text:
    THE FLORIDA BAR, Complainant, v. William O. MURRELL, Jr., Respondent.
    No. 60296.
    Supreme Court of Florida.
    Feb. 11, 1982.
    Rehearing Denied April 7, 1982.
    John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, John B. Root, Jr., Bar Counsel, Orlando, and C. Brent McCaghren, Cahirman, Ninth Judicial Circuit Grievance Committee “B”, Winter Park, of The Florida Bar, for complainant.
    Richard F. Conrad, Winter Park, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against William 0. Murrell, Jr., is presently before us on complaint of The Florida Bar and report of referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to article XI, Rule 11.09(1) of the Integration Rule of The Florida Bar has been filed.

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

1.At all times material, respondent was and is Attorney of Record for William J. Owens, Jr.
2. On February 20, 1979, a final decree of divorce ... was entered by the court in the dissolution proceeding styled Dorothy A. Owens, Petitioner and William J. Owens, Jr., Respondent. Pursuant to that final judgment certain real property located in Osceola County, Florida, solely owned by Dorothy A. Owens was conveyed to William J. Owens by quit claim deed ... executed February 20, 1979 and recorded February 20, 1979 in Osceola County, Florida.
3. On March 1, 1979, William J. Owens conveyed to Bernice Heath by general warranty deed ..., recorded March 30, 1979, in Osceola County, Florida that parcel of property referred to in paragraph 2 above.
4. On October 2, 1979, William J. Owens, Jr. recorded in Osceola County, Florida, a quit claim deed .. . dated February 16, 1979 conveying title to the aforesaid property to William O. Murrell, Jr. and the Edgewater Mortgage Company.
5. The parties agree there exists a real and present controversy with reference to the contention of The Florida Bar that respondent “backdated” the February 16 quit claim deed referred to in paragraph 4.
6. The Florida Bar contends that the February 16, 1979 quit claim deed from William J. Owens, Jr. to William 0. Mur-rell, Jr., P.A. and Edgewater Mortgage Company was backdated because:
(a) The legal description of the property conveyed is preceded by a prefix “THE WEST 153.5 feet of the following described land:”
(b) William J. Owens, Jr. was never known to use the suffix “Jr.” until a point several months after the execution of the deed.
7. Evidence available to the parties would substantiate paragraph 6 above, as follows:
(a) The legal description of the real estate concerned herein was written without the prefix referred to in paragraph 6(a) above until the warranty deed from William J. Owens to Bernice W. Heath ... dated March 1, 1979. Mrs. Heath discovered, in attempting to record the warranty deed, that without the prefix, the deed conveyed more land than was owned by grantor, William J. Owens. She consulted a title company, which advised her, after researching the matter, that with the prefix referred to hereinabove, the description would be correct and would convey proper title. The deed was subsequently corrected and recorded.
(b) The description in the deed conveying title to William J. Owens from his former wife, Dorothy A. Owens on February 20, 1979 . . ., subsequent to the date on which Mr. Owens tried to convey his title to William Murrell, Jr., P.A. and Edgewater Mortgage Company (which was February 16, 1979) was identical to the subsequent warranty deed of March 1, 1979 to Bernice W. Heath except for the aforesaid prefix.
(c) The description on the deed by which Mrs. Dorothy A. Patrick (later to marry William J. Owens and become Dorothy A. Owens) obtained title on June 16, 1969 was identical in all pertinent respects to the description in the deed which she gave William J. Owens on February 20, 1979 .... However, she conveyed two parcels of that land to other parties, prior to February 20, 1979, thereby making the description in the quit claim deed to William J. Owens of February 20, 1979 incorrect as covering more land than she could convey.
(d) The respondent in this case represented William J. Owens in matters concerning his divorce from Dorothy A. Owens, including a property agreement which provided for the deeding of this identical real property to Mr. Owens, and which agreement was incorporated by reference in the final decree of divorce dated February 20, 1979. The legal description of the real property contained in the property settlement agreement, to which respondent was a witness of Mr. Owen’s signature, did not contain the prefix hereinbefore referred to, but rather contained the same description which Mrs. Heath later discovered to be faulty.
(e) The quit claim deed dated February 16, 1979 . .., which purported to convey the title to the real property to William Murrell, Jr., P.A. and Edge-water Mortgage Co., contained the hereinbefore mentioned prefix “The West 153.5 feet of the following described land:”
(f) The grantor of the deed of February 16, 1979 ..., was “William J. Owens, Jr.” an appellation not used at that time by Mr. Owens. Respondent only learned of the fact that Mr. Owens was a “junior” at some point in March or April of 1979. Mrs. Heath was present at a conversation in March or April, 1979, in which respondent expressed surprise to learn that Mr. Owens was “junior”. None of the deeds or other instruments in which Mr. Owens was grantor, grantee, party or witness used the suffix “Jr.” with the exception of the February 16, 1979 quit claim deed until a rental agreement of July 18, 1979 between Bernice Heath, “landlord” and William J. Owens, Jr., “tenant” and which rental agreement was for the same parcel of real property as was covered by the warranty deed of March 1, 1979 to Mrs. Heath .... Mr. Owens did not object to the styling of Mrs. Heath as “landlord” or to himself as “tenant”, and signed the agreement on that date.
(g) However, on October 2, 1979, he recorded a quit claim deed ... to the same real property, dated February 16, 1979, from himself as grantor to “William Murrell, Jr., P.A. and Edgewater Mortgage Co.,” grantee. In this deed, the legal description contains the prefix “The West 153.5 feet of the following described land:” and shows grantor’s name to be “William J. Owens, Jr.” This deed was prepared in respondent’s office.
(h) Mrs. Heath listed the real property in question for sale with Mr. and Mrs. R. C. Crotty, realtors of C & D Realty Co., Kissimmee, Florida on July 23, 1979. Sometime in late Fall, 1979, Mrs. Heath and a person she introduced as WILLIAM OWENS came to the Crotty’s office. Mr. Owens appeared to be under the influence of alcohol and was very outspoken. Mr. and Mrs. Crotty were prepared to testify that at that conference, Mr. Owens had stated that his attorney had prepared a Quit-Claim deed and backdated it and then had it recorded. Both Mr. and Mrs. Crotty can identify the February 16,1979 deed ... as the one Mr. Owens was referring to. At Pre-Trial Conferences with the Respondent’s attorney, Mr. Owens denied that he had ever made any statement to Mr. and Mrs. Crotty to the effect that his attorney had ever backdated a Quit-Claim deed. In fact, Mr. Owens had advised attorney for The Florida Bar and attorney for the respondent that during the period of time in question he was under severe psychological and physical stress and had been for some period of time consuming alcohol in excess. Mr. Owens further told the attorney for The Florida Bar and attorney for the Respondent in preparation for the anticipated trial of this matter, that Respondent had in fact prepared the Quit-Claim deed on February 16, 1979. Mr. Owens further was prepared to testify that the Quit-Claim deed .. . was in fact prepared on February 16, 1979, and that he, Mr. Owens removed this QuitClaim deed from the Respondent’s office without the latter’s knowledge, consent or permission. Mr. Owens was further prepared to testify that on October 2, 1979, he personally recorded the Quit-Claim deed . .. with the Clerk of the Circuit Court, Osceola County, Florida without the knowledge, consent or permission of the Respondent. Mr. Owens stated that at no time did the Respondent have any knowledge whatsoever that the Quit-Claim deed had been taken from Respondent’s office, nor that the deed was to be recorded. Mr. Owens further stated that the purpose of his filing the Quit-Claim deed was to prevent loss of the aforesaid property to Bernice W. Heath.
8. The testimony from Respondent’s wife, Mrs. Joan C. Murrell, and Respondent’s secretary, Ms. Jean R. Penkacik, would have demonstrated that the February 16, 1979 deed was prepared, witnessed and notarized in Respondent’s office and that the notarization of the grantor’s signature on that date shown on the deed was in fact February 16, 1979, as indicated.
9. All of the matters alluded to in this stipulation are the subject of litigation currently pending in the Circuit Court in and for Osceola County, Florida, in which the Complainant is Defendant and Mr. Murrell’s client is Plaintiff, ....

The referee recommends that respondent be found guilty of violation of DR1— 102(A)(4), DR1-102(A)(5), DR1-102(A)(6) and DR7-102(A)(7) of the Code of Professional Responsibility and recommends that respondent receive a public reprimand, to be administered by the Board of Governors of The Florida Bar.

We approve the referee’s findings, however, the publication of this opinion in the Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $294.15 are hereby taxed against Respondent.

It is so ordered.

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


source: Caselaw Access Project

author: McDonald, justice.

license: Public Domain

text:
    HOSPITAL MORTGAGE GROUP, etc., Petitioner, v. FIRST PRUDENTIAL DEVELOPMENT CORP., et al., Respondents.
    No. 60156.
    Supreme Court of Florida.
    March 4, 1982.
    Edward A. Perse of Horton, Perse & Ginsberg; and the Law Offices of Malspeis, Lococo, Brown & Schwartz, Miami, for petitioner.
    John H. Lewis, and Stanley J. Mann of Mann, Dady, Corrigan & Zelman, Miami, for respondents.
   McDonald, justice.

This case is before us on a petition to review a decision of a district court, reported at 390 So.2d 767 (Fla. 3d DCA 1980). Because that decision conflicts with Thomson v. Kyle, 39 Fla. 582, 23 So. 12 (Fla.1897), we have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We disapprove the district court decision.

The issue here is whether a prospective borrower, in an action for damages against a lender for its premature withdrawal of a commitment to loan funds, must prove that it had, or could have, fulfilled the conditions required under the contract to close the loan.

Petitioner, Hospital Mortgage Group, a trust, is in the business of lending money. It was the defendant and appellee below. Respondents are real estate developers who were the plaintiffs and appellants below. On November 27, 1973 the parties entered into two agreements, identical mortgage commitments, to provide financing for the construction of motels in Augusta, Georgia, and Rock Hill, South Carolina.

The commitments contained a number of requirements to be met by respondents and stated that the commitments “expired” on December 12, 1973. The documents that respondents were responsible for were to meet the approval of the lender’s attorney.

The December 12th expiration date passed without the respondents complying. The parties met on December 31, 1973 and agreed to extend the commitments although they did not set a new expiration date. Work on the closing continued until April 27, 1974 when petitioner advised the respondents that the commitments were terminated. By letter dated May 7, 1974 petitioner outlined respondents’ failure to comply in furnishing the documents and the passage of time as the reasons for termination. The documents that had been furnished by the respondents were returned.

Unable to find another lender, respondents leased the properties and brought suit for breach of contract damages. The trial was on liability only, and the trial court found that the lender “did not effectively terminate the two commitments” and that the borrower had not complied with the conditions precedent to the contracts. The court then granted the respondents thirty days to complete submission of the documents or else the lender’s commitments would be terminated.

The respondents appealed stating that because five years had passed since the termination it was impossible to comply. The district court reversed, finding that an anticipatory repudiation by petitioner obviated the respondents’ duty to tender all of the documents. The petitioner asserts that the termination was due to the respondents’ inability to obtain the required documents, and, therefore, respondents were not “ready, willing and able” to comply. The original commitment was for sixteen days, and the extended time ran for almost nineteen weeks.

The district court correctly found that the petitioner-lender had committed an anticipatory repudiation when it unequivocally terminated the two agreements. The correct way to terminate a contract after an extension to which no new termination date is fixed is to give the parties notice and a reasonable amount of time to attempt compliance. See Felt v. Morse, 80 Fla. 154, 85 So. 656 (Fla.1920); Sound City, Inc. v. Kessler, 316 So.2d 315 (Fla. 1st DCA 1975).

In dealing with anticipatory repudiations the law is clear that a repudiation gives rise to a claim for damages by the nonbreaching party. As stated in Restatement (Second) of Contracts § 253 (1979):

(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the. agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.
(2) Where performances are to be exchanged under an exchange of promises, one party’s repudiation of a duty to render performance discharges the other party’s remaining duties to render performance.

Therefore, the nonbreaching party is relieved of its duty to tender performance and has an immediate cause of action against the breaching party. Poinsettia Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306 (Fla.1936). This alone, however, does not entitle the nonbreaching party to damages. Anticipatory repudiation obviates the requirement that the conditions be performed, but not that they be performable.

As stated in the Restatement (Second) of Contracts § 254 (1979):

(1) A party’s duty to pay damages for total breach by repudiation is discharged if it appears after the breach that there would have been a total failure by the injured party to perform his return promise.

The term “total failure” is defined in the comment to this section as:

A failure is total in this context if it would have been sufficient to have discharged any remaining duties of the party in breach to render his performance. See § 242. The result follows even if it appears that the failure would have been justified and not a breach. Cf. § 244.

Id. at comment a (1979).

This reasoning is in accord with Thomson v. Kyle, 39 Fla. 582, 23 So. 12 (Fla.1897), and Slaughter v. Barnett, 114 Fla. 352, 154 So. 134 (Fla.1934), requiring compliance with the contract provisions. In those decisions performance or tender of performance of conditions precedent was required as a prerequisite to recovery. The holder of the duty based upon a condition precedent cannot profit from an anticipatory repudiation of a contract that he would have breached himself. It follows that if performance of the conditions precedent is excused the ability to perform them must still be shown.

In the complaint the respondents alleged that they had provided all of the documents required by the agreements and had satisfied all acts required by the agreements with the exception of the time limitations. At trial, however, the judge found, and the district court concurred in his finding, that the respondents had not complied with the conditions precedent to the contracts. The sole reason for the extension of time was so that the respondents could correct their defective tender of the conditions precedent. The petitioner alleged and proved that this noncompliance caused the extension and that it continued through the termination date. Taking the facts as a whole then, to allow recovery by the respondents is to give them credit for doing what they were unable to do even after the termination date had been extended by nineteen weeks.

The rule of law followed by the district court is correct in that the respondents are able to bring suit on the anticipatory repudiation, but is incorrect in allowing recovery when they are unable to prove that they could have performed. The commitments involved are complex financing agreements that require the submission of numerous independent legal documents. The lack of any one may be fatal to the entire set of conditions precedent and thus to the petitioner’s duty to lend the sums involved.

When the lender causes an anticipatory repudiation of a loan commitment after an extension of the termination date, the nonbreaching party is required to plead and prove compliance with all conditions precedent or the ability to comply if the performance has been excused by the repudiation. Because the trial court found that the plaintiffs-respondents had not complied with the conditions precedent and the evidence was insufficient to support a finding that they could have performed them, we quash the decision of the district court and remand for it to order the trial court to issue a judgment for the petitioner.

It is so ordered.

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

ADKINS, J., concurs in result only.

       This rule is stated in 4 A. Corbin, Contracts § 978 (1951):
      § 978. Ability to Perform Remains a Condition even Though Actual Tender of Performance is Eliminated
      In an action for breach by an unconditional repudiation it is still a condition precedent to the plaintiff’s right to a judgment for damages that he should have the ability to perform all such conditions. If he could not or would not have performed the substantial equivalent for which the defendant’s performance was agreed to be exchanged, he is given no remedy in damages for the defendant’s non-performance or repudiation. Of course, the willingness and ability that remains a condition precedent in spite of the defendant’s repudiation, is willingness and ability to perform if there had been no repudiation. The defendant’s wrongful repudiation justifies the plaintiff in taking him at his word and at once taking steps that may make subsequent performance impossible. The willingness and ability to perform need not continue after the repudiation; it is merely required that they should have existed before the repudiation and that the plaintiff would have rendered the agreed performance if the defendant had not repudiated.
      (Footnote omitted.)


author: PER CURIAM.

text:
    Howard HADLEY, Petitioner, v. DEPARTMENT OF ADMINISTRATION, Career Service Commission, and Department of Professional & Occupational Regulation, Respondents.
    No. 60321.
    Supreme Court of Florida.
    March 4, 1982.

      Geoffrey B. Dobson of Meredith, Dobson & Cushman, St. Augustine, for petitioner.
    Drucilla E. Bell, Asst. Gen. Counsel, Dept, of Professional Regulation, Tallahassee, for respondents.
   PER CURIAM.

By notice invoking our discretionary jurisdiction, we have for review a decision of the District Court of Appeal, Fifth District (Hadley v. Department of Administration, etc., 392 So.2d 1023 (Fla. 5th DCA 1981), on grounds that it expressly and directly conflicts with a prior decision of the District Court of Appeal, Third District (Engel v. State Department of Transportation, 341 So.2d 1020 (Fla.3d DCA 1977)). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Petitioner, Howard Hadley (hereinafter petitioner), was chief counsel for the Florida Real Estate Commission headquartered in Orlando from 1974 to 1979. In 1979, as part of the reorganization of the Department of Professional and Occupational Regulation (hereinafter department), petitioner and all other attorneys employed by the real estate commission were notified that they were to become department staff and would be transferred to the department’s Tallahassee headquarters. The changes also required that petitioner be demoted from the position of Attorney IV to that of Attorney III.

The department mailed petitioner a certified letter explaining the planned transfer on September 26, 1979. Petitioner never claimed the letter, which contained insufficient postage, from the post office, but learned of his transfer and demotion at a meeting with two departmental representatives on September 27, 1979.

On October 22, 1979, the department, in response to a letter from petitioner dated October 5, 1979, confirmed the transfer and demotion and informed him that he was to begin work in Tallahassee on November 19, 1979. He was also notified that failure to report on that date would result in application of Rule 22A-7.10(2)(a), Florida Administrative Code, which provides:

An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service. An employee who separates under such circumstances shall not have the right of appeal to the Career Service Commission; however, any such employee shall have the right to petition the Department of Administration for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

By notice dated November 5, 1979, petitioner appealed his transfer and demotion to the Career Service Commission [hereinafter commission]. In reviewing the appeal, the Director of Personnel, Career Service Commission, Department of Administration, found that petitioner had been notified of the transfer by the department’s letter of September 26, despite his failure to claim the same from the post office, inasmuch as he had admitted to knowledge of the information which the letter contained. The director thus rejected petitioner’s appeal because it did not comply with Rule 22A-10.05(a), Florida Administrative Code, which requires that such an appeal be filed within twenty days of notice of the action being appealed.

On December 12, 1979, petitioner was notified by the department that because of his failure to report for work in Tallahassee on November 19, he was considered to have abandoned his position. Petitioner appealed the abandonment ruling to the commission, contending that, in fact, he had been improperly dismissed by the department. On review, the director of personnel disagreed, finding that petitioner’s “refusal and failure to report for duty constitutes willful abandonment of position, as contemplated by the State Personnel Rules and Regulations.”

Following the Department of Administration’s final decision, petitioner appealed the same to the District Court of Appeal, Fifth District, arguing that the Department of Professional and Occupational Regulation’s failure to affix sufficient postage to its letter of September 26 prevented the same from constituting notice. The district court agreed, but found the question moot because petitioner had “voluntarily abandoned his position by failing to report for work in Tallahassee.” Hadley v. State at 1025. The court further observed as follows:

There is no procedure enunciated in chapter 110, Florida Statutes, or in the Personnel Rules implementing chapter 110 which provides that notice of appeal to the Career Service Commission stays the effect of a department decision ordering a transfer. Appellant’s proper course of action would have been to file his notice of appeal and report as ordered. By failing to report, appellant voluntarily abandoned his position and with it, his right to appeal.

Id. at 1025. The petition for review by this Court followed the district court’s decision.

Petitioner argues that the due process clauses of the United States and Florida constitutions require that a career service employee found to have “abandoned” his job pursuant to Rule 22A — 7.10(2)(a), be given a hearing before the commission. We do not agree, however, that petitioner’s due process rights were violated, and are of the opinion that the procedures followed herein, which were those established by the rules, provide adequate safeguards for one in his situation.

Petitioner cannot question the propriety of the personnel director’s ruling on his appeal of transfer. Although he failed to timely file his petition for appeal and thus had the same rejected, he was given the opportunity for a hearing on the rejection. We find no shortcomings in that portion of the proceedings.

Regardless of the preceding, petitioner contends that the commission’s failure to provide him a hearing on the department’s determination of abandonment violated his due process rights. We disagree.

As noted earlier, under the terms of rule 22A — 7.10(2), one who is deemed to have abandoned his job and resigned by virtue of an unauthorized absence of three consecutive workdays has no right of appeal to the commission. Such a person may, however, petition the Department of Administration for review of the facts in the case and a ruling as to whether the circumstances constitute abandonment. Petitioner did so here, and the director of personnel affirmed the finding of abandonment after reviewing the facts.

Contrary to respondent’s explanation of the process, the department’s ruling on the petition for review was final and binding on both parties. Respondent apparently confuses the procedure to be followed in an appeal of a ruling of abandonment with that to be followed in an appeal of a transfer ruling; its brief states that petitioner, pursuant to rule 22M-2.04(2)(b), had an opportunity to appeal the director of personnel’s affirmance of the abandonment ruling in writing or in an informal proceeding and thus that there was an opportunity for the hearing required by due process. That is incorrect. Rule 22M-2.04(2)(b) pertains to appeals before the commission and did not apply to the appeal of the ruling of abandonment. The director of personnel’s ruling was final, and the correct course of action after its rendition was an appeal to the district court. That is not to say, however, that we agree with petitioner that he was denied his rights by the established procedure.

As we have noted in the past, “[t]he extent of procedural due process protections varies with the character of the interest and nature of the proceeding involved.” In Interest of D.B., 385 So.2d 83, 89 (Fla.1980). The United States Supreme Court observed similarly in stating that “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” Matthews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). There is, therefore, no single, unchanging test which may be applied to determine whether the requirements of procedural due process have been met. We must instead consider the facts of the particular case to determine whether the parties have been accorded that which the state and federal constitutions demand.

We are of the opinion that petitioner was given sufficient notice and opportunity to be heard. When informed by the department that he was considered to have abandoned his job, petitioner was entitled to, and indeed did, petition the state personnel director for a review of the facts of the case in order to determine whether the circumstances thereof constituted abandonment. The personnel director reviewed the facts and by letter detailed his reasons for affirming the finding of abandonment. The procedure that was followed assured petitioner a chance to explain his objections to an impartial third party and provided him an explanation of why the reviewing authority ruled as it did.

Several considerations further convince us that petitioner’s due process rights were protected. First, “procedural due process in the administrative setting does not always require application of the judicial model.” Dixon v. Love, 431 U.S. 105, 115, 97 S.Ct. 1723, 1729, 52 L.Ed.2d 172 (1977). Thus the formalities requisite in judicial proceedings are not necessary in order to meet due process requirements in the administrative process. The observations made by this Court in State ex rel. Williams v. Whitman, 116 Fla. 196, 150 So. 136, 156 So. 705 (1934), regarding proceedings before the state board of dental examiners are relevant here:

[CJharges before boards, such as the state board of dental examiners, need not be stated with the technical nicety or formal exactness required of pleadings in the courts, nor are the proceedings before the board required to conform in every respect to that controlling in strictly judicial proceedings.
* * * * * He
[I]n such proceedings it is sufficient if the accused is informed with reasonable certainty of the nature and cause of the accusation against him, has reasonable opportunity to defend against attempted proof of such charges, and the proceedings are conducted in a fair and impartial manner, free from any just suspicion of prejudice, unfairness, fraud, or oppression.

Id. 156 So. at 709-10. The proceedings pertaining to petitioner’s abandonment his job complied with the standards enunciated in Whitman.

Another factor which must be considered in determining the propriety of the procedure followed is the competing interests of the parties involved. In City of Miami v. St. Joe Paper Co., 364 So.2d 439 (Fla.1978), we observed as follows:

In determining whether state action violates due process principles, a court must choose between protecting the individual’s guaranteed rights on one hand and the welfare of the general public on the other. This method of determining whether a state meets the requirements of due process is called the “balancing of interest” test.

Id. at 444.

Petitioner’s interest was in retaining his job and being accorded a sufficient hearing and he argues that the commission should be required to determine whether he actually abandoned his job. The state and public, however, have an interest in replacing public employees that do not work. Rule 22A-7.10(2)(a) recognizes that interest and, by facilitating elimination of those who do not report to work for a certain time, promotes it.

Considering the interests involved here, job security and retention as opposed to swift replacement of ineffective public employees, we think that the rule strikes a fair compromise. Petitioner was granted review of the abandonment ruling, but the state was not forced to go through an extended formal procedure. The balance struck accorded petitioner that which he is due, but recognized and promoted the public’s interest.

We also note that petitioner was assured judicial review of the administrative proceedings leading to the determination of abandonment. While subsequent judicial proceedings do not justify the lack of notice and a hearing at the administrative level, it is, in this case, added assurance that petitioner received the consideration which due process requires.

Petitioner cites the Engel decision as proof that his due process rights were violated, but we find his reliance thereon to be misplaced. In that case, Mr. Engel was notified by his employer, the Department of Transportation, that he was being transferred to a workplace thirty-eight miles from his home. Since he did not have an automobile, Mr. Engel felt that the transfer was, constructively, a discharge. When he failed, for three days, to report for work at the assigned place, he was found to have abandoned his job. Thereafter he filed a timely appeal with the Career Service Commission requesting a hearing on the propriety of the transfer. The request was denied.

On review, the District Court of Appeal, Third District, found that the Department of Transportation had erred in denying the hearing on the propriety of the transfer. Noting that Rule 22A — 10.05A, Florida Administrative Code, guarantees a career employee an appeal of a transfer, the court observed as follows:

By denying him a hearing, [Mr. Engel] was deprived of his constitutional right to due process; he was entitled to have a determination of the propriety of his transfer and whether or not he was constructively discharged.

Engel at 1021.

Petitioner argues that Engel and several other cases cited establish that an employee is entitled to a hearing on whether the failure to report to a new job location upon being transferred constitutes abandonment of employment. Petitioner further argues that in his case the district court, in effect, held that the state personnel director’s determination of abandonment is not appeala-ble and that no due process hearing need be held. We, however, disagree with petitioner’s interpretation of the case.

There are several significant distinctions between the facts in Engel and those in the case at bar. The petitioner and Mr. Engel both requested hearings on the transfers ordered by their employers, both of which were refused. The third district court specifically noted that Mr. Engel’s request was timely filed. In contrast, petitioner’s was not. Rule 22A-10.05(3)(a) provides that a permanent status employee has twenty days in which to appeal to the commission any transfer, if he desires to do so. Thus, the department’s rules provided petitioner the opportunity for a hearing on the propriety of his transfer, and it was by his neglect alone that said opportunity was lost. There was no similar justification for the denial of a hearing for Mr. Engel, and so the third district court properly ordered that he be provided that which the rules guaranteed. The due process violation which was remedied in Engel was not present in the case sub judice.

Petitioner also relies on Engel as support for his argument that due process requires that he be given a hearing before the commission on the matter of whether he actually abandoned his job or was constructively dismissed. Again, however, there are distinctions in the facts of the two cases.

The third district held that Mr. Engel “was entitled to have a determination of the propriety of his transfer and whether or not he was constructively discharged.” En-gel at 1021. The court then ordered that the state personnel director and commission accord Mr. Engel the requested hearing. We interpret the district court’s decision as requiring that the commission provide a hearing on the propriety of the transfer and that the state personnel director review the question of whether Mr. Engel’s actions constituted abandonment of position. We do not agree with petitioner that the third district held that due process mandates a hearing before the commission on the abandonment question.

Our interpretation of the Engel ruling complies with the provisions of Rule 22A-7.10(2)(1), which provides, with regard to one who is deemed to have abandoned his job:

An employee who separates under such circumstances shall not have the right of appeal to the Career Service Commission; however, any such employee shall have the right to petition the Department of Administration for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

Petitioner’s argument that the Engel decision mandates a hearing, on the question of abandonment, before the commission rings hollow. The Engel court ordered a hearing before the commission on the propriety of a transfer because Mr. Engel had timely requested the same. Petitioner’s request was untimely. As for the abandonment question, the Engel court ordered a review of the facts by the state personnel director. Petitioner was accorded that review. Nothing more is required.

We also disagree with petitioner’s contention that the availability of an appeal to the commission, when there are conflicting facts or a dispute over whether the employee’s acts constitute abandonment, is a matter for determination by the commission. Rule 22M-2.04(2)(b) states that the state personnel director, in addition to determining whether an appeal has been timely filed, is to “determine whether the appeal is within the subject matter jurisdiction of the Commission.” It is thus his responsibility to decide whether there was an abandonment, and if the appealing party is not satisfied with said decision, it may pursue the challenge procedure established by the rule. The commission itself does not review rulings of abandonment to determine whether they are valid.

In closing, we consider petitioner’s contention that he was not given valid notice of the planned transfer because the department failed to affix sufficient postage to the letter informing him of the plans. As noted before, the district court agreed with petitioner on this point but found that the issue was moot because petitioner had voluntarily abandoned his job. We do not agree that the notice given was flawed as a result of the insufficient postage, because petitioner clearly demonstrated a complete familiarity with the contents of the letter and because department personnel, when they met with petitioner, thoroughly explained the planned changes. The record indicates that petitioner was well aware of the department’s plans and of what he could and should do in response thereto, and persuades us that the notice given was sufficient.

Having considered each of the points on review, and finding that none warrant reversal of the district court’s ruling herein, the same is hereby approved.

It is so ordered.

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


author: ADKINS, Acting Chief Justice.

text:
    DOCTOR’S HOSPITAL OF HOLLYWOOD, INC., Petitioner, v. Hunter W. MADISON, et ux., Respondents.
    No. 60599.
    Supreme Court of Florida.
    March 4, 1982.
    Mark Hicks of Daniels & Hicks, Miami, and the Law Offices of Mottlau & Wake-field, Miami, for petitioner.
    Larry Klein, West Palm Beach, and the Law Offices of Rubin & Rubinchik, Hollywood, for respondents.
   ADKINS, Acting Chief Justice.

We have for review a decision of the District Court of Appeal, Fourth District, (Doctor’s Hospital of Hollywood, Inc. v. Madison, 404 So.2d 132 (Fla. 4th DCA 1981)), which is certified to be in direct conflict with a decision of another district court of appeal (Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981)). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Respondent, Hunter W. Madison (plaintiff below, hereinafter plaintiff), filed a medical mediation claim against petitioner, Doctor’s Hospital of Hollywood, Inc. (defendant below, hereinafter defendant), alleging that defendant and a doctor were negligent in an operation performed on plaintiff in 1971. Upon receiving notice of the medical mediation claim, defendant’s administrator forwarded the same to defendant’s parent corporation which turned the matter over to its attorneys. Because, however, of this Court’s decision in Aldana v. Holub, 381 So.2d 231 (Fla.1980), holding the Medical Mediation Act unconstitutional and all proceedings thereunder void, no answer was filed and the matter was not pursued. Plaintiff thereafter filed in circuit court a complaint alleging negligence on defendant’s part, a copy of which was served on defendant’s administrator on April 3, 1980.

According to an affidavit filed in the circuit court, the administrator, who is not an attorney, mistakenly assumed that the summons and complaint with which he was served were “subsequent filings” in the medical mediation action and so he failed to answer the same or to forward them to the parent company. Because of defendant’s failure to respond to the complaint, the clerk of the circuit court entered a default on May 15, 1980. On August 27, 1980, plaintiff filed a motion for default judgment which was granted on October 10, 1980.

On January 15, 1981, defendant filed a motion alleging that the default should be set aside on the basis of mistake and excusable neglect and that defendant could raise as a defense to the action the statute of limitations. The circuit court denied the motion and defendant appealed the order to the District Court of Appeal, Fourth District.

In the district court, plaintiff filed a motion to dismiss the appeal on jurisdictional grounds. The court granted the motion, stating that it was adhering to its ruling in Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla. 4th DCA 1980), and certified that its decision was in direct conflict with the Third District Court of Appeal’s Silva decision. This review followed.

In Caribbean Agencies the Fourth District Court of Appeal was presented with an appeal of an order denying a motion to vacate a default judgment, as in the present case. In dismissing the appeal, the court held as follows:

This appeal brings before us an order denying a motion to vacate a default. We determine that since such an order is not appealable under either Rule 9.110 or Rule 9.130, Florida Rules of Appellate Procedure, we are without jurisdiction to consider this appeal. Moody v. Moody, 371 So.2d 553 (Fla. 2d DCA 1979).

384 So.2d at 281.

In Silva, the third district court was likewise confronted with the question of whether an order denying a motion to vacate a default is appealable under Rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure (1977). That court held that it is appealable “because it determines the liability in favor of a party seeking affirmative relief ... . ” 392 So.2d at 1006. In so holding, the court expressly adopted the reasoning of Judge Hersey’s special concurrence (which despite its label, was actually a dissent) in Caribbean Agencies. We agree with the third district’s resolution of this question for several reasons.

First, there is the language used in rule 9.130, which provides for review of non-final orders of lower tribunals which “determine the issue of liability in favor of a party seeking affirmative relief.” Plaintiff argues that an order refusing to set aside a default judgment merely preserves the status quo and that liability is determined with rendition of the default order. Thus, he continues, “by no stretch of the imagination can it be said that an order denying a motion to vacate determines liability.” We disagree.

An order denying a motion to vacate a default determines liability just as certainly as does an order of default. Webster’s Third New International Dictionary, Unabridged, defines “determine” as, among other things, “to fix conclusively or authoritatively,” “to settle a question or controversy about,” and to “decide by judicial sentence.” An order denying a motion to vacate a default judgment conclusively or authoritatively decides that the liability imposed by the default order will not be vacated. It settles the question or controversy, deciding by judicial ruling that the movant shall be liable as found in the original order. We agree that an order of default determines liability under rule 9.130(a), but, we find that an order denying a motion to vacate default does too. Both are appealable under the wording of the rule.

Plaintiff also argues that in light of the wording of Rule 4.2(a), Rules of Appellate Procedure (1962 Revision), the forerunner of rule 9.130, the language of the current rule prohibits review of the order here in question. Rule 4.2(a) specifically provided for interlocutory appeal from “orders granting or denying motions to vacate defaults .. .. ” Rule 9.130, in contrast, makes no specific provision for review of such orders, and the committee note to it states that it “substantially alters” the practice from that under rule 4.2(a). We do not agree, however, that the change indicates an intent to prohibit appeals like that dismissed in the case sub judice.

We find that the “substantial alteration” resulting from the change in language was the elimination of appeals of orders granting motions to vacate default. Such an order does not “determine the issue of liability in favor of a party seeking affirmative relief” and thus is no longer a proper matter for interlocutory review. The new rule need not have eliminated appeals of all orders pertaining to default judgments in order to work a “substantial change.” Barring previously-permitted appeals of orders denying default while still allowing appeal of those granting the same qualifies as such. Thus the change from the wording used in rule 4.2(a) and the committee note to rule 9.130 do not convince us that plaintiff is correct in his argument.

Consideration of the practical result of plaintiff’s interpretation of rule 9.130 also persuades us that defendant’s position is the correct one. Plaintiff’s interpretation, that “liability” is determined by the initial order granting default and that any later order refusing to vacate the default simply preserves the status quo, seems reasonable until implemented.

If plaintiff is correct, then the party against whom the default is rendered might lose its right to appeal before even being made aware of entry of the default. This is so because there is no requirement that a party against whom a default is entered be given notice, and any appeal thereof must be filed within thirty days of entry of the order. The thirty-day period might elapse without the losing party ever knowing what happened.

Under the interpretation which we adopt, however, a party could not lose its right of appeal without notice. An order denying a motion to vacate default, by nature of the procedure involved, provides notice for those involved, and so if any party failed to timely file an appeal it would not be due to ignorance of the proceedings. An interpretation preventing unwitting forfeiture of a right to appeal is preferable to one which permits such.

Plaintiff cites Judge Schwartz’ dissent in Pedro Realty v. Silva as the correct and definitive explanation of why the order here in question is not appealable. In his dissent, the judge argued that an order denying a motion to vacate a default does not fall “within the narrowly-defined and limited class of non-final orders which are subject to interlocutory review,” 392 So.2d at 1006, and concurred with the decisions in Moody v. Moody, 371 So.2d 553 (Fla. 2d DCA 1979), and Caribbean Agencies. In Moody and Caribbean Agencies, the second and third district courts held that the ruling in Praet v. Martinez, 367 So.2d 657 (Fla. 3d DCA 1979), that the granting of a motion to vacate is not appealable, is also applicable where the order in question is one denying a motion to vacate. We do not agree.

In holding that orders granting a motion to vacate default are not reviewable under rule 9.130(a), the Martinez court did not address the reviewability of orders denying such motions. In view of our already-explained conclusions regarding rule 9.130, we believe that the fourth district purposely limited its ruling to orders granting such motions and that the second and third districts erred in extending the rationale of Martinez. Neither that decision nor the language of the rule support the holdings of Moody and Caribbean Agencies. Thus the dissent in Silva, which cites Moody and Caribbean Agencies, and on which plaintiff relies in arguing the non-appealability of the order here, is not good support. Plaintiff’s authorities are not persuasive.

Having considered the arguments of both sides, having interpreted the rule as permitting an appeal of an order denying a motion to vacate a default, and having found that the decisions holding otherwise improperly broaden an earlier ruling, we find that the district court improperly granted plaintiff’s motion to dismiss. The cause is remanded to the district court for proceedings consistent with this opinion.

It is so ordered.

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


author: COWART, Judge.

text:
    COLEMAN MUSIC AND GAMES CO., INC., Appellant, v. Randy A. McDANIEL, Individually, and Randy A. McDaniel, d/b/a Disco Inferno, Appellee.
    No. 81-100.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    Rehearing Denied Nov. 3, 1981.
    Thomas R. Hess of Ossinsky, Krol & Hess, Daytona Beach, for appellant.
    Richard R. Cook of Kane & Cook, P. A. and Carmen F. Corrente, Daytona Beach, for appellee.
   COWART, Judge.

The question presented by this appeal is whether, and under what circumstances, one who holds a judgment against the holder of a negotiable note may receive payment of the note by the maker through garnishment.

Garnishment is available to subject any debt due to a judgment debtor by a third person to the claims of the judgment creditor. § 77.01, Fla.Stat. (1979). Since the maker of a negotiable note is liable to satisfy the note, when due, to the holder of the note, the maker should logically be subject to satisfy the note to a judgment creditor of the holder under the authority of a writ of garnishment. This is so because the garnishor, in enforcing through garnishment a debt due to the debtor, steps into the shoes of the debtor and may assert all the debtor’s rights against the garnishee, and because a maker is justified in paying the note to an agent of the holder where the agent’s authority to receive payment is apparent.

The appellee contends that the rule in Florida is as stated in Huot, Kelly & Co. v. Ely, Candee & Wilder, 17 Fla. 775 (1880), and quoted in Universal G. I. T. Credit Corp. v. Broward Nat’l Bank of Fort Lauderdale, 144 So.2d 844 (Fla.2d DCA 1962), and Hollopeter & Post, Inc. v. Saenz, 133 Fla. 279, 182 So. 906 (1938):

The maker of a negotiable note should not be charged as garnishee of the payee while such note is still current, unless the garnishee has it in his possession or under his control.... ‘The reason of this rule is founded upon the negotiable quality of such note. If the trustee could be charged in such a case, then it might happen that either a bona fide purchaser of the note must lose the amount of it, or the maker, without any fault on his part, be compelled to pay it twice. To avoid such a dilemma the rule was established.’

This statement was unnecessary to the holdings of all three cases, since, in each case, before service of the writ of garnishment a negotiable instrument had been negotiated to a third party and was not in the possession of the judgment debtor; there was therefore no debt due under the instrument to the judgment debtor which could be garnished. Furthermore, the statement is not correct in all instances.

Where a single payment note is mature, or where maturity on one or more payments has been reached before service of the answer to the writ of garnishment, the garnishor can establish that the judgment debtor is the holder of the note at the time, requiring the garnishee to pay the note to the garnishor cannot subject the garnishee to liability to a holder in due course to whom the judgment debtor subsequently negotiates the note because, as to overdue payments, there can be no holder in due course. § 673.302(l)(c), Fla.Stat. (1979).

The instant case involves a note requiring monthly payments; the trial judge dissolved the writ of garnishment seeking to require payment of this note to the appellant-garnishor on the ground that payments under a note cannot be garnished as a matter of law. The order dissolving the writ is reversed and the cause is remanded; upon remand, the trial judge should subject any monthly payments currently due or past due to garnishment, upon a showing by the garnishor that the judgment debtor still is holder of the note.

REVERSED AND REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Coyle v. Pan American Bank of Miami, 377 So.2d 213 (Fla.3d DCA 1979); Reeves v. Don L. Tullís & Assoc., Inc., 305 So.2d 813 (Fla. 1st DCA 1975).

      . See R. Anderson, Anderson on the Uniform Commercial Code, § 3-603:14 (2d Ed. 1971); Caballero v. Wilkinson, 367 So.2d 349 (La.1979).


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

text:
    Burnice C. BAXLEY, Danny Lee Harvey, Frederick C. Hazelwood, and Glenn Barna, Appellants, v. STATE of Florida, Appellee. Andre TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-36, 80-17, 80-64, 80-65, 80-454 and 80-456.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.

      Joseph W. DuRocher, Public Defender, Glenn Klausman and Thomas E. Doss, III, Asst. Public Defenders, Ninth Judicial Circuit, Orlando, for appellants Baxley, Harvey, Hazelwood, and Barna.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant Taylor.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The question involved in these cases which have been consolidated for appeal is whether specific intent, i.e., the intent to permanently deprive the owner of his property, is a requisite element of grand theft pursuant to section 812.014, Florida Statutes (1979).

In Faison v. State, 390 So.2d 728 (Fla. 5th DCA 1980), this court held that the “intent to permanently deprive” was required and that an information omitting this allegation was fatally defective. See also Bell v. State, 394 So.2d 979 (Fla.1981); State v. Allen, 362 So.2d 10 (Fla.1978); Hilty v. State, 386 So.2d 1236 (Fla.2d DCA 1980). In Allen, the supreme court held that there was no evidence of legislative intent to eliminate specific criminal intent as an element of section 812.014, Florida Statutes (1977). In Bell, the supreme court found specific intent to be a requisite element of robbery and affirmed the definition of specific intent as “the intent to permanently deprive the owner of property.”

This court sitting en banc follows Faison and again holds that specific intent, i.e., the intent to permanently deprive the owner of his property, is a requisite element of section 812.014, Florida Statutes (1979).

The state contended that “the enactment of section 812.014 requires a construction that section 812.041 has been repealed to the extent that it may be in conflict with section 812.014.” We disagree. Section 812.041 provides for an unauthorized temporary use of a motor vehicle, aircraft, boat or boat motor. Interpreting section 812.014 to require an allegation of specific intent to permanently deprive will achieve a field of operation for each statute. The principle was best stated by Chief Judge Dauksch in Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980):

We also agree with the proposition that the legislature is presumed to know its own statutes and when it enacts a new statute, it is done with that knowledge. Tamiami Trail Tours, Inc. v. Lee, 142 Fla. 68, 194 So. 305 (1940). However, we are also guided by the ‘general presumption that later statutes are passed with knowledge of prior existing laws, and a construction is favored which gives each one a field of operation, rather than have the former repealed by implication.’ (citations omitted)

382 So.2d at 1239.

“An indictment or information in the language of the statute is ordinarily sufficient, except where the words of the statute do not contain all of the essential elements of the offense; but, if the statute omits an essential element, the indictment [or information] must supply it with certainty.” United States v. Randolph, 460 F.2d 367, 370 (5th Cir. 1972). In these cases, the informations did not allege the “intent to permanently deprive” and are therefore fatally defective.

REVERSED.

DAUKSCH, C. J., ORFINGER, and SHARP, JJ., concur.

COBB, J., dissents with opinion.

COWART, J., concurs with dissent.

COBB, Judge,

dissenting.

Logically, we must either hold (1) that the enactment of the omnibus theft statute in 1977 by implication repealed section 812.041, Florida Statutes, or (2) that the theft statute contemplates only permanent deprivation of property in order to differentiate it from the misdemeanor offense of unauthorized temporary use contemplated by section 812.041. To me, the former interpretation is clearly indicated despite the rule of construction discussed in Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA), review denied, 389 So.2d 1108 (Fla.1980). The Florida Supreme Court has consistently held that where two statutes are inconsistent, the last expression of legislative will prevails. Askew v. Schuster, 331 So.2d 297 (Fla.1976); Sharer v. Hotel Corp. of America, 144 So.2d 813 (Fla.1962); Overstreet v. Ty-Tan, Inc., 48 So.2d 158 (Fla.1950); Johnson v. State, 157 Fla. 685, 27 So.2d 276 (1946), cert. denied, 329 U.S. 799, 67 S.Ct. 491, 91 L.Ed. 683 (1947).

The crime of theft, whether it be a felony or misdemeanor, is now defined by the 1977 act, which has the following section:

812.014 Theft.—
(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent:
(a) To deprive the other person of a right to the property or a benefit therefrom.

It is patently clear that one who knowingly takes the motor vehicle of another, even without any intent to permanently deprive the owner of the property, fits the above definition. The temporary loss of the vehicle deprives the owner of a right to the property and a benefit from it. Indeed, section 812.012, which defines the terms used in section 812.014, states that “obtains or uses” means any manner of making any unauthorized use of property. Any unauthorized use includes a temporary use as well as one intended to be permanent. How could language be any more clear?

The fact that permanent deprivation was the prior criterion which differentiated the crime of larceny from the misdemeanor offense of unauthorized use does not render it immutable and immune from legislative revision. In Bell v. State, 394 So.2d 979 (Fla.1981), which led this court astray in Faison v. State, 390 So.2d 728 (Fla. 5th DCA 1980), the Florida Supreme Court considered the question of whether or not a change in the language of the robbery statute in 1974 had eliminated the requirement of a specific intent to deprive the owner of the property taken — i.e., the intent to steal as opposed to a taking based upon an innocent mistake of fact or law. Unfortunately, the certified question quoted by the court in Bell parenthetically equated “specific intent” with the permanent deprivation of the owner’s property rather than simply with the intent to steal. See Fountain v. State, 92 Fla. 262, 109 So. 463 (1926); Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922). Whatever may have been the elements of “specific intent” in 1974, which was the controlling date in Bell, that determination does not control the interpretation of legislation enacted in 1977.

In holding that specific intent was still a requisite element of the crime of robbery, Bell did not, in my view, intend to adopt for all time to come the parenthetical definition of specific intent incorporated in the certified question. That was not the question nor the issue before the Bell court.

In the earlier case of State v. Allen, 362 So.2d 10 (Fla.1978), the Florida Supreme Court held that the omission of the word “unlawful” in the 1977 theft statute did not evince a legislative intent to eliminate specific criminal intent as an element of the offense. Nothing in the Allen case requires a construction that the criminal intent in the 1977 theft statute is the intent to permanently deprive the owner of his property as opposed to the correct interpretation: the specific intent to steal. See Fountain; Montsdoca.

In Faison, this court observed that during the 24-year period prior to 1975, “an essential element of larceny was the intent to permanently deprive the owner.” Two cases were cited in support of this proposition: American Fire & Cas. Co. v. Sunny South Aircraft Serv. Inc., 151 So.2d 276 (Fla.1963), and Wethington v. State, 159 Fla. 670, 32 So.2d 458 (Fla.1947).

The American Fire case contains the following language:

It is our conclusion that the substance of the definition [of felonious theft] .. . should be held to mean that the intention to steal, that is to feloniously deprive the owner permanently of his property, a question of fact to be determined by the jury, is an essential element in the crime of larceny. A taking of the personal property of another, without his consent, with the intent to permanently deprive the owner thereof, or the intentional dealing with the property of another, without his consent, in such a manner as to create an unreasonable risk of permanent loss, constitutes an intent to steal.

151 So.2d at 278.

This enunciated definition of felonious theft was changed by the clear wording and intent of the 1977 Florida Legislature so that any unauthorized use, disposition or transfer of the property of another which deprives that person of a benefit therefrom now fits within that definition. Faison simply refuses to recognize the legislative prerogative to define the crime of theft. It is supported in this refusal by the recent Second District Court of Appeal case of Hilty v. State, 386 So.2d 1236 (Fla. 2d DCA 1980), review denied, 392 So.2d 1379 (Fla.1981).

The instant case reaches the anomalous result that informations which track the language of the theft statute verbatim are fatally deficient because of the absence of an allegation pertaining to permanent deprivation. I would hold that such an allegation is no longer necessary since October 1, 1977, and that section 812.041, Florida Statutes (1975), was repealed by implication. I would affirm.

      . Section 812.014(1), Florida Statutes (1979), provides:
      A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent:
      (a) To deprive the other person of a right to the property or a benefit therefrom.
      (b) To appropriate the property to his own use or to the use of any person not entitled thereto.

      . Section 812.041, Florida Statutes (1979), states:
      (1) Any person who temporarily uses any motor vehicle, aircraft, boat or boat motor without the authority of the owner or his representative, or who shall knowingly be a party to such unauthorized use, shall, upon conviction, be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082, § 775.083, or § 775.084.
      (2) Nothing in this section shall be construed to apply to any case in which the taking of the property of another is with intent to steal the same or in which the taking is under a claim of right or with the presumed consent of the owner of other person having the legal control, care, or custody of the same.

      . See § 812.012-812.037, Fla.Stat. (1979).

      . The transcript of the senate committee hearing on the draft of the 1977 model theft statute reveals that the legislative intent at that time was “to eliminate all the common-law defenses that are available under larceny and to eliminate ail the specific larceny crimes ” (emphasis added) so as to consolidate all such crimes into one comprehensive theft act.


author: PER CURIAM. FRANK D. UPCHURCH, Jr.,

text:
    Rosemary SIRIANNI, Appellant, v. STATE of Florida, Appellee.
    No. 80-345.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of first degree murder and sentence of life imprisonment. Appellant was indicted and tried for the murder of Michael G. Armstrong who was killed in Winter Park on May 24, 1978. This was the second time this matter had been tried. The first trial ended in a mistrial.

The first point on appeal is whether the trial court erred in denying appellant’s motions for judgment of acquittal where the appellant alleged that the evidence was insufficient to prove beyond a reasonable doubt that she was sane at the time of the offense.

Appellant relied upon the defense of insanity. At trial, she moved for a judgment of acquittal at the close of the state’s case, arguing inter alia that the state failed to present evidence establishing beyond a reasonable doubt that she was sane at the time of. the alleged offense. The trial court denied the motion.

Appellant then presented expert testimony on the issue of sanity and after rebuttal by the state, renewed her motion for judgment of acquittal. The court again denied the motion.

All persons are initially presumed sane but this presumption vanishes when there is testimony of insanity sufficient to present a reasonable doubt as to the sanity of a defendant, and the defendant is entitled to an acquittal if the state does not overcome the reasonable doubt. Byrd v. State, 297 So.2d 22, 23 (Fla.1974).

In Byrd, the court also reaffirmed the long-standing rule that the question of a defendant’s mental condition at the time of the offense is a question of fact for the jury. 297 So.2d at 24. As such, it is for the jury to determine the credibility of the witnesses and to resolve conflicts in the evidence. Id. See, e.g., Davis v. State, 319 So.2d 611 (Fla. 3d DCA 1975); Clayton v. State, 272 So.2d 860 (Fla. 3d DCA 1973). On appeal, the question is whether the record contains sufficient competent evidence to support the jury’s verdict of sanity. Blatch v. State, 216 So.2d 261 (Fla. 3d DCA 1968).

Four psychiatric experts testified for the defense and opined that appellant could not distinguish between right and wrong at the time of the offense. Dr. Meyers, the first expert, testified she observed and worked with appellant, beginning about three weeks after the Armstrong murder, for a period of two months. She testified that it was her opinion that appellant was suffering a psychotic episode (was not in touch with reality) when she shot Armstrong. On cross-examination, Dr. Meyers admitted that one suffering from a psychotic episode may be able to distinguish right from wrong and be aware of his or her actions. She further admitted that the trauma of the murder could have plunged appellant into the psychotic episode.

Dr. Merikangas, the second defense expert, testified he observed appellant just after her suicide attempt for a two day period and diagnosed appellant as suffering from chronic psychotic depression. He stated that appellant was confused and delusional at the time of Armstrong’s murder.

Dr. Bernstein testified he saw appellant on two occasions at the Orange County jail, approximately seventeen months after the Armstrong murder. His examinations lasted a total of three and one-half hours and he concluded that appellant was suffering from a psychotic disorder best described as a paranoid state. According to Dr. Bernstein, appellant believed Armstrong was trying to have her kill him and at the same time was planning to drive her crazy so that she would kill herself.

Finally, Dr. Backus testified that he examined appellant approximately fourteen months after the murder and diagnosed her as having schizophrenia, schizoaffective type, depressed. On cross-examination, he admitted, however, that even with such a condition, appellant was still able to form an intent to commit an act that she knew was wrong.

In rebuttal, the state produced three psychiatrists who testified that appellant knew the nature and quality of her act and was able to distinguish right from wrong at the time of the act. Dr. Kirkland saw appellant approximately sixteen months after the incident on two occasions for a total of about two hours. He diagnosed appellant as suffering from depression and personality problems, including emotional instability and hysterical and aggressive traits. Dr. Kirkland pointed out that elaborate travel plans arranged and carried out by appellant indicated an absence of mental disorganization and the fact that the gun was fired at Armstrong’s head through a pillow could be viewed as an effort by appellant to avoid detection and apprehension.

Dr. Wilder testified that he examined appellant approximately sixteen months after the incident and he based his conclusion that appellant could distinguish right from wrong on her extensive travel arrangements, use of the pillow over the gun, and the fact that the apartment door was locked after the killing (R.1922-23). These latter factors indicated an intent to avoid detection.

The evidence and the testimony of the various witnesses is conflicting and it was for the jury to determine the weight to be given the evidence and to resolve conflicts in it. There was sufficient competent evidence to support the jury’s verdict of sanity-

The second question raised by appellant is whether the trial court erred in denying over objection, appellant’s request that the jury be instructed as to penalties.

In Tascano v. State, 393 So.2d 540 (Fla.1981), rehearing denied, February 27, 1981, the supreme court held that the jury, upon request, must be instructed as to the minimum and maximum penalties for the offense charged and that failure to do so constitutes reversible error.

Although the jury was advised by the state attorney that the state was not seeking the death penalty in the case, the jury was never told the maximum and minimum penalties under the law; which in this case is life imprisonment with a mandatory minimum of 25 years. The jury must know that appellant would be sentenced to spend her entire life in prison and must serve at least 25 years before she could be released on parole. The fact that the maximum and minimum sentences are the same should not relieve the court from the Tascano requirement. The Supreme Court has said harmless error does not apply where the jury was not made aware of the penalty for the crime charged. We follow the rules and must reverse the conviction and order another trial.

REVERSED AND REMANDED.

DAUKSCH, C. J., and COBB, J., concur.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr.,

dissenting with opinion.

In fairness to the trial judge, it should be noted that the Tascano holding was announced subsequently to the trial. However, he undoubtedly was familiar with this court’s holding in Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980). Murray held that it was harmless error to fail to give an instruction on the maximum and minimum penalties. Murray was reversed by the supreme court at 403 So.2d 417 (Fla.1981).

While, admittedly, my reasoning may be influenced by the logic of Murray, I cannot hold that the trial judge committed reversible error in failing to instruct on the minimum penalty when the only penalty remaining for the offense charged was the minimum. I concur with the majority’s holding that the evidence was sufficient to support the jury’s verdict that Miss Sirianni was sane at the time she committed the crime. Insanity was Miss Sirianni’s only defense, one which the jury clearly rejected. To require a third trial simply because the jury was not told the defendant faced a minimum prison term of twenty-five years offends me and I suspect would offend most persons familiar with the facts of this case. Could any juror be so naive as to be misled because he or she did not understand that such a penalty was, at least, a possibility for premeditated murder? I therefore respectfully dissent.

      . This proposition applies even when the evidence is presented in the state’s case in chief. Hence, when the state has failed to present sufficient evidence to overcome the reasonable doubt, the defendant is entitled to a judgment of acquittal. Farrell v. State, 101 So.2d 130 (Fla.1958); Mitchell v. State, 104 So.2d 84 (Fla. 2d DCA 1958).

      . Here appellant moved for judgments of acquittal and therefore admitted not only the facts in evidence but also every conclusion favorable to the state that a jury might fairly and reasonably infer from the evidence. The trial court was required to submit the case to the jury unless the evidence was such that no view which the jury may lawfully take of it favorable to the state could be sustained under the law. Where reasonable men may differ as to the proof or facts from which an ultimate fact is sought to be established, the court should submit the case to the jury for their finding. Lynch v. State, 293 So.2d 44 (Fla.1974).

      . On cross-examination, Dr. Backus testified that an attempted suicide, in and of itself, does not indicate an inability to distinguish between right and wrong and that suicide can have a rational purpose in a person’s life.


author: LARRY G. SMITH, Judge. WENTWORTH, Judge, LARRY G. SMITH, Judge.

text:
    George D. MAGGARD, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent.
    No. AE-321.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1982.
    As Clarified on Denial of Rehearing March 1, 1982.
    Rehearing Denied April 5, 1982.

      Richard A. Belz, Gainesville, for petitioner.
    Gregory C. Smith, Asst. Atty. Gen., for respondent.
   LARRY G. SMITH, Judge.

Petitioner, an inmate of a Florida prison, by petition for habeas corpus seeks a determination by this court that a detainer based upon a charge of parole violation, filed by the Commonwealth of Kentucky, is no longer of any force and effect and should be disregarded by the Florida Department of Corrections, because of Kentucky’s failure to return him to that state for disposition of the parole violation charge under the Interstate Agreement on Detainers Act (IAD), Sections 941.45-50, Florida Statutes (1949).

Petitioner concedes that, ordinarily, parole violation detainers are not encompassed by the IAD. He nevertheless asserts that Kentucky, by statutory amendment, has specifically included parole and probation violation detainers within the coverage of its IAD, and that since at least one Florida court, in Gaddy v. Turner, 376 So.2d 1225 (Fla. 2nd DCA 1979), has recognized the application of Florida’s IAD to detain-ers based on probation violations, this court can and should extend the application of Florida’s IAD to detainers based on parole violations. We reject the invitation to so rule and in doing so join the District Court of Appeal, Fifth District, in its determination that Florida’s IAD does not apply to parole violations. Wainwright v. Evans, 403 So.2d 1123 (Fla. 5th DCA 1981).

Kentucky, by amendment enacted in 1976, provided specifically for application of its IAD to “any and all detainers based on unheard, undisposed of, or unresolved affidavits and warrants charging violations of the terms of probation and parole.” Kentucky Revised Statutes, Section 440.455. The amendatory act provided, however, that its requirements “shall be binding only as among and between those party states” which have joined in the amendment. Kentucky Revised Statutes, Section 440.455(1). Florida has not adopted the amendment. Thus, Florida’s IAD today applies, as in its original form, only to “untried indictments, informations, or complaints.” Section 941.-45, Florida Statutes (1979). Based on the reasoning and authorities cited in Wainwright v. Evans, supra, we decline to extend the coverage of Florida’s IAD to unheard or undisposed charges of parole violations.

Petitioner relies heavily upon the Second District’s decision in Gaddy v. Turner, supra. We decline to follow the- Second District’s decision, although we acknowledge that court’s well-reasoned analysis in which it determined, among other things, that the detrimental effect of a detainer upon a prisoner is likely to be the same, whether the detainer is based upon a probation or parole violation, or upon an untried criminal charge. Nevertheless, we think any extension of the coverage of the IAD is not a matter for the judiciary, but rather, falls within the province of the legislative branch, as exemplified by Kentucky’s specific amendments to its law to accomplish the desired purposes.

In view of the Fifth District’s explication on the subject contained in Wainwright v. Evans, we do not deem it necessary to prolong this opinion by extensive discussion. We do, nevertheless, point out that there are obvious and distinct differences between untried criminal charges and undis-posed of parole violations which justify, in our opinion, significantly different treatment in their disposition. A fundamental distinction, for example, is that a parole revocation is not part of a criminal prosecution. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Oaks v. Wainwright, 305 So.2d 1 (Fla.1974). Significantly, the due process requirements attending charges of parole violations under Morrissey v. Brewer, supra, are substantially ameliorated where the parolee is imprisoned pursuant to conviction of an offense while on parole. Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). Here, petitioner admits his lawful confinement in the Florida prison and does not allege or imply that his present imprisonment would not constitute a violation of his Kentucky parole.

We observe that the record before us does not disclose the reasons, if any, given by Kentucky for its failure to respond to petitioner’s request for disposition of his parole detainer. Petitioner alleges his full compliance with the requirements of Section 941.45(3), “Request For Final Disposition” (Form Two), and further alleges that the superintendent of the prison where he is incarcerated executed the “Offer To Deliver Temporary Custody” (Form Four), in compliance with the act, Section 941.45(5). The state’s response does not deny that the necessary documents were filed with the appropriate Kentucky authorities. We presume, in the absence of any other explanation, that Kentucky did not feel compelled to honor petitioner’s IAD request because its own IAD did not require it to do so, since Florida has not joined in the amendment applying to parole violations. We further conclude, as did our Florida Supreme Court in Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), that Morrissey does not require Kentucky to provide an immediate parole revocation hearing either by sending its parole commission to Florida or by recalling petitioner to Kentucky. We cannot, of course, presume to speak for the Kentucky courts, and our decision in no way impinges upon petitioner’s right to seek a dismissal of the parole revocation charge by appropriate court action filed in Kentucky. If successful there, the detainer lodged with the Florida authorities “shall cease to be of any force or effect.” Section 941.45(5)(c).

Accordingly, the order to show cause is discharged, and the petition for writ of habeas corpus is denied.

McCORD, J., concurs.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

I would conclude that the Kentucky IAD amendment with respect to detainers for parole or probation revocation is simply declaratory of the intent and effect of the language of the uniform law as adopted in Florida, which encompasses detainers based on complaints generally as well as indictment or information. § 941.45(3)(a), Florida Statutes. The drafters of the uniform act indicated that intent by comment in defining detainers: “Such detainers may be placed by various authorities under varying conditions, such as when ... a parolee commits a new crime and is imprisoned in another state.... ” [e.s.] Gaddy v. Turner, 376 So.2d 1225, 1227 (Fla. 3d DCA 1979). There seems to me no valid distinction between this case and the decision in Gaddy applying the Florida IAD to probation de-tainers. The differing view of the court in Wainwright v. Evans, 403 So.2d 1123 (Fla. 5th DCA 1981), rests on the assumption that Hofmann v. Wainwright, 332 So.2d 18 (Fla.1976), requires such a result. Hoffman, like the federal decisions therein treated, appears to me to decide only that due process standards do not compel immediate hearings on parole revocation warrants issued on the basis of intervening conviction and imprisonment. Since the court noted that petitioner had never even requested a hearing, I am unable to read into the opinion any intent to construe the Florida IAD, which was then effective but clearly not invoked or discussed.

Conceding the lack of uniformity in construction of the IAD as adopted in various jurisdictions, Wainwright, supra, the better view seems to me that which preserves some potential for certainty and success in prison administration for affected multiple offenders (see Gaddy, supra), as opposed to an overriding concern for parole enforcement convenience which I would hope can be otherwise addressed.

I respectfully dissent.

CLARIFICATION OF OPINION ON PETITION FOR REHEARING

LARRY G. SMITH, Judge.

Petitioner, by motion for rehearing or clarification of our original opinion, alleges conflict with an unpublished order of this court dated May 13, 1981, in the case of Goodson v. Cook, et a 1., Case No. AB-209.

The order in Goodson v. Cook directed the respondent correctional officer to supply petitioner with all forms and documents necessary to seek a final disposition of his parole violation pursuant to the Interstate Agreement on Detainers Act (IAD). Petitioner contends that our decision that the IAD does not apply to parole violation de-tainers conflicts with the order in Goodson v. Cook.

Our decision in Maggard’s case is that the IAD does not “apply” so as to require Florida to disregard a Kentucky detainer based on a parole violation because of Kentucky’s failure to return him to Kentucky upon his request for disposition of the detainer under Section 941.45(3), Florida Statutes, IAD. In clarification, our holding in this case does not in any manner purport to alter the nondiscretionary duties of the official having custody of a prisoner to furnish all necessary forms and documents requested by the prisoner, and to comply with all other requirements of the IAD pertaining to certification of information, forwarding of documents, and notification of disposition requests. Maggard was deprived of none of these services, in contrast with the petitioner in Goodson v. Cook, and we therefore had no occasion to comment upon the clerical and ministerial duties imposed upon custodial officials by the IAD.

The petition for rehearing is denied.

McCORD, J., concurs.

WENTWORTH, J., dissents without opinion.

      .At the outset, we note that petitioner has cited no authority and made no argument to support the premise, implied by his petition, that Florida is either at liberty, or mandated, to unilaterally invalidate or ignore the Kentucky detainer because of Kentucky’s failure to return petitioner to Kentucky for a parole revocation hearing. Without exception, all cases to which we have been referred deal with sanctions imposed by the receiving state, i.e., the state issuing the detainer and in which the untried or unheard charges are pending.

      . This decision was filed on September 23, 1981, subsequent to the dates on which petitioner filed his petition and his reply to the state’s response to the order to show cause.

      . Enact. Acts 1976, ch. 211, § 1, Kentucky Revised Statutes, Section 440.455.

      . The 1976 amendment to Kentucky’s IAD provides, in pertinent part, as follows:
      440.455. Interstate agreement to apply to detainers based on affidavits and warrants charging violation or probation and parole.— Commonwealth of Kentucky is a party to the interstate agreement on detainers and shall be deemed to have contracted with each state joining therein an amendment to said interstate agreement in the form substantially as follows:
      Amendment to the interstate agreement on detainers concerning detainers based on violations of the terms of probation and parole (1) This amendment shall provide additional remedies, and shall be binding only as among and between those party states which specifically execute the same.
      (2) All provisions and procedures of KRS 440.450 shall be construed to apply to any and all detainers based on unheard, undis-posed of, or unresolved affidavits and warrants charging violations of the terms of probation and parole. (Enact. Acts 1976, ch. 211, § 1.)

      . No argument is made here that Florida, by offering temporary custody under the act, is precluded from now contending that its IAD does not extend to parole violations. The offer was not accepted by Kentucky, and petitioner has not changed his position nor been prejudiced in any manner by Florida’s action. Petitioner’s reliance upon O'Connell v. State, 400 So.2d 136 (Fla. 5th DCA 1981), is misplaced, since in that case Florida was the receiving state and did request and obtain temporary custody of O’Connell from Michigan under Florida’s IAD. Had petitioner Maggard been sent to Kentucky pursuant to his request and returned to Florida without having his parole revocation charge disposed of, no doubt an entirely different issue would be presented here. See United States v. Dixon, 592 F.2d 329 (6th Cir. 1979), cert. den. 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056; United States v. Cyphers, 556 F.2d 630 (2nd Cir. 1977), cert. den. 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070, and cert. den. 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 792; and Gray v. Benson, 443 F.Supp. 1284 (D.C.Kan.1978).

      . The language of this subsection itself suggests its nonapplicability to parole violations, since it speaks of dismissal of charges by the appropriate “court” of the jurisdiction where the indictment, information, or complaint “has been pending,” whereas parole revocations are generally heard and determined by the paroling body or commission.