provided by general law.

(Emphasis supplied.)

This is so, they assert, because the proposal limits the objects of and purposes for appropriation of “taxes upon the operation of gambling casinos ... to the several counties, school districts and municipalities for the support and maintenance of the free public schools and local law enforcement.” This argument draws support from language in Adams v. Gunter, supra, where it was stated:

It is clear . . . that the power reserved to the people [is] to amend any section ... in such a manner that such amendment if approved would be complete within itself, relate to one subject and not substantially affect any other section or article of the Constitution or require further amendments to the Constitution to accomplish its purpose.

238 So.2d at 831 (emphasis supplied).

It appears that the majority in Weber applied the considerations articulated in Adams in evaluating the validity of a post-1972 initiative proposal. This conclusion emanates from the following expressions in Weber:

It is contended by the appellant that Adams v. Gunter, 238 So.2d 824 (Fla. 1970), which expressly required the amendment of thirty-three other constitutional sections, . . . [applies] and [is] controlling in the instant case. We disagree. The proposed amendment is sufficiently complete within itself, requiring no other amendment to effect its purpose.
. Further, the proposed amendment, if adopted, will not conflict with other articles and sections of the Constitution .

338 So.2d at 822.

Notwithstanding the inadvertent use of that language such an analysis has no place in assessing the legitimacy of an initiative proposal subsequent to the 1972 revision of Article XI, Section 3. Once the constitutional restraint is perceived to be functional as opposed to locational, substantial effect by the initiative proposal upon any other section or article of the Constitution becomes irrelevant. And, of course, “conflict” with existing articles or sections of the Constitution can afford no logical basis for invalidating an initiative proposal. Such an assertion ignores established patterns of constitutional construction. When a newly adopted amendment does conflict with preexisting constitutional provisions, the new amendment necessarily supersedes the previous provisions. Otherwise, an amendment could no longer alter existing constitutional provisions and the amendment process might, in every case, be frustrated by the judicial determination that a given proposal conflicts with other provisions. To the extent that the above-quoted language from Weber is to the contrary with respect to the test by which post-1972 initiative proposals are to be measured, that language is disapproved. Consequently, the argument of appellants on that ground is rejected.

While we do not pass judgment upon the wisdom or merit of the proposed initiative amendment, we hold that it is not “clearly and conclusively defective” within the purview of Article XI, Section 3, Florida Constitution, for the purpose of remaining on the ballot so that the voters of this State may exercise their judgment as to its merit. Accordingly, the final order of the trial court is affirmed.

It is so ordered.

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

BOYD, J., concurs specially with an opinion.

ALDERMAN, J., dissents with an opinion.

BOYD, Justice,

concurring specially.

There is no judicial function more serious and important than that which relates to removal of proposed constitutional amendments from the ballot. Since all power of government flows from the people, courts should exercise extreme restraint in denying electors the right to vote on proposed changes in the government.

Recognizing the detriment flowing from combining more than one subject under a single proposed amendment — a tactic known as “logrolling” — the people themselves adopted by popular vote Article XI, Section 3 of the Florida Constitution, which prohibits amendments proposed by initiative having more than one subject. This was a form of self-restraint which the people imposed upon themselves.

All proposed constitutional amendments arising through initiative should come to this Court with a presumption of validity. It is only in those instances in which the proposed amendment clearly fails to meet constitutional standards that this Court should require removal of the questions from the ballot.

In the case of Weber v. Smathers, 338 So.2d 819 (Fla.1976), this Court considered and resolved the same question that is before the Court in this case. In that proceeding attacks were being made upon the “Sunshine” amendment — now Article II, Section 8 — relating to ethics in government, on the alleged basis that the amendment incorporated several topics under one question. This Court was faced with the problem of either giving a broad interpretation which would leave the matter on the ballot or a narrow interpretation which would remove same from the ballot. Our decision was to leave the questions to be decided by popular vote. It seems to me that the alleged deficiency in this proposed amendment relating to casino gambling is less offensive to the single subject requirement than were the provisions of the Sunshine amendment which was more extensive and verbose.

Under the doctrine of stare decisis, and in order to permit the public to know what standards are acceptable to this Court, we should adhere in this case to the philosophy expressed in the opinion of Weber v. Smathers, above, and to the dissenting views which Justice Ervin and I expressed in Gunter v. Adams, 238 So.2d 824 (Fla.1970).

For the above reasons, I respectfully concur specially with the majority opinion.

ALDERMAN, Justice,

dissenting.

I believe that the proposed amendment is “clearly and conclusively defective” because it embraces more than one subject in violation of Article XI, Section 3, Florida Constitution. The combination of two subjects in the proposed amendment is a classic example of the very evil which the one subject limitation is designed to prevent. This is so because the interest of those citizens who favor casino gambling is not necessarily the same as the interest of those citizens who seek additional tax revenues for the support and maintenance of free public schools and local law enforcement. In fact, the interest of these groups in some instances may be in conflict.

The strategy of aggregating dissimilar provisions in one proposal to attract support from diverse groups, commonly known as “logrolling,” did not originate with the proponents of casino gambling. Its roots are found deep in the history of American politics. Such practice would not be unlawful in the present case if it were not for the constitutional prohibition imposed by Article XI, Section 3. By that provision, the people of Florida have in effect said that they will not allow “logrolling” by those who attempt to amend their constitution by the initiative process.

Certainly the people have the right to adopt a constitutional amendment that would legalize casino gambling in Florida, but they also have the right to expect that any proposed amendment will be submitted to them in the manner prescribed by the present constitution. An initiative amendment limited to casino gambling and matters dir'ectly connected therewith would be lawful. The amendment presently under consideration, in my opinion, is not lawful because the allocation of tax revenue is separate from and not directly connected to the subject of casino gambling. The proposed amendment in its present form is a blatant attempt at “logrolling,” or as appellants say in their brief, it is “a sugar coated pill to attempt to persuade those Floridians not living in Dade and South Broward Counties to vote for casino gambling on the theory that they may receive some benefit therefrom but none of the detriments brought about by casino gambling.”

The majority views the one subject limitation broadly and says that they have applied a “pragmatic and common sense philosophy” in concluding that the proposed amendment possesses the requisite functional unity to pass muster. This view, in my opinion, so dilutes the one subject limitation of Article XI, Section 3, that there is practically no limitation on the scope of an amendment proposed by the initiative process. I fear that what they have done is to “pragmatize” and “common sense” the one subject limitation right out of the constitution. I do not think this is what was intended by the people when they placed this limitation in the constitution.

A different situation was presented in Weber, where this Court found that the “Sunshine” amendment did not violate the one subject limitation. The “Sunshine” amendment had several sections, but they were all directly connected with the general subject of “ethics in government.” Not so in the present case where two separate and distinct subjects, casino gambling and the allocation of tax revenue, are joined together.

I recognize that it would be a very serious thing to remove the proposed amendment from the ballot, but I perceive that to be the Court’s duty when, as in this case, the proposed amendment does not comply with the dictates of our present constitution. Having concluded that the proposed amendment is “clearly and conclusively defective,” and therefore unlawful, I respectfully dissent.

        .Weber v. Smathers, 338 So.2d at 823 (England, J., concurring).

      . Id. at 822.

      . Id. at 823 (England, J., concurring).

      . Id. at 823 (England, J., concurring).

      . See Smathers v. Smith, 338 So.2d 825, 828 (Fla. 1976), n. 8:
      “A locational limit had been placed on the right of initiative in 1968, limiting amendments to ‘any section.’ Following our decision in Adams v. Gunter, 238 So.2d 824 (Fla. 1970), that restriction was removed altogether. See Weber v. Smathers, 338 So.2d 819 (Fla. 1976).”