author: SUGG, Presiding Justice, HAWKINS, Justice,

text:
    Willie James HALL v. STATE of Mississippi.
    No. 53550.
    Supreme Court of Mississippi.
    Oct. 27, 1982.

      Lawyer & Hudson, Theodore J. Lawyer, Don W. Fredericks, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   SUGG, Presiding Justice,

for the Court:

Willie James Hall was indicted for aggravated assault under section 97-3-7(2) Mississippi Code Annotated (Supp.1981) for attempting to cause serious bodily injury to Willie James Bradley on July 24, 1980. Hall was convicted of aggravated assault and sentenced to serve a term of three years by the Circuit Court of the First Judicial District of Harrison County.

The principal question on this appeal is whether reversible error was committed by granting the state, over Hall’s objection, the following instruction:

INSTRUCTION S-3
If you believe from the evidence the Defendant armed himself with a deadly weapon and sought the victim with the formed felonious intention of invoking a difficulty with the victim, or brought on, or voluntarily entered into any difficulty with the victim with the designed and felonious intent to cause serious bodily harm to the victim then the Defendant cannot invoke the law of self-defense.

The trial judge also granted the following instruction requested by Hall:

INSTRUCTION NO. D-5
The Court further instructs the Jury that the Defendant is entitled to act upon the reasonable appearances, and if the conduct of the other party was such as to induce in the mind of a reasonable person, situated as he was, under all circumstances then existing and viewed from the standpoint of the Defendant, a fear that death or great bodily harm was about to be inflicted by the other party on him, it does not matter if there was no actual danger provided that the Jury under the circumstances believe that the Defendant acted in self-defense based upon a belief that his life was in apparent danger, and if you so believe, you must find the defendant not guilty. .

In order to determine whether the state’s instruction was erroneously granted, it is necessary that we consider the evidence in detail.

Willie James Bradley testified that he was living with his mother and step-father on July 24 in their home. Before that date he had been living in a trailer owned by Hall and his wife located at the rear of the Hall residence which was rented from the Halls. At about 8:00 o’clock p.m. on July 24 the witness and his brother, Charles Bradley, went to Hall’s house for the purpose of paying part of the rent due and in arrears. Hall was not present so the witness talked to Hall’s wife and stated he had $65 to pay on the rent that day. Hall’s wife refused to accept the payment stating that the witness would have to pay the full amount due. The witness estimated the rent due was about $190. He testified that he and Hall's wife talked for about thirty minutes and during the conversation his brother went to the trailer to remove some clothes. He stated that he did not use profane language during the conversation and that Mrs. Hall did not attempt to call the police while he was there.

About 10:30 or 11:00 o’clock the same night the witness was in the living room watching TV when he heard a knock on the door. His brother, Charles Bradley, was talking on the telephone and his mother and step-father were in a back bedroom. He stated he went to the door and when he opened the front screen door he saw Hall and invited him to come in. Hall refused and asked the witness to come outside.

As Hall turned to walk away the witness saw a bulk under Hall’s clothes and believed that Hall was armed with a pistol whereupon he told Hall that he was not going to come out. The witness then went to the back bedroom to get his pistol but was prevented by his mother who told him she did not want any violence.

The witness then went outside to talk to Hall and was unarmed at that time. He stated he knew that Hall had come to the house to collect the rent due so he got $100 out of his wallet and went outside to give it to Hall. Hall was about 60 feet away from the front door and Willie asked him to come to the front porch and talk. Hall refused and asked Willie to come to the street and talk to him. This exchange of invitations was repeated several times. The witness said that he did not go to the street because he knew that Hall had a gun. The witness then moved from the front door to the carport and sat on the back of an automobile parked in the carport about six to ten feet from the front door. After the witness and Hall carried on a conversation while they were separated by approximately sixty feet for a short time, Hall obtained a shotgun from his vehicle and shot one time at the witness. The witness said the shot hit the gas tank, he “rolled off” the car, and ran around the back of the house. He stated that he ran to his cousin’s house and heard a second shot while running around the back of the house. The next morning he discovered a hole in the front window of the house.

On cross-examination he denied that he carried a pistol with him when he went to Hall’s house earlier that night.

Charles Bradley testified that he lived with his mother and step-father but before that had lived in the Hall’s trailer with his brother Willie and another person. He and Willie went to the Hall house to pay a portion of the rent that they owed, and while his brother talked to Mrs. Hall, he went to the trailer to get some clothes. He did not hear the conversation between Mrs. Hall and his brother and first saw Hall that night when Hall came to his house. He corroborated his brother Willie to the effect that Willie was watching TV and the witness was talking on the telephone. He stated Willie opened the door, came back into the house and told him that Hall had a pistol. Willie went to the back bedroom to get his pistol but their mother would not let him have it. Willie returned to the door, went outside and Hall was about thirty yards away by his automobile. He overheard Hall and his brother talking, his brother kept asking Hall to come to the carport and talk, but Hall kept asking his brother to come out to the car to talk. The conversation ended when Hall got his shotgun out of his car and shot at his brother. Upon seeing this, the witness said he ran back into his house, and told his mother to go into the back room. The witness heard two shots, one of which went through a window in the front room of the house, the other into the gas tank of the automobile parked in the carport. His mother called the police and they arrived shortly after the shooting.

One of the officers called to the scene arrested Hall between two and three o’clock on the morning of July 25. He testified that he went to Hall’s house, knocked on the door and informed Hall’s wife that he had an arrest warrant for Hall. She advised him that Hall was not at home, but on searching the premises the officer found Hall in a bed in the front bedroom.

Hall testified that he had been convicted of an aggravated assault charge which was reduced to a misdemeanor when he was seventeen or eighteen and had been convicted for possession of marihuana. On July 24 he was working the second shift but left early after his wife came to his place of employment and told him that the Bradleys had been by the house and entered the trailer. He said he had told them not to go into the trailer because they were three months behind in their rent. He reported that his wife told him that the Bradleys had cursed her and that she was very upset.

He stated that his wife told him she called the police three times but they refused to respond to the call. He further testified that his wife told him that one of the Bradleys told her that they were going “to mess me up” if he went to their home. He then put his shotgun in the back of his car and went to the Bradleys’ house. Upon arriving at the Bradleys’ house he left the gun in the back of the car and knocked on the door. He said that Willie Bradley came to the door, he invited Bradley outside, but Bradley refused and invited him to come inside. He said he could then see Charles Bradley coming from the hallway with a gun at his side, whereupon he turned and went to his car. He said that he went to his car, opened the back door, obtained the shotgun, and fired it. He stated that his wife told him that the Bradleys had threatened her and had threatened him so he had taken his gun with him to protect his life. He denied having a pistol on his side. He stated Charles Bradley pushed the screen door open with his foot and he could see “the flashing silver gun in his hand.” He testified that he then pulled his gun out and fired it into the ground twice in an effort to scare them and give himself a chance to leave.

After the shooting occurred, Hall parked his car at his sister-in-law’s house which was separated from his house by three other houses. He said the reason he parked his car there was that he presumed they would call the police. He crawled in a window of his house and went to bed because he said he knew his wife was going to be upset because of what he had done. He also stated that his wife came to the Bradleys’ house after he had been there a couple of minutes or so and that she left after he fired the shots.

Mrs. Hall testified that Willie came into the house and told her he had come to pay the rent but did not have all of the rent. She told him to wait until he could pay all of the rent and Willie started cursing and using profanity. She testified that they argued for a few minutes, and she told him that Charles was not supposed to take anything out of the trailer. She testified that she reported this incident to her husband and he went to the Bradleys’ house and she followed her husband there. She stated that she called the police while Willie was there.

When she arrived at the Bradley residence, she saw her husband rushing back to his car and Charles standing in the door holding a pistol out to his leftside “like in a pointing manner.” She drove off before she heard any shots. She said the police came to her house at 3:20 a.m. and she invited them in and told them to look for Willie but that he was not home.

On rebuttal Charles Bradley testified that he did not have a gun in his hand when Hall came to the house. Willie Bradley testified on rebuttal that he did not threaten Mrs. Hall in any way during the conversation at her home earlier in the evening. He also testified she did not call the police while he was there.

The custodian of the records for the Gulf-port Police Department testified that there was no record of a call from Mrs. Hall on the night in question. She stated that if Mrs. Hall had made a call a complaint card would have been recorded.

The record is uncontradicted that Hall left his employment, armed himself with a shotgun, went to the Bradleys home after having been warned by his wife that they had threatened to “mess him up” if he came to the house, and after his wife reported to him that Willie Bradley had cursed her and threatened her earlier during the evening. In Parker v. State, 401 So.2d 1282 (Miss.1981) we stated:

If a person provokes a difficulty, arming himself in advance, and intending, if necessary, to use his weapon and overcome his adversary, he becomes the aggressor, and deprives himself of the right of self-defense. Woods v. State, 183 Miss. 135, 183 So. 508 (1938).
Admittedly, with few exceptions, the right of self-defense should not be excluded where the evidence indicates a violent situation and harm to the parties. In Coleman v. State, 179 Miss. 661, 176 So. 714 (1937), the Court said:
“The law is that she must have armed herself for the purpose of provoking the difficulty and overcoming opposition if necessary. If the purpose to overcome opposition arose after the arming, the right of self defense is not cut off. [Citations omitted]. 179 Miss, at 664-655, 176 So. at 714.
In Pulpus v. State, 82 Miss. 548, 34 So. 2 (1903), the Court stated the rule with reference to an aggressor who withdrew from the fray as follows:
“One may provide himself with a deadly weapon and hunt another, with design to kill him with it, and provoke and be the aggressor in the encounter in which he kills the other, and still, in the progress of the difficulty should not be denied the right of self-defense, if the killing be not pursuant to the original purpose to kill. If he abandon the conflict, and is fleeing from it in good faith, and not for vantage, he may defend, himself from threatened death or great bodily harm. Lofton v. State, 79 Miss. 723, 734, 31 South. 420.” 82 Miss, at 555, 34 So. at 3-4. (401 So.2d at 1286).

At issue in the case was whether Hall armed himself with a deadly weapon with the intention of invoking a difficulty or voluntarily entered into a difficulty with the victim with the designed and felonious intent to cause serious bodily harm to the victim. S-3 instructed the jury that Hall could not invoke the law of self-defense if he armed himself with a deadly weapon and was the aggressor. The instruction did not peremptorily estop Hall from claiming self-defense, but submitted the issue to the jury for its determination. This was a proper instruction under Parker and Woods, supra, and the evidence supported the instruction.

Moreover, Hall was given a self-defense instruction which permitted the jury to consider whether he acted in self-defense under all the circumstances then existing viewed from the standpoint of Hall. The instruction was obviously an attempt to instruct the jury in accordance with Lofton and Pulpus, supra, that although one arms himself with a deadly weapon and hunts another with the intent to provoke and be the aggressor in the encounter, the right of self-defense should not be denied if such person had abandoned the conflict and was fleeing from it in good faith, and not for vantage, but such person may defend himself from threatened death or great bodily harm. Instruction D-5 does not clearly express this principle of law, but the trial court cannot be put in error for Hall’s failure to request an instruction correctly and fully stating applicable law. It is a familiar rule of law that one may not complain of his own instruction. Buford v. State, 372 So.2d 254 (Miss.1979) and Musselwhite v. State, 212 Miss. 526, 54 So.2d 911 (1951).

The jury was presented with two ques- ' tions by these instructions. First, whether Hall armed himself with a deadly weapon and sought his victim with the intent of invoking a difficulty and second, whether Hall had abandoned the conflict and was fleeing in good faith, in which event he could invoke the right of self-defense. The jury by its verdict rejected Hall’s contention that he was fleeing in good faith. Therefore, we find no error was committed by giving Instruction S-3.

Hall also assigns as error that the verdict of the jury was against the overwhelming weight of the evidence and that certain remarks by the district attorney in his closing argument were prejudicial and inflamatory. We have carefully considered the arguments and authorities cited in support of these assignments, but find no merit in either of them.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BROOM, ROY NOBLE LEE, and PRATHER, JJ., concur.

HAWKINS, BOWLING and DAN M. LEE, JJ., dissent.

HAWKINS, Justice,

dissenting:

I respectfully dissent. I would reverse and remand this case on the basis of the instruction granted the state and which es-topped the defendant from claiming self-defense.

The majority opinion — without specifically informing the bench and bar that we are engaged in such undertaking — in effect overrules what I would have surmised a rather formidable (in both quantity and quality) array of decisions of this Court condemning such an instruction.

In deference, I would suggest that the only case cited by the majority which in fact supports its holding is Parker v. State, 401 So.2d 1282 (Miss.1981). I expressed my thoughts as to Parker as best I could in a dissent. In my view, it is a modest defense of the present majority opinion that at least the error here is not as egregious as in Parker.

Hall was indicted for aggravated assault by attempting to cause serious bodily injury to Willie James Bradley on July 24, 1980.

On July 24, 1980, Willie James Bradley and his brother, Charles, were renting a trailer from Hall and his wife, Jean Hall, and were behind in their rent. The brothers went to the trailer to discuss the rent and for Charles to get some of his clothes. According to the Bradleys, the discussion was uneventful; according to Mrs. Hall the Bradleys used profanity and made threats. The profane language was aimed at both her and her husband. Upset when they left, she telephoned Hall at his work and told him threats had been made against her as well as him. Hall went home and his wife told him that she had called the police. Hall testified that his wife warned him that one of them had stated they were going to “mess me up” if he went over there, presumably to the residence of the Bradleys’ mother, where they had gone.

While he was at home, Charles Bradley called Hall on the telephone and told Hall he could come pick up the rent money. Hall testified that the reasons he took his shotgun with him was because, “... they had threatened her and threatened me, at that time I put my gun in the car.” Further, he stated in his testimony that, “I took it to protect my own life.” On cross-examination he again testified, “I took the gun for my self-protection.”

It is undisputed that when Hall went to the door of the Bradleys’ mother’s home, he did not have the shotgun in his hand. According to the Bradleys, after an argument between Hall and Willie James Bradley on the outside of the house, Hall got his shotgun out of the car and shot at Willie. Charles Bradley, who was at all times inside the house, testified he heard two shots. Both Bradleys testified they were unarmed, and from their testimony, Hall was in no danger, real or apparent, from either.

According to Hall, Willie James Bradley came to the door first and asked him to come inside. He further testified that he then saw Charles Bradley coming from the hallway in the house with a gun at his side. Hall described it as a silver gun. Hall testified that he then went to his car and got out his shotgun. Again according to Hall, when he turned around he saw Charles Bradley pointing the gun at him.

Hall said he then fired his shotgun to scare them, so as to give him a chance to leave. He believed the gun fired twice, “I pulled the trigger at the same time, I think both of the rounds came out at the same time.” He testified that he was not firing at either one of the Bradleys.

At the conclusion of the trial, the circuit judge over defense objections granted the following instruction to the State:

If you believe from the evidence the Defendant armed himself with a deadly weapon and sought the victim with the formed felonious intention of invoking a difficulty with the victim, or brought on, or voluntarily entered into any difficulty with the victim with the designed and felonious intent to cause serious bodily harm to the victim, then the defendant cannot invoke the law of self-defense.

Did the granting of this instruction constitute reversible error?

Once again this Court is faced with the question of the propriety of an instruction which tells a jury when an accused is precluded, or estopped, from asserting the claim of self-defense.

The law requires the existence of certain facts before an accused will be permitted to claim self-defense, in the first place, i.e., he must be in imminent peril, real or reasonably apparent, of loss of life or serious bodily harm at the hands of his assailant. Needless to say, any instruction on this issue should be carefully drawn.

There is another principle of law which provides, however: Even though the accused was in danger of losing his life at the hands of his assailant when he committed the criminal act, there are circumstances which will preclude, or estop him from asserting the claim of self-defense.

There is a considerable difference between the two concepts. Yet, they have been intertwined, and confusion has resulted.

To instruct a jury of the circumstances which must exist before the accused may claim self-defense is one matter. To instruct a jury, in effect, that even though an accused was in mortal danger, the circumstances under which his right to claim self-defense is cut off, is a far more difficult matter. Such an instruction, until this case, has been fraught with peril for the state.

An instruction on this question has been even more perilous when given in the abstract. To lay out principles of estoppel in a criminal case involving self-defense purely in the abstract (as in this case) poses virtually insurmountable problems of being free from error. To give the jury no guide whatever as to the precise facts necessary as to when and when not to apply this principle of estoppel invites speculation and conjecture on the part of the jury as to its application.

This Court condemned outright the giving of any instruction precluding the defendant from asserting the claim of self-defense in the following cases: McMullen v. State, 291 So.2d 537 (Miss.1974); Patrick v. State, 285 So.2d 165 (Miss.1973); Craft v. State, 271 So.2d 735 (Miss.1973); Ellis v. State, 208 So.2d 49 (Miss.1968); Tate v. State, 192 So.2d 923 (Miss.1966); Thompson v. State, 190 Miss. 639, 200 So. 715 (1941); Brown v. State, 186 Miss. 734, 191 So. 818 (1939); Vance v. State, 182 Miss. 840, 183 So. 280 (1938); Coleman v. State, 179 Miss. 661, 176 So. 714 (1937); Lee v. State, 138 Miss. 474, 103 So. 233 (1925); Adams v. State, 136 Miss. 298, 101 So. 437 (1924); Garner v. State, 93 Miss. 843, 47 So. 500 (1908); Pulpus v. State, 82 Miss. 548, 34 So. 2 (1903); Lofton v. State, 79 Miss. 723, 31 So. 420 (1902); and Prine v. State, 73 Miss. 838, 19 So. 711 (1896).

In Patrick v. State, supra, involving an instruction which was not altogether in the abstract, this Court stated:

This instruction is bad for several reasons. First, it does not accurately state the law in regard to when the right of self-defense may be denied to a defendant, and, second, it is couched in such broad and general terms that it could only serve to confuse the jury. Additionally, we reiterate and reemphasize what has already been said many times by this Court, and that is that it is a rare occasion when an instruction cutting off the right of self-defense is proper in a murder prosecution. Craft v. State, 271 So.2d 735 (Miss.1973); Ellis v. State, 208 So.2d 49 (Miss.1968); Tate v. State, 192 So.2d 923 (Miss.1966). In fact, the Court has gone so far as to say that an instruction which cuts off the defendant’s right to assert self-defense will be granted only where his guilt is so overwhelmingly manifest that no other verdict than guilty could probably be rendered. Tate v. State, 95 Miss. 138, 48 So. 13 (1909). In the recent case of Tate v. State, 192 So.2d 923, 924 (Miss.1966), the Court quoting with approval from Lofton v. State, 79 Miss. 723, 31 So. 420 (1901) said:
“ * * * This form of charge, declaring a defendant estopped to plead self-defense, is an exceedingly unwise one to be given. We have repeatedly condemned it, * * * It can never be proper, save in the few, very, rare cases where the case is such, on its facts, that a charge can be given embracing all the elements — not part of them, nor nearly all of them — essential to the estoppel.”
The necessary elements which must be in evidence before an accused can be denied the right to assert self-defense were stated by Justice Woods in Prine v. State, 73 Miss. 838, 842, 843, 19 So. 711, 712 (1896) while discussing the propriety of instructions allowed to the State in that case:
The second and third instructions for the state are fatally erroneous. Both omit any reference to what was the state of Prine’s mind; whether he had the murderous purpose formed at the time he provoked the difficulty, if, indeed, the jury should believe from the evidence that Prine first approached Chaine and brought on the difficulty. The jury might believe Prine was the aggressor, and brought on the difficulty, and that he entered it armed with a pistol, yet Prine was not cut off from the right of self-defense unless the jury should further believe from the evidence that Prine so brought on the difficulty, armed with a deadly weapon, and intending to use it when he provoked or brought on the encounter. He must have been the originator of the difficulty; he must have entered it armed, and he must have so brought it on and entered into it intending to use his pistol, and overcome his adversary, if necessary, in the course of the encounter. (Emphasis added).
Furthermore, it is not every wrongful act which provokes or brings on a difficulty that will deprive a person of self-defense. In Lucas v. State, 109 Miss. 82, 90, 67 So. 851, 852 (1915), it is stated:
“It is not every act of aggression or provocation which produces a difficulty, and in the course of which a necessity to kill another arises, that will preclude the slayer from availing himself of the right of self-defense; but it depends upon the character and quality of the act, and in some jurisdictions also upon the intent with which the difficulty was brought on.” 21 Cyc. 806.
The unlawful act must be one that is calculated and intended to provoke a difficulty or encounter wherein the accused is afforded the opportunity to and does slay his adversary without the accused having, in good faith, abandoned his original intent.

285 So.2d at 168-69. (Emphasis added).

In McMullen v. State, supra, although the defendant made no objection at trial to such an instruction in the abstract, this Court recognized that the instruction was one of two which constituted “grave error,” and reversed to prevent “manifest injustice.” The factual background of the slaying was not set out in the opinion.

The only case in which such an instruction given in the abstract was not held to be reversible error was Reid v. State, 301 So.2d 561 (Miss.1974). An entirely different factual situation existed in Reid than that found in this case. In that case, the defendant Reid claimed that he had been threatened by the decedent Wolf, and was driving by one Carpenter’s trailer when he saw Wolf’s car parked there. Armed with a pistol, Reid went into Carpenter’s trailer where he observed Wolf and Carpenter seated at a booth. Reid testified that he asked Wolf what he meant, did he have “that .38 that he’s been telling these people he was going to shoot me with.” Reid testified further Wolf replied he did not need any .38, and started up, trying to get out of the booth to come on him, and said he thought Wolf was armed with a knife, “I didn’t want him to get to me with that knife...”

This Court stated:

In Craft and numerous other cases we have found that the granting of this instruction was error, but we have never condemned this instruction per se.
* * * * t * *
We are of the opinion that this is one of those rare cases in which it was not error to grant this instruction. When appellant’s own testimony is considered in its most favorable light, it reveals that appellant, seeing Wolf’s car parked near Carpenter’s trailer, deliberately armed himself with his pistol for what he says was self-protection. He proceeded to the trailer, and when he saw Wolf seated in this trailer, he immediately challenged him by asking, “What did he mean?” and did he have the .38 with which he was going to shoot appellant, as he had been telling people he was going to do. At this point appellant became the aggressor and according to appellant, Wolf reacted by saying he did not need any Goddamn .38 and started to get up. At this time, appellant drew his pistol and shot Wolf. This is what appellant should have expected Wolf to do and probably what any man similarly situated would have done. He who by his own conduct compels another to get ready for self-defense cannot claim that the responsive preparation has put his own life in danger, and thereby justified him in stopping the preparation by slaying him who was making ready for [the] combat into which he had been forced.

301 So.2d at 564. (emphasis added).

This Court then quoted from Thomas v. State, 61 Miss. 60 (1883), but emphasized the following sentence therefrom:

301 So.2d at 565. Thomas v. State did not involve an instruction, but did enunciate the above principle of law.

The cases of Lewis v. State, 188 Miss. 410, 195 So. 325 (1940); Woods v. State, 183 Miss. 135, 184 So. 311 (1938); Durham v. State, 158 Miss. 833, 131 So. 422 (1930); Stubblefield v. State, 142 Miss. 787, 107 So. 663 (1926); and Helm v. State, 67 Miss. 562, 7 So. 487 (1890), have also approved an instruction estopping the defendant from pleading self-defense, but the instructions were not in the abstract. In all those cases the facts are patently distinguishable from this case.

The instruction in this case is subject to the same objections as set out in Patrick v. State, for it does not precisely state the law in regard to when' the right of self-defense may be denied a defendant; it is in the abstract, and its terms can only confuse a jury-

Furthermore, there was no necessity for such an instruction. According to the State’s version the defendant was in no danger, real or apparent, when he fired the shotgun. The usual instruction, or instructions, on self-defense would have sufficed in this case.

Years ago in Lofton v. State, supra, after condemning an instruction estopping the defendant from claiming self-defense, this Court stated:

This form of charge, declaring a defendant estopped to plead self-defense, is an exceedingly unwise one to be given. We have repeatedly condemned it, as shown by cases cited in the very able brief of counsel for appellant. It can never be proper, save in the few very rare cases where the case is such, on its facts, that a charge can be given embracing all the elements — -not part of them, nor nearly all of them — essential to the estoppel. The old paths are the safe paths. The juries of the country can be safely trusted to find any defendant guilty whose case is really so bad as to estop him to plead self-defense, without resort — dangerous and unwise — to the metaphysical subtleties necessarily involved in the preparation of a proper charge of that sort. Once more we repeat (hoping that “here a little and there a little, line upon line, and precept upon precept” may at last do their work) that if prosecuting attorneys will ask few and very simple charges, and trust more to the common sense and sound judgment of the juries of the country, they will expose their circuit judges to far less risk of reversal, secure just as many convictions, and have far— very far — fewer cases reversed.

79 Miss, at 734, 31 So. at 421.

The language in Lofton v. State is appropriate in this case. From this record it appears the prosecuting attorney made a virtual shambles of the defense in a vigorous and able cross-examination of Hall and his wife. While disclaiming any omniscience to predict what a particular jury will do in any case, I would modestly assert my belief that the state in this case could have trusted the “common sense and sound judgment" of the jury to evaluate the evidence.

The instruction at issue fails to take into account that the accused could very well have had a lawful purpose in arming himself with the shotgun. He was telephoned to come and get his money by one of the Bradleys. He was also informed by his wife of threats against him by the Bradleys. Can we deny him the right to drive over to the Bradley home to collect money lawfully due him? Can we deny him the right to carry a shotgun if he had reasonable apprehension that his life could be in danger while there? If he left his home intending to use the shotgun, why was it that upon reaching the Bradleys he went to the door without the shotgun?

In Lofton v. State, supra, in condemning such an instruction, we stated: “There is no evidence at all in this record as to what his purpose was in procuring the gun, except his own, and that shows a lawful purpose.” 79 Miss, at 734, 31 So. at 421.

Even if there were testimony that Hall armed himself with the shotgun with the deliberate design of provoking trouble (when in fact there is none), this instruction fails to take into account that he could have changed his mind, and at the time of the incident acted in lawful self-defense. For this further reason, the instruction is erroneous. Adams v. State, 136 Miss. 298, 101 So. 437 (1924); Williamson v. State, 115 Miss. 716, 76 So. 637 (1917).

The majority states that one of the issues presented the jury by the instructions was “.. . whether Hall had abandoned the conflict and was fleeing in good faith, in which event he could invoke the right of self-defense.” I can find no place where this issue was presented to the jury by an instruction.

The majority views the instruction denying any claim of self-defense regardless of circumstances, and another (set out in the majority opinion) granted the defendant defining the circumstances in which he can lawfully act in self-defense, as supplementing one another. I view them as being in hopeless conflict. The defense instruction tells the jury that if they believe certain facts existed, the accused had the right to claim self-defense, and they should find him not guilty. By the state’s instruction the jury is told, in effect, that it makes no difference if the facts set forth in the defense instruction did exist, that the defendant had no right to claim self-defense. When a jury has agreed upon a certain set of facts and, in looking to the court’s instructions, one of the instructions would require reaching one result, and the other would require reaching a different result, such instructions are in conflict. To instruct a jury to apply these two formulas without confusion is an amazing compliment to their erudition. See Holderfield v. State, 215 Miss. 564, 61 So.2d 385 (1952). Moreover, if the jury did understand them, they would have recognized the conflict and their choice between the two would be dependent upon caprice, bias, or conjecture as to which of the two were the more important.

Until this case, for at least a century, this Court consistently has held that an instruction which denied the accused the right to claim self-defense should not be granted except “in few very rare cases.” I believe the present holding of this Court is precisely opposite.

I would reverse and remand.

BOWLING and DAN M. LEE, JJ., join this dissent.

      . The indictment contains surplusage in adding to the above the words, “purposely, knowingly, recklessly under circumstances manifesting extreme indifference to the value of human life.” No injury resulted in this case. See Miss.Code Ann. § 97-3-7(2) (Supp.1981).

      .The majority opinion fails to mention this fact.

      .Had he been shooting at either, the likelihood is that he would not have missed.

      .Estoppel quite often is a legal defense to be decided by a judge, but of course in criminal cases peremptory instructions of guilt cannot be given. Winters v. State, 244 Miss. 704, 146 So.2d 350 (1962). Therefore, if such an issue existed in a criminal case, it would have to be submitted to the jury under proper instruction. This, at least, was the law until Parker, supra, which may have changed the rule.

      . “When the court gives inconsistent instructions on a material issue this violates the principle that the instructions must not mislead the jury and therefore must be consistent and harmonious. The fact that one instruction is correct does not cure the error in giving another that is inconsistent with it.” Smith v. United States, 230 F.2d 935, 939 (6th Cir.1956). See also Perez v. United States, 297 F.2d 12 (5th Cir.1961). Furthermore, “the jury should not be required to determine which part of a contradictory charge is correct.” Polansky v. United States, 332 F.2d 233, 236 (1st Cir.1964). See generally 1 Reid’s Branson Instructions to Juries, § 104 (3rd ed. 1960).


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    William Thomas ZEIGLER, Jr., Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    No. 62752.
    Supreme Court of Florida.
    Oct. 18, 1982.
    Harrison T. Slaughter, Jr. of Dempsey & Slaughter, Orlando, and William F. Duane, Winter Park, for petitioner.
    Jim Smith, Atty. Gen. and Richard Prospect, Asst. Atty. Gen., Daytona Beach, for respondent.
   ADKINS, Justice.

We have for consideration a petition for writ of habeas corpus and an application for stay of execution filed by William Thomas Zeigler, Jr. Petitioner was convicted on two counts of murder in the first degree and two counts of murder in the second degree and received two sentences of death and two sentences of life imprisonment.

The convictions and sentences were affirmed by this Court, Zeigler v. State, 402 So.2d 365 (Fla.1981), and the United States Supreme Court denied certiorari. Zeigler v. Florida,-U.S.-, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982).

All of the grounds for relief which are cited in the petition for writ of habeas corpus have been considered by this Court in a previous case and determined adversely to the contentions of petitioner. Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

The petition for writ of habeas corpus and the application for stay of execution are hereby denied.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald and EHRLICH, JJ., concur.


author: SHIVERS, Judge.

text:
    LEGAL AID SERVICES OF BROWARD COUNTY and Maryland Casualty Company, Appellants, v. Lorene LOGSDON and Division of Workers’ Compensation, Appellees.
    No. AG-118.
    District Court of Appeal of Florida, First District.
    July 29, 1982.

      Jerry V. Wilkey, Coral Gables, for appellants.
    E. Hugh Chappell, Jr., of Chappell, Brandt & Gore, P.A., Fort Lauderdale, for appellees.
   ON PETITION FOR REHEARING

SHIVERS, Judge.

The Court has considered appellants’ petition for rehearing. The petition is denied, 419 So.2d 1203.

Petitioners are correct in asserting the same issue was recently visited by this Court in The Exceptional Children’s Home and Nursery, Inc. v. Fortuna, 414 So.2d 1130 (Fla. 1st DCA 1982). In Fortuna, the Court determined a 36 day delay in the payment of a hospital bill was “consistent with sound business practice.” In the present case, the delay in payment was almost six months. The lengthy delay before payment of the hospital bill in the present case provides a sufficient basis to support the deputy’s finding of bad faith for the purpose of awarding an attorney’s fee. Accordingly, the petition for rehearing is DENIED.

McCORD and MILLS, JJ., concur.


author: PER CURIAM.

text:
    Robert John HART and Charles Ray Hewitt, Appellants, v. STATE of Florida, Appellee.
    No. 81-1231.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 1982.
    Rehearings Denied Nov. 17, 1982.
    Alan Jay Braverman of Law Offices of Alan Jay Braverman, P.A., Fort Lauder-dale, for appellant Hart.
    Jeffrey Mark Harris, Fort Lauderdale, for appellant Hewitt.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. We believe the trial court acted correctly in denying the motion to suppress; State v. Richards, 388 So.2d 573 (Fla. 4th DCA 1980), cert. denied 397 So.2d 778 (Fla.1981), 102 S.Ct. 359; in submitting the issue of constructive possession to the jury; Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978); in denying the motions to dismiss and suppress; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); in instructing the jury on constructive possession; Lacy v. State, 387 So.2d 561 (Fla. 4th DCA 1980); and in upholding the constitutionality of the drug trafficking statute; State v. Benitez, 395 So.2d 514 (Fla.1981).

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


author: PER CURIAM. SHARP, Judge,

text:
    JAMES CARROLL ASSOCIATES, INC., Appellant, v. VIDEO APPLICATIONS, INC., Appellee.
    No. 82-301.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.
    Rehearing Denied Nov. 2, 1982.
    E. Ross Zimmerman of Weinstein & Zimmerman, P.A., Fort Lauderdale, for appellant.
    Kerry I. Evander of Reinman, Harrell, Silberhorn, Moule, Boyd & Graham, P.A., Melbourne, for appellee.
   PER CURIAM.

AFFIRMED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The defendant below, James Carroll Associates, Inc., appeals a non-final order denying its motion to dismiss a complaint on the grounds the court lacks personal jurisdiction. Because the order determines jurisdiction over appellant, it is appealable. Fla.R.App.P. 9.130(a)(3)(C)(i) (1982).

The suit sought collection of a promissory note executed by appellant in New York City. The complaint alleged that the note was delivered to appellee, Video Applications, Inc., in Florida, and that the installments were payable in Florida. When appellant failed to pay an installment, Video accelerated the balance. No other allegations relating to jurisdiction were set forth. Carroll was served in New York City, via Florida’s “Long Arm” statute.

Appellant’s motion to dismiss alleged lack of personal jurisdiction: it was not doing business in Florida, now or ever; the note was executed in New York; and it was delivered in New York. Although perhaps inartfully worded, the motion stated:

The mere fact that a Plaintiff residing in Brevard County, Florida holds a note does not confer jurisdiction upon the Bre-vard County Circuit Court over Defendant who has never had any physical connection with Brevard County and maintains its residence outside the State of Florida. Therefore, it is respectfully submitted that this Honorable Court does not have jurisdiction over the Defendant or the subject matter of this cause.

Appellant filed two affidavits executed by its corporate president and secretary-treasurer substantiating the allegations of its motion. Appellee filed no counter-affidavits and no testimony was taken at the hearing.

Under Florida’s “Long Arm” statute, a person who “[bjreaches a contract in this state by failing to perform acts required by the contract to be performed in this state” comes within the nominal reach of this provision. § 48.193(l)(g), Fla.Stat. (1981). Florida courts have not (at this time) considered whether there are sufficient minimum contacts with this state upon which to base jurisdiction in a situation where a promissory note is executed outside of Florida, and the duty to pay money in Florida is the defendant’s only connection with this State. Other courts, when faced with this situation, have held there are insufficient minimum contacts to assert long-arm jurisdiction over an out-of-state defendant. Hubbard, Westervelt & Mottelay, Inc. v. Harsh Building Co., 28 App.Div.2d 295, 284 N.Y.S.2d 879 (App.Div.1967); Fourth Northwestern National Bank v. Hilson Industries, Inc., 264 Minn. 110, 117 N.W.2d 732 (1962).

It appears to me the trial court erred in not granting appellant’s motion to dismiss, whether or not appellant used the magic words “unconstitutional application of the statute,” when appellant fully set out the circumstances showing lack of jurisdiction in Florida. See Hyco Manufacturing Co. v. Rotex Intern Co., 355 So.2d 471 (Fla. 3d DCA 1978). Initially, Video failed to plead sufficient material facts to establish a basis for the exercise of personal jurisdiction over appellant. Video had the initial burden to plead such facts. Thereafter, Video failed to counter the appellant’s affidavits with affidavits or other proofs to meet the appellant’s challenge of lack of jurisdiction. Hoffman v. Three Thousand South Association, Inc., 318 So.2d 486 (Fla. 4th DCA 1975); Georgia Savings and Loan Service Corporation v. Delwood Estates, Inc., 315 So.2d 237 (Fla. 1st DCA 1975). For both reasons I would reverse the order appealed.

      . § 48.193, Fla.Stat. (1981).

      . See generally such cases as Anson v. Lemperuer, 390 So.2d 478 (Fla. 1st DCA 1980); First Nat’i Bank of Kissimmee v. Dunham, 342 So.2d 1021 (Fla. 4th DCA 1977), and Southwest Cycle Sales, Inc. v. Gold Key Marketing, Inc., 265 So.2d 390 (Fla. 3d DCA 1972) where there were other factors, as well as payment of the note, to consider in determining the issue of minimum contacts.

      . Neff v. Adler, 416 So.2d 1240 (Fla. 4th DCA 1982); Bank of Wessington v. Winters Gov’t. Sec. Corp., 361 So.2d 757 (Fla. 4th DCA 1978).


text:
    James SAWYER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1058.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Rehearing Denied Nov. 17, 1982.

      Bennett H. Brummer, Public Defender and Franklin D. Kreutzer, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, and FERGUSON, JJ., and OWEN, WILLIAM C., Jr., (Ret.), Associate Judge.
   PER CURIAM.

Appellant, a juvenile, was convicted of battery on a law enforcement officer, resisting an officer with violence to the person of a law enforcement officer, and battery. He asserts five points of error, only one of which, the trial court’s failure to comply with the juvenile sentencing procedures of Section 39.111(6), Florida Statutes (1979), has merit.

Section 39.111(6), Florida Statutes (1979) prescribes the mandatory sentencing procedures to be followed by the trial court when jurisdiction of a juvenile defendant has been transferred from Juvenile Court to the Criminal Division of the Circuit Court. See Leach v. State, 407 So.2d 1066 (Fla.2d DCA 1981); Johnson v. State, 371 So.2d 556 (Fla.2d DCA 1979). The trial court, in sentencing appellant, failed to include specific reference to the six criteria contained in the statute (which deal with the suitability of adult sanctions), thus requiring that appellant be resentenced. See Proctor v. State, 373 So.2d 450 (Fla.2d DCA 1979).

We comment briefly on another of appellant’s points, i.e., that the trial court erred in sentencing him separately on two of the convictions. Section 775.021(4), Florida Statutes (1981) permits separate sentences where the same conduct constitutes a violation of two or more statutes, except where one is a lesser included offense of the other. See Carpenter v. State, 394 So.2d 144 (Fla.2d DCA 1981). In this ease appellant was charged with two separate offenses; to wit, battery of a law enforcement officer and resisting an officer with violence to his person. The record reveals that appellant pushed the police officer, resulting in the officer’s placing him under arrest for battery of a police officer. When the officer then attempted to effectuate the arrest, appellant picked up the officer and threw him against the hood of a car, which conduct produced the second charge of resisting an officer with violence to his person. Thus, the trial court, following Section 775.021(4), Florida Statutes (1979), separately sentenced Sawyer to five years in the State Penitentiary for each of the two counts, to run consecutively. See Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981).

In accordance with the foregoing, the judgment of the trial court is affirmed, but the sentence is vacated and this cause remanded for resentencing pursuant to Section 39.111(6), Florida Statutes (1979).


text:
    The STATE of Florida, Appellant, v. Luciano MORRA, Maria M. Morra, Glen Harden, Emanuelle Scavvzzo, Dennis Schmidt, Dean M. Messick, Gustavo A. Escobar, Appellees.
    Nos. 81-1684, 81-1685, 81-1686, 81-1687, 81-1688 and 81-1726.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Rehearing Denied Nov. 16, 1982.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    William T. Laswell, Fort Lauderdale, Alexander L. Martone, Weiner, Robbins, Tun-key & Ross and Geoffrey C. Fleck, Miami, Robert J. Randolph, Stuart, for appellees.
    Before HUBBART, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Rodriguez v. State, 297 So.2d 15 (Fla.1974).


author: SCHOONOVER, Judge.

text:
    Edward ABBERTON and Irma L. Abberton, individually and as husband and wife, Appellants, v. COLONIAL PENN INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 81-1931.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1982.
    Rehearing Denied Nov. 3, 1982.

      Joseph P. McNulty of McNulty, Moritz, Pecarek & Dickey, Largo, and Guy N. Pere-nich of Muscarella, Perenich & Carroll, Clearwater, for appellants.
    William A. Post of Post & Gable, Seminole, for appellee.
   SCHOONOVER, Judge.

This is an appeal from a summary judgment holding that section 627.727(6), Florida Statutes (Supp.1978), prohibits an injured underinsured motorist from maintaining an action against his underinsured motorist carrier if he fails to exhaust the available coverage of the tort-feasor and his insurer. We reverse.

Edward Abberton, plaintiff below, one of the appellants, was involved as a pedestrian in an accident with an automobile on or about August 2,1978. Mr. and Mrs. Abber-ton filed suit against the driver of the automobile and his insurance carrier claiming damages in excess of the $50,000 limits provided by the tort-feasor’s insurance carrier.

At or about the same time the above-mentioned suit was filed, the appellants informed the appellee, Colonial Penn Insurance Company, their uninsured motorist carrier, that they claimed underinsured motorist coverage equal to the liability limits of their insurance policy, i.e., $100,-000/$300,000. They admitted the policy limited coverage to $15,000/$30,000 but took the position that there was no informed or knowing rejection of the coverage in the larger amount. The appellee denied that its policy provided coverage in excess of the $15,000/$30,000 limits and therefore denied any liability to the appellants.

Based upon the appellee’s denial of coverage, the appellants filed the action which is the subject matter of this appeal. Their complaint requests a declaratory judgment holding that the appellee wrongfully failed to provide uninsured/underinsured motorist coverage in an amount equal to their liability limits because they failed to obtain the appellants’ informed and knowing rejection of such coverage.

While the ease sub judice was pending below, the appellants settled their suit against the tort-feasor and his liability carrier for $25,000, one-half of the liability limits of the tort-feasor’s policy. Before dismissing the suit, the appellants moved the court for an order approving the settlement and served a copy of same on counsel for the appellee. The trial court entered an order approving the settlement more than thirty days after the appellants had furnished a copy of the motion to the appellee.

The appellee then filed a motion for summary judgment in the case sub judice. The trial court held that the provisions of section 627.727(6) prohibited the plaintiffs from maintaining the present action because they had failed to exhaust the available coverages of the tort-feasor and his insurer. A final summary judgment was entered in favor of the appellee, and the appellants filed a timely notice of appeal.

Section 627.727(6), provides as follows:

(6) If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured for the limits of liability, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an uninsured motorist claim against the uninsured motorist insurer, then such settlement agreement shall be submitted in writing to the uninsured motorist insurer, which shall have a period of 30 days from receipt thereof in which to agree to arbitrate the uninsured motorist claim and approve the settlement, waive its subro-gation rights against the liability insurer and its insured, and authorize the execution of a full release. If the uninsured motorist insurer does not agree within 30 days to arbitrate the uninsured motorist claim and approve the proposed settlement agreement, waive its subrogation rights against the liability insurer and its insured, and authorize the execution of a full release, the injured person or, in the case of death, the personal representative may file suit joining the liability insurer’s insured and the uninsured motorist insurer to resolve their respective liability for any damages to be awarded; however, in such action, the liability insurer’s coverage shall first be exhausted before any award may be entered against the uninsured motorist insurer, and any such award against the uninsured motorist insurer shall be excess and subject to the provisions of s. 627.727(1). Any award in such action against the liability insurer’s insured shall be binding and conclusive as to the injured person and uninsured motorist insurer’s liability for damages up to its coverage limits. The provisions of s. 627.428 shall not apply to any action brought pursuant to this section against the uninsured motorist insurer.

Prior to enactment of the above-mentioned subsection, the First District Court of Appeal in the case of United States Fidelity & Guaranty Co. v. Gordon, 359 So.2d 480 (Fla. 1st DCA 1978), held at page 481:

There is nothing in Section 627.727 that indicates that the insured must exhaust all benefits available from other sources before being eligible to recover under his uninsured vehicle coverage. The Section merely states that uninsured vehicle coverage shall be excess over and not duplicate other available benefits.

The subsequent enactment of subsection (6) of the statute does not change this principle, and we accordingly hold that an injured person is not required to settle his claim for damages for the entire limits of a tort-feasor’s liability coverage as a condition precedent to seeking recovery against his own U/M insurer for damages in excess of said coverage.

A review of the subsection indicates that it provides and recognizes the insurer’s sub-rogation rights against the liability insurer. These subrogation rights could not exist if the settlement was for the full limits of liability coverage.

Section 627.727(6) recognizes an insurer’s right to arbitration and preserves his subro-gation rights. It also preserves to the insured his right to sue the insurer for damages in excess of the tort-feasor’s liability coverage in the event that the insurer does not agree to the settlement and/or arbitration. The subsection further allows the insured to join the uninsured motorist carrier in the main action against the tort-feasor thereby allowing all matters to be litigated in one action.

The enactment of this section had no effect on section 627.727(1) which still provides that the coverage is over and above but shall not duplicate the benefits available to an insured.

The fact that an insured person settles his claim for an amount less than the full amount of liability insurance carried by the tort-feasor is not determinative of the amount of damages actually sustained by him. Settlements are often made for reasons which have little to do with the amount of damages sustained by the injured party. United States Fidelity & Guaranty v. Gordon.

We accordingly hold that the enactment of subsection (6) did not change or affect appellants’ right to settle for less than the limits available to them from the tort-fea-sor’s liability insurance.

When the appellee denied coverage and then failed to respond to the appellants’ request for court approval of their settlement with the tort-feasor and his insurer, the appellants were at liberty to take whatever action they felt was necessary to protect their interests. Infante v. Preferred Risk Mutual Ins. Co., 364 So.2d 874 (Fla. 3d DCA 1978).

If the insurance policy in question contains a condition requiring approval of the appellee before settling with the tort-fea-sor, and the coverage question is determined in appellants’ favor, it will still be necessary for the appellants to prove there was no prejudice to the appellee by said settlement before they can prevail. Tucker v. Seward, 400 So.2d 505 (Fla. 5th DCA 1981).

We reverse and remand for proceedings consistent herewith.

OTT, C.J., and SCHEB, J., concur.


text:
    Brian R. ASHBY and/or Lloyd’s Underwriters, Appellants, v. HOBOJO RACING STABLES, INC., Appellee.
    No. 81-1855.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Rehearing Denied Nov. 16, 1982.
    Thornton & Herndon and Barbara A. Curtis and James Sullivan, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, J. Arthur Hawkesworth, Jr., Miami, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Stonewall Insurance Company v. Emerald Fisheries, Inc., 388 So.2d 1089 (Fla. 3d DCA 1980); Bass v. Aetna Casualty and Surety Company of Hartford, Connecticut, 199 So.2d 790 (Fla. 4th DCA 1967); Circle 4 Stables, Inc. v. National Surety Corporation, 451 S.W.2d 564 (Tex.Civ.App.1970).


text:
    Charles Glenn HARLESS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2016.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Rehearing Denied Nov. 17, 1982.
    Bennett H. Brummer, Public Defender and Gerald D. Hubbart, Sp. Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT AND FERGUSON, JJ.
   PER CURIAM.

In this appeal from an order denying post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, appellant has failed to demonstrate that trial counsel’s decision to not call potential alibi witnesses substantially prejudiced him to the extent that there is a likelihood that the allegedly erroneous decision affected the outcome of the trial. Knight v. State, 394 So.2d 997 (Fla.1981).

Affirmed.


author: NESBITT, Judge.

text:
    Donald W. McINTOSH, Frances M. Farina, Robert W. Geyer, S. Nash, Edith Friedman and Herbert Spahn, and other persons similarly situated, Appellants, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, Shores Condominium Association, Inc., Quayside Associates, Ltd., Rollnick, Squitero & Katz, P.A., and Williams, Salomon, Kanner, Damian, Weissler & Brooks, Appellees.
    No. 81-2298.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Rehearing Denied Nov. 16, 1982.
    Ress, Gomez, Rosenberg & Howland and Sheldon Rosenberg, North Miami, for appellants.
    Lapidus & Stettin and Richard Lapidus, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The plaintiffs appeal from the dismissal of their complaint on the basis that the agreement from which the plaintiffs’ cause of action arose was champertous. We reverse.

The Metropolitan Dade County Commission (Commission) authorized zoning variances in favor of Quayside, a real estate project. Two condominium associations, the Villas and the Shores, as well as the plaintiffs, who were individuals residing within 500 feet of Quayside, or within the nearby geographic area, joined together to fight the zoning variance. Representatives of these groups met with the law firm of Williams, Salomon, Kanner, Damian, Weis-sler & Brooks to commence legal proceedings for the purpose of appealing and having declared void the decision of the Commission.

Their attorney appeared before the Commission and ultimately filed appeals with the circuit court and this court. These suits were instituted solely in the name of the Villas and the Shores with none of the individual residents named as plaintiffs. Prior to the determination of the appeal by this court, the Villas and the Shores independently settled with Quayside. The Villas’ settlement was in the amount of $3,000,000. Quayside agreed to indemnify the Villas from any and all claims by persons not members of the Villas, who had contributed to the legal fees incurred in prosecuting the action and who might claim that the Villas should not have settled. The settlements resulted in the dismissal of the appeal and foreclosed any possibility that the individual appellants could obtain zoning relief.

Plaintiffs thereafter filed a seven-count complaint against the Villas, Shores, Quayside, and the lawyers. The defendants filed a motion to dismiss alleging that the complaint demonstrated a champertous agreement between the parties in that it failed to allege the plaintiffs’ standing to join in the litigation challenging the zoning variance. The motion to dismiss was granted, but the court allowed leave to amend. Several plaintiffs amended but the appellants failed to do so. The trial judge entered a final order of dismissal against those plaintiffs, the appellants herein, who did not file a second amended complaint.

Champerty is an agreement wherein a person without interest in another’s suit undertakes to carry it on at his own expense, in whole or in part, in consideration of receiving a part of the proceeds of the litigation. 9 Fla.Jur.2d Champerty and Maintenance § 1 (1979). The trial court dismissed the complaint because it found that appellants’ failure to allege their standing to appeal the Commission’s rezoning determination precluded them from having an interest in the litigation. We disagree.

We adopt the definition of interest sufficient to avoid a champertous agreement, which has been stated as follows:

Where a person promoting the suit of another has any interest whatever, legal or equitable, in the thing demanded, distinct from that which he may acquire by an agreement with the suitor, he is in effect also a suitor according to the nature and extent of his interest. It is accordingly a principle that any interest whatever in the subject matter of the suit is sufficient to exempt a party giving aid to the suitor from the charge of illegal maintenance. Whether this interest is great or small, vested or contingent, certain or uncertain, it affords a just reason to the party who has such an interest to participate in the suit of another.

14 C.J.S. Champerty and Maintenance § 26 (1939). See also 14 Am.Jur.2d Champerty and Maintenance § 9 (1964). Clearly, then, the interest in litigation necessary to avoid a champertous agreement is not synonymous with and need not be as great as that required to satisfy standing requirements.

Appellants alleged in their complaint that they would “suffer adverse consequences by way of a drain upon local services as well as an increase in existing traffic problems and diminution of their real property values.” From these allegations, we conclude that appellants had an interest in the appeal; they were not strangers or intermeddlers. See Harry Pepper & Associates, Inc. v. Las- seter, 247 So.2d 736 (Fla. 3d DCA), cert. denied, 252 So.2d 797 (Fla.1971). Consequently, it was error for the trial court to dismiss the complaint where the agreement on its face was not champertous. 14 C.J.S. Champerty and Maintenance § 49 (1939).

Because the trial judge dismissed the complaint on the basis of champerty, we decline to now determine if the complaint otherwise stated a cause of action. The appellants have demonstrated an ability to state a cause of action on one or more theories alleged, sufficient to preclude a final judgment of dismissal at this stage.

Accordingly, we reverse and remand with directions to reinstate the complaint.

      . The complaint sought relief on the following bases:
      (1) breach of contract; (2) quasi-contract; (3) joint venture; (4) unjust enrichment and constructive trust; (5) tortious interference with contract; (6) third-party beneficiary; and (7) declaratory judgment.

      . Those appellants sought review in this court. However, the appellees’ motion to dismiss the appeal was granted on the basis that the order was not final. A petition for common law certiorari was also denied.

      . If there are factual questions as to the interest of any of the appellants, this must be resolved by the trier of fact. 14 C.J.S. Champerty and Maintenance § 49.60 (1939).


text:
    UNDERWRITERS AT LLOYD’S, LONDON; Road Transport & General Insurance Company Limited; The Phoenix Greek General Insurance Company, S.A.; Korean Reinsurance Company; Norwich Union Insurance Co.; Provincial Insurance Company Limited; and Americas Insurance Company, Appellants, v. AMERICAN AVIATION GROUND SERVICES, INC., Appellee.
    No. 82-818.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Rehearing Denied Nov. 16, 1982.
    McDonald & McDonald and David McDonald and Howard D. Dillman, Miami, for appellants.
    Palmer & Lazar, and Bruce Lazar, Miami, for appellee.

      Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Appellee, American Aviation Ground Services, Inc. (AMERICAN), owner of a marijuana-laden aircraft which crashed and sank in Bahamian waters, was not entitled to a summary judgment against appellant-insurer, Underwriters at Lloyd’s, London (UNDERWRITER) to recover the loss under Provisions of a Breach of Warranty Endorsement in an insurance contract. The Breach of Warranty Endorsement was issued in favor of American National Bank & Trust Company of New Jersey which held a $90,000.00 note and lien on the airplane. A Breach of Warranty Endorsement gives a lienholder a separate and distinct contractual status with the insurer so that the lienholder can recover his loss under circumstances and conditions that would defeat recovery by the insured. Glen Falls Insurance Co. v. Porter, 44 Fla. 568, 38 So. 473 (1902); Security Insurance Company of Hartford v. Commercial Credit Equipment Corporation, 399 So.2d 31 (Fla. 3d DCA 1981); Airvac, Inc. v. Banger Insurance Company, 266 So.2d 178 (Fla. 4th DCA 1972); National Casualty Company v. General Motors Acceptance Corporation, 161 So.2d 848 (Fla. 1st DCA 1964). Contrary to appellant’s contention, the owner of the airplane, as a party having “an economic interest in the safety or preservation of the subject”, may bring an action under the endorsement provision for the benefit of the lienholder (bank). § 627.405, Fla.Stat. (1979); Cincinnati Insurance Company v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974); Schlehuber v. Norfolk & Dedham Mutual Fire Insurance Co., 281 So.2d 373 (Fla. 3d DCA 1973).

Appellant also contends that the aircraft was not covered by the main policy at the time of loss, so there can be no recovery under the Breach of Warranty Endorsement. AMERICAN owns several airplanes insured by UNDERWRITER under a blanket policy. The evidence shows that AMERICAN did not insure the airplane in question under its contract with UNDERWRITER after the plane had been leased to a third person, named Svoboda, who, as a condition of the lease, was to provide insurance coverage for the benefit of AMERICAN. AMERICAN had purchased “ground coverage” insurance to protect against loss until Svoboda’s lease agreement was executed. On March 17, 1981, the lease was executed after Svoboda made a $10,000.00 deposit and produced an insurance binder showing operational coverage for $120,-000.00 naming AMERICAN as loss payee. Furthermore, AMERICAN’S reporting forms to UNDERWRITER, filed three months late in violation of the policy terms, listed the aircraft as covered for ground loss for only the first twenty days in March. The reason given by the President of AMERICAN for not insuring the aircraft after the first twenty days in March was that the aircraft had been leased on March 17, 1980 to Frank Svoboda, and had then been covered under a separate Policy procured by the lessee which became effective March 14, 1980. There is no contrary evidence in the record.

Accordingly, we reverse and remand with instructions to enter summary judgment for appellant.

      . Summary judgment was entered on only the second count of a three-count complaint. In count one appellee seeks damages for breach of contract under the main policy. In count three appellee seeks to recover on a policy covering the aircraft, issued by a different insurer.


text:
    Chester Lee THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-157.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Rehearing Denied Nov. 17, 1982.

      Bennett H. Brummer, Public Defender and Paul M. Korchin, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

A defendant may not appeal from a judgment entered upon a plea of guilty. Bridges v. State, 376 So.2d 233 (Fla.1979); Walker v. State, 399 So.2d 374 (Fla. 3d DCA 1981). This appeal is accordingly dismissed without prejudice, however, to a subsequent consideration of a Fla.R.Crim.P. 3.850 motion based upon alleged ineffective assistance of trial counsel or any other appropriate ground.


text:
    PLAZA REALTY INVESTORS, a Massachusetts Business Trust, Plaza at Bay Tree, Inc., a Florida corporation, and Inverrary Village, Inc., a Florida corporation, Appellants, v. Harry SINGER, and Peter Glazier, Appellees.
    No. 81-1467.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Rehearing Denied Nov. 17, 1982.
    Joe N. Unger, Miami, August, Pohlig & Milstein, Coral Gables, for appellants.
    Jeffrey L. Berkowitz, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, and Joel D. Eaton, Miami, for appellees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

This appeal questions the correctness of a summary final judgment rendered in favor of appellees in a real estate brokerage commission case. Appellants contend that there were material issues of fact to be tried concerning the fault or negligence of joint venturers which allegedly prevented creation of the fund out of which commissions were to be paid.

The trial court ruled that there was no genuine issue as to any material fact, therefore the plaintiffs were entitled to judgment as a matter of law in the principal amount of $278,400.00 together with interest in the amount of $37,107.40, for a total of $315,507.40 with interest at the rate of ten percent per annum.

Upon careful consideration of the record on appeal, we have concluded that no reversible error has been demonstrated: It has been clearly established that there is no genuine triable issue of material fact, Holl v. Talcott, 191 So.2d 40 (Fla.1966), and that the appellees are entitled to judgment as a matter of law, Balias v. Lake Weir Light & Water Co., 100 Fla. 913, 130 So. 421, 427 (1930); Walker v. Chancey, 96 Fla. 82, 117 So. 705 (1928); Florida Boca Raton Housing Ass’n v. Marqusee Associates of Florida, 177 So.2d 370 (Fla. 3d DCA 1965); see Quantum Realty, Inc. v. Lauderhill Apartment Investors, Ltd., 391 So.2d 228 (Fla. 3d DCA 1980), review denied, 399 So.2d 1143 (Fla.1981).

Accordingly, the judgment appealed is affirmed.

Affirmed.


author: SCHWARTZ, Judge.

text:
    Mark JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1729.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Rehearing Denied Nov. 17, 1982.
    Bennett H. Brummer, Public Defender and Robert A. Smoley and Jeff Grate, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt and Penny Hershoff, Asst. Attys. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The prosecutor’s personal attacks upon defense counsel during final argument — which reached their apogee (or nadir) when the jurors were asked whether they would buy a used car from him — were, as is now acknowledged by the state, utterly and grossly improper. Adams v. State, 192 So.2d 762 (Fla.1966); Carter v. State, 356 So.2d 67 (Fla. 1st DCA 1978); Reed v. State, 333 So.2d 524 (Fla. 1st DCA 1976); see Peterson v. State, 376 So.2d 1230, 1233 (Fla. 4th DCA 1979). While the prejudicial effect of these remarks might have been dissipated if, as required, the trial judge had emphatically rebuked the state attorney and affirmatively instructed the jury that the comments must be totally disregarded, Deas v. State, 119 Fla. 839, 161 So. 729, 731 (1935), in fact, he either merely told counsel to “comment on the evidence,” but see Harper v. State, 411 So.2d 235, 236-37 (Fla. 3d DCA 1982); Peterson v. State, supra, 376 So.2d at 1233 n. 2; Price v. State, 267 So.2d 39, 40 n. 1 (Fla. 4th DCA 1972), or, in the case of the “used car salesman” remark which was the worst of all, actually overruled the objection. In these circumstances, we must conclude that the defendant’s fundamental right to a fair trial may be upheld only by ordering a new one. Oglesby v. State, 156 Fla. 481, 23 So.2d 558 (1945); Ruiz v. State, 395 So.2d 566 (Fla. 3d DCA 1981), and cases cited; Carter v. State, supra.

We choose to employ this decision to discuss the broader, very serious problem it exemplifies. For some time, this court has been faced with a veritable torrent of cases which have similarly involved significant prosecutorial improprieties committed by assistant state attorneys in this district. E.g., Chapman v. State, 417 So.2d 1028 (Fla. 3d DCA 1982); Gomez v. State, 415 So.2d 822 (Fla. 3d DCA 1982); Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982); Kindell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982); Harper v. State, supra; McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); Ruiz v. State, supra; Porter v. State, 386 So.2d 1209, 1213-14 (Fla. 3d DCA 1980); Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979). The volume of these cases — including multiple acts of misconduct by particular prosecutors — is so great that we can no longer believe that they represent merely isolated examples of understandable, if inexcusable, overzealousness in the heat of trial. Instead, we must suspect, however reluctantly, that the improprieties may be deliberately calculated to accomplish just what representatives of the state cannot be permitted — inducing a jury to convict by unfairly prejudicing it against the defendant. It is obvious that this pattern of conduct cannot be tolerated. It is just as apparent, and just as distressing, however, that our prior efforts to eliminate the practice have proven entirely inadequate. Cf. United States v. Modica, 663 F.2d 1173 (2d Cir.1981). Strong admonitions, such as those administered in Harris, Harper, and Porter, supra, obviously do no good. Even repeated reversals on the basis of prosecu-torial impropriety have apparently not achieved this result. Since reliance upon an adherence — enforced either by self-discipline or that of their superiors — to the obligations imposed upon assistant state attorneys by their oaths, special provisions of the Code of Professional Responsibility, and numerous decisions of our supreme court, e.g., Grant v. State, 194 So.2d 612 (Fla.1967); Adams v. State, supra; Pait v. State, 112 So.2d 380 (Fla.1959), has also proven unavailing, we are compelled to point out that prosecutors are also members of the Bar, bound by the same rules and the same disciplinary process which apply to all lawyers. Accordingly, we serve notice that in each instance of prosecutorial misconduct which comes to our attention this court shall determine if it is appropriate to invoke the relevant procedures of the Florida Bar, whether by simply calling the matter to its attention for further investigation, see Fla. Bar Integr. Rule, art. XI, Rule 11.14(9), or by ourselves requiring the direct filing of a motion in the circuit court to discipline the attorney in question. Fla. Bar Integr. Rule, art. XI, Rule 11.14(1).

Because of the prosecutor’s prejudicial misconduct, the judgment below is

Reversed and remanded for a new trial.

      . At the commencement of the assistant state attorney’s rebuttal argument the following occurred:
      MR. MANN: Ladies and gentlemen of the jury, there are only four words missing from Mr. Smoley’s unbelievable summation.
      There are only four words missing: Once upon a time.

        He is telling you a story. He even said, ‘Even if I said I was a State Attorney to Loula.’

        Would you buy a used car from this guy, ladies and gentlemen of the jury?
      MR. SMOLEY: I object, Your Honor, and move to strike that statement as to pointing out to the jury whether they would buy a used car from me.
      THE COURT: Folks, objection overruled. Sit down. Continue, [e.s.]
      Later, in another example of this approach, the prosecutor called the lawyer a “cheap shot artist.” The trial court responded to an immediate objection by stating only, “Your objection is noted. Comment on the evidence, please.”

      . Id.

      . Not the one involved in this case.

      . This may be — although we are loath even to consider the possibility — because some prosecutors believe that keeping a convicted defendant in prison during the sometimes lengthy appellate process is enough to chalk up a “win” even if the conviction is later reversed.

      .Fla.Bar Code Prof.Resp.:
      EC 7-13 The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. The special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts. With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecution’s case or aid the accused.

      . Fla.Bar Code Prof.Resp.:
      EC 7-36 Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. Although a lawyer has the duty to represent his client zealously, he should not engage in any conduct that offends the dignity and decorum of proceedings. While maintaining his independence, a lawyer should be respectful, courteous, and aboveboard in his relations with a judge or hearing officer before whom he appears. He should avoid undue solicitude for the comfort or convenience of judge or jury and should avoid any other conduct calculated to gain special consideration.
      EC 7-37 In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer in his conduct, attitude, and demeanor toward opposing lawyers. A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system. DR 7-106 Trial Conduct.
      (A)A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.
      (B) In presenting a matter to a tribunal, a lawyer shall disclose:
      (1) Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.
      (2) Unless privileged or irrelevant, the identities of the clients he represents and of the person who employed him.
      (C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
      (1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
      (2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.
      (3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.
      (4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
      (5) Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.
      (6) Engage in undignified or discourteous conduct which is degrading to a tribunal.
      (7) Intentionally or habitually violate any established rule of procedure or of evidence.

      . We find no error in the exclusion of hearsay testimony that another person had admitted committing the crime of which Jackson was accused, because the defense did not proffer below “corroborating circumstances [to] show the trustworthiness of the statement” as is required to justify admissibility under Sec. 90.-804(2)(c), Fla.Stat. (1981). This ruling does not


text:
    SCHOOL BOARD OF LEON COUNTY, Florida, Appellant/Cross Appellee, v. Joseph & Piercie EHRLICH, et al., Appellees/Cross Appellants. Fred H. WHITE, Jr., et al., Appellants/Cross Appellees, v. SCHOOL BOARD OF LEON COUNTY, Florida, Appellees/Cross Appellants.
    Nos. AG-314, AG-315.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.
    Rehearing Denied Nov. 18, 1982.
    Charles A. Johnson, Tallahassee, and C. Graham Carothers of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for School Bd. of Leon County, appellant/cross appellee.
    George L. Waas of Slepin, Slepin, Lambert & Wass, Tallahassee, for Joseph & Piercie Ehrlich, appellees/cross appellants.
    J.D. Boone Kuersteiner, Nicholas Yonclas and Lawrence W. Smith of Akerman, Sen-terfitt & Eidson, Tallahassee, for Fred H. White, Jr., appellants/cross appellees.
   OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

These consolidated administrative appeals are from substantially identical final orders entered by hearing officer William E. Williams of the Division of Administrative Hearings on separate Section 120.54(4), Florida Statutes (1980), rule challenges to the proposed amendments to the School Board’s rule pertaining to school attendance zones for the district’s middle schools and high schools, respectively. The School Board has appealed from that part of the orders holding a portion of the proposed rule amendment invalid, and the petitioners separately have appealed from that portion of the orders upholding the validity of the remainder of the proposed amendment. We conclude that the only error requiring reversal and discussion is the School Board’s first point relative to its obligation to furnish transportation for any student who, under the grandfather clause of the proposed rule, elects to attend a school outside of the attendance zone of his or her residence. Consequently, the recitation of facts is limited to those necessary for our discussion of that issue.

The School Board of Leon County determined on its own initiative to restructure attendance boundaries for the district’s schools in order “to make more effective use of school facilities and to seek greater

Since they are unlikely to recur, we do not discuss the other issues raised in this appeal. racial balance” among the high schools and middle schools. At that time the School Board had in effect Rule 6Gx37-3.02 entitled “Assignment of Pupils,” subsection (2) of which included the statement, “all students enrolled in any school operated by the School Board shall attend the school offering their grade level located in the attendance zone of their residence except as hereinafter provided.” This sub-paragraph was then followed by several sub-sub-paragraphs (a-d) dealing with exceptions to this general rule on student assignments. One of the criteria which the Board had established for guidance in structuring the new attendance boundaries was that students in certain specified grades be permitted upon request to remain in the same school attended in the preceding year should the rezoning result in the attendance zone of their residence placing them in another school, with any needed transportation being provided by the parent and not the school board. In order to place into effect this provision for grandfathering as an additional exception to the general rule on student assignments, it was proposed to amend Rule 6Gx37-3.02(2) by adding a sub-sub-paragraph (e) as follows:
(e) Grandfathering. The following standards shall be for grandfathering certain students provided that their residence remains unchanged, in order to preserve educational continuity. Once a student has indicated his or her choice, in writing, changes may be made through application to the Board Reassignment Subcommittee.
(i) The Board shall, upon request, allow students who were enrolled in a high school during the 1980-81 school year to remain at that same high school if new zones for the 1981-82 school year put them in the attendance zone of a different high school so long as the parents shall be responsible for all necessary transportation.
(ii) Middle school students who will be in the eighth grade and elementary students who will be in the fifth grade during the 1981-82 school year shall, upon request, be allowed to remain at the school attended during the 1980-81 school year even though the 1981-82 school attendance zones place them in a new school so long as the parents shall be responsible for all necessary transportation.

A group of parents of students affected by the rezoning of high school attendance boundaries filed a timely rule challenge pursuant to Section 120.54(4), Florida Statutes, as did a separate group of parents of students affected by the rezoning of the middle school boundaries. The School Board’s motions to dismiss for lack of standing were denied following which a consolidated hearing on the two petitions was held before the hearing officer. In separate but substantially identical orders the hearing officer comprehensively and meticulously dealt with every issue raised by either the School Board or the petitioners. He first concluded that the rezoning constituted rule making and that the petitioners had standing to challenge the rule. He then upheld the validity of the proposed rule as against the attacks made on the grounds of inadequacy of notice and insufficiency of economic impact statement, the hearing officer finding “that the School Board either complied with the notice and economic impact requirements of Chapter 120, Florida Statutes or to the extent that any minor irregularities appeared of record, there has been no showing that they impaired the fairness of the proceeding.” However, the hearing officer also concluded that Section 234.01, Florida Statutes, required the Board to provide students with free transportation to the “nearest appropriate” school, and that under the grandfather clause of the proposed rule, as to any student who qualified thereunder, there were two “appropriate” schools for that student as to whom the School Board was required to provide free transportation to whichever of the “appropriate” schools was both two miles or more from the student’s home and nearer to the student’s home than any other school which the Board may have deemed “appropriate.” The hearing officer held that to the extent the proposed rule might be construed or interpreted to relieve the School Board of its financial responsibility to transport any grandfathered student living outside a two mile radius from the grandfathered school, which school was also the nearest to his or her residence, the proposed rule constituted an invalid exercise of delegated legislative authority.

When the School Board established school attendance zones, it established for each student in the district the “appropriate school,” i.e. the school offering the student’s grade level located in the attendance zone of the student’s residence, or such other school offering the student’s grade level to which the student might be assigned involuntarily. When the School Board determined to create certain exceptions to the school attendance zones whereby a qualified student could voluntarily elect to attend a school other than the zoned school, the alternative or “optional” school did not thereby become an “appropriate school” within the contemplation of the school transportation statute, Section 234.01, Florida Statutes. Furthermore, we think it clear that where a school board has the discretionary authority to provide an option to students as to their school of assignment, the board also has the discretion to condition the manner by which this option is exercised. Local school boards are directed by the State Board of Education, under Rule 6A-3.17 Florida Administrative Code to provide transportation by school bus when it is “economical and practical.” The school board has provided for transportation for those students who qualify and who are in attendance at the zone school. The board should not be made to bear the expense of providing a second transportation system for those who opt to attend a nonzone school.

We hold that the School Board’s proposed rule (whereby it was relieved of its financial responsibility to transport certain students who, under a grandfather clause of the rule, opted to attend a district school other than the school designated by the Board to serve the zone in which the student resided) was a valid exercise of delegated legislative authority, and thus, that it was error for the hearing officer to hold that portion of the proposed rule invalid. That part of the appealed orders which holds the proposed rule to constitute an invalid exercise of delegated legislative authority is reversed. In all other respects, the appealed orders are affirmed.

JOANOS and WIGGINTON, JJ., concur.


text:
    Frances M. SPENCE, Appellant, v. PEN AIR FEDERAL CREDIT UNION and Cumis Insurance Society, Inc., Appellees.
    No. AJ-424.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.
    Rehearing Denied Nov. 15, 1982.

      Thomas C. Staples, of Mann, Lang & Staples, Pensacola, for appellant.
    W.H.F. Wiltshire, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lees.
   PER CURIAM.

The plaintiff, Frances M. Spence, appeals from the trial court’s final summary judgment in this “trip and fall” negligence action. ' We find that there are disputed issues of material fact or disputed inferences to be derived from those facts as to whether the alleged dangerous condition, a step-up, was a latent or patent condition and whether there was a legally sufficient distraction to justify Spence’s inattention to a known danger. Accordingly, the cause was not ripe for a summary judgment and must be reversed for a trial on the merits, Fla.R. Civ.P. 1.510(c).

Reversed and remanded for further proceedings consistent with this opinion.

McCORD, BOOTH and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    James KNIGHT, Appellant, v. CITY OF MIAMI and Department of Labor & Employment Security, State of Florida, Appellee.
    No. AK-356.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.
    Rehearing Denied Nov. 10, 1982.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellant.
    Michael J. Rudicell, Lakeland, for Dept, of Labor and Employment Sec., appellee.
   MILLS, Judge.

Knight appeals a compensation order denying interest and attorneys’ fees. We affirm.

As conceded by Knight, the propriety of interest is controlled by Department of Labor and Employment Security v. Vaughan, 411 So.2d 294 (Fla. 1st DCA 1982).

Attorneys’ fees are not available from the State without statutory authority, and since the State is not an employer/carrier in this case there is no such authority.

ERVIN and WIGGINTON, JJ., concur.


text:
    Thomas BARTOLOMEO and Mamie Bartolomeo, Appellants, v. Juan ALVAREZ and Concepcion Alvarez, his wife, Appellees.
    No. 81-2569.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Nov. 16, 1982.
    Brumer, Cohen, Logan & Kandell, Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Miami, for appellants.
    Manuel A. Crespo, Miami, for appellees.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The record supports the conclusion that the vendors waived the right to rely upon the “time is of the essence” provision of their real estate contract with the appellees. The judgment granting specific performance is therefore affirmed on the authority of Forbes v. Babel, 70 So.2d 371 (Fla.1953). See also, Harrison v. Baker, 402 So.2d 1270 (Fla. 3d DCA 1981).

Affirmed.


author: DAUKSCH, Judge.

text:
    Bud Hampton MOUNTS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1487.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1982.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order revoking probation and a sentence. Appellant alleges and appellee concedes the court erred by revoking the appellant’s probation as to Count IV of the Information # 79-1069CFA and sentencing him under that count because he was not serving probation for that count. He had already served his time for that conviction.

Those portions of the judgment and sentence which purport to reconvict and resen-tence appellant for Driving Under the Influence Resulting in an Accident as charged in Count IV of Information # 79-1069CFA are reversed and the remaining portions of the judgment and sentence are affirmed.

AFFIRMED IN PART; REVERSED IN PART.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: JOANOS, Judge.

text:
    Jerry Ross SMART, Appellant, v. BOARD OF REAL ESTATE, Department of Professional Regulation, Appellees.
    No. AF-192.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.

      Richard J.R. Parkinson of Parkinson & Pyle, Orlando, for appellant.
    Frederick H. Wilsen, Asst. Gen. Counsel, Dept, of Professional Regulation, Tallahassee, for appellees.
   JOANOS, Judge.

Appellant seeks review of a Department of Professional Regulation (DPR) final order rejecting his application for a real estate broker’s license. Smart’s earlier real estate broker’s license was revoked in 1977 when he was found guilty of attempted grand larceny by failing to escrow funds, with the adjudication of guilt being withheld. At a 1981 hearing to determine rehabilitation, a hearing officer concluded that Smart had met his burden of proof under Section 475.17, Florida Statutes (1979), that by lapse of time, subsequent good conduct and reputation, the public would not be hurt by his relicensure. In the final order appealed from, the Secretary of DPR found that sufficient time had not lapsed from the date Smart’s license was revoked, rejecting the hearing officer’s conclusion.

Smart contends that by rejecting the hearing officer’s finding, DPR is obligated to make a specific finding of what does constitute a sufficient lapse of time. DPR contends that it rejected a conclusion of law and, therefore, is not required to make specific findings.

Section 120.57(l)(b)9, Florida Statutes (1979), provides that an agency in its final order may reject or modify conclusions of law in the recommended order, but may not reject or modify the findings of fact unless determined from a view of the complete record, and it states with particularity, that the findings of fact were not based upon competent substantial evidence. In McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), in interpreting this statute this Court further stated that in cases where ultimate facts include opinions infused with policy insights, the agency is required to explain its action. Id. at 583.

We find that the determination of whether sufficient time has lapsed since the license revocation is an ultimate finding, which requires consideration of the underlying factual circumstances as gleaned from the transcript of the proceeding before the hearing officer and the application of agency policy. Therefore, DPR could not have made its final determination without reviewing the record. Accordingly, we REVERSE the order appealed from and REMAND for DPR to reconsider the hearing officer’s report and study the transcript of the hearing. Upon conclusion of those tasks, it should make a determination of the issues involved in this matter and render a new order setting out its determinations and appropriately explaining them.

LARRY G. SMITH, and SHAW, JJ., concur.