text:
    Andrew Craig JOHNSON v. STATE.
    7 Div. 864.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Charles A. McGee, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction of robbery in the first degree and a sentence to imprisonment for twenty years. The indictment charged:

“Andrew Craig Johnson, whose name to the Grand Jury is otherwise unknown than as stated, did, in the course of committing a theft of $450.00 lawful coinage and currency of the United States of America, including four (4) $20.00 bills, twenty-three (23) $1.00 bills, sixteen (16) $10.00 bills, and other lawful coinage and currency of the United States of America, a more definite description of said coinage and currency being to the Grand Jury unknown, the property of National Warehouse, Incorporated, a corporation, doing business as Holiday Inn, Fort Payne, Alabama, threaten the imminent use of force against the person of Vickey Regina Stone, with the intent to compel acquiescence to the taking of or the escaping with the property, while the said Andrew Craig Johnson was armed with a deadly weapon, to-wit: A knife, in violation of Section 13A-8 — 41 of the Code of Alabama, which occurred subsequent to January 1, 1980.”

A major insistence of appellant on a reversal is that there was a fatal variance between the indictment and the evidence in that the evidence shows that defendant was armed with a gun and was not armed with a knife. Appellant bases his contention chiefly on the testimony of the alleged victim of the robbery, who testified that on November 29, 1980, while she was the receptionist at the Holiday Inn in Fort Payne, two people entered the Holiday Inn with stockings over their heads. She said that one of the men had a gun and asked for money, and she identified the man as being the defendant. She said that the other person engaged in the robbery “pulled a knife” and cut the telephone cord. A large number of witnesses testified on the call of the State. The defendant offered no testimony.

The undisputed evidence for the State shows that law enforcement authorities were alerted soon after the robbery; that the robbers left the scene promptly after the robbery was committed and drove away in an automobile; that thereafter several items were found on the side of the road where the getaway car had been traveling, including a cash register tray, a bag, a large number of silver coins, a knife, a scabbard for the knife and a pistol.

After comprehensive instructions and warnings as to his constitutional rights, defendant voluntarily confessed his part in the robbery. He said that he and the other man whom he identified as Chester Davidson went to the Holiday Inn for the purpose of robbing; they had panty hose over their heads; the defendant had a knife and Davidson had a gun. The defendant said that he snipped the phone cord, then left Davidson in the Holiday Inn. After Davidson came out, defendant went with him in the getaway car. Appellant threw the knife out of the car as they were traveling therein before they were captured.

Neither party takes any position as to whether, in view of the criminal liability of an aider or abettor for the felony of the principal, the appellant could have been validly found guilty of robbery in the first degree even though Chester Davidson, instead of Andrew Craig Johnson, was armed with a knife. This point is not raised on appeal, and the issue now before us can be decided without reference to it. We conclude that the evidence was sufficient to support a finding that Johnson was armed with a knife. Ordinarily, we would say that the testimony of the victim of the robbery as to which of the two robbers had the knife would be more reliable than any evidence to the contrary. On the other hand, it is clear that under all the circumstances the victim could have been, and probably was, mistaken as to which of the two robbers had the gun and which one had the knife.

We are not in agreement with appellant’s argument that the evidence failed to show that the particular knife was a deadly weapon. He relies upon Criminal Code § 13A-1-2(11) as follows:

“DEADLY WEAPON. A firearm or anything manifestly designed, made or adapted for the purposes of inflicting death or serious physical injury, and such term includes, but is not limited to, a pistol, rifle or shotgun; or a switch-blade knife, gravity knife, stiletto, sword or dagger; or any billy, blackjack, bludgeon or metal knuckles.”

We agree that the knife here involved was very likely not a switch-blade knife, a gravity knife, a stiletto, a sword or a dagger, but for it to have been a deadly weapon, it is not necessary under the statute for it to have been that kind of knife or like instrument. The knife and the scabbard were both introduced in evidence. We could, of course, arrange to observe the knife itself, as well as the scabbard, in an effort to determine whether it is a deadly weapon, but neither party requests us to do so, and we believe a correct decision can be made without our doing so. Although not all knives are deadly weapons, most, if not all, knives that are made to fit in a sizeable scabbard are adaptable “for the purposes of inflicting death or serious physical injury.” The evidence shows that the particular knife was used to cut a phone cord, which of itself evinces its deadly capacity if and when used to kill. This indicates that it was not a stiletto or dagger. It indicates to us that it was more like a bowie knife.

It is to be noted also that the indictment does not purport to allege that the deadly weapon with which the defendant was alleged to have been armed was one of the kinds of knives stated in § 13A-1-2(11). Defendant did not challenge by demurrer or otherwise the sufficiency of the indictment.

Appellant states his only other issue as follows:

“Whether, when denied by sworn denial, the legal existence of a corporation cannot be proven over objection by oral testimony and ownership of property cannot be proven to be in a corporation through oral testimony by one who has no personal knowledge of the fact.”

Appellant relies upon Code 1975, § 12-21-201, which provides:

“In the trial of criminal cases it shall not be necessary for the State to prove the incorporation of any corporation mentioned in the indictment, complaint or information unless the defendant, within 30 days after indictment if the defendant is under bond or within 30 days after arrest on capias, denies the existence of such corporation by a sworn plea.”

Within 30 days after indictment, the defendant denied “the legal existence of National Warehouse, Inc., and its corporate existence.”

Mr. Jimmy Meadows testified that he was “General Manager” of “Holiday Inn here in Fort Payne” at the time of his testimony and in November of 1980. He said that the Holiday Inn in Fort Payne was “owned by National Warehouses, Inc.” and that ‘National Warehouses, Inc., is a corporation and was the owner of the money that was stolen in the robbery. His testimony on cross-examination was as follows:

“Q. Mr. Meadows, have you ever seen a certificate of incorporation of that organization?
“A. Yes, I believe so.
“Q. Where is it on file at?
“A. You would have to contact Carl Newberry in Atlanta, Georgia.
“Q. How did you come to see that?
“MR. IGOU: Judge, we object to this. It’s incompetent, irrelevant and immaterial.
“THE COURT: Overruled.
“Q. How did you come to see the certificate of incorporation?
“A. Because we deal with their bank deposits and their daily operations and its under National Warehouses, Inc.
“Q. What is under that?
“A. Holiday Inn, Fort Payne.
“Q. What did that certificate of incorporation that you saw look like?
“A. I can’t really answer that. I’ve seen a certificate of incorporation. It was National Warehouses, Inc., that owns the Holiday Inn.
“Q. So, you don’t know if you’ve ever seen a certificate of incorporation or not, do you?
“A. No, I can’t say.
“Q. And all you know is that’s the way you do business under National Warehouses, Incorporation; is that right?
“A. Right.
“Q. That’s what you’ve been told. You work for them and you never have questioned that, have you.
“A. No, not really.
“Q. So, your testimony here is based on what your employer has told you about the status of that business; is that correct?
“A. Yes.
“MR. McGEE: Move to exclude the testimony. It’s based on hearsay.
“THE COURT: I’ll deny the motion.
“MR. McGEE: That’s all I have.”

The redirect examination of the witness was as follows:

“BY MR. IGOU:
“Q. Mr. McGee asked you if you just did business under National Warehouses. I believe you testified that National Warehouse, Inc., owns the Holiday Inn.
“A. Yes. That’s correct.”

Thus concluded Mr. Meadows’ testimony.

We think that the evidence offered by the State as to the question of the existence of National Warehouse or National Warehouses as a corporation can be justly criticized as vague, and that the evidence on the subject could, if possible, have been more definite and specific. In its oral charge, the court comprehensively instructed the jury that in order for the defendant to be found guilty the jury must be satisfied beyond a reasonable doubt, not only that he was armed with a knife and that it was a deadly weapon, but also that the jury must be satisfied by the evidence “that National Warehouse, Inc., did exist as a legal corporation” and that “If the State has failed to meet that burden, then you cannot convict the defendant in this case.”

Notwithstanding the vagueness of the evidence as to the allegation that the property stolen was “the property of National Warehouse, Inc., a corporation,” we are persuaded that a jury issue was presented as to such averment and that the jury was justified in being convinced beyond a reasonable doubt of the truth of such averment.

Contrary to what may be supposed by some, § 12-21 — 201 does not bestow a benefit upon defendants in criminal cases; on the contrary, it benefits the prosecution by relieving it of the necessity of proving the incorporation of any corporation mentioned in the indictment, unless in the time required the defendant files a verified plea denying the existence of the corporation. There is no requirement that, in the event of the filing of such a plea, the prosecution prove the existence by a certified copy of the charter of certificate of incorporation or in any other specific way. In most of the cases dealing with § 12-21 — 201 the pertinent verified plea was not filed and the statutory law was applied to preclude a valid complaint by defendant or appellant that the State had not introduced any evidence of the existence of the corporation mentioned in the indictment. A few of the cases deal with the question whether corporate existence has proved so as to refute the verified plea. Such a case is Speaker v. State, 16 Ala.App. 33, 75 So. 178 (1917), relied upon strongly, if not chiefly, by appellant. However, Speaker v. State does not hold that proof of corporate existence must be made in any specific or definite way. In Speaker v. State, the indictment charged that defendant as an officer, agent, or clerk of the W. D. Wood Lumber Company, a body corporate, did embezzle or fraudulently convert to his own use certain building materials. There was some evidence on behalf of defendant that there had been an effort to change the corporate name for whom defendant worked to the W. D. Wood Lumber Company, but the undisputed evidence in the case showed that the effort had been unsuccessful and that appellant was not an officer, agent, or clerk of the W. D. Wood Lumber Company, a body corporate, as alleged in the indictment.

“As a general rule corporate character or existence in a criminal prosecution may be established by parol evidence, at least where character or existence is only a collateral incident to the matter in issue, and it is not necessary to produce a certified copy of the company’s charter, or to produce the law under which it was incorporated. There is also, however, authority to the contrary; and where the legal existence of a corporation is an essential element of the crime charged, the fact of the legal existence is material and must be strictly proved in order to make out any crime, and it must be proved from the necessary records of the corporation as the best evidence, and not by parol evidence.” 22A C.J.S., Criminal Law, § 695

In 23 C.J.S., Corporations, § 921, it is stated:

“Although it is held in certain jurisdictions that the corporate existence must be proved by the charter or articles of incorporation or a certified or authenticated copy thereof, in general the corporate existence need not be shown by the charter or by the articles of incorporation, but it may be proved by one who has actual knowledge of the fact, or by general reputation, or by proof of corporate user, that is, by proof of the exercise of corporate powers and functions, particularly where statutes provide that users shall be prima facie evidence of the existence of a corporation, and, although there is authority to the contrary, by proof that the company did business under a corporate name, or conducted its business as a corporation.”

Although there is considerable difference between statutory robbery as now defined in the Alabama Criminal Code, Title 13A, and common law robbery, which Title 13A supplanted, it would seem that there would be no difference as to the function of an allegation in an indictment as to ownership of the property involved between an indictment for robbery committed prior to the effective date of the Alabama Criminal Code and robbery committed thereafter. As to common law robbery, it has been consistently held in Alabama that it is basically a crime against the person; that the only reason for naming the owner of the property is to exclude the possibility of the alleged robber’s being accused of taking that to which he had some right. Riggens v. State, 44 Ala.App. 275, 207 So.2d 141 (1968). Ownership of the property is properly laid in the party in possession, either as owner, or bailee, or agent. Baldwin v. State, Ala.Cr.App., 380 So.2d 388 (1980); Hobbie v. State, Ala.Cr.App., 365 So.2d 685 (1978); Moseley v. State, Ala.Cr.App., 357 So.2d 390 (1978); Mays v. State, Ala.Cr.App., 335 So.2d 246 (1976); Bray v. State, 47 Ala.App. 308, 253 So.2d 531, cert.denied, 287 Ala. 728, 253 So.2d 533.

§ 13A-8-44 suggests the possibility that under the now statutory law of Alabama, as distinguished from the formerly applied common law in Alabama, it is not as important that an indictment name the owner of the property involved. § 13A-8 — 44 provides:

“No person may submit in defense against a prosecution for robbery in any of its degrees that there was no theft because the taking was under a claim of right. Claim of right is not a defense under this article.”

Irrespective of the vagueness of the evidence as to the existence of the corporation named in the indictment and that it owned the Holiday Inn at Fort Payne and the property alleged to have been taken by defendant, we are convinced that the evidence was ample to support the verdict of the jury on the issue raised by the defendant’s verified plea and that the evidence introduced on that issue was not inhibited by the best evidence rule, which is defined as follows:

“When a party wishes to prove the terms of a writing, the original itself must be introduced into evidence if available. The original is said to be the best evidence of its terms and, consequently, is to be desired above such secondary evidence as a copy or oral testimony. A witness, therefore, cannot testify to the terms of the writing unless it is shown to be unavailable for some reason other than his own fault.
“Although it is sometimes said loosely that a party must produce the best evidence which the nature of the question admits, there is no rule of law that is so all-encompassing. The law does not usually require, for example, that a party call an eyewitness to prove a fact as to a condition precedent to the introduction of circumstantial evidence of the fact. A marriage may be proved by circumstantial evidence without showing the production of an eyewitness thereto or an official record is not feasible. Indeed, the law does not regard circumstantial evidence of a matter as inferior ipso facto in comparison to eyewitness testimony of that matter.” Gamble, McElroy’s Alabama Evidence, § 212.01 (1977)

Our attention has not been called to any error prejudicial to the defendant, and our search of the record has revealed none. 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 is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Britton Dale TERRELL v. STATE.
    8 Div. 528.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Clark E. Johnson, III, Arab, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was convicted of the theft of property in the first degree. He was sentenced under the Habitual Felony Offender Act to life imprisonment. Alabama Code 1975, Section 13A-5-9.

On appeal, the defendant contends that the Habitual Felony Offender Act is unconstitutional because it “excludes offenses involving drugs from the operation of the .. . Act, thereby treating similarly situated persons differently from the Appellant.”

This very same issue was answered adversely to the defendant by this Court in Motley v. State, Ala.Cr.App., 8 Div. 544 (Ms. October 20, 1981), wherein we held that “the legislature intended that all felons, whether drug offenders or otherwise, be subject to enhanced punishment under the Alabama Habitual Felony Offender Act when prior convictions have been shown.”

Additionally, we would note that a recidivist statute is not constitutionally deficient for the mere reason that it does not include all felonies. Wessling v. Bennett, 290 F.Supp. 511 (N.D.Iowa 1968).

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

AFFIRMED.

All Judges concur.


text:
    Jesse DORSEY v. STATE.
    8 Div. 538.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    John W. Caylor, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the possession of a forged instrument. Section 13 A — 9-6, Alabama Code 1975 (Amended 1977). Sentence was six years’ imprisonment.

Admitted in this case were the very same type of mug shots this Court condemned in Holsclaw v. State, 364 So.2d 378 (Ala.Cr.App.) cert. denied, 364 So.2d 382 (Ala.1978). These photographs should not have been admitted into evidence, over proper objection, because they indicated that the defendant had a criminal record. However, at trial, this was not the basis of defense counsel’s objection. The objection made at trial was:

“If Your Honor pleases, we would interpose an objection at this point in time, counsel had the opportunity to use the best evidence available and have these photographs identified by the two young ladies who say they picked out this person from that lineup, the officer’s testimony is hearsay. And on that ground we would request that the Court refuse prosecution’s attempt to bring these photographs into evidence.”

This is a different objection from the one the defendant asserts on appeal.

We find Howell v. State, 369 So.2d 297 (Ala.Cr.App.1978), cert. denied, 369 So.2d 303 (Ala.1979), controlling.

“Appellant further contends the admission of the photographs was error on the ground that they were ‘mug shots’ which draw attention to a prior criminal record. The only objection at trial to admission of the photographs was that no proper predicate had been laid. Where a specific objection to admission of evidence is made, all other grounds are waived. Since appellant failed to properly object at trial to the introduction of ‘mug shots’, nothing is preserved for review.” 369 So.2d at 302.

“The trial court must be apprised of the basis for the objection with sufficient particularity to allow an informed decision to be made on the particular legal issue involved.” Bland v. State, 395 So.2d 164, 168 (Ala.Cr.App.1981).

A search of the record reveals no preserved error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    Claire Louise WRIGHT v. STATE.
    1 Div. 245.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
   ON REHEARING

PER CURIAM.

APPLICATION FOR REHEARING GRANTED. ORIGINAL OPINION WITHDRAWN. AFFIRMED ON AUTHORITY OF Bruce Quillan Carroll v. State, 407 So.2d 177 (Ala.1981).

All the Judges concur.


text:
    THE FLORIDA BAR. In re PETITION TO AMEND FLORIDA BAR INTEGRATION RULE, ARTICLE XI, RULE 11.09(3)(a).
    No. 59909.
    Supreme Court of Florida.
    March 26, 1981.
    Leonard H. Gilbert, President, Tampa, Samuel S. Smith, President-elect, Miami Beach, John F. Harkness, Jr., Executive Director and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for The Florida Bar.
   PER CURIAM.

The Board of Governors of The Florida Bar has petitioned the Court to alter the time for seeking review from a referee’s report in a bar grievance procedure. The petition requests time for the Board of Governors to act following receipt of a referee’s report, which the present “30-day rule” does not always accord. The bar’s need for a modification has been amply demonstrated. The rule proposed by the bar is adopted, modified, however, to assure that respondent attorneys will always have at least 30 days after mailing of a referee’s report within which to seek review in this Court.

The following amendment to article XI, Rule 11.09(3) is adopted. This rule shall apply to all disciplinary proceedings in which mailing of the referee’s report occurs after March 26, 1981.

(3) Procedure for review. Review by the Supreme Court shall be in accordance with the following procedure:

(a) Proceedings for review shall be commenced within 30 15 days after of the termination of the meeting of the Board of Governors following by 10 days the mailing date of a letter from the referee serving a copy of the referee report on the respondent and The Florida Bar,: but in all events respondent shall be allowed at least 30 days after the mailing date of such letter to commence review. Prompt notice of such termination date and the Board’s action, if any, shall be communicated to the respondent. The proceeding shall be commenced by filing with the Supreme Court a petition for review, specifying those portions of the report of a referee sought to be reviewed. Within 10 days after service of such petition, the opposing party may file a cross-petition for review specifying any additional portion of the report which said party desires reviewed. The filing of such petition or cross-petition shall be jurisdictional as to a review to be procured as a matter of right, but the Court may, in its discretion, consider a late-filed petition or cross-petition upon a showing of good cause.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Harris BALL, Respondent.
    No. 59686.
    Supreme Court of Florida.
    Oct. 29, 1981.

      John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Anita F. Dahlquist, Bar Counsel, Tallahassee, and James A. Bledsoe, Chairman, Fourth Judicial Circuit Grievance Committee “A”, Jacksonville, for complainant.
    Harris Ball, in pro. per.
   PER CURIAM.

The Florida Bar charged respondent with violating five disciplinary rules of the Florida Bar Code of Professional Responsibility. The material facts are not in dispute. A Mr. and Mrs. O’Hearn contacted respondent and arranged for his assistance in adopting a newborn child. After the couple received the child but before the final hearing on the adoption, a fee disagreement arose. Respondent then wrote a letter to the social worker handling the case for the Department of Health and Rehabilitative Services, stating that he suspected the couple might be in financial difficulties. He suggested the social worker undertake further investigation to determine if his clients were financially able to provide for the child. After the social worker informed him that she would not withdraw the favorable recommendation, respondent wrote her a second letter detailing the fee dispute, indicating his distress at having placed the child with his clients, and implying that he questioned the acceptability of the couple’s moral standards. Both in his testimony at the hearing before the referee and in his brief before this Court, respondent expressed his contempt for his former clients, insisting that he would always regret placing the child with them. He stated that he felt his first letter to the social worker was entirely proper and justified.

After the hearing, the referee recommended that respondent be found guilty of violating DR 1 — 102(A)(6) (engaging in conduct which adversely reflects on fitness to practice law) for intentionally attempting to prejudice his clients’ interest during the course of the professional relationship. The referee recommended a public reprimand as the appropriate discipline. The Bar has petitioned for review, asserting that the discipline should be more severe given the facts of this cause. The Bar urges this Court to suspend respondent from the practice of law for three months and one day, with reinstatement conditioned upon proof of rehabilitation.

We approve the referee’s report insofar it finds respondent guilty of violating DR 1— 102(A)(6), but we agree with the Bar that public reprimand is an insufficient sanction. Respondent intentionally and unjustifiably attempted to injure his clients, allowing his personal prejudices to interfere with his professional responsibilities. Fortunately, the clients suffered no actual harm in the adoption process.

We have determined that the appropriate measure of discipline in this instance is suspension from the practice of law for three months. Respondent will have twenty days from the date of this order to take steps necessary to protect his clients. Execution shall issue against respondent for the cost of these proceedings in the amount of $1,479.17.

It is so ordered.

ADKINS, Acting Chief Justice, and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


author: ERVIN, Judge. ERVIN, Judge.

text:
    BAXTER’S ASPHALT & CONCRETE, INC., a Florida Corporation, Appellant, v. LIBERTY COUNTY, a Political Subdivision of the State of Florida; L. B. Arnold, Jack E. Summers, Jimmy Johnson, Richard Phillips and Donnie Gene Tharpe, as constituting the Board of County Commissioners of Liberty County, a Political Subdivision of the State of Florida; and Gulf Asphalt Corporation of Panama City, a Florida Corporation, Appellee.
    No. VV-370.
    District Court of Appeal of Florida, First District.
    March 10, 1981.
    On Rehearing Nov. 18, 1981.

      James J. Richardson and Barry Richard of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellant.
    Bill A. Corbin, Blountstown, and L. Charles Hilton, Jr., Panama City, for appel-lee.
   ERVIN, Judge.

Baxter’s Asphalt and Concrete, Inc., appeals a final judgment which inter alia granted appellee Gulf’s motion to dismiss and dissolve a temporary injunction entered by the trial court on May 5, 1980, which had prevented appellee Liberty County from awarding a public contract to Gulf. The judgment also denied Baxter’s motion to amend its complaint. We reverse.

In April, 1980, appellee Liberty County advertised for bids on road resurfacing. An “Information for Prospective Bidders” was provided to each bidder by the county which included:

NOTE: Bidder must bid for both resurfacing alternatives ALT(A) and ALT(B) for a valid bond.

Alternate “A” called for a better and more expensive grade of asphalt than alternate “B”. The appellee, Gulf, did not bid on alternate “A” because the county inadvertently failed to send Gulf the last page of the instructions which included the above quoted requirement. The prospective bidders were also provided with “Instructions to Bidders” which included the following provision:

Proposals will not be listed as “irregular” and will not be considered in the tabulation of bids if they were incomplete in any of the following forms at the time the proposals are removed from the sealed envelopes at bid openings:
(1) Proposals must show a total amount bid in the separate space provided in the title page, [emphasis in original]
“The Information to Bidders” also provided: (6) WAIVER OF TECHNICAL FLAWS IN BID:
The board reserves the right to waive technical flaws or minor deficiencies in the preparation of the bid, wherever such technicality is obviously to the best interest of the Board.

Appellee, Gulf, submitted the lowest bid for alternate “B”. Baxter’s submitted the next lowest bid for alternate “B” which was about $148,000 greater than Gulf’s proposal. Baxter’s submitted the lowest bid on alternate “A”, which was $187,000 greater than appellees’ proposal on alternate “B”. The bidders were also required to include within their bid proposal a guaranteed deposit or surety bond in the amount of 5% of the total actual bid. The county ignored Gulf’s failure to bid on alternate “A” and awarded Gulf the contract. The appellant then filed a complaint for injunctive relief challenging the award of the contract on the grounds that Gulf’s proposal did not comply with the bidding requirements. Baxter’s later sought to amend its complaint by alleging in the proposed amended complaint that the county had not complied with Chapter 336, Florida Statutes (1979), and that the bidding process was unfair. The trial court denied the motion to amend and rendered a final judgment for appellees based largely on its findings that no showing of fraud or unfairness in awarding the contract had been established.

We agree with the trial court’s finding that the record does not establish evidence of favoritism, fraud, or misconduct on the part of the county commissioners or Gulf during the course of the bidding process. Normally, such a showing is necessary to enjoin an award of a public contract. See Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931). Cf. Wood-Hopkins Contracting Company v. Roger J. Au & Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978). Nevertheless, injunctive relief may be granted if there is alleged “a clear violation of the statute relating to competitive bidding” even in the absence of any “allegation of . . . fraud or misconduct on the part of the county commissioners . .. . ” Wester v. Belote, supra, 138 So. at 726.

Here, Gulf’s failure to comply with the bid specifications constituted a clear violation of the competitive bid statute applicable here, Section 336.44, Florida Statutes (1979), in that the deviations in Gulf’s bid were material. See Harry Pepper & Assoc. v. City of Cape Coral, 352 So.2d 1190 (Fla.2d DCA 1977). The court in Harry Pepper & Assoc., cited 64 Am.Jur.2d, Public Works & Contracts, § 59 (1972), for the following proposition: “The test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether the variation affects the amount of the bid by giving the bidder 'an advantage or benefit not enjoyed by other bidders.” Id. at 1193.

City of Miami Beach v. Klinger, 179 So.2d 864 (Fla. 3d DCA 1965), is the Florida case that has the closest factual similarity to the case at bar and is the most illustrative as to the problem of non-conforming bids. In Klinger, a successful bidder added an alternate in his bid which was not called for in the specifications. The other contractors submitted bids which conformed to the specifications. The alternate proposal in the nonconforming bid was ultimately accepted. The Klinger court held that the successful bidder’s inclusion of the alternate proposal gave him an unfair advantage over other bidders. A New Jersey case, L. Pucillo & Sons v. Mayer & Council, etc., 73 N.J. 349, 375 A.2d 602 (N.J.1977), is also instructive. There, the Supreme Court of New Jersey disapproved a bid which had been accepted by the Borough of New Milford. The bidders had been requested to submit proposals for garbage collection contracts of one, two and five years’ duration. The defendant entered bids on the first three years but failed to submit a bid for the five-year contract. The plaintiff and another bidder submitted proposals on all alternatives as required. Nonetheless, the contract was awarded to the defendant which purported to waive defendant’s failure to bid on the fifth year.

The issue before the court was “whether the portion of the bidding specifications which directed garbage scavengers to submit proposals on all options was mandatory or permissive.” 375 A.2d at p. 603. As in the instant case, the advertisements to bidders in L. Pucillo & Sons contained underscored, mandatory language which required that all proposals be bid, and a similar provision which read:

The mayor and Council reserves [sic] the right to waive any informalities and the right to reject any and all bids to the best interest of the Borough of New Milford.' Id.

In reversing, the Supreme Court of New Jersey emphasized the underscored mandatory language in the advertising to bidders, stating:

We would have no objection to a procedure in which bidders were clearly told that they could select one or several options on which to bid. We are not, however, willing to transform the mandatory requirement in these specifications into a polite request. The ordinary reader of the specifications would regard them as calling for bids on all the terms specified. Awarding the contract to one who failed to submit bids on all terms necessarily created an inequality in the bidding and an opportunity for favoritism.
There is little doubt that Pacio’s [the successful bidder] failure to bid on all options was not a minor irregularity which could be waived, [citations omitted] but rather was a substantial departure which could not be overlooked, [citations omitted] Justice Mountain recently formulated the distinction between material and non-material conditions in Terminal Const. Corp. v. Atlantic Cty. Sewerage Auth., [67 N.J. 403, 341 A.2d 327] supra:
Essentially this distinction between conditions that may or may not be waived stems from a recognition that there are certain requirements often incorporated in bidding specifications which by their nature may be relinquished without there being any possible frustration of the policies underlying competitive bidding.
He noted that such requirements must be distinguished from conditions
whose waiver is capable of becoming a vehicle for corruption or favoritism, or capable of encouraging improvidence or extravagance, or likely to affect the amount of any bid or to influence any potential bidder to refrain from bidding. or which are capable of affecting the ability of the contracting unit to make bid comparisons .... [citations omitted]
The latter category of conditions, he found, “are the kind .. . which may not under any circumstances be waived.” Id.

375 A.2d 604-605 (emphasis in original). The New Jersey Supreme Court concluded that the successful bidder’s “deviation from the specifications gave him a palpable economic benefit which gave him an advantage over his competitors and undermined the necessary common standard of competition.” Id. at 606.

Similarly, in the instant case, Liberty County did not have the option to waive the mandatory requirement that Gulf bid on alternate “A”. Gulf conceivably could have gained an unfair bidding advantage by failing to bid on alternate “A”. By omitting to bid on alternate “A”, Gulf arguably had a lower bonding requirement and arguably was exposed to a lesser financial risk. Gulf’s failure to bid on alternate “A” also made the bids difficult to compare — a problem which the competitive bid statutes attempt to eliminate. Wester v. Belote, supra; Robinson’s, Inc. v. Short, 146 So.2d 108 (Fla. 1st DCA 1962).

Appellees’ endeavors to distinguish L. Pucillo & Sons, Inc., are unavailing. Appellees base their distinction upon the lower court’s finding that the two alternates required to be bid were mutually exclusive. Even if this finding is correct, it has no bearing upon the competitive advantages that Gulf may have obtained by its not bidding on one of the required alternates.

Bids on public contracts must conform closely with the published specifications provided in Section 336.44, Florida Statutes, as a prophylactic measure. This position harmonizes with the purpose of the competitive bid statutes as stated in Wester, 138 So. at 724:

[T]hey thus serve the object of protecting the public against collusive contracts and prevent favoritism toward contractors by public officials and tend to secure fair competition upon equal terms to all bidders, they remove temptation on the part of public officers to seek private gain at the taxpayers’ expense, are of highly remedial character, and should receive a construction always which will fully effectuate and advance their true intent and purpose and which will avoid the likelihood of same being circumvented, evaded or defeated.

Accordingly, the appellant’s motion to amend his complaint, which contained allegations that the competitive bid statute had been violated, should be granted. Appellant further contends that this case should ultimately result in its being awarded the contract. While this option appears to be available, see Harry Pepper & Assoc., supra, we feel that such a result would be inequitable in this case since Gulf’s failure to bid was due to no fault of its own but was due to the county’s inadvertence. The only apparent equitable remedy is for the county to start anew and readvertise the bids as was directed in L. Pucillo & Sons, Inc., supra.

Reversed and remanded for further proceedings consistent with this opinion.

BOOTH and JOANOS, JJ., concur.

ON PETITION FOR REHEARING

ERVIN, Judge.

All parties have moved for rehearing and assert among other things that the remedy we fashioned in our earlier opinion, requiring Liberty County to readvertise the contract for further bidding, is now moot because Liberty County allowed appellee Gulf to complete the construction of the roadway pursuant to the contract during the pendency of this appeal. Without receding from the reasoning in our earlier opinion, we agree that the remedy there stated is now moot.

Another panel of this court had earlier denied appellant’s request to stay the construction on the contract until the appeal was decided on the merits. In all fairness to that panel, the denial of that request for stay was decided on the basis of a very limited record. Such a stay would have been equivalent to the granting of a temporary injunction. Temporary injunctions are granted sparingly and only if eventual success on the merits is probable. See Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Provende, Inc., 399 So.2d 1038 (Fla. 3d DCA 1981). Also, the earlier panel did not have the benefit of the briefs which we used for guidance in reaching our decision, and probably were not cognizant of the landmark New Jersey case, L. Pucillo & Sons v. Mayor & Council, 73 N.J. 349, 375 A.2d 602 (1977), which the appellant cited and relied heavily upon in its briefs. Because we adopted that out-of-state authority to resolve a case of first impression in our original opinion, it hardly could be said that the posture of the appeal when reviewed by the earlier panel would have led it to the conclusion that success on the merits at that time was apparent.

Recognizing that its previous remedy has been frustrated, the appellant now maintains that it should be able to recover damages based on the theory of promissory estoppel measured by its loss of profits from not being awarded the contract. If it is precluded from seeking damages, appellant contends that it would suffer a legal wrong without a remedy in violation of Article I, Section 21, of the Florida Constitution (1968). Appellant also contends that such a remedy is warranted because public bidders are in the best position to prosecute violations of the public bidding statutes which were intended to protect the public interest.

It has long been recognized that if the equitable relief cannot be granted due to the defendant’s wrongdoing, a court may award monetary compensation in lieu of the equitable remedy. Winn and Lovett Grocery Co. v. Saffold Bros. Produce Co., 121 Fla. 833, 164 So. 681 (1935); Beavers v. Conner, 258 So.2d 330 (Fla. 3d DCA 1972). Persuaded by these principles, we hold that the doctrine of promissory estoppel applies to the facts of this case. However, for equally strong, equitable, and policy reasons, we limit appellant’s recovery to its consequential and “reliance” damages which may include litigation expenses, and attorney’s fees.

The doctrine of promissory estoppel has previously been recognized as the basis for recovery in Florida. See Allen v. A. G. Edwards & Sons, Inc., 606 F.2d 84 (5th Cir. 1979); Mount Sinai Hospital of Greater Miami, Inc. v. Jordan, supra, fn. 1. That doctrine has yet to be applied in Florida to a situation involving public bidding. We have previously recognized that a bidder who once had its bid accepted by a governmental entity, but was later rejected in favor of another bidder, can sue the governmental entity for breach of contract. Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So.2d 446, 448 (Fla. 1st DCA 1978). However, that theory is inapplicable here because the appellant’s bid was never accepted by Liberty County. We are also aware of the holding in William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (Fla. 2d DCA 1960), stating that damages cannot be awarded to a rejected bidder (whose bid had never been accepted) even if there had been a violation of the competitive bid statute on the part of the governmental agency. Nevertheless, the Berbusse holding was based on its rejection of the specific types of contractual and tort theories for recovery advanced by the rejected bidder. Its opinion did not discuss the doctrine of promissory estoppel, which has been broadened substantially in its application since the rendition of that opinion. See supra, fn. 1.

Swinerton v. Walberg Co. v. City of Inglewood, 40 Cal.App.3d 98, 114 Cal.Rptr. 834 (1974), is instructive. There the governmental authority failed to award a contract to the lowest bidder in violation of statutory requirements. As in the instant case, the contract had already been completed by the time the case reached the appellate court. The court rejected the low bidder’s tort and contract theories of recovery, but it recognized that the rejected bidder could recover against the public authority under a theory of promissory estoppel based on Section 90 of the proposed Restatement of Contracts 2d (Tentative Drafts Nos. 1-7 (1973)). In so holding, the court found that the public entity by soliciting bids promised that the contract would be awarded to the lowest possible bidder, and that the rejected bidder reasonably and detrimentally relied on that promise.

The public authority in Swinerton advanced the following arguments that a cause of action could not be recognized against it because (1) the competitive bid requirements on the contracts for public works existed to protect the public rather than the bidders; (2) the injunctive relief that the rejected bidder had obtained earlier was granted solely to protect that public interest, and (3) the rejected low bidder could not have compelled the governmental authority to award the contract to it due to a provision in the notice soliciting bids that any and all bids might be rejected. In discarding these arguments the court stated:

It seems to us that the injustice to Argo, [the low bidder] the promisee, can be avoided only by at least the partial enforcement of [the governmental authority’s] promise to it to award the contract to it as the lowest responsible bidder. As we have already stated earlier, [the low bidder’s] reliance upon this promise was both reasonable and detrimental to it. To hold that the [low bidder] was not entitled to rely upon this promise because of the just-mentioned reservation of the right to reject any and all bids would make the [governmental authority’s] promise an illusory one and render the whole competitive bidding promise nugatory .... The public obviously has both an economic and moral interest in public works contracts being awarded to the lowest responsible bidders. An award of monetary damages to the lowest responsible bidder for the misaward of a public works contract would be in the public interest as well as that of the injured bidder because such an award would deter such misconduct by public entities in the future.

40 Cal.App.3d 104, 114 Cal.Rptr. 838.

We adopt the above-reasoning and apply it to the facts in the instant case. Although the appellant submitted the second lowest bid on alternate “B”, the appellant technically was the lowest responsible bidder because appellee Gulf’s bid did not comply with the competitive bid statutes. See Harry Pepper & Assoc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2d DCA 1977). Also, appellant detrimentally relied on Liberty County’s implied promise to comply with the competitive bidding statutes by its solicitation of bids and, as a result of such reliance, no doubt incurred costs in preparing its bids as well as other “reliance” damages.

We also consider that any damages, including reasonable costs and attorney’s fees incurred as a result of this action, should be awarded only against Liberty County. Here, the appellant probably would not have been involved in litigation with appellee Gulf, if appellee, Liberty County, had properly sent the last page of bidding instructions to Gulf. Where the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages. Port Everglades Authority v. R. S. C. Industries, Inc., 351 So.2d 1148 (Fla. 4th DCA 1976); Canadian Univ. Ins. Co. v. Employer’s Surplus Lines Insurance Co., 325 So.2d 29 (Fla. 3d DCA 1976); Milohnich v. First National Bank of Miami Springs, 224 So.2d 759 (Fla. 3d DCA 1969).

However, we will not allow appellant’s recovery to extend to its purported loss of profits that it expected to receive from the public contract. In Swinerton, supra, the court suggested that such an extension was probably improper as an equitable measure of damages in that particular case, citing 1A Corbin, Contracts § 200 (1963) (stating that damages recoverable in certain types of promissory estoppel cases should be limited to those which the prom-isee sustained directly by reason of its justifiable reliance upon the promise). The court bolstered its belief by noting that the last section of Section 90 of the Restatement of Contracts 2d provides that “the remedy granted for the breach may be limited as justice requires.” 114 Cal.Rptr. at 838. Although Swinerton strongly intimated that the frustrated promisee should be permitted only those damages which “it incurred in its fruitless participation in the competitive bidding process ... ”, id. 114 Cal.Rptr. at 838, 839, the appellate court left the proper measure of damages to the trial court to determine.

The appellant also correctly cites Signal Hill Aviation Co., Inc. v. Stroppe, 96 Cal.App.3d 607, 158 Cal.Rptr. 178 (1979), as authority for its position that a loss of profits, in some circumstances, can be recovered under a theory of promissory estop-pel. However, Stroppe involved a suit brought by a corporation against a corporate officer for the latter’s breach of a promise to execute a lease assignment to the corporation. The Stroppe court recognized that Swinerton suggested that the rejected bidder should not recover its loss of profits, but noted that in other cases loss of profits are recoverable under the doctrine of promissory estoppel when the loss is definite rather than speculative. 158 Cal.Rptr. at 186. Stroppe also commented on the flexible nature of the doctrine of promissory estoppel and sanctioned “the exercise of judicial discretion in promissory estoppel cases to fashion relief to do justice.” Id. In affirming the lower court’s award for loss of profits, the court also stressed the equitable nature of the award below, characterizing it “ ‘more like an accounting between parties than like an assessment of damages.’ ” Id.

Stroppe, then, is distinguishable from the instant case as the latter case involves public bidding. We consider that it would be unjust to allow a recovery for loss of profits based on the theory of promissory estoppel due to a violation of a public bidding statute. “ ‘Such a statutory provision, enacted as a protection to the public, cannot be used to make disobedience to its provisions by public officers a double source of punishment to the public body ....’” William A. Berbusse, Jr., Inc. v. North Broward Hospital District, supra, at p. 552 (citing to 43 Am.Jur. Public Works and Contracts, § 65).

Finally, appellant argues in its supplemental brief that the appellee should be estopped from asserting that profits cannot be recovered on rehearing because appellees initially took the position, at the proceedings below and in their initial brief, that appellant should be denied the injunction because it had an adequate remedy at law. We are not persuaded by that argument, however, since appellant took the opposite position that the injunction should have been granted because appellant did not have an adequate remedy at law. We agreed with appellant’s position in our original opinion; therefore, if appellant had in .fact a full contractual recovery, including its loss of profits, appellant would have been considered to have had an adequate remedy at law, and we would not have directed the remedy of readvertisement.

Accordingly, we reverse and remand with directions that appellant be allowed to amend its complaint in order to allege such damages as are consistent with this opinion, and that a hearing be held to determine the proper amount of damages to be awarded against Liberty County.

BOOTH AND JOANOS, JJ., concur.

      . We construe Sections 336.44(2) and (3), when read together, as preventing county commissioners from accepting bids which deviate materially from published specifications. Subsection (2) conditions the letting of a contract upon prior “publication of notice for bids containing specifications...” Subsection (3) conditions the letting of a contract “upon [the acceptance of] a satisfactory bid.” Hence, we conclude that a bid that materially differs from published specifications is not a “satisfactory bid” within the meaning of the statute.

      . Initially, the courts in this state took a limited view that the doctrine only applied in those cases where a promise was made with respect to an intended abandonment of existing rights. See Southeastern Sales & Service Co. v. T. T. Watson, Inc., 172 So.2d 239 (Fla. 2d DCA 1965). However, the application of that doctrine has been broadened to situations where a “ ‘promisor [makes] a promise which he should reasonably expect to induce action or forebearance of a substantial character on the part of the promisee.’ ” Mount Sinai Hospital of Greater Miami, Inc. v. Jordan, 290 So.2d 484, 486 (Fla. 1974) (e.s.).

      . That reworded version of Section 90 reads: A promise which the promisor should reasonably expect to induce action or forebearance on the part of the promisee or a third person and which does induce such action or fore-bearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

      . The above rule is an exception to the general rule that attorney’s fees are not otherwise recoverable as costs in the absence of statutory authority or contractual agreement. See Miller v. Colonial Baking Co., 402 So.2d 1365 (Fla. 1st DCA 1981).

      . The limited recovery we now allow on rehearing is monetary relief incidental to a court’s equitable jurisdiction. See Circle Finance Co. v. Peacock, 399 So.2d 81 (Fla. 1st DCA 1981). A remedy that affords only partial relief is not an adequate remedy at law. See Milton v. Marianna, 107 Fla. 251, 144 So. 400 (1932).


author: NESBITT, Judge.

text:
    In re ESTATE OF David H. RICE, Deceased. Jack RICE, Florence Rice and Dr. Jack S. Rice, Jr., Appellants, v. Murray A. GREENBERG and Flagship National Bank of Miami, Personal Representatives of the Estate of David H. Rice, Deceased, and Caroline Rice, Appellees.
    No. 79-2252.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Rehearing Denied Dec. 18, 1981.

      Smith, Mandler, Smith, Werner, Jacobow-itz & Fried and Samuel Smith, Miami Beach, Teller, Chaney & Rector, Vicksburg, Miss., for appellants.
    Hylan H. Kout and Harry A. Greenberg, Miami Beach, for appellees.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   NESBITT, Judge.

This is an appeal from a judgment construing a will. Once again, the task of the courts is to determine and effectuate the intention of a testator as gleaned from the words employed in his last will and testament. We are aided in this task by the canons and rules of construction, though centuries old, which provide us with a reliable gauge to ascertain the testator’s intention.

In his seventy-eighth year, the testator took a third wife, Caroline, who survived him. Four days before their marriage, they entered into a prenuptial agreement by which Caroline agreed to make no claim against the testator’s estate as a surviving spouse. One month later, the testator executed his last will and testament in which he made a specific devise of a condominium apartment to Caroline together with its furnishings and effects. In other dispositive provisions, he made specific bequests and devises to other relatives and friends. After directing that costs, debts, and taxes be paid following distribution of the specific bequests and devises, the testator divided his residual estate into two parts to be known as: (a) a marital trust; and (b) a residuary trust.

The marital trust contained the conventional and traditional language so familiar to scriveners that we simply allude to it as a boilermaker trust in which the testator unequivocally expressed a desire for it to qualify for the marital deduction. The trustees were given the power to invade the marital trust so as to assure that Caroline would receive a guaranteed income of not less than $10,000 per annum for her maintenance. They were also given other provisional authority to invade the marital trust for medical and other emergency expenses not to exceed an additional $5,000 per an-num. If Caroline survived him, she was given the power to appoint the assets of the marital trust.

In the event that Caroline did not survive him, or if she did survive him but did not appoint the assets of the marital trust prior to her death, the assets of the marital trust were to be added to the residuary trust. Upon the happening of either event, the residuary trust was to terminate and the assets of the trust were to be distributed to the alternate contingent beneficiaries, of which the testator’s brother, Jack, was the first mentioned.

The decedent departed this life at the age of eighty-one. His will and codicils were duly admitted to. probate and his estate was administered to the point that estate and inheritance tax returns claiming the full marital deduction were filed and granted by the Internal Revenue Service. The co-personal representatives then filed a petition for construction of the decedent’s will and for an adjudication to: (1) determine that the testator’s brother, Jack, did not become a vested remainderman of certain bank stock devised to the residuary trust; (2) authorize the sale of a sufficient amount of bank stock which comprised the residuary trust to fund the marital trust to the maximum amount allowable; (3) subject the marital trust (funded with the bank stock) to a power of appointment in the testator’s surviving wife, Caroline; and (4) allow the proceeds from the sale of the bank stock remaining in the residuary trust to be used to defray administrative costs.

The testator’s brother, Jack, as well as the other remaindermen, filed a response alleging that the bank stock constituted a specific bequest and became part of the residuary trust which vested with Jack, subject to Caroline’s beneficial interest, on the death of the testator. They maintain that because it was a specific bequest and part of the residuary trust that: (a) no part of the bank stock could be used to fund the marital trust; and (b) Caroline would consequently have no power of appointment thereover.

After receiving testimony from the scrivener of the decedent’s will and a trust officer concerning the administration of the marital and residuary trusts, the probate court granted the co-personal representatives’ petition for construction of the will. Jack, as well as the other alternate contingent beneficiaries of the residuary trust have appealed. We reverse.

The primary issue is whether the bank stock bequeathed to the residuary trust was vested or contingent, subject of course in either event to Caroline being the life income beneficiary thereof. The appellants contend that the residuary trust was vested and Caroline contends that the residuary trust is simply contingent. The secondary question to be resolved is whether the bequest of the bank stock as part of the residuary trust constituted a specific or a general bequest. Determination of the second issue makes little difference in the amount of income which Caroline, as the life income beneficiary, will receive;, however, it will of course affect her power of appointment over the bank stock. On the other hand, this question is of considerable concern to Jack because if it is determined that the bank stock is a general bequest, it would be the first portion of the estate utilized (on a pro rata basis with other portions of the residuary estate) to pay debts, expenses, fees, estate and inheritance taxes, and other costs of administration. If it constituted a specific bequest, although in trust, it would become the last portion of the residuary estate to bear the impact of the foregoing. See § 733.805, Fla.Stat. (1977).

We commence our labor by reviewing the canons and rules of construction to determine the intent of a testator. The learned professor, Thomas, in his treatise, Florida Estates Practice Guide (1979 Printing) [original published 1964], states these canons with great precision and depth of understanding as follows:

CHAPTER 16 § 4
Construction of a will means the determination of the legal effect of dispositions made in a will in view of the testator’s intent. It is nothing more than an attempt to determine a testator’s desires with reference to all matters relating to his estate. Construction of a will requires an attempt to determine the subjective intent of the testator.
The courts are not concerned with what a reasonably prudent person would have done under like circumstances, but rather attempt to determine what the testator actually meant by the terms and expressions used in his will.

Chapter 16 at 16-5.

CHAPTER 16 § 18
In the construction of wills, a presumption is created that the language used by
the testator expresses his intention. This intent must be ascertained from the four corners of the instrument. The will must be construed in its entirety and segments will not be isolated in ascertaining the desires, wishes and intent of the testator.

Chapter 16 at 16-24.

CHAPTER 16 § 19
It is generally agreed that language used in a will is to be construed according to its primary and ordinary meaning unless a different meaning is intended by the testator. Consistent with this proposition, technical or legal words employed in a will are presumed to have been used in their settled legal meaning, unless a contrary intent is manifested. In other words, it will be presumed that the testator used the words according to the meaning which the law attaches to them, and as a consequence such words will be given their ordinary legal meaning. If a will has been drafted by an experienced attorney, it would appear that a presumption would be created that an attorney used the technical words in their technical sense. Of course, technical words should not always be construed according to their technical meanings, since the intent of the testator, in the final analysis, governs.

Chapter 16 at 16-25, 16-26.

Our Legislature has, by enactment of Section 732.6005(1), Florida Statutes (1977), further entrenched into the jurisprudence of this state the familiar common law rule, to which all other rules of construction must yield, that the testator’s intent is the polestar when construing any testamentary instrument. Section 732.-6005(1), supra, provides:

732.6005 Rules of construction and intention.—
(1) The intention of the testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in this part shall apply unless a contrary intention is indicated by the will.

We now turn our attention to the pertinent provisions of the testator’s last will and testament which provided for the distribution of the assets in the residuary trust upon termination of the trust and the resolution of the question of whether the bank stock vested.

ARTICLE NINTH (C) (1)
To my brother, JACK RICE, thirteen thousand one hundred seventy-seven (13,-177) shares of Deposit Guaranty Bank of Jackson, Mississippi stock which I own, outright. In the event my brother, JACK RICE, predeceases me, then I bequeath said thirteen thousand one hundred seventy-seven (13,177) shares of Deposit Guaranty Bank of Jackson, Mississippi stock to my sister-in-law, his wife, FLORENCE RICE, outright. In the further event that my sister-in-law, FLORENCE RICE, predeceases me, then I give and bequeath said thirteen thousand one hundred seventy-seven (13,177) shares of Deposit Guaranty Bank of Jackson, Mississippi stock to my nephew JACK RICE, M.D., outright.
ARTICLE TENTH
In Article NINTH (C)(1) of this my Last Will and Testament, I bequeath thirteen thousand one hundred seventy-seven (13,177) shares of Deposit Guaranty Bank of Jackson, Mississippi stock to the person or persons set forth therein. It is my wish and desire that in the distribution of the assets of my estate between the Marital Trust and the Residuary Trust, that the asset consisting of thirteen thousand one hundred seventy-seven (13,177) shares of Deposit Guaranty Bank of Jackson, Mississippi stock that I own, shall be distributed to the Residuary Trust subject, however, to the proviso that my providing for the distribution of this asset in this fashion, shall in no way affect the validity of the Marital Trust created under this my Last Will and Testament. If in any way, my desire and direction concerning the distribution of this asset will affect the validity that the distribution of this asset shall be made in such a way that it will not destroy the validity of said Marital Trust.

While the devise of the bank stock was to specific named trustees as authorized by Section 732.513(1), Florida Statutes (1977) [compare Section 731.201(9), Florida Statutes (1977)], it was the death of the testator which vested the right to the devise under Section 732.514, Florida Statutes (1977).

732.514 Vesting of devises. — The death of the testator is the event that vests the right to devises unless the testator in his will has provided that some other event must happen before a devise shall vest.

Section 732.514 is declaratory of one of the canons of common law construction. Story v. First Nat. Bank & Trust Co., in Orlando, 115 Fla. 436, 156 So. 101 (1934). In Krissoff v. First Nat. Bank of Tampa, 159 Fla. 522, 32 So.2d 315 (1947) the court stated:

This Court is committed to the doctrine that remainders vest on the death of the testator or at the earliest date possible unless there is a clear intent expressed to postpone the time of vesting. It is also settled that in case of doubt as to whether a remainder is vested or contingent, the doubt should be resolved in favor of its vesting if possible, but these general rules all give way to the cardinal one that a will must be construed so as to give effect to the intent of the testator, [emphasis supplied]

32 So.2d at 318. Accord, Thompson on Wills, Third Edition, § 362 (1947). Another case much on point is Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925) where that court, in pertinent part, stated:

[E]states in remainder vest at the earliest period possible, unless a contrary intention on the part of the testator is clearly shown. When it is a remainder after a life estate, it is regarded as a vested remainder and the possession only is postponed.

105 So. at 111. In Sorrels v. McNally, the count was confronted with a situation very much like the one at hand and from the words of the testator found that a resulting trust had been created which nonetheless vested subject to postponement of the use and enjoyment by a named beneficiary.

It is true, as appellees argue, that Article NINTH of the will specifically provided that the marital trust would be first set apart. However, because Section 732.514, Florida Statutes (1977) codifies common law doctrine with respect to early vesting, we have no doubt that the bank stock vested and hence was never available to be set apart from the residuary estate.

Appellee’s next contention which we do not find persuasive is that the provisions of Article NINTH (A) of the will which in part provides: “If my wife, CAROLINE RICE, survives me, ...” constitutes a condition precedent to the devise of a bank stock to the co-trustees for the benefit of Jack subject to Caroline’s previous beneficial estate. As we understand the provision, it constitutes a condition subsequent which terminates the residuary trust and causes distribution of the bank stock from the residuary trust to the testator’s brother, Jack pursuant to Article TENTH (C)(1) of his last will and testament. By Article TWO of the Second Codicil to his last will and testament, the decedent provided:

“I hereby modify and amend paragraph (A) of ARTICLE ‘EIGHTH’ on page 8 of my Last Will and Testament so that said paragraph (A) shall now read as follows:
(A) “If my wife, CAROLINE RICE, survives me, I give and devise to the Trustees of said Marital Trust, as Trustees IN TRUST NEVERTHELESS, an amount equal to FIFTY (50%) PERCENT of the value of my adjusted gross estate as finally determined for Federal Estate Tax purposes less the aggregate amount of marital deduction, if any, allowed for such tax purposes, by reason of property or interest in property passing or which have passed to my wife otherwise, than by the terms of this Article of my Will or TWO HUNDRED FIFTY THOUSAND ($250,000.) DOLLARS, whichever is greater, or ONE-HALF (Vz) of my adjusted gross estate, whichever is greater, pursuant to the provisions of the Tax Reform Act of 1976.”

We are also not persuaded by appellee’s contention that the proviso in Article TENTH (that the distribution of the residuary estate shall not affect the validity of the marital trust) affected the immediate vesting of the bank stock, in trust, in Jack. After having created a boilermaker marital trust in favor of Caroline pursuant to Article EIGHTH (A), the testator clearly evinced the desire for the marital trust to qualify for the marital deduction pursuant to Article EIGHTH (B) and specifically provided in Article EIGHTH (D)(ll) that the power could not be exercised in any way which would disqualify the marital trust for a marital deduction. In Article FIRST, (C), the testator incorporated this provision: “I am cognizant that the provisions of the Federal Internal Revenue Code. . . . ” We have no reason to doubt the knowledge of the testator because we find in Article EIGHTH (B) this language:

No asset or proceeds of any asset shall be included in the Marital Trust as to which a marital deduction is not allowable if included. Said bequest shall abate to the extent that it cannot be satisfied in the manner hereinabove provided.

Moreover, in Article EIGHTH (C), the testator further provided:

In no event shall there be included in said Marital Trust any asset or proceeds of the sale of any asset with respect to which a marital deduction would not be allowable if so included.

It is to be observed that under 26 U.S.C.A. § 2056(b), and the Treasury Regulations which implement the statute, the surviving spouse’s beneficial interest in the bank stock will terminate upon her death and is to be distributed from the residuary trust to Jack Rice. Consequently, she did not receive an unqualified power of appointment and therefore the bank stock cannot qualify for the marital deduction. Article TENTH is but another place in the decedent’s last will and testament in which he expressly prohibited inclusion and distribution of bank stock from the residuary trust to the marital trust if it would affect the validity of the marital trust.

Similarly, we do not find merit in the appellees’ position that the proviso in Article TENTH prevented the stock from vesting in the residuary trust in favor of Jack. Again, there was nothing that required Caroline’s death to vest the stock. Caroline’s death only terminates the residuary trust and causes the distribution of the stock outright to the named beneficiary, Jack. Moreover, the testator’s “wish and desire” that the bank stock be placed in the residuary trust is a command rather than a precatory statement when addressed to a fiduciary. Lines v. Darden, 5 Fla. 51, 71 (1853). If, under this proviso, placement of the bank shares in the residuary trust affects the validity of the marital trust, the co-personal representatives were to consider another manner of distribution. The distribution of the residuary trust does not destroy the validity of the marital trust. Therefore, this proviso never became operative.

There is another reason which buttresses the appellant’s contention that the shares could not be used to fund the marital trust. That is the testator’s references to the bank stock were to it as a single asset which was to be dealt with in solido or en masse as an indivisible asset. The provision concerning “validity” of the marital trust in no way evinces the clear and decisive intent that the bank stock was used to “fund” the marital trust.

Additionally, as stated by Professor Thomas and quoted in In re Roger’s Estate, 180 So.2d 167, 171 (Fla.2d DCA 1965):

When an interest is clearly and expressly conveyed by one clause of a will, the devise or bequest will not be considered taken away or diminished by subsequent words unless they are equally clear and decisive of the testator’s intention. The theory for this holding is to the effect that where a testator positively makes a devise or bequest, there can be no intent in his mind to take it away or cut it down. An absolute gift of a property interest cannot be cut down by subsequent provisions unless words are used which are as clear and decisive as the words making the conveyance, [emphasis supplied]

Thomas, Florida Estates Practice Guide § 31 16-37,16-38 (1979 Printing) [originally published 1964].

Finally, we reach the question as to whether the bequest of the bank stock constituted a specific or general bequest. Under Article NINTH (C)(1), if Caroline died before the testator, everything was specifically bequeathed to the beneficiaries named therein of which Jack was the first named. Under Article NINTH (C)(2), the balance or remainder of the testator’s undistributed estate and accumulations were bequeathed to Jack. In the interim, between the death of the testator and the death of Caroline, it was provided that Caroline was a life income beneficiary in the residuary trust as follows:

ARTICLE NINTH (B)
After paying all taxes and costs of administering the Residuary Trust . . . the Co-Trustees, commencing with the date of their qualification, shall pay all of the net income from said Residuary Trust to my beloved wife, CAROLINE RICE, in quarter-annual installments in the Co-Trustees’ discretion during this Trust, and the same shall be paid by the Co-Executors or by the Co-Trustees, in accordance with the law in force at the time of my death. My said wife shall also be entitled to a net income from said Residuary Trust from the date of my death to the date of the qualification of the Co-Trustees.

By construing Article NINTH and Article TENTH together, we have no doubt that the testator intended to devise the bank stock as a specific bequest in trust for his brother, Jack, subject to the prior beneficial life estate in his surviving wife, Caroline. In Park Lake Presbyterian Church v. Estate of Henry, 106 So.2d 215, 217 (Fla.2d DCA 1958), that court had the occasion to define a specific legacy as “a gift of a particular thing or of a specified part of the testator’s estate so described as to be capable of distinguishment from all others of the same kind.” Under this definition, it is clear that a specific bequest rather than a general or demonstrative bequest was intended by the testator. The specific legacy of the 13,177 shares of stock devised from a testator’s residuary estate does not alter its character as a specific bequest. Annot. 128 A.L.R. 822. “Effect of designation of a particular property in residuary clause of a will.” (1940), as supplemented by 72 A.L. R.2d 1170 (1960). When the language employed indicates an intention to devise specific property as part of the residuary estate, a specific legacy or devise is not rendered general by the fact that there is also a gift of the residuary estate to the same person. In re Painter’s Estate, 150 Cal. 498, 89 P. 98, 101 (1907); Henderson v. First Nat. Bank of Rome, 189 Ga. 175, 5 S.E.2d 636 (1939). Therefore, there was no impediment to making such a specific bequest of property even though the specific bequest is contained in an article or provision dealing with the residuary estate. Annot. 72 A.L. R.2d 1170, supra. As in all cases construing wills, it is a question of intent to be determined by an overall reading of the last will and testament; in this case, the language employed in Articles NINTH and TENTH of the testator’s will. Consequently, we hold that, pursuant to Section 733.805(1), Florida Statutes (1977), the bank shares are not part of the residuary estate from which all estate and inheritance taxes, charges, fees, and commissions chargeable to the estate are to be paid as directed in Article FIRST. It is only where the residuary estate would be insufficient that Section 733.-805(l)(d), Florida statutes (1977) will authorize the co-personal representatives to utilize the bank stock to pay the foregoing. Section 733.817, Florida Statutes (1977) was not activated because apportionment was not necessary since it was not a specific bequest under Section 733.805(l)(c), supra.

In reaching this conclusion, we have not overlooked Caroline’s argument premised upon the proviso in Article TENTH that the bank stock not be distributed in a manner “which will affect the validity of the marital trust.” At the final hearing, the bank officer testified that if the bank stock is not sold to fully fund the marital trust, then the marital trust will have an approximate value of $90,000 instead of a fully funded value of approximately $265,000. Caroline then argues that the “validity” of the marital trust will be affected if the bank stock is not used to fully fund it because the boilermaker provision of the marital trust otherwise affords her fifty per cent of the adjusted gross value of the estate for final estate tax purposes. Black’s Law Dictionary 1390 (5th ed. 1979) defines: Validity of a will “[a]s used in a will contest statute has reference only to the genuineness or legal sufficiency of the will under attack.” When the validity of the marital trust is employed, it has similar import. Nor can we interpret the word validity in such a way as would obviously change the testator’s pattern of disposing of his estate. Thomas, Florida Estates Practice Guide, § 25 16-30 — 16-32, supra.

What then is the effect of either the scrivener’s testimony concerning the testator’s intent or the trust officer’s testimony, both of which were admitted without objection and not refuted by any counter-vening testimony? In a word — nothing. The statute of wills is still very much an integral part of the Florida Probate Code. In short, a will must be in writing, pursuant to Section 732.502, Florida Statutes (1977). In the circumstance of patent or latent ambiguity, extrinsic evidence which bears upon the testator’s intent is admissible. But a latent ambiguity is one which arises in applying the words of a will to the subject matter or object of a devise or to the devi-see. Perkins v. O’Donald, 77 Fla. 710, 82 So. 401, 404 (1919); Scheurer v. Tomberlin, 240 So.2d 172 (Fla.1st DCA 1970). A patent ambiguity is one that appears in the language of a will itself. In this case, we do not find that the proviso in Article TENTH of the testator’s last will and testament falls under either type of ambiguity. Consequently, we regard the unobjected to testimony of the scrivener and the trust officer as to the testator’s alleged intent to be incompetent to impeach the clear and unambiguous provisions employed by the testator. Were we to hold to the contrary, we would violate the very purpose of the testator in drafting a will which is to ensure that his desires will be effectuated as opposed to being reformed by the courts to accomplish a different objective than the testator had in mind at the time he made his will.

In summary, by the terms of his last will and testament and the codicils thereto, the testator devised 13,177 shares of Deposit Guaranty Bank of Jackson, Mississippi stock, in trust, to his brother, Jack, which vested in the residuary trust upon the death of the testator but was nonetheless subject to a prior beneficial life estate in the testator’s surviving spouse. The testator’s intention was to provide his surviving spouse, Caroline, with a stabilized income for life through the medium of a marital trust. For added stability, he made Caroline the life income beneficiary of the residuary trust. He clearly did not want his co-personal representatives to take any action which would destroy the validity of the marital trust. The bequest of the bank stock to Jack, in trust, constituted a specific bequest. The effect of this construction is to preclude the personal representatives from using the bank stock to fund the marital trust, the result of which is that the marital trust will not be fully funded and Caroline will have no power of appointment as to the bank stock. Since the bequest of the bank stock in trust constituted a specific bequest, the bank stock shall be the last portion of the estate to defray debts, expenses, fees, estate and inheritance taxes, and other costs of administration. A portion of these may have to be paid from the marital trust.

The judgment appealed from is reversed with directions to enter a judgment in conformity with this decision.

      . The testator executed two codicils to his will which were basically consistent with his overall testamentary scheme except that the testamentary bequests and devises to a nephew and niece were significantly scaled down.

      . This legislative recognition became effective as of January 1, 1976. Ch. 75-220 § 33, Laws of Fla.


text:
    The STATE of Florida, Appellant, v. Parker Charles PEAK, Jr., Appellee.
    No. 80-2489.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Rehearing Denied Dec. 16, 1981.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Philip Carlton, Jr., Miami, and Thomas Wills, Coral Gables, for appellee.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

On the record before us, we cannot conclude, as contended by appellant, that the court abused its discretion in determining that the recanting of testimony of a material witness who had testified while under the influence of four valium pills, allegedly with the knowledge of the prosecutor, created serious doubt as to the integrity of the trial and warranted the granting of an evi-dentiary hearing and new trial on the defendant’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. See, e. g., State v. Matera, 266 So.2d 661 (Fla.1972).

Affirmed.


text:
    Ramon SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1216.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Rehearing Denied Dec. 16, 1981.
    Mark King Leban, Samek & Besser and Lawrence Besser, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Reversed and remanded for new trial on the authority of Ivory v. State, 351 So.2d 26 (Fla.1977).