author: McDONALD, Justice. ADKINS, Justice, BOYD, Justice,

text:
    Sylvia Elaine ARD, a/k/a Elaine Clary Ard, and Allstate Insurance Company, Petitioners, v. Douglas Perry ARD, as Guardian Ad Litem for Benji Dwain Clary, Respondent.
    No. 60475.
    Supreme Court of Florida.
    April 29, 1982.
    Edward P. Nickinson, III, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for petitioners.
    John E. Venn, Jr. of Smith, Sauer & Venn, Pensacola, for respondent.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   McDONALD, Justice.

The First District Court of Appeal has certified both that the following question is of great public importance and that its decision is in direct conflict with decisions of other district courts on the same question of law:

WHETHER AN UNEMANCIPATED MINOR CHILD MAY MAINTAIN A NEGLIGENCE ACTION AGAINST HIS PARENT.

We have jurisdiction.

Benji Dwain Clary is the minor son of Sylvia Elaine Ard. The complaint alleged that she negligently unloaded him from a motor vehicle, thereby placing him in a dangerous and perilous position and that the infant sustained serious injuries when he was run over by another vehicle. It further alleged that, at the time of the accident, Sylvia Elaine Ard was covered by liability insurance with defendants, Allstate Insurance Company and Travelers Insurance Company.

The defendants raised the doctrine of parental immunity as a defense, and the trial court granted a motion for summary judgment on the basis of that immunity. On appeal, the First District reversed the trial court and allowed an action by an uneman-cipated minor child against his parent.

While we reaffirm our adherence to parental/family immunity, we hold that, in a tort action for negligence arising from an accident and brought by an unemancipated minor child against a parent, the doctrine of parental immunity is waived to the extent of the parent’s available liability insurance coverage. If the parent is without liability insurance, or if the policy contains an exclusion clause for household or family members, then parental immunity is not waived and the child cannot sue the parent.

The doctrine of parental/family immunity did not have its origin in the common law of England as did interspousal immunity. See Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). Rather, this doctrine has been traced back to a Mississippi case which based its decision on the “peace of society ... [and] the repose of families.” Hewellette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891).

Florida adopted this rule and has recognized it in several cases. Orefice v. Albert, 237 So.2d 142 (Fla.1970); May v. Palm Beach Chemical Co., 77 So.2d 468 (Fla.1955). In Orefice the mother of a child killed in an airplane crash sought recovery in both her and her son’s names from the owners of the plane. One owner was the boy’s father, and, as to that claim, the trial court dismissed the suit. The court also dismissed the suit on behalf of' the boy’s estate brought against the father’s estate. In affirming the dismissals this Court stated:

It is established policy, evidenced by many decisions, that suits will not be allowed in this state among members of a family unit for tort. Spouses may not sue each other, nor children their parents. The purpose of this policy is to protect family harmony and resources.

237 So.2d at 145. Further, this Court has recognized the duty of parents to nurture, support, educate, and protect minor children, and a child has a right to enforce the discharge of this duty. Finn v. Finn, 312 So.2d 726 (Fla.1975). To reduce the available assets of the family through a straight suit is to reduce the amount available for support, education, and protection of the family as a whole.

Protecting the family unit is a significant public policy behind parental immunity. We are greatly concerned by any intrusion that might adversely affect the family relationship. Litigation between family members would be such an intrusion.

Recently, there has been a trend toward abrogating or limiting parental immunity. While many states still recognize this immunity, the changes in contemporary conditions and public policy have caused numerous jurisdictions to restrict this doctrine where the policies behind it have lost their viability. In the jurisdictions that have abolished or limited the application of the doctrine, a majority of the decisions deal with the negligent operation of a motor vehicle by one of the parents.

For many of these states, a major justification for this abrogation has been the development and widespread use of liability insurance. The presence of this type of insurance cannot create a liability where none previously existed, but, rather, forms the basis for the recognition of the change in conditions upon which the public policy behind the immunity is based. Several policy reasons have been relied on to justify this immunity. They include the preservation of domestic harmony and tranquility; depletion of the family assets in favor of the claimant at the expense of the other family members; danger of fraud and collusion between the parent and child when insurance is involved; interference with parental care, discipline, and control; and the possibility of inheritance by the parent of the amount recovered by the child.

Those courts that have recognized the use of insurance in their consideration of the question point out the fallacies that form the basis of several of these policies. In Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975), an unemancipated minor brought suit by her mother and next friend against her father for injuries received in an automobile collision. In a thorough examination of the immunity and the policy behind it, the Supreme Judicial Court of Massachusetts held that in a tort action for negligence (a) arising from an automobile accident and (b) brought by an unemanci-pated minor child against a parent the doctrine of parental immunity would be abrogated to the extent of the parent’s automobile liability insurance coverage. The court stated:

[Ijnsurance cannot create liability where no legal duty previously existed .. ., it remains, nevertheless, a proper element in a discussion of the public policy supporting abrogation of parental immunity. “Where such insurance exists, the domestic tranquility argument is hollow, for in reality the sought after litigation is not between child and parent but between child and parent’s insurance carrier.” Streenz v. Streenz, 106 Ariz. 86, 88 [471 P.2d 282, 284] (1970).

369 Mass, at 362, 339 N.E.2d at 914. In analyzing the effect of allowing suit where liability insurance is involved the court stated:

When insurance is involved, the action between parent and child is not truly adversary; both parties seek recovery from the insurance carrier to create a fund for the child’s medical care and support without depleting the family’s other assets. Far from being a potential source of disharmony, the action is more likely to preserve the family unit in pursuit of a common goal — the easing of the family financial difficulties stemming from the child’s injuries.

Id. (footnotes omitted).

When recovery is allowed from an insurance policy the claimant will not force a depletion of the family assets at the expense of the other family members. As stated in Sorensen, rather than a source of disharmony, the action is more likely to ease the financial difficulties stemming from the injuries.

The possibility of fraud or collusion by family members in dealing with liability insurance has traditionally been an argument in favor of both parental and inter-spousal immunity. We recognize that the possibility of fraud exists in every lawsuit but reject the contention that such possibility still forms a valid justification for denying a child compensation for injuries negligently inflicted by the parent when the immunity is waived by the presence of insurance. On this point we agree with the comments that the Indiana Supreme Court made when it discussed fraudulent collusion between spouses in Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794, 797 (Ind.1972):

The possibility of fraud and collusion exists in all litigation. However, we are not convinced that the danger is so great when the plaintiff and defendant are also husband and wife that judicial relief should be summarily denied. Furthermore, it should not be overlooked that the testimony of both parties will be extremely vulnerable to impeachment at trial on the grounds of bias, interest and prejudice. The trial court’s responsibility, indeed, its duty, to properly instruct the jury on the credibility of witnesses and the rules governing the weight of evidence will remain unchanged, and, as was stated in United States v. Freeman (2d Cir. 1966), 357 F.2d 606, 620, . it cannot be presumed that juries will check their common sense at the courtroom door.”

Allowing a waiver of immunity where there is liability insurance is a recognized policy in this state. In section 733.702, Florida Statutes (1979), the legislature has allowed for waiver of the three-month statute of limitations for filing claims on a decedent’s estate in any proceeding to establish the liability of either the decedent or the personal representative for which there is casualty insurance protection. This extends to the limit of the casualty insurance protection. That section contains rigid deadlines as to the filing of claims and demands to close decedents’ estates. In recognizing that an estate could be closed and claims against it still adjudicated, permitting late claims when covered by liability insurance allows for the swift administration of estates while still providing for equitable settlement of negligence actions.

Similarly, when the legislature waived the doctrine of sovereign immunity as to the torts of state and municipal employees and agencies, the original statute allowed for open-ended liability to the limits of any insurance policy the governmental body had at the time of suit. § 768.28(10), Fla.Stat. (Supp.1974). That subsection read:

(10) If the state or its agency or subdivision is insured against liability for damages for any negligent or wrongful act, omission, or occurrence for which action may be brought pursuant to this section, then the limitations of this act shall not apply to actions brought to recover damages therefor to the extent such policy of insurance shall provide coverage. Agencies or political subdivisions presenting homogeneous risks may join together to purchase insurance protection or to provide other means of meeting obligations for damages as provided by this act.

In addition, it should be noted that liability coverage is optional as between the insured and the carrier. We recently held that it is not against public policy for automobile insurance coverage to contain an exclusion clause as to family members:

We reject the contention that these clauses are void as against public policy. In addition to the policy reasons for such clauses stated in Reid [v. State Farm Fire and Casualty Co., 352 So.2d 1172 (Fla.1977)], we also note that insurance premiums may be established in part by reference to potential exposure to liability by insurance companies and may be lower where those most likely to be passengers in the automobile are expressly excluded from coverage.

Florida Farm Bureau Insurance Co. v. Government Employees Insurance Co., 387 So.2d 932, 934 (Fla.1980).

In the present action, the complaint alleges that Sylvia Elaine Ard negligently unloaded her son, Benji Dwain Clary, from a motor vehicle, thus placing him in a dangerous and perilous position. In the absence of parental immunity Mrs. Ard, if negligent, would be liable for all injuries that she proximately caused. The effect of her immunity is to bar an otherwise valid action brought by her son against her. Because of the changes in the conditions which fostered its underlying policies, her immunity will be waived to the extent of her available insurance coverage, but not otherwise.

The decision of the district court reversing the summary judgment and allowing an action against Mrs. Ard is affirmed, but only to the extent of insurance coverage afforded to her.

It is so ordered.

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

ADKINS, J., concurs specially with an opinion.

BOYD, J., dissents with an opinion in which ALDERMAN, J., concurs.

ADKINS, Justice,

specially concurring.

I feel that parental immunity as well as spousal immunity should be abolished. A party injured by the fault of another should be able to obtain relief from that party and it should make no difference that the wrongdoer is a spouse or a parent. See dissent in Raisen v. Raisen, 379 So.2d 352 (Fla.1979). Since I am unable to obtain a majority for this view, I concur in this opinion as the next best thing.

BOYD, Justice,

dissenting.

I respectfully dissent from the Court’s partial abrogation of the doctrine of parent-child immunity. In the first place, I disagree with the holding that liability shall exist only when and to the extent that there is a policy of insurance covering the liability in question, and that otherwise the liability will not be recognized by the law. Parental immunity is not a privilege that may be waived. Under the doctrine, as we have traditionally adhered to it, the law simply does not recognize parental negligence causing injury to the child as an actionable tort. Orefice v. Albert, 237 So.2d 142 (Fla.1970); Horton v. Unigard Insurance Co., 355 So.2d 154 (Fla. 4th DCA 1978), cert. dismissed, 373 So.2d 459 (Fla.1979); Webb v. Allstate Insurance Co., 258 So.2d 840 (Fla. 3d DCA 1972); Denault v. Denault, 220 So.2d 27 (Fla. 4th DCA 1969); Rickard v. Rickard, 203 So.2d 7 (Fla. 2d DCA 1967). Parental abuse or neglect may be a ground for state intervention in appropriate proceedings, but ordinary negligence can take so many forms that we should not allow a tort action against a parent on behalf of a child.

The principal reason for parental immunity is to prevent the disruption of family unity and harmony. Such disruption would inevitably follow if tort actions for ordinary negligence were allowed to be brought against a parent by his or her child. The Court majority reasons that that if the parent has insurance covering his liability to the child for negligence, then in a suit by the child against the parent their interests do not conflict but converge. I disagree. Being on opposite sides of a lawsuit puts people in an adversary position. For one thing, a liability insurer is entitled to expect its insured to behave in an adversary manner towards the injured plaintiff. Therefore, the interests of parent and child in such a situation conflict in a very real way.

Parents may insure against the possibility of injuries to their children. They may seek financial protection from the consequences of accidental injuries in the form of hospitalization, casualty, and disability insurance coverages. It is awkward and unnecessary for parents to seek such financial protection in the form of liability insurance covering the parents. The infinite range of possible accidents that will inevitably happen during a child’s minority, and which are inextricably intertwined with parental conduct both reasonable and negligent, does not allow for a rational process of delineating rules and standards of parental care.

Section 895G of the American Law Institute’s Restatement (Second) of Torts (1979) illustrates this serious problem that will be encountered with the abrogation of parental immunity. It provides:

§ 895G. Parent and Child.
(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
(2) Repudiation of general tort liability does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.

While rejecting the doctrine in paragraph (1), the subsection goes on in paragraph (2) to indicate that various instances of parental conduct, although negligent, may still be deemed privileged or simply not tortious depending on the circumstances. The comment to section 895G points out the serious problems that will be encountered in developing the standards to apply to the questions of the duties of care owed by parents to their children. It would be better simply to retain the doctrine.

Finally, the abrogation of the doctrine of immunity to the extent of a negligent parent’s liability coverage will not contribute much to a family’s opportunity to secure financial protection. Insurers may deal with the threat of collusive lawsuits by excluding coverage for liability to family members. See Florida Farm Bureau Insurance Co. v. Government Employees Insurance Co., 387 So.2d 932 (Fla.1980). Without liability coverage, under the Court’s theory, there will be no liability. Therefore families will have no greater opportunity for financial protection than they already have today.

The decision of the Court seems motivated by a desire to reach a fair and compassionate result in the present case. Unfortunately, in reaching such result the Court opens a Pandora’s Box of problems for Florida families and the Florida court system.

ALDERMAN, J., concurs.

      . Ard v. Ard, 395 So.2d 586, 587, 590 (Fla. 1st DCA 1981). The district court cited Horton v. Unigard Ins. Co., 355 So.2d 154 (Fla. 4th DCA 1978), cert., dismissed, 373 So.2d 459 (Fla.1979); Webb v. Allstate Ins. Co., 258 So.2d 840 (Fla. 3d DCA 1972); Rickard v. Rickard, 203 So.2d 7 (Fla. 2d DCA 1967).

      . Art. V, § 3(b)(4), Fla.Const.

      . Those states that have adopted and retained the immunity include: Owens v. Auto Mut. Indem. Co., 235 Ala. 9, 177 So. 133 (1937); Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976); Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938); Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974); Eschen v. Roney, 127 Ga.App. 719, 194 S.E.2d 589 (1972); Vaughan v. Vaughan, 161 Ind.App. 497, 316 N.E.2d 455 (1974); Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968); Downs v. Poulin, 216 A.2d 29 (Me.1966); Montz v. Mendaloff, 40 Md.App. 220, 388 A.2d 568 (1978); McNeal v. Administrator of Estate of McNeal, 254 So.2d 521 (Miss.1971); Bahr v. Bahr, 478 S.W.2d 400 (Mo.1972); State Farm Mutual v. Leary, 168 Mont. 482, 544 P.2d 444 (1975); Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16 (1959); Nahas v. Noble, 77 N.M. 139, 420 P.2d 127 (1966); Teramano v. Teramano, 6 Ohio St.2d 117, 216 N.E.2d 375 (1966); Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964); Castellucci v. Castellucci, 96 R.I. 34, 188 A.2d 467 (1963); Gunn v. Rollings, 250 S.C. 302, 157 S.E.2d 590 (1967); Campbell v. Gruttemeyer, 222 Tenn. 133, 432 S.W.2d 894 (1968); Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971); Oldman v. Bartshe, 480 P.2d 99 (Wyo.1971).

      . Those jurisdictions which have abolished or modified the immunity include: Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970); Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971); Conn.Gen.Stat. § 52-572c (Supp.1981); Williams v. Williams, 369 A.2d 669 (Del.1976); Petersen v. City & County, 51 Haw. 484, 462 P.2d 1007 (1969); Schenk v. Schenk. 100 Ill.App.2d 199, 241 N.E.2d 12 (1968); Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1971); Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975); Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972); Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966); France v. A.P.A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970); Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529 (1969); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); N.C.Gen.Stat. § 1-539-21 (Supp.1981); Nuelle v. Wells, 154 N.W.2d 364 (N.D.1967); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Wood v. Wood, 135 Vt. 119, 370 A.2d 191 (1977); Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971); Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891 (1980); Lee v. Comer, 224 S.E.2d 721 (W.Va.1976); Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963).

      . See Annot., 41 A.L.R.3d 904 (1972); Comment, Time to Abolish Parent-Child Tort Immunity: A Call to Repudiate Mississippi’s Giff to the American Family, 4 Nova L.J. 25 (1980).


source: Caselaw Access Project

author: ADKINS, Acting Chief Justice.

license: Public Domain

text:
    ST. PETERSBURG BANK & TRUST CO., Petitioner, v. Loren E. HAMM, Respondent.
    No. 58809.
    Supreme Court of Florida.
    May 13, 1982.

      Michael J. Keane of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Petersburg, for petitioner.
    Joseph P. McNulty of McNulty, Moritz, Pecarek & Dickey, Largo, for respondent.
    Jerry B. Crockett and Vance E. Salter of Steel, Hector & Davis, Miami, for Mortgage Bankers Ass’n of Florida, amicus curiae.
   ADKINS, Acting Chief Justice.

This cause is before us because of a conflict between the Second District Court of Appeal’s decision below, Hamm v. St. Petersburg Bank & Trust Co., 379 So.2d 1300 (Fla. 2d DCA 1979), and Financial Federal Savings & Loan Association v. Burleigh House, Inc., 305 So.2d 59 (Fla. 3d DCA 1974), cert. discharged, 336 So.2d 1145 (Fla.1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1977). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

At issue in the instant case is the largest of four notes executed by respondent, Hamm, and secured by a mortgage. The note principal, to be repaid at a 9 per cent annual interest rate in two years, was $290,000. In addition, respondent was initially required to pay a loan charge of $5,800. Respondent defaulted on the note and petitioner sought to foreclose on the mortgage. In the foreclosure proceedings, respondent alleged the affirmative defense of usury claiming the effective rate of interest charged exceeded the 10 per cent usury cap then in effect. The trial court applied section 687.03(3), Florida Statutes (1977), the spreading statute, and found that the note was not usurious.

On appeal, the Second District Court of Appeal at first affirmed the trial court. The court then reheard the case and reversed both its own earlier decision and that of the trial court. The basis for this change of heart was an extreme hypothetical', involving a 50 percent advance, presented by respondent and the court’s belief that the legislature could not have intended that hypothetical. 379 So.2d at 1303. Thus, the court equated “stated amount of the loan” with “actual principal sum received” in applying section 687.03(3). Also, the court assumed the loan fee was interest and then added the interest to be paid on the loan fee to the fee in making the usury computations pursuant to section 687.03(3). The district court’s computations follow:

1. The spreading of any such advance or forbearance for the purpose of computing the rate of interest shall be calculated by first computing the advance or forbearance as a percentage of the total stated amount of the loan. § 687.-03(3), Fla.Stat.
2. This percentage shall then be divided by the number of years, and fractions thereof, of the loan according to its stated maturity date, without regard to early maturity in the event of default. Id.
a) Two-year term
b) 2.408 spread over two years is 1.204 annual percentage rate.
3. The resulting annual percentage rate shall then be added to the stated annual percentage rate of interest purposes of this chapter. Id.
a) The resulting annual percentage rate from paragraph 2(b) above is 1.204% per year.
b) The stated annual rate on the note is 9% per year.
c) The effective rate of interest is 9% + 1.204% = 10.204%.

We quash. The decision of the second district constitutes a judicial rewrite of section 687.03 and deviates from the plain meaning of the statute. We hold that section 687.03(3) is clear on its face and should be applied in the following manner:

1. The spreading of any such advance or forbearance for the purpose of computing the rate of interest shall be calculated by first computing the advance or forbearance as a percentage of the total stated amount of the loan. Id.
a) Advance of $5,800.00.
b) $5,800.00/$290,000.00 = 2% of total stated amount.
2. This percentage rate shall then be divided by the number of years, and fractions thereof, of the loan according to its stated maturity date, without regard to early maturity in the event of default. Id.
a) Two year term.
b) 2% spread over two years is 1% annual percentage rate.
3. The resulting annual percentage rate shall then be added to the stated annual percentage rate of interest to produce the effective rate of interest for purposes of this chapter. Id.
a) The resulting annual percentage rate from paragraph 2(b) above is 1% per year.
b) The stated annual rate on the note is 9% per year.
c)The effective rate of interest is 9% + 1% = 10%.

While legislative intent controls construction of statutes in Florida, Griffis v. State, 356 So.2d 297 (Fla.1978), that intent is determined primarily from the language of the statute. S. R. G. Corp. v. Department of Revenue, 365 So.2d 687 (Fla.1978). The plain meaning of the statutory language is the first consideration.

The second district’s inability to “believe that the legislature could have intended for its statute to be read in such a way as would permit the outcome portrayed in the hypothetical” is insufficient to overcome the plain meaning of the statutory language. This case does not present the overwhelming evidence of a contrary intent expressed in Griffis. The state act involved in Griffis, section 943.44, Florida Statutes (1975), was enacted to supplement a federal act. The act had also been modeled on the Uniform Controlled Substances Act. Thus, the court had the legislative history of the federal act and the notes of the uniform act to consider in determining a legislative intent contrary to the statutory language.

Moreover, “[e]ven where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.” Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918). The question of whether “stated amount of the loan” should be read as “actual principal sum received” or stated amount of the note provides potential in section 687.03(3) for the ambiguity necessary to depart from the plain meaning. However, no ambiguity exists. In section 687.03(3), the legislature uses the term “stated” four times when referring to the loan. In each instance, it is clear that the statutory language refers to the particular term stated on the face of the note. Thus, contrary to the facts in Van Pelt, the language has a definite meaning and the court should have used the face amount of the note ($290,000), rather than the actual sum received ($290,000-$5,800 = $284,200), in applying section 687.03(3).

In addition, the court increased the amount of the “advance or forbearance” by the amount of interest to be paid on that advance over the life of the loan in contravention of the statutory spreading formula. Section 687.03(3) does not contemplate this additional step when determining the advance as a percentage of the stated amount of the loan. Interest paid on an advance is a charge for the use of funds to make the advance; it is not part of the advance.

“The determination of the maximum amount of interest which may be charged for the use of money loaned is within the police power of the state, and the details of the legislation and exceptions to be made rest within the discretion of the state legislature.” Cesary v. Second National Bank, 369 So.2d 917 (Fla.1979) (citation omitted). It is up to the legislature to determine how best to protect the unwary or foolish consumer from loans such as the hypothetical, a major concern of the court below. 379 So.2d at 1303, n.3. The legislature believes it has protected the consumer through enactment of chapter 687. In point of fact the legislature may feel that the consumer needs no additional protection because the consumer has other defenses available. The second district alludes to another — the common law defense of unconscionability. Id. It is the responsibility of the legislature to correct the asserted problem presented by the district court hypothetical.

Section 687.03(3) is also attacked on the ground that it is inconsistent both with the general definition of usury in section 687.03(1) and with Wilson v. Conner, 106 Fla. 6, 142 So. 606 (1932). The spreading statute may be inconsistent with Wilson. Nevertheless, usury is a creature of statute, Spinney v. Winter Park Building & Loan, 120 Fla. 453, 162 So. 899 (1935), and the usury statute must control over prior case law. Thus, Wilson has no vitality in cases where section 687.03(3) applies.

Section 687.03(1) and section 687.03(3) are not inconsistent. The “[e]xcept as provided herein ...” language contemplates that other provisions apply. Section 687.03(3) supercedes when an advance is required in a loan transaction. When the actual principal sum received equals the stated amount of the loan, however, section 687.03(1) remains in force. Enactment of the spreading statute merely limited the scope of section 687.-03(1); it did not remove the provision’s effectiveness.

The Second District Court of Appeal has also created some uncertainty in the area of commitment fees. The court’s summary treatment of the commitment fee issue and subsequent assumption that the $5800 constituted interest raised doubts about the general applicability of Financial Federal Savings & Loan Association v. Burleigh House, 305 So.2d 59 (Fla. 3d DCA 1974), cert. discharged, 336 So.2d 1145 (Fla.1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1977).

Burleigh House stands for the proposition that a commitment fee is “consideration for the lender’s ... funds which are committed to be loaned in the future” rather than additional interest. 305 So.2d at 63. The second district attempts to distinguish the Burleigh House rule on the basis of the type of loan involved, thereby limiting Burleigh House to construction loans. This limitation is not imposed by Burleigh House.

Respondent attempts to limit Burleigh House to two loan transactions, construction and permanent lending transactions being a classic example. This distinction, however, could not have been intended. The policies supporting use of a commitment fee may be applicable in either a one or two loan transaction. In the one transaction open line of credit situation, the lender must maintain sufficient funds to pay the debtor at his request up to the amount agreed upon at all times. There is no guarantee that the debtor will request any or all of those funds. Thus, the lender may receive no compensation for funds which were earmarked at the outset of the transaction for future use at the debtor’s discretion. This does not differ materially from the construction/permanent lending arrangement in Burleigh House. In either case the lender is entitled to compensation for funds held overtime for the debtor’s benefit.

Moreover, both arrangements contemplate the same opportunity costs. In periods of rapidly increasing rates, loan commitments and lines of credit tie the lender to a potentially lower interest rate. In addition, the lender is prevented from accepting more attractive offers during the period of commitment. The lender is also entitled to compensation for these costs.

We, therefore, uphold the Burleigh House rule and find that its application is not limited either by the type of loan or the number of transactions contempleted.

The decision of the district court of appeal is quashed and the cause is remanded with instructions to affirm the judgment of the trial court.

BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.


author: PER CURIAM.

text:
    Gerald CONRAD, Petitioner, v. STATE of Florida COMMISSION ON ETHICS, Respondent.
    No. YY-266.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    Joseph C. Jacobs and Dean Bunch of Er-vin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and Mayo C. Johnston of Davenport,
    Johnston, Harris, Gerde, Harrison & Na-bors, P. A., Panama City, for petitioner.
    Larry Gonzalez, Executive Director, Florida Com’n on Ethics, and Pat Gleason, Advocate, Florida Com’n on Ethics, Tallahassee, for respondent.
   PER CURIAM.

Petitioner seeks review of a non-final order of the Commission on Ethics (Commission) denying his motion to dismiss the complaint filed against him for lack of jurisdiction. Petitioner contends that the complainant disclosed his intention to file the complaint on or within five days prior to election day and therefore the Commission is precluded from investigating the complaint. We do not agree.

Although Section 112.324(1), F.S., contains a prohibition against filing, or disclosing an intention to file, a complaint against a candidate on or within five days immediately preceding election day, there is nothing in Section 112.324, or in any other section of Chapter 112, Part III, indicating that a violation of Section 112.324(1) by the complainant deprives the Commission of the authority to investigate the complaint. The legislature has provided a criminal penalty for willfully disclosing an intention to file a complaint or for disclosing any of the confidential proceedings before the Commission. Section 112.317(6), Florida Statutes. Thus, the penalty for violating the provisions relating to disclosure is directed at the violat- or and not at the public, in whose interest the Commission operates.

The order of the Commission is affirmed.

Petitioner’s motion to maintain confidentiality is granted. This opinion and all documents filed in the appellate proceeding shall remain confidential until such time as the proceedings before the Commission become public.

McCORD, ROBERT P. SMITH, Jr., and JOANOS, JJ., concur.

      . Section 112.324(1), Florida Statutes, reads as follows:
      “Upon a written complaint executed on a form prescribed by the commission and signed under oath or affirmation by any person, the commission shall investigate any alleged violation of this part in accordance with procedures set forth herein. Within 5 days after receipt of a complaint by the commission, a copy shall be transmitted to the alleged violator. All proceedings, the complaint, and other records relating to the preliminary investigation as provided herein, in-eluding a dismissal of the complaint, shall be confidential either until the alleged violator requests in writing that such investigation and records be made public records or the preliminary investigation is completed, notwithstanding any provision of chapters 119, 120 or 286. In no event shall a complaint under this part against a candidate in any general, special, or primary election be filed or any intention of tiling such a complaint be disclosed on the day of any such election or within the 5 days immediately preceding the date of the election." (emphasis supplied)


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Herschel SHEPARD, Appellant, v. CITY OF PALATKA and Joseph Rothenberg and United States Fidelity & Guaranty Company, Appellees.
    No. 80-974.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Carl D. Dawson of Dawson, Galant, Maddox, Sulik & Nichols, P. A., Jacksonville, for appellant.

      No appearance for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Herschel Shepard appeals from a summary final judgment entered against him. Appellee, the City of Palatka, retained Shepard as its architect for the repairing and remodeling of the Bronson-Mulholland House in Palatka. Appellee, Joseph Roth-enberg, was the contractor selected to do the work. Appellee, United States Fidelity and Guaranty was Rothenberg’s surety.

After completion of the work, veneer plaster began to peel away from the plaster wallboards because a special type of wallboard necessary to assure adhesion had not been installed. The city contended that the special type of wallboard (one-half inch Imperial Plaster Base, Type X, paragraph 9F-3C) was mandated by the job specifications. The contractor, in his deposition, acknowledged that he had not used this board but instead used a finishing board, fire resistive, type X, throughout. He contends that the specifications permitted either to be used and that the fire resistant board was approved on the job.

The city sued Shepard claiming he was negligent in the preparation of plans and specifications and also charged that he failed to make timely and proper inspection of Rothenberg’s work. The city also sued Rothenberg and his surety for negligent failure to follow the plans and specifications. Shepard cross-claimed against Roth-enberg for indemnification. Summary judgment was granted to the city against all three defendants on the issue of liability.

The city, as the party moving for summary judgment, was required to show that there exists no genuine issue of material fact and'that it was entitled to judgment as a matter of law. Every reasonable inference was required to be drawn in favor of Shepard. Wills v. Sears Roebuck & Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966).

In Palm Bay Towers Corp. v. Crain & Crouse, Inc., 303 So.2d 380, 383 (Fla. 3d DCA 1974), the court enunciated the standard of care owed by an architect to his employer:

As a general rule, an engineer, like an architect, owes his employer a duty to exercise and apply his professional skill, ability and judgment in a manner which is reasonable and without neglect.

As to the question of whether there was a failure to make timely and proper inspection of Rothenberg’s work, it is necessary to consider the duty of the architect as specified in the contract which provided:

The Architect shall make periodic visits to the site to familiarize himself generally with the progress and quality of the work and to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an architect he shall endeavor to guard the Owner against defects and deficiencies in the work of the Contractor. The Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and he shall not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents.
The Architect shall not be responsible for the acts or omissions of the Contractor, or any Subcontractors, or any of the Contractor’s of the Subcontractors’ agents or employees, or any other persons performing any of the Work.

In a proper factual situation, where it is demonstrated that the architect ignored his contractual duty to make periodic visits to the site, liability could possibly lie regardless of such exonerating language. Such was not the case here, however. The architect’s deposition reflected that he had made inspections. While he admitted that he had not discovered the misuse of the wallboard, the contract clearly protected him because it imposed no duty upon him to discover the omission of the contractor and clearly absolved him of liability if there were, in fact, such omissions.

The other question was whether the architect was negligent in the preparation of plans and specifications.

Shepard, in his cross-claim against the contractor, Rothenberg, alleged that Roth-enberg had failed to follow the plans and specifications. Rothenberg denied and alleged that he had followed the plans and specifications.

The court did not determine liability as between Shepard and Rothenberg. If it is ultimately determined that Rothenberg did follow the plans and specifications, the conclusion is inescapable that Shepard was negligent in their preparation and would be liable to the city. On the other hand, if it is determined that Rothenberg did not follow the plans and specifications then Rothen-berg would be liable to the city but Shepard would not. The jury could also find each liable to some extent under a comparative negligence theory. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

We conclude, therefore, that the entry of summary judgment, even though limited to the issue of liability was erroneous. There is an issue of fact as to whether the architect was negligent in the preparation of the plans and specifications. There is also an issue of fact as to whether the contractor complied with the plans and specifications. Whether either the contractor or architect or both are liable to the city cannot be determined as a matter of law at this stage of the case. We must REVERSE.

SHARP, and COWART, JJ., concur.


author: PER CURIAM. SHAW, Judge,

text:
    Donald Lee ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-435.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    On Certification May 26, 1982.

      Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant entered a plea of guilty to one count of burglary of a dwelling. The trial court adjudged appellant guilty and placed him on 15 years probation with a special condition of probation that the first two years were to be served in prison. Subsequently, appellant filed a motion to correct sentence, arguing that his probationary sentence was illegal under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980). At the hearing on appellant’s motion, all parties agreed that, if the motion were granted, the trial court had the authority to impose any sentence which it could have lawfully imposed at the original sentencing hearing. The motion was then granted, and the trial court imposed a sentence of ten years in prison.

On appeal, appellant argues the trial court erred in imposing a more severe sentence after having vacated the previously imposed probationary order. We find appellant’s argument to be without merit. In Villery, supra, the Florida Supreme Court stated that, in correcting an illegal order, the trial court has the option of withdrawing the order and imposing a sentence of imprisonment not to exceed the period of time of the original total term of probation. The ten-year term of imprisonment imposed here does not violate Villery.

We also reject appellant’s contention that his sentence is unconstitutional under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), in that it imposed a more severe sentence without affirmatively explicating the new factual material forming the basis of the sentence. Pearce is inapplicable to this case because appellant’s resentence of ten years does not exceed the entire term of fifteen years previously imposed. Williams v. State, 405 So.2d 436, 437 (Fla. 1st DCA 1981); see Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981); Noles v. State, 407 So.2d 370 (Fla. 2d DCA 1981); Joyce v. State, 404 So.2d 850 (Fla. 4th DCA 1981).

BOOTH and WENTWORTH, JJ., concur.

SHAW, J., dissents in part and concurs in part with written opinion.

SHAW, Judge,

concurring in part and dissenting in part.

I concur with the majority that the ten year term of imprisonment imposed in this instance does not violate Villery. However, I disagree with the conclusion that Pearce is inapplicable “because appellant’s resen-tence of ten years does not exceed the entire term of fifteen years previously imposed.” In my opinion, the ten year term of imprisonment is eminently more severe than a sentence of fifteen years’ probation with a special condition of that probation being that the first two years shall be served in prison. I believe that the judge imposed a more severe sentence after the appellant’s successful attack upon the illegal probationary order, and I therefore conclude that the Pearce rationale is applicable.

I place no significance upon the fact that Pearce dealt with resentencing after a new trial as opposed to resentencing after setting aside an illegal probationary order. In either instance there is the possibility of vindictiveness against the defendant for having successfully attacked the initial conviction or sentence. The absence of such motive is what Pearce seeks to assure by requiring that whenever a judge imposes a more severe sentence upon a defendant after a new trial resulting from the defendant’s successful attack upon his first conviction, his reasons must affirmatively appear and must be based upon objective information concerning identifiable conduct occurring after the time of the original sentencing proceeding. Neither the record nor the judge’s order gives a reason for the imposition of what I perceive as a more severe sentence. I would therefore reverse and remand the cause to the trial judge with directions that the factual data upon which he based the increased sentence be made part of the record so that the constitutional legitimacy of the increased sentence might be fully reviewed on appeal. This result would be in keeping with the spirit of Pearce.

ON AMENDED REQUEST FOR CERTIFICATION

PER CURIAM.

Appellant’s amended request for certification is granted. We certify as questions of great public importance the following:

1. In correcting a voidable sentence, is the maximum sentence that can be imposed imprisonment for a period of time not exceeding the total of the period of imprisonment and probation originally imposed? If not, what is the maximum sentence?
2. If the corrected sentence imposed is imprisonment for a period of time not exceeding the total time of the imprisonment and probation originally imposed, can such sentence violate the prohibitions of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)?
3. If compliance with Pearce is required under the circumstances set forth in 2. above, at what point does a sentence of imprisonment that replaces a sentence of a combination of imprisonment and probation become a more severe sentence subject to the limitations of Pearce?

The foregoing are the same questions certified in Beech and Pendley v. State, 411 So.2d 1384 (Fla. 1st DCA 1982).

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: BERANEK, Judge. LETTS, Chief Judge,

text:
    E. D. BRACEY, M.D., W. C. Heaton, M.D., Palm Beach Ear, Nose & Throat Association, et al., Appellants, v. Thomas G. REYNOLDS and Margaret B. Reynolds, his wife, Appellees.
    No. 81-412.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Rehearing Denied June 25, 1982.

      Stephen C. McAliley of Brennan, McAli-ley, Hayskar & McAliley, P.A., West Palm Beach, for appellants.
    Montgomery, Lytal, Reiter, Denney & Searcy, P. A., and Edna L. Caruso, West Palm Beach, for appellees.
   BERANEK, Judge.

This appeal follows a jury verdict in favor of the plaintiffs/appellees in a medical malpractice suit. We affirm. On September 5,1979, plaintiffs filed a medical liability mediation claim against the defendants/appellants pursuant to Section 768.44, Florida Statutes (1979). The mediation statute was declared unconstitutional in Aldana v. Holub, 381 So.2d 231 (Fla.1980), but constitutionality is not in issue here. Plaintiffs presented no evidence at the mediation hearing and the mediation panel issued a finding for the doctors of “no actionable negligence.” On February 28, 1980, plaintiffs filed an action against defendants in circuit court for medical malpractice. The alleged theory was that defendants were negligent in failing to secure informed consent to the surgery.

Immediately prior to trial, defendants sought a ruling in limine that, upon introduction into evidence of the favorable mediation finding, plaintiffs be precluded from showing that they presented no evidence at the mediation hearing. The trial court ruled that if defendants made reference to the favorable mediation finding or introduced it into evidence, plaintiffs could then show that they introduced no evidence at the hearing. At the beginning of trial defense counsel advised the court that he would not mention the panel’s findings at all if plaintiffs would be allowed to show that no evidence was presented. An extensive trial was held and the jury awarded Thomas Reynolds and his wife, $225,000. No mention of the mediation finding occurred.

Defendants’ sole point concerns their contention that the trial court erred in ruling that plaintiffs could inform the jury that no evidence was presented at the mediation hearing. The case of Herrera v. Doctors’ Hospital, 360 So.2d 1092 (Fla.3d DCA 1978), aff'd. 367 So.2d 204 (Fla.1978), held that neither party could comment on or give reasons for the conclusion reached by the mediation panel. While we agree with defendants that the trial court’s ruling may have been erroneous in the abstract, we find that the issue is not appropriate for appellate review because prejudice never actually resulted directly from the erroneous ruling. This was not a situation where a party was prohibited prior to trial from introducing evidence, thus making a proffer unavailing and unnecessary in order to demonstrate error. See General Portland Land Development v. Stevens, 291 So.2d 250 (Fla. 4th DCA 1974). Here, the court ruled defendants could put the panel’s findings into evidence; however, plaintiffs would then have the option of advising the jury that no evidence was presented at the mediation hearing. Defendants chose not to introduce their evidence and thereby avoided the entire issue.

On appeal, we can only speculate as to what would have happened had defendants introduced their evidence of the panel’s finding. Based on the posture of the trial and how well things were going, plaintiffs might have decided not to make any comment. We do not base this decision solely on the fact that plaintiff’s strategy might have changed. However, the ruling complained of was not prejudicial until the plaintiffs attempted to introduce the improper evidence of what occurred before the mediation panel. This simply never happened. The decision not to offer the panel decision was a tactical one on defendant’s part and any prejudice was the result of that decision. In a recent decision, Swan v. Florida Farm Bureau Insurance Company, 404 So.2d 802 (Fla. 5th DCA 1981), the Fifth District held that a judgment will not be reversed based on an overruled motion in limine unless the evidence was in fact offered. Although not directly on point this decision supports the conclusion we reach in the present case. Appellant cannot rely on the prejudice that would have occurred because it never actually occurred by virtue of counsel’s decision to simply avoid the whole topic. As in all civil cases, appellant has the burden of demonstrating both error and prejudice and clearly the latter has not been shown. The judgment below is affirmed.

AFFIRMED.

HERSEY, J., concurs.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge,

concurring specialty-

The judge’s anticipatory ruling was clearly in error and the appellants urge upon us that had they put into evidence the favorable mediation finding, they would have been sandbagged by the erroneous introduction of the fact that no evidence was presented at the hearing.

Maybe so, but that is only speculation. Yet, since the appellant so speculates, the more relaxed vehicle of a special concurrence allows me to do the same. My speculation is that the plaintiff’s counsel would have made no mention of the fact that no evidence was received at the hearing. To do so would have provided an open and shut reversal on appeal.


text:
    S. Bill BARTLETT and Joyce E. Bartlett, his wife, Appellants, v. Gerald R. GORDON and Marilyn T. Gordon, his wife, Appellees.
    No. 81-807.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.
    Rehearing Denied June 24, 1982.
    Charles R. L. White, Jupiter, for appellants.
    Louis Mrachek of Gunster, Yoakley, Criser & Stewart, P. A., Palm Beach, for appel-lees.
   BERANEK, Judge.

Plaintiffs appeal an unfavorable final judgment entered by the trial court in a property boundary dispute. Plaintiffs purchased a certain parcel of property located in Martin County by way of a warranty deed dated July 25, 1977, which contained a legal description of the property. There has never been any question but that the written description was accurate and described a parcel with a 100 foot North-South dimension. Prior to purchase, defendants pointed out to plaintiffs the four corners of the property. At the southern end of the property was a concrete wall which defendants indicated was the property line between the two parcels. Approximately two years after the purchase, plaintiffs retained Price Engineering to conduct a survey of the property. This survey indicated that defendants’ wall encroached upon plaintiffs’ property by slightly over three feet.

Plaintiffs suéd in an action for ejectment and damages. At trial, plaintiffs attempted to introduce the survey through the office manager of Price Engineering, Steve Brown, who had helped conduct the survey. Defendants objected on the grounds that Ronald Price, the principal licensed survey- or of the firm, whose name and seal appeared on the survey, was not available for cross-examination. The court sustained the objection and granted plaintiffs a continuance until Mr. Price could appear. When trial resumed, both Mr. Brown and Richard Bowen, party chief in connection with the field work done for plaintiffs, testified. Mr. Bowen identified the complete set of field notes prepared by him on the property, and the notes were admitted into evidence. Based upon his field notes, Mr. Bowen testified that there was in fact an encroachment upon plaintiffs’ property by defendants’ concrete wall in the amount of 3.26 feet north of plaintiffs’ southeast property corner.

Mr. Price then testified that Mr. Bowen and Mr. Brown had performed the field work for plaintiffs; that he ratified, accepted, and adopted the work of his staff in regard to the survey; that the survey bore the seal of Price Engineering Company; that the survey before them was a certified representation of the plaintiffs’ property; and that by putting his seal on the plan the survey was certified as to its accuracy. When plaintiffs requested the court to admit the survey into evidence, defendants objected based on Section 472.021, Florida Statutes (1979). That section reads in part:

All final drawings, specifications, plans, reports, or other papers or documents involving the practice of land surveying which are prepared or approved for the use of the corporation or partnership or for delivery to any person or for public record within the state shall be dated and bear the signature and seal of the registrant who prepared or approved them.

Apparently, Mr. Price did not sign the survey; the survey was signed and sealed by Mr. Brown, who was the authorized agent of Mr. Price. The court sustained the defendants’ objection to the survey and it was not admitted into evidence. Mr. Price did testify, however, that in his opinion the fence and concrete wall did encroach upon plaintiffs’ property. Defendants, Marilyn and Gerald Gordon, offered only their own testimony that they thought the concrete wall constituted the boundary line between the two pieces of property. At the close of the case, the trial court entered judgment for defendants finding that plaintiffs had not met their burden of proof.

At the hearing on plaintiffs’ motion for rehearing, plaintiffs proffered two new surveys which again established that defendants were encroaching upon plaintiffs’ property. The court denied the motion for rehearing.

On appeal, plaintiffs raise three points, one of which is dispositive. Plaintiffs contend that the trial court erred in entering judgment for defendants finding that plaintiffs did not meet their burden of proof. It appears that the trial court placed undue importance on the survey equating admission of the survey document into evidence with plaintiffs’ meeting their burden of proof. This ignores the copious amount of admissible evidence offered by plaintiffs’ witnesses that the wall did in fact encroach on plaintiffs’ property. Plaintiffs were placed in the anomalous position of having to carry the burden of proving their title to the property clearly described in their own recorded deed. In light of the testimony of a licensed surveyor, which defendants failed to rebut with their own testimony, the admission of the survey was not absolutely crucial as the court apparently believed. The field notes were admitted without objection and this exhibit also showed the encroachment. We hold that the judgment of the trial court was contrary to the manifest weight of the evidence and clearly erroneous. We, therefore, reverse and remand this cause with directions to enter judgment for plaintiffs.

REVERSED AND REMANDED.

GLICKSTEIN, J., concurs.

LETTS, C. J., concurs in part and dissents in part.

LETTS, Chief Judge,

concurring in part and dissenting in part:

I concur in the conclusion that the survey took over as the feature of the trial to the exclusion of other competent and substantial evidence. However, I think there are several unresolved ramifications (see for example Rucks v. Ansin, 198 So.2d 662 (Fla. 4th DCA 1967)) which would cause me to remand for a new trial rather than enter an outright reversal.


author: LETTS, Chief Judge.

text:
    In the Interest of B. L. G., a child.
    No. 81-1072.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Rehearing Denied June 24, 1982.
    Richard L. Jorandby, Public Defender, and Ellen S. Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

Appellant seeks review of an order of the trial court, which adjudicated the appellant a delinquent alleging that the trial court erred in failing to grant his motion to dismiss pursuant to Florida Rule of Juvenile Procedure 8.180, thus denying him speedy trial. We agree and reverse.

The appellant was taken into custody on January 19, 1981, for the offenses of burglary and grand theft. After more than ninety days had elapsed from that date, the appellant filed a motion for discharge asserting that he had not been tried within the ninety day period provided in the rule. Section 39.05(7)(a), Florida Statutes (1979), provides that a child alleged to be delinquent shall be brought to an adjudicatory hearing without demand within ninety days of the earliest of the following:

(1) The date the child was taken into custody.
(2) The date the petition was filed.

The court may extend the period of time prescribed in Section 39.05(7)(a) only upon a motion by the state. § 39.05(7)(c), Fla.Stat. (1979). There being no motion or extension of time granted the state pursuant to Section 39.05(7)(c), we reverse the order appealed and remand the cause to the trial court with instructions to discharge the child. See Fla.R.Juv.P. 8.180(d); In the Interest of K. L. H., 407 So.2d 297 (Fla. 4th DCA 1981); In the Interest of J. R. S. v. Hastings, 374 So.2d 559 (Fla. 4th DCA 1979); C. S. v. State, 390 So.2d 457 (Fla.3d DCA 1980).

REVERSED AND REMANDED WITH DIRECTIONS.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    Lloyd A. ROSEN and Lloyd Allen Sales & Export Company, Ltd., a California corporation qualified to do business in Florida, Appellants, v. The TOBI COMPANY, INC., formerly Tobi Brokerage Co., a Florida corporation, Appellee.
    No. 81-1465.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Rehearing Denied June 22, 1982.
    Becker, Poliakoff & Streitfeld and Mark B. Schorr, Fort Lauderdale, for appellants.
    Straske, Farfante & Watkins and Paul A. Straske, Tampa, for appellee.
    Before HUBBART, C. J., FERGUSON, J., and EZELL, BOYCE F., Jr. (Ret), Associate Judge.
   PER CURIAM.

Affirmed. Capelouto v. Orkin Exterminating Company of Florida, Inc., 183 So.2d 532 (Fla.1966); Suave Shoe Corporation v. Fernandez, 390 So.2d 799 (Fla. 3d DCA 1980); Answer All Telephone Secretarial Service, Inc. v. Call 24 Inc., 381 So.2d 281 (Fla. 5th DCA 1980); Beery v. Plastridge Agency, Inc., 142 So.2d 332 (Fla. 2d DCA 1962).


author: SHARP, Judge.

text:
    Gregory Mark LANDRY, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-967, 81-969.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.
    Rehearing Denied June 7, 1982.
    James B. Gibson, Public Defender, Michael S. Becker, and Leonard R. Ross, Asst. Public Defenders, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

At the sentencing hearing the trial judge stated Landry would be sentenced to prison for a period of three years, with credit for (51) weeks and one hundred fifty-nine (159) days. The written sentence said Landry would be imprisoned “for a term of 3 YEARS 51 WEEKS AND 159 DAYS WITH CREDIT FOR 51 WEEKS AND 159 DAYS PREVIOUSLY SERVED.” From the record on appeal it appears likely a clerical error was made. We affirm the judgment but remand to the trial court for correction of the written sentence within thirty (30) days.

AFFIRMED; CASE REMANDED.

ORFINGER and COWART, JJ., concur.


text:
    Franklin Douglas OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1800.
    District Court of Appeal of Florida, Second District.
    May 5, 1982.
    As Clarified June 4, 1982.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and his maximum sentence for attempted first degree murder. However, the sentencing order and transcript of the sentencing hearing are silent on the court’s particular justification for retention over the first third of the sentence.

Accordingly, we REMAND to the court with instructions to either relinquish jurisdiction over the first third of the sentence or state with individual particularity the justification for retaining jurisdiction. See Sanders v. State, 400 So.2d 1015, 1016 (Fla.2d DCA 1981); § 947.16(3), Fla.Stat. (1981).

SCHEB, C. J., and OTT and SCHOON-OVER, JJ., concur.


author: BOARDMAN, Acting Chief Judge. GRIMES, Judge,

text:
    Louis J. TSAVARIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1530.
    District Court of Appeal of Florida, Second District.
    May 7, 1982.
    Rehearing Denied June 9, 1982.

      Frank Ragano, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Louis J. Tsavaris appeals his conviction and sentence. Dr. Tsavaris, a psychiatrist, was charged in 1975 with the first-degree murder of Cassandra Burton, a former patient of his with whom he had allegedly been having an affair. The jury convicted him of the lesser included offense of manslaughter, and he was sentenced to fifteen years in prison. We affirm.

The only issue raised which merits discussion is the question of the sufficiency of the evidence. Dr. John Feegel, the forensic pathologist who performed the autopsy on the victim, testified that the cause of her death was manual strangulation. Although he found no bruises or other evidence of strangulation on the skin of the neck, he stated that a strangulation can occur without leaving marks on the neck.

Feegel apprised the court and jury of a technique of reducing the blood flow to the brain to enhance pleasure during a sexual experience. This technique, also discussed by two defense medical expert witnesses, involves partial strangulation. The technique is also used by cardiologists to change or stop heart rhythm. It is a dangerous procedure to be used only under controlled conditions, since the loss of oxygen to the brain (which is what increases sexual enjoyment) can lead to unconsciousness, and heart stoppage can also occur. There was some indication that appellant was familiar with this technique, and there was testimony that he had once said he knew how to strangle a person without leaving marks. And there was evidence found by Feegel that Burton had engaged in sexual activity shortly before her death.

Appellant makes much of Feegel’s admission that death could occur accidentally during use of this technique. However, as the state points out, if this was what occurred, appellant’s use of this dangerous technique would constitute culpable negligence. Culpable negligence is consciously doing an act which a reasonable person would know is likely to result in death or great bodily harm to another person, even though done without any intent to injure anyone but with utter disregard for the safety of another. Fla. Std. Jury Instr. (Crim.). Such culpable negligence on appellant’s part is sufficient to support a verdict of manslaughter. See Filmon v. State, 336 So.2d 586 (Fla.1976); Pritchett v. State, 414 So.2d 2 (Fla. 3d DCA Apr. 6, 1982); Marasa v. State, 394 So.2d 544 (Fla. 5th DCA), cert. denied, 402 So.2d 613 (Fla.1981); O’Berry v. State, 348 So.2d 670 (Fla. 3d DCA 1977).

Appellant also places great reliance on the fact that no sperm were found in the victim’s body, indicating sexual activity with a man who had no sperm, and that a recent examination (six years after Burton’s death) of appellant revealed that he had a normal sperm count and had never undergone a vasectomy. However, there was testimony from one of the expert witnesses that recent, frequent intercourse by the man involved in the sexual activity with Burton could have depleted his sperm.

Appellant moved for judgment of acquittal at the close of the state’s case and again at the conclusion of all the evidence. Florida Rule of Criminal Procedure 3.380(a) provides that if the court is of the opinion that the evidence is insufficient to warrant a conviction it may upon proper motion enter a judgment of acquittal. The accepted standard to be applied on review of the denial of the motion is not whether the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury might reasonably so conclude. Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974).

We conclude that there was legally sufficient evidence submitted to the jury to support the jury verdict finding appellant guilty of manslaughter. We further find no merit to any of the other points appellant raises on this appeal. Point six was previously decided against appellant by this court. State v. Tsavaris, 382 So.2d 56 (Fla. 2d DCA 1980), aff’d, 394 So.2d 418 (Fla.1981).

Accordingly, appellant’s judgment and sentence for manslaughter is AFFIRMED.

DANAHY, J., concurs.

GRIMES, J., concurs specially with opinion.

GRIMES, Judge,

concurring specially.

While Dr. Feegel unequivocally testified that Ms. Burton died of manual strangulation, he admitted that it was possible that this could have occurred during intercourse as a result of a technique designed to heighten sexual pleasure. By itself, this might leave open a reasonable hypothesis of innocence with respect to premeditated murder which would mandate the entry of a judgment of acquittal to that charge in a case such as this which involves only circumstantial evidence. McArthur v. State, 351 So.2d 972 (Fla.1977). However, this reasonable hypothesis of innocence looks far less reasonable when viewed in the context of the evidence the state introduced to show that appellant, who admitted to being with Ms. Burton when she died, acted in a manner and made statements which were quite inconsistent with Dr. Feegel’s alternative theory of how the death occurred. Hence, the court did not err in submitting the issue of first degree murder to the jury. Appellant cannot complain if the jury chose to give him a pardon to the extent of only finding him guilty of manslaughter. Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968).


author: SCHWARTZ, Judge.

text:
    The Honorable Robert M. DEEHL, as County Judge of the Dade County Court, Appellant, v. George F. KNOX, Jr., Appellee.
    Nos. 81-592, 81-768.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Rehearing Denied June 22, 1982.

      Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Janet Reno, State Atty. and Ira N. Loewy, Asst. State Atty., for appellant.
    Sams, Gerstein & Ward, P. A., Carhart & McGuirk, P. A., Daniels & Hicks and Sam Daniels, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

The appellant is a judge of the Dade County Court against whom a writ of prohibition was issued precluding the trial of the appellee on a misdemeanor information which alleged a violation of Section 918.-14(l)(b), Florida Statutes (1979). This portion of the so-called witness tampering statute forbids knowingly inducing or attempting to induce a witness in a pending proceeding from “[w]ithhold[ing] any testimony, information, document, or thing.” The ruling below was based on the conclusion that the provision is facially invalid for first amendment overbreadth. We disagree and, upon the conclusion that, properly interpreted, the statute is in fact constitutional, reverse the judgment below.

The appellee’s position is based upon the undeniable fact that the literal language of the statute reaches conduct which is at once innocent and protected by the guarantees of free speech, assembly and association contained in the first amendment to the United States Constitution and Article I, Sections 4 and 9 of the Florida Constitution. He suggests that it prohibits, for example, an attorney from properly advising his client to plead the fifth amendment or a physician, clergyman, or family member from a good-faith suggestion that a witness — for reasons of his own well-being— should not testify. If any of this protected activity is in fact or could cogently be deemed prohibited by the statute, § 918.-14(l)(b) would indeed be constitutionally overbroad and hence invalid. E.g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir. 1980); State v. Keaton, 371 So.2d 86 (Fla.1979). But, as we construe it, it simply does not so provide.

It is axiomatic that courts are required to interpret a statutory provision — if consistent with the ultimate polestar of the issue, the legislative intent — so as to render it immune from claims of unconstitutionality, White v. State, 330 So.2d 3 (Fla.1976), including one of overbreadth. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982); State v. Elder, 382 So.2d 687 (Fla.1980); State v. Saunders, 339 So.2d 641 (Fla.1976). Here, as in many other instances, that requirement may and therefore must be effectuated by giving the statute a limiting construction which requires that the act or words forbidden only in general terms be performed or uttered with criminal intent. State v. Allen, 362 So.2d 10 (Fla.1978) (construing theft statute as including unstated but constitutionally-required element of unlawful intent). In the case of the provision before us, the forbidden intent which is thus deemed an element of the offense is one “corruptly to interfere with the administration of justice.” Thus, in 67 C.J.S. Obstructing Justice § 8 (1950), it is said

[t]he gist of the offense [of witness tampering] is the willful and corrupt attempt to interfere with and obstruct the administration of justice.

See also, Zalla v. State, 61 So.2d 649, 651 (Fla.1952) (“The gist of the offense of ‘attempted bribery’ is the criminal intent to undermine the proper and orderly administration of justice. The law punishes an offer which is calculated to debase. The corpus delicti is the corrupt intent.”)

A criminal intent of this nature was deemed an element of the common law crime of witness tampering. See R. v. Kellett, [1975] 3 All E.R. 468, in which the court, in the course of an exhaustive discussion of the issue, pointed out that the

Report of the Committee on Contempt of Court, December 1974 ... regards the intent necessary for the offence which we have to consider as implicit in its name:
‘... that the intended interference is improper or wrong. Thus, a person who encourages a witness to come forward, or a solicitor who advises against taking or defending legal proceedings may be described as intending to interfere, but is clearly doing no wrong, and cannot be liable.... ’

[1975] 3 All E.R. at 477. See also, 10 Hals-bury, The Laws of England § 1194 (3d ed. G. Simonds 1955). It is the general rule that statutes, including criminal ones, should be construed to reflect the common law, unless, as it did not in this instance, the legislature clearly indicates otherwise. Akins v. Bethea, 160 Fla. 99, 33 So.2d 638 (1948); State v. Little, 400 So.2d 197 (Fla.5th DCA 1981) (elements of common law crime of poaching deemed incorporated into Florida statute); see also, Purvis v. State, 377 So.2d 674 (Fla.1979) (common law definition of fornication read into Florida statute rendering it invalid as contrary to equal protection clause). Much more specifically, the supreme court has consistently engraft-ed the limiting common law definitions of riot and unlawful assembly upon the Florida statutory law, Sections 870.01-03, Florida Statutes (1979), in order to remove a first amendment overbreadth objection which would admittedly have been well-taken if only the actual verbiage of the statutes were considered. Mobley v. State, 409 So.2d 1031 (Fla.1982); State v. Simpson, 347 So.2d 414 (Fla.1977), appeal dismissed, 434 U.S. 961, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977); State v. Beasley, 317 So.2d 750 (Fla.1975). These cases are controlling and determinative of the one at bar.

In contrast to several cases in which a constitutional statutory construction was precluded by a conclusive indication that it was not in accordance with the wishes of the legislature, State v. Keaton, 371 So.2d 86 (Fla.1979); Brown v. State, 358 So.2d 16 (Fla.1978); Purvis v. State, supra, there is no doubt that our restrictive interpretation of § 918.14(l)(b) is in full accord with the legislative intent. First, it is quite obvious that the legislature could not have wished to criminalize the innocent, indeed commendable conduct to which the unglossed words of the statute would apply. This view is confirmed by specific legislative indications to this effect. Plainly, § 918.-14(l)(b) must not be considered in isolation, but in the light, not only of the other portions of the same statute, but of the entire body of statutory law. Cobb v. Wainwright, 666 F.2d 966 (5th Cir. 1982); Garner v. Ward, 251 So.2d 252 (Fla.1971). In this case, the intent to penalize only actions performed with an element of criminality is forcefully demonstrated by the fact that each of the other subsections of § 918.14 specifically so provides. As is shown also by the very title of the original enactment of § 918.14, Ch. 72-315, Laws of Florida— “AN ACT relating to obstructing justice”— it is plain that the section we consider here had the sole — and manifestly beneficent— purpose of protecting the administration of justice from the intervention of those acting with criminal intent. Moreover, in terms of the “fifth amendment advice” question which the appellee has chosen to emphasize here, it is noteworthy that the invocation of the attorney-client privilege is specifically recognized by § 90.502, Fla. Stat. (1979) as a basis for advising one not to testify. § 90.501, Fla.Stat. (1979); see also § 90.503 (psychotherapist-patient privilege); § 90.504 (husband-wife privilege); § 90.505 (clergyman-penitent privilege). It is inconceivable that the legislature intended by one statute to make a misdemeanor what it has specifically authorized in another.

The requirement of a corrupt intent to establish guilt of the offense clearly removes “the threat of deterrence to constitutionally protected expression” and thus obviates the appellee’s overbreadth contention. Grand Faloon Tavern, Inc. v. Wicker, supra, at 670 F.2d 946. Any innocent, protected words or conduct would, by definition, not be uttered or performed with a criminal intent and would not therefore constitute a violation of the statute. R. v. Kellett, supra; see Carricarte v. State, 384 So.2d 1261 (Fla.1980), cert. denied, 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980); Trushin v. State, 384 So.2d 668 (Fla. 3d DCA 1980), review denied (Fla.Case no. 59,378, opinion filed, July 30, 1981). On the other hand, any attempt to dissuade a witness which is motivated by the corrupt intent we have defined is not constitutionally protected and thus may (and should) be validly forbidden by the state. United States v. Mitchell, 397 F.Supp. 166, 172 (D.C.1974), aff’d sub nom. United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977) (upholding constitutionality of 18 U.S.C. § 1503, making it a crime to ‘[cjorruptly .. . endeavor to influence, intimidate, or impede any witness ....’); see United States v. Baker, 611 F.2d 964 (4th Cir. 1979); United States v. Stofsky, 527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976); United States v. Fayer, 523 F.2d 661 (2d Cir. 1975); The Florida Bar v. Lopez, 406 So.2d 1100, 1102 (Fla.1981) (recognizing § 918.14(1), (2) in attorney discipline context); see also, Trushin v. State, supra, at 384 So.2d 674, n. 17, and cases cited.

Finally, we reject the appellee’s fail-back position that a limiting construction of § 918.14(l)(b) which negates the overbreadth objection would render it invalid for another reason, that of vagueness. The test of determining if a criminal statute is impermissibly vague is whether it conveys a sufficiently definite warning to one of common understanding of the conduct it proscribes. Newman v. Carson, 280 So.2d 426 (Fla.1973). It has been specifically held that the requirement of a “corrupt intent,” which we find is a part of this statute, meets this standard, even when first amendment privileges are arguably implicated. Leader v. Sandstrom, supra; Trushin v. State, supra, at 384 So.2d 674; see United States v. Griffin, 589 F.2d 200, 206 (5th Cir. 1979); United States v. Howard, 569 F.2d 1331, 1336, n. 9 (5th Cir. 1978), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1979). Here, as in Garricarte, supra, at 384 So.2d 1263,

£j]ust as the elements of malice and intent prevent overbroad application of the statute, they lend sufficient clarity to provide adequate notice of the proscribed activity to persons of ordinary intelligence and understanding.

For these reasons, we conclude that § 918.14(l)(b) as construed is facially valid and therefore reverse the judgment below. The cause is remanded with directions to dismiss the petition for prohibition and permit the prosecution of the appellee in the county court to proceed in ordinary course.

Reversed.

      . The charging document, denominated as one “for tampering with a witness,” read as follows:
      JANET RENO, State Attorney of the Eleventh Judicial Circuit of Florida, prosecuting for the State of Florida, in the County of Dade, under oath, information makes that GEORGE F. KNOX, JR. beginning on or about the 19th day of March, 1980 and continuing through the 20th day of March, 1980, in the County and State aforesaid, knowing that an investigation into unlawful compensation or reward for official behavior was pending before, or was about to be instituted by the State Attorney for the Eleventh Judicial Circuit of Florida, a duly authorized prosecuting authority, or a grand jury of this State, the 1979 Fall Term Grand Jury of the Eleventh Judicial Circuit of Florida, did unlawfully endeavor or attempt to induce or otherwise cause David L. Rouen, a witness, to withhold testimony, information, documents or other things relating to alleged unauthorized compensation or reward for official behavior given by David L. Rouen to an employee of the School Board of Dade County, Superintendent of the Dade County Schools Johnny L. Jones, from the above-named investigating authorities, being in violation of Section 918.14, Florida Statutes.

      . In its entirety, the statute provides:
      918.14 Tampering with witnesses.—
      (1) It is unlawful for any person, knowing that a criminal trial, an official proceeding, or an investigation by a duly constituted prosecuting authority, a law enforcement agency, a grand jury or legislative committee, or the Judicial Qualifications Commission of this state is pending, or knowing that such is about to be instituted, to endeavor or attempt to induce or otherwise cause a witness to:
      (a) Testify or inform falsely; or
      (b) Withhold any testimony, information, document, or thing.
      (2) If any person violates the provisions of this section by the use of force, deception, threat, or offer of pecuniary benefit to induce any conduct described in subsection (1), the violation shall constitute a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In all other cases, a violation shall constitute a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
      (3)(a) It is unlawful for any person:
      1. To cause a witness to be placed in fear by force or threats of force;
      2. To make an assault upon any witness or informant; or
      3. To harm a witness by any unlawful act in retaliation against the said witness for anything lawfully done in the capacity of witness or informant.
      (b) Any person violating the provisions of this subsection shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Whether or not prohibition properly lies, which we do not decide, the state concedes, and we agree, that the facial invalidity of a statute the defendant is charged with violating may be considered in the circuit court on petition for habeas corpus. Sandstrom v. Leader, 370 So.2d 3 (Fla.1979). Consequently, we treat the judgment below as one granting that relief and proceed to a consideration of the merits.

      . Although, because only the facial validity of the statute is presently involved, the fact does not appear in the record, we know — and the parties assume that we know — that the appel-lee is an attorney. Perhaps for this reason, the “fifth amendment” example is the one most discussed in the presentations before us. But Knox’s status makes no difference. He may rely on “non-lawyer” hypothets, just as a non-lawyer might rely on the fifth amendment one. This is because, even if his own alleged conduct is not constitutionally protected, any person has standing to secure the invalidation of a statute which is constitutionally infirm for first amendment overbreadth as applied to anyone else. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); State v. Elder, 382 So.2d 687, 689, n.2 (Fla.1980); Miller v. State, 411 So.2d 299 (Fla. 3d DCA 1982) (Pearson, J., dissenting).

      . E.g., Tyson v. Lanier, 156 So.2d 833 (Fla.1963); Scarborough v. Newsome, 150 Fla. 220, 7 So.2d 321 (1942); 30 Fla.Jur. Statutes § 77 (1974). As we point out, infra, the narrowing construction we place on the statute, which preserves its validity, is fully in accord with what the legislature desired.

      . In reality, since the legislature must be presumed to intend to act constitutionally, the rule requiring a limiting constitutional interpretation if possible is merely an aspect of the doctrine that the legislative intent must prevail.

      . See n. 4, supra.

      . As in Trushin, 384 So.2d at 673, n. 10, this holding renders it unnecessary directly to decide whether Knox has standing to complain of the statute’s alleged first amendment vagueness, as he clearly does as to overbreadth. Note 4, supra. We do observe, however, that Knox’s primary challenge to § 918.14(l)(b) was not that it was vague, but that it was all too clear in its overbroad preclusion of conduct of which he is accused, even though it was both wholly innocent and protected by the first amendment. See Sawyer v. Sandstrom, supra. (This case is thus the flip-side of Miller v. State, supra, in which the defendants (unsuccessfully) claimed that a judicial construction of an ordinance which eliminated any claim that it was vague, rendered it overbroad.) In this context, it is indeed difficult to fathom how the appellee can be heard to argue that someone else may have been misled by the alleged vagueness of our present construction of the statute.
      In any event, perhaps anticipating a future claim of the defendant, we think it apparent that since our reading of the statute has severely limited its application, no claim that it cannot be retroactively applied to his actions could be accepted. See, State v. Thompson, 413 So.2d 757 (Fla.1982); compare, Cohen v. Katsaris, 530 F.Supp. 1092 (N.D.Fla.1982) (expanded judicial interpretation may not be applied to previous conduct which was not violative of terms of statute).

      .Knox invokes the familiar hobgoblins in support of both his overbreadth and vagueness claims that the statute has a “chilling” effect and acts as a “sword of Damocles” over those who may fear to exercise their first amendment rights because of the brooding omnipresence of the statute. He claims especially that attorneys may be wary about advising their clients to assert their rights against self-incrimination. See note 4, supra. But, as a practical matter, we are unaware that any Florida attorney thinks or believes that his professional conduct in this regard is in any way inhibited by the statute. The fact — and it is a fact — that this is clearly not the case demonstrates both that the statute is not common sensibly interpreted in its literal sense, and, applying the vagueness standard, that persons of common intelligence know that, properly construed, it does not proscribe any such words or conduct.

      . Of course, it may well be that issues as to the meaning of Sec. 918.14(l)(b) in its application to a particular situation remain to be resolved. That such resolution must take place in the course of future litigation by judicial decision-making does not, however, render an otherwise valid statute unconstitutionally vague. Knight & Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965), cert., denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966); see, People v. Kahn, 19 Cal.App.2d 758, 60 P.2d 596 (1936); Manzo v. City of Plainfield, 59 N.J. 30, 279 A.2d 706 (1971).


text:
    Edward DILLON, Appellant, v. MACHINERY WHOLESALERS CORP., a Florida corporation, Appellee.
    No. 82-116.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Rehearing Denied June 22, 1982.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Rodger Traynor, Jr., Miami, for appellant.
    Bailey & Dawes and Jesse C. Jones, Miami, for appellee.
    Before HUBBART, C. j' DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The trial court’s order under review refusing to set aside a default and default judgment in the amount of $113,036.54 entered against Dillon, when examined in light of the rule that any reasonable doubt should be resolved in favor of allowing the cause to be heard on the merits, see, e.g., North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962), must be reversed as the record before us reveals that Dillon’s neglect in responding to the complaint was excusable, see Venusa Export & Import, Inc. v. Gavico Alamo Aircraft Sales, Inc., 361 So.2d 820 (Fla. 4th DCA 1978); see also Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972), and his proposed defenses to the complaint were indisputably meritorious. Our holding moots Dillon’s equally persuasive contention that notwithstanding the entry of the default, he was entitled to a trial on the issue of damages where the damages sought were clearly an unliquidated amount. See, e.g., Tallman Pools of Georgia, Inc. v. Wood, 399 So.2d 112 (Fla. 1st DCA 1981); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 4th DCA 1980).

Reversed and remanded with directions to vacate the default and default judgment and for further proceedings.


author: DAUKSCH, Chief Judge.

text:
    Helene POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 81-854.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    Rehearing Denied June 10, 1982.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, and Leonard R. Ross, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction for murder in the first degree.

The first question on appeal is whether the court erred in refusing to direct a verdict and enter a judgment for the appellant. It is appellant’s allegation that the evidence was legally insufficient to support the guilty verdict. After having closely examined the record we find there is sufficient legal evidence to support the verdict. Tibbs v. State, 397 So.2d 1120 (Fla.1981).

Two other questions for us to consider concern the manner in which the trial judge responded to two questions posed to the court by the jury during their deliberations. Those alleged errors were not preserved on the record for our review. In the first instance, appellant’s counsel agreed to the procedure and in the second instance appellant did not object. See Castor v. State, 365 So.2d 701 (Fla.1978).

The final question raised on appeal concerns a denial of a motion for new trial. A juror who voted to convict appellant and who confirmed her verdict in court after it was announced, later appeared to say she did not really mean to vote to convict. She said she had felt intimidated by the other jurors during the deliberations because they had prompted her to hurry up, saying also that there was no sense in her causing a hung jury. She also said she was impelled to her verdict because several jurors had complained about the lateness of the hour since they had been deliberating from noon until nine o’clock. She said she would not have voted to convict had the circumstances been different and she reluctantly confirmed her verdict in open court because “Maybe I thought I might be laughed at or they would want a long explanation as to why. I really didn’t know how to explain my feeling. Just a lot of mixed feelings and not sure at that time of what to do about them.”

The rule announced by the Supreme Court of Florida concerning a juror’s renunciation of her verdict is:

That affidavits of jurors may be received for the purpose of voiding a verdict, to show any matter occurring during the trial or in the jury room, which does not essentially inher in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, or game of chance or other artifice or improper manner; but that such affidavit to avoid the verdict may not be received to show any manner which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the Court; the statements of the witnesses or the pleadings in the case, that he was unduly influenced by the statements or otherwise of his fellow-jurors, or mistaken in his calculations or judgment, or other manner resting alone in the juror’s breast.
Marks v. State Road Department, 69 So.2d 771, 774-75 (Fla.1954).

See also State v. Ramirez, 73 So.2d 218 (Fla.1954); Crapps v. Murchek, 330 So.2d 173 (Fla. 4th DCA 1976).

Upon a review of the juror’s testimony and a consideration of the rule relating to these matters, we cannot disagree with the decision of the trial judge to deny the new trial.

AFFIRMED.

SHARP and COWART, JJ., concur.