text:
    Bernard BALLARD and Archie Curtis, Appellants, v. The STATE of Florida, Appellee.
    Nos. 75-25, 75-261.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., and Steven D. Ginsburg, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is the consolidation of an appeal by Bernard Ballard and an appeal by Archie Curtis, co-defendants in a joint jury trial, from a judgment of conviction and sentence pursuant to a verdict, providing two concurrent 40-year sentences, in the state penitentiary, for second degree murder and robbery for Ballard, and two concurrent life sentences, in the state penitentiary, for first degree murder and robbery for Curtis.

The facts of the case are relatively undisputed. On July 29, 1974, Curtis, holding a .22 caliber pistol, and Ballard, holding a .38 caliber pistol, approached two men who were sitting in a car, and demanded all of their money. One of the men, Jackson, gave his cash to Ballard. ' The other claimed he had no money and Curtis shot him in the head, killing him. Both Curtis and Ballard ran away. That evening, Jackson accompanied Miami Police Department officers to a residence where they located Ballard and Curtis. Jackson identified both men. Detective Walter Martinez, who was present at the time, found a .38 caliber revolver and several rounds of .22 caliber and .38 caliber ammunition, under a bed on which Ballard was lying. Ballard’s fingerprints were on the .38 caliber revolver. Detective Martinez testified, over Ballard’s objection, that he advised Ballard of his constitutional rights to remain silent and to have a lawyer. When the detective testified that Ballard elected to remain silent, Ballard's counsel moved for a mistrial which was denied. Ballard’s counsel contended that Martinez did not properly advise Ballard of his constitutional rights, but the trial court made a determination that his constitutional rights had been protected. Martinez then testified that when he asked about the gun found under the bed, Ballard said it did not belong to him and he never saw it before.

Detective Bryant, of the Miami Police Department, testified that on the following morning, he obtained a .22 caliber pistol from one Robert Wright. The testimony of the medical examiner and a ballistics expert showed that an autopsy revealed that the bullet removed from the deceased victim’s head was fired from the gun recovered by Detective Bryant. The State rested its case and both defendants moved for directed verdicts which were denied.

Robert Wright, listed as a State’s witness, but not called by the State to testify, was called to testify on Ballard’s behalf. Curtis objected and moved for severance and mistrial. The court deferred ruling until after hearing the testimony. Wright testified that on July 29, 1974, he gave Ballard the .22 caliber pistol in question and drove Ballard and Curtis to the area where the shooting occurred. He further testified that Curtis and Ballard left the car for about 15 minutes and when they returned, Curtis said, “. . . damn, I shot that boy.” Wright also testified that Curtis later returned the gun to him; that he did not see Ballard take part in the robbery and that Ballard told him Curtis “had shot that boy.” The motions for severance and mistrial were denied. Neither of the defendants testified. In summation, the prosecution stated that he did not vouch for Wright’s credibility, but he referred to Wright’s motive for testifying as a “street sense of justice.” Following a jury verdict, Curtis was adjudged guilty and sentenced to two concurrent life sentences in the state penitentiary for first degree murder and robbery, and Ballard was adjudged guilty and sentenced to two concurrent 40-year terms in the state penitentiary for second degree murder and robbery.

In this consolidated appeal, Curtis contends that the court erred in denying his motions for severance and mistrial made before and after the testimony of Robert Wright, thus effectively denying Curtis the constitutional right to confront and cross-examine witnesses (namely the co-defendant), and the right to a fair trial when the defendants’ defenses became mutually antagonistic. Ballard contends that the trial court erred in failing to find that Ballard’s statements to Detective Martinez were voluntarily made and in permitting Martinez to testify over Ballard’s objection as the record does not show that Ballard was adequately advised of his constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution.

Curtis’ argument, essentially, is that Wright’s testimony contained an accusatory statement by co-defendant Ballard against Curtis, and since Ballard did not testify, Curtis was deprived of the opportunity to cross-examine Ballard who had become an accuser by virtue of Wright’s testimony. The law in Florida as to severance of defendants is set forth in Rule 3.-152(b)(1)(ii) as follows:

“(1) On motion of the State or a defendant, the court shall order a severance of defendants and separate trials:
(ii) during trial, only with defendant's consent and upon a showing that such order is necessary to achieve a fair determination of the guilt or innocence of one or more defendants.”

The granting or denying of a motion for severance is largely discretionary with the trial judge and his rulings will not ordinarily be disturbed on appeal absent a clear showing of palpable abuse of that discretion. Manson v. State, Fla.1956, 88 So.2d 272. Likewise, the granting or denial of a motion for mistrial is a matter within the sound discretion of the trial court. Reis v. State, Fla.App.1971, 248 So.2d 666. On appeal, the burden is on the defendant to clearly demonstrate that the trial judge abused his discretion in denying the severance. Rodriguez v. State, Fla.App.1970, 237 So.2d 772. In evaluating the exercise of discretion, it has been held that a mistrial should not be granted when the alleged error is not fundamental or prejudicial to the substantial rights of a defendant. Perry v. State, 1941, 146 Fla. 187, 200 So. 525. We find that the facts of the instant case do not show that a severance was necessary to achieve a fair determination of Curtis’ guilt or innocence, and the trial judge acted within the bounds of his discretion in denying the motion for severance. Curtis relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L. Ed.2d 476, as authority for his position. We note, however that violations of the Bruton rule may constitute harmless error where the evidence of guilt is overwhelming and the effect of admitting the code-fendant’s admission is comparatively slight. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340. Prior to Wright’s testimony, Jackson, the robbery victim and eye witness, clearly identified Curtis as the man who used a .22 caliber gun to shoot and kill the deceased. It appears that the trial judge was justified in considering that the effect of Wright’s testimony on Curtis’ guilt was slight and harmless. Curtis has failed to sustain the burden of establishing an abuse of discretion in the denial by the trial court of the motions for mistrial and severance.

Curtis has urged that he was denied a fair trial when the defenses of each defendant became mutually antagonistic. It appears from the record, however, that both defenses cooperated with one another throughout the trial, presented similar theories as to innocence and did not act to prejudice each other. See Roberts v. State, Fla.1964, 164 So.2d 817, 821; Woodside v. State, Fla.App.1968, 206 So.2d 426, 429. Ballard’s confession to Wright was known to attorneys for both defendants prior to Wright’s testimony and prior to the testimony of Detective Bryant to whom Wright spoke and gave the .22 caliber gun. Curtis knew of a possible basis for antagonism, yet failed to make a pretrial motion for severance as required by Rule 3.152, RCrP. Wright’s testimony as to Curtis’ possession of the murder weapon was no more than cumulative to that previously elicited. For these reasons, we find no abuse of discretion in denying the motion for severance.

Ballard’s first argument is that the testimony of Detective Martinez that Ballard denied knowledge of the .38 caliber pistol found under his bed was improperly allowed, absent a finding that Ballard’s statements were voluntarily made. Where no fundamental rights have been violated and the evidence of guilt is sufficient, technical errors in ruling on the admission of testimony will not cause a reversal. Mahone v. State, Fla.App.1969, 222 So.2d 769. A reversal should not be ordered unless the error complained of was prejudicial or harmful to the substantial rights of the accused, and the introduction of improper or inadmissible evidence must be prejudicial in order to warrant a reversal. Cornelius v. State, Fla.1950, 49 So.2d 332, 335. Under the facts in this case, we do not find Ballard’s denial of the weapon, found near him at the time of arrest, to be an indication of guilty knowledge or a confession required to be tested by its volun-tariness. Even if it were a confession, this court will not substitute its judgment for that of the trial court as to voluntariness of confessions or admissions after a defendant has been advised of his rights. Barker v. State, Fla.App.1973, 271 So.2d 790; Phillips v. State, Fla.App.1973, 284 So.2d 485. Considering the evidence against Ballard, fingerprints on the .38 revolver and eyewitness identification, failure to make a specific finding of voluntariness is, at most, harmless error. We do not agree with Ballard that the rule of McDole v. State, Fla.1973, 283 So.2d 553, applies, since he has not urged coercion, brutality, or involuntariness. See Wilson v. State, Fla.1974, 304 So.2d 119.

Ballard’s second contention is that he was not adequately advised of his constitutional rights. The record does not specifically indicate whether Ballard was told that anything he said might be used against him. However, Detective Martinez testified that he advised Ballard of his rights at the time of arrest and that the defendant understood his rights and answered voluntarily. From a reading of the record it appears that Ballard’s constitutional rights have been protected.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joan HANLEY, Administratrix of the Estate of John Scott Hanley, a minor, Deceased, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, a Foreign Corporation, et al., Defendants.
    No. 75-735.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for plaintiff.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for defendants.
    Podhurst, Orseck & Parks, Miami, for Academy of Florida Trial Lawyers, amicus curiae.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The circuit court of the Eleventh Judicial Circuit has certified to this court, in accordance with FAR 4.6, the following question for determination:

“Whether § 1[.01] (14) or § 743,07, Florida Statutes, purport to and/or expressly or impliedly repeal or amend the provisions of §§ 768.16-768.27, Florida Statutes, so as to change the definition of the word 'minor’ contained in the latter statutes to mean ‘any unmarried child under the age of eighteen years of age,’ as opposed to ‘any unmarried child under the age of twenty-one years of age’ ”

The rule provides for certification when questions are determinative of the cause and are without controlling precedent. We find that the question meets the requirements and is within the limitations of subsection “b” of the rule. The facts of the case, as stated in the order of certification, are as follows:

John Scott Hanley, the natural son of John and Joan Hanley, was born on January 30, 1956, and at all times pertinent hereto was a member of the household of Joan Hanley and dependent upon her for his support.

The complaint which initiated the within cause was filed by Joan Hanley, acting in her capacity as administratrix of the estate of John Scott Hanley, deceased, and seeks wrongful death damages on behalf of the decedent’s estate and for the use and benefit of John Hanley and Joan Hanley, individually, under the aegis of new Florida Wrongful Death Act, Fla.Stat. §§ 768.16 et seq. The complaint contains the following pertinent damage allegations:

* * * * * *
“12. That as a direct and proximate result of the negligence of the defendants as alleged before, the Estate of the decedent has suffered a loss of the probable accumulation of the Estate of the decedent had he been able to live and work for the rest of his normal life. That the deceased minor lived at home at the time of his death and was supported by JOAN and JOHN HANLEY; that JOAN HANLEY as the natural mother and JOHN HANLEY, as the natural father suffered great mental pain and suffering as a result of the death of their minor son; that the Estate has incurred funeral expenses.”
******

The defendants moved to strike all claims for damages based upon the allegation of the minority of the deceased.

The chronology and pertinent portions of the statutes enumerated in the question are as follows: The applicable (and present) Wrongful Death Act is Fla.Stat. §§ 768.-16-768.27. It was enacted by the Legislature in Laws of Florida 1972, as Ch. 72-35. It became effective on July 1, 1972. Section 768.18 thereof provides:

“768.18 Definitions. — As used in §§ 768.16-768.27:
“(1) ‘Survivors’ means the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support.
“(2) ‘Minor children’ means unmarried children under twenty-one (21) years of age.
“(3) ‘Support’ includes contributions in kind as well as money.
“(4) ‘Services’ means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case.
“(5) ‘Net accumulations’ means the part of the decedent’s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of his estate if he had lived his normal life expectancy. ‘Net business or salary income’ is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent’s personal expenses and support of survivors, excluding contributions in kind.”

In the legislative session in 1973, the Legislature enacted “The Florida Emancipation Act,” Ch. 73-21, §§ 2 and 3, Laws of Florida 1973, now appearing as Fla.Stat. § 743.07. The provisions of the Act became effective July 1, 1973. Section 743.-07 provides:

******
“Rights, privileges, and obligations of persons 18 years of age or older
“(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges and obligations of all persons 21 years of age or older except as otherwise excluded by the state constitution immediately preceding the effective date of this section.
“(2) This act shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of said chapter until age 21, the provisions of this section to the contrary notwithstanding.
. “(3) This section shall operate prospectively and not retrospectively and shall not affect the rights and obligations existing prior to July 1, 1973.”
******

Section 1 of Ch. 73-21, Laws of Fla. 1973, added a new definition under Title 1 of the Florida Statutes. This definition appears as Fla.Stat. § 1.01(14), and provides :

“1.01 Definitions.
‘T.01 Definitions. — In construing these statutes and each and every word, phrase, or part hereof, where the context will permit:
* * * * * *
“(1.4) The word 'minor’ includes any person who has not attained the age of 18 years.”

The defendants urge that under the Wrongful Death Act “minor children” were defined as “unmarried children under twenty-one (21) years of age.” Fla.Stat. § 768.16-768.27. This definition was changed by the subsequent act of the Florida Legislature in 1973, Fla.Stat. § 743.07. The subsequent statute removed the disability of nonage “for all persons in this state who are 18 years of age or older.” The statute provides that these persons “shall enjoy and suffer the rights, privileges and obligations of all persons 21 years of age or older . . . ” In addition, the Legislature provided:

“Section 4. Any law inconsistent herewith is hereby repealed to the extent of such inconsistency. In editing the manuscript for the next revision of the Florida Statutes, the statutory revision and indexing service is hereby directed to conform existing statutes to the provisions of this act.”

Ch. 73-21, Laws of Florida.

On the other hand, the plaintiffs urge that the Florida Wrongful Death Act has nothing whatsoever to do with dead human beings or the rights of dead human beings. It is argued that the act creates a cause of action where none existed before in favor of legislatively-designated and defined beneficiaries, and defines the status of those live human beings entitled to recover thereunder. Further, it is argued that the act creates a right of action in the parents for the death of “minor children” (Fla.Stat. §§ 768.19 and .21) and that it specifically defines the phrase “minor children” to mean “unmarried children under twenty-one (21) years of age” (Fla.Stat. § 768.18). The argument goes on to assert that this definition merely defines and refines the right of the live human beings in whom the cause of action is vested and that the Legislature, within its authority, could easily have provided by definition that the phrase “minor children” encompass “unmarried children under 25 years of age.” Finally, plaintiffs urge that the legislative history of the session in which the Florida Emancipation Act, Fla.Stat. § 743.-07, was passed demonstrates the intention of the Legislature to leave intact the 21 year old provision of the law applicable to the Wrongful Death Statute, Fla.Stat. §§ 768.16-768.27. It is pointed out that two proposed revisor’s bills, as finally introduced, were changed so as not to revise the! definition of a minor under the Wrongful Death Statute. However, until the legislature actually passes a revisor’s bill providing that the definition of “minor” under the Wrongful Death Statute not be revised, we cannot take judicial cognizance of such a position.

Accordingly, we hold that the definition of a minor in the Wrongful Death Statute was changed from 21 to 18 years of age by the Florida Emancipation Act. Therefore, we answer the question certified in the affirmative.

The basic tenet for statutory construction is that the purpose of the Legislature should be determined where possible from the language of the statute. McDonald v. Roland, Fla.1953, 65 So.2d 12. The Florida Emanicipation Act by its plain language changes the “Rights, privileges and obligations of persons 18 years of age or older.” The right to recover for the wrongful death of a minor is based upon the obligations of the minor. See Seaboard Airline Ry. v. Moseley, 1910, 60 Fla. 186, 53 So. 718; Wilkie v. Roberts, 1926, 91 Fla. 1064, 109 So. 225; and Williams v. Legree, Fla.App.1968, 206 So.2d 13. The obligation of a normal adult is to care for himself. A person may not be a dependent member of a family and an independent adult at the same time; this would be a contradiction of terms. Thus, an 18 year old has no legal obligation within the family and, as such, has no legal benefit of support. See White v. White, Fla.App. 1974, 296 So.2d 619; Warren v. Warren Fla.App.1974, 306 So.2d 197; and Todd v. Todd, Fla.App.1975, 311 So.2d 769. We, therefore, hold that for all legal purposes a minor “includes any person who has not attained the age of 18 years.”

The certified question is answered in the affirmative.

      . We have accepted the question as determinative of the cause upon the stipulation of the parties that all damages not based upon the allegation of minority have been settled.


text:
    PROTECTIVE NATIONAL INSURANCE COMPANY, Appellant, v. Lucy Slattery SODANO, Appellee.
    No. 75-123.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Daniel V. Ligman, Coral Gables, Jeanne Heyward, Miami, for appellant.
    Abramson, Scremin, Mendigutia & Lib-man, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and HALL, VINCENT T., Associate Judge.
   PER CURIAM.

Affirmed on the authority of State Farm Mutual Automobile Insurance Company v. Benton, Fla.App.1975, 322 So.2d 618.


text:
    Thomas HAWES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-177.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Thomas Hawes, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Charlotte VOGEL, Appellant, v. Harvey VOGEL, Appellee.
    No. 74-1416.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Herman Cohen, Miami, for appellant.
    Dubbin, Schiff, Berkman & Dubbin and Alan E. Greenfield, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order denying the former wife’s petition to increase child support. We are here concerned with a claimed error of the trial judge in deciding the merits of the petition upon the record made before a general master and in declining to follow the recommendations of the master. We hold that the recommendations of the general master were, in this case, merely advisory and may not be considered findings of fact. We do not pass upon the effect of findings of fact made by a general master under the administrative order used in this case.

In the instant case, each party filed exceptions to the master’s report. After hearing, the court denied the exceptions and then ordered:

******
“3. The Court has considered the Petition for Modification filed by both the Plaintiff and the Defendant, and after due deliberation, considering all the evidence, both of said Motions for Modification are denied, it being the intent of this Court that the responsibilities and the obligations of the parties shall remain as they existed by the last Order of the Court, entered prior to the most recent Petitions for Modification.
“4. Each party shall bear his own attorney’s fees and costs.”
******

Our review of the record before us demonstrates that the order made by the circuit judge is supported by competent evidence and is within the bounds of his discretion in such matters. See Ginsberg v. Ginsberg, Fla.App.1961, 127 So.2d 137, 2 A.L.R.3d 592 and Bordman v. Bordman, Fla.App.1970, 231 So.2d 543.

Affirmed.

      . In 1973, the Chief Judge of the Eleventh Judicial Circuit issued an Administrative Order pursuant to rule 1.490 of the Florida Rules of Civil Procedure appointing a General Master to conduct post-decretal hearings on child support, maintenance and alimony, and subsequently authorized hearings on any matter arising under Chapter 61 of the Florida Statutes or such other proceedings as the court might direct from time to time. Administrative Orders 73-15; 73-28 ; 74-27. The record of this case does not contain a copy of the administrative order and the appellant has not moved to supplement the record in this particular.

      . The master’s report states the history of the case; the present marital status of the parties; the net worth of the parties as shown by their financial statements filed. The last paragraph of the report is as follows :
      * * * * *
      “7. That considering the testimony as presented, the evidence and exhibits, and from a review of the Court files herein, the Master recommends as follows:
      “A. That support for Mark Robert Vogel be increased from $40.00 per week to $70.00 per week and that support for Susan be increased from $40.00 to $50.00 per week
      “B. That the Court order partial attorneys fees to be assessed against the father in the amount of $350.00, and that such be paid within a reasonable time to Herman Cohen, Attorney for the mother. That all other and prior orders of this Court not inconsistent herewith be reaffirmed.”
      sjc * * * *


author: HENDRY, Judge.

text:
    Jerrie KROOP, Appellant, v. The CARAVELLE CONDOMINIUM, INC., a Florida Corporation, Appellee.
    No. 75-223.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Williams, Salomon, Kanner & Damian and Robert I. Weissler, Miami, for appellant.
    August, Nimkoff & Pohlig, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Appellant, plaintiff below, brings this appeal from a final declaratory judgment of the circuit court in favor of appellee, defendant below.

In January, 1966, appellant purchased from appellee in fee simple an apartment unit in the Caravelle Condominium located on Bay Harbor Islands, Florida. The purchase of the unit was made subject to all of the terms and conditions of the Declaration of Condominium. At the time of the purchase, Article XII of the Declaration of Condominiums provided, among other things, that “the unit owner shall have no right to sell or lease his interest, or any part thereof, except as expressly provided for herein.” On October 27, 1971, appellee amended Article XII by adding, among other provisions, the following sentence, “In no event may any unit owner lease or rent his apartment unit more than once during the period of his ownership.”

Subsequently, on September 20, 1972, appellant, as lessor, entered into a lease agreement with a third party lessee whereby appellant rented his condominium unit for a two year period ending on October 14, 1974. On February 13, 1974, appellant and the third party executed a one year extension agreement to the original lease.

After the execution of the extension agreement, appellee notified appellant that the extension agreement was in violation of Article XII of the Declaration of Condominium, as amended, and that appellant’s lessee would not be able to continue to occupy the apartment unit after the expiration of the original lease.

On October 9, 1974, appellant filed a complaint for declaratory judgment seeking to have the October 27, 1971 Amendment to the Declaration of Condominium declared invalid, null, and void and to declare that the lease extension agreement should be given full force and effect.

At the non-jury trial held on January 15, 1975, the parties stipulated to essentially all of the facts. On January 20, 1975, a final judgment was entered by the trial judge upholding the validity of the Amendment and declaring that the third party lessee was entitled to the peaceful possession of the unit for the remaining term of her extension agreement with appellant. From this judgment, appellant appeals.

Appellant contends that, under the undisputed facts of this case and as a matter of law, the Amendment to Article XII of the Declaration of Condominium limiting the unit owner’s right to lease his apartment to only once during the period of his ownership is unreasonable, invalid and unenforceable because: (a) the amendment is in direct violation of Chapter 711 of the Florida Statutes (the Condominium Act) ; (b) the amendment violates the rule against perpetuities; (c) the amendment constitutes an unreasonable restraint on his alienation of property; and (d) the amendment is an infringement upon his basic constitutional right to own, possess and enjoy property.

Appellee argues against appellant’s grounds for reversal on appeal and cross-assigns as error the declaration of the trial judge that the extension agreement did not violate Article XII, as amended, of the Declaration of Condominium.

The trial judge in entering the final judgment held as follows:

“1. The Facts, the equities and the law are with the Defendant THE CAR-AVELLE CONDOMINIUM, INC., and against the Plaintiff JERRIE KROOP, except to any extent otherwise declared herein.
“2. As a matter of fact and as a matter of law, the Court finds that Plaintiff acquired title to her condominium unit with knowledge that the Declaration of Condominium might thereafter be lawfully amended, as in fact from time to time has since occurred. The questioned Amendment to Article XII of said Declaration was adopted in a manner wholly procedurally proper, and for a proper purpose. That portion of its provision which prohibits any lease for a term less than one (1) year is permissible, and Plaintiff so concedes.
“3. As a matter of fact and as a matter of law, the Court finds that no restraint against alienation is present since the challenged clause does not restrict anyone’s right to sell the fee, nor is any attempt to sell before the Court. Only the clause
in no event may any unit owner lease or rent his apartment unit more than once during the period of his ownership
is before the Court justiciably, and said clause constitutes no restraint upon alienation under the controlling law of the State of Florida. See Holiday out in America at St. Lucie, Inc. v. Bowes, Fla.App., 285 So.2d 63, relied upon by Plaintiff at argument.
“4. The question remains whether said quoted clause constitutes a regulation, restriction or limitation so unreasonable in degree as to violate Chapter 711, Florida Statutes, or other controlling provision of law. The Court holds that said clause is a wholly reasonable regulation upon leasing, and in nowise unreasonable, and that said clause is valid and enforceable.
“5. However, though not urged by Plaintiff as a ground for decision, this Court must further find, and so holds, that the attempted extension or renewal by Plaintiff of her lease with the Tenant RAPPAPORT is in its legal effect only that, an extension or renewal, and not a new lease prohibited by the above-quoted and valid clause. The initial two-year lease with RAPPAPORT could have been for a longer period in the first instance, and the Court holds that the extension or renewal between the same parties therefore does not violate Article XII.”

It is axiomatic that a judgment of the trial court appealed to this court comes clothed with a presumption of correctness. The one who asserts error has the burden of showing it. Also, the burden is on appellee to show the error set forth in its cross-assignment of error. See 2 Fla.Jur., Appeals, § 316.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authority cited, the judgment appealed is affirmed.

Affirmed.


text:
    UNITED THEATERS OF FLORIDA, INC., d/b/a United Mini-Adult Theater, et al., jointly and severally, Appellants, v. The STATE of Florida ex rel. Richard E. GERSTEIN, as State Attorney of the Eleventh Judicial Circuit of the State of Florida, Appellee.
    Nos. 71-402-71-405, 71-446, 71-1108, 71-1109 and 71-1000.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Joel Hirschhorn, Miami, for appellants.
    Richard E. Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for ap-pellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

In these consolidated cases, appellants sought review of adverse judgments enjoining them from exhibiting allegedly obscene films. We affirmed those judgments. Subsequently, the U.S. Supreme Court granted certiorari and remanded the cases to this court for further consideration in light of our decision in State ex rel. Little Beaver Theatre, Inc. v. Tobin, Fla.App.1972, 258 So.2d 30, where we held that a judgment enjoining a theater corporation from publicly exhibiting any motion picture which portrayed certain listed acts was too broad in scope where it did not have reference to films which had been seized or to any specific films.

After a review of the respective judgments in light of the hereinabove holding, we conclude that the provisions generally prohibiting the appellants (without reference to any specific films) from exhibiting or showing at any public place in Dade County any motion picture films which graphically portray genitalia in combination with sexual intercourse, various acts of sodomy, homosexuality, bestiality or sadomasochism, whether actual or simulated, were too broad in scope and hereby are stricken.

In all other respects the judgments are affirmed with the exception as noted in our earlier opinions that the injunctions be confined to Dade County.

Affirmed as modified.

      . See United Theaters of Florida, Inc. v. State ex rel. Gerstein, Fla.App.1972, 259 So.2d 210; United Theatres of Florida, Inc. v. State ex rel. Gerstein, Fla.App.1972, 259 So.2d 215.


author: PER CURIAM. HOBSON, Acting Chief Judge

text:
    JAMES TALCOTT, INC., Appellant, v. CROWN INDUSTRIES, INC., et al., Appellees.
    No. 74-642.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1975.
    Rehearing Denied Jan. 9, 1976.

      Peter J. Winders, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    L. Robert Frank, of Allen, Dell, Frank & Trinkle, Tampa, for appellees.
   PER CURIAM.

This appeal presents the question whether plaintiff/appellant established that certain transfers by a corporation were preferences under Fla.Stat. § 608.55. We hold that the trial court’s finding that no preference occurred is not supported by substantial, competent evidence. Accordingly, we reverse.

S & J Mobile Home Sales, Inc. (S & J) made the following payments to Crown Im dustries, Inc. (Crown) while Crown was its sole stockholder and the officers of the two corporations were identical:

April 14, 1971 $35,000
Aug. 12, 1971 40,000
Aug. 30, 1971 85,000
Sept. 24, 1971 55,000
Sept. 30, 1971 55,000

S & J’s formal decision to liquidate is reported in its corporate minutes of June 29, 1971, but those minutes reflect that the decision had been reached in early June. S & J had begun to sell off its assets prior to that time, however, and finally closed its business on September 30, 1971, following its last payment to Crown.

The creditor objecting to these transfers is James Talcott, Inc. (Talcott), which had been purchasing retail installment contracts which S & J generated by sale of mobile homes. Pursuant to financing arrangements between Talcott and S & J, Talcott had set up certain reserve accounts. In 1967, S & J sued Talcott in the United States District Court, Middle District of Florida, seeking an accounting on these reserve accounts. Talcott counterclaimed for an alleged deficiency in the reserves.

During the litigation Talcott sent notices of the claimed deficiencies to S & J’s attorney on a continuing basis.

In March 1971, the federal court ruled in favor of Talcott on the issues tried, and held:

“ . . . Talcott has demonstrated upon the counterclaim its right to establish by an accounting the deficit, if any, which may be due and owing from S & J-”

S & J then contested Talcott’s method of calculating the reserves, and the matter was not finally resolved until October 1972, at which time the United States District Court upheld Talcott’s method of calculation and entered judgment for Talcott in the amount of $47,634.36. It appears $24,842.36 of such judgment remains unpaid.

Talcott brought suit against Crown and its officers (who had been officers of S & J) in September 1973, alleging a violation of Fla.Stat. § 608.55. The matter was tried without jury. The officers testified that they had no intent to grant a preference. They also testified that until October 1972, they never believed there was any liability to Talcott, and Talcott’s claim was never carried on the books. Finally, they testified that S & J was not insolvent at the time of the transfers because its assets always exceeded its liabilities.

The trial court granted judgment for defendants on April 30, 1974, finding:

“ . . . that there was no intent on the part of any of the Defendants to prefer Crown over any other creditors of S & J, including Plaintiff, during the period or at the time or times of said payments from S & J to Crown. In addition, the Court finds that there is insufficient evidence to establish that S & J was insolvent or that insolvency was imminent during the period or at the time or times last mentioned.”

In order to determine whether Tal-cott proved a cause of action under Fla. Stat. § 608.55, we focus on three questions:

(1) Was Talcott a creditor ?
(2) Were payments made during S & J’s insolvency or when its insolvency was imminent ?
(3) Was there an intent on part of S & J to give preference to Corwn, et al. over Talcott?

In deciding these questions, we may look to New York cases for guidance, since our statute is derived from the New York Stock Corporation Law. Jasson D. Rad ding, Inc. v. Coulter, Fla.App. 2d 1962, 138 So.2d 380.

The trial court in the present case did not determine that Talcott was not a creditor at the time of the transfers. Ap-pellees now claim that the limiting words “if any” in the federal court’s opinion of March 1971, are a justification for the officers’ belief that Talcott’s claim was not legitimate.

However, a creditor of the trans-feror need not have a judgment lien prior to the transfer in order to receive the protection of the statute. In Re Anjopa Paper & Board Mfg. Co., S.D.N.Y.1967, 269 F.Supp. 241, 255. An open account has been held sufficient, Denmark v. Ridgell Furniture Co., 1934, 117 Fla. 244, 157 So. 489, as has a potential tort claim, Caesar v. Bernard, 1913, 156 App.Div. 724, 141 N.Y. S. 659, aff’d, 209 N.Y. 570, 103 N.E. 1122. In the present case, we think it became clear in March 1971, that Talcott was owed some money by S & J. Despite the wording of the federal court’s opinion, the dispute was in reality only in controversy as to the amount owed.

We need not decide here whether every contingent claim, disputed in good faith by the corporation, is sufficient to make the claimant a “creditor” under the statute. Here we conclude that Talcott’s claim had progressed to the point where it was clearly entitled to the protection of Fla.Stat. § 608.55.

The trial court found, and appel-lees contend, that S & J was not insolvent, nor was insolvency imminent during the time of the transfers. Appellees point to the bookkeeping balance, and also to their testimony that the corporation was not insolvent. But, the test of insolvency under this statute is not whether the books show an excess of liabilities over assets, but rather whether the corporation has a general inability to answer in the course of business the liabilities existing and capable of being enforced. Williams v. American Crafts, Inc., Fla.App. 3d 1961, 129 So.2d 165. Even without considering the facts that S & J did not include its obligations to Crown in its current liabilities and omitted any obligations to Talcott from its balance sheet liabilities, once the decision had been made to liquidate the corporation and wind up its business, then the corporation was insolvent within the meaning, of the statute. Freehling v. Michigan Repacking and Produce Co., 5th Cir. 1970, 426 F.2d 989 (applying Florida law); Cardozo v. Brooklyn Trust Co., 2d Cir. 1915, 228 F. 333.

Appellees finally contend that the trial court’s finding that there was no intent is supported by the evidence. Appel-lees point to the testimony of S & J’s officers that they had no intent to make a preference. The testimony of these officers must be weighed in light of the fact that Crown was the sole owner of S & J and the officers of the two corporations were identical. Hence, with the transfers in essence being made to themselves, it is difficult to see how a preference could not have been intended. In any event, we think this simple denial of intent by these officers was not sufficient to support the finding of the trial court, when the evidence is undisputed that such was actually accomplished by the actions of the parties. Blank v. Yoo Hoo of Florida Corp., Fla.App.3d 1968, 213 So.2d 464, vacated on other grounds, 222 So.2d 420 (Fla.1969). Corporate officers must be held for the consequence of their acts. Those officers who accomplished the transfers must have known that the inevitable effect would be that S & J would not be able to meet its obligations.

While a denial of intent may in an appropriate case be enough to prevent summary judgment, Houdaille-Duval-Wright Co. v. Congdon, Fla.App. 2d 1970, 237 So.2d 305, here the evidence at trial overwhelmingly showed that there was no good faith intent to continue the business. Accordingly, the “intent” required by the statute was demonstrated as a matter of law. Blank v. Yoo Hoo, supra. See also Freehling, supra; Dalziel v. Rosenfeld, 1934, 265 N.Y. 76, 191 N.E. 841.

Accordingly, we conclude that Talcott proved its cause of action under the statute with respect to the transfers to Crown made after June 1971. Whether insolvency was imminent at the time of the first transfer to Crown in April 1971, is a matter we leave for determination of the trial court.

Reversed and remanded for further proceedings consistent with this opinion.

GRIMES and SCHEB, JJ., concur.

HOBSON, A. C. J., dissents.

HOBSON, Acting Chief Judge

(dissenting).

In my opinion the judgment of the trial court is supported by competent, substantial evidence. Therefore, I respectfully dissent.

      . “No corporation which shall have refused to pay any of its notes or other obligations when due, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, , or upon any other consideration than the full value of the property paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid, except as to any rights or interests which may be acquired thereunder by any person for a valuable consideration and without notice or reasonable cause to believe that such conveyance, assignment, transfer, payment, judgment, lien or security would effect a preference. Every person receiving by means of any such prohibited act or deed any property of a corporation shall be bound to account therefor to its creditors or stockholders. No holder of stock not fully paid in any corporation shall transfer it to any person in contemplation of the corporation’s insolvency. Every transfer or assignment or other act done in violation of the foregoing provision of this section shall be void except as hereinbefore provided. The directors or officers of a corporation who shall violate or be concerned in violating any provision of this section shall be personally liable to the creditors and stockholders of the corporation of which they shall be directors or officers to the full extent of any loss such creditors and stockholders may respectively sustain by such violation.”

      . The federal court opinion of October 1972, discussed how two possible methods of calculation would affect the amount owed to Tal-cott for a typical installment contract. Under Talcott’s method of calculation, the amount owed to Talcott would be $156.75, while under S & J’s interpretation, the amount owed to Talcott would be $61.40.

      . Appellant points out that on deposition, two of the officers had admitted that the corporation was insolvent, but at trial they contended they had been mistaken.


text:
    BISCAYNE MANUFACTURING CORP., a Florida Corporation, Appellant, v. SANDAV CORP., a Florida Corporation, Appellee.
    No. 75-53.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Koppen & Watkins, Miami, for appellant.
    Milton E. Grusmark, Miami, for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   HENDRY, Judge.

Appellant, defendant below, brings this appeal from a final judgment of the trial court holding an option provision of a lease agreement to be null and void.

In December 1973, appellant as lessee entered into a lease agreement with appel-lee as lessor. The agreement contained a provision giving appellant the option to purchase part of the demised property from appellee. Upon appellant’s attempt to exercise the option, it was repudiated by appellee.

Appellee then filed a complaint seeking, among other things, to have the option provision in the lease agreement declared invalid. On December 13, 1975, the trial court, non-jury, entered a final judgment in favor of appellee declaring that the option provision was null and void, but that the other provisions of the lease agreement were viable and in full force and effect. From the judgment, appellant brings this appeal.

Appellant’s basic contention is that the record on appeal does not support the trial court’s determination that the option provision was invalid. Appellee contends that there is substantial evidence in the record to support the judgment and, therefore, it should not be reversed.

Appellant, in its reply brief, agrees with appellee and states that a trial judge is the finder of fact when a case is heard without a jury and that his findings on appeal are clothed with the same presumption of correctness afforded a jury verdict. Also, appellant states it has the burden of demonstrating that the decision is clearly erroneous in order to obtain a reversal. We agree with both of these statements of principles of law. Marx v. Goldfinger, Fla.App. 1966, 187 So.2d 380; Paul’s Drugs, Inc. v. Southern Bell Telephone & Telegraph Co., Fla.App.1965, 175 So.2d 203; and Dade County v. Pepper, Fla.App.1964, 168 So.2d 198.

However, after a consideration of the record, all points in the briefs and arguments of counsel in the light of these controlling principles of law, we have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is affirmed.

Affirmed.


author: SMITH, Judge.

text:
    OFFICE OF the PUBLIC DEFENDER, SIXTEENTH JUDICIAL CIRCUIT OF FLORIDA, Honorable John Keane, Petitioner, v. John W. HUNTER, and the Industrial Relations Commission, Florida Department of Commerce, Respondents.
    No. AA-91.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1975.

      Stephen Marc Slepin of Kaplan, Schwartz & Slepin, Tallahassee, for petitioner.
    Kennth H. Hart, Jr., Tallahassee, for respondents.
   SMITH, Judge.

This petition for review by certiorari (Rule 4.5c, F.A.R.) is addressed to a decision of the Industrial Relations Commission in an unemployment compensation matter. Sec. 443.07, F.S.1973. The 1974 Administrative Procedure Act, chapter 120, F.S.1973 (1974 Sup.), is said by petitioner to provide our jurisdiction. That Act provides for district court of appeal review of agency action in the district “where the agency maintains its headquarters or where a party resides.” Sec. 120.68(2), F.S.1973 (1974 Sup.). The Industrial Relations Commission has its office at the seat of this Court in Tallahassee.

Because the 1974 Administrative Procedure Act replaced the provisions for judicial review in administrative matters m Florida Statutes 1973 [ch. 74 — 310, § 3(1), Fla.Laws], petitioner asserts that § 443.07 (4)(e), F.S.1973, providing for review of Industrial Commission orders in the district “in which the issues involved were decided by an appeals referee,” was thus supplanted. We need not decide that question. This administrative adjudicative proceeding began prior to January 1, 1975, the effective date of the 1974 Administrative Procedure Act. Ch. 74-310, § 6, Fla.Laws. Therefore, the repealing clause and other provisions of the new Act would be ineffective in this matter. Sec. 120.72(2), F. S.1973 (1974 Sup.). See Lewis v. Judges of the District Court of Appeal, First District, 322 So.2d 16 (Fla.1974). This petition is cognizable in the Distict Court of Appeal, Third District. Sec. 443.07(4) (e), F.S.1973; Maryland Cas. Co. v. Marshall, 106 So.2d 212 (Fla.App. 1st, 1958). It will be transferred to that Court.

It is ordered.

BOYER, C. J., and MILLS, J., concur.


text:
    Raymond KIERTEKLES, Appellant, v. The MANCHESTER INSURANCE & INDEMNITY COMPANY, Appellee.
    No. 75-275.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Bernstein & Robrish, Coconut Grove, for appellant.
    Vernis & Bowling and Ronald J. Raf-fony, Coconut Grove, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The plaintiff, Raymond Kiertekles, appeals the dismissal of his complaint by the trial court upon motion of defendant Manchester Insurance & Indemnity Company. He argues that he was the driver of a rental car in which his co-adventurer was a passenger and that he was entitled to uninsured motorist benefits under a personal policy of insurance owned by the passenger. The trial court held that the contract of insurance of the passenger did not contain uninsured motorist coverage for the benefit of plaintiff. The policy of insurance on which Kiertekles sought recovery was independent and separate from the rental agreement.

We hold that the trial court correctly determined that uninsured motorist coverage was not included for Kiertekles under the terms of the policy or the statute providing for uninsured motorist coverage. See Fla. Stat. § 627.727; Mullis v. State Farm Mutual Automobile Insurance Co., Fla.1971, 252 So.2d 229; cf. Cavalier Insurance Corporation v. Bailey, Fla.App.1974, 292 So.2d 67.

Affirmed.


text:
    Orlando HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-364.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Ronald J. Fath, Miami, for appellant.
    Robert L. Shevin, Atty. Gen./ and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This case involves the robbery of Jose Maya, a jewelry salesman and the murder of his wife, Sarah Maya, on June 14, 1974, in the lobby of a Miami Beach apartment-hotel. Three persons took part in the robbery and murder. Orlando Hernandez, prosecuted separately from the other two defendants, was charged by indictment with first degree murder and robbery in the case. He was tried by jury, found guilty on both charges and was so adjudged and sentenced to two consecutive terms in the state penitentiary, for life imprisonment on the first degree murder charge and for 99 years on the robbery charge. Hernandez cites six points on appeal from the judgment and sentence imposed.

As his first point, Hernandez contends that the trial court violated his right to a fair trial by admitting into evidence an 8 x 10 photograph of the lineup, testimony of the lineup identification and in-court identification. He states that his attorney was not present at the lineup and that it was prejudicial to show a photo of the defendant in the company of five other men with numbers hanging around their necks and a police identification card with a case number and date in the background. The record shows that both Hernandez and his attorney were advised of the impending lineup and that Hernandez waived his right to have counsel present, thus meeting the requirements of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149. In addition, the photograph of the lineup was admissible as tending to illustrate or explain the testimony of the victim so as to aid the jury in understanding such testimony. Pressley v. State Fla.App.1972, 261 So.2d 522. It depicts s lineup of six men of approximately the same height, weight and coloring. In court, the victim said that Hernandez, at the time of trial, looked exactly the way he appeared on the night of the murder-robbery. Therefore, no error has been shown.

As his second point, Hernandez contends that the trial court should have granted a mistrial when (a) the victim referred to Hernandez as a bandit and (b) when the victim stated that Hernandez tried to kill him. When the witness called the defendant a bandit, the judge offered to instruct the jury to disregard the remarks but defense counsel refused, contending that it was prejudicial beyond cure. The court denied a mistrial, citing as authority for the procedure, Maybery v. State, Fla.App.1974, 303 So.2d 369, and instructed the witness not to repeat the name calling. The witness complied. As to the remark by the victim that Hernandez tried to kill him, when defense counsel moved for mistrial, the court reserved ruling. Although the record indicates that at the next recess a conference was held off the record, no ruling on the motion appears on the record. Therefore, the record is not sufficient to demonstrate reversible error on this point. See State ex rel. Gibson v. Purdy, Fla.App. 1969, 218 So.2d 542.

The third point raised by Hernandez is that it wás error to admit the hearsay testimony of one Jose Gutierrez, relating to inculpatory statements made by an accomplice, and to deny the defendant’s motion for mistrial on this ground. Hernandez contends that the admission of statements of co-conspirators was error since there being no conspiracy charged, there can be no co-conspirator. This is erroneous since, “There is no prerequisite that a conspiracy be charged before declarations of a co-conspirator are admissible under the so-called ‘co-conspirator rule.’ ” Damon v. State, Fla.1973, 289 So.2d 720, 723. As an aider and abettor, Hernandez is responsible for all acts committed by his accomplices, including the murder of Sarah Maya. State v. Roby, Fla.1971, 246 So.2d 566; Foxworth v. State, Fla.1972, 267 So.2d 647; McNeal v. State, Fla.App.1974, 303 So.2d 698.

Hernandez’ fourth point is that his motion for mistrial should have been granted when Jose Gutierrez stated in the presence of the jury, that Hernandez “ . . . was arrested by the federal . ” Following an objection by defense counsel, Gutierrez clarified that the arrest mentioned was for the charges for which defendant was being tried. We agree with the State that the court correctly denied the motion for mistrial, stating that the remark did not point to evidence for collateral crimes. After all, the jury must have been aware that the defendant, on trial for robbery and murder, had been arrested on such charges.

As his fifth point, Hernandez contends that it was prejudicial and, therefore, error to give the jury an additional instruction (requested by the jury in a note expressing confusion over the definition of terms), and to call the jury back half an hour later to ask if a verdict could be reached given more time. The record demonstrates that the original jury instructions were properly given pursuant to Rule 3.390, RCrP, and were correct statements of the law. The court allowed the jury to have all instructions in writing pursuant to Rule 3.400, RCrP. The additional instructions were given in compliance with Rule 3.420, RCrP, after reminding the jury about the previous instructions, and were taken from State v. Dixon, Fla.1973, 283 So.2d 1. Thus, we find no error in the additional instructions, nor do we find error in the so-called “Allen charge,” since both sides agreed that the jury be called in and asked if they could reach a verdict given more time.

The sixth and final point raised is that the sentence on both counts, to be served consecutively, is illegal' and should be vacated and appellant should be resen-tenced only on the highest offense charged. We find the sentences to be legal since even though Hernandez was charged with two counts of the same indictment, robbery and murder are separate offenses, for which separate sentences were properly imposed. State v. Kirkland, Fla.1975, 322 So.2d 480, opinion filed November 5, 1975.

Affirmed.


text:
    Lawrence H. RIPP, Appellant, v. The DIVISION OF SECURITIES OFFICE OF the COMPTROLLER, State of Florida, Appellee.
    No. 75-1559.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1975.
   Certiorari dismissed.


text:
    George L. ZIEGLER et al., Appellants, v. Samuel J. FOUNTAS et al., Appellees.
    No. 75-1613.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    GOLD COAST KNITTING MILLS, INC., et al., Appellants, v. AMERICAN SOUTHERN DYEING AND FINISHING CORPORATION, Appellee.
    No. 75-1540.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Doris UGARRIZA and Liberty Mutual Insurance Company, Petitioners, v. Moe SMITH and Henrietta Smith, Respondents.
    No. 75-1703.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Willie James BROWN, Petitioner, v. Louie L. WAINWRIGHT, Director, Department of Offender Rehabilitation, Respondent.
    No. 75-1641.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1975.
   Habeas corpus denied.


text:
    REPUBLIC NATIONAL BANK OF MIAMI, a National Banking Institution, Appellant, v. Rosa Almanza De HORNEDO and Rosne Corporation et al., Appellees.
    No. 75-1241.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    CITY OF VERO BEACH, a Municipal Corporation of the State of Florida, Appellant, v. RALMAR ASSOCIATES, INC., et al., Appellees.
    No. 75-489.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Rehearing Denied Dec. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    Grace M. HUNTER, Appellant, v. FIRST BAPTIST CHURCH, INC., a Florida Corporation, and Hartford Accident and Indemnity Company, a Florida Corporation, Appellees.
    No. 75-278.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Rehearing Denied Dec. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    METROPOLITAN ACCOUNT SERVICES, INC., Petitioner, v. James D. CARPENTER, Florida Industrial Relations Commission, Respondent.
    No. 75-1186.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 1975.
   PER CURIAM.

Certiorari denied.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Petitioner, v. Simon STOCKTON, etc., et al., Respondents.
    No. 75-1560.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 1975.
   PER CURIAM.

Certiorari denied.


text:
    David FOWLER, Appellant, v. Simon P. MOSELY, Appellee.
    No. 74-583.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
    Rehearing Denied Dec. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    James J. JAMES, Petitioner, v. George W. DuBREUIL, Respondent.
    No. 75-1755.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1975.
   PER CURIAM.

Certiorari denied.


text:
    George Alan MACALA, Appellant, v. STATE of Florida, Appellee. Henry Tim AMIS, Appellant, v. STATE of Florida, Appellee. Dennis John DELANEY, Appellant, v. STATE of Florida, Appellee. John Alan LOOSE, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1738-74-1741.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
    Rehearing Denied Dec. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    SCHNAPS’N STUF, INC., Intervenor Correspondent, Appellant, v. ABC, INC., et al., Appellees.
    No. 75-207.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
    Rehearing Denied Dec. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Cirt Owen YANCY, Appellant, v. STATE of Florida, Appellee.
    No. 75-382.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
    Rehearing Denied Dec. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    The CONCORD FLORIDA, INC., a Florida Corporation d/b/a Concord Cafeteria, et al., Petitioners, v. Ruth WEINICK, Individually and as Administrator of the Estate of Morris Weinick, Deceased, et al., Respondents.
    No. 75-1805.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Dolores AGUERA and Jose M. Aguera, Appellants, v. METROPOLITAN DADE COUNTY TRANSIT AUTHORITY, a political subdivision of the State of Florida, Appellee.
    No. 75-216.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles David BERNSTEIN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-615.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Barbara BUFORD, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 75-413.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Mike BYRNE, Appellant, v. A. J. ALFARO, S.A., Appellee.
    No. 74-1801.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Broward County; Otis Farrington, Judge.

Appeal dismissed.


text:
    Harold H. DUBNER, Appellant, v. William E. GLOVER, Trustee, and R. V. Johnson, Appellee.
    No. 74-1343.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Palm Beach County; Lewis Kapner, Judge.

Appeal dismissed.


text:
    Donald FRANCIS, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY and John Doe the Unnamed Administrator of John Rivero, Appellee.
    No. 75-754.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Broward County; John G. Ferris, Judge.

Appeal dismissed.


text:
    GOLDEN HORN CONDOMINIUM ASSOCIATION, INC., a Florida corporation, Not for Profit, et al., Appellants, v. GOLDEN HORN DEVELOPERS, INC., a Florida Corporation, et al., Appellees.
    No. 74-1812.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Broward County; William Clayton Johnson, Judge.

Appeal dismissed.


text:
    Spencer GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-649.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Seminole County; Joe A. Cowart, Judge.

Appeal dismissed.


text:
    Steven HESTER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-183.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Joseph LACUIRA and Joan Lacuira, his wife, Appellant, v. John HILL, Appellee.
    No. 74-1804.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Palm Beach County; James R. Stewart, Jr., Judge.

Appeal dismissed.


text:
    Morris LIEBMAN, Appellant, v. EXCHANGE NATIONAL BANK OF CHICAGO, a national banking association, Appellee.
    No. 75-430.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Chris A. LUCCY, Appellant, v. ORIOLE HOMES CORP., Appellee.
    No. 75-387.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Broward County; James F. Minnet, Judge.

Appeal dismissed.


text:
    C. Conrad MERSHON, Jr., Appellant, v. Robert K. SEIGEL et al., Appellees.
    No. 75-525.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Orange County; Parker Lee McDonald, Judge.

Appeal dismissed.


text:
    J. T. PERDUE, Appellant, v. Patricia Jean PERDUE, Appellee.
    No. 75-1807.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Brevard County; Virgil B. Conkling, Judge.

Appeal dismissed.


text:
    H. Hughes SPRAGINS and Laurie Spragins, Appellants, v. Luigi F. CARLEVERO, Roy L. Struble, et al., Appellees.
    No. 75-1818.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Brevard County; Richard Muldrew, Judge.

Appeal dismissed.


text:
    SWEET & BLOSSOM, INC., Gerald Paoli and Fireman’s Fund Insurance Company, Appellants, v. Minnie Berger SHOR and David Shor, Appellees.
    No. 74-960.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1975.
   Appeal from Circuit Court, Broward County; Louis Weissing, Judge.

Appeal dismissed.


text:
    Ezekiel ADDERLY, Appellant, v. Louie L. WAINWRIGHT, Secretary, Dept. of Offender Rehabilitation, Appellee.
    No. 75-2005.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1975.

   Habeas corpus denied.


text:
    DIVISION OF FAMILY SERVICES, Appellant, v. B. E., a child, Appellee.
    No. 75-1352.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   Appeal dismissed.


text:
    Harry Truman FLETCHER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1501.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Dennis Lee GHORMLEY, Petitioner, v. Honorable Harry Lee COE, Circuit Judge In and For the Thirteenth Judicial Circuit, Respondent.
    No. 75-1639.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   Mandamus denied.


text:
    Randell McDANIEL, Appellant, v. Laura McDANIEL, Appellee.
    No. 75-733.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   Appeal dismissed.


text:
    TRAVELERS INDEMNITY COMPANY, a foreign corporation, Petitioner, v. Dorothy M. RENTZ, Respondent.
    No. 75-1447.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Elmo MASSEY, Appellant, v. STATE of Florida, Appellee.
    No. 74-1306.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Mike HENRY, Appellant, v. Irv GREAR, Agent & Legal Representative for Mario Zacco, Owner, Appellee.
    No. 75-1687.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1975.
   Appeal from Circuit Court, Broward County; John G. Ferris, Judge.

Appeal dismissed.


text:
    ATLANTIS MARINE, INC., a Florida Corporation, et al., Appellants, v. HIRSCH WEIS COMPANY, a corporation, Appellee.
    No. 75-421.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from Circuit Court, Broward County; L. Clayton Nance, Judge.

Appeal dismissed.


text:
    Joan W. BARNETT, Appellant, v. Gordon J. BARNETT, Appellee.
    No. 75-1797.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from Circuit Court, Orange County; Claude R. Edwards, Judge.

Appeal dismissed.


text:
    B & B PROPERTIES, INC., Appellant, v. COLONIAL HERITAGE REALTY CORPORATION, a Florida Corporation, Appellee.
    No. 75-479.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from Circuit Court, Orange County; W. Rogers Turner, Judge.

Appeal dismissed.


text:
    Talmadge CHILDS, Appellant, v. Hon. Lon S. CORNELIUS, Jr., Appellee.
    No. 75-760.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from Circuit Court, Orange County; Maurice Paul, Judge.

Appeal dismissed.


text:
    The CITY OF WINTER PARK, Florida, Appellant, v. Lester KALMANSON and Barbara Kalmanson, his wife, Appellees.
    No. 75-642.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from Circuit Court, Orange County; Fredrick Pfeiffer, Judge.

Appeal dismissed.


text:
    John A. CRAMASTA, Appellant, v. STATE of Florida, Appellee.
    No. 75-622.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from Circuit Court, Broward County; Tedder, Judge.

Appeal dismissed.


text:
    John A. CRAMASTA, Appellant, v. STATE of Florida, Appellee.
    No. 75-623.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from Circuit Court, Broward County; Tedder, Judge.

Appeal dismissed.


text:
    CREVESCO, INC., and Shuford Mills, Inc., Appellants, v. CITY OF CAPE CANAVERAL, a Municipal Corporation organized and existing under the laws of the State of Florida, and Helen S. Filkins, Appellees.
    No. 74-1406.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   PER CURIAM.

Affirmed.


text:
    Thomas A. DAVISON, IV, et al., Appellants, v. GENERAL DEVELOPMENT CORPORATION, etc., et al., Appellees. Shirley Ann DELAUNE, Appellant, v. GENERAL DEVELOPMENT CORPORATION, etc., et al., Appellees.
    Nos. 75-713, 75-829.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   PER CURIAM.

Affirmed.


text:
    Thomas R. HOLT, Appellant, v. STATE of Florida, Appellee.
    No. 74-862.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from Circuit Court, Orange County; B. C. Muszynski, Judge.

Appeal dismissed.


text:
    HARCAR ALUMINUM PRODUCTS COMPANY, Appellant, v. DI-COM CORPORATION, Appellee.
    No. 75-505.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   PER CURIAM.

Affirmed.


text:
    Tom A. JENNARO, Appellant, v. KERR-McGEE CHEMICAL CORP., a Delaware Corporation, Appellee.
    No. 75-419.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   PER CURIAM.

Affirmed.


text:
    Amos MARCUS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1690.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   PER CURIAM.

Affirmed.


text:
    James O. ROONEY and Lois N. Rooney, his wife, Appellants, v. 1ST FEDERAL SAVINGS AND LOAN ASSOCIATION OF OSCEOLA COUNTY, Florida, a corporation organized and existing under the laws of the United States, et al., Appellees.
    No. 75-576.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from ' Circuit Court, Osceola County; Cecil H. Brown, Judge.

Appeal dismissed.


text:
    James H. STEWART, Jr., Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation, and State Farm Fire & Casualty Co., a Foreign Corporation, Appellees.
    No. 75-356.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   PER CURIAM.

Affirmed.


text:
    William TALBOTT, Appellant, v. ST. LUCIE-JUPITER DEVELOPMENT CORPORATION, etc., et al., Appellees.
    No. 75-1830.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
   Appeal from Circuit Court, Palm Beach County; Beranek, Judge.

Appeal dismissed.


text:
    Frank DENNISON, Appellant, v. STATE of Florida, Appellee.
    No. Y-175.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1975.
   PER CURIAM.

Affirmed.


text:
    Patrick Michael AKERS, Appellant, v. Edward STACK, Sheriff of Broward County, Florida, Appellee.
    No. 75-2100.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1975.
   Habeas corpus denied.


text:
    In re ESTATE of Mabel S. ANDREWS, Deceased.
    No. 75-308.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    James W. ELKINS, as Administrator of the Estate of David Lyman Kincaid and Thera C. Kincaid, surviving widow of David Lyman Kincaid, Deceased, jointly and severally, Appellants, v. CRABTREE CONSTRUCTION COMPANY, INC., a Florida Corporation, and Liberty Mutual Insurance Company, jointly and severally, Appellees.
    No. 75-421.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Bennie GRAHAM, Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Appellee.
    No. 75-2106.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1975.
   Habeas corpus denied.


text:
    Rayfield LANE, Jr., Appellant, v. Louie L. WAINWRIGHT, Secretary, Dept. of Offender Rehabilitation, State of Florida, Appellee.
    No. 75-2041.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1975.
   Habeas corpus denied.


text:
    William R. OMASTA, Jr., Appellant, v. Peter IVORY, ex rel., SUPERINTENDENT, FLORIDA STATE HOSPITAL, Chattahoochee, Florida, Appellee.
    No. 75-2081.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1975.
   Habeas corpus denied.


text:
    H. E. SAMMONS, Petitioner, v. Helen E. KNIGHT, as Administratrix of the Estate of James R. Knight, Deceased, Respondent.
    No. 75-1137.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Ceotis BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 74-226.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    Rehearing Denied Dec. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    The CITY OF HALLANDALE, Appellant, v. Richard MORTON and Alan Morton, d/b/a Gold Dolphin Properties, Appellees.
    No. 75-311.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Clarence COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 75-43.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    DONALDSON ENGINEERING, INC., and Vulcan Construction Corp., Appellants, v. Russell S. BATCHELDER, etc., et al., Appellees.
    No. 75-755.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    FOREST LAKES ESTATES, INC., a Florida corporation, Appellant, v. CITY OF NAPLES, a Municipal Corporation, Appellee.
    No. 75-482.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Richard Lee HACKER, Appellant, v. STATE of Florida, Donald S. Genung, as Sheriff of Pinellas County, Appellee.
    No. 75-603.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    John H. HOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-67.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Frank KNIGHT et al., Appellants, v. BERGERON LAND DEVELOPMENT, INC., a Florida corporation, Appellee.
    No. 75-1226.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    MARTIN-CONTINENTAL CO., Appellant, v. B & S DRYWALL, INC., Appellee.
    No. 74-1774.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Christopher MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1746.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Edward J. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 75-669.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert A. MOORE, Appellant, v. FIRST NATIONAL BANK AND TRUST COMPANY OF NAPLES, Appellee.
    No. 75-163.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Michael Lawrence POWERS, Appellant, v. STATE of Florida, Appellee.
    No. 73-1196.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    CITY OF SEBRING, Appellant, v. MYERS PIPING & WELDING CONTR., INC., a Florida corporation, and the Cincinnati Insurance Co., an Ohio corporation, Appellees.
    No. 75-608.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. M. L. G., Appellee.
    No. 75-954.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    James Lawrence THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 75-302.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Belle WILLIS, Appellant, v. Robert MILLIKEN, d/b/a Milliken Realty, Appellee.
    No. 75-717.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Walter E. WOOLFOLK, Appellant, v. STATE of Florida, Appellee.
    No. 75-229.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Tony BETSEY, Appellant, v. STATE of Florida, Appellee.
    No. X-399.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Michael Anthony McCLENDON, Appellant, v. STATE of Florida, Appellee.
    No. Y-277.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Richard K. MULLINS, Appellant, v. STATE of Florida, Appellee.
    No. Y-457.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Daniel James SARGENT, Appellant, v. STATE of Florida, Appellee.
    No. Y-444.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Douglas G. BEACHLER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1276.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1975.
   Appeal dismissed.


text:
    Lamar Alth MacNUTT, D.D.S., Petitioner, v. FLORIDA STATE BOARD OF DENTISTRY, Respondent.
    No. 75-1442.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1975.
   Certiorari dismissed.


author: MERRILL, Justice.

text:
    Price L. MITCHELL et al., etc. v. CITY OF MOBILE, a Municipal Corporation, et al., etc.
    SC 1429.
    Supreme Court of Alabama.
    Dec. 4, 1976.
    Mylan R. Engel, Mobile, for appellants.
    William H. Brigham and S. R. Sheppard, Mobile, for appellees.
   MERRILL, Justice.

The Personnel Board for Mobile County filed a declaratory judgment proceeding against the City of Mobile, seeking to have Act No. 2441, Acts of Alabama, 1971, Vol. V, p. 3903, relating to the Chief of Police of the City of Mobile, declared unconstitutional.

The trial court, on May 1, 197S, declared the Act constitutional and valid. The Personnel Board appealed.

The essential part of Act No. 2441 consisted of one paragraph and on October 10, 1975, the legislature amended Act No. 2441 by rewriting the single paragraph in such a manner as to settle the controversy in the instant suit so that it would not now matter whether the original Act were valid or not. The question has become moot and the appeal is due to be dismissed for that reason.

Appeal dismissed.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: MADDOX, Justice.

text:
    ALABAMA POWER COMPANY, a corporation, and Norbert Wayne Swann v. Willie T. CLECKLER.
    SC 1113.
    Supreme Court of Alabama.
    Dec. 4, 1975.

      C. William Gladden, Jr., Birmingham, for appellant.
    Walter C. Hayden, Jr., Clanton, for ap-pellee.
   MADDOX, Justice.

The only issue presented on this appeal involves the irregularity of a jury verdict.

When the jury foreman announced the verdict to the court, in this negligence action, he'stated it as “$45,000.” On the verdict form, however, the amount was shown as “$4,500.”

The jury concluded its deliberations at 9:50 a. m., when the foreman read the verdict as $45,000. The jury was requested to remain in the courtroom so they could be qualified in another case. One member was excused for the remainder of the day. The trial judge discovered, within twenty minutes, the inconsistency between the verdict as read by the foreman and the verdict as written. He reassembled the jury, including the one member who had gone home, and explained the inconsistency and asked the jury to return to the jury room, and “correct your verdict.” The jury stayed in the jury room approximately three minutes and returned the following verdict:

As is apparent, the foreman wrote “void” over the “$4,500” sum and initialed it, and entered “$45,000” and initialed that.

The trial judge entered a judgment upon the jury verdict for $45,000.

The Power Company argues:

1. There was a discharge of the jury prior to the activity in court leading to the entry of judgment.

2. The judgment(s) of the court were based upon the second deliberation of the jury.

3. There was no acceptance by the court of the oral declaration of the jury as a verdict.

4. The court had no further authority to reassemble the jury and allow its rede-liberation upon having noted the disparity between the announcement and the written verdict.

5. The court did not attempt to correct or amend the original verdict of the jury, but apparently rejected the first finding and announcement by the jury entirely and ordered a redeliberation of the case by the jury.

This case is one of first impression, on the exact point involved.

We could discuss at length, whether the oral verdict was true, whether the jury was discharged and therefore could not be reassembled, and other points regarding jury verdicts, but we consider it unnecessary to do so. It is obvious from what transpired in this case that the $4,500 sum entered on the written verdict was a clerical error. Rule 60(a), ARCP, provides:

“Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ.”

The verdict can be either written or oral. St. Clair v. Caldwell & Riddle, 72 Ala. 527 (1882). It can be general or special. Rule 49, ARCP.

It is abundantly clear that the general verdict of the jury in this case was in favor of the plaintiff and for the sum of $45,000. Consequently, the lower court did not err. cf. Alexiou v. Christu, 285 Ala. 346, 232 So.2d 595 (1970).

Affirmed.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.


text:
    LOCAL #2206, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al. v. Carl E. CHAMBLEE.
    SC 1210.
    Supreme Court of Alabama.
    Dec. 4, 1975.

      Geoíge C. Longshore, Birmingham, for appellants.
    John Martin Galese, Birmingham, for ap-pellee.
   MADDOX, Justice.

The issue in this case is whether a former member of a government employees’ union was eligible for membership in the union as a “retired” member.

Carl Chamblee was a civil service employee with the United States government for several years. He was a member of Local #2206, American Federation of Government Employees, during part of this time. Chamblee left his government employment. Whether he “resigned” or “retired” is the basic dispute between him and his union. Chamblee was dropped from the membership rolls of the union. He sued the union and several of its officers, claiming that he was eligible for membership as “retired.” He also asked for damages. The trial court found in his favor. The union appeals, claiming:

(1) Chamblee resigned from the federal service.

(2) .Chamblee was not eligible to “retire” from the federal service.

(3) That “resign” and “retire” are not synonymous terms in the federal system and that the union follows this distinction in its membership and eligibility rules, and

(4)No “resigned” employee has ever held membership in Local #2206.

The union contends that it had the right, as a voluntary association, to make its own rules and regulations governing eligibility for membership, and that a member of a voluntary association must first exhaust internal remedies before filing suit. Chamblee agrees that the union had the right to make its own regulations, but he says that in administering its rules, the union must act in good faith and must not violate the laws of the land or the rights of their members, and that the union failed to follow those standards in his case. Chamblee also agrees that, as a general rule, a member of a voluntary association must first exhaust all internal remedies, but he claims that it would have been futile in his case to seek relief through union procedure because the individuals he named as defendants in the lawsuit were officers in control of all union channels of relief, and since he sought compensation in damages, he need not allege that he has sought relief through union channels. We agree with the contentions of the union in this particular case. In his lawsuit, Chamblee sought, and received, reinstatement in the union as a “retired” employee. Chamblee contends that this relief was proper since he claims damages, and that appeal within the union would not afford full redress. He cites Grand International B. of L. Engineers v. Green, 210 Ala. 496, 98 So. 569 (1923). As we read the Grand International B. of L. Engineers case, it stands for the proposition that when a member seeks “reinstatement,” it is necessary for him to seek relief within the union first. This Court there held as follows:

“Several special pleas advanced the proposition that plaintiff had no standing in court by reason of the fact that he had not exhausted the remedy in such cases afforded by the law of the association for that he had failed to appeal to the General Convention. If plaintiff had proceeded with the purpose merely to compel his restoration to membership, it would have been necessary that he first seek relief in the tribunal .of final decision within the organization (State ex rel. McNeill v. Bibb Street Church, 84 Ala. 23, 4 So. 40; Medical & Surgical Society v. Weatherly, 75 Ala. 248) — this for the reason that the remedy in the courts is of such nature that it is allowed as a last resort. In the present case the plaintiff does not seek reinstatement; he seeks compensation in damages for the injury done to his personal and property rights by the wrongful, malicious, or wrongful and malicious, expulsion from the brotherhood. The authorities may not be in agreement as to whether in such case the plaintiff must need show that he has taken the judgment of the tribunal of last resort within the organization; but our judgment is that the better view is that the plaintiff in a case such as we have here need not allege or show that he has sought by appeal to avoid the decree of expulsion for the reason that a reversal of the decree would not afford full redress for the injury to his property rights and other damages suffered on account of his expulsion from the brotherhood. Thompson v. Grand International Brotherhood of Locomotive Engineers, 41 Tex. Civ.App. 176, 91 S.W. 834; 5 C.J. 1357.”

In his complaint, Chamblee affirmatively seeks “reinstatement.” In essence, he sought to have the Court construe the constitution and bylaws of the union and to order his reinstatement as a “retired” member. Chamblee does not allege bad faith or discrimination in his complaint, but makes only a conclusionary assertion of arbitrariness. As was said in Sharp v. Brotherhood of Locomotive Engineers, 223 Ala. 202, 135 So. 327 (1931):

“The facts alleged are incompatible with any charge of fraud or unfair or arbitrary ruling, and no such charge is made, but they show only a construction of the rules of the order upon a matter as to which an honest difference of opinion may well appear to exist. But the courts are indisposed to interfere with the internal management of such organizations, and do not grant relief under such circumstances. Grand International B. of L. Engineers v. Green, 210 Ala. 496, 98 So. 569, 572. As said by the West Virginia court in Simpson v. Grand International B. of L. Engineers, 83 W.Va. 355, 98 S.E. 580, 587; ‘The construction of the organic agreement, bylaws, rules and regulations of a benefit society or other unincorporated voluntary association belongs, not to the court, but to the board, council, or other tribunal provided for the purpose in the organization, if any. So long as the body upon which this power of interpretation has been conferred does not substitute legislation for interpretation, nor transgress the bounds of reason, common sense or fairness, nor contravene public policy or the laws of the land, in their conclusions and decisions, the courts cannot interfere with them.’ ”

Implicit in the court’s decree ordering Chamblee’s reinstatement is a finding that under the union’s constitution and bylaws, Chamblee was a “retired” employee. The court erred in making this finding.

Alabama follows the generally accepted view throughout the country that the court will not interfere with the internal operations of a voluntary association. The lower court violated this rule of “noninterference” and because of that, its judgment is due to be reversed and the cause is remanded.

^ , , , . Reversed and remanded.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.

      . That the court misconstrued its role and undertook to interpret union rules is shown by the following colloquy:
      “Q Well, let me ask you this, you’re fam-ilar with the constitution and by-laws of Local 2206?
      “A Yes, sir.
      “Q Now tell us the official position of Local 2206 with respect to the right of an employee who resigns from federal service as spposed to retires — that right to retain a membership in the local union.
      “MR. GALE SB: We object.
      “THE COURT: Sustained. That involved the province of the Court, that is what I have got to decide from the evidence in this case—
      “MR. LONGSHORE!: Let me make a comment about the—
      “THE COURT: His opinion about what the constitution says is not interesting to me any more than Mr. Chamblee’s or anybody else.
      “MR. LONGSHORE: Let me make this brief comment. I make this brief comment that I urge the Court to take his approach to this case that these people have a right as an organization, an unincorporated association, to make their rules and construe those rules.”


author: ALMON, Justice.

text:
    Robert H. WALKER v. Wesley H. ROE et al.
    SC 1281.
    Supreme Court of Alabama.
    Nov. 13, 1975.
    Rehearing Denied Dec. 18, 1975.
    Phil Joiner, Birmingham, for appellant.
    Nash, NeSmith & Walker, Oneonta, for appellees.
   ALMON, Justice.

Appellant Walker brought suit to sell certain land in Blount County for division.

After hearing evidence ore tenus the trial court denied the relief sought by appellant. The court found that appellee Barber purchased the land in December, 1952, and went into actual possession at that time. He further found that Barber and his tenants have remained in actual possession for a period in excess of twenty years. Morris v. Yancey, 267 Ala. 657, 104 So.2d 553.

When evidence is heard orally the finding of the trial court has the effect of a jury verdict and if fairly supported by credible evidence will not be disturbed on appeal, unless plainly erroneous. Ala. Digest, Appeal and Error, Key <®==51009.

There is ample evidence to support the judgment of the trial court.

The judgment is therefore affirmed.

Affirmed.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.