author: SWIFT, Judge. LABORDE, Judge,

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Plaintiff-Appellee, v. Charles DAVIS, et al., Defendants-Appellants.
    No. 8115.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 1981.
    Rehearings Denied July 21, 1981.
    Morrow & Morrow, J. Michael Morrow, Opelousas, for defendants-appellants.
    Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

In this highway expropriation case the State of Louisiana, Department of Transportation and Development (DOTD), has taken 9,954.2 square feet of the defendants’ tract of land fronting on Eraste Landry Road in the city of Lafayette. There appears to be a difference as to the area of the original lot, but the trial judge found that it contained 29,917 square feet and after the taking there remained 19,963 square feet, 1049 thereof being subject to a construction servitude.

The parties stipulated that the market value of the land at the time of the taking was $1.41 per square foot. Therefore, the value of the part taken was $14,035.42. DOTD deposited into court $13,940.00 for the expropriated property.

In their answer the landowners asserted they were entitled to $1,000,000.00 for the land taken, expenses incurred, damages and attorneys’ fees. Mainly, they sought reimbursement for loss of future rentals under a lease which they entered into some eight months prior to the institution of DOTD’s suit wherein they agreed to construct a building for lessee’s occupancy. The building was not completed when this suit was filed. The lease was for a term of six years, with options to purchase the property at the end of each year, and it contained an option to renew for an additional six year period. It further provided that the lease would expire if the property was expropriated and in such case the lessors would receive the full price of the taking without any deduction for the lessee’s interest.

After trial the district judge awarded the defendants the following:

Market value of property taken: $14,035.00
Expenditures by owners-lessors: $34,351.28
Less Sale of Building: -15,000.00
Unrecovered expenditures: 19,351.28
Construction servitude: 330.00
Lease termination damage: 21,400.00
TOTAL COMPENSABLE LOSS: $55,116.28

This amount, of course, was subject to a credit of $13,940.00 for DOTD’s deposit which was withdrawn by the defendants. An attorney’s fee of $8,235.26 (being 20% of the difference between the actual award and the amount originally deposited in the court) was also granted. The fee of the defendants’ appraiser, LeRoy Cobb, was fixed at $1,000.00. The court costs were assessed to the plaintiff.

Defendants have appealed, contending that the award is inadequate in all respects. DOTD has answered the appeal, seeking the elimination of the $21,400.00 allowed for “lease termination damage.”

At the hearing in this court DOTD’s counsel stated that it had no objection to the amounts awarded for the property taken, the construction servitude and an additional amount for unrecovered expenditures up to an aggregate sum of $42,415.00 which was the estimate of just compensation of its highest appraiser.

The principal issue for determination by this court is whether or not defendants are entitled to an award for loss of future rentals under the lease that was terminated by this expropriation proceeding in addition to the market value of the property taken, severance damages, if any, and the unrecov-ered expenditures which they made prior to the extinguishment of such lease.

In the City of New Iberia v. Yeutter, 307 So.2d 393 (La.App. 3 Cir. 1975), this court held that a loss of future rentals was a consequential injury, such as loss of business profits, and was not compensable. However, the cause of action in that case arose prior to the effective date of our 1974 Constitution, in which Article 1, Section 4, specifically provides that “the owner shall be compensated to the full extent of his loss.” Prior thereto the applicable provision of the Louisiana Constitution of 1921 simply required payment of “just compensation” for an expropriation.

In State, Through Dept. of Highways v. Champagne, 356 So.2d 1136 (La.App. 3 Cir. 1978), the court said:

“At the outset, we determine that a proper interpretation of the provisions of LSA-Const. Art. 1, § 4 necessarily implies that the compensation due the defendant be in a monetary form. We consider the intent of the redactors of the 1974 Constitution to be that once the landowner has received compensation in an amount sufficient to place him in as good a position pecuniarily as he would have been, had his property not been taken, the landowner has received compensation ‘to the full extent of his loss’. Thus, we must reject the contention of counsel for defendant that under the new Constitution, a con-demnee is entitled to whatever he subjectively believes to be his loss.” [Emphasis added.]

In State Through Dept. of Highways v. Constant, 369 So.2d 699 (La.1979), the supreme court said:

“In view of the constitutional requirement that they be compensated to the full extent of their loss, it is not constitutionally significant that the award to them will exceed the market value of the property used in their business operations. The very purpose of the constitutional language was to compensate an owner for any loss he sustained by reason of the taking, not restricted (as under the former constitution, see Dakin and Klein, Eminent Domain in Louisiana (1970) 70-72, 78-79, 95 — 96, 154-262), to the market value of the property taken and the loss of market value of the remainder, sometimes including the cost to cure such damage — i.e., where (formerly) the award was based solely upon the physical value of the property and the economic injury to the property itself, but not including injuries to a business or the cost of moving it due to the taking.” [Emphasis added.]

We therefore conclude that Yeutter is no longer the law in this respect and that a loss of future rentals as a result of expropriation is recoverable, provided the amount thereof has been properly proved and the owner-lessor has not been otherwise adequately compensated therefor. The most difficult problem in this case is the determination of just what loss the defendants actually sustained as a result of this partial taking and termination of the lease on their property. The trial judge found, and we agree, that there was no diminution of the value of their remaining land. Consequently, there was no severance damages thereto. However, it is obvious that the balance of the property is not sufficient for the building and to comply with the lease. Consequently, the lease terminated by its own terms on the date of the taking. Had the building been completed and occupied, it would appear that the lessors would be adequately compensated for their interest in the lease by capitalizing the rentals for its term and deducting therefrom the expenses incurred and to be incurred by the lessors. However, the actual duration of this lease was rather indefinite as it contained options to purchase at the end of each year by paying lessors’ costs plus 15%. Also, the building was far from completion when it terminated.

While they also considered other methods, all three of the real estate appraisers calculated the compensation due defendants through the income approach. Their conclusions in this respect were as follows:

LeRoy Cobb: $87,000.00
Gene Cope: $42,415.00
Maurice Chappuis: $41,405.00

Each appraiser employed a different capitalization rate and Mr. Cobb does not appear to have made any deductions for the additional expenditures the lessors would have to make to complete the building and consummate the lease.

In arriving at the $21,400.00 award for “lease termination damage” the trial judge said:

“Concerning the law, although the appraisers in their various opinions have dealt extensively with the future projections on a discounted basis of the rentals and reversionary interests, it appears to the Court that the value of the thing lost (the benefits to be received by lessor-landowner under the lease) must be considered in light of the provision contained in the lease granting a purchase option to the lessee by virtue of which the lessee could purchase the property at the end of one year at the then market value thereof, but in no event less than the cost of the land plus the cost of the improvements, plus 15% thereof. Both the landowner-lessor and the lessee concurred in such valuation. Since the facilities will not be completed and the market value is subject to vicissitudes of both a positive and negative basis due to unrelated circumstances, such as purchase money or mortgage money available, rates of interest, etc., it was not considered feasible to prognosticate a market value with a sufficient degree of specificity and certainty. Any such valuation attempted would be too speculative to be considered sufficiently proven for the purposes of compensation herein. Accordingly, the Court must then turn to the alternate value set of cost plus 15%. The concurrence in such alternate price is strong indication (especially in the absence of a determinable market price in the future) that the same represents a determination by both lessor and lessee of fair price and valuation for the leased property. Taking the valuation of the lease upon such basis and adjusting the part compensable by ratio of the expenditures actually made (land and actual expenditures made by lessor) over the total project costs, we would arrive at a ratio of (rounded off) 76.” 158

(He found the lessors had spent $76,351.28 of an estimated total project cost of $158,-562.00.) He then multiplied this fraction by one year’s rent and 15% of the total cost of the project (both discounted at 10%) and got $21,387.02, which he rounded to $21,400.00, as the loss incurred by the lessors as a result of the termination of the lease by the expropriation.

We are unable to say that he was manifestly in error in this regard. Nor do we find that he abused his discretion in fixing the defendant’s expert witness fee or the amount awarded for their attorney’s fee.

For the foregoing reasons the judgment of the district court is affirmed at appellee’s costs. The amount of the trial court costs and appellate court costs in this case are $1310.97 and $771.83. respectively, for which the state is cast.

AFFIRMED.

LABORDE, J., concurs in part and dissents in part.

LABORDE, Judge,

concurring in part and dissenting in part.

I concur in the result reached by the majority that defendants are entitled to recover for future rental under the lease that was terminated by the expropriation proceeding; however, I am not convinced that the defendants have been compensated to the full extent of their loss as mandated by Article 1, Section 4 of our 1974 Constitution.

      . The court’s reasons and the judgment include an award of $330.00 for a temporary construction servitude which is not mentioned in the pleadings. As neither party has complained thereof, we will not disturb same.


source: Caselaw Access Project

author: ROBERTSON, Presiding Justice,

license: Public Domain

text:
    S. & S. DRAGLINE SERVICE, INC. v. Mrs. Myrtle White BAKER, et al.
    No. 52705.
    Supreme Court of Mississippi.
    July 8, 1981.
    Owen Roberts, Brookhaven, for appellant.
    R. Pearce Phillips, Brookhaven, for appel-lees.
    Before ROBERTSON, P. J., and SUGG and BOWLING, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

S. & S. Dragline Service, Inc. (Dragline) appeals from a decree of the Chancery Court of Lincoln County dismissing its bill of complaint to confirm and quiet title to a .7 acre parcel of land and reform two deeds to correctly describe the land conveyed and granting the relief prayed for in the cross-bill of Mrs. Myrtle White Baker, Hollis White, Mitter R. White, Jessie N. White, Clara Mae White, Mary L. White, Arthur E. White, and James Wesley White, that they be declared the owners of an undivided %ths interest in the .7 acre parcel of land.

Although Dragline has assigned five errors which it contends were committed by the lower court in the trial of this cause, these five can be capsuled into this one:

Did the lower court misconstrue the quitclaim deed executed May 20, 1974, by seven of the eight brothers and sisters of the grantee, Willie E. White, by finding that it was the intent of the grantors to convey and the intent of the grantee to acquire a 3 acre parcel in the form of a square, rather than a 3.7 acre parcel bounded by a paved public road on the northeast side and bounded by an abandoned railroad right of way on the south side?

The deed recited:

QUIT CLAIM DEED
For and in consideration of Ten Dollars ($10.00) cash in hand paid, and other good and valuable considerations, the receipt and sufficiency of same being hereby acknowledged, we, HOLLIS WHITE, JAMES WESLEY WHITE, MITTER R. WRITE, JESSIE N. WHITE, CLARA MAE WHITE, MARY L. WHITE, and ARTHUR E. WHITE, do hereby sell, convey and quit claim all our right, title and interest to WILLIE E. WHITE the following described land lying and being situated in Lincoln County, Mississippi and more particularly described as follows, to-wit:
Three (3) acres, more or less, situated in the Northwest Corner of SE Vi of NW lA, Section 3, Township 7 North, Range 9 East;
LESS AND EXCEPT: The grantors herein each reserve an undivided Vs interest in the oil, gas and minerals in, on and under said land, it being their intention to reserve in the aggregate an undivided Vs interest.
It is our intention to convey the lands previously owned by Mrs. Nathaniel White, our mother, in the SE Vi of the NW Vi of Section 3, Township 7 North, Range 9 East.

Robert 0. Allen of Brookhaven, Mississippi, testified that shortly after he began to practice law his friend, Willie E. White, approached him about working out a family settlement of property owned by his mother, Mrs. Nathaniel White, at the time of her death. Mrs. White, as had her husband many years before, had died intestate leaving nine adult children. No survey of the family property was made and Allen stated that he had a great deal of trouble trying to work up descriptions of the two parcels to be exchanged and conveyed. After extended negotiations and conferences, Allen prepared two quitclaim deeds (both dated May 20, 1974), to effectuate the family property settlement agreed upon by all the brothers and sisters, except Mrs. Myrtle White Baker. In one deed, Willie E. White, Hollis White and James Wesley White, conveyed and quitclaimed all their right, title and interest to Mitter R. White, Jessie N. White, Clara Mae White, Mary L. White and Arthur E. White, in 120 acres of land described as the “N Vs of NW Vi and NW Vi NE Vi of Section 3, Township 7 North, Range 9 East”, Lincoln County, Mississippi. This deed contained this further language:

“LESS AND EXCEPT: The grantors herein each reserve an undivided Vs interest in the oil, gas and minerals in, on and under said land, it being their intention to reserve in the aggregate an undivided % mineral interest.
“It is our intention to convey the lands previously owned by Mrs. Nathaniel White, our mother in the NW Vi and the NE Vi of Section 3, Township 7 North, Range 9 East.”

Allen testified that the reason he included this identical catch-all clause (except for the quarter section references) in the two quitclaim deeds:

“It is our intention to convey the lands previously owned by Mrs. Nathaniel White, our mother, in the SE Vi of the NW Vi of Section 3, Township 7 North, Range 9 East.”

was because no survey was made and he had been forced to use rather general descriptions in the two deeds. He felt that this “intention” clause would shed light on, and make certain, the descriptions in the two quitclaim deeds.

Allen also stated that it was his client’s (Willie E. White’s) intention to get, as a consideration for him executing the other quitclaim deed, the full parcel of land bounded on the northeast by a paved public road and on the south by an abandoned railroad right-of-way, which was all the land owned by his mother, Mrs. Nathaniel White, in the SE Vi of the NW Vi of Section 3, Township 7 North, Range 9 East, Lincoln County.

Allen further testified that neither he, being the scrivener, nor his client, Willie E. White, being the grantee in the quitclaim deed from his seven brothers and sisters, ever intended for Willie to get exactly 3 acres in the form of a square in the northwest comer of the SE Vi of the NW Vi. Willie E. White had previously bought the 9.7 acre tract of land to the west of the 3.7 acres, and Allen explained that it was Willie’s intention to get access to the paved public road from this 9.7 acre parcel.

There were no fences on this 3.7 acre parcel and the actual topography of the land was such that it extended in an unbroken line from the 9.7 acre tract on the west to the paved public road on the northeast and to the abandoned railroad right-of-way on the south. No fences or markers of any kind indicated that the parcel was to be exactly 3 acres in the form of a square.

Further shedding light on the intent of all the parties is the fact that a 3-acre square would extend over and beyond that actually owned by Nathaniel White and later by his widow, Mrs. Nathaniel White, and still later by their nine children, into the right of way of the railroad company.

On August 27,1976, Mrs. Sarah R. White, the widow of Willie White, conveyed the 9.7 acre tract by warranty deed to Dragline. In the same deed, she attempted to convey the 3.7 acre parcel with this language:

“For said consideration, the undersigned Grantor does hereby convey and warrant specially unto said Grantee, the following described land and property situated in Lincoln County, Mississippi, to-wit:
Three (3) acres in NW corner of SE Vi of NW Vi of Section 3, Township 7 North, Range 9 East, subject to mineral reservation of %ths mineral interest reserved in deed dated May 20, 1974, recorded in Book 651, page 517.
“The Grantor is the widow and sole devisee of Willie E. White, under his will probated in Cause No. 18,371 in the Chancery Court of Lincoln County, Mississippi.”

Without having the 3.7 acre parcel surveyed, Dragline filed a Bill of Complaint for Partition against Mrs. Myrtle White Parker and bought in this parcel at the Commissioner’s sale. The commissioner’s deed, dated November 14, 1978, described the parcel in this way:

“Three (3) acres in the Northwest comer of SE Vi of NW Vi of Section 3, Township 7 North, Range 9 East, Lincoln County, Mississippi, less and except all of the oil, gas and minerals in, on and under said land.”

On March 12, 1979, Dragline had its two tracts surveyed by Jack W. Day. The survey used the paved road on the northeast as one boundary and the abandoned railroad right-of-way on the south as another boundary of the 3.7 acre tract.

Thereafter, on June 18, 1979, Mrs. Sarah R. White executed another deed to Drag-line, which deed recited in part:

“3.7 acres, more or less, in the NW corner of SE Vi of NW Vi of Section 3, Township 7 North, Range 9 East, bounded on the North by the North line of said SE Vi of NW Vi of said Section 3, bounded on the West by the West line of said SE Vi of NW Vi of said Section 3, bounded on the South and East by the North right-of-way line of an old abandoned railroad, and bounded on the North and East by the South and West right-of-way line of a public paved road, as surveyed by Jack W. Day, on March 12, 1979;
SUBJECT TO: %ths mineral interest previously reserved.
“The Grantor is the widow and sole devisee of Willie E. White, under his will probated in Cause No. 18,371 in the Chancery Court of Lincoln County, Mississippi.
“The undersigned conveyed a 3.0 acre parcel in the NW Vi of said SE Vi of NW Vi of said Section 3 to said Grantee on August 27, 1976, by deed recorded in Book 667, page 142, and it was the intention of the Grantor on said date, and it is the present intention of the Grantor, to convey to said Grantee the entire interest of the Grantor in said 3.7 acre parcel, as above described.”

In Dunn v. Stratton, 160 Miss. 1, 133 So. 140 (1931), this Court said:

“It is the duty of courts in construing deeds to effectuate the intention of the parties, but, since deeds must be in writing, the intention must be found in the writing either by way of complete delineation of the description on the face of the deed or by dependable references therein made which, when applied, render the delineation complete. The sundry rules that have been formulated by the courts for the interpretation of descriptions are but aids in arriving at the probable true intention of the written instrument. These rules, so far as applicable to this case, may be summarized thus: In construing a deed, (1) effect must be given, if possible, to each item of the written contents and no item included in the deed as a part of the description is to be rejected as erroneous, or shall be varied, so long as it is reasonably possible to make all of them harmonize-, and (2) those parts which are the more certain and dependable as descriptive items will interpret those items which are the less certain and dependable, and, when it is necessary in order to satisfy and harmonize all items, the more certain will, if reasonably possible, draw to themselves those that are the less certain; and (3) if any item is to be rejected as impossible, or varied as erroneous, the item which is the less certain and about which it is the more probable the grantor was mistaken will be thus rejected or varied.” 160 Miss, at 7, 133 So. at 142. (Emphasis added).

We are very cognizant of the rule laid down by this Court in Frierson v. Shepard, 201 Miss. 603, 29 So.2d 726 (1947), that in order to modify or reform an instrument “such modification must be sustained by proof beyond a reasonable doubt.”

However, after considering all of the language of the quitclaim deed of May 20, 1974, from seven of the brothers and sisters of Willie E. White to him, we are of the opinion that the clear intent of the grantors and grantee was to convey all that their mother owned in the SE Vi of the NW Vi of Section 3. That is exactly what they said over their acknowledged signatures:

“It is our intention to convey the lands previously owned by Mrs. Nathaniel White, our mother, in the SE Vi of the NW Vi of Section 3, Township 7 North, Range 9 East.”

Robert Allen, the attorney and scrivener representing all the parties, except Mrs. Myrtle White Baker, in the family settlement evidenced by the two quitclaim deeds of May 20, 1974, testified clearly and positively that that was the reason he inserted in both quitclaim deeds the identical catch-all “intention” clause. The highly technical argument that their mother, Mrs. Nathaniel White, only owned a child’s part since their father, Nathaniel White, died intestate, does not impress us. The 3.7 acre tract was assessed to her, she paid the taxes on it over the years, and, even according to the testimony of the three defendants who testified, they considered' it her land and she exercised complete dominion over it.

The evidence is clear that, at the time the two quitclaim deeds were prepared by Robert Allen and signed and acknowledged by the grantors, neither Allen nor any of the defendants knew that their mother only owned a child’s part.

We do not think it logical or reasonable that Willie E. White would deliberately join in a family settlement that left a 9.7 acre tract which he had recently acquired completely land-locked. In fact, Robert Allen testified that Willie joined in the family settlement so he would get access to the paved public road and that that was his primary purpose in swapping out his interest in other lands for this parcel stretching from his 9.7 acre tract to the public paved road.

We do not think that Willie’s seven brothers and sisters intended to trick him out of this access by conveying him exactly three acres in the form of a square, nor do we think that they intended to convey part of the railroad right-of-way which neither they, nor their mother, nor their father owned at any time, but which would be included if the parcel were in the form of a square.

We also do not think it logical or reasonable that the grantors intended to retain a very small oddly-shaped parcel on the south and a small oddly-shaped trapezoid parcel on the northeast.

We think that the lower court was in error in dismissing Dragline’s bill of complaint for reformation and removing clouds on title and in granting the prayer of the cross-bill that the parcel intended to be conveyed by the defendants was an exact 3-acre square — no more and no less. The evidence, both oral and documentary — especially the language of the quitclaim deed itself — does not support the findings and conclusions of the lower court.

For these reasons, the decree for defendants and cross-complainants is reversed and judgment rendered here for the complainant and cross-defendant, S. & S. Dragline Service, Inc. confirming and quieting the title of Dragline to 8/9ths of the surface of the .7 acre parcel of land described in the bill of complaint (the other Vbth interest in the surface admittedly being still owned by Mrs. Myrtle White Baker), removing the claims of the defendants (except Mrs. Baker) as clouds upon the title of complainant to the surface of the .7 acre parcel.

The quitclaim deed of May 20, 1974, recorded in Deed Book 651 at Page 517, of the Land Deed Records of Lincoln County, will be reformed in accordance with the prayer of the bill of complaint to show the mutual intent of the seven grantors and grantee therein to include the surface of the entire parcel of 3.7 acres. The commissioner’s deed of November 14, 1978, recorded in Land Deed Book 683, Page 448, of the Lincoln County Land Records will be reformed to include the surface of the entire parcel of 3.7 acres in that conveyance, except as to a Vbth interest admittedly owned by Mrs. Baker in the .7 acre parcel since she did not join in the Quitclaim Deed of May 20, 1974.

The decree of the lower court is, therefore, reversed and this cause remanded to the lower court for the ordering of a partition sale of the surface of the .7 acre parcel (this parcel being incapable of partition in kind), with an %ths interest in the net proceeds to be paid to Dragline and a Vbth' interest in the net proceeds to be paid to Mrs. Baker.

REVERSED AND REMANDED.

SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

PATTERSON, C. J., takes no part.


text:
    Robert Lee PARKER v. STATE of Mississippi
    No. 52664.
    Supreme Court of Mississippi.
    July 8, 1981.
    Wayne C. Gulledge, Charles W. Broun, III, Taylor & Whitwell, Senatobia, for appellant.
    Bill Allain, Atty. Gen., by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; Andrew C. Baker, Judge.

Before ROBERTSON, P. J., and SUGG and LEE, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.


text:
    Dean HILL and Earl Wayne Robinson v. STATE of Mississippi.
    No. 52657.
    Supreme Court of Mississippi.
    July 15, 1981.
    Joe Ray Langston, Langston & Lott, Booneville, T. Victor Bishop, Brown & Bishop, Fulton, for appellants.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Alcorn County; Neal Biggers, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    J. C. BURGESS, Jr., et al. v. Charles W. CAVANAUGH, et al.
    No. 52746.
    Supreme Court of Mississippi.
    July 15, 1981.
    Richard E. Stratton, III, Donald B. Patterson, Brookhaven, for appellants.
    Donald G. Kruger, Prentiss, for appellees.
   Appeal from Chancery Court, Jefferson Davis County; J. W. Walker, Chancellor.

Before SMITH, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C. J., took no part.


text:
    Ineta BAKER v. STATE of Mississippi.
    No. 52622.
    Supreme Court of Mississippi.
    July 15, 1981.
    Samuel H. Wilkins, Jim Nelson, Wilkins, Ellington & James, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Hinds County; Breland Hilburn, Special Judge.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Carl BROOKS d/b/a Central Bonding Co. v. Ray POPE, Chief of Police of the City of Jackson, Miss.
    No. 52667.
    Supreme Court of Mississippi.
    July 15, 1981.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Harry L. Kelley, Jackson, for appellant.

Cynthia Hewes, Jackson, for appellee.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Melvina PHELPS v. DIXIELAND FOOD STORES, d/b/a Piggly Wiggly of Escatawpa, Mississippi.
    No. 52680.
    Supreme Court of Mississippi.
    July 15, 1981.
    W. Harvey Barton, Cumbest, Cumbest & Hunter, Pascagoula, for appellant.
    John M. Kinard, Megehee, Brown, Williams & Mestayer, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and BOWLING, JJ., concur.


author: BOWEN, Judge.

text:
    Donald BULLOCK v. STATE.
    1 Div. 177.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied June 23, 1981.
    W. Gregory Hughes and Daniel A, Pike, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen,, and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the theft of property in the second degree. Alabama Code 1975, Section ISA-S'^ (Amended 1977). He was given a split sentence with six months to be served in the county jail and two and one-half years’ probation.

The major issue on appeal is that the evidence is insufficient to support the verdict of the jury. After a careful review of the evidence presented we find that the issue of the defendant’s guilt or innocence was properly submitted to the jury.

The State’s evidence revealed that a water pump and a water tank were stolen from Charles McKinley during the night or early morning hours of January 29, 1980. A trail of rusty water led to the pump and tank which were located near the defendant’s trailer. On the afternoon of the 29th, the defendant and Steve R. Johnson loaded the pump and tank into a truck. Later they placed the stolen items in a Vega automobile parked in front of the defendant’s trailer. The defendant drove the Vega onto the highway where he was stopped by County Sheriff’s Deputy Walter Cook and arrested for the theft of the pump and the tank.

Deputy Cook testified that the defendant told him that he had purchased the items. Cook stated that the defendant did not state the name of the individual from whom he purchased these items and did not mention a bill of sale.

Deputy Cook learned that at the preliminary hearing one Larry Folsberg had been identified as the person who sold the pump and tank to the defendant. Despite extensive searches by Cook and other officers, Folsberg was never located. Although subpoenaed by both the State and the defense, Folsberg was never found.

While no witness for the State knew who actually took the pump and tank, we think that there is sufficient circumstantial evidence to support the verdict of the jury. Dolvin v. State, 391 So.2d 133 (Ala.1979); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). The credibility and sufficiency of the defendant’s explanation of his possession of recently stolen property are questions of fact for the jury. Bryant v. State, 116 Ala. 445, 23 So. 40 (1898); Klemmer v. State, 51 Ala.App. 383, 286 So.2d 58, cert. denied, 291 Ala. 786, 286 So.2d 62 (1973).

It matters not that we may not have reached the same verdict as did the jury. The Court cannot substitute itself for the jury and adjudge that the verdict returned by the jury was wrong and unjust. Sims v. State, 31 Ala.App. 247, 14 So.2d 742 (1943); Barton v. State, 31 Ala.App. 267, 14 So.2d 380 (1943). The Court does not determine if the evidence proved the defendant’s guilt beyond a reasonable doubt and to a moral certainty but, rather, whether there was legal evidence presented from which the jury could draw an inference of guilt. Chambliss v. State, 373 So.2d 1185 (Ala.Cr.App.), cert. denied, Ex parte Chambliss, 373 So.2d 1211 (Ala.1979).

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Richard Johnston INGLE, alias, v. STATE.
    3 Div. 280.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    As Corrected on Denial of Rehearing May 26, 1981.

      Richard D. Shinbaum, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   BOOKOUT, Judge.

Buying, receiving or concealing stolen property; sentence: six years’ imprisonment.

The State’s evidence revealed that on October 3, 1979, Douglas Thompson, his wife, and Charlie Barnes stole a 1978 Pontiac Bonneville from the parking lot of the Rheem Manufacturing Company in Montgomery. The car belonged to Vincent La-Soley who worked at Rheem. Barnes’s girl friend, Cheryl Boles, also worked there and provided information that the keys to LaSo-ley’s ear would be found in the ignition. Thompson was of the strong opinion that no one had permission to take LaSoley’s car, and certainly he did not have permission when he took it. In fact, he had never heard of Vincent LaSoley before the theft.

Thompson drove LaSoley’s ear directly to appellant’s place of business in Montgomery, the AAA Transmission Service. Barnes and Thompson’s wife followed in Thompson’s car. . Thompson stated that after he drove LaSoley’s car inside he “took the tags off and took everything out of the inside.” Appellant and Barnes also took some things out of the car, including LaSo-ley’s wallet, and threw them away. Thompson also saw appellant’s two employees at the transmission shop. Johnny B. Toole who worked next door to the shop discovered LaSoley’s wallet close to his shop and called Rheem Manufacturing for the wallet to be picked up.

Appellant paid Thompson and Barnes $750 for LaSoley’s car. Thompson testified that Barnes and appellant had prearranged for appellant to pay them for a stolen car, “but not that particular car.... Just any car.” “We stole the car and were supposed to bring the car there and get the money and leave. . . . We just found the car and the keys were in the ear, so we just took that car.”

Willie James Boyd and Ronnie Morgan, appellant’s employees on the date in question, saw LaSoley’s car at the shop. Boyd saw Thompson and Barnes bring the car in, and Morgan made preparations for appellant to paint the vinyl top on LaSoley’s car white. Morgan overheard a conversation between appellant, his father, and Barnes that “they were going to trade [LaSoley’s car] for a white Cougar.” LaSoley’s car was going “to Georgia.”

Officer Scott Roberts, of the Georgia Bureau of Investigation, recovered LaSoley’s car in Montezuma, Georgia, at the residence of Buster Dunn on January 24, 1980. Ronnie Morgan had seen Buster Dunn on one occasion when Dunn came to Morgan’s residence looking for the appellant. Officer Roberts was aware the car had been reported stolen from Montgomery and was able to ascertain that the vehicle identification number had been disguised.

I

We find the State’s evidence sufficient to prove appellant’s guilt as charged beyond any reasonable doubt. Each element necessary to establish a prima facie case of BRCSP was clearly shown. Oates v. State, Ala.Cr.App., 375 So.2d 1285 (1979); Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, Ala., 360 So.2d 367 (1978); Walker v. State, Ala.Cr.App., 355 So.2d 755 (1978); § 13-3-55, Code of Ala.1975. All of the elements in the above eases may be, and most of them usually are, shown by circumstances from which the jury, using their everyday common sense and observation, must draw their conclusion. Walker, supra. See Goodman v. State, Ala.Cr.App., 401 So.2d 208 (1981), released this date, for a discussion on requisite “knowledge” by an accused that goods are stolen.

II

There is no merit to appellant’s contention that he cannot be guilty of BRCSP since he actually participated in the theft. The State’s evidence demonstrates that Thompson, accompanied by his wife and Barnes, stole LaSoley’s car. Appellant then received the stolen car and paid Thompson and Barnes. Appellant in no way participated in the actual theft. While appellant did prearrange to pay Thompson and Barnes for a stolen car, Thompson categorically denied there was any conspiracy to steal LaSoley’s car or any other particular car. See White v. State, Ala.Cr.App., 383 So.2d 888, cert. denied, Ala., 383 So.2d 892 (1980) and cases cited therein for situations where the accused actually participated in the theft. The facts in the case at bar are easily distinguishable from those in White. Here, the appellant did not actually assist the thief in the caption and asportation of the ear.

Larceny requires a specific intent to deprive an owner of his property. This specific intent is an indispensable mental ingredient to stealing. Jones v. State, 55 Ala.App. 274, 314 So.2d 876, cert. denied, 294 Ala. 761, 314 So.2d 879 (1975). Here, the offense of larceny was perfected by Thompson and Barnes long before appellant committed the offense of buying, receiving or concealing the stolen property. We find the jury’s verdict of “guilty as charged,” which refers to appellant’s one-count indictment, amply supported by the evidence.

III

Appellant’s conviction was not based on the uncorroborated testimony of an accomplice. Andrews v. State, Ala.Cr.App., 370 So.2d 320, cert. denied, Ala., 370 So.2d 323 (1979). The testimony of Boyd, Morgan, and Toole would supply sufficient corroboration of the testimony of Thompson, even assuming him to be an accomplice. Corroboration need only be slight to suffice. Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62 (1975).

IV

Thompson was properly allowed to testify that he had taken stolen vehicles to appellant on prior occasions and that some of those vehicles had also been later transported to Buster Dunn in Montezuma, Georgia.

As a general rule, in a prosecution for a particular crime, evidence of other acts which of themselves constitute distinct and independent offenses is not admissible. Ex parte Williams, Ala., 350 So.2d 708 (1977). However, one of the well-established exceptions to this rule is the intent exception. Hayes v. State, Ala.Cr.App., 384 So.2d 623 (1979), cert. denied, Ala., 384 So.2d 627 (1980). See Gamble, McElroy’s Alabama Evidence, § 69.01(5) (3d ed. 1977). Appellant’s prior acts fall squarely within that exception. '

V

Appellant claims it was error to allow the State to call a rebuttal witness to testify to facts not responsive to the testimony of defense witnesses. He contends that the testimony given by rebuttal witness Toole concerned evidence which should have been presented during the State’s case in chief.

The admission of rebuttal testimony and the order of proof are matters within the sound discretion of the trial court. McBryar v. State, Ala.Cr.App., 368 So.2d 568, cert. denied, Ala., 368 So.2d 575 (1979). It is within the trial court’s discretion to admit evidence on rebuttal which more properly should have been offered as part of the State’s case in chief. Crow v. State, Ala.Cr.App., 365 So.2d 1254 (1978), cert. denied, Ala., 365 So.2d 1256 (1979).

VI

During closing arguments the following occurred:

“MR. SHINBAUM: Your Honor, excuse me. Your Honor, I would like to approach the bench one second and ask that a remark of organized crime and dealing with organized crime—
“THE COURT: I sustain your objection. Do not consider that last remark.”

The trial court admonished the jury to disregard the comment and gave curative instructions, thereupon the following appears in the record:

“MR. SHINBAUM: Again, I would like to approach the bench and ask the remark about crimes going on in the street. There is no other crime that has anything to do with this charge.
“THE COURT: I will grant your motion to strike, if that is what you are doing....”

The trial court again admonished the jury and gave curative instructions and the arguments proceeded.

Appellant received favorable rulings to his objections to the prosecutor’s closing argument. Absent an adverse ruling on those objections, there is nothing for this court to review on appeal. Chambliss v. State, Ala.Cr.App., 373 So.2d 1185, cert. denied, Ala., 373 So.2d 1211 (1979). Moreover, appellant’s objection to the prosecutor’s reference to “organized crime” was too fragmentary to preserve error. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1974); Ervin v. State, Ala.Cr.App., 399 So.2d 894 (1981).

As to the denial of appellant’s motion for a mistrial, we find no error. The granting or denying of a motion for a mistrial rests within the sound discretion of the trial judge and will not be reviewed on appeal in the absence of abuse of that discretion. Heard v. State, Ala.Cr.App., 351 So.2d 686 (1977). We find no abuse of discretion in the instant case. The trial judge gave proper curative instructions to the jury which rendered the prosecutor’s comments harmless in our opinion. Wilson v. State, 39 Ala.App. 77, 94 So.2d 408 (1957).

We have considered each issue raised by appellant. In addition, we have searched the record as required by law for any prejudicial error affecting appellant’s substantial rights and have found none.

AFFIRMED.

All the Judges concur.


author: OVERTON, Justice.

text:
    The FLORIDA BAR RE AMENDMENT TO the BYLAWS UNDER the INTEGRATION RULE (FLORIDA DESIGNATION PLAN)
    No. 59685.
    Supreme Court of Florida.
    May 21, 1981.
    Leonard H. Gilbert, President, Tampa, and Samuel S. Smith, President-elect, Miami Beach, of The Florida Bar, Peter W. Zinober, Chairman, Designation Coordinating Committee of Carlton, Fields, Ward, Emmanuel, Smith and Cutler, Tampa, and Rayford H. Taylor, Designation Director, Tallahassee, for petitioner.
   OVERTON, Justice.

The Florida Bar has petitioned the Court to amend the Florida Designation Plan. A “designated lawyer” under the plan is one who has attended the approved and structured continuing legal education courses for the requisite number of hours each year. The proposed changes: (1) allow these lawyers to display their designation in locations consistent with the Code of Professional Responsibility; (2) allow the use of the descriptive phrase “Qualified in (permitted area) under the Florida Designation Plan”; (3) allow indication of a lawyer’s designated area in the telephone directory yellow pages and other approved lists; and (4) amend the Bar’s public notice from a disclaimer to a positive definition of designation.

The Bar submits that the proposed changes will bring the designation plan in line with the recent amendments to the Code of Professional Responsibility concerning advertising and will enable designated lawyers to distinguish themselves from other lawyers who may now advertise generally under the code and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). We agree that the proposed amendments are proper under Bates. They are approved and adopted as set forth in the appendix attached to this opinion. The entire Designation Plan, however, is subject to procedural restructuring so that it may properly interrelate with advertising and certification. See The Florida Bar Re Amendment to Integration Rule (Certification Plan), 399 So.2d 1385, (Fla.1981) (on rehearing).

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

APPENDIX

Article XVII of the Bylaws under the Integration Rule is revised as follows. The use of struck-through type indicates deletions. Underscoring indicates new language.

Article XVII

FLORIDA DESIGNATION PLAN

Section 1. DESIGNATION OF AREAS OF PRACTICE. In--accordance with-the terms of this article, a member may publicly designate tho areas in which he practices law* A member may receive permission from The Florida Bar to publicly designate the areas in which he practices law if he has accumulated the experience and educational requirements set out in this article.

Section 2, SCOPE AND FUTURE DEVELOPMENT. The provisions-of this -article contain minimal-standards-designed to permit immediate designation of areas of practioe. The Board of Governors of The Florida Bar intends to study and monitor the plan and the operations thereunder to determine if modification and expansion is required in the interests of the public and the Bar. Standards of education and experience will be periodically reviewed and upgraded where necessary.

Section 3. AREAS OF PERMITTED DESIGNATION.

(a) A member in good standing of The Florida Bar may not designate an area of practice unless the area has been approved by the Board. The Board may approve a particular area of practice on its own motion or upon the request of any member if it finds that the area:

(1) Has not already been approved under a different description;

(2) Is a generally accepted area of practice;

(3) Is described in dignified and ethically appropriate terms.

(b) The areas of practice which have already been approved are listed on Schedule A. Schedule A may be amended as frequently as necessary to add or delete areas approved by the Board.

(c) If a member wishes to designate an area which has not been approved by the Board, he shall include in his application for permission a request that the area of practice be approved. The Board shall consider the request before it takes action on the member’s application for permission.

Section 4. ELIGIBILITY FOR PERMISSION TO DESIGNATE AREAS OF PRACTICE.

(a) Except as provided in subsections (b), (c), and (d), a member in good standing of The Florida Bar may be eligible for permission to designate areas of practice if at the time he files his application: (1) he has been engaged in the practice of law for at least three years and during the three years preceding his application for permission he has had substantial experience in each area of practice listed in the application; and (2) he has accumulated at least the minimum amount of approved continuing legal education set out below in each area sought to be designated:

a. Ten hours if the application is filed on or before December 31, 1979.

b. Twenty hours if the application is filed on or after January 1, 1980, but not later than December 31, 1980.

c. Thirty hours if the application is filed on or after January 1, 1981.

(b) If the Board finds that a member who has not engaged in the practice of law in an area for three years preceding his application but has had postgraduate education or concentrated experience in a particular area of practice and the experience is equal to or greater than the experience he would have gained in that area from three years of practice, and he has accumulated the minimum amount of approved continuing legal education required under Section 4(a)(2), the Board may waive the requirement of Section 4(a)(1) and permit him to designate that area.

(e) If the Board finds that a member has had at least three years of substantial experience or postgraduate education in an area of practice and the experience or education is not unreasonably remote, but that due to extenuating circumstances the member has not had substantial experience in the area during the three years preceding his application, and the member has accumulated the minimum amount of approved continuing legal education required under Section 4(a)(2), the Board may waive the requirement of Section 4(a)(1) and permit him to designate that area.

(d) A member applying for permission to designate General Practice who has not been a member in good standing of The Florida Bar for the three years preceding his application but who has accumulated the minimum amount of approved continuing legal education required under Section 4(a)(2), may designate General Practice.

(e) A member shall not be eligible to designate more than three areas of practice at any one time.

Section 5. APPLICATION FOR DESIGNATION OF AREAS OF PRACTICE.

(a) A member who wishes to designate one or more areas of practice shall file with the Board an application for permission on a form to be specified by the Board. The application shall:

(1) List the area or areas the member wishes to designate;

(2) State facts sufficient to establish that the member is eligible to designate the areas listed;

(3) Contain a statement that to enhance his proficiency the member will continue his legal education in the areas he wishes to designate through private study or continuing legal education programs approved by the Board or by this court and other appropriate means approved by the court.

(b) When the application is filed, the member shall pay an application fee in an amount to be established by the Board not exceeding $30. The amount of the application fee shall not be affected by the number of areas designated. ■

Section 6. ACTION ON APPLICATIONS TO DESIGNATE AREAS OF PRACTICE.

The Board shall promptly consider and act upon all applications for permission to designate areas of practice. If it finds that' an applicant is eligible under Section 4 to designate one or more areas of practice, it shall issue a letter of permission authorizing the applicant to designate those areas. If it finds that an applicant is not eligible, it shall notify the applicant of its finding and reasons for it.

Section 7. MANNER OF DESIGNATION.

(a) A member having permission to designate areas of practice may do so by listing the areas on his letterhead, business cards; office door, in tho yellow pages of the telephone directory, in approved law lists, -and by other means approved by tho Board, in the manner and locations permitted under the Code of Professional Responsibility. Designations shall be made only by naming the permitted areas of practice. (For example, a permitted designation might be “John J. Jones, Admiralty and Trial Practice — General.” The following descriptive words, or phrases such as “-areas of practice)’-’ “practice limited to,” “specializing in” shall not be usod-except as authorized by the Board of publication in-approved law listfc is permitted: “Qualified in under the Florida Designation Plan.”

(b) Members having permission to designate areas- of practice may list their names and designated areas of practice in the -yellow pages-of telephone directories in one or both of- two permissible listings, an alphabetical listing of all lawyers and-listings-of lawyers under area of practice headings. In -the alphabetical listing there shall be included tho lawyer’s name, address and telephone number, and the designated areas of practice. — In- the categorical listing the designated area of practice shall be listed alphabetically and a listing of attorneys thereunder shall state only tho lawyer’s name, address- and telephone number.

(b) (el No law firm may designate an area of practice for the firm, but membership in a firm does not impair an individual member’s eligibility to designate areas of practice in accordance with this article. Except- for the firm listing in the telephone directory, a law firm may show next to tho name of any firm members their permitted areas of practice.

Section 8. EFFECT OF DESIGNATION RULE. Nothing in this article precludes any member from practicing in any area of practice regardless of whether he has designated it or any other area under this article.

Section 9. DURATION AND RENEWAL.

(a) A member’s rights to designate one or more areas of practice shall continue for a term of three years from the date of the letter of permission issued under Section 6 or subsection (d) of this section.

(b) A member shall be eligible to renew his right to designate an area of practice only if during the preceding three-year period he has had substantial experience during the three years preceding the renewal application and he has devoted at least 30 hours, of which only a maximum of 20 hours may be accumulated for credit in any one of the preceding three years, to approved continuing legal education in each area for which renewal is sought. For good cause shown, the Board may waive all or any part of such requirement.

(c) A member who wishes to renew his right to designate areas of practice shall file an application for renewal with the Board at least 30 days before the permission expires. The application shall be on a form specified by the Board and shall state sufficient facts to establish that the member is eligible to renew. When the application is filed, the member shall pay a renewal fee in an amount to be established by the Board not exceeding $30. The amount of the renewal fee shall not be affected by the number of areas designated. The 30-day notice period may be waived by the Board for good cause shown.

(d) The Board shall promptly consider and act upon all applications for renewal in the same manner as provided in Section 6.

Section 10. CONTINUING LEGAL EDUCATION.

(a) Continuing legal education courses which are designed to enhance the proficiency of a designated attorney in a particular area of practice shall qualify as approved courses hereunder. The Board shall determine the number of hours credit to be given for each such course and the designated area entitled to credit for each course.

(b) On the application of any interested person, the Board shall make a determination of the qualification of, and credit to be allowed for, alternative courses or methods of legal education.

(c) From time to time the Board shall publish current lists of approved educational alternatives.

Section 11. PUBLIC NOTICE.

(a)The Florida Bar may cause a public notice to be promulgated where and when it deems necessary, including, for example, telephone directory yellow pages, in substantially the following form:

NOTICE

FOR THE GENERAL INFORMATION OF THE PUBLIC

ATTORNEYS LISTING ■ AREAS OF PRACTICE.I-N-THE YELLOW PAGES HAVE NOT BEEN CERTIF-IEB-6Y THE FLORIDA BAR AS HAVING AN-Y MORE COMPETENCE IN THESE AREAS THAN ANY OTHER ATTORNEY, MAY LIST THEIR AREAS OF PRACTICE IN THE YELLOW PAGES WITHOUT MEETING ANY SPECIFIC CRITERIA. ATTORNEYS ITSTNG (A SYMBOL! AFTER THEIR NAME OR AREAS OF PRACTICE HAVE MET MINIMUM EXPERIENCE AND EDUCATIONAL REQUIREMENTS UNDER THE FLORIDA DESIGNATION PLAN. HOWEVER. NO ATTORNEY HAS BEEN CERTIFIED BY THE FLORIDA BAR AS HAVING ANY MORE COMPETENCE IN THESE AREAS THAN ANY OTHER ATTORNEY.

ALL PERSONS ARE URGED TO MAKE THEIR OWN INDEPENDENT INVESTIGATION AND EVALUATION OF ANY ATTORNEY BEING CONSIDERED.

This notice published by The Florida Bar, Telephone A.C. 904/222-5286, Tallahassee, Florida 32301.

(b)The Florida Bar shall assume no liability to any persons whomsoever by reason of the adoption and implementation of the plan.

Section 12. ADMINISTRATION.

(a) The Board may delegate to a committee or to the staff personnel of The Florida Bar any or all of its administrative responsibilities arising under this article, but any member affected by an adverse decision from persons to whom such duties are delegated may appeal to the Board.

(b) Responsibilities which have been delegated to the staff of The Florida Bar are listed on Schedule B.

(c) The president of The Florida Bar, with the approval’ of the Board, shall appoint a standing committee to be known as the Designation Coordinating Committee, which shall be composed of twelve members, one of whom shall be the chairman of the CLE Committee of The Florida Bar and not more than two of whom shall be appointed from the roster of vice chairman of the CLE Committee of The Florida Bar. The president shall name one member of the Designation Coordinating Committee as the chairman. The Designation Coordinating Committee shall cooperate with and answer inquiries from the staff personnel pertaining to the Plan and shall investigate and make recommendations to the Board concerning all questions relating to the plan, including the following:

(1) Approved education courses,

(2) Alternative education methods,

(3) Number of hours credit to be allowed for educational efforts,

(4) Educational standards for satisfactory completion of approved courses,

(5) Possible need for cooperation with colleges and universities,

(6) Additional areas of practice to be approved for designation,

(7) Possible modification or expansion of the plan,

(8) Adoption of additional standards pertaining to the plan,

(9) Amount of the application and renewal fees,

(10) General administration of the plan.

(d) Application and renewal fees paid by members will be deposited in a segregated account of The Florida Bar and used exclusively for purposes related to operations under this article.

(e) The Florida Bar shall maintain a list of all members who have filed applications for permission or applications for renewal, showing the date and disposition of each application acted upon.

(f) At least six months before the date on which a member’s permission to designate areas of práetice expires, The Florida Bar shall give the member notice by regular mail advising the member of the date on which permission expires, the required qualifications for renewal of eligibility, and the procedure for renewal.

Section 13. RIGHT OF REVIEW.

Any member adversely affected by an administrative ruling concerning this plan may petition the Board of Governors for relief. Any denial of relief by the Board can be reviewed by the court on the member’s petition within 30 days of notice of the Board’s action.

SCHEDULE A

Administrative and Governmental Law

Admiralty

Antitrust and Trade Regulation

Appellate Practice

Aviation Law

Bankruptcy

Collections

Corporation and Business Law

Criminal Law

Environmental Law

General Practice

Immigration and Naturalization

International Law

Labor Law

Marital and Family Law

Patent, Trademark and Copyright

Real Property Law

Securities

Taxation

Trial Practice — General

Trial Practice — Commercial

Trial Practice — Personal Injury and

Wrongful Death

Wills, Estates and Estate Planning

Workmen’s Workers’ Compensation

SCHEDULE B

1. Action under Section 6 on applications for permission filed by individual members provided the applications do not involve requests for waivers under subsections -(b) or — (e) of Section 4db) or (c).

2. Action under Section 9(c) on applications for renewal filed by individual members.

3. Issuance of letters of permission under Section 6 and Section 9(c).

4. Timely issuance and publication of all notices required under this article.

5. Maintenance of list of members required by section 12(e).

6. Maintenance and publication of lists of educational courses approved by the Board.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. E. Coleman MADSEN, Respondent.
    No. 59693.
    Supreme Court of Florida.
    June 18, 1981.
    John A. Weiss, Bar Counsel and Stanley A. Spring, Staff Counsel, Tallahassee, and Donald L. Braddock, Past Chairman, Fourth Circuit Grievance Committee “B”, Jacksonville, for complainant.
    E. Coleman Madsen, in pro. per., Jacksonville, for respondent.
   PER CURIAM.

This disciplinary proceeding against respondent E. Coleman Madsen, a member of The Florida Bar, is before us on complaint of The Florida Bar, report of the referee, and petition of Madsen to review the referee’s report.

Having considered the pleadings and evidence, the referee found as follows:

1. On July 11, 1980, Bobby H. and Pauline Boeneke purchased a motor home from Motor Homes of Florida, Inc. One Keith Gordon handled the sale for the seller. They made a down payment of approximately $7,900.00 ($5,400.00 cash and $2,500.00 trade) and executed finance papers for the balance of approximately $9,400.00.
2. From the beginning they had serious trouble with the motor home. On a trip to Atlanta (which commenced the day of the purchase) they experienced difficulty. On their return to Jacksonville, the seller supposedly had the motor home repaired, but on a trip to New Orleans, the same difficulties recurred, and some thirty miles from New Orleans the motor “blew-up” and the motor home was towed to New Orleans.
3. The Boenekes were in frequent touch with the seller, and Gordon promised to help them with their expenses for hotels, etc. in New Orleans. They obtained other transportation for the return trip to Jacksonville; and, before going home, the Boenekes, drove by the seller’s place of business and talked with Gordon. He told them that he had made an appointment for them to see Respondent the next day, which was August 8, 1980.
4. At the time, Respondent was the attorney for Motor Homes of Florida, Inc. and Keith Gordon. This was not disclosed to the Boenekes. On August 8, the Boenekes met with Respondent and they gave him a check for $256.00. The Boe-nekes claim this was for representing them in rescinding their purchase of the motor home and obtaining a new one. The Respondent disputes this and says it was for a retainer and expenses with regard to an unreleated [sic] accident claim against one Helms.
5. Whether by reason of the request from Gordon or the payment of $256.00, the Respondent did undertake to represent the Boenekes. On August 11, 1980, Respondent wrote a letter to Champion Home Builders, the maker of the motor home, demanding that the one the Boenekes had purchased be replaced with a new one and that they be reimbursed for their expenses in New Orleans and attorneys fees “as a result of the engine failure”. The letter was signed “E. Coleman Madsen Attorney for the Boenekes”.
6. According to the Boenekes, they telephoned Respondent many times. After this failed to produce any results, Pauline Boeneke telephoned Champion Home Builders in Thomasville, Georgia about the situation. In this telephone conversation, she was informed (probably erroneously) that Champion Home Builders knew nothing of their claim, but that they did know Respondent who was attorney for Motor Homes of Florida, Inc.
7. Following this and on September 12, 1980, the Boenekes went to see Respondent and discharged him. They obtained an attorney who procured a refund of the $256.00. Subsequently, the Boenekes obtained other counsel who filed suit against Motor Homes of Florida, Inc., et al., and Respondent represented said defendant in the action brought by the Boe-nekes.

The referee found that Madsen’s actions in representing the Boenekes in an attempt to obtain a replacement motor home, together with expenses and attorneys fees, and then in representing the seller in an action brought by the Boenekes on the same transaction constituted conduct that is prejudicial to the administration of justice in violation of Disciplinary Rule 1-102(A)(5) of the Code of Professional Responsibility of The Florida Bar. He further found that Madsen violated Disciplinary Rule 5-105(A) in not declining to represent the Boenekes in the transaction, when he represented the seller and should have known that the exercise of his professional judgment for the Boenekes would be adversely affected by his existing representation of their adversaries in litigation. The referee recommended that Madsen be found not guilty of violating Disciplinary Rule 4-101(B), because the record showed no evidence that he used or revealed any confidence or secret of his client. Based on these findings of professional misconduct, the referee recommended that a public reprimand be administered, and that Madsen be required to pay the costs of the proceeding.

We have carefully reviewed the record and approve the findings and recommendations of the referee. The findings of fact are based on competent and substantial evidence and the recommended disciplinary action is appropriate. We hereby reprimand E. Coleman Madsen for engaging in conduct that is prejudicial to the administration of justice and for failing to decline proffered employment when the exercise of his independent professional judgment on behalf of a client was likely to be adversely affected. Costs in the amount of $689.84 are assessed against Madsen.

It is so ordered.

SUNDBERG, C. J., and ADKINS, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

      . Through scrivener’s error, the referee’s report erroneously refers to the events in this case as occurring in 1980. The record reflects that they actually occurred in 1978.


text:
    THE FLORIDA BAR re Petition to Amend the By-Laws Under the Integration Rule of the Florida Bar (Florida Designation Plan).
    No. 60325.
    Supreme Court of Florida.
    June 18, 1981.
    Leonard H. Gilbert, President of The Florida Bar, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Samuel S. Smith, President-elect of The Florida Bar, of Smith, Mandler, Smith, Werner, Jacob-witz & Fried, Miami Beach, John F. Harkness, Jr., Executive Director of The Florida Bar, Tallahassee, Rayford H. Taylor, Designation Director of The Florida Bar, Tallahassee, and Peter W. Zinober, Chairman, Designation Coordinating Committee, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for petitioner.
   PER CURIAM.

The designation coordinating committee, through the board of governors, has petitioned the Court to amend article XVII, Florida Designation Plan, of the By-laws under the Integration Rule of The Florida Bar. Under the petition, subsections 5(b), 9(c), and 10(a) of article XVII would be amended to read as follows:

[5](b) When the application is filed, the member shall pay an application fee in an amount to be established by the Board not exceeding $30= — The amount of the application feo shall not bo affeotod by the number of areas designated. $50 per area sought to be designated.
******
[9](c) A member who wishes to renew his right to designate areas of practice shall file an application for renewal with the Board at least 30 days before the permission expires. The application shall be on a form specified by the Board and shall state sufficient facts to establish that the member is eligible to renew. When the application is filed, the member shall pay a renewal fee in an amount to be established by the Board not exceeding $30= — The amount of the renewal fee shall not be-affeoted-by the number~of areas designated, $50.00 per area sought to be designated. The 30-day notice period may be waived by the Board for good cause shown.
******
[10](a) Continuing legal education courses which are designed to enhance the proficiency of a designated attorney in a particular area of practice shall qualify as approved courses hereunder. The Board shall determine the number of hours credit to be given for each such course and the designated area entitled to credit for each course. The Board may assess a fee to review and approve courses under this plan.

The amendments are requested so that the designation plan can remain financially self-sufficient.

At oral argument, the Court expressed concern about the review afforded a person seeking course approval. Anyone aggrieved by the committee’s action concerning course approval can, under section 13 of article XVII, petition the board of governors for relief. Denial of relief can be reviewed by this Court.

We find that section 13 provides adequate review, and, therefore, we approve the proposed amendments, effective upon the filing of this opinion.

It is so ordered.

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


author: SUNDBERG, Chief Justice.

text:
    STATE of Florida, Appellant, v. LEON COUNTY, Florida, Appellee.
    No. 60716.
    Supreme Court of Florida.
    June 25, 1981.

      Donald S. Modesitt, State Atty., for the Second Judicial Circuit, Tallahassee, for appellant.
    F. E. Steinmeyer, III, County Atty.,' Tallahassee, G. Keith Quinney, Jr., and Talbot D’Alemberte, of Steel, Hector & Davis, Miami, and R. William Ide, III and Frank A. Lightmas, Jr. of Kutak, Rock & Huie, Atlanta, Ga., for appellee.
    James J. Cooney, Miami, Roy S. Goldfinger, Cleveland, Ohio, and J. Michael Nifong of Squire, Sanders & Dempsey, Miami, for Florida Chamber of Commerce, Inc. d/b/a Florida Chamber of Commerce, amicus curiae.
   SUNDBERG, Chief Justice.

We have for review an order of the Circuit Court for Leon County validating its Industrial Development Revenue Bonds for the construction of a nursing home health care facility. Jurisdiction vests in this Court pursuant to article Y, section 3(b)(2), Florida Constitution and section 75.08, Florida Statutes (1979). This Court’s function in reviewing bond validation cases is limited to determining whether the governmental agency issuing the bonds had the power to act and whether it exercised that power in accordance with the law. Doane v. Lee County, 376 So.2d 852 (Fla.1979); Speer v. Olson, 367 So.2d 207 (Fla.1978). We affirm the judgment of the trial court.

The Florida Industrial Development Financing Act, chapter 159, part II, Florida Statutes, provides for the issuance by duly created authorities of tax-exempt bonds to finance the cost of various types of projects enumerated in the Act. During the 1980 session of the Florida Legislature, the definition of the term “project” contained in the Act was expanded to include, among other facilities, investor-owned, for-profit health care facilities.

In early 1981, Beverly Enterprises requested that Leon County adopt a resolution authorizing the issuance of revenue bonds in the amount of $2,000,000 to finance the construction of a 120-bed intermediate and skilled care nursing home facility to be located in Leon County. The resolution was duly adopted on May 12, 1981. On the same day, Leon County filed its complaint in circuit court seeking validation of the bonds. In its order of June 4, 1981, validating the bonds, the circuit court held that the nursing home project was a capital project for an industrial or manufacturing plant within the intendment of article VII, section 10(e), Florida Constitution. The circuit court held further that even if the project were not deemed to be an industrial or manufacturing plant, it was nonetheless constitutionally authorized because it served a paramount public purpose and provided only incidental benefit to a private corporation.

As framed by the parties, the sole issues for our consideration are whether the proposed nursing home project is an industrial or manufacturing plant under article VII, section 10(c), and alternatively, whether the project is permissible because it serves a paramount public purpose. Because we answer the second inquiry in the affirmative, we need not determine whether a nursing home project comes within the definition of “industrial or manufacturing plants.”

Article VII, section 10(c) of the Florida Constitution authorizes the issuance and sale by a county of revenue bonds to finance the cost of certain enumerated projects, among them being “industrial or manufacturing plants.” But this constitutional provision does not comprise the sole authority for the issuance of public revenue bonds. Other projects not specifically enumerated in section 10(c) may validly be financed by public revenue bonds if the bonds do not contemplate a pledge of credit of the state or of a county and if the projects serve a paramount public purpose. Wald v. Sarasota County Health Facilities Authority, 360 So.2d 763 (Fla.1978); Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971).

The proposed nursing home facility in this case fits well within this latter category of projects validly financed by public revenue bonds. The parties concede that the bonds in no way pledge the credit of the state or of Leon County. With regard to the question whether the project serves a public purpose, the legislature specifically found in section 159.26 of chapter 159 that health care industries are vital to the economy of the state and the welfare of the people and need to be enhanced and expanded. Such a legislative declaration is entitled to great weight. Wald, 360 So.2d at 770; Nohrr, 247 So.2d at 309. Indeed, we have noted previously that “the provision of adequate health care facilities fosters the health, safety and welfare of the citizens of this State and, therefore, serves a paramount public purpose.” Wald, 360 So.2d at 770.

Appellant attempts to rebut the declared public purpose of this nursing home project by reading our decision in Wald to hold that the not-for-profit status of the health facility there in issue was the key factor in our finding of a paramount public purpose. The argument misses the mark. The not-for-profit status of the facility in Wald was important only because at the time, chapter 154 permitted the issuance of revenue bonds only for the acquisition of a “health facility,” and a “health facility” was defini-tionally restricted to “any private corporation organized not for profit.” § 154.205(8), Fla.Stat. (1975). Because the definition of “health care facility” now encompasses for-profit corporations, this aspect of Wald is of no help to appellant.

Accordingly, the order of the Circuit Court for Leon County is affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and MeDONALD, JJ., concur.

      . Chapter 80-287, codified as section 159.-27(16), Florida Statutes (Supp.1980), included “health-care facility” within the definition of “project” as follows:
      (16) “Health-care facility” means property operated in the private sector, other than by not-for-profit organizations, used for or useful in connection with the diagnosis, treatment, therapy, rehabilitation, or care of or for sick, ill, injured, infirm, impaired, disabled or handicapped persons, without discrimination among such persons due to race, religion, or national origin, or for the prevention, detection, and control of disease, including, without limitation thereto, hospital, clinic, emergency, out-patient, intermediate care, including but not limited to facilities for the elderly such as adult congregate living facilities, day care and share a home facilities, nursing home ....

      . All parties concede the validity of the technical and procedural aspects of the proceedings below.


author: ADKINS, Justice.

text:
    CITY OF PLANT CITY, Petitioner, v. Robert T. MANN, et al., Respondents. CITY OF TAMPA and City of Temple Terrace, Petitioners, v. Robert T. MANN, et al., Respondents.
    Nos. 58507, 58580.
    Supreme Court of Florida.
    June 25, 1981.
    Paul S. Buchman of Buchman & Buch-man, Plant City, for City of Plant City.
    Robert H. Bonanno, Asst. City Atty., Tampa, for City of Tampa.
    Marsha G. Rydberg of Taub & Williams, Tampa, for City of Temple Terrace.
    Arthur C. Canaday and Donald R. Alexander, Tallahassee, for Florida Public Service Commission.
    John W. MeWhirter, Jr. of McWhirter & Bakas, Tampa, for Florida Industrial Power Users Group.
    Roy C. Young and Mary Lou R. Santry of Young, van Assenderp, Varnadoe & Benton, Tallahassee, and J. Bert Grandoff, Tampa, for Hillsborough County.
   ADKINS, Justice.

We are asked to review order no. 9173 of the Public Service Commission directing Tampa Electric Company to refund the excess franchise fees collected under order no. 8511 between October 30, 1978, and December 1, 1979, to non-municipal customers. We approve the order of the Public Service Commission and deny the petition for writ of certiorari.

This litigation involves the method of collecting municipal franchise fees. The direct method places the financial burden for franchise fees on the resident customers of the municipality imposing the fee. The spread method distributes the costs among all of the customers of the utility system.

Tampa Electric Company had been using the spread method, but order no. 8439 ordered the company to implement the direct method of collection. In this order the commission found that cities were imposing franchise fees on electricity sales by Tampa Electric Company within their municipal boundaries. The franchise fee imposed was six percent of the electric company’s billings for electric energy sales within the cities. The commission also found that utility companies were partially collecting this franchise fee from customers located outside of the city imposing the fee. It determined as a matter of regulatory authority that the imposition of this charge against non-municipal customers was improper.

The appeal of Plant City resulted in an automatic stay of the enforcement of order 8439. As a result, Tampa Electric Company determined to continue to collect the municipal franchise fee from non-municipal customers until judicial review was concluded.

The respondents moved to vacate the stay order. By order no. 8511, entered October 6, 1978, the commission vacated the stay but imposed a condition that Tampa Electric Company continue to bill the franchise fee to non-municipal customers. It also ordered that city customers be billed the full franchise fee levied by the municipality in which they lived. This order resulted in an over-collection of franchise fees pending the conclusion of judicial review with a proviso that collections would be refunded to the appropriate customers depending on the outcome of the appeal. We quashed commission order 8511 on February 2,1979, but timely motions for rehearing were filed. The parties were notified by the clerk of this Court that the motions to reconsider would be acted upon by the Court subsequent to oral argument. As a result of this notification, Tampa Electric Company continued to collect the franchise fees in accordance with order no. 8511. This review involves the excess fees collected under order 8511.

On November 6, 1979, this Court approved order no. 8439. City of Plant City v. Hawkins, 375 So.2d 1072 (Fla.1979). This decision approved the order directing Tampa Electric Company to implement the direct method of collecting municipal franchise fees.

On December 14, 1979, the commission entered order no. 9173 (the order under review) directing Tampa Electric Company to refund the excess franchise fees collected under order no. 8511 between October 30, 1978, and December 1, 1979, to non-municipal customers.

Petitioner argues that by virtue of the automatic stay resulting from the cities’ appeal from order 8439, the spread method of franchise fee collection remained in effect for all Tampa Electric customers. The status quo should have been preserved pending appellate review, so the city argues that “the excess amount of franchise fees” collected under the provisions of order no. 8511 resulted from the increase in electric rates of municipal customers to accommodate the direct method as required by said order. When this Court quashed order no. 8511 and reinstated the automatic stay, the city argues that the excess amount of franchise fees should have been refunded to municipal customers from whom it was collected.

The commission’s order no. 8439, requiring the direct method, (the order first reviewed), was to be effective October 1, 1978. This Court’s mandate issued thirteen months later in November 1979. Plant City contends that because there was a stay in effect while the matter was judicially reviewed, non-municipal customers must forfeit the money they were required to pay while the appeal continued. They contend that the substantive rights of the parties determined by the Public Service Commission in 1978 would not become effective for more than a year.

A supersedeas on appeal from a final judgment stays the execution but does not undo the performance of the judgment. Crichlow v. Maryland Casualty Company, 116 Fla. 226, 156 So. 440 (1934). Being preventive in its effect the stay does not undo or set aside what the trial court has adjudicated, Henry v. Whitehurst, 66 Fla. 567, 64 So. 233 (1914), it merely suspends the order. El Prado Restaurant, Inc. v. Weaver, 259 So.2d 524 (Fla. 3d DCA 1972).

The commission’s order required Tampa Electric Company to file rates to be effective on October 1, 1978, implementing the direct method of collection. These rates were timely filed. This is the lawful rate which was in effect when the notice of appeal was filed seeking a review of order no. 8439. The partial stay granted by order no. 8511 did not change rate schedules established by the commission. Our responsibility is to restore the situation as equitably as practically possible to the same status as would have existed if the stay order had not been ordered.

During the pendency of the appeal and consistent with the condition imposed by the commission, Tampa Electric Company has collected more than four million dollars in excess franchise fees that must be returned to its customers. In order no. 9173, the order now under review, the commission directed that Tampa Electric Company refund these monies with interest to those customers who resided in the unincorporated areas of Tampa Electric Company’s service area. The distribution of monies in this fashion is consistent with the requirement in order no. 8511 that “all amounts collected by Tampa Electric Company above the company’s obligation to the city under its respective franchise agreement shall be held in escrow to be refunded to the appropriate customers depending on the outcome of the judicial review of order no. 8439.”

When this Court quashed order no. 8511 and reinstated the automatic stay, Hillsbor-ough County and public counsel filed petitions for reconsideration. These motions were not ruled upon, so order no. 8511 remained in effect. As a result Tampa Electric Company continued to collect fees under the conditions imposed by order no. 8511 without objection from any party, including petitioners.

This Court’s decision on July 12, 1979, rehearing denied November 6,1979, in Plant City v. Hawkins, supra, approving the direct method of collecting franchise fees, constituted an implied granting of the pending motions and a finding that the excess fee collection should be distributed in a manner consistent with the final order. If the relief sought by a pending motion is inconsistent with the final judgment of the Court, the motion is deemed denied. On the other hand, if the relief sought by the pending motion is consistent with the Court’s final judgment, the motion may be deemed to have been impliedly granted. The application of this rule to the case sub judice produces a result which is consistent with commission order no. 9173.

While this court initially quashed order no. 8511 on February 2, the final judgment rendered in City of Plant City v. Hawkins, supra, had the effect of overruling the prior holding or of impliedly granting the motion to reconsider. The decision of this Court in City of Plant City v. Hawkins expressed an intention by this Court to grant the motion to reconsider or to overrule its prior holding that an automatic stay would remain in effect during the course of the appeal.

Petitioners should not be allowed to profit from a former appeal which they lost. Order no. 9173 is hereby approved.

It is so ordered.

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


author: McDONALD, Justice. ALDERMAN, Justice,

text:
    Richard HICKS, Petitioner, v. STATE of Florida, Respondent.
    No. 58786.
    Supreme Court of Florida.
    June 25, 1981.
    Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., Steven L. Bolotin and Anthony C. Musto, Asst. Atty. Gen., Miami, for respondent.
   McDONALD, Justice.

This cause is before us on petition to review a district court decision affirming Hicks’ conviction of two counts of robbery and one count of unlawful possession of a firearm while engaged in a criminal offense. Our jurisdiction is based on conflict between that decision and Smith v. State, 319 So.2d 14 (Fla.1975), and Watson v. State, 291 So.2d 661 (Fla. 4th DCA 1974). Art. V, § 3(b)(3), Fla.Const. (1972). We quash the instant district court decision.

Before his jury trial, Hicks filed both a notice of alibi and a motion to compel the state to furnish a list of rebuttal witnesses. See Fla.R.Crim.P. 3.200. At trial Hicks’ alibi was that at 3:30 p.m. on February 11, 1976 (the time of the offense), he was at his mother’s home at a party given in his hon- or. Albertha Stanley, his sister and only alibi witness, testified that after her shift at North Dade Hospital she immediately went to her mother’s home and found Hicks there at 3:30 p. m.

The state, in rebuttal, called the records custodian at North Dade Hospital who testified that Ms. Stanley did not work at the hospital on February 11, 1976. Hicks objected to the records custodian’s testimony because the custodian was not listed by the state as an alibi-rebuttal witness under rule 3.200.

Allowing the testimony, the court drew a distinction between testimony that directly rebuts a defendant’s alibi and testimony which discredits an alibi witness. The court held that the latter testimony does not come within the disclosure provision of rule 3.200.On appeal, the district court affirmed, finding that testimony impeaching the credibility of Hicks’ witness did not directly rebut his alibi.

On almost identical facts, the Fourth District Court reached the opposite conclusion in Watson. In Smith, although the rebuttal witness’s testimony went directly to the alibi, this Court recited the Watson court’s rationale:

“Rule 3.200, RCrP is a part of the general discovery rules incorporated into the criminal procedure of this state. Like all discovery, it is reciprocal, affording the state and defendant alike an opportunity to eliminate surprise and lessens the opportunity for manufactured false alibis. Like all discovery procedures, fairness is the watchword. . . . The rule mandates that each party is under a continuing duty to disclose the names and addresses of additional witnesses. . . . ”

319 So.2d at 17. Discovery has been adopted as part of our procedural rules to improve our system of justice. It is a tool intended, inter alia, to abolish the tactical element of surprise in our adversary trial process. Dodson v. Persell, 390 So.2d 704, 706 (Fla.1980).

In our view the distinction sought to be made by the Third District Court of Appeal is invalid. Interpreting Federal Rule of Criminal Procedure 12.1, the Fifth Circuit Court of Appeals in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977), held that such a distinction thwarts the rule’s purpose of making criminal trials fairer.

Rule 3.200 applies to all witnesses of whom the prosecutor knows or reasonably should know. It embraces those witnesses called to rebut the alibi, as well as those witnesses called to impeach the testimony of the alibi witness.

We therefore quash the district court’s decision with instructions to remand this cause for proceedings consistent with this opinion.

It is so ordered.

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

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

I would deny review of the district court decision because it does not conflict with Smith v. State, 319 So.2d 14 (Fla.1975), and Watson v. State, 291 So.2d 661 (Fla. 4th DCA 1974), and we are therefore without jurisdiction to decide this case on the merits. The district court, in this case of first impression, held that because the testimony of the witness, who did not appear on the State’s list of rebuttal witnesses, impeached the credibility of defendant’s alibi witness and not the alibi itself, the trial court was correct in permitting its introduction.

Both Smith and Watson deal with witnesses who directly rebutted the alibi, not with witnesses who impeached the credibility of alibi witnesses. In Smith, the testimony of the rebuttal witness, whose name had not been supplied to defendant, directly refuted defendant’s claim that he was at a certain designated place making a phone call at the time of the charged crimes. Likewise, in Watson, the testimony of the rebuttal witness “totally obliterated appellant’s alibi.” 291 So.2d at 662.

      . Hicks v. State, 378 So.2d 1342 (Fla.3d DCA 1980).

      . This rule is almost identical to Fla.R.Crim.P. 3.200.