author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Lewis James JACKSON v. STATE.
    7 Div. 934.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-840.
    Jim Embry, Jr. of Love, Love, Lawrence & Embry, Pell City, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty as charged in an indictment which alleged in pertinent part that he did “unlawfully sell, furnish or give away 4.2 grams of marihuana, a controlled substance, to Deputy B. J. Hornsby, contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of § 20-2-70 of the Code of Alabama.” The court fixed his punishment at imprisonment for four years and sentenced him accordingly.

Officer Bobby Joe Hornsby testified that in January 1981, while employed as a deputy sheriff in Jefferson County, Alabama and assigned to United Narcotics Detail Operations (UNDO), he met with Sergeant C. L. Jordan, Sergeant N. D. Harris and a reliable confidential informant at a service station in Pell City. Prom there he and the confidential informant proceeded in an automobile to a residence and turned right in the driveway and that the other two officers “proceeded on straight.” He said that he went “onto the porch, knocked on the door” and “the subject sitting there at the table [whom he identified as the defendant] came to the door. The witness further testified that he asked the defendant if he had some “weed” he could buy and that defendant said, “Yes, but all I have left is a dime bag.” According to further testimony of the witness, the defendant handed him “a plastic pill type bottle with a white top” which he opened and wherein he observed “a brownish, green, vegetable type substance consistent in appearance and aroma with marijuana.” According to the witness, he gave the defendant a “10-Dollar Bill” for that which he received from him. He then returned to the service station and met the other officers with whom he had previously met and delivered what he had bought from defendant to Sgt. C. L. Jordan and that he observed Sgt. Jordan place the bottle in a Manila envelope. He further said that the envelope was then initialed by himself, Sgt. Jordan and Sgt. Harris, and that then Sgt. Jordan “placed tape on the seams.”

Further testimony of Officer Hornsby is as follows:

“Q. All right. Now, have you seen that package since that date?
“A. I saw him [Sgt. Jordan] place it in the trunk of his vehicle on that date. I was present with him when he took it to the Department of Forensic Sciences in Jacksonville on the 13th, I believe, of January. I observed him take it out of the trunk of his vehicle and carry it into the office and turn it in there.
“I was present with him when the substance was turned back over to him, I believe, Mr. Thorn testified, in June. I observed him take it outside the building and place it back in the trunk of his vehicle at that time. And since then, I haven’t seen it until now.”

Mr. David Thorn, a drug chemist employed by Alabama Department of Forensic Sciences, testified that on January 13, 1981, Sgt. C. L. Jordan brought him a package, “a Manila envelope with specific writing across the front of the envelope” and that he examined the contents of the package which were “a prescription type vial with a snap type of cap on it” which he examined and found that it contained “approximately 4.2 grams” of “plant material” that he chemically analyzed and found to be “marijuana.” He further testified:

“Q. And when you finished your examination, you — again, you testified that you sealed it up and put it in an evidence locker?
“A. Yes, sir.
“Q. Is that evidence locker under your control?
“A. Yes, sir, it is.
“Q. How long did it stay in the evidence locker?
“A. Let me refresh my memory. “(Witness examines documents.) Okay. I turned it over to Sgt. York in June of this year—
“Q. All right.
“A. Approximately.
“Q. Five months?
“A. Five, six months; yes, sir.”

On cross-examination, Mr. Thorn testified:

“Q. Mr. Thorn, how many people have access to this evidence locker that you are talking about?
“A. Myself, the other investigator in the lab, John Case, and his secretary, Linda Harris.
“Q. Was this package that you have been testifying to delivered to you personally, as opposed—
“A. Yes, sir, it was.
“Q. Was it ever in the possession of your secretary or the secretary for the department there?
“A. Was it ever in her possession?
“Q. Yes, sir.
“A. No, sir.”

Appellant presents the following issue:

“Did the trial court commit reversible error by allowing the State, over defendant’s objection to introduce into evidence State’s exhibit one and two (i.e. Manila envelope and plastic bottle) because the chain of possession of said exhibits had not been perfected and the proper predicate had not been laid?”

Appellant argues:

“Our Supreme Court has unequivocally held that to establish the sufficient predicate for admission into evidence it must be shown that there is no break in the chain of custody. Identification and continuity of possession must be sufficiently established to afford ample assurance of the authenticity of the item; Ex Parte Yarber, Ala., 375 So.2d 1231.”

The reference is to what was stated in Ex Parte Yarber at 375 So.2d 1234. We think we have quoted sufficient evidence to demonstrate that there was full compliance with the statement relied upon in Yarber. The circumstances here are very similar to the circumstances in many cases digested in Ala. Digest, Criminal Law, 5B Key No. 404(4), including Oury v. State, 53 Ala.App. 240, 298 So.2d 661 (1974) and other cases relied upon in the recent case of Coleman v. State, Ala.Cr.App., 411 So.2d 814 (1981), (cert. denied April 2, 1982) wherein it is stated by Judge DeCarlo at 411 So.2d 815-6:

“In our judgment, the facts in this case parallel those in Oury v. State, supra. Here, Adair testified that after the items were delivered to him in a sealed condition by Landrum, Adair analyzed the contents. There is not an iota of evidence that would indicate there was any tampering with the envelope or its contents before it was given to Adair. Under these circumstances, we believe there is a reasonable probability that the material was in substantially the same condition as when it was first delivered to Landrum. If the six-day possession of the material by Landrum is perceived to be a ‘weak link’ in the chain of custody, then a question of credit and weight exists rather than one of admissibility. McClary v. State, 51 Ala.App. 30, 282 So.2d 379 (1972), reversed on other grounds, 291 Ala. 481, 282 So.2d 384 (1973); King v. State, 45 Ala.App. 348, 230 So.2d 538 (1970). Therefore, it is our judgment that the items were properly admitted into evidence.”

In challenging the sufficiency of the evidence as to the identity of the defendant as the person who Officer Hornsby testified sold him the marijuana, appellant refers to the following question and answer during the cross-examination of Officer Hornsby:

“MR. EMBRY: Officer Hornsby, I believe it is your testimony that you received this, or a similar plastic bottle from the defendant, or a person in the defendant’s house. You testified from the defendant. Is that correct?
“OFFICER HORNSBY: I testified I received that bottle. Yes sir.”

In his argument on the point, appellant states in his brief:

“We suggest that upon cross-examination when Officer Hornsby was asked directly if he received the plastic bottle from the defendant he was unsure and his answer indicates this, thus not identifying the defendant, or anyone else in the court room as the person from whom he received the bottle.”

Of course, we cannot be sure that Officer Hornsby was sure that it was defendant who sold him the marijuana, but we cannot agree with appellant’s suggestion that the above-quoted question and answer show that Officer Hornsby was “unsure.” At any rate, there can be no doubt that he did definitely identify the defendant as the person who sold him the marijuana.

The only other insistence on a reversal pertains to action of the court during the cross-examination of Officer Hornsby as to what occurred as officer Hornsby went into defendant’s house from the porch through the door opened by defendant, particularly the following:

“Q. And is it not a fact that someone opened the door from the inside of the house?
“A. That’s correct.
“Q. At that time, is it not a fact, Officer, that whoever was with you stepped back off the porch out of sight?
“A. Not at that exact time, no sir. “Q. Is it not a fact that you are the only person that had a conversation with anyone inside that house on that occasion? “A. I was introduced to Mr. Jackson by the subject that carried me there [confidential informant].
“MR. EMBRY: Judge, we move to exclude. That’s hearsay.
“MR. FAMBROUGH: That’s not hearsay, Your Honor.
“THE COURT: Overruled. You asked him if he wasn’t the only one that had a conversation.
“MR. EMBRY: And he said what the other fellow said.
“THE COURT: I’ll sustain, and you can —I’ll sustain on the basis that his answer was not responsive to your question. That reason only.
“MR. EMBRY: Yes, sir.”

Appellant concludes his argument as to his last insistence on a reversal by the following:

“... [W]e submit to this Honorable Court that the trial court committed reversible error by first, overruling defendant’s motion to exclude and did not correct the error when the court later sustained on the basis that the answer given was not responsive and gave no curative instructions to the jury concerning the hearsay testimony.”

Our analysis of appellant’s last insistence on a reversal and the part of the transcript to which the insistence is directed is that (1) the court was probably correct in its first ruling to the effect that defendant had opened the door to the answer of the witness, (2), nevertheless, it was probably better in the interest of justice that the court change its ruling, as it did, (3) that the court should have in this circumstance instructed the jury to disregard the excluded statement but that it is not to be wholly blamed for its failure to do so in the absence of a request that the jury be so instructed, and (4) no error prejudicial to defendant was involved.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    Daniel Lowell COLER, Appellant, v. STATE of Florida, Appellee.
    No. 54250.
    Supreme Court of Florida.
    May 13, 1982.
    Rehearing Denied Aug. 31, 1982.
    Tyrie A. Boyer of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, Margaret Good, Louis G. Carres and Thomas S. Keith, Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Gregory C. Smith and A. Sidney Johnston, Asst. Attys. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

Coler was convicted and sentenced to death on three counts of rape of a child under eleven years and one count of sexual battery of a child eleven years or younger. Each count charged Coler with a separate episode of sexual battery on his daughter during the years 1972 through 1977. At the outset we vacate the death sentence since we have held in Buford v. State, 403 So.2d 943 (Fla.1981), that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and therefore forbidden by the eighth amendment as cruel and unusual punishment. Further, although there is sufficient evidence in the record, if believed, to support a conviction, we find that Coler was convicted in part by the use of irrelevant, unfairly prejudicial testimony which deprived him of a fair trial. We therefore reverse his convictions and order a new trial.

After Coler and his wife were divorced early in 1972, the three Coler children lived half the time with each parent. In July 1972 Coler obtained exclusive custody of the children, and they lived with him until late in 1974 when their mother regained custody. Coler was granted weekend visitation privileges with the children. In March 1977 the children complained that they did not want to visit their father. When pressed by their mother for a reason, one of the children indicated that their father had been sexually abusing the daughter. Following an investigation by the Division of Family Services, including a gynecological examination, the state attorney’s office sought and received an indictment.

In addition to the testimony of the children concerning the four specific incidents of sexual battery, the state introduced testimony from the children, over objection, of other examples of Coler’s deviant sexual behavior. They testified that Coler had the children watch from the doorway as he fondled a woman, that he told them that they or the neighborhood children could use his bed for sexual intercourse, that he told one of his sons to have sex with three women he brought home, and that on a visit to Michigan he made the children eat a cucumber which, just prior thereto, he had inserted into the daughter’s rectum. None of this testimony was relevant to prove a material issue of the indictment. It served only to prove the defendant’s bad character and was obviously prejudicial.

For a discussion of evidence of a collateral nature we return to the fine opinion of Justice Thornal in Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). That case states the general rule that similar fact evidence is admissible if relevant to a fact in issue even though it also points to the commission of a separate crime. Such evidence is inadmissible, however, if its sole relevancy is to establish bad character on the part of the accused. The prosecution is not permitted to present evidence simply to show a defendant’s bad character or to show a disposition toward the commission of the crime charged. If relevant, the bad character exception may have to yield if incidental to a relevant issue, but, when there is no relevance except bad character, it is error to allow such evidence.

To be relevant, evidence must prove or tend to prove a fact in issue. The state argues that the objected-to evidence proves Coler’s state of mind. Coler’s state of mind, however, was not an issue. State of mind is not a material fact in a sexual battery charge, nor is intent an issue. Cf. Askew v. State, 118 So.2d 219 (Fla.1960) (specific intent is not the essence of the crime of rape). In this instance the state overstepped the threshold of responsible prosecution with the introduction of this loathsome and despicable testimony. We cannot say it did not affect the jury’s verdict.

Coler raises other issues, but most of these alleged errors are unlikely to reoccur in a new trial, and we decline to address them. In any event we are unable to discern other clear reversible error on the issue of guilt.

The convictions and sentences are vacated, and Coler is granted a new trial.

It is so ordered.

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

ADKINS, J., dissents with an opinion with which SUNDBERG, C. J., concurs.

ALDERMAN, J., dissents with an opinion with which ADKINS, J., concurs.

ADKINS, Justice,

dissenting.

I dissent.

It is true that the evidence of other sexual offenses; just as any evidence tending to prove guilt, may serve to prove defendant’s bad character and be prejudicial. On the other hand, the evidence was relevant to show a state of mind or a pattern of criminality.

Ross v. State, 112 So.2d 69 (Fla.3d DCA 1959), was a prosecution for assault, in a lewd and lascivious manner on a girl under fourteen years of age. In affirming the conviction, the court said:

We hold against the contentions of appellant regarding the testimony of the other girl who at the time or times involved was 10 or 11 years old. Testimony of the latter to the effect that appellant had fondled her in a lewd and lascivious manner was presented by the state to show the character of the deed as to motive, intent and absence of mistake, for which it was relevant and admissible, under Talley v. State, 160 Fla. 593, 36 So.2d 201; and Williams v. State, Fla. 1959, 110 So.2d 654.

Id. at 70.

While the record may permit conclusion that the earlier occasion of fondling the other girl was as much as two years before the date of the offense involved here, counsel for the defendant on cross examining the girl established that the defendant engaged in such conduct with her on a continuing series of occasions, the last of which was said by her to have taken place as late as November of 1957, approximately six months prior to the offense charged here.

Id. at 70-71.

The defendant in Summit v. State, 285 So.2d 670 (Fla.3d DCA 1973), was convicted and sentenced for lewd and lascivious conduct upon a female child under the age of fourteen years. On appeal defendant contended that the trial court committed error in admitting into evidence testimony concerning prior sexual offenses with the victim and the victim’s sister. In affirming the conviction the court said:

[W]e find the testimony of the victim and her sister regarding prior similar conduct on the part of the defendant with them to show the character of the deed as to motive and intent to be relevant and admissible. Therefore, we hold the trial court to be correct in denying defendant’s motion for mistrial on the grounds that the above testimony was admitted improperly.

Id. at 670 (emphasis supplied).

Gossett v. State, 191 So.2d 281 (Fla.2d DCA 1966), was an appeal by a husband and wife from a conviction of assault and rape upon a female under the age of fourteen years. In affirming the conviction the court said:

The only possible error here is whether it was proper for the trial court to permit the introduction of evidence of similar illicit acts, imposed by the appellants on the children, that occurred prior to the time of the act in question.

Id. at 282.

We conclude that the trial judge had authority under Williams v. State, . . . [110 So.2d 654 (1959)], and Talley v. State, . .. [160 Fla. 593, 36 So.2d 201 (Fla.1948) ], to permit the evidence of former acts of the two defendants in connection with the children involved in the instant case to show a pattern of criminality that makes the prior acts relevant to the commission of the acts in question.

Id. at 283 (emphasis supplied).

Cantrell v. State, 193 So.2d 444 (Fla.2d DCA 1966), was a prosecution for the commission of a lewd and lascivious act on an eight-year-old female child. The defendant was convicted and on appeal claimed error in the admissibility of evidence of similar acts committed by defendant with other female children. In affirming the conviction the court said:

During the course of the trial, the state was allowed to present the testimony of two other female children to the jury. These two witnesses testified essentially that defendant had on previous occasions improperly fondled them while in the swimming pool. Because of the age of these children, we will not repeat their exact testimony. Suffice it to say that it clearly and unequivocally established a course of conduct in the commission of the crime charged in the instant case.

Id. at 445 (emphasis supplied).

The defendant in Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976), was convicted of the rape and murder of a thirteen-year-old female. The trial judge admitted testimony that defendant and another man attempted to engage in anal intercourse in the hour preceding the rape and murder of the victim. In affirming the conviction this Court said:

[W]e hold that the circumstances surrounding the earlier unfulfilled sexual act were relevant to establish the state of mind of appellant and the motive for the assault on the victim occurring only a short time thereafter. Such evidence also was relevant to rebut alibi testimony. The trial court did not err in admitting such testimony.

Id. at 438 (emphasis supplied).

In Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), review denied, 392 So.2d 1373 (1981), the defendant was convicted committing a lewd and lascivious act on his five-year-old daughter and he appealed. At trial, the victim and her brother, who was present at the time of the commission of the offense charged, testified that defendant committed the offense on the day in question. Over defendant’s objection, the state presented the testimony of a neighborhood child who testified that defendant had committed the same type of sex act on her and her young sister. In affirming the conviction, the court said:

The evidence here was relevant to the alibi defense and in addition to establish “a pattern of criminality,” a category of admissibility recognized by the Florida Supreme Court in The Williams Case and in Ashley v. State, 265 So.2d 685, 693 (Fla.1972). Evidence of prior illicit sex acts with the same children involved in the assault and rape prosecution was held properly admitted “to show a patter of criminality” in Gossett v. State, 191 So.2d 281, 283 (Fla.2d DCA 1966)[.] ...

Id. at 1147 (footnote omitted).

In Gibbs v. State, 394 So.2d 231 (Fla. 1st DCA 1981), the defendant was convicted of lewd, lascivious, and indecent assault upon a child. He appealed contending that evidence of prior sex acts committed by defendant against his stepdaughter was improperly admitted. This evidence was held admissible, the court saying:

The existence of a lustful attitude toward his stepdaughter, proven by prior sexual assaults, makes it more likely or probable that the appellant possessed a similar state of mind toward his stepdaughter on the date of the alleged offense. This is relevancy beyond mere propensity.

Id. at 232.

In Whiteman v. State, 343 So.2d 1340 (Fla.2d DCA), cert. denied, 353 So.2d 681 (1977), defendant was convicted of three counts of involuntary sexual battery. The victim was his niece who was seventeen years old. He had custodial control. In affirming the conviction the court said:

The niece was permitted to testify, over objection, to other occasions of sexual intercourse with the appellant (other than those specified in the informations) which had occurred over a lengthy period of time, the first of which occurred when she was 9 years old. She also testified to numerous instances of being handled and fondled by the appellant, being forced to give him baths, reading pornography aloud at his insistence and submitting to other types of sexual by-play (again at various times other than the occasions specified in the charges).
The court below ruled such testimony admissible at a hearing in advance of the trial for the purpose of deciding the admissibility question. In his ruling the trial judge stated:
The entire relationship between the parties, that is, between the defendant and the alleged victim is relevant and material. Anything that went on between them in view of the allegations of the information that he [the appellant] was exercising this authority over her, anything going to that point, the Court finds it relevant, even though it may also indicate some other wrongdoing, but it is relevant.

Id. at 1341.

Appellant’s continuing course of sexual aberration in reducing his legal ward to a veritable automaton was clearly relevant to the manner in which his parental authority over her had been exercised so as to reduce the niece to the status of a sexual plaything. Nothing is more relevant than the milieu in which the victim was reared by her legal guardian and her will or freedom to consent effectively vitiated.
Finally, this court is well aware of the fact that the introduction of evidence of collateral crimes tends to impress upon the minds of the jurors that the defendant has a propensity to commit crimes. Beasley, supra at 286. See C. McCormick, Evidence § 190 (2d ed. 1972); 1 J. Wigmore, Evidence § 194 (3d ed. 1940). Almost any case wherein such evidence is allowed must, of necessity, have such a quality. Nevertheless, where such is not the sole purpose of admitting the evidence and the similar fact evidence is relevant to prove a material fact in issue, admission is not unduly prejudicial. Green v. State, 190 So.2d 42 (Fla.2d DCA 1966).

Id. at 1343.

Defendant Coler was charged with four separate episodes of sexual battery on his daughter who was under eleven years of age during the years 1972 through 1977. His alleged conduct with his daughter was not normal, but that of a sexual deviant. Although the evidence certainly proved defendant’s bad character and was obviously prejudicial, it was nevertheless admissible to prove motive, state of mind, or pattern of criminality.

It would be impossible to prove beyond a reasonable doubt the four isolated instances of sexual battery over a course of five years by relying on the testimony of a child. There must be corroboration. Other acts of sexual abuse during this period of time would be admissible, whether they are directed to the victim or to others. The rule regarding evidence of a collateral nature were thoroughly explained in Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). After examining the numerous authorities construing Williams v. State, I believe that the majority has suffered from semantic aphasia.

Of course, the death penalty could not be imposed. Buford v. State, 403 So.2d 943 (Fla.1981).

SUNDBERG, C. J., concurs.

ALDERMAN, Justice,

dissenting.

I disagree with the majority holding that Coler’s convictions for three counts of rape of a child under eleven years and one count of sexual battery of a child eleven years or younger should be reversed because the trial court permitted evidence of other sexual offenses by Coler. Justice Adkins, in his dissent, is correct in concluding that this evidence was admissible because it was relevant to prove motive, state of mind, or pattern of criminality. Furthermore, in my view, the trial court was completely justified in finding that Coler’s offenses were especially heinous, atrocious, or cruel. The court said:

The Defendant is the father of the following three children: Mary Coler, the victim, born July 20, 1965; Arthur Coler, born October 9, 1963; and Christopher Coler, born June 11, 1962. Defendant and his wife were divorced in 1972. The three children lived with their mother at their residence on Cherokee Villa Lane in Jacksonville until the Defendant moved into said residence and the mother moved out, took the furniture and moved into an apartment in Jacksonville. The said children continued to reside at the Cherokee Villa Lane residence with their father who purchased new furniture for the home. The first time Defendant raped his daughter Mary was after the mother moved out and before Christmas, 1972. The daughter was then seven years old. He forced her to perform fellatio on him, after which he forced her to submit to sexual intercourse. This occurred approximately every week or every other week thereafter. The bleeding which she suffered as a consequence subsided after approximately one or two months. She, of course, suffered pain from these attacks by the Defendant and testified that she would scream but that the Defendant would usually have his hand or fist up to her mouth and that he would hit or strike her. Defendant’s son, Christopher, testified that he occasionally would hear Mary’s screaming coming from Defendant’s bedroom.
Mary specifically recalled that on Christmas night, 1972, he again raped her after they had returned home to the Cherokee Villa Lane residence after having visited Defendant’s wife’s residence in Fernandina, the Defendant having since remarried. This attack was similar to the first which occurred as aforesaid.
Another specific incident testified to by the Defendant’s daughter and son, Christopher, occurred two or three months after Christmas, 1972, again at the Cherokee Villa Lane residence. On this occasion, Defendant got Christopher out of his bedroom and forced him to come into Defendant’s bedroom to watch while Defendant again raped his daughter. As this was occurring, Christopher, then ten years old, attempted to use the telephone to call the police but Defendant prevented this by striking his son. The son returned to his bedroom. A short time later that same night, Defendant entered Christopher’s room and ordered him to have sexual intercourse with his sister. When the son refused, Defendant held a pair of scissors up to his penis and threatened to amputate it. Defendant then performed fellatio on his son and forced his son to have sexual intercourse with his daughter. Some time prior to this occasion, Christopher testified that he recalled walking into Defendant’s bedroom and observing bloody towels and sheets on Defendant’s bed.
The children continued to live with the Defendant until a few months after the summer of 1974. During this time, the Defendant continued to attack his daughter in the same manner as the first occasion, that is, by first making her perform fellatio on him and then raping her. The frequency of such assaults was estimated by the daughter at approximately every week or two. Christopher testified that frequently when he would get up in the morning to leave for school, he would see his sister on top of the Defendant in Defendant’s bed and that the Defendant would shove her off when he saw Christopher.
Another instance which Defendant’s daughter specifically recalled was an assault which occurred during the summer of 1974. She and her brother, Arthur, were visiting their mother at the apartment complex where the mother lived. Mary and Arthur were at the swimming pool when the Defendant arrived at the complex and dragged Mary off to his car, took her to his home and again attacked and raped her in the same manner as aforesaid.
Shortly after the summer of 1974, the children’s mother obtained custody of them at which time they moved back to live with her. Pursuant to the Defendant’s visitation rights, the children would visit Defendant every other weekend. The Defendant continued to rape his daughter on a regular basis until March, 1977. In March, 1977, a few weeks before Defendant’s arrest on the subject charges, Mary, Arthur, and Christopher went to Marineland with the Defendant. After returning to Jacksonville, they went to Defendant’s residence at Cherokee Villa Lane where Defendant again raped his daughter. This was the last time he attacked her.
In March, 1977, Christopher revealed to his mother and stepfather what had been occurring during the past several years relative to Defendant’s aforesaid activities. This was reported to the police and Defendant was arrested. Defendant fled the jurisdiction and went to Pago Pago, American Samoa. Subsequently, he waived extradition and was returned to Jacksonville to stand trial.
Defendant’s daughter was taken to University Hospital in Jacksonville on March 28, 1977 for a pelvic examination. Dr. Guy Benrubi, chief resident for obstetrics and gynecology examined her at that time. At the trial, the Court found him qualified to testify as an expert witness in the field of obstetrics and gynecology. Dr. Benrubi testified that, upon his examination of Mary, he discovered a complete absence of the posterior hyme-nal ring and a great deal of scarring on the posterior fourchette, the aspect of the entrance of the vagina immediately next to the hymenal ring. This was not a congenital anomaly. Dr. Benrubi stated that, in his opinion, this condition was caused by the repeated penetration of the vagina at an early age by some object equal or greater than the diameter of the vaginal entrance at a time when the vagina was not ready to receive such object, that is, at a time pre-puberty when there was no estrogen circulating in the child’s body to make the vagina pliable. Dr. Benrubi testified that he had never before seen as much scarring as he did on his examination of this child.

Even though I agree with the trial court’s findings as to aggravating circumstances and lack of mitigating circumstances, I find that the death sentences imposed for these offenses of rape and sexual battery must be vacated. Recently, in Buford v. State, 403 So.2d 943 (Fla.1981), we held that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is therefore forbidden by the eighth amendment as cruel and unusual punishment.

I would affirm the convictions, but I would remand to the trial court to reduce the death sentences to life sentences with a mandatory term of twenty-five years’ imprisonment. The trial court, of course, has the discretion to make these life sentences run consecutively.

ADKINS, J., concurs.

      . The first three counts were based on § 794.-01(1), Fla.Stat. (1971). The fourth count was based on § 794.011(2), Fla.Stat. (1975).

      . We make no judgment as to whether the evidence actually tends to prove or disprove Coler’s state of mind. Further, we do not comment on whether the introduction of such testimony should be excluded as a result of weighing its probative value against any unfair prejudice. See § 90.403, Fla.Stat. (1979) (not applicable to the trial of this cause).


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re AMENDMENT TO INTEGRATION RULE, ARTICLE XI, RULE 11.14 DISCIPLINARY PROCEEDINGS IN CIRCUIT COURT.
    No. 61735.
    Supreme Court of Florida.
    July 15, 1982.
    James C. Rinaman, Jr., President, Jacksonville, William O. E. Henry, President-elect, Lakeland, 0. Edgar Williams, Jr., Chairman, Integration Rule and Bylaws Committee, Fort Lauderdale, and John F. Harkness, Jr., Executive Director, Tallahassee, of The Florida Bar, for petitioner.
   PER CURIAM.

Pursuant to Florida Bar Integration Rule, article XIII, The Florida Bar has petitioned this Court to amend Florida Bar Integration Rule, article XI, Rule 11.14. This amendment will expand the rule to include county court judges within the group of judges who have the authority to initiate disciplinary proceedings against members of The Florida Bar in circuit court. The Bar has also requested that we eliminate the requirement that the member of the Bar recommended for discipline practice in the district, circuit, or county of the judge who directs the state attorney to file a motion to discipline that person. We do not agree that this limitation should be removed from the rule.

We grant the petition with the exception of the elimination of this limitation and amend rule 11.14 as follows:

(1) Disciplinary matters in district courts of appeal, and circuit courts and county courts. Whenever it shall be made known to any ef-the judges of the a district courts of appeal, or any judge of a circuit court, or a county court in this state that a member of The Florida Bar practicing in any of the courts of his district, or judicial circuit, or countv has been guilty of any unprofessional act as defined by this Integration Rule or the Code of Professional Responsibility adopted by this Court, such judge may direct the state attorney for the circuit in which such attorney shall have his office to make in writing a motion in the circuit court in the name of the State of Florida to discipline such attorney setting forth in the motion the particular act or acts of conduct for which the attorney is sought to be disciplined.
(91 Nothing in this Rule shall be construed to discourage or to restrict the right and responsibility of any judge to call to the attention of The Florida Bar the conduct of any member thereof which, in the opinion of the judge, warrants investigation by The Florida Bar to determine if there has been a violation of the Code of Professional Responsibility or if an unprofessional act has occurred. It is so ordered.

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


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. Luis AGUIAR, Respondent.
    No. 60316.
    Supreme Court of Florida.
    July 29, 1982.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., Miami, and Janet Reno, State Atty., Miami, for petitioner.
    L. Mark Dachs of the Law Offices of Melvyn Kessler, Miami, for respondent.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Third District, (State v. Luis Aguiar, 392 So.2d 944 (Fla.3d DCA 1980)), where the court held that a defendant not present at the scene of the burglary or robbery, which results in the killing of a human being, could not be charged with first-degree felony murder even though he may have participated in the plan for the commission of the underlying felonies.

In a prosecution for murder in the first degree, if the accused was present, aiding and abetting the commission or attempt of one of the violent felonies listed in the first-degree murder statute, he is equally guilty, with the actual perpetrator of the underlying felony, of first-degree murder. Enmund v. State, 399 So.2d 1362 (Fla.1981), rev’d on other grounds, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (U.S. 1982). Constructive presence at the time of the homicide will support a conviction of first-degree murder. Enmund v. State; Jackson v. State, 403 So.2d 1063 (Fla. 4th DCA 1981).

A defendant who aids and abets the commission of the underlying felony, but who is not present at the murder, can be convicted under the second-degree felony murder statute. State v. Lowery, 419 So.2d 621 (Fla.1982).

A defendant who was not present during the commission of the murder may be convicted of murder in the first-degree if premeditation is shown. See e.g. Antone v. State, 382 So.2d 1205 (Fla.1980); Barfield v. State, 402 So.2d 377 (Fla.1981).

The decision of the district court of appeal affirming the order of the trial court dismissing the prosecution is approved.

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


text:
    THE FLORIDA BAR, Complainant, v. Glen R. PETERSON, Respondent.
    No. 60426.
    Supreme Court of Florida.
    July 29, 1982.
    Stanley A. Spring, Staff Counsel, Laura E. Keene, Bar Counsel, Tallahassee, and Franklin R. Harrison, Panama City, for complainant.
    Glen R. Peterson, pro se.
   PER CURIAM.

This disciplinary proceeding is before us on complaint of The Florida Bar, report of the referee, petition for review filed by the Bar, and request for review by respondent, Glen R. Peterson.

The facts underlying the Bar’s complaint against Peterson are that, during the luncheon recess of a case in which Peterson was representing the plaintiffs, he and one of his expert witnesses went to a delicatessen and allowed themselves to be seated at a table then occupied by two jurors serving in the ease which he was trying. He acknowledged at the hearing before the referee that he knew that the women seated at the table were jurors. While seated with these jurors, he was observed by two secretaries working in the office of the law firm representing defendant in the case being tried. These secretaries reported what they had seen to the defendant’s attorney. After the lunch recess, defendant’s counsel moved for mistrial on the basis that Peterson had communicated with the jurors during recess. The trial court granted this motion. Peterson apologized to the court for the incident causing the mistrial which occurred and entered into a stipulation that he would pay the county the jurors’ fees including mileage for the two days the jurors served.

Before commencement of a new trial, defendant’s counsel moved to assess defendant’s costs and attorney’s fees against Peterson or his clients. The trial court granted this motion but held that these charges were to be borne only by Peterson. On appeal, however, the First District reversed and held that the trial court was not authorized to assess defendant’s costs and attorney’s fees against Peterson. Miller v. Colonial Baking Co. of Alabama, 402 So.2d 1365 (Fla. 1st DCA 1981).

The referee in the present proceeding found that Peterson did communicate with the two jurors in violation of the proscription of Florida Bar Code of Professional Responsibility, Disciplinary Rule 7— 108(B)(1). He further found, however, that the nature and extent of the communication are unclear and that the evidence does not demonstrate that Peterson did what he did with intent to gain any unfair advantage in the litigation then pending although his conduct may have had that effect had the mistrial not been declared. For this misconduct, the referee recommends that Peterson be publicly reprimanded, not because he communicated with these jurors with any ulterior purpose in mind but simply because he communicated with them. The referee also recommends that Peterson be required to pass the Multistate Professional Responsibility Examination and that he be required to pay defendant’s costs and attorney’s fees in the cause upon which the mistrial was declared.

The Bar requests a greater discipline, a thirty-day suspension. Peterson, on the other hand, requests a lesser discipline, a private reprimand and no requirement that he pass the Multistate Professional Responsibility Examination or that he pay costs and attorney’s fees of the defendants in the cause aborted by mistrial.

We find that under the circumstances a public reprimand and a one-year probation with the condition that Peterson be required to pass the ethics portion of the Florida Bar Examination are warranted. Although we find that Peterson should be required to pay the costs of these disciplinary proceedings, we reject the referee’s recommendation that he be required to pay defendant’s costs and attorney’s fees in the cause upon which the mistrial was declared. This matter has been previously resolved by the First District in Miller v. Colonial Baking Co. of Alabama.

Accordingly, the publication of this decision in Southern Reporter will serve as a public reprimand. Peterson is further placed on probation for one year with the only condition of probation being that he take and pass the Multistate Professional Responsibility Examination. Costs in the amount of $532.79 are assessed against Peterson.

It is so ordered.

ALDERMAN, C. J., and OVERTON, SUNDBERG and EHRLICH, JJ., concur.

ADKINS, BOYD and McDONALD, JJ., concur in finding of misconduct and public reprimand but dissent as to requirement of taking the Multistate Professional Responsibility Examination.

McDONALD, J., also dissents to one year probation.

      . DR 7-108(B)(1) provides:
      (B) During the trial of a case:
      (1) A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury.


author: BOYD, Justice.

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Jerilyn Gallup NEDUCHAL, Respondent.
    No. 60510.
    Supreme Court of Florida.
    July 29, 1982.
    Reinald Werrenrath, III, of Akerman, Senterfitt & Eidson, Orlando, for petitioner.
    Herbert H. Hall, Jr., of Maher, Over-chuck, Langa, Cate & Lobb, Orlando, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision in Neduchal v. Allstate Insurance Co., 397 So.2d 925 (Fla.5th DCA 1981). Our acceptance of jurisdiction is predicated upon conflict with Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla.1st DCA 1979), cert. denied, 389 So.2d 1108 (Fla.1980).

Respondent was injured in an automobile accident, sustaining personal injuries costing in excess of $30,000. Respondent qualified as an insured under a policy of insurance issued by petitioner and including uninsured motorist coverage to a limit of $15,-000. Petitioner paid respondent $5,000 in Personal Injury Protection benefits. The dispute between the two parties was whether this $5,000 could be set off against the uninsured motorist coverage to determine the amount of uninsured motorist benefits owing to the injured claimant. The trial court held that the PIP benefits paid could be set off, and entered judgment for $10,-000. The district court of appeal reversed.

Section 627.727(1), Florida Statutes (1977), as it stood at the time of the accident in this case, pertained to uninsured motorist coverage and provided in pertinent part:

The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.

We have said that by this language the legislature “intended to allow the insured the same recovery which would have been available to him had the tortfeasor been insured to the same extent as the insured himself.” Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077, 1081 (Fla.1978). In the present case, if the tortfeasor had liability coverage of $15,000, the injured claimant would be able to recover that amount and also $5,000 in PIP benefits from her own insurer, without set-off.

The statutory provision that uninsured motorist “coverage ... shall be excess over, but shall not duplicate . . . personal injury protection benefits,” was intended to allow a set-off in order to prevent the actual duplication of insurance benefits, but not to authorize such a set-off automatically. Hartford Accident and Indemnity Co. v. Lackore, 408 So.2d 1040 (Fla.1982); State Farm Mutual Automobile Insurance Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), approved, 408 So.2d 1043.

We therefore approve the decision of the district court of appeal, reversing and remanding to the trial court for further proceedings.

It is so ordered.

ALDERMAN, C. J., and ADKINS, OVERTON, SUNDBERG and MCDONALD, JJ., concur.

       In 1979, the legislature enacted a clarifying amendment of section 627.727(1), so that the language corresponding to the above-quoted portion now provides:
      The coverage provided under this section shall be over and above, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident. Only the underinsured motorist’s automobile liability insurance shall be set-off against underin-sured motorist coverage.
      Ch. 79-241, § 2, Laws of Fla.; see Morgan, Insurance, 208 J.Acad.Fla. Trial Law. 14 (1980).


author: EHRLICH, Justice.

text:
    REEDY CREEK UTILITIES CO., Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, Appellee.
    No. 60677.
    Supreme Court of Florida.
    July 29, 1982.

      Lee G. Schmudde, Lake Buena Vista, for appellant.
    William S. Bilenky, Gen. Counsel and Virginia Alice Daire, Associate Gen. Counsel, Tallahassee, for appellee.
   EHRLICH, Justice.

This cause is before us on direct appeal brought by Reedy Creek Utilities Co. to review Orders No. 9456-A and No. 9998 of the Public Service Commission. We have jurisdiction under article V, section 3(b)(2), Florida Constitution, and we hereby affirm those orders.

In November 1978, Congress enacted the Revenue Act of 1978. Among other things this act reduced the tax rates on corporations from 48% to 46% on taxable income in excess of $100,000. Thereafter, on December 29, 1978, the Public Service Commission opened a docket to investigate the effect of these changes on the utilities under its rate-making jurisdiction. Among those utilities was petitioner, Reedy Creek, an investor-owned electric utility.

The initial Order No. 8624, which opened the docket, advised the utilities that since the new tax act will result in a “beneficial effect on the earnings of affected utilities,” the Commission intended to monitor “the revenues associated with the reduction of income tax liability caused by the enactment by Congress of the Revenue Act of 1978.” Recognizing that consumer rates are determined on a projected estimate of costs including taxes, the Commission announced that should this tax reduction result in revenue to the utilities exceeding a fair and reasonable return upon their investment, the utilities could be required to refund these revenues to the consumers.

On January 31, 1979, the Commission issued Order No. 8624-A which further clarified the Commission’s stance and outlined the method of calculation.

On March 2, 1979, representatives of the six investor-owned electric utilities that were subject to the said orders, the Commission staff, and a representative from the Public Counsel’s office met at an informal workshop to discuss the matter. At all times the utilities maintained that the Commission lacked the authority to order a refund, as this constituted retroactive rate-making. The Commission, however, maintained that this authority was an inherent power of the Commission.

Realizing that litigation over the disagreement would be costly and time consuming, the parties at the workshop signed a stipulation which was prepared by the representatives of the utilities concerning these revenues, agreeing to a one time refund under certain circumstances limited to the year 1979. The agreement set forth the method for calculating the amount subject to refund.

By Order No. 8783 dated March 22, 1979, the Commission approved the stipulation. By this time it had been determined, however, that only two companies, Reedy Creek and Florida Public Utilities Company, met the criteria for refunding the money.

On April 17, 1980, Reedy Creek forwarded to the Commission documentation computing the refund at $47,833. Reedy Creek arrived at this figure by calculating its taxes first at the 48% bracket and then at the 46% rate. The difference, it concluded, was the amount of the money subject to refund.

MR. WILLIS: I would like to outline a proposal which I think has been accepted by the Public Counsel, but let me state basically what the provisions would be and if we do have an agreement then we can wrap it up and come back and maybe execute it this afternoon.
The first provision that we would insist on would be that the company maintains that the Commission lacks the power to engage in retroactive ratemaking, but that in an effort to amicably settle the question and the disposition of revenues associated with the reduction of federal income tax, that the companies would voluntarily agree not to appeal an order of the Commission for refund of the revenues based on the Commission’s Order No. 8624-A, and as specifically described in Paragraphs 4, 5, 6 and 7 of the order; that while we also feel very strongly that the Commission would not have the authority to require refunds to be made back to the beginning of the year, that we would accept that as part of a negotiated settlement, that the tax savings involved would be calculated on the basis of calendar year 1979. (Transcript, Workshop, March 2, 1979, at pages 36-37.)
1. The Companies, although they firmly maintain that the Commission lacks the power to engage in retroactive ratemaking as may be contemplated by Order Nos. 8624 and 8624-A, in an effort to amicably settle the question of the disposition of the revenues associated with the reduction by the Revenue Act of 1978 of the federal income tax rates voluntarily agree to the incorporation of this stipulation into an order and not to appeal such order by this Commission for a refund of such revenues to be determined and refunded only on the basis described in paragraphs (4), (5), (6) and (7) of Order No. 8624-A.

No response to this calculation was forthcoming from the Commission or its staff, until the Commission issued Order No. 9456 on July 21, 1980, which approved the amount of $47,833 for Reedy Creek’s refund.

Thereafter, on September 2, 1980, Reedy Creek drafted a plan to allocate the tax saving among its customers and sought approval from the Commission. On October 3, 1980, before any approval was granted, three commissioners issued Supplementary Order No. 9456-A to clarify Order No. 9456. This order stated that the calculations made by Reedy Creek were made on the “actual tax reduction received by the utility and did not specify the revenue equivalent which the tax saving would translate into as far as the customer is concerned.” The amount, it said, should have been increased by an “expansion factor.” The amount to be refunded by Reedy Creek was increased to $93,281.

Reedy Creek filed a petition for reconsideration on October 9, 1980, and a full evi-dentiary hearing was held on April 7, 1981.

On May 6, 1981, the Commission issued Order No. 9998 denying the petition for reconsideration. Reedy Creek filed this appeal, asserting two issues: (1) that there was not substantial competent evidence to support the Commission’s finding that the parties had agreed to refund the expanded revenues, and (2) that even so the second order was not issued until two and a half months later, too late to change the first order under the doctrine of administrative finality.

As to the first issue, we have thoroughly examined the record and find that Orders No. 9456-A and No. 9998 are supported by competent and substantial evidence and this Court will not reevaluate the evidence. Florida Retail Federation, Inc. v. Mayo, 331 So.2d 308 (Fla.1976).

The Commission’s first order spelled out its position. Its amended order of January 31, 1979 explained in further detail how the calculation would be made. The stipulation, which no party questions, incorporated by reference both orders. All these documents set forth a formula for calculating the revenues.

At the workshop a representative of the Commission was present to explain the formula. Viewing the documents together with the testimony in the record, it is clear that a utility would be required to refund revenues if and only if it were earning in excess of the range of its authorized rate of return.

Reedy Creek was in this “over-earnings position,” or above the “zone of reasonableness” to the extent of $151,309. Of these excess earnings, $47,833 could be attributed to the actual tax decrease, but the revenue collected from the consumer to pay the tax was $93,281.

Reedy Creek insists that the amount contemplated by the stipulation was the tax saved by the company, but it is patent from the record that the Commission intended for a refund to be on the basis of the revenues associated with the reduction in income tax liability and that the parties agreed to this in the stipulation. Reedy Creek’s mistake, if any, was a unilateral one.

The Commission staff’s failure to detect the miscalculations only compounded the matter, but we find that to be merely a matter of oversight. The evidence is substantial and supports the Orders.

We turn now to the finality of Order No. 9456, and whether or not the Commission erred in amending that order two and a half months later.

Petitioner makes two arguments. First, it points out that under the Commission’s own F.A.C. Rule 25-2.64, any request for reconsideration of an order must be made within 15 days after the order is issued. Consequently, the argument runs, the amended order issued in the case at bar, two and a half months later, was void. Petitioner urges that this rule applies to the Commission itself, as the Commission is a party to the proceedings.

We find this position untenable. The Commission is a quasi-judicial body. Sitting in the capacity that it does, it is empowered to promulgate rules which apply to those under its jurisdiction and subject to its regulation. These rules do not apply to the Commission itself, but to those who appear before it. Notwithstanding the almost adversarial stance it must take at times, it is not a “party” at that level.

Petitioner’s final argument deals with the time lapse between orders and the doctrine of “administrative finality.” The power of the Commission to modify its orders is inherent by reason of the nature of the agency and the functions it is empowered to perform. This inherent authority to modify is not without limitation. In Peoples Gas System v. Mason, 187 So.2d 385 (Fla.1966), this Court set forth the rule that:

The effect of these decisions is that orders of administrative agencies must eventually pass out of the agency’s control and become final and no longer subject to modification. This rule assures that there will be a terminal point in every proceeding at which the parties and the public may rely on a decision of such an agency as being final and dispositive of the rights and issues involved therein. This is, of course, the same rule that governs the finality of decisions of courts. It is as essential with respect to orders of administrative bodies as with those of courts.

Id. at 339. This Court reaffirmed that rule in Austin Tupler Trucking, Inc. v. Hawkins, 377 So.2d 679 (Fla.1979).

Furthermore, in Peoples Gas System v. Mason, we recognized the unique function that a regulatory commission serves and the necessity that it be granted a certain degree of latitude in order to effectively carry out that function, and we said:

We understand well the differences between the functions and orders of courts and those of administrative agencies, particularly those regulatory agencies which exercise a continuing supervisory jurisdiction over the persons and activities regulated. For one thing, although courts seldom, if ever, initiate proceedings on their own motion, regulatory agencies such as the commission often do so. Further, whereas courts usually decide cases on relatively fixed principles of law for the principal purpose of settling the rights of the parties litigant, the actions of administrative agencies are usually concerned with deciding issues according to a public interest that often changes with shifting circumstances and passage of time. Such considerations should warn us against a too doctrinaire analogy between courts and administrative agencies and also against inadvertently precluding agency-initiated action concerning the subject matter dealt with in an earlier order.

Id. at 339.

Peoples Gas System and Austin Tupler dealt with orders amended four years and two years respectively after their inception and “administrative finality” had attached. The instant case deals with a period of two and a half months. The Commission erred in its Order No. 9456 in approving a refund in terms of the actual tax reduction received by the utility but it sought to correct that error by issuing Order No. 9456-A. While it may have been better procedurally to notify the utility of the proposed changes in order to have afforded the utility the opportunity to request a hearing, nevertheless a full evidentiary hearing was held on Reedy Creek’s petition for reconsideration.

The Commission is charged with the statutory duty of regulating and supervising public utilities with respect to their rates. When the Commission determined that it had erred to the detriment of the using public, it had the inherent power and the statutory duty to amend its order to protect the customer.

An underlying purpose of the doctrine of finality is to protect those who rely on a judgment or ruling. We find that Reedy Creek did not change its position during the lapse of time between orders, and suffered no prejudice as a consequence.

A change in a tax law should not result in a “windfall” to a utility, but in a refund to the customer who paid the revenue that translated into the tax saving.

The orders under review are hereby affirmed.

It is so ordered.

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

McDONALD, J., dissents.

      . Paragraphs 4, 5, 6, 7 of Order No. 8624-A, subsequently referred to in the stipulation:
      (4) Measurement of earnings for refund purposes. Order No. 8624 provides that our initial hearings “shall serve as a basis for attaching jurisdiction over the revenues in question and any accrued thereafter shall be subject to refund or other appropriate disposition depending on the financial condition of the individual utilities.’’ For purposes of measuring the financial condition of each utility for calendar year 1979, we intend to use the same procedures as are employed under our continuing surveillance program. That is, we shall look at the actual per books earnings together with the actual average net investment rate base which calculations will be consistent with the Commission’s determination of rate base and operating income in the utility’s most recent rate proceeding. From this information, the actual per books achieved rate of return for jurisdictional purposes may be derived. This jurisdictional return shall then be compared with the rate of return calculated by using the 13 month average capital structure for calendar year 1979 and ceiling of the last authorized return on equity. The capital structure shall be developed on a basis consistent with the Commission’s determination of capital structure in the utility’s most recent rate proceeding.
      (5) Disposition of revenues. All “savings” accumulated during 1979 after the date of our order dealing with the initial hearings shall be subject to refund. If the utility’s actual earned overall rate of return exceeds the ceiling of the zone of reasonableness, as determined in paragraph (41, the utility shall. after notice and hearing, refund to its customers revenues equal to the lesser of the total calculated differential contained in the reports, or the amount of revenue for 1979 that exceeds that which would have been produced bv the ceiling of the utility’s rate of return as calculated in paragraph (41.
      (6) Refunds. Refunds, if any, shall be made to current customers served by the utility and refund amounts shall be based on each customer’s consumption or basic local exchange service during the month immediately preceding the month during which a refund is consummated.
      (7) FASB. No. 5. The utilities shall account for the revenues associated with the differential between the 1978 federal corporate income tax rate for calendar year 1979 in accordance with generally accepted accounting principles for contingencies. (Underlining in original)

      . At the workshop, the representatives of the utilities conferred privately to see if they could agree on a possible stipulation to resolve the issue and avoid litigation. One of their group said, upon a resumption of the workshop meeting:

      . The stipulation provides in part:

      . It appears to be the practice of utilities to pass through as an expense to the customer, the payment of income taxes and in so doing the utility collects roughly twice as much from the customer as it expects to pay in income taxes.


author: McDONALD, Justice.

text:
    Olimpia HASSANIEN, et al., Petitioners, v. Evelio MANTILLA, et al., Respondents.
    No. 60694.
    Supreme Court of Florida.
    July 29, 1982.
    Marco B. Loffredo, North Miami, for petitioners.
    Bardford A. Thomas of Kimbrell, Ham-ann, Jennings, Womack, Carlson & Knis-kern, Miami, for respondents.
   McDONALD, Justice.

The Third District Court of Appeal has certified the instant cause as one involving the question of whether and under what circumstances an action for contribution lies against the parent of an injured child. Mantilla v. Hassanien, 396 So.2d 1135, 1136 (Fla. 3d DCA 1981). We have recently answered this question in Joseph v. Quest, 414 So.2d 1063 (Fla.1982), and in Woods v. Withrow, 413 So.2d 1179 (Fla.1982). To the extent that Mantilla conflicts with Quest and Woods, we quash the instant opinion and remand for proceedings consistent with those decisions.

It is so ordered.

ALDERMAN, C. J., and ADKINS, OVERTON and SUNDBERG, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Henry Lee PAGE, Respondent.
    No. 60856.
    Supreme Court of Florida.
    July 29, 1982.

      Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for petitioner.
    Bennett Brummer, Public Defender, and Michael A. Rosen, Sp. Asst. Public Defender, Miami, for respondent.
   McDONALD, Justice.

In Page v. State, 398 So.2d 859 (Fla.3d DCA 1981), the district court reversed a conviction because of failure to give the defense-proffered jury instruction concerning the privilege of nonretreat in the home. Perceiving conflict with Conner v. State, 361 So.2d 774 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1364 (Fla.1979), we accepted jurisdiction. We quash the district court’s reversing the murder conviction.

Page and his victim occupied adjoining apartments which share a common walkway running along the front of the apartments. The fatal shooting took place on this common walkway and had been precipitated by an altercation between the parties shortly before the shooting wherein the victim had choked Page. At trial Page claimed self-defense and especially requested the nonduty to retreat instruction.

The question thus is whether the nonduty to retreat instruction applies to a situation where an assault takes place on a common walkway when both the assailant and the victim have equal rights to use that walkway. We recently held in State v. Bobbitt, 415 So.2d 724 (Fla.1982), that where the assailant and the victim are both legal occupants of the same house the privilege of nonretreat does not apply and the defense-of-the-home instruction need not be given. We find that the rationale behind Bobbitt should also apply to the facts of this case and that the cases relied on by the district court are not applicable to the instant factual situation.

Had Page retreated inside his door, he would have been entitled to the requested instruction. He could not, however, stand his ground in the common passageway, even if he had one foot inside his door as he contends, and claim the right to the instruction. We agree with the state that as our society moves more and more toward com-munual-type dwellings the rule herein becomes a critical issue in the proper enforcement of the criminal law. The standard self-defense instruction given at this trial is adequate and is all that should be given in this type of situation. To rule otherwise would, in effect, allow shoot-outs between persons with equal rights to be in a common area.

The opinion of the district court is quashed, and the cause is remanded to it with instructions to modify its order granting a new trial on its stated grounds.

It is so ordered.

ALDERMAN, C. J., and ADKINS, BOYD and OVERTON, JJ., concur.

SUNDBERG, J., concurs in result only.

      . Art. V, § 3(b)(3), Fla.Const.

      . This two-story apartment building has four apartments downstairs and four upstairs. The walkway, an open concrete porch, is common to the four downstairs apartments.

        . Hedges v. State, 172 So.2d 824 (Fla. 1965); Pell v. State, 97 Fla. 650, 122 So. 110 (1929); Danford v. State, 53 Fla. 4, 43 So. 593 (1907); State v. Bobbitt, 389 So.2d 1094 (Fla. 1st DCA 1980), disapproved, 415 So.2d 724 (Fla.1982); Redondo v. State, 380 So.2d 1107 (Fla.3d DCA), cert. denied, 388 So.2d 1118 (Fla. 1980).


author: OVERTON, Justice.

text:
    ESTATE OF Frederic F. GANIER, Petitioner, v. ESTATE OF Emma Kennedy GANIER, Respondent.
    No. 60886.
    Supreme Court of Florida.
    July 29, 1982.
    John R. Godbee, Jr. of Coble, McKinnon, Rothert, Barkin, Clayton, Vukelja & Godbee and Ollie Lancaster, Jr., Daytona Beach, for petitioner.
    Richard S. Graham of Landis, Graham, French, Husfeld, Sherman & Ford and W. Richard Every, Daytona Beach, for respondent.
   OVERTON, Justice.

This is a petition to review the decision of the Fifth District Court of Appeal in Estate of Ganier v. Estate of Ganier, 402 So.2d 418 (Fla. 5th DCA 1981), which we find directly conflicts with In re Steinert’s Estate, 137 So.2d 856 (Fla. 2d DCA 1962). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The issue concerns the rights of a surviving spouse in the estate of the decedent spouse whose will was executed prior to their marriage. It requires a construction and interpretation of Florida’s pretermitted spouse statute, section 732.301, Florida Statutes (1979), as it relates to the Florida case law in force before the enactment of the Florida Probate Code of 1933. For the following reasons, we approve the interpretation of section 732.301’s predecessor statute in Steinert’s Estate, that a spouse is protected and entitled to an intestate share of the decedent spouse’s estate under this statutory provision unless the will executed prior to marriage provides for the named surviving spouse and was executed in contemplation of marriage to that spouse. We quash the opinion of the district court in the instant case.

This case arose as the result of the marriage of two senior citizens, Emma Kennedy and Frederic Ganier. They met in 1973, when she was 79 years old and he was 76 years old, became close friends, and eventually shared a joint bank account from which they paid their living expenses. In January, 1977, Mrs. Kennedy executed a will which included a provision bequeathing two of her personal bank accounts to Fred Ganier. Mrs. Kennedy and Mr. Ganier were married approximately eighteen months after this will was executed, in July, 1978. Shortly after the marriage, Emma Ganier suffered a stroke; she was declared incompetent in November, 1978, and, on December 16, 1978, Mr. Ganier was appointed her guardian. In October, 1978, before she was found incompetent, Mrs. Ganier closed one of the bank accounts she had bequeathed to Mr. Ganier, and, after he became his wife’s guardian, Mr. Ganier had the second account bequeathed to him transferred to Mrs. Ganier’s guardianship account. Mr. Ganier expended almost all the funds from the guardianship account prior to Mrs. Ga-nier’s death, which occurred January 7, 1979.

When Mrs. Ganier’s 1977 will was admitted to probate, Mr. Ganier filed a petition in the trial court for a determination of beneficiaries. In this petition, Mr. Ganier asserted that he was entitled to an intestate share of his wife’s estate because he was a pretermitted spouse within the meaning of section 732.301, Florida Statutes (1979), which provides:

Pretermitted spouse. — When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:
(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;
(2) The spouse is provided for in the will; or
(3) The will discloses an intention not to make provision for the spouse. The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s..733.805.

At the hearing, Mr. Ganier testified that he and Mrs. Ganier did not discuss marriage until long after the will in question was executed. No evidence was offered to refute this testimony.

The trial court determined that Mr. Ganier was a pretermitted spouse under the statute, finding that the two bank accounts Mrs. Ganier had left to Mr. Ganier in her will were not controlling, and stating:

[S]aid provision in testatrix’s Last Will and Testament did not constitute a provision for Frederic F. Ganier, also known as Fred Ganier, as testatrix’s spouse, within the purview of Section 732.301(2), Florida Statutes. No testimony or evidence was offered in this cause to support the view that testatrix contemplated marriage to petitioner, Frederic F. Ganier, also known as Fred Ganier, at the time of the execution of her will. Said reference to petitioner was not made to him in the prospective status as husband of the testatrix; therefore, even though petitioner who was designated by name as a beneficiary in testatrix’s will, but who after will was executed, became testatrix’s husband, was not “provided for in the will” within said statute limiting right of pre-termitted surviving spouse to take a spouse’s intestate share against decedent’s will. See In re Steinert’s Estate, Florida App., 137 So.2d 856.

The trial court alternatively found that the two bank accounts devised to Mr. Ganier did not exist when Mrs. Ganier died so that there was no provision in the will for Mr. Ganier because the specific bequest had “lapsed.”

The district court, in a split decision, reversed, finding that section 732.301(2) requires only that the surviving spouse be “provided for” in a will executed before marriage, and rejected the trial court’s conclusion that this statutory provision would apply only if Mrs. Ganier had contemplated marriage to Mr. Ganier at the time she provided for him in her will. The district court, in reversing, found no basis for reading into Florida’s pretermitted spouse statute the prior case-law requirement that the provision in the will be made “in contemplation of marriage.” The district court recognized that this holding was in direct conflict with the decision of the Second District Court of Appeal in Steinert’s Estate, but concluded that the Second District had receded from Steinert’s Estate in In Re Livingston’s Estate, 172 So.2d 619 (Fla. 2d DCA 1965). We disagree.

Florida courts early recognized the rule of law which developed to prevent the inadvertent disinheritance of a spouse whom the testator had married after executing a will. Our case law distinguished between a man’s will and a woman’s will and was expressed by this Court in two early cases. In Belton v. Summer, 31 Fla. 139, 12 So. 371 (1893), we held that a man’s previously executed will was revoked by a subsequent marriage and the birth of a child, unless the will was executed in contemplation of marriage. In Colcord v. Conroy, 40 Fla. 97, 23 So. 561 (1898), we held that a woman’s will was revoked by her marriage alone unless it was executed in contemplation of marriage. Other states had similar rules of law and many have codified these rules in statutes providing that, upon subsequent marriage, the will of either spouse is revoked unless the will provides for the surviving spouse or evidences the testator’s intent not to so provide. In some states, the statute itself requires that provision be made “in contemplation of marriage,” while in other states, the courts have read the requirement into the statute. The purpose of these statutes is the same as that of our case law: to avoid the inadvertent disinheritance of a spouse whom the testator married after executing a will.

This rule, with its total revocation provisions, solves one problem, that of protecting the surviving spouse’s interest in the decedent spouse’s estate by assuring that the surviving pretermitted spouse receives an intestate share of the estate. But, in doing so, it creates another problem by revoking the entire will. This results in all beneficiaries under the will who are not entitled to intestate distribution being foreclosed from receiving any bequest or devise.

To achieve a more equitable balance between the interests of the surviving spouse and the interests of the takers under the will, the Florida Legislature modified the revocation rule in the Probate Act of 1933, chapter 16103, Laws of Florida. Section 11, chapter 16103, provides:

MARRIAGE AFTER EXECUTION OF WILL. — When a person marries after making a will, and the spouse survives the testator, such surviving spouse shall receive a share in the estate of the testator equal in value to that which such surviving spouse would have received if the testator had died intestate, unless provision has been made for such spouse by marriage contract, or unless such spouse is provided for in the will, or unless the will discloses an intention not to make such provision. The share of the estate which is assigned to such preter-mitted spouse shall be raised in accordance with the order of appropriation of assets set forth in this Act.

Section 15, chapter 16103, provides: “Neither subsequent marriage nor subsequent marriage and birth of issue shall revoke the prior will of any person; but the pretermit-ted child or spouse shall inherit as set forth in this Act regardless of such prior will.” By these enactments, the legislature superseded prior case law in order to protect beneficiaries under the will from complete termination of their bequests. We find that the legislature, in modifying our judicially-established rule, had no intention of eliminating the “in contemplation of marriage” requirement in circumstances where the will provides for the surviving spouse, but was not made with the understanding that it was for the individual as a surviving spouse. Neither of these statutes requires such a construction, and the substance of sections 11 and 15 has not been changed since the Probate Act of 1933. These sections are now codified as sections 732.301 and 732.507 of our current law.

Section 732.301(1) — (3) simply defines statutorily the “in contemplation of marriage” requirement. These three statutory provisions set forth the methods by which a will executed prior to marriage can be valid as to the surviving spouse, and they encompass all the situations in which a testator considers the effect of an upcoming marriage on the disposition of the estate and acts in contemplation of that marriage. A testator may evaluate an existing will and indicate the decision to leave the will untouched by executing a prenuptial or postnuptial agreement, section 732.301(1); a testator may change the will to provide for the intended spouse, section 732.301(2); or a testator can expressly disclose in the will a decision not to provide for the intended spouse, section 732.301(3). In each case, the testator must act “in contemplation of marriage” in order to avoid inadvertently failing to provide for an intended spouse in the capacity of spouse.

Steinert’s Estate is the only decision, other than the decision in the instant case, to directly construe the meaning of section 732.301(2). The facts of Steinert’s Estate are similar to those in the instant case. In 1955, the testator, George F. Steinert, executed a will which contained a bequest of thirty thousand dollars to Mrs. Levites, then married and living out-of-state. Mrs. Lev-ites obtained a divorce and, in 1957, married Mr. Steinert, who died in 1958 without having made another will. Mrs. Steinert, formerly Mrs. Levites, argued that she was entitled to an intestate share of her deceased husband’s estate as a pretermitted spouse under section 731.10, Florida Statutes (1961). The district court agreed, finding that “[n]o evidence was offered here to support the view that testator contemplated marriage to appellee at the time of the execution of his will.” 137 So.2d at 858.

The conclusion of the district court in the instant case, that the Second District Court of Appeal in In re Livingston’s Estate, 172 So.2d 619 (Fla. 2d DCA 1965), receded from its prior decision in Steinert’s Estate, is, in our view, erroneous. Although not controlling in this case, we believe it clear that the Second District, in Livingston’s Estate, merely clarified which party had the burden of proving the “in contemplation of marriage” requirement. The Livingston court held that “where one marries after making a will, and the spouse survives the testator, and such will contains a provision for such survivor, such survivor would have the burden of alleging and proving that such will failed to provide for them as contemplated by F.S. § 731.10, F.S.A.” 172 So.2d at 620. (Emphasis added.) We conclude that the court in Steinert’s Estate and in Livingston’s Estate correctly interpreted Florida’s pretermitted spouse statute.

The requirement that a will executed before marriage provide for a spouse in the capacity of spouse is consistent with the purposes of our prior case law and of Florida’s Probate Code, chapters 731-735, Florida Statutes (1979). Marriage effects a profound change in a person’s relationships and responsibilities. Substantially different considerations'underlie a person’s bequest to a friend or acquaintance and that person’s testamentary provision for the well-being of a spouse. We hold that a spouse has not been “provided for,” within the meaning of section 732.301(2), unless the testator both provided for a person named in the will executed before marriage and made such provision in contemplation of marriage to that named person.

In the instant factual situation, the question which must be resolved is whether Mrs. Ganier provided for Fred Ganier, in contemplation of her marriage to him, as her future spouse. We accept the holding in Livingston’s Estate that, when a will executed before marriage contains a provision for a named individual who later becomes the testator’s spouse, the surviving spouse has the burden of proving that the provision was not made in contemplation of marriage. Absent such proof, the surviving spouse will not be considered “pretermit-ted” and will, therefore, not be entitled to an intestate share of the estate. This proof need not be found in the will itself; evidence of the circumstances existing at the time of the will’s execution is admissible in meeting this burden. Cf. Perkins v. Brown, 158 Fla. 21, 27 So.2d 521 (1946) (evidence of surrounding circumstances admissible to prove that testator intended not to make provision for spouse).

The marriage of this elderly couple admittedly did not take place until eighteen months after the will’s execution. The surviving spouse, Mr. Ganier, testified that he and the testatrix, Mrs. Ganier, did not discuss marriage until long after the will in question was executed. The record further reflects that no other evidence was offered to refute this testimony. The trial court found that “[n]o testimony or evidence was offered in this cause to support the view that testatrix contemplated marriage to . . . Fred Ganier, at the time of the execution of her will.” We conclude that, on the basis of this record, the trial court could properly find that Mr. Ganier was a preter-mitted spouse, entitled to an intestate share of Mrs. Ganier’s estate. We note that Mr. Ganier had allegedly misappropriated guardianship funds. This is a serious charge, but it should be resolved in the separate guardianship accounting proceedings.

The primary purpose of the preter-mitted spouse rule is to assure that the decedent spouse considered the surviving spouse as a spouse when making his or her will. Eliminating the “in contemplation of marriage” requirement, as held by the district court, defeats the reason for the rule. For the reasons expressed, the decision of the district court below is quashed and this cause is remanded to reinstate the trial court’s judgment.

It is so ordered.

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

      .For a discussion of Florida law regarding revocation of wills upon subsequent marriage, see E. Simon, Redfearn Wilts and Administration in Florida § 8.10, at 106-09 (5th ed. 1977). For a general discussion of English common and canon law and American common and statutory law on this topic, see 2 W. Bowe & D. Parker, Page on the Law of Wilis §§ 21.86-.103, at 496-526 (rev. treatise 1960).

      . See cases collected at Annot., 97 A.L.R.2d 1026 (1964).

      . Id.

      . See also sections 5457(1)-5541(159), Compiled General Laws (1927) (Supp. V 1936).

      . See supra note 1. Section 732.507(1) provides: “Neither subsequent marriage nor subsequent marriage and birth or adoption of lineal descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in ss. 732.301 and 732.302, regardless of the prior will.”

      . This section preceded section 732.301 and contained essentially the same language as its successor statute.

      . Our construction of section 732.301 is supported by the California Supreme Court’s construction of a similar statute, California Probate Code, section 70 (Deering 1974). That statute provides:

        Marriage after making of will: Revocation as to spouse

      If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision ....
      Although the means are somewhat different, section 70 achieves the same effect as sections 732.507(1) and 732.301. The will is revoked only as to the surviving spouse, who takes an intestate share, while the remaining provisions of the will continue to be valid. In re Piatt’s Estate, 81 Cal.App.2d 348, 183 P.2d 919 (Ct. App.1947). As does section 732.301(2), section 70 provides that a surviving spouse will not take an intestate share if “the spouse is provided for in the will.” In construing this language, the California Supreme Court, mindful of the significant change in a testator’s circumstances upon marriage, held that “merely naming or giving a legacy to a person by name, .. . with no indication that she may be a prospective spouse, is not enough to prevent revocation.” In re Poisl’s Estate, 44 Cal.2d 147, 150, 280 P.2d 789, 792 (1955).


text:
    CITY OF NEW SMYRNA BEACH UTILITIES COMMISSION, Petitioner, v. Robert McWHORTER, Respondent.
    No. 60961.
    Supreme Court of Florida.
    July 29, 1982.

      Jacqueline R. Griffin of Dempsey & Slaughter, Orlando, for petitioner.’
    Judson I. Woods, Jr., of Woods & Watson, New Smyrna Beach, for respondent.
   McDONALD, Justice.

We have for review McWhorter v. City of New Smyrna Beach Utilities Commission, 400 So.2d 23 (Fla. 5th DCA 1981), because of conflict with Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla.1978). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution, and quash the holding of the district court.

In April 1978 an accumulation of paper, of unknown origin, caused an obstruction in a New Smyrna Beach main sewer line at a point near the McWhorter residence. This blockage impeded the normal flow of sewage, and sewage and water backed up through the McWhorter’s lateral line and flooded into their house, causing extensive damage. The McWhorters filed suit against the city for damages, pleading es-toppel, negligence, nuisance, trespass, and contract in a single-count complaint. Refusing to give requested instructions on res ipsa loquitur, nuisance, trespass, or estoppel, the circuit court instructed the jury only on simple negligence. The jury returned a verdict for the city. On appeal, the Fifth District Court of Appeal reversed and remanded for a new trial, finding that the McWhorters had established the elements of res ipsa loquitur and should have benefit-ted from an instruction on that theory.

The issue before this Court is whether the district court correctly ruled that the circuit court’s failure to give jury instructions on res ipsa loquitur constituted reversible error. We must answer in the negative, finding that the district court misapplied the doctrine of res ipsa loquitur as discussed in Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla.1978).

In Goodyear, which involved the applicability of res ipsa loquitur to “exploding tire” cases, this Court set forth the essential elements of the doctrine, stating:

The time seems propitious simply to address the dimensions of the doctrine head-on, and in so doing to restore the inference of negligence to its historically proper bounds — that is, when direct evidence of negligence is unavailable to the plaintiff due to the unusual circumstances of the injuring incident.
Res ipsa loquitur — “the thing speaks for itself” — is a doctrine of extremely limited applicability. It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on' the part of the one in control.

Id. at 1341-42 (footnotes omitted).

Given the restrictive nature of the doctrine, a court should never lightly provide this inference of negligence. Rather, it is incumbent upon the plaintiff to present his or her case in a manner which demonstrates and satisfies each of the doctrine’s requisite elements and only after the plaintiff carries this burden of proof may a court supply the inference. As we stated in Goodyear:

Plainly, the threshold inquiry is whether that which occurred is a phenomenon which does not ordinarily happen except in the absence of due care. The initial burden is on the plaintiff to establish that the circumstances attendant to the injury are such that, in the light of past experience, negligence is the probable cause and the defendant is the probable actor. An injury standing alone, of course, ordinarily does not indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause.

Id. at 1342 (footnote omitted).

At the risk of redundancy, we would add that res ipsa loquitur is applicable only if all of its requisite elements are present in a given case. Consequently, the McWhort-ers could benefit from the doctrine only if they had shown that: 1) direct evidence of the city’s negligence was unavailable; 2) the line ordinarily would not have become obstructed and that the sewage ordinarily would not have flooded their home absent negligence by the city; and 3) the main sewer line and all that entered it was under the exclusive control of the city. The McWhorters, however, failed to allege, much less prove, any of the above. Rather, the record reveals that at trial, the McWhorters showed only the occurrence and results of the city line stoppage, asserting that, since they in no way caused or were responsible for the obstruction, the damage-causing obstruction could only have been the product of negligent and improper maintenance by the city. By so limiting their presentation of evidence, the McWhorters failed to carry their initial burden of proof and neglected to demonstrate the necessary elements of the doctrine. This oversight alone precludes application of res ipsa loquitur and proves fatal to their cause.

Moreover, in contrast to the McWhorters’ virtual inaction at trial, the city actively presented evidence which emphasized the inapplicability of res ipsa lo-quitur to this case. In demonstrating that externally introduced objects frequently cause line blockages despite reasonable preventative safeguards, the city effectively undercut any argument that a sewage back-up such as that which injured the McWhorters was of such an extraordinary nature as to preclude any cause other than the city’s negligence. Additionally, the city produced detailed testimony relative to its own, as well as other cities’, sewer line experiences and maintenance procedures and adduced evidence that the New Smyrna Beach sewer lines were regularly inspected and adequately maintained—thereby illustrating that “the facts surrounding the incident were discoverable and provable, and . . . not of a nature typically suggestive of negligence by the [city].” 358 So.2d at 1342. Furthermore, any inference of the city’s negligence was inappropriate because the McWhorters “failed to allege and prove the essential element of defendant’s exclusive control over the injury-causing instrumentality.” Id.

To overcome these evidentiary deficiencies, the district court was forced to expand “the doctrine far beyond its intended perimeters, both by liberalizing the elements requisite to its application and by allowing the development of inferences not only as to the incident itself but also as to pre-incident acts.” Id. Certainly, the district court’s desire to provide relief to the McWhorters is understandable. The family’s suffering, occasioned by such a disgusting invasion of their home, would incite the sympathy of any feeling person. But regardless of the magnitude-of the McWhorters’ misfortune, the facts of this case do not justify the court’s efforts to provide that relief through the invocation of res ipsa loquitur. As we noted, the McWhorters’ evidentiary omissions at trial foreclosed the use of the doctrine.

However, even had the McWhorters been more thorough, and the city less vigorous, in the presentation of evidence at trial, res ipsa loquitur is inapplicable here simply because the control element of the doctrine is lacking. The district court, in determining that “the city had exclusive control over the design, maintenance, and operation of the system,” McWhorter v. City of New Smyrna Beach Utilities Commission, 400 So.2d 23, 25 (Fla. 5th DCA 1981), stated:

Here, appellants had no control or voice in the operation, design or installation of the sewer system. Appellee installed the system, performed the maintenance and established the conditions and methods for tying into the sewer lines. It determined the size, number and locations of the system’s lines, manholes and clean-outs. It also determined the number of homes which the sewer would serve and when and where the lines were cleaned and inspected. It knew blockages occur.

With this we have no argument. However, it is one thing to say that the city had exclusive control over the construction and operation of the sewer system but quite another to say that the city did, or could, have control over what entered the system. It was, after all, the object in the system, and not any defect in the system itself, which caused the reverse flow of sewage which flooded the McWhorter residence.

Here, the city was clearly not responsible for the bundle of papers which caused the stoppage. Moreover, the city obviously could not control what users flushed down their toilets. Nor could the city realistically be expected to control or dictate what third parties might put into storm drains or manholes. The unknown origin of the obstruction in the sewer line bears dramatic testimony to this. Any number of inappropriate objects may be, and are, forced into a public sewer system at any given time with potentially catastrophic results. Accordingly, the efficient working of a city’s sewer system is in large measure dependent upon the good sense and responsibility of the users it serves. The district court’s conclusion that the city’s “exclusive control is not defeated by the fact that other persons have access to the system because the very purpose of the system is to carry away the collective wastes of the community” (400 So.2d at 25) comports with neither logic nor experience. In fact, it is this very public access to the sewer line which defeats the requisite degree of control and renders the doctrine of res ipsa loquitur inapplicable to a case such as this where an obstruction, not caused by a defect in the design or construction of the system itself, produces an injury-causing sewer back-up.

The circuit court correctly denied the McWhorters’ requested instructions on res ipsa loquitur and correctly submitted the case to the jury as one of simple negligence dependent upon circumstantial evidence. Accordingly, we quash the opinion of the district court with directions to reinstate the trial court judgment.

It is so ordered.

ALDERMAN, C. J., and OVERTON, SUNDBERG and EHRLICH, JJ„ concur.

ADKINS and BOYD, JJ., dissent.

       For this, and other reasons, other jurisdictions have determined that res ipsa loquitur is inapplicable to obstruction-caused sewage back-up cases. Jivelekas v. City of Worland, 546 P.2d 419 (Wyo.1976); Freitag v. City of Montello, 36 Wis.2d 409, 153 N.W.2d 505 (1967); Reich v. Salt Lake City Suburban Sanitary Dist. No. 1, 29 Utah 2d 125, 506 P.2d 53 (1973); Ward v. City of Charlotte, 48 N.C.App. 463, 269 S.E.2d 663 (1980). The cases cited by the district court as supporting its holding are distinguishable on a factual basis. In those cases, damage resulted not from obstructions in the line, but, rather, from defects in the system itself. Hull v. City of Griggsville, 29 Ill.App.3d 253, 330 N.E.2d 293 (1975) (damage from sewage backup caused by break in underground sewer line); Royal Furniture Co. v. City of Morgantown, 263 S.E.2d 878 (W.Va.1980) (damage caused by break in water main). In such cases a city could be charged with exclusive control over the injury-causing instrumentality, thus rendering the application of res ipsa loquitur more plausible. Although the court in Cummins v. City of West Linn, 21 Or.App. 643, 536 P.2d 455 (1975), found res ipsa loquitur applicable in a sewage back-up case, the Oregon court’s decision conflicts with the principles of the doctrine established by this Court, and hence has no persuasive value.