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

text:
    Stuart J. PAGE, Appellant, v. Dean MATTHEWS, Appellee.
    No. 79-180.
    District Court of Appeal of Florida, Fifth District.
    July 9, 1980.
    Rehearing Denied Aug. 21, 1980.

      Martin R. Satava and John W. Rodgers, Orlando, for appellant.
    Sam E. Murrell and Fred Langford, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, Stuart J. Page, appeals from a final judgment awarding appellee, Dean Matthews, $8,064.00 in damages for the conversion of a 1965 Great Dane trailer.

The question presented by this appeal is whether appellee’s recovery is limited to the value of his interest or right in the property-

Page, a truck broker, sold a trailer to Matthews under a conditional sales contract. Under its terms, Matthews would pay $6,400.00: $500.00 down with the balance in minimum payments of $400.00 per month.

Most payments were made in the form of deductions from freight charges due Matthews from Page. Page considered Matthews in default because no payments or credits were made in March or April of 1975 and Page then repossessed the trailer. Matthews sued for conversion and a jury verdict was returned in his favor. At trial, Matthews contended his total payments on the vehicle equaled $2,808.88. Upon oral argument, Page conceded that this figure was correct.

The jury entered judgment for $8,064.00 in damages which included $6,400.00 as the value of the trailer and $1,664.00 in interest. Page contends that the court erred in refusing to instruct the jury that Matthews’ recovery, as that of a conditional vendee, was limited to the value of his interest in the trailer.

We agree and reverse.

In Florida, an action for conversion is regarded as a possessory action and the plaintiff must have a present or immediate right of possession of the property in question. Allen v. Universal C.I.T. Credit Corp., 133 So.2d 442 (Fla.1st DCA 1961). Questions of ownership or title are not crucial to the bringing of an action for conversion. See Porco v. Love, 340 So.2d 1245 (Fla.3d DCA 1977). Hence, even one who is a conditional vendee is entitled to bring suit for wrongful conversion. See Fletcher v. Dees, 101 Fla. 402, 134 So. 234 (1931).

The general rule as enunciated in Lilly v. Bronson, 129 Fla. 675, 177 So. 218 (1937), is that damages for conversion are limited to the reasonable value of the property when converted. Damages are based on the fair market value of the property at the time of the conversion plus legal interest to the date of the verdict. Gillette v. Stapleton, 336 So.2d 1226 (Fla.2d DCA 1976); Pettigrew v. W & H Development Corp., 122 So.2d 813 (Fla.2d DCA 1960). It is also well settled that one who has a special interest in personal property can only recover in a conversion action the value of his interest in the property. Fletcher v. Dees at 235. Page maintains that Fletcher is dispositive of the issue in the instant case and limits Matthews to recovery of his special interest ($2,808.88) since here, as in Fletcher, the plaintiff has an equitable interest in the converted property. Matthews contends that Fletcher is limited to situations wherein the plaintiff has a lien interest in the converted property-

In Fletcher, Dees and Fletcher had entered into a written contract whereby Dees was to cut timber located on Fletcher’s land over an eighteen-month period. After two months, Fletcher sought to end the contract and removed a large amount of lumber which had been cut and stacked on his property, converting some to his own use. Dees sued for conversion. The court declared:

[O]ne who has a special, as well as a general interest in personal property can maintain an action for conversion of same; also . . . one who has a special interest can only recover the value of his special interest in the property. It appears that plaintiff at least had a right to possession until the lumber should be shipped, and therefore had an implied lien until disposed of according to the contract. It has been held that a lienholder with possession or right of possession may maintain an action for conversion of such property.

Id. at 234.

Fletcher appears to be a manifestation of' a broader principle which applies in other jurisdictions when a plaintiff has a qualified right or interest in the property which' is the subject of the conversion action. This principle is enunciated in 89 C.J.S. Trover and Conversion § 164 (1955):

A plaintiff having only a special or qualified right or interest may recover the full value of the converted property as against a stranger; but, as against one having an interest or right in the property, recovery is limited to the value of the plaintiff’s interest or right.

The Arkansas Supreme Court applied this rule in Barham v. Standridge, 148 S.W.2d 648 (Ark.1941), which is somewhat similar to the instant case. In Barham a dealer sold plaintiff an automobile on an installment arrangement and passage of title was delayed until full payment of the purchase price. Plaintiff failed to promptly submit her payments but the dealer ostensibly assented to an extension of time. While the car was at the dealership for repairs, the dealer sold it at a private sale and applied the proceeds to payment of the balance of the purchase price. Plaintiff sued for unlawful conversion and an issue arose as to the proper measure of damages. The court held that the proper measure could be reached by having the jury fix the value of the car at the time of conversion and credit to that amount the balance of the purchase price due, the verdict being for the difference. The court quoted the following rule with approval:

The rule of damages applicable to an unlawful conversion of personal property is that, if the defendant has an equitable interest in the property, recovery against him is limited to the actual net amount of the plaintiff’s interest, although the possession is wrongfully assumed or retained.

In the instant case, testimony at trial fixed the value of the trailer at $6,400.00. Under Barham and the other authorities cited above, the balance of the purchase price due ($3,591.12) would have to be deducted from the value of the trailer which gives the actual amount of appellee’s interest $2,808.88. Such an award is consistent with the general rule of damages that an award should be equal to and precisely commensurate with the injury sustained. Hanna v. Martin, 49 So.2d 585 (Fla.1950).

We therefore reverse and remand for entry of judgment for $2,808.88 together with interest from the date of conversion.

REVERSED and REMANDED.

COBB, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . See also, 18 Am.Jur.2d Conversion § 108 (1965), wherein it is stated:
      In an action for a conversion committed by an owner of an interest in the property, or by one acting in privity with him, the plaintiff is not entitled to recover the full value of the property; the amount of recovery in such case is limited by the value of his interest in the property, as well as by the value of the property converted.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. David Lance BRIDER, Appellee.
    No. 79-2335.
    District Court of Appeal of Florida, Second District.
    July 18, 1980.
    Rehearing Denied Aug. 21, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Raymond 0. Gross of Gross & Doherty, P. A., Clearwater, for appellee.
   GRIMES, Judge.

The state appeals from an order dismissing an information which charged appellee with possession of in excess of five grams of cannabis with intent to sell or deliver.

In granting the motion to dismiss, the court considered the following pertinent facts. The Pinellas County Sheriff’s Department had obtained possession of a quantity of marijuana in a prior case. Through contacts with a confidential informant, the department reached agreement with a Mr. Hamilton for Hamilton to pay a certain price for the marijuana. Hamilton in turn contacted appellee and offered to sell him the marijuana. Appellee accepted the offer on behalf of two other individuals from whom he obtained $13,750, of which he gave $13,000 to Hamilton.

After Hamilton received the $13,000, he left appellee’s company to obtain the marijuana and returned some time later in a station wagon accompanied by an undercover officer from the sheriff’s department. The marijuana, which was sealed in plastic bags, was in the rear of the vehicle. Appel-lee got into the station wagon and directed Hamilton to drive to a secluded location where he and the officer each unloaded one of the bags. At this point, the two individuals to whom appellee had promised to deliver the marijuana arrived. Simultaneously, the officer, with the help of others who had converged on the scene, arrested appel-lee and Hamilton.

The premise upon which the court dismissed the information was that appellee never had possession of the marijuana. The record does not support this conclusion. Possession is defined as having personal charge or exercising the right of ownership, management or control over the article in question. To constitute possession, there need not be an actual handling of the article nor is it necessary that it be otherwise actually upon the person of the accused. There must only be a conscious and substantial possession by the accused as distinguished from a mere involuntary or superficial possession. State v. Eckroth, 238 So.2d 75 (Fla.1970). Here, a jury could reasonably conclude that appellee had possession of the marijuana because he exercised control if not ownership of it by directing where it should be delivered and by helping to unload it at the appointed location. The fact that the undercover officer never intended to let appellee exercise ultimate control of the marijuana to the extent of removing it from the scene did not make appellee any less the possessor. The same argument could be made with respect to any controlled transaction with undercover police officers.

The more difficult question is whether these facts constituted entrapment as a matter of law. Ordinarily, entrapment is a jury question. State v. Liptak, 277 So.2d 19 (Fla.1973). Nevertheless, the Florida courts have recognized that entrapment can exist as a matter of law. Smith v. State, 320 So.2d 420 (Fla. 2d DCA 1975); Spencer v. State, 263 So.2d 282 (Fla. 1st DCA 1972). Appellee’s argument for entrapment in the trial court and here is that the state supplied him with the very contraband which it charged him with illegally possessing. If he is right, we would be obliged to affirm the order of dismissal even if the court did enter it for the wrong reason.

Appellee cites several cases for the proposition that entrapment exists as a matter of law where the government supplies the contraband with which the accused is later charged with illegally handling. E. g., United States v. Bueno, 447 F.2d 903 (5th Cir. 1971); Messelt v. State, 351 So.2d 630 (Ala.Cr.App.1977); State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972); People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765 (1961). In the Strong case, which other courts have often cited, the Supreme Court of Illinois reversed a conviction of selling, dispensing and possessing heroin and said:

[T]he undisputed testimony of defendant strongly tends to prove that defendant was supplied with the narcotics by Reynolds, the government employee. While we are sympathetic to the problems of enforcement agencies in controlling the narcotics traffic, and their use of informers to that end, we cannot condone the action of one acting for the government in supplying the very narcotics that gave rise to the alleged offense. We know of no conviction for sale of narcotics that has been sustained when the narcotics sold were supplied by an agent of the government. This is more than mere inducement. In reality the government is supplying the sin qua non of the offense.

172 N.E.2d at 768.

Likewise, in United States v. Bueno the court of appeals held that entrapment was shown as a matter of law when an informer furnished narcotics to the defendant for sale to a government agent. The court reasoned that the defendant would not have had the heroin to sell had it not been furnished to him by the informer.

In neither of the cases discussed above did the courts suggest that the defendant had no predisposition to commit the crime, which is the circumstance ordinarily essential to the defense of entrapment. See State v. Dickinson, 370 So.2d 762 (Fla.1979). The judge in United States v. Mahoney, 355 F.Supp. 418 (E.D.La.1973), addressed the anomaly by pointing out that despite their references to entrapment the courts which dismiss charges under these circumstances generally do so on a theory of governmental misconduct.

If the foregoing authorities represented current law, the governmental involvement in the case at hand would suggest that appellee’s argument has merit. However, recent developments indicate that we should proceed cautiously. The Illinois Supreme Court has now revisited People v. Strong. In reversing a holding of entrapment as a matter of law, the court in People v. Cross, 77 Ill.2d 396, 33 Ill.Dec. 285, 396 N.E.2d 812 (1979), said:

In our reconsideration of the subject and in light of the ever-growing drug problem, we are not so sure that the court should be so critical, as it was in Strong, of governmental action in infiltrating drug rings, and we do not believe that the courts should foreclose the possibility that a conviction of a predisposed individual could be sustained even though the government did furnish the controlled substance. The offense in question here is the unlawful delivery of a controlled substance and, although the government may have supplied the substance, the critical inquiry is whether the “criminal purpose” of selling these substances originated with the defendants (Ill.Rev.Stat. 1975, ch. 38, par. 7-12). By supplying an individual with controlled substances, the government is merely facilitating or providing the opportunity for the individual to make an unlawful delivery. This is not entrapment under our entrapment statute (Ill.Rev.Stat.1975, ch. 38, par. 7— 12). Any contrary statement in Strong, decided before enactment of the statute, should no longer be followed.

33 Ill.Dec. at 288, 396 N.E.2d at 815-16.

Even more significant is the decision of the United States Supreme Court in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). There, the defendant was convicted for selling heroin to undercover federal agents pursuant to arrangements made by a government informant. The defendant took the position that he had obtained the heroin from the informant. The court refused to give the defendant’s requested instruction that if the jury found that the narcotics had been supplied to him by the informant, it must acquit him regardless of his predisposition to commit the offense charged. The court of appeals affirmed, and, on certiorari, the United States Supreme Court also upheld the conviction. The Court’s lead opinion, which reflected the views of three justices, pointed out that the defense of entrapment focuses upon the intent or predisposition of the defendant to commit a crime and held that in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Court had ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case where the government established the predisposition of the defendant to commit the crime. In Russell, the Court had sustained a conviction for the unlawful manufacture and sale of methamphetamine even though the government had furnished the defendant with one of the essential ingredients to make the methamphetamine.

Two other justices who concurred in Hampton refused to go so far as to say that the concept of fundamental fairness inherent in the guarantee of due process would never prevent the conviction of a predisposed defendant regardless of the outra-geousness of police behavior. They referred, for example, to a court of appeals decision which had held that it would be unthinkable to permit government agents to instigate robberies and beatings merely to gather evidence to convict other members of a gang of hoodlums. Nevertheless, they concurred in the conviction and despite their unwillingness to embrace an absolute rule, they concluded their opinion with the following footnote:

I emphasize that the cases, if any, in which proof of predisposition is not dis-positive will be rare. Police overinvolvement in the crime would have to reach a demonstrable level of outrageousness before it could bar conviction. This would be especially difficult to show with respect to contraband offenses, which are so difficult to detect in the absence of undercover Government involvement. One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding narcotics traffic, cf. United States v. Russell, supra [411 U.S.], at 432, [93 S.Ct. at 1643] 36 L.Ed.2d 366 [,373] L. Tiffany, D. McIntyre, & D. Rotenberg, Detection of Crime 263-264 (1967), which is one of the major contributing causes of escalating crime in our cities. See President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 221-222 (1967). Enforcement officials therefore must be allowed flexibility adequate to counter effectively such criminal activity.

425 U.S. at 495 n.7, 96 S.Ct. at 1653 n.7.

The Fifth Circuit Court of Appeals has acknowledged that Hampton effectively overruled its decision in Bueno. United States v. Benavidez, 558 F.2d 308 (5th Cir.1977). That court now seems to follow the principles expressed by the two concurring justices in Hampton. E. g., United States v. Hansen, 569 F.2d 406 (5th Cir. 1978); United States v. Puma, 548 F.2d 508 (5th Cir. 1977). Our supreme court may now have adopted the rationale of the lead opinion in Hampton when it recently stated, “We reject the inference raised by the trial court’s holding that a high degree of law enforcement participation constitutes a defense to a criminal charge. That issue was squarely confronted in Russell and rejected; we agree with the United States Supreme Court’s conclusion.” State v. Dickinson, 370 So.2d at 763.

Proceeding on the premise that furnishing the contraband with which the defendant is later charged with handling, without more, does not constitute governmental misconduct, there is nothing in this record to indicate that the transaction in question was tainted by any governmental misconduct, much less the outrageous governmental misconduct which would be necessary to invoke the due process considerations discussed in the concurring opinion in Hampton. Moreover, the evidence before us would clearly support a conclusion that appellee had the predisposition to commit the crime with which he was charged. Therefore, there could be no entrapment as a matter of law. See Kimmons v. State, 322 So.2d 36 (Fla. 1st DCA 1975).

We reverse the order dismissing the information and remand the ease for further proceedings.

BOARDMAN, Acting C. J., and CAMPBELL, J., concur.


author: MOORE, Judge.

text:
    Alden C. ARONSON and Eleanor Aronson, Appellants, v. Richard KEATING d/b/a Keating Industries, Appellee.
    No. 79-673.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1980.
    Clarification Denied Sept. 4, 1980.
    Robert J. Hunt of Bond, Schoeneck & King, Fort Lauderdale, for appellants.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, and Robert L. Wunker of Grimditch, Bentz, Witte & Wunker, P.A., Pompano Beach, for appel-lee.
   MOORE, Judge.

This is an appeal by the defendants from a final summary judgment in favor of the lienor in an action to foreclose a mechanic’s lien. The appellants contend that the existence of genuine issues of material facts precluded the entry of summary judgment, and the court erred by entering judgment and refusing appellants leave to file an amended answer. We agree and reverse.

The appellants (Aronsons) entered into an American Institute of Architects Standard Form of Agreement Between Owner and Contractor with appellee (Richard Keating) whereby Keating was to build a residence on a cost plus basis. The Aronsons agreed to reimburse Keating for the cost of work and, in addition, pay him a contractor’s fee. The agreement further provided that the maximum cost to the Aronsons would not exceed $170,000 except for change orders agreed to by the parties.

On November 27, 1978, Keating filed a claim of lien, claiming that the residence was completed, that the last work was performed on September 14, 1978, and that there remained due on the original contract price the sum of $24,432.08. In pertinent part, the Aronsons’ answer and affirmative defenses alleged that the claim of lien was not timely filed and that they had already paid the full contract price.

Keating moved for summary judgment, attaching to his motion the affidavit of an employee who stated that he had performed carpentry work at the Aron-son residence on September 14, 1978. The Aronsons also moved for summary judgment and, alternatively, requested leave to file an amended answer. In a supporting affidavit Mr. Aronson asserted that a final certificate of occupancy was issued in July, 1978; that Keating’s employee last worked on their residence in mid-August, 1978 and the work was of a remedial nature to correct defects; and that Aronson had already paid almost $60,000 in excess of the contract price and no change orders had been authorized in accordance with the contract. Thus, the Aronsons contended that the claim of lien was not filed timely as required by Section 713.08(5), Florida Statutes (1977), and that they had fully paid the contract price.

Section 713.08(5) provides in pertinent part:

The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or material by the lienor . (emphasis added).

Keating filed his claim of lien on November 27. Thus, in order for that to be timely, his final furnishing of labor, services or materials would have to have been on or after August 29. Since Keating claims the final furnishing of labor, etc. was on September 14 and Aronson claims it was in mid-August, it is readily apparent that a genuine issue of material fact remains on the issue of the timeliness of the filing of the claim of lien. Although Keating argues on appeal that Aronson’s affidavit conflicts with his prior deposition testimony, we do not find any direct discrepancy between the two. This is a matter of credibility, not to be resolved on summary judgment.

We also note that an issue of fact remains regarding the nature of the final work performed. • The Aronsons contend that the work was done pursuant to a warranty provision of the contract which obligated Keating to correct defects in his work after final completion. They rely on Russell v. Danford, 139 So.2d 743 (Fla. 1st DCA 1962) in which the chancellor found that certain inconsequential work performed by the contractor after the date the contract was completed had been done solely for the purpose of correcting defects. Therefore, it could not qualify as a final furnishing of labor. The First District affirmed, noting that the issue was a factual one to be resolved by the chancellor.

Similarly, we find that this issue here is one to be resolved by the trier of fact. The test to be applied is whether the work was done in good faith, within a reasonable time, in pursuance of the terms of the contract, and whether it was necessary to a “finished job”. Sentry Trust Company of Baltimore v. Allison Realty Company, 141 So. 612 (Fla.1932). We point out, however, that an issue also appears to remain as to whether the warranty provision, relied on by the Aronsons, was incorporated into the standard form agreement executed by the parties.

In view of the numerous issues which remain pending in this case, we reverse the final summary judgment and remand for further proceedings. Appellants should be given an opportunity to amend their answer to the complaint.

REVERSED and REMANDED.

GLICKSTEIN, J., and JOHN J. UP-CHURCH, IV, Associate Judge, concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    DIVISION OF RETIREMENT, Appellant, v. Shannon E. PUTNAM and State Retirement Commission, Appellees.
    No. PP-375.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1980.
    Stephen S. Mathues and Kathleen Villa-corta, Tallahassee, for appellant.
    Michael Chielens, Jacksonville, for appel-lees.
   ROBERT P. SMITH, Jr., Judge.

The Division of Retirement appeals from a Retirement Commission order awarding in-line-of-duty disability benefits to a 61-year-old school teacher who suffered a stroke. Substantial competent evidence shows that Putnam’s hypertension was causally related to the extraordinary stress of his job as a teacher for eight years at the John E. Ford Career Center in Duval County, a school for students having a history of poor grades, truancy, and juvenile delinquency, and who were verbally and physically abusive to Putnam. We affirm the order of the Division of Retirement, recognizing as we do that Section 121.021(13), Florida Statutes (1979) embraces either an injury or an illness arising out of and in the actual performance of the duties of one’s employment.

The Division of Retirement agrees that Putnam is entirely prevented by a medically determinable physical impairment from rendering further useful service in his employment. His complete disability developed after a January 1977 classroom incident in which Putnam’s head was pushed against the wall and his right knee was injured by students who were resisting his efforts to escort them to the dean’s office. Following knee surgery, Putnam attempted to return to his classroom duties, using a cane or crutch, and he was further abused, verbally and physically, by students. Putnam’s emotional stress then increased until he left school one day dizzy and weak. He then suffered a stroke at home. Expert medical testimony confirms the causal relationship between the stroke and the extraordinary injury and tensions Putnam encountered at work.

The substantial causal relationship between Putnam’s job environment and activity and his illness is sufficient to qualify him for in-line-of-duty disability benefits. A compensably disabling illness, in contrast to injury, need not suddenly occur or manifest itself in the performance of employment duties. Contrast Walker v. Division of Retirement, 360 So.2d 1291 (Fla. 1st DCA 1978), cert. den., 368 So.2d 1375 (Fla.1979). And in contrast to the compensable injury occurring by “accident” in workers’ compensation parlance, a compensably disabling illness need not be precipitated by unusual strain or exertion not routine to the emT ployee’s accustomed work. Contrast Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962); Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340 (Fla.1978). Those limitations on compensable injuries in workers’ compensation cases are not incorporated in Section 121.021(13), governing in-line-of-duty disability benefits.

AFFIRMED.

BOOTH, J., and WOODIE A. LILES, Associate Judge, concur.


author: BASKIN, Judge.

text:
    Nathaniel TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-959, 77-1198.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and PEARSON, DANIEL, JJ.
   BASKIN, Judge.

In these consolidated appeals, Nathaniel Taylor seeks to overturn convictions and sentences for murder, false imprisonment, robbery, and conspiracy to commit robbery. Taylor also challenges the revocation of his former probationary status and the imposition of a life sentence for that crime.

In 1972, Taylor pled guilty to a charge of robbery and was placed on seven years probation, adjudication withheld. Two years later, defendant admitted he violated his probation. The court entered an adjudication of guilt and imposed a seven year prison sentence to be served by one year in prison followed by six years probation. Another two years elapsed and defendant was charged, with two other persons, with first degree murder, kidnapping, robbery, and conspiracy to commit robbery. These last charges stemmed from the criminal activity described below.

Taylor’s co-defendant, David Washington, appears to have directed the events that led to the death of Prank Meli. Washington and Defendant Taylor are step-brothers. They resided in a home owned by Taylor’s father. On the date in question, Washington arranged to meet Frank Meli to discuss an automobile Meli had offered for sale. Washington asked Defendant Taylor and another defendant, Mills, to be at the house when Washington later returned with Meli. Mills and Taylor agreed.

When Meli entered the house, he was tied up. Washington took his cash, jewelry, and the keys, title and registration to Meli’s car. Leaving the victim with Taylor and Mills, Washington sold Meli’s car, receiving a check for $2,600.

That evening, Washington telephoned the victim’s brother and demanded that $2,700 be left at a designated location. The defendants never picked up the money even though it was placed at the location. The victim’s brother contacted the Public Safety Department.

The following day, Washington cashed the check he had received for Meli’s car and gave both Taylor and Mills a portion of the money. Later that day, Taylor first saw, and later heard, Washington attack Meli with a knife. He then helped Washington bury Meli in the back yard.

The police investigation of the kidnapping led them to the house where Taylor and Washington lived. During their surveillance, the police saw Taylor leaving the home and asked him to come to the police station.

At the station, the officers obtained Taylor’s consent to search the house. Another officer then located Taylor’s father, the owner of the residence, who executed a “consent to search” form. While this conversation with the defendant’s father was taking place, another detective searched the premises and discovered numerous items of incriminating evidence.

Taylor was at the police station during the search. After Meli’s body was found, Taylor made incriminating statements to the police.

Prior to trial, Taylor moved to suppress both the physical evidence seized during the search of the house and the statements he made to the police. He argued that his consent to the search was insufficient. Taylor also claimed that his statements were involuntary and a result of physical coercion. The trial court allowed three witnesses, who were not named on the state’s witness list, to testify over objection at the hearing on the motion to suppress. At the conclusion of the hearing, the trial court denied the motion to suppress both the physical evidence and the incriminating statements, finding Taylor’s consent to search valid and his statements voluntary.

Ultimately, a jury returned verdicts finding defendant guilty as charged of first degree murder, robbery with a deadly weapon, and conspiracy to commit robbery, and guilty of false imprisonment as a lesser included offense of the kidnapping charge. He was sentenced to life imprisonment for the first degree murder upon the jury’s recommendation, five years for false imprisonment, life for robbery, and fifteen years for conspiracy to commit robbery, each term to be served at the expiration of the last. In addition, the trial court utilized the trial testimony as the basis for finding the defendant in violation of his probation for the 1972 robbery. Taylor’s probation was revoked, and the trial court imposed a sentence of life imprisonment.

Defendant asks this court to reverse his convictions and sentences on several grounds. After considering defendant’s contentions and the applicable law, we find merit in certain of his arguments but reject the remainder of his claims for reasons we will discuss.

Taylor first argues that the evidence obtained during the- warrantless search of the house should have been suppressed because he could not consent to a search of property he did not own and because a child cannot consent to a search of the property of a parent. There is no merit in either argument. Consent may be given by the owner or rightful possessor of property when the evidence seized is to be used against him, rather than against another person. Silva v. State, 344 So.2d 559 (Fla.1977). In advancing the second argument, Taylor relies on Padron v. State, 328 So.2d 216 (Fla. 4th DCA 1976). Padrón is not applicable to this case. Taylor was twenty-one years old and, in the legal sense, consented to the search of his own property, not that of his father.

Defendant’s second point on appeal claims error in the denial of his -motion to exclude the testimony of three prosecution witnesses at the hearing on the motion to suppress statements because, although Taylor had invoked reciprocal discovery, the' state had failed to furnish him with the names of the witnesses. Taylor contends that the trial court failed to conduct a full inquiry into the matter in contravention of the guidelines established by Richardson v. State, 246 So.2d 771 (Fla.1971).

In denying the motion to exclude the witnesses, the court impliedly found that defendant had not been prejudiced by the state’s failure to furnish the witnesses’ names. Because the testimony was cumulative and corroborative of the testimony of listed witnesses, Lucas v. State, 376 So.2d 1149 (Fla.1979), we find no error.

Permitting the state to call the unlisted witnesses could not adversely affect defendant’s ability to prepare for trial since these proceedings occurred well in advance of trial. The voluntary nature of the statements would be presented again for the jury’s determination, at trial. These circumstances establishing no prejudice to the defendant affirmatively appear in the record. Richardson v. State, supra.

After the jury returned its verdicts, the court imposed sentence upon Defendant Taylor and also revoked the term of probation, “having determined from the evidence in this case that there has been a violation of the terms of that probation.” Defendant contends that this procedure deprived him of proper notice and the requisite hearing prior to the revocation of his probation. He relies on State v. Spratling, 336 So.2d 361 (Fla.1976), for the proposition that, in the absence of a stipulation or consent, the criminal trial should not be construed as a probation revocation hearing.

We find no error in the use of the trial testimony at the probation violation hearing under the circumstances of this case. The defendant had notice of the charges by virtue of the affidavit of violation filed five months prior to the trial predicated upon the same charges for which the defendant was tried.

The affidavit and notice furnished to defendant gave him ample opportunity to prepare his defense. He was also afforded a full hearing with counsel at trial.

In the final analysis, we cannot see what purpose would be served in this case by a reversal of the probation revocation for a further proceeding at which time appellant’s conviction could be introduced as the basis for revoking his probation. We find that the appellant was afforded due process by the procedure which was followed.

Franklin v. State, 356 So.2d 1352, 1353 (Fla.2d DCA 1978).

When the trial court revoked defendant’s probation, it imposed a sentence of life imprisonment. Taylor now argues that the life sentence constitutes double jeopardy because he had previously been sentenced to a prison term for that offense. We disagree. Upon revocation of probation, the court may impose any sentence which could originally have been imposed. State v. Jones, 327 So.2d 18 (Fla.1976).

The next issue presented for this court’s consideration is whether the fifteen year sentence for conspiracy to commit robbery is excessive.

Since the robbery which is the subject of the conspiracy was not alleged to have involved the use of a firearm or deadly weapon, the sentence of fifteen years imprisonment was excessive. Chapola v. State, 347 So.2d 762 (Fla. 1st DCA 1977). Robbery without the use of a firearm or a deadly weapon is a second degree felony. § 812.13(2)(c), Fla.Stat. (1977). A conspiracy to commit a felony of the second degree is a third degree felony, § 777.04(4)(c), Fla. Stat. (1977), punishable by a maximum of five years imprisonment. § 775.082(3)(d), Fla. Stat. (1977).

We, therefore, reduce defendant’s sentence for conspiracy to commit robbery to five years, the maximum sentence allowed by law.

The last point raised by the defendant is whether his convictions for both first degree murder and robbery, for which defendant was convicted in Count III, are constitutionally permissible when the same robbery was charged as the underlying felony in the first degree murder charge. Because evidence of premeditation was insufficient to support a conviction of premeditated first degree murder, the defendant could have been convicted of first degree murder only under a felony murder theory. Since the jury found defendant guilty of the lesser offense of false imprisonment on the kidnapping charge, the only felony which could support a first degree felony murder verdict is the robbery charged in Court III. An accused may not be convicted of both felony murder and the underlying felony on which that murder conviction was based. Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); State v. Wright, 379 So.2d 96 (Fla.1979); Mahaun v. State, 377 So.2d 1158 (Fla.1979); and State v. Finder, 375 So.2d 836 (Fla.1979). We therefore reverse the conviction for robbery.

The state sought to prove the charge of felony murder by proving that the victim’s death occurred during the commission of the felony of robbery. Defendant now argues that the trial court failed to instruct the jury sufficiently on the elements of the underlying felony of robbery. We disagree.

The trial court charged the jury pursuant to standard jury instructions for robbery stating:

It is the crime of robbery for any person to take money or other property of any value, whatsoever, from the person or custody of another by force, violence, or assault, or putting in fear.
The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are that: [1] the defendant did take from the person or immediate custody of Frank Vincent Meli the money or property described in the Indictment, [2] the property was taken against the will of Frank Vincent Meli and [3] the taking was by means of force, violence, or assault or by putting Frank Vincent Meli in fear.

Defendant contends that this instruction is deficient because it does not inform the jury that intent to permanently deprive another of property is a requisite element of the crime of robbery. Bell v. State (Fla.1980) (Case No. 53,440, opinion filed March 6,1980).

The elements of the underlying felony, however, need not be explained with the same particularity that would be required if that offense were the primary crime charged. The true test is whether the underlying felony has been defined sufficiently to insure the defendant a fair trial. State v. Jones, 377 So.2d 1163 (Fla.1979); Vasil v. State, 374 So.2d 465 (Fla.1979); and Robles v. State, 188 So.2d 789 (Fla.1966). The instruction given to the jury in this case adequately described the offense of robbery for purposes of insuring the defendant a fair trial.

For the foregoing reasons, we reverse defendant’s conviction for robbery and correct his sentence for conspiracy to commit robbery. In all other respects, the judgments and sentences are affirmed.

      . Defendant Washington pled guilty and was sentenced to death. His sentence was upheld by the supreme court. Washington v. State, 362 So.2d 658 (Fla.1978).


author: BARKDULL, Judge.

text:
    SOUTH CAROLINA INSURANCE COMPANY, Appellant, v. Ramiro GONZALEZ and Gertrude Gonzalez, Appellees.
    No. 79-2150.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.

      Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Genden & Bach, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   BARKDULL, Judge.

This matter arises out of an arbitration proceeding pursuant to the provisions in an insurance policy issued to the appellees by the appellant.

The appellees were involved in an automobile accident. They demanded arbitration pursuant to the terms of their policy with the appellant. Thereafter, an arbitration proceeding was held and the arbitrators rendered an award as follows:

The American Arbitration Association has no jurisdiction because two of the vehicles were insured and there is a question of liability.
No determination was made as to the liability or damages.

Subsequently, pursuant to the provisions of Section 682.13(l)(c), Florida Statutes (1979), the appellees filed an action as plaintiffs seeking to set aside the award. The appellant then filed an answer and the trial court entered a judgment on the pleadings in words as follow:

THIS CAUSE having come on to be heard on the Plaintiffs’ Motion for Judgment on the Pleadings, and the Court having heard the arguments of Counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED,
That a Final Judgment be and the same is hereby entered for the Plaintiffs and the arbitration award, which is the subject of this cause, is hereby vacated and the Plaintiffs shall be entitled to re-arbitrate their claim in accordance with the insurance contract entered into between the Plaintiffs and Defendant, and Plaintiffs are given leave to re-file their claim with the American Arbitration Association. The Court reserves jurisdiction for assessment of attorney’s fees and costs against the Defendant.

This appeal then ensued, the appellant contending that the trial court erred in the judgment on the pleadings. The appellees respond that this court is without jurisdiction to consider the final judgment because of the holding in the Carner v. Freedman decision, heretofore rendered by this court and reported in 175 So.2d 70 (Fla.3d DCA 1965). The effect of the trial court’s order in part being to set aside the award and order a re-arbitration, we find we have jurisdiction notwithstanding the provisions of the statute and notwithstanding the earlier opinion of this court in earner v. Freedman, supra. For that: the Florida Constitution provides that the District Courts of Appeal shall have jurisdiction over final judgments rendered in the Circuit Court. Article V, Section 4(b)(1) (1973). A final judgment is defined as that order which terminates all judicial labor in the trial court or lower tribunal. Alderman v. Puritan Dairy, 145 Fla. 604, 195 So. 416 (1940); Mills v. Beims, 132 So.2d 228 (Fla.2d DCA 1961); Chipola Nurseries, Inc. v. Division of Administration, Department of Transportation, 335 So.2d 617 (Fla.1st DCA 1976). The final judgment on the pleadings in this cause terminated that instant action in the lower tribunal and fixed the liability for attorney’s fees pursuant to Section 627.428, Florida Statutes (1979), and case law. Whitfield v. Century Insurance Company of New York, 281 So.2d 569 (Fla.3d DCA 1973); Nigaglioni v. Century Insurance Company of New York, 281 So.2d 570 (Fla.3d DCA 1973). Any further complaint directed to the re-arbitration would have to be initiated by a new proceeding in the circuit court.

Therefore, finding that the judgment on the pleadings being final in nature, we hold that, same is the proper subject of review by appeal in this court.

Turning to the merits of the cause, we find that the arbitrators failed to discharge their responsibility under the order of arbitration and, therefore, we affirm the action of the trial judge in ordering the matter returned to arbitration; but we modify same to direct that the matter be returned to the same arbitrators with directions to render a proper award either upon the record as theretofore made before them or upon the taking of such additional testimony and evidence as they may deem appropriate.

Therefore, the final judgment under review be and the same is hereby affirmed as modified.

      . The Legislature is without authority by statute to alter the Constitutional right of this court to review final judgments rendered by trial courts within its geographical jurisdiction.


author: HURLEY, Judge.

text:
    Sheri Nicole BENTON, a minor, by her next friend and mother, Jo Ann G. Benton, and Jo Ann G. Benton, Individually, Appellants, v. The SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellee.
    No. 78-2642.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1980.

      Carol M. Anderson of Anderson & Anderson, P. A., Fort Lauderdale, and Karen Ku-gell, Plantation, for appellants.
    W. M. O’Bryan and E. Bruce Johnson of Fleming, O’Bryan & Fleming, Fort Lauder-dale, for appellee.
   HURLEY, Judge.

This appeal arises from a tort action based upon an allegation of negligent supervision in the schoolroom. The trial court deferred ruling on defendant/school board’s motion for directed verdict and permitted the case to go to the jury which rendered a verdict for plaintiffs/appellants. The court then granted defendant’s motion and set the verdict aside. We affirm.

The facts are straightforward and simple. They involve a kindergarten student whose fingertip was caught in a school doorjamb. The accident occurred at the Broward Estates Elementary School in which two classrooms are connected by a common hallway. Off the hallway is a door to the girls’ bathroom and a door to the boys’ bathroom. Since the facilities are accessible to students from both classrooms, the school promulgated rules regulating their use. Students are required to raise their hand and obtain permission before leaving the classroom. Only one child at a time may leave the classroom and students are instructed that if the restroom door is closed, they are to knock on the door before entering in order to determine whether the room is occupied. Although this system is not ideal in that it permitted two five-year olds to be alone in the vicinity of the bathroom, it had operated without incident until the accident giving rise to this cause of action and thus no need to institute a change was apparent.

Sheri Benton enrolled in the kindergarten class at Broward Estates Elementary School in August of 1975. She followed the above rules for approximately seven months until March 29, 1976, when, after receiving permission to leave the room, she approached the door to the girls bathroom. What happened next is described by the testimony of Hazel Hankerson, the school principal, who received the identical story from both Sheri and Sarah, a child from the next classroom:

That she [Sarah] was sitting on the stool, that Sheri came and pushed the door open, she tried to close it and Sheri’s finger was caught. (TR 75)

In addition to Mrs. Hankerson, three people testified as to the incident: Sheri, Sarah and Sheri’s substitute teacher, Judith Dodge. Sarah had virtually no recollection of the event which had occurred two and one-half years prior to the trial, and Sheri’s recollection was only sketchy. She testified that:

She [Sarah] had stopped in the hallway and she shut the door.
I was standing right here. I stuck my finger — I do like this and she shut the door. (TR 40)

Mrs. Dodge indicated that she first realized another child had been using the bathroom

When Sheri’s scream came back through the door and said that another girl slammed the — my finger in the door. (TR 142)

As a result of this occurrence, the top of Sheri’s left index finger was severed from her hand. Her mother, on behalf of Sheri and herself, instituted suit against the School Board of Broward County.

Before discussing plaintiffs’ theory of recovery, it is important to note what this case is not about. It does not involve an allegation of defective design or installation of the bathroom door. Plaintiffs do not contend that the School Board was negligent in maintaining bathroom facilities outside the kindergarten classroom or in failing to promulgate appropriate rules for their use. Rather, plaintiffs’ entire case is predicated upon an allegation of negligent supervision. This theory was succinctly put by plaintiffs’ counsel: “. . this cause of action arose as a result of conduct of Mrs. Dodge’s [the substitute teacher’s] lack of supervision. . .” This allegation was specifically pled in greater detail in the following paragraphs from plaintiffs’ complaint:

That on or about March 29, 1976, at or about 12:30 in the afternoon, at Broward Estates Elementary School, Broward County, Florida, where the Plaintiff, Sheri Nicole Benton, a minor, was duly enrolled as a student in a kindergarten class in session at that said school; that the said minor, while in the classroom with other school children, was in the area of the bathroom door, which was being opened and closed in a “tug-of-war” fashion by the minor children in the classroom, including the Plaintiff, Sheri Nicole Benton; that at said time and place, the bathroom door slammed shut on the minor Plaintiff’s left hand, causing a traumatic amputation of the left index finger, as well as other serious bodily injuries.
At said time and place, a substitute teacher, an agent, servant and/or employee of the defendant The School Board of Broward County, was in the classroom, had knowledge of the student’s “tug-of-way” activities and had a duty to guard against allowing the children to engage in any activities, including the “tug-of-war” activities, which activity involved an unreasonable risk of serious harm to the children, including, Sheri Nicole Benton, a minor, who because of her age, was not likely to realize the risk involved in playing “tug-of-war” with a door; and that The School Board of Broward County knew or had reason to know of the risk to such children, including the Plaintiff Sheri Nicole Benton, a minor and that the defendant, The School Board of Broward County was negligent in allowing such activities to continue in the classroom.

Plaintiffs’ fundamental problem is that they were unable to prove any of the above allegations. The charge that a “tug-of-war” took place, for example, is an intriguing idea but it was not borne out by the evidence. If anything, the record demonstrates that this was a notion conceived and nurtured in the mind of plaintiffs’ counsel. The following exchange during Mrs. Han-kerson’s testimony is the sole evidentiary reference to a “tug-of-war”:

Q. Did you learn that there was a tug-of-war between the children?
A. If you want to call it that; one sitting on the stool, the other one trying to get in, if that was a tug-of-war. (TR 75)

All the evidence from the participants and the on-the-scene witnesses indicates that this was an immediate, instantaneous event to which the teacher responded the moment she heard Sheri cry out.

If the evidence fails to support plaintiffs’ contentions, how then could the teacher be found negligent? What action or inaction on her part was improper? The facts suggest but one possibility. Apparently the jury believed it was within its province to find that the teacher had an affirmative duty to leave the classroom and accompany the child to the bathroom door. We cannot agree. Not only would this be impractical and unrealistic, but it would impose a duty not founded in law.

An analysis of school injury cases begins with the recognition that teachers and school boards are neither insurers of the students’ safety, nor are they strictly liable for any injuries which may occur to them. Lauricella v. Board of Education, 52 A.D.2d 710, 381 N.Y.S.2d 566 (4th Dept. 1976); Annot., 36 A.L.R.3d 330 (1971). Teachers and school boards do, however, have an obligation to supervise the activity of students when the school is entrusted with their care. Barrera v. Dade County School Board, 366 So.2d 531 (Fla.3d DCA 1979); McLeod v. Grant County School Dist. No. 128, 42 Wash.2d 316, 255 P.2d 360 (1953); Annot., 38 A.L.R. 3d 843 (1971).

In those instances where lack or insufficiency of supervision is charged, the teacher’s duty of care to the pupil is either described as reasonable, prudent, and ordinary care, or as that care which a person of ordinary prudence, charged with the duties involved, would exercise under the same circumstances. Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701 (1974); Swartley v. Seattle School Dist. No. 1, 70 Wash.2d 17, 421 P.2d 1009 (1966); Connett v. Fremont County School Dist., No. 6, 581 P.2d 1097 (Wyo. 1978).

Some courts have likened a teacher’s duty of care to that of a reasonable and prudent parent. Ballard v. Polly, 387 F.Supp. 895 (D.D.C. 1975); Ohman v. Board of Education, 300 N.Y. 306, 90 N.E.2d 474 (1949); Swaitkowski v. Board of Education, 36 A.D.2d 685, 319 N.Y.S.2d 783 (4th Dept. 1971). This is an attractive formulation, but it may not always be adequate. For example, it is conceivable that in certain instances, due to the number of students involved and the danger of an activity, teachers might be required to exercise a higher degree of care than would be expected of a reasonable and prudent parent. On the other hand, at least one Florida case has suggested that the parental standard is too stringent. King v. Dade County Board of Public Instruction, 286 So.2d 256 (Fla.3d DCA 1973), cert. denied, 294 So.2d 89 (Fla.1974).

This debate need not be resolved today. The parental standard, however, is particularly useful in this case for it underscores the implausibility of plaintiffs’ claim. Even if Sheri’s teacher were held to the standard of a reasonable and prudent parent, she would not have been obliged to accompany the child to the bathroom door. No one would contend that a parent in a multi-child home would consider it necessary to shoulder a similar burden. In legal terms, this indicates that the injury was unforeseeable. Segerman v. Jones, 256 Md. 109, 259 A.2d 794 (1969). Furthermore, plaintiffs’ contentions are demonstrably unreasonable in the context of this case for they would require the teacher to abandon her co-existing responsibility to the remainder of the class.

Several courts have articulated the principle that, absent special dangerous circumstances, a teacher or school board does not have the duty of providing supervision of all movements of all pupils at all times. Woodsmall v. Mt. Diablo Unified School Dist., 188 Cal.App.2d 262, 10 Cal.Rptr. 447 (1st DCA 1961); Conway v. Board of Education, 11 Misc.2d 162, 171 N.Y.S.2d 533 (Sup.Ct. 1958); Fagan v. Summers, 498 P.2d 1227 (Wyo. 1972). This issue was addressed in Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652, 654 (1979), when the court said:

To hold that Ortiz [the teacher] had to anticipate Gillmor’s [the student] act and somehow circumvent it is to say that it is the responsibility of a school teacher to anticipate the myriad of unexpected acts which occur daily in and about schools and school premises, the penalty for failure of which would be financial responsibility in negligence. We do not think that either the teacher or the district should be subject to such harassment nor is there an invocable legal doctrine or principle which could lead to such an absurd result.

The application of this principle to other “doorjamb injury” cases has consistently led to findings of no liability. See, e. g., Luna v. Needles Elementary School Dist., 154 Cal. App.2d 803, 316 P.2d 773 (4th DCA 1957); Conway v. Board of Education, supra. Luna is remarkably similar to the case at bar. It too involved a five year old kindergarten student who lost the top portion of his left index finger when another student pushed a school gate. Affirming the trial court’s dismissal of the action, the appellate court said:

There was no substantial evidence to show negligence on the part of the teacher, and negligence could not be inferred from the mere fact that the accident occurred on school ground while the teacher was not at the particular spot at the moment. There is no evidence that would justify the inference that this teacher should reasonably have expected not only that this boy would climb this wall but that his hand would slip at the very moment another boy was moving the gate. 316 P.2d at 776.

Whether a teacher has breached a duty of care by failing to provide adequate supervision is usually a question of fact for the jury. Rodrigues v. San Jose Unified School Dist., 157 Cal.App.2d 842, 322 P.2d 70 (1st DCA 1958); Cianci v. Board of Education, 18 A.D.2d 930, 238 N.Y.S.2d 547 (2d Dept. 1963). Nonetheless, the plaintiff has the initial burden of producing some reasonable evidence of deviation from the standard of care before the matter may be submitted to the jury. Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla.3d DCA 1977). Plaintiffs failed to satisfy this minimal threshold requirement and, accordingly, the trial court properly granted defendant’s motion for directed verdict.

In conclusion, it seems appropriate to note that we are a society which has come to enjoy, indeed, to expect, virtual mass insurance coverage. Concepts like no-fault and expanding theories of strict liability easily explain the impulse to sustain the jury’s verdict in this case. In fact, it might well be societally beneficial to encourage school boards to adopt insurance plans which would permit recovery by injured students without regard to fault. Such action, however, is the prerogative of the legislature. Absent such legislation, courts must continue to abide by the traditional tort concepts of duty, breach, and injury proximately caused thereby. The latter mode does not permit recovery in this case. The judgment below is

AFFIRMED.

ANSTEAD, J., and RIVKIND, LEONARD, Associate Judge, concur.


author: ROBERT P. SMITH, Jr., Judge. BOOTH, Judge,

text:
    Ann BECKWITH, Betty Beckwith, Charlie Brigham, Edward Brown, Melissa Day, John E. Fairchild, C. D. Faircloth, Norma N. Faircloth, Bradley Harvell, George Wesley Harvell, Vera Henderson, Bert Phillips, Geraldine Potter, W. L. Potter, and Robert Walden, Petitioners, v. STATE of Florida, Respondent.
    No. TT-431.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1980.

      Joseph C. Jacobs and Lewis M. Killian, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, and M. Howard Williams, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, and Curtis A. Golden, State’s Atty., Pensacola, for respondent.
   ROBERT P. SMITH, Jr., Judge.

The 15 petitioners seek certiorari review of an order of the Circuit Court of Liberty County granting the State a change of venue for trial, to Leon County, on the ground that it is practically impossible to obtain an impartial jury in Liberty County, where the defendants reside and where they allegedly committed the felony of buying the votes of others. Section 104.061(2), Florida Statutes (1979).

The trial court has not made an exhaustive and unsuccessful effort'to seat an impartial jury in Liberty County. For that omission we quash the order and remand the case for a more persevering effort to secure an impartial jury in Liberty County. Article I, Section 16, Florida Constitution; Ward v. State 328 So.2d 260 (Fla. 1st DCA 1976).

The trial court based its order changing venue on the testimony of several witnesses and on the court’s own observations of the venire, the jurors, parties, witnesses, and spectators in two vote-buying trials held in Liberty County in December 1979. One of those trials resulted in a guilty verdict (“sheer luck,” the trial judge said) and the other, disadvantaged by inadequate jury security and spectator control, was declared mistried when a juror spoke during recesses with the accused, petitioner Edward Brown, and then denied to the court that he had done so.

The trial court’s order and the record on which it was entered make a formidable showing of conditions in Liberty County giving rise to doubts about the availability of an impartial jury: the complex relationship among families in this second-smallest Florida county; the familiarity most everyone has with most everyone else, and widespread conversation about vote-buying and these prosecutions; the alliances, allegiances, and antipathies which color the county’s politics, public education system, and public employment; the feeling among some in the community that the buyers of votes should not be prosecuted if the sellers are not (it is not a violation of Section 104.061 to sell one’s vote); the influences and pressures which threaten prospective witnesses and jurors; and the consequent lack of candor of some veniremen and some witnesses. If conventional methods of proof were alone sufficient to show the impossibility of seating an impartial jury, or if the trial judge’s earnestness of opinion and felicity in expressing it were sufficient grounds for sustaining his action, we should immediately affirm and, so doing, recede from Ward.

But with all deference to the contrary and well-spoken opinion of the trial judge, we cannot sustain this departure from the rather explicit holding of Ward and, vastly more important, from the historical and legal precedents which Ward sought to preserve. Over the defendant’s objection, the State may not be granted a change of venue from the county where the State charges the defendant committed the crime, to a county where the State fancies it may find a jury that will do its duty less reluctantly, until the impossibility of seating an impartial jury where the offense was laid has been verified by an exhaustive attempt to seat such a jury.

We suggested in Ward that the defendant’s right to jury trial in the county where the offense was committed is as old as the jury system itself, and is inseparable historically and doctrinally from that system. It is a right carefully included in the constitutions of the original states of this union, written there by colonists who reb-eled at the idea of prosecutors carrying citizens away for trials in far places, where they were strangers. Florida’s Constitution assures these Liberty Countians, as it has assured all our forebears since 1885, that they will be tried at home, by a jury of their own county, for crimes allegedly committed at home; that they will be tried abroad only for crimes committed abroad. There is but one constitutional exception to the rule, namely, “the impossibility of securing an impartial jury in that county.” Hewitt v. State, 43 Fla. 194, 199, 30 So. 795, 796 (1901) imposed that constitutional restriction on a statute which seemingly authorized more liberal changes of venue; and Ward concluded that the Supreme Court would read that same constitutional restriction into Fla.R.Cr.P. 3.240, together with the test determining “impossibility” as prescribed by other Supreme Court decisions. Recently, citing Ward, the Supreme Court reemphasized the “doubtful validity” of changing the place of trial over the defendant’s objection:

The defendant has the constitutional right to a trial where the offense occurred and a change of venue granted without an appropriate motion or the consent of the defendant is of doubtful validity. North v. State, 65 So.2d 77 (Fla.1952), aff’d North v. Florida, 346 U.S. 932, 74 S.Ct. 376, 98 L.Ed. 423 (1954). See also Ward v. State, 328 So.2d 260 (Fla. 1st DCA 1976).

Stone v. State, 378 So.2d 765, 768 (Fla.1980) (dictum).

The means by which the impossibility of securing an impartial jury is to be determined, when on that ground the State wishes to change the venue for trial, is implied from the very word impossible, which here means practically impossible, impossible as a practical matter. The term does not mean absolutely impossible, as would be implied by examining every resident of the county for jury service, only to find that six impartial persons cannot be found; but neither does the term impossible simply mean difficult, problematic, inconvenient, laborious, or frustrating. When the State urges that it is practically impossible to secure an impartial jury, what is required is a showing that such a jury cannot be secured by an exhaustive or persevering judicial effort. And the way for the trial judge to determine that possibility or impossibility is to summon a venire, swear them, join with counsel in asking them questions bearing on their qualifications, and excuse both the partial jurors and the evasive ones by exercising that skill of judgment which Justice Alderman described in Manning v. State, 378 So.2d 274, 279 (Fla.1979) (dissenting opinion):

In some cases, it is not advisable for the trial judge to rule on a motion for change of venue until after the jury selection process actually begins. This is the “acid test” to determine if it is possible to obtain a fair and impartial jury. During the jury selection process, the trial judge is in the best position to make the final decision as to whether a fair and impartial jury can be obtained. He has the opportunity to observe firsthand the prospective jurors during the voir dire examination, to weigh the credibility of their answers, and to judge the state of their minds as well as the general atmosphere in the courtroom and the community.
Judging of this type is an art, not a science. It is not possible to reduce all of the elements considered by a trial judge in such a situation tó a computer card and obtain a mechanistic answer. In deciding a motion for change of venue, more is involved than the sterile application of legal principles. The trial judge must also function as the finder of facts.

The Court’s decision in Manning, that a defendant’s motion for change of venue may be determined either before trial or after an attempt is made to seat a jury, does not affect the requirement that an exhaustive or persevering effort be made to seat an impartial jury when the State moves for and the defendant resists a change of venue for trial. Indeed, the Court’s reference to Singer v. State, 109 So.2d 7, 14 (Fla.1959), underscores the difference between the two situations. Manning, 378 So.2d at 277, quoted Singer:

A change of venue may sometimes inconvenience the State, yet we can see no way in which it can cause any real damage to it. On the other hand, granting a change of venue in a questionable case is certain to eliminate a possible error and to eliminate a costly retrial if it be determined that the venue should have been changed. More important is the fact that real impairment of the right of a defendant to trial by a fair and impartial jury can result from the failure to grant a change of venue.

Similar reasoning requires an actual attempt to seat a jury when the defendant resists a change of venue for trial. The State cannot be damaged in any way by a persevering attempt to empanel a jury, and the attempt may be successful, confounding all the analysts and prophets of impossibility. See, e. g., Stone, supra, 378 So.2d at 768: “The ease in selecting the jury is further evidence that a change of venue was not required.” And if the effort is unsuccessful, it is not for that reason futile; the effort affords the accused, insofar as reasonably possible, his right to trial by impartial jury in the county where it is charged he committed the crime. Thereby the court decides the critical issue not by weighing the opinions or predictions of a few selected witnesses who are asked whether others can be impartial — there is much of that in this record, and not a little hearsay — but by making individual judgments about particular prospects who are questioned under oath in the jury box. That is “the acid test.” Manning, supra, 378 So.2d at 279 (dissenting opinion).

The more debatable question in this case is whether the required attempt to empanel an impartial jury was satisfactorily made in the December 1979 experience of empaneling a jury for the Edward Brown trial, which as stated above ended in a mistrial for juror misconduct. (Although the State moved for a venue change before the earlier Thomas Brown trial, neither the State nor the trial judge now suggest that the convicting jury in that case was less than impartial.) On this subject the trial judge found:

During voir dire at the first trial, prospective jurors seemed candid and at ease whereas at the second trial they were evasive and at least three were so infected by community influence that their qualifications were not truthfully determined on voir dire. In the second case the Court and the attorneys tried as hard as possible under the law to empanel the jury and still three jurors were obviously not impartial. This court sincerely feels that the defendants, their families and political connections has and will exert such undue influence over witnesses and jurors that they would not all answer truthfully the questions on voir dire. This court will not attempt to review the evidence or testimony in much greater detail but would state that the court observed first hand the prospective jurors during voir dire examination of two trials and the motion hearings, therefore had the opportunity to weigh the credibility of their answers and judge the state of their mind as well as the atmosphere in the courtroom and community.
This court recognizes that attempted jury selection is recommended as the best test, however, the law does abhor a useless act and from this Court’s experiences in these cases it is obvious and conclusive that a fair and impartial jury is practically impossible. This Court cannot escape this conclusion when proof is made that direct and subtle efforts to influence jurors and witnesses occurred; where friends and families of the defendant smiled and winked at each other when the second jury was sworn to try the case; nor can the Court overlook or forget the look of relief on their faces when the jury was sworn. Neither can the Court overlook or forget the chuckles and looks of satisfaction when two witnesses suddenly forgot the facts about which they were to testify; nor could the court overlook or forget the look of despise and disgust on the face of the spectators when some incriminating testimony was given.
Of significant importance to this Court also is the peace of mind and well being of persons called for jury service and as witnesses. To a person they were nervous, somewhat frightened, all apprehensive. .

Spectators may be controlled and sitting jurors may be protected from improper influences by less drastic measures than changing the trial venue over the defendant’s objection. The State does not suggest here that the recalcitrance or intimidation of witnesses is a ground for moving the trial, from a county which can otherwise produce an impartial jury, or that moving the trial will lessen the necessity for candor and courage in witnesses who must return home eventually. Therefore we are principally concerned with the trial judge’s findings that “to a person” the veniremen at the second trial “were nervous, somewhat frightened, all apprehensive”; that the prospective jurors “were evasive”; and that “at least three were so infected by community influence that their qualifications were not truthfully determined on voir dire.”

Giving full credit to these observations by the trial judge, and disregarding questions about the evidentiary or other basis for the last stated finding, the jury selection in the Edward Brown trial, and these resulting findings, are insufficient either to satisfy or to dispense with the requirement for an exhaustive or persevering attempt to draw an impartial jury from Liberty County. It is quite clear that any “evasive” veniremen, recognized on voir dire at the December trial or recognized now in the light of the testimony since adduced, can and should be excused as unqualified for jury service. At the Edward Brown trial only nine veniremen were challenged for cause akin to partiality or prejudice, and all but one of these candidly admitted having at least some fixed opinion; only two challenges for cause — one by the State, one by the defense — were denied by the court. The prosecutor used only four of his six peremptory challenges, later explaining that he thought other jurors were not “being candid with us” and he wished to challenge them but did not, for fear of replacements to whom he objected also. Neither the State nor the court is obliged to be satisfied with a jury made of people who answer voir dire questions evasively. It is somewhat puzzling why veniremen observed by both the prosecutor and the trial judge to be “evasive,” or not “candid with us,” were not challenged by the State and excused by the court for cause. No doubt challenges for that cause will be more fruitfully employed, if necessary, when the court again attempts to seat a jury in Liberty County. Carefully wrought decisions to excuse prospective jurors for cause are seldom if ever grounds for appellate concern. Piccott v. State, 116 So.2d 626 (Fla.1959); Newton v. State, 178 So.2d 341 (Fla. 2d DCA 1965); Sims v. State, 184 So.2d 217 (Fla. 2d DCA 1966).

Perhaps as a result of seating “evasive” jurors without challenge, only 27 potential jurors were questioned in the Edward Brown trial, and three of those were released for reasons of health or nonresi-dency. Compared to widely publicized criminal trials in which scores of veniremen are examined in an effort to seat a jury in the county where the defendant thinks a fair trial is impossible, 24 prospective jurors out of a pool of some 2900 registered voters is hardly a fair sampling; and if all 24 had been found to be partial (or “evasive”), that would not nearly qualify as a persevering effort which reveals, like the lamp of Diogenes, that an honest and disinterested jury cannot practically be found in Liberty County. In Hewitt, the Supreme Court decision that initially set the standard for venue changes in cases of this sort, venue was changed only after the trial court “exhausted a venire of 125 persons without obtaining a qualified jury . . . .” Ward, supra, 328 So.2d at 262. That number was taken as significant in the Supreme Court’s later decision in O’Berry v. State, 47 Fla. 75, 36 So. 440 (1904), reversing a change of venue order. This court reversed Rhoden v. State, 179 So.2d 606 (Fla. 1st DCA 1965), in which the trial judge changed the venue for trial after exhausting a panel of only 34 Hamilton County citizens. We reversed in Ward because the qualifications of only 18 Washington County veniremen had been determined. So we conclude here that this face-to-face inquiry into the fitness of only 23 Liberty County citizens cannot have constituted an “acid test” of the availability of an impartial jury drawn from that county, even when the voir dire is viewed in the light of subsequent testimony about county conditions.

In remanding these cases to Liberty County it seems almost trite to emphasize that we do not return them there for 15 trials or even, necessarily, for one. We return these cases for the more complete fulfillment of the best process our system of justice has for fashioning its most perfect ornament, the impartial jury. The judicial task of presiding over the selection of jurors in these cases will require great dis-cemment and discretion, and in this we accord the able trial judge our utmost deference. “Judging of this type is an art,” wrote Justice Alderman, “not a science,” and the judge has no computer card bearing a mechanistic answer. Manning, supra, 378 So.2d at 279.

To Justice Alderman’s wise counsel concerning the judge’s task in jury selection we must add the corollary, equally to be kept in mind in the delicate examinations ahead, that the jury’s task is not mechanical, either, and that jurors are not called to be ciphers or mere factfinding machines. On the contrary, they represent “the conscience and mores of the community in which the crimes were committed.” E. g., Jones v. State, 332 So.2d 615, 622 (Fla.1976) (Sundberg, J., concurring). That jurors represent the conscience of the community is the historic fact which inspired and gives continued life to the constitutional guaranty of “a speedy and public trial by impartial jury in the county where the crime was committed.” Thus in any criminal case, especially in one of this character, and more especially in a potential series of 15 consecutive trials for offenses of this character, in a place as small as Liberty County, the felt conscience of the community will inevitably affect how the jurors perceive, comprehend, and apply the law to the evidence. The conscience of the community may affect their verdicts. It needs saying that this is no aberration. This is the constitutional scheme.

This means that the guilty verdict returned by a Liberty County jury in the first case tried, and any like verdict of a jury obtained for the trial of another of these cases, is to be regarded, if supported by the law and the evidence, as having deep significance. A crime such as vote-buying besmirches the community where it occurs; and nothing can be so cleansing as a verdict of the defendant’s peers in the community condemning the deed. Certainly no verdict announced from another county, by a jury of strangers, can have comparable effect. Already in these cases Liberty County’s accustomed circuit judge has been replaced by a Leon County resident judge. Already the circuit prosecutor has been replaced by one from Escambia County, in another circuit. Now that last and most important element of local participation and responsibility, the Liberty County jury, is in jeopardy. We must not too hastily conclude that such a jury cannot be responsible, if by responsible we mean capable of convicting. We must not too hastily deprive this community of the dignity of judging its own. Whether those accused know it or not, their constitutionally recognized interest in a Liberty County trial is not alone their hope for acquittal; it is also in their interest, scarcely felt now, to be sure, that for them the Constitution makes even a guilty verdict more acceptable, and therefore more beneficial, by requiring its utterance by a jury in the county where the offense was committed. In terms of both public vindication and private chastisement, then, one such verdict, returned at Bristol by a Liberty County jury, may serve justice far better than a string of 15 guilty verdicts announced at Tallahassee by Leon County juries.

The converse is also true. An acquittal by a Liberty County jury, even if voted in the face of evidence the trial judge deems overwhelming proof of guilt, has deeper significance than sheer lawlessness. If for whatever reason there is widespread skepticism or hostility in Liberty County toward these prosecutions, that of course will be encountered during the selection of jurors. If the conscience of the community is in that condition, it may be expected to affect the deliberations of the most conscientious juror. Those prospective jurors who are intimidated, coerced, or otherwise tampered with, those whose fixed opinions cannot yield under any circumstance to the law and the evidence, and those who conceal their opinions are of course to be disqualified, for they have no judgment. But the juror who reflecting thé conscience of the community acknowledges his skepticism or opposition to the prosecution may yet conscientiously say on oath, and under close questioning, that his opinion can yield to the law and the evidence, and that he . will “well and truly try the issues and render a true verdict according to the law and the evidence . . . .” Fla.R. Crim.P. 3.360. If a panel composed of such jurors should finally acquit, in spite of evidence which others may think is sufficient to convict, the verdict is not to be condemned in law.

Whether a jury has the right to acquit in spite of the law and the evidence may be debated. Compare Keenan v. State, 379 So.2d 147, 148 fn. 5 (Fla. 4th DCA 1980), with State v. Thomas, 362 So.2d 1348, 1349 fn. 3 (Fla.1978). That the jury has the power to acquit in those circumstances, and that we for two hundred years have preserved the accused’s right to trial by a jury having that power, cannot be doubted. See Brown v. State, 206 So.2d 377, 382 (Fla.1968), rejecting criticism of “the basic rule that gives to the accused the right to have the jury consider the evidence and, if it desires, find him not guilty of any crime, even though the trial judge might be fully convinced that the evidence overwhelmingly establishes his guilt.” See also A. Schef-lin, “Jury Nullification: The Right to Say No,” 45 S.Cal.L.Rev. 168, 192 (1972):

Inherent in the concept of a lay jury composed of citizens who leave their normal life patterns, meld into a decision-making unit for the purposes of judging one of their number, and melt back into the community, is the ability to say no and the knowledge that it cannot be held against them. The jury serves as an ameliorating force tempering the rigidity of the law, and of the professionals who administer it, with the common sense realities of the community. In the criminal case, no man may be convicted without the verdict of his peers. If crime is unacceptable deviance from community values and standards, then a community judgment on that deviance must be made. In a democracy, people decide what is good for them, the government does not do it for them.

In other words, an impartial Liberty County jury is to be sought in these cases as something greatly to be desired, something for which we have no adequate substitute; such a jury is therefore to be sought exhaustively, with perseverence. Certiorari is GRANTED, the order changing venue to Leon County is QUASHED, and the cause is REMANDED to Liberty County for further proceedings.

SHAW, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

The majority, in reversing the order below, turns a deaf ear to reality and arbitrarily imposes on the trial court the obligation of playing musical chairs for the sake of passing numbers of prospective jurors in and out of the jury box, “exhaustively.” Justice, however, is not a numbers game. The order of the trial court and the record are replete with a showing supporting the trial court’s determination that a fair and impartial jury cannot be obtained in Liberty County. Overlooked in the majority opinion are many of the pertinent facts and their significance; for example, the prior trials presided over by the same experienced trial judge, wherein 60 veniremen were examined, and the evidence considered, including 25 witnesses heard by the court on the venue motion, prior to its decision.

The holding of the majority is based on Ward v. State, 328 So.2d 260 (Fla. 1st DCA 1976). It is the Ward case which originates the purported requirement that there be an “exhaustive and unsuccessful attempt to select an impartial jury” before the motion of the State for change of venue can be granted. The majority states that to affirm the judgment below would require that this court recede from Ward. So be it. If this case is an example of what Ward requires, that prior decision of our court should be abandoned.

Nor do I agree that the so called “conscience of the community” is the standard by which these defendants are to be tried, thereby mandating that the trials be held in the community. The crime of vote buying has been defined by a larger conscience and is codified as Florida Statutes § 104.061(2). The majority views these proceedings as some kind of cleansing ceremony for the collective consciences of those residing in Liberty County and loses sight of the fact these are, first and foremost, criminal trials for which a fair and impartial jury is an absolute and essential ingredient.

The balancing of two important rights of an accused: the right to a fair trial and the right to trial in the county where the crime was committed, was addressed by the Florida Supreme Court in Hewitt v. State, 30 So. 795 (Fla.1901), and the balance struck in favor of the right to a speedy trial before an impartial jury, as being “the greater and more important” of the two rights, the court holding (30 So. at 796):

We do not think it was the purpose of the framers of the constitution to force a trial in a county where an impartial jury cannot be had, as to do so would defeat the greater and more important right of a speedy and public trial by an impartial jury.

Florida Rules of Criminal Procedure, Rule 3.240, provides for motions by the State, as well as the defendant, for change of venue. This rule contemplates that the trial court grant such motion based on the court’s consideration of affidavits and evidence. An early case which states the rule is Ashley v. State, 72 So. 647, 648 (1916), wherein the court held:

Where an application in a criminal prosecution for a change of venue from the county where the crime was committed is made by the prosecuting attorney, and the accused objects thereto, the matter should be tested in some way so as to make it to clearly appear that it is practically impossible to obtain an impartial jury to try the accused in that county.
On an application by the state attorney for a change of venue in a criminal prosecution, even though the affidavit of the state attorney fully, clearly and positively sets forth facts that, when not controverted, prima facie make it appear that it may be impossible to obtain an impartial jury to try the accused in the county in which the crime was committed, yet when upon a counter showing it does not clearly and affirmatively appear that an impartial jury to try the accused cannot be obtained in the county where the crime is alleged to have been committed, the application to change the venue should be denied, (emphasis supplied)

Thus, in some instances, the State’s uncon-troverted affidavits alone can make a clear and sufficient showing without a “test.” The test to be made is not limited, as the majority would hold, to an exhaustive and unsuccessful attempt to seat a jury. What “test” is needed or sufficient must depend on the circumstances of each case.

Here, the matter was “tested” in prior trials, where juries were seated, but the depth of the problem of obtaining impartial juries was made apparent. Beyond that, the trial court conducted an actual examination of numerous witnesses and considered affidavits and other evidence.

The majority concedes a “formidable showing” was made, but is hung up on the numbers. The State correctly points out that the critical issue is not the number of prospective jurors exhausted but whether the test conducted, together with the affidavits and other evidence, is sufficient to establish that it is practically impossible to obtain an impartial jury.

The most recent decision of the Florida Supreme Court on the subject is Manning v. State, 378 So.2d 274 (Fla.1979), wherein the majority held that the defendant had been erroneously denied a change of venue, holding:

A trial judge is bound to grant a motion for change of venue when the evidence presented reflects that the community is so pervasively exposed to the circumstances of the incident that prejudice, bias, and preconceived opinions are the natural result. The trial court may make that determination upon the basis of evidence presented prior to the commencement of the jury selection process . or may withhold making that determination until an attempt is made to obtain impartial jurors to try the case, (emphasis supplied)

The majority quotes with approval portions of the dissenting opinion of Mr. Justice Alderman in Manning that attempts to seat a jury are the “acid test” in a change of venue question, but ignores the paragraph immediately following, wherein Justice Alderman concludes he would uphold the trial court’s denial of the defendant’s motion for change of venue, and states:

The majority has substituted its judgment for that of the trial judge. I prefer to accept the evaluation of the trial judge, who was actually in the courtroom when the jury was selected.

Here, our court substitutes its judgment for that of an able trial judge, who had the benefit of being in the courtroom and observing the situation at first hand.

I respectfully dissent.

      . Rule 3.240, Fla.R.Crim.P.:
      (a) The state or the defendant may move for a change of venue on the ground that a fair and impartial trial cannot be had in the county where the case is pending .

      (d) The court shall consider the affidavits filed by all parties and receive evidence on every issue of fact necessary in its decision.

        See also, American Bar Association Standards for Criminal Justice, Fair Trial and Free Press, Approved Draft, Rule 3.2.