author: STEWART, LEON F., Associate Judge. BOYER, Judge PER CURIAM.

text:
    CITY OF JACKSONVILLE, a municipal corporation, and Transportation Insurance Company, an insurance corporation, Appellants, v. Julian W. WALTON, Jr., Appellee.
    No. U-220.
    District Court of Appeal of Florida, First District.
    June 30, 1975.
    Rehearing Denied Aug. 28, 1975.
    Walter L. Robison, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellants.
    J. Richard Moore, Corrigan, Werber & Moore, Jacksonville, for appellee.
   STEWART, LEON F., Associate Judge.

This is an appeal from a verdict and judgment in favor of Appellee, plaintiff below, against the Appellants, City of Jacksonville, a municipal corporation, and Transportation Insurance Company, its insurance carrier, defendants below. Plaintiff had sued the defendant for false arrest and imprisonment.

At about 5:00 a.m. on November 5, 1972, two police officers of the City of Jacksonville noticed a 1967 yellow and black Cá-maro being driven erratically on the service road of the Arlington Expressway in Jacksonville. They fell in behind the automobile and stopped it when, in their opinion, it continued to be driven erratically. Appellee’s brother-in-law was driving and furnished the officers with identification and a valid driver’s license. There was a conflict in the evidence as to whether Ap-pellee showed any identification. After determining that there were no outstanding warrants against either of the men and that the car was not stolen, the officers apologized and left, heading toward downtown Jacksonville.

The officers then heard a report of a rape In the downtown area. The rapist was described as heavy-set, six feet tall, light skinned, wearing a black hat, and driving a gray Grand Prix. The officers continued downtown, gassed up their car, and then decided that one of the men in the Camaro which they had stopped could be the rapist. Meanwhile, Appellee herein had called the police station to report that he was unable to find his wallet after the officers left. The officers returned to the scene where they had first seen Appellee and his brother-in-law. They were still there. Appellee had found his wallet, and showed identification. The officers then arrested him.

It was undisputed that Appellee produced identification giving his correct name. The police had been supplied with the name of the suspect, to-wit, Donald McIntyre. Further, the arresting officers refused to drive 400 feet from the arrest scene to talk to Appellee’s wife, but took Appellee to jail. We might note here that the jury could have determined from the testimony that the only part of the description given by the victim to the police which matched that of Plaintiff-Appellee was that both were black.

Appellee was taken to jail, where he was charged with A & B and assault with intent to commit rape. He was fingerprinted, photographed, and booked. Upon being shown the photograph of Appellee and his brother-in-law the victim stated that neither of the men was the one who assaulted her, and that Donald McIntyre looked nothing like Appellee. Thereafter the charges against Appellee were dismissed.

Plaintiff-Appellee brought suit against the City of Jacksonville and the arresting officers for false arrest and false imprisonment, which ended in a jury verdict for the Plaintiff-Appellee and against all the defendants therein.

Appellants contend that the issue before the Court on this appeal is whether the arrest of Plaintiff-Appellee without a warrant was valid.

Appellee contends that the issue is whether or not, at the time of Plaintiff-Appellee’s arrest, the arresting officers had reasonable grounds or probable cause to believe that he had committed the assault with intent to commit rape.

We agree with Appellee’s statement of the issue.

Florida Statutes, Sec. 901.15, provides when arrests by officers without a warrant are lawful. The applicable portions read:

“901.15 When arrest by officer without warrant is lawful — A peace officer may arrest a person without a warrant when: * * *
“(3) He reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it.”

Appellants and Appellee agree that the test in determining whether there existed reasonable ground to arrest without a warrant in the case sub judice is the sufficiency of the knowledge by the arresting officer, put to the test of what a reasonable man knowing all the facts within the knowledge of the officer, would have believed under the circumstances.

The Supreme Court of this State in the case of State of Florida v. Outten, 206 So.2d 392, defined “probable cause” as follows :

“The facts constituting probable cause need not meet the standards of conclusiveness and probability required of the circumstantial facts upon which conviction must be based. The sufficiency of the officer’s knowledge is not to be judged by an analysis of the effect of each isolated circumstance. Rather, it is to be measured by the test of what a reasonable man would have believed had he known all of the facts known by the officer.”

This test of what a reasonable man, possessed of the knowledge of the police officer, would have believed was followed also in the cases of Russell v. State, 266 So.2d 92 (3d, Fla.App.); Hardy v. State, 276 So.2d 536 (4th, Fla.App.); State v. Knapp, 294 So.2d 338 (2nd, Fla.App.).

Mr. Justice Powell of the Supreme Court of the United States, in the case of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), stated:

“The standard for arrest is probable cause, defined in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’ ”

In the case sub judice it is quite obvious that the jury determined and did find that the arresting officers, with the knowledge of all the facts, when viewed in the light of what a reasonable man would believe, where not justified in the arrest of Plaintiff-Appellant. From our review of the transcript of the trial we can find nothing to justify our finding that the jury’s verdict was against the manifest weight of the evidence.

Therefore the verdict and judgment entered below are hereby affirmed.

JOHNSON, J., concurs.

BOYER, Acting C. J., concurs specially.

BOYER, Judge

(concurring specially).

I concur in the conclusion reached under the circumstances of this particular case. However, I am anxious that our opinion here be not construed as a criticism of law enforcement officers in the diligent performance of their duties. Hindsight is much better than foresight and it is frequently easy upon meditation and cogitation to decide that there was a better alternative to a prior course of action. Police officers seldom enjoy the luxury of an opportunity to meditate before acting. Their actions must, of necessity if they are to be effective, be swift. (See Price v. Gray’s Guard Service, Inc., Fla.App. 1st 1974, 298 So.2d 461) However, hectic as it may be the requisites of probable cause must be satisfied. (See Russell v. State, Fla.App. 1972, 266 So.2d 92)

The salient facts, in my view, here are that the victim knew the identity of her assailant and not only did appellee identify himself as not being that person but he also sought to induce the arresting officer to confirm his identity by his wife who was sleeping approximately 300 feet from the place of arrest. There was no opportunity for appellee to escape under such circumstances, should he have not been the person that he claimed that he was and positive identification was immediately available. Under such circumstances, there having been nothing to indicate any imminent danger to the officers personally nor to the charge that they were attempting to make, there was no valid reason for the officer not to have complied with appel-lee’s request for confirmation of his identification which would have immediately demonstrated that he was not the man that the officers were looking for. Were the uncontradicted facts not such I would favor reversal.

ON PETITION FOR REHEARING DENIED

PER CURIAM.

Appellants have filed a petition for rehearing urging, among other things, that the petitioner, City of Jacksonville, is liable, if at all, only under principles of resp.ondeat superior, and only to the extent that the arresting officers would themselves be liable, citing Modlin v. City of Miami Beach, Sup.Ct.Fla.1967, 201 So.2d 70. We recognize the proposition urged by appellant, City of Jacksonville, and take no issue therewith. Indeed, we inferentially acknowledged appellant’s assertion in our original opinion. We find nothing in the Modlin case in conflict therewith.

Appellants, in their petition for rehearing, also cite to us Porter v. State, Fla.App. 3rd 1974, 302 So.2d 481, wherein our sister court of the Third District said:

“ * * * Whether probable cause existed to make the arrest is to be determined from the facts and circumstances existing at the time viewed through the eyes of the arresting officer; that is, what a reasonable man, knowing all of the facts within the cognizance of the officer, would have believed under the circumstances.”

With that principle of law we are in total agreement. It fits like a glove ap-pellee’s case. It will be noted that we recited in the majority opinion:

“Appellants and Appellee agree that the test in determining whether there existed reasonable ground to arrest without a warrant in the case sub judice is the sufficiency of the knowledge by the arresting officer, put to the test of what a reasonable man knowing all of the facts within the knowledge of the officer, would have believed under the circumstances.”

Appellants finally refer us to City of Miami v. Nelson, Fla.App. 3rd 1966, 186 So.2d 535, certiorari denied 194 So.2d 621, particularly the recital therein to the effect that where there is no dispute in the testimony about the facts constituting the reasonable ground for belief that a felony has been committed, that question is for the court to decide. We take no issue with the holding in that case as applied to the facts sub judice. (See however Oosterhoudt v. Montgomery Ward and Co., Fla.App. 1st 1975, 316 So.2d 582).

Having considered each argument raised in appellants’ petition and having carefully examined each authority cited, we conclude that the petition for rehearing should be, and is,

Denied.

BOYER, C. J., SMITH, J., and STEWART, LEON F., Associate Judge, concur.


source: Caselaw Access Project

author: OWEN, Judge.

license: Public Domain

text:
    Raymond M. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-87.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
    Rehearing Denied Sept. 29, 1975.

      Peter F. K. Baraban, North Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant was convicted of possession of cocaine and possession of marijuana in excess of five grams. Of the several points he urges as error on appeal, we find merit in only one, that relating to improper and prejudicial remarks made by the prosecutor in his closing argument to the jury, but this error alone is sufficient basis for reversing appellant’s conviction and remanding the cause for a new trial.

The evidence adduced at trial revealed this to be a “close case”. Pursuant to a search warrant directing that a search be made of appellant’s “premises”, the Hollywood police found and seized the drugs giving rise to the instant prosecution in the yard adjacent to appellant’s converted garage residence. Several other residences abutted this yard, however, and various other persons besides appellant had access to it. The only evidence linking the seized drugs to appellant was the testimony of one officer at the scene, a Detective Fra-zer, that when the drugs were discovered, appellant stated, “Hey man, you found my stash” and “Hey, you should have waited until tonight. It is my birthday and everything would have been inside.” Despite the fact that approximately ten police officers were at the scene to conduct the search, the State produced only Frazer< to testify as to these critical damaging admissions. Appellant took the stand in his own behalf and categorically denied ever making any such statements. ,

The prosecutor freely admitted in his closing argument to the jury that the defendant’s alleged admissions were crucial to the establishment of the State’s case, that the State’s case hung on the jury’s acceptance of Detective Frazer’s word over that of appellant:

“But the key point, the place we are hanging our hat, and we are sticking our case on, the most important point of this whole case, are the damning statements that the Defendant made himself.
^ ^ ‡
“If it weren’t for those statements, we wouldn’t be here today, because I wouldn’t have a case.”

Unfortunately, however, the prosecutor did not leave the subject with these comments, but continued:

“Now there were a lot of officers there; and I did tell you that I was going to present five of them. This was a mistake on my part, because at the time I thought that I was going to, but there wasn’t any need.
“I said to myself, “Should I swamp them in quantity, or shall I give them one good witness?” I just presented one witness who heard those statements.
******
“There’s no doubt in Detective Fra-zer’s mind that those statements were made by the Defendant; and he was sure of that. He testified — He swore under oath; and, in my own mind, I was sure that he was telling me the truth that Defendant made these statements.
“I could have put on those other police officers who were in my office who heard Detective Frazer say that this man said those statements. I saw no need. So hold it against me. Don’t hold it against Detective Frazier. I could have brought in other witnesses, just like defense counsel said, just like Sergeant Pa-citti could have submitted those things for fingerprint analysis. Sure, he could have, but he didn’t feel there was a need. He thought he had a good case, "

We note, at the outset, that the absence of an appropriate objection or motion by defense counsel below is not fatal to our consideration of this point on appeal. The rule is generally stated that:

“ . . . whether requested to or not, it is the duty of the trial judge to check improper remarks of counsel to the jury, and by proper instructions to remove any prejudicial effect such remarks may have created. A judgment will not be set aside because of the omission of the judge to perform his duty in the matter unless objected to at the proper time. This rule is, however, subject to the exception that if the improper remarks are of such character that neither rebuke 'nor retraction may entirely destroy their sinister influence, in such event, a new trial should be awarded regardless of the want of objection or exception.” Carlile v. State, 129 Fla. 860, 176 So. 862, 864 (1937).

Accord, Wilson v. State, 294 So.2d 327 (Fla.1974); Grant v. State, 194 So.2d 612 (Fla.1967); Pait v. State, 112 So.2d 380, 385 (Fla.1959); Goddard v. State, 143 Fla. 28, 196 So. 596, 600 (1940). We believe the prosecutor’s remarks in this case to have been so prejudicial to the rights of the accused and unsusceptible to eradication by rebuke or retraction as to necessitate the reversal of appellant’s conviction for the award of a new trial.

It is well settled that a prosecutor must confine his closing argument to evidence in the record and must not make comments which could not be reasonably inferred from that evidence. Blanco v. State, 150 Fla. 98, 7 So.2d 333, 339 (1942). While some courts have subscribed to the view that it is not improper for a prosecutor to express his individual belief in the guilt of the accused under certain circumstances — i. e., if such belief is based solely on the evidence introduced and the jury is not led to believe that there is other evidence known to the prosecutor (but not introduced) justifying that belief — see, Henderson v. United States, 218 F.2d 14, 1950 A.L.R.2d 754 (6th Cir. 1955), cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955); United States v. Dawson, 486 F.2d 1326 (5th Cir. 1973), it has consistently been held to be reversible error for the prosecutor to express his belief in the guilt of the accused, McMillian v. United States, 363 F.2d 165 (5th Cir. 1966), or the credibility of a key witness, United States v. Lamerson, 457 F.2d 371 (5th Cir. 1972); Gradsky v. United States, 373 F.2d 706 (5th Cir. 1967), where doing so implies that he does have additional knowledge or information about the case which has not been disclosed to the jury.

. . the inquiry should be whether the prosecutor’s expression might reasonably lead the jury to believe that there is other evidence, unknown or unavailable to the jury, on which the prosecutor was convinced of the accused’s guilt.” McMillian v. United States, supra, at 169.

Nothing as subtle as an expression of belief in guilt implying access to additional evidence occurred in the case at bar. Instead, the prosecutor here represented outright to the jury that he had additional evidence of appellant’s guilt which he simply saw no need to present to them. This representation was highly improper and prejudicial, especially in the context of this case.

It has been held that particularly careful attention must be given to improper and prejudicial argument made in a close case. Goddard v. State, supra; Handford v. United States, 249 F.2d 295 (5th Cir. 1957):

“In a close case, appeals to prejudice take on added weight. When the scales of justice may tip either way and a man’s liberty lies in the balance, courts must be especially vigilant to protect an accused.” Handford v. United States, supra, at 296.

It is quite obvious that in the case at bar, where the jury’s verdict hinged upon a weighing of the credibility of a single State’s witness and a single defense witness, the prosecutor’s allusion to additional witnesses and evidence could have had the effect of unfairly tipping the scales.

The oft stated rule in this state is :

“ . . . that when a prosecuting attorney has indulged in improper argument, the question is whether or not the court can see from the record that the conduct of the prosecuting attorney did not prejudice the accused, and unless this conclusion can be reached the judgment must be reversed.” McCall v. State, 120 Fla. 707, 163 So. 38, 46 (1935).

Accord, Roundtree v. State, 229 So.2d 281 (1st DCA Fla.1969); Chavez v. State, 215 So.2d 750 (2nd DCA Fla.1968). Applying this rule in the case before us, we find it necessary to reverse appellant’s conviction and remand the cause for a new trial.

WALDEN, C. J., and YAWN, THERON, Associate Judge, concur.


author: RAWLS, Acting Chief Judge.

text:
    George CATCHES, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. X-238.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1975.
    Rehearing Denied Oct. 6, 1975.

      Jack S. Graff of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Resenbloum & Magie, Pensacola, for appellant.
    Robert P. Gaines of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appel-lee.
   RAWLS, Acting Chief Judge.

This is the second appeal in this cause. An essential fact pertinent to this appeal set out in our prior opinion is: “Appellant brought this suit praying for equitable distribution of the $5,000 PIP benefits. Ap-pellee contends it is entitled to reimbursement of the full $5,000.” [Emphasis supplied.] We held that the trial court erred in denying equitable distribution and reversed.

Now, appellant contends that the trial court, after awarding equitable distribution, erred in not awarding him attorney’s fees incurred in sustaining his position as to his “dispute” with his insurer and relies upon a statement by this Court in Dunmore v. Interstate Fire Insurance Company to such effect. As appellee so aptly points out, in Dunmore the insured filed an application with his insurer for personal injury protection benefits. The insurer did not make payment within the 30-day statutorily dictated period. The insured, upon the insurer’s failure to comply with the terms of the policy, was forced to seek judicial recourse. Clearly, he was entitled to attorney’s fees.

An analogous situation is here presented. Appellee Government Employees did initially pay appellant Catches $5,000.00 he was entitled to by reason of the policy provision for personal injury protection benefits. However, upon the appellee recovering from his tort-feasor, Government Employees took the position that according to the terms of its policy (as amended statutorily), it was entitled to recover the $5,000.00 it had previously paid, and that it was not subject to equitable apportionment. Government Employees, in effect, denied a material obligation of coverage to its insured. We hold that upon such denial, the trial judge erred in not awarding attorney’s fees pursuant to the provisions of Florida Statute 627.428(1). We do not hold that an insurer, who in good faith negotiates with its insured as to the “equitable distribution” of sums recovered from a tort-feasor, is liable for attorney’s fees when the insured pursues judicial relief.

Reversed and remanded.

McCORD, J., and SMITH, SAMUEL S., Associate Judge, concur.

      . Catches v. Government Employees Ins. Co., 295 So.2d 116 (1 Fla.App.1974).

      . Dunmore v. Interstate Fire Insurance Company, 301 So.2d 502 (1 Fla.App.1974).


author: McCORD, Judge.

text:
    ACCREDITED SURETY AND CASUALTY COMPANY, INC., Appellant, v. STATE of Florida, Appellee.
    No. X-12.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.
    James L. Harrison, Harrison & Fine-gold, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

This is an appeal from an order denying appellant’s motion to vacate and set aside a bond forfeiture and to discharge surety. Appellant posted a bond to insure the appearance of one James Spalding to answer charges of uttering a forged instrument and possession of stolen property. Spald-ing appeared in court on a number of occasions in relation to the charges and ultimately appeared on June 24, 1974, and pled guilty to uttering a forged instrument. The court ordered a presentence investigation and deferred sentencing until July 19, 1974. Spalding appeared on July 19 but sentencing was deferred until August S. On August 5 Spalding failed to appear. Pursuant to the court’s order, appellant was notified that the bond would be es-treated on August 9 unless Spalding was produced. Spalding failed to appear on August 9 and the court entered an order of forfeiture. Appellant subsequently filed a motion to vacate and set aside the forfeiture and to discharge surety which motion was denied.

Appellant contends that the court erred in failing to grant its motion; that Spald-ing’s conviction occurred when he pled guilty on June 24, 1974, thereby satisfying the conditions of the bond; and that the trial judge should have then canceled the bond. Appellant points out that § 903.31, Florida Statutes, sets forth the conditions under which an order canceling a bond shall be entered by the court as follows:

“When the conditions of a bond have been satisfied or the forfeiture discharged or remitted, the court shall order the bond canceled. Conviction or acquittal of the defendant will satisfy a bond unless the court otherwise provides in the judgment.”

Appellant cites State v. Barnes, 24 Fla. 153, 4 So. 560 (1888), for the proposition that the word “conviction” is used in different ways with different meanings under the law and that its meaning must be found in the context in which it is used. In that early case the Supreme Court was construing the word in connection with a county solicitor’s entitlement to fees for convictions. It stated that “in its ordinary sense, and perhaps technically correct sense,” conviction means the ascertainment of the guilty of a party either by a plea of guilty or by the verdict of a jury. The court also referred, however, to numerous other authorities holding that the judgment or sentence is a necessary component part of a conviction; “that the use of a word in a constitution or statute or judicial decisions may be in such connection as to show that judgment or sentence was to be included in it.” The court held that under the statute there being construed, a sentence of the court was necessary to the county solicitor’s entitlement to a conviction fee.

Appellant argues that forfeitures are not favored at law and a statute providing for forfeiture must be strictly construed; that the term “conviction” should be construed in favor of the party upon whom a burden is placed by the law. Although appellant concedes that a number of more recent opinions of the Florida Supreme Court hold that a conviction necessarily includes an adjudication of guilt, the appellant contends that as used in § 903.31, supra, it does not mean adjudication of guilt; that after a plea or verdict of guilty the probability of a defendant’s leaving the jurisdiction of the court in order to escape punishment for an offense is considerably greater; that his increased risk to the surety would constitute such a change of conditions as to make the contractual agreement unconscionable by the burden placed upon the surety.

There has been considerable evolvement of the criminal law since the Supreme Court’s 1888 opinion in Barnes, supra. In more recent years, the Supreme Court and appellate courts have consistently held that a verdict or plea of guilty is not a conviction; that conviction requires a judgment of conviction — an adjudication of guilt. (See cases previously cited.) In this connection, Rule 3.670, F.R.Cr.P., provides as follows:

“If the defendant is found guilty, a judgment of guilty, and, if he has been acquitted, a judgment of not guilty, shall be rendered in open court and in writing, signed by the judge, filed, and recorded. However, the judge may withhold such adjudication of guilt if he places the defendant on probation.
When a judge renders a final judgment of conviction, withholds adjudication of guilt after a verdict of guilty, imposes a sentence, grants probation or revokes probation, he shall forthwith inform the defendant concerning his rights of appeal therefrom, including the time allowed by law for taking an appeal.”

Rule 3.650, F.R.Cr.P., provides :

“The term ‘judgment’ means the adjudication by the court that the defendant is guilty or not guilty.”

Rule 3.690, F.R.Cr.P., provides:

“When a judgment of not guilty is entered, the defendant, if in custody, shall be immediately discharged therefrom unless he is in custody on some other charge; if he is at large on bail, his surety shall be exonerated and if money or bonds have been deposited as bail, such money or bonds shall be refunded.” (emphasis supplied)

The foregoing rule makes it clear that the court’s judgment of not guilty exonerates the surety and not the verdict of not guilty.

Reverting back to the intent of § 903.31, supra, as to the meaning of the term “conviction” in the context there used, the last sentence of that previously quoted statute says:

“ . . . Conviction or acquittal of the defendant will satisfy a bond unless the court otherwise provides in the judgment." (emphasis supplied)

The judgment referred to in the above emphasized phrase can only mean the judgment of conviction — the adjudication of guilt (or the judgment putting the accused on probation if adjudication of guilt is withheld). A plea or verdict is not a judgment. It would bé incongruous' to say that the court could provide in the judgment that the bond is not satisfied if it had already been automatically discharged.

In addition, under Rule 3.130, F.R.Cr.P., all persons in custody for the commission of a noncapital offense are entitled to be admitted to bail before conviction as a matter of right. After conviction under Rule 3.691, F.R.Cr.P., a person is not entitled to be admitted to bail as a matter of right pending review of the conviction, but his admission to bail is within the discretion of the court. Under said rule, admission to bail pending review of the conviction, applies to persons who have been adjudicated guilty of the commission of an offense. There can be no review until judgment is entered. Thus, the breakpoint between the time when one charged with a crime is entitled to bail as a matter of right and one who is entitled to bail in the discretion of the court is the adjudication of guilt. That is the point at which he has been convicted. A person who has been found guilty by verdict or had pled guilty may be placed on probation under Rule 3.-790, F.R.Cr.P., without being adjudicated guilty. The obvious purpose of this is to give such a person an opportunity to become rehabilitated and to protect him against a blemished record of conviction in the process. If we were to rule that he was convicted when'he was found guilty by verdict or pled guilty, the withholding of an adjudication of guilt in placing him on probation would be a meaningless gesture. Obviously, he is not convicted until the court makes an adjudication of guilt — a judgment of conviction.

We cannot agree with appellant that an increased risk to the surety after a plea or verdict of guilty would constitute such a change of conditions as to make the contractual agreement unconscionable by the burden placed upon the surety. Were the surety to be discharged before an adjudication of guilt, such would create a hiatus in that it would create a period of time after guilty verdict or guilty plea and before adjudication of guilt (a judgment of conviction) in which a person charged with a crime would be entitled to bail as a matter of right but whose bond had been automatically discharged previously.

Affirmed.

RAWLS, Acting C. J., and SMITH, J., concur.

      . Daughtrey v. State, 46 Fla. 109, 35 So. 397 (1903); Smith v. State, 75 Fla. 468, 78 So. 530 (1918); Weathers v. State, Fla., 56 So. 2d 536 (1952), and Delta Truck Brokers, Inc. v. King, Fla., 142 So.2d 273 (1962).


author: GRIMES, Judge.

text:
    JOSEPH L. ROZIER MACHINERY COMPANY and Continental Casualty Company, Appellants, v. NILO BARGE LINE, INC., Appellee.
    No. 74-167.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
    Rehearing Denied Sept. 18, 1975.
    Charles W. Pittman, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    Thomas T. Steele, Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for ap-pellee.
   GRIMES, Judge.

This suit involves the interpretation of an indemnity clause in an equipment rental contract.

Ralph Hersey was an employee of Nilo Barge Line, Inc. (Nilo). At the direction of his employer, Hersey drove a truck from Tampa to Orlando to rent a portable generator from Rozier Machinery Company (Rozier). At Rozier’s office Hersey signed Rozier’s form equipment lease contract on behalf of his employer. The contract provided in part:

INDEMNITY — NON-VEHICLE — Customer shall defend, indemnify and hold forever harmless Lessor, its subsidiary and affiliated companies, their officers, agents and employees, against all loss, liability and expense, including reasonable attorneys’ fees, by reason of bodily injury including death, and property damage, sustained by any person or persons including but not limited to employees of Customer, as a result of the maintenance, use, operation, storage, erection, dismantling, servicing or transportation of Equipment other than Vehicles, whether such bodily injury, death, or property damage are due or claimed to be due to any negligence of Lessor, employees or agents of Lessor or any other person.

Rozier’s employees attached the portable generator to Hersey’s truck. The generator was similar to a trailer and had its own wheels. As Hersey was driving back to Tampa a wheel fell off the generator causing an accident in which Hersey was injured.

Hersey sued Rozier for personal injuries alleging, inter alia, that the generator wheels had been negligently maintained. Rozier then filed a third-party action against Nilo for indemnity.

At the pretrial conference the judge ruled that the indemnity clause applied only to negligence occurring after the equipment lease contract was executed. At the trial, the judge submitted special interrogatories, which were answered by the jury as indicated below:

1. Was the defendant, JOS. L. ROZIER MACHINERY CO., negligent?
Yes X
No ZZZI
2. If so, did such negligence occur before or after the equipment lease agreement, Defendant’s Exhibit No. 4, was signed?
Before X
After _

The jury returned a verdict for Hersey in the amount of $110,000. Thereupon, a final judgment was entered for Hersey against Rozier, and a final judgment was entered against Rozier and in favor of Nilo on the third-party claim. Rozier appeals the latter judgment.

At the outset, it should be noted that Ro-zier does not dispute the fact that there is evidence in the record which would support the conclusion that the negligence occurred before the equipment lease contract was signed. Likewise, there is no contention that Hersey was not authorized to sign the lease contract on behalf of his employer. Thus, the narrow issue is whether the indemnity provision will permit Rozier to obtain indemnification from Nilo for Rozier’s negligence occurring before the contract was signed.

The posture of the parties in this case is similar to Penker Construction Company v. Finley, Ky.App.1972, 485 S.W.2d 244. Finley was injured while operating an end loader in the employment of Penker. Finley sued Brandéis which had furnished the end loader to Penker. Brandéis brought a third-party action against Penker for indemnity. The jury answered a special interrogatory to the effect that the end loader was defective and dangerous at the time it was delivered by Brandéis to Penker. Affirming the granting of indemnity based upon a provision of the lease agreement, the court said:

“The trial court did not err in granting Brandéis indemnity against Penker. Brandéis was originally sued by Finley, and brought Penker into the suit on a third-party complaint based solely on an indemnity provision in the contract under which Penker leased the end loader from Brandéis with an option to purchase. In our opinion, the indemnity provision in the contract is all-inclusive and so broad in its scope as to clearly uphold Brandéis’ indemnity against Penker. The lease agreement used the broadest possible terms, and if Penker had not intended to be bound by the agreement, it should not have entered into the contract in the first place. Having determined that Brandéis is enti-tied to indemnity against Penker we need not discuss whether or not the question was preserved by Penker for appellate review.”

Contracts of indemnification which attempt to relieve a party of its own negligence are not looked upon with favor. Nat Harrison Associates, Inc. v. Florida Power & Light Co., Fla.App.3d 1964, 162 So.2d 298. However, such contracts are valid, providing they express an intent to indemnify against the indemnitee’s own negligence in clear and unequivocal terms. University Plaza Shopping Center, Inc. v. Stewart, Fla.1973, 272 So.2d 507.

The court below interpreted the provision in question to provide for indemnification, but only for negligence which occurred after the equipment lease contract was executed. We cannot find such a distinction in the language of this provision. Disregarding irrelevant portions, the indemnity provision requires Nilo to indemnify Rozier “against all loss ... by reason of bodily . . . injury . sustained by any person . . . as a result of the maintenance, use ... or transportation of equipment whether such bodily injury [is] due or claimed to be due by any negligence of” Rozier. The wording is specific and unambiguous. It is not in conflict with any other provision in the contract.

The language makes it unmistakably clear that Nilo was to indemnify Rozier against losses due to “any negligence” of Rozier. University Shopping Center Plaza v. Stewart, supra. The use of the comprehensive word “any” precludes the contention that the parties intended to exclude negligence which occurred prior to the execution of the contract. See Escambia Land and Manufacturing Co. v. Ferry Pass Inspectors’ & Shippers’ Association, Fla.1910, 52 So. 715; Freigy v. Gargaro, Inc., Ind.1945, 60 N.E.2d 288.

The judgment is reversed, and the case is remanded with directions to enter a judgment in favor of Rozier against Nilo.

HOBSON, Acting C. J., and SCHEB, J., concur.


author: SCHEB, Judge.

text:
    Rosa Morgan HOSKING, Appellant, v. Bruce William HOSKING, Appellee.
    No. 74-1449.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.

      A. J. Melkus, Law Office of Clifford J. Schott, Lakeland, for appellant.
    Clinton A. Curtis of Woolfolk, Myers, Curtis, Craig & Crews, Lake Wales, for ap-pellee.
   SCHEB, Judge.

In a suit for dissolution of marriage the trial court awarded custody of a child of tender years to the father. The mother appeals contending the trial court erred in:

(1) Considering a social investigator’s report on the issue of custody without first making such report available to the parties; and
(2) Awarding custody of their child to the father despite a finding that she was a fit and proper person to have custody.

Finding no reversible error, we affirm.

The appellant (mother) and appellee (father) each sought custody of their son who was born in August, 1972. After hearing testimony of the parties and with consent of counsel, the trial judge ordered the court’s social investigator to make a report and recommendations on the question of custody of the parties’ son. Although filed with the court, it is true that the report was neither introduced into evidence, nor made available to counsel for the parties. It was, however, considered by the trial judge before he entered the final judgment awarding custody, and filed at the same time as the final judgment.

As noted, the social investigator’s report was prepared with the consent of counsel for the parties. Moreover, the record reveals no objection was made to its review by the trial judge.

Appellant moved below for a rehearing, merely reciting broadly that the court erred in awarding custody to the father. In argument on the motion, appellant’s counsel indicated that the father may have unduly influenced the social investigator, whereupon the trial judge indicated a willingness to hear any evidence which might be offered on this point, but none was proffered. In a motion for rehearing the movant must state with particularity the grounds therefor. RCP 1.100(b). Appellant’s motion did not assign any specific errors on the part of the court as to the report; therefore, the contention that she was not permitted to refute or question the social investigator’s report is not available to her on appeal. It is fundamental that an appellate court will review only those questions timely presented and ruled upon in the trial court. Beaty v. Beaty, Fla.App.2d 1965, 177 So.2d 54. Thus we find no reversible error in the court’s consideration of the social investigator’s report.

For the benefit of the Bench and Bar we take the occasion, however, to reiterate that absent consent of the parties, the rule set out by this court in McGuire v. McGuire, Fla.App.2d 1962, 140 So.2d 354, requires a social investigator’s report concerning custody to be made a part of the record, and upon timely demand to be made available for the review of the parties. This rule has been followed by our sister court in In re Brown, Fla.App.3d 1971, 246 So.2d 166. While we do not view the practice of using these reports with the degree of concern expressed by Judge Owen in his recent dissent in Green v. Green, Fla.App.4th 1975, 307 So.2d 246, nevertheless, absent the handling of the report on a consensual basis, due process of law requires that the parties to a custody action be apprised of all of the evidence and considerations brought before the trial judge before the court arrives at a judgment in such a controversy.

We dispose of the appellant’s second point by noting that Fla.Stat. § 61.-13(2) directs that the father and mother shall be afforded equal consideration in matters of custody, and that there was substantial- competent evidence to support the award of custody to the father, notwithstanding the court’s finding that the father and mother were “fit and proper persons” to have custody. Here the trial court simply concluded from the evidence that the father would offer a more stable home environment for the child. The cases in Florida are legion holding that it is, after all, the welfare of the child which is the paramount consideration of the court. The determination of matters involving custody of children is an area of which a trial judge is vested with very broad discretion. Apropos is the following language by our Supreme Court in Grant v. Corbitt, Fla.1957, 95 So.2d 25:

But this court cannot, in any type of case, overturn the decision of a Chancellor made in the exercise of his judicial discretion in the absence of a clear showing of an abuse thereof; and, in a child custody case, the opportunity of the Chancellor to observe the demeanor and personalities of the parties and their witnesses and to feel forces, powers and influences that cannot be discerned by merely reading the record, assumes a new importance because of the many intangibles that must be evaluated in deciding the delicate question of child custody.

Accordingly, the judgment of the trial court is affirmed.

McNULTY, C. J., and BOARDMAN, J., concur.


author: GRIMES, Judge. PER CURIAM.

text:
    Walter STEINHARDT, Petitioner, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent.
    No. 75-431.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Sept. 26, 1975.

      Walter Steinhardt, pro se.
    L. Keith Pafford and David V. Kerns, Tallahassee, for respondent.
   GRIMES, Judge.

By petition for writ of certiorari we are asked to review an order of the Division of Retirement (Division), the crux of which is a finding that petitioner is a member of the Teachers’ Retirement System rather than the Florida Retirment System (FRS).

On August 20, 1964, petitioner, a Pinel-las County school teacher, joined the Teachers’ Retirement System. After teaching for more than ten years, petitioner was placed on terminal sick leave, effective November 2, 1974. On November 6, 1974, petitioner notified his employer, the School Board of Pinellas County, in writing of his election to transfer to FRS, effective January 1, 1975.

Petitioner’s sick leave expired January 31, 1975. On the basis of petitioner’s salary for the month of January, the School Board remitted $85.18 to FRS to be credited to petitioner’s retirement account. Upon application, however, petitioner was denied FRS disability retirement benefits. Petitioner then sought an administrative determination of his retirement system membership. The order of the Division about which petitioner complains recites that petitioner failed to consummate the transfer to FRS by “rendering a service to his employer after the date his transfer was to become effective,” and, further, that petitioner was ineligible for membership in FRS because he “terminated his teaching career on November 1,1974.”

Petitioner argues that he is entitled to FRS membership because he complied with F.S. § 121.051 (2) (a)4 (1974), which provides in pertinent part:

“4. Any . . . employee who was a member of an existing system on December 1, 1970, and who is still a member of an existing system . . . may elect, if eligible, to become a member of this system [FRS] at any time between September 1, 1974, and November 30, 1974, inclusive, by notifying his employer in writing of his desire to transfer membership from the existing system to this system. . . . All members electing to transfer during the transfer period shall become members of the Florida Retirement System on January 1, 1975 . .” (Emphasis added)

We shall discuss the contentions of the Division in turn. First, the Division suggests that the legislature has recognized two distinct classes of retirement system members, i. e., “members” and “terminated members,” and that F.S. § 121.091 (5) (e) (1974) refers to terminated members as those who are “no longer employed by an employer.” The Division argues that there is no provision of the law which allows a “terminated member” to transfer to FRS, and that since petitioner "terminated” his services on November 1, 1974, he could not thereafter become a member of FRS. The fallacy of this position is that petitioner was paid a salary through January 31, 1975, the date on which his sick leave expired. Clearly, petitioner was still “employed” by the School Board on November 6, 1974, when he elected to transfer to FRS. •

Further, the Division argues that pursuant to its rule-making power (F.S. § 121.-031), it has adopted Rule 22B-1.04A., Florida Administrative Code, which provides:

“A. Participation in the Florida Retirement System shall be compulsory as a condition of employment for:
% ‡ *
3. All members of the Teachers’ Retirement System . who elect to transfer to the Florida Retirement System in accordance with the procedures established by the Administrator.” (Emphasis’ added.)

The Division contends that the petitioner failed to follow one of the “procedures” established by the administrator to effect a transfer to FRS, namely that he must:

“Consummate the transfer by assuming the status of a ‘member’ of the Florida Retirement System (i. e., actually participating in the system by rendering a service to the employer after the effective date of the transfer and earning a salary under the system upon which a retirement benefit could be based).”

Under F.S. § 121.031, the rule-making power of the Administrator of FRS is limited to “such rules and regulations as are necessary for the effective and efficient administration of this system.” (Emphasis added.) Rule 22B-1.04A. provides that the administrator may establish “procedures” by which teachers may transfer to FRS. We do not regard the substantive requirement that one actually perform services after the date of his transfer in order to qualify for FRS membership as a “procedure.” This is particularly so since F.S. § 121.051(2) (a)4 (1974) contains no such requirement.

Finally, the Division argues that the .legislature did not intend salary payments for accumulated sick leave to affect the membership status of an otherwise terminated employee. As authority for this proposition, the Division cites F.S. § 121.-021 (24), which provides:

“ . . . The payment for accumulated sick leave, whether paid as salary or otherwise, shall not be used in the calculation of the average final compensation.”

This contention is without merit because the foregoing definition pertains to the determination of the amount of benefits a retiree shall be entitled to receive. We are concerned with petitioner’s eligibility for the system, not the amount of benefits he may receive.

We think the facts as related demonstrate that the petitioner has complied with the provisions of F.S. § 121.-051 (2) (a)4 (1974) and is entitled to membership in FRS. “Employee” is defined in F.S. § 121.021(11) as “any person receiving salary payments for work performed in a regularly established position . . . .” On the date of petitioner’s election to transfer to FRS, he was receiving a salary. The fact that he was on sick leave at the time is of no moment. Petitioner had earned the sick leave he enjoyed through services already rendered. In truth, the payments received by petitioner while on sick leave were for “work performed.” Further, petitioner was a “member” of the Teachers’ Retirement System, an “existing system” as defined in F.S. § 121.021(2), on the date he informed his employer of his election to transfer to FRS.

We are aware of FRS's need to conserve and protect its assets. It does seem a bit unfair to allow one to “jump” to FRS, which provides more generous benefits than the Teachers’ Retirement System, on the eve of his retirement. Yet, this result must have been contemplated in the passage of F.S. § 121.051 (2) (a)4 (1974) because, under this statute, there is nothing to prevent a teacher from electing to transfer one day, working the next, and then retiring the very next day. Even under the Division’s theory of this case, such a teacher would clearly be entitled to FRS membership.

Petitioner elected to transfer during the statutory period and duly notified his employer. The statute is mandatory: all persons complying with it “shall” become members of FRS, effective January 1, 1975. Petitioner complied with F.S. § 121.051(2) (a)4 (1974) in electing to transfer to FRS and is, therefore, entitled to FRS membership.

The writ is granted, the order of the Division is quashed, and the cause is remanded for further proceedings consistent herewith.

McNULTY, C. J., and SCHEB, J., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Respondent has filed a petition for rehearing expressing concern that we have held that terminated members of existing systems may transfer to the Florida Retirement System during the open periods prescribed for transfer. We do not see how our opinion could be so construed, but if there is any doubt, we reiterate that our decision turns upon the conclusion that petitioner was still employed as a member of an existing system at the time he requested his transfer.

Petition denied.

McNULTY, C. J., and GRIMES and SCHEB, JJ., concur.


author: DOWNEY, Judge.

text:
    Martin WIENER, Appellant, v. AVIS RENT A CAR and I. T. T. Hamilton Life Insurance Company, Appellees.
    No. 74-1392.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.

      Walter C. Lehmann, Miami, for appellant.
    Robert L. Dubé and Richard M. Gale, Miami, for appellee — Avis Rent A Car.
    John J. Hearn, Miami Shores, for appel-lee- — I.T.T. Hamilton Life Ins. Co.
   DOWNEY, Judge.

This is an interlocutory appeal from an order dismissing with leave to amend appellant’s complaint which sought equitable and legal relief.

In material part the complaint in question alleges the following things. Appellant entered into an automobile rental agreement with appellee Avis Rent A Car. As a part of said agreement appellant purchased automobile liability insurance from appellee I.T.T. Hamilton Life Insurance Company, as evidenced by the certificate of insurance attached to the complaint and made a part thereof. Said certificate of insurance did not contain a specific exclusion of uninsured motorist coverage, nor was any endorsement in writing obtained from appellant rejecting said coverage. Appellant was struck from the rear by an uninsured motorist and though he presented his uninsured motorist claim to appellee Avis, it was denied. The complaint was brought by appellant as a class suit for himself and all persons similarly situated.

Upon motion of the appellees the trial court dismissed the complaint with leave to amend. It appears to us the trial court was eminently correct in doing so. The cause of action asserted is based upon the allegation that appellant had purchased from appellee I.T.T. Hamilton Life Insurance Company “automobile liability insurance, as evidenced by the certificate of insurance attached hereto and made a part hereof . . .’’ But examination of the certificate of insurance attached (which is part of the rental agreement) demonstrates quite clearly that it does not provide automobile liability insurance, but, rather, it provides coverage to the person renting the vehicle for accidental death benefits and accident medical expense benefits. The complaint charges that the certificate of insurance did not contain a specific exclusion of uninsured motorist coverage nor had it been rejected in writing. This'allegation is of no import because § 627.727, F.S.1973, requiring the inclusion of uninsured motorist coverage unless rejected by the insured applies only to automobile liability insurance.

Since the appellant may choose upon remand to file an amended complaint, we deem it advisable to comment upon the propriety of the allegations of the complaint to justify a class suit in the circumstance alleged.

The complaint does not allege the existence of a class with a sufficient degree of certainty, nor that it is necessary to bring this suit as a class suit, nor that appellant’s interests arising out of his contract are coextensive with other lessees contracting with appellee Avis. These allegations are essential to the maintenance of a class suit. Harrell v. Hess Oil and Chemical Corporation, Fla.1973, 287 So.2d 291; Port Royal, Inc., v. Conboy, Fla.App. 1963, 154 So.2d 734. Accordingly, the complaint did not allege sufficient facts in any event to justify appellant in maintaining the action, as a class suit.

The order appealed from is affirmed.

WALDEN, C. J., and CROSS, J., concur.


author: HAVERFIELD, Judge.

text:
    NORTH MIAMI GENERAL HOSPITAL, INC., Appellant, v. Cal KOVENS and Bert Sager, Appellees.
    No. 74-1662.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Sams, Anderson, Alper & Post, Sam Daniels, Miami, for appellant.
    Sibley, Giblin, Levenson & Ward, Miami Beach, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Appellant seeks review of an adverse final judgment in this action for a declaratory decree. The facts giving rise to this controversy are as follows.

In 1966 Cal Kovens and Bert Sager owned all of the outstanding stock of Keith Investments, Inc. which owned the facilities of the appellant, North Miami General Hospital, Inc. (hereinafter referred to as NMG). In November of that year, NMG entered into an agreement to purchase all of the stock from Kovens and Sager, appellees herein, and executed in favor of the appellees a promissory note and mortgage encumbering the land, building and assets of the hospital. Pursuant to the terms of these three instruments, Kov-ens and Sager were to be paid annually for a IS year period a minimum of $233,333 or Yz of the “adjusted net profit” derived from the hospital’s operations, whichever was greater. In the years 1967, 1968, 1969 and ultimately in the year 1970, appellees received as their annual payments Yz of the “adjusted net profit.”

In late 1969, the U.S. Government asserted a claim against NMG that Medicare had overpaid the hospital $1,800,000 in connection with Medicare payments made to the hospital in the years 1966 through 1969. In 1970 an additonal claim of $660,000 was asserted by Medicare. NMG informed Kovens and Sager of the claims and contended that if NMG had to make any credits or rebates to Medicare for payments received in 1966 through 1970, ap-pellees would be responsible to NMG for Yz of that amount because they would have been overpaid under the promissory note for those years. Kovens and Sager denied any responsibility or liability to NMG under the Medicare claim.

An additional dispute between the parties arose in 1970 with respect to the hospital’s management contract which precipitated litigation [Circuit Court Case No. 70-16020] being instituted by the appellees against NMG. As a result of this action, NMG refused to pay appellees the 1970 annual payment due under the terms of the 1966 promissory note. Appellees then filed another complaint [Circuit Court Case No. 71-2593] against NMG to recover the 1970 payment due them. Kovens and Sager asserted therein claims against some of the trustees of the hospital for the wrongful charging of sums against NMG, which reduced the amount of net profits of the hospital and in turn reduced the amount paid and payable to Kovens and Sager under the terms of the promissory note.

All of the foregoing disputes, claims and pending litigation resulted in the parties executing a, modification of the 1966 promissory note which reads in part as follows:

“MODIFICATION OF NOTE MADE AT MIAMI, FLORIDA, DECEMBER 1, 1966, BY NORTH MIAMI GENERAL HOSPITAL, INC., TO CAL KOVENS AND BERT SAGER
“THIS MODIFICATION AGREEMENT made and entered into this 19th day of February, 1971, by and between NORTH MIAMI GENERAL HOSPITAL, INC. (the ‘Maker’) and CAL KOVENS and BERT SAGER (the ‘Payees’), their heirs, successors, legal representatives and assigns;
“WITNESSETH:
“WHEREAS, the Maker has heretofore made that certain Promissory Note at Miami, Florida, dated December 1, 1966, to CAL KOVENS and BERT SAGER, a copy of which note, consisting of 8 pages, is attached hereto as Exhibit A; and
“WHEREAS, payments have heretofore been made on account of said note; and
“WHEREAS, uncertainty and disputes exist and have arisen as to the amount due and to become due pursuant to said Promissory Note; and
“WHEREAS, the parties desire to make certain the amount of the balance of the Note remaining unpaid; and
“WHEREAS, the parties, for valuable consideration and value received, do desire to modify said note, effective this day.
“NOW, THEREFORE, in consideration of the mutual covenants of the parties and to settle such uncertainty and disputes and for other valuable consideration; receipt whereof is hereby acknowledged by the Maker and the Payees, the parties covenant and agree as follows:
“1. Said Promissory Note is, effective this 19th day of February, 1971, modified to provide and read as follows:
‘The Maker, for value received, promises to pay to the order of CAL KOVENS (as to 95 per cent) and unto BERT SAGER (as to 5 per cent) the principal sum of Six Million Two Hundred Fifty Thousand Dollars ($6,250,000.00), together with interest thereon at four per cent (4%) per an-num from February 19, 1971, as follows :
******
“2. It is understood and agreed that Six Million Two Hundred Fifty Thousand Dollars ($6,250,000.00) is the remaining unpaid indebtedness upon said Promissory Note and that no payment made on or prior to February 19, 1971, shall be deemed to reduce the said balance of said Promissory Note, the Maker having heretofore been given credit therefor in such fashion as to create the said balance of Six Million Two Hundred Fifty Thousand Dollars ($6,250,-000.00).
“3. Except as above set forth in this modification agreement, all of the other terms, covenants and conditions of said Promissory Note of December 1, 1966, are hereby cancelled.”

After the execution of this agreement and dismissal of the pending lawsuits, NMG on December 20, 1972 filed the instant complaint for declaratory judgment to determine its rights under the purchase agreement and promissory note entered into between NMG and Kovens and Sager. In essence, the complaint alleged Medicare was claiming NMG had received overpay-ments in excess of $1,600,000, which was being contested by NMG, and that Kovens and Sager had denied any liability or responsibility for repayment of any sum to NMG or Medicare. Kovens and Sager filed an answer denying liability and alleging the February 19, 1971 modification agreement clearly settled and disposed of all claims of the parties against each other regarding past or future payments made or due under the promissory note and mortgage. The cause came on for non-jury trial, and the trial judge rendered the following final judgment after a detailed recitation of facts.

* * * * * *
“The Court finds, from the foregoing facts and applicable law, that there is no liability, responsibility or obligation of the respondents, Cal Kovens and Bert Sager, to pay, reimburse, or account to the petitioner, North Miami General Hospital, Inc., for any claim that petitioner, North Miami General Hospital, Inc., might be required to pay to Medicare for the years 1966 through 1970, or for any year thereafter.
“IT IS, THEREUPON, CONSIDERED, ORDERED AND ADJUDGED that final judgment is entered in favor of the respondents, Cal Kovens and Bert Sager, and against the petitioner, North Miami General Hospital, Inc. and the respondents shall go hence without day. The costs of these proceedings are hereby taxed against the petitioner, the amount to be set and determined upon appropriate motion and order.”

Appellant first urges as error the transfer of this cause from Judge Christie to Judge Grossman for no apparent reason in that said transfer was a violation of the blind filing system requiring a retrial of the cause.

This case originally was assigned to Judge Christie. Thereafter, counsel for appellee Sager filed a motion requesting the administrative judge to make an appropriate assignment of the cause to Judge Wiseheart. Thereafter, the administrative judge entered an order transferring the present case and case no. 70-16020 to Judge Grossman for' further proceedings and trial.

The record with respect to this issue reflects that at no time did counsel for appellant raise any question or objection to the transfer nor does counsel for appellant now contend that appellant was prejudiced in any way thereby. Furthermore, the transferring of causes from one judge to another in the circuit court is a matter of internal administration of that court and does not affect the validity of the orders or judgments entered. See Bankers Life and Casualty Company v. Gaines Construction Co., Fla.App.1966, 191 So.2d 478. Hence, we reach the conclusion that this point of appellant is without merit.

Appellant in its complaint alleged that it was in doubt as to its rights and those of Kovens and Sager under the promissory note (as modified), mortgage, and purchase agreement and then prayed for a declaratory judgment determining the rights of the respective parties under said documents. After a careful reading of the applicable statutes, §§ 86.011 and 86.051, Fla.Stat., F.S.A.., we have interpreted same to confer jurisdiction upon the circuit court over the subject matter in the cause before us. In addition, we note that the appellant instituted this action for declaratory relief, proceeded to a trial on the merits, and then, upon petition for rehearing, for the first time raised this issue of jurisdiction over the subject matter and thereby is estopped from raising this issue on appeal. See Shurden v. Thomas, Fla.App. 1961, 134 So.2d 876; see also In re Estate of Dalton, Fla.App.1971, 246 So.2d 612 at 614.

Thus, this contention of appellant must fail.

For its third and final point on appeal, appellant alleges the trial judge erred in finding and holding that NMG had released Kovens and Sager from all liability for possible Medicare repayments.

By filing the subject complaint appellant sought to determine its rights and those rights of appellees under the terms of the promissory note as modified, to which rights appellant was in doubt. Appellees for the years 1966 through 1970 received annual payments equal to 2/3 of the annual “adjusted net profits” pursuant to the formula outlined in the promissory note and purchase agreement. Appellant took the position that if Medicare should prevail on its claimed overpayment to NMG of a total of $2,587,772 or any part thereof, then Ys of that amount returned or credited to Medicare should be repaid by appellees to NMG (or should be offset against the amount due appellees under the modification of note agreement), because, if not, then NMG would have overpaid that amount to appellees in the annual payments of 1966-1970. On the other hand, Kovens and Sager had contended in one of their suits filed against NMG that some of the trustees of NMG were guilty of misconduct in the operation of the hospital resulting in a dissipation of the profits thereby unlawfully reducing the amount of the payments to which they were entitled under the terms of the promissory note and purchase agreements.

Paragraph 2 of the modification agreement executed on February 19, 1971 clearly reflects that $6,250,000 was fixed as the remaining unpaid principal debtedness and “that no payment made on or prior to February 19, 1971 shall be deemed to reduce said balance ...”

It is apparent, after reading the above portion of the modification agreement that the agreement eliminated appellant’s claim as to the possible overpayments to the ap-pellees if Medicare should prevail on all or part of its claim and likewise it eliminated appellees’ assertion that the annual payments were reduced because of a dissipation of the profits due to the alleged misconduct on the part of some of the trustees in the operation of the hospital. The subject agreement simply precludes adjustments of future payments by reason of past payments which prior to the execution thereof the parties contended ultimately may have been either excessive or inadequate.

Therefore, we find that the trial judge was correct in finding that there is no liability, responsibility or obligation of appel-lees to reimburse appellant for any claim it might be required to pay to Medicare and thereupon entering final judgment in favor of appellees.

For the reasons stated and upon the authorities cited hereinabove, the judgment is affirmed.

Affirmed.

      . The definition thereof was set out in detail in the purchase agreement.

      . NMG had a management contract with Hospital Management Corporation which was owned by the appellees, and the hospital trustees attempted to discharge the hospital administration and some of the other personnel in the employ of Hospital Management Corporation.

      . “86.011 Jurisdiction of circuit court
      “The circuit courts have jurisdiction to declare rights, status and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence:
      “(1) Of any immunity power, privilege or right; or
      “(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend, whether such immunity, power, privilege or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent or supplemental relief in the same action. [Emphasis Supplied]
      “86.051 Enumeration not exclusive
      “The enumeration in sections 86.021, 86.031 and 86.041, Florida Statutes, does not limit or restrict the exercise of the general powers conferred in section 86.011, Florida Statutes, in any action where declaratory relief is sought. Any declaratory judgment rendered pursuant to this chapter may he rendered by way of anticipation with respect to any act not yet done or any event which has not yet happened, and in such case the judgment shall have the same binding effect with respect to that future act or event, and the rights or liability to a/rise therefrom, as if that act or event had already been done or had already happened before the judgment was rendered." [Emphasis Supplied]


text:
    Ronald Ray MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1227.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1975.

      Richard L. Jorandby, Public Defender, and Lois J. Frankel, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant, charged with robbery, entered a negotiated plea of guilty to aggravated assault, whereupon he was adjudicated guilty and sentenced to five years imprisonment. His appeal therefrom is based solely on the ground that the court accepted his plea without first determining, as required by Rule 3.170(j) RCrP, that there was a factual basis for the plea of guilty.

At the time the plea was accepted the court conducted only a limited inquiry. As appellant contends, the record does not reflect a factual basis for the plea of guilty as required by the above cited rule. However, before reversal is required appellant has the burden to demonstrate clear prejudice or a manifest injustice resulting from such omission. Williams v. State, Fla.Sup.Ct., 316 So.2d 267, opinion filed June 23, 1975. Appellant is able to meet that burden (at least until further facts are established). In response to the court’s inquiry, appellant disclaimed (without one shred of contradiction from any source) the use of a deadly weapon in committing the assault. This is an essential element of the crime of aggravated assault, see, Fla.Stat. § 784.04 (1973), and when the only facts then before the court affirmatively showed its absence, it became incumbent upon the trial court not to accept the plea of guilty unless and until additional facts were adduced from which the court might reasonably infer that a deadly weapon had been used in committing the assault.

The inquiry which the court should conduct in order to determine that there is a factual basis for the plea of guilty need not be a “mini-trial”, and the plea may be accepted in spite of the defendant’s protestation of innocence or his denial of an essential element of the crime, if there is otherwise in the record matters from which the court may determine that there exists a factual basis for the plea. Some of the means by which the court may satisfy itself in this respect are through statements and admissions made by the defendant, or by his counsel, or by the prosecutor, or by factual evidence heard from witnesses before the court at the time of the plea hearing, or by factual evidence heard from witnesses before the court at some prior stage of the proceedings (such as preliminary hearings or motions to suppress), or by depositions taken and filed in the cause. Williams v. State, supra; See also, Church v. State, 299 So.2d 649 (4th DCA Fla.1974). It is not a matter of weighing the evidence but only to fulfill the purpose of the rule which is to make certain that a defendant does not plead guilty to an offense of which he could not possibly be guilty. Whatever method is employed by the court in making this determination, if it takes into account matters not developed at the plea hearing itself, the court should indicate for the record the source of the factual information supporting the plea.

At the plea hearing neither the prosecutor nor defense counsel made any effort to supply the court with factual statements or with the testimony of witnesses to show a factual basis for the plea. The responsibility of seeing that the requirements of Rule 3.170(j) RCrP are followed does not rest solely with the trial judge, but both trial counsel are ethically bound to share this responsibility. Both the prosecutor and defense counsel should assist the trial court in making certain that the scope of inquiry is sufficient to establish on the record all of the prerequisites prescribed by the rule before a plea of guilty is accepted. The plea procedure as prescribed by the rule is designed to protect the defendant, not to provide him with a procedural technicality to avoid the administration of justice. Hall v. State, Fla.Sup.Ct., 316 So.2d 279, opinion filed June 23, 1975. All too frequently both counsel permit their advocacy to blind them to their duties to the court and to the administration of justice. If counsel will do more to aid the trial court in seeing that the requirements of the rule are scrupulously followed, there undoubtedly will result a substantial decrease in the number of appeals taken from judgments entered on guilty pleas.

The judgment is reversed and this cause remanded to the trial court for the purpose of the trial court receiving evidence of a factual basis for the plea. If there is evidence of a factual basis for the plea, the plea may be accepted and the judgment and sentence reentered with appropriate credit for time served; if there is no factual basis for the plea, it should not be accepted by the court.

Reversed and remanded.

WALDEN, C. J., and KAPNER, LEWIS, Associate Judge, concur.


author: PER CURIAM.

text:
    The STATE of Florida ex rel. Fred B. SPIEGEL, Relator, v. The Honorable Sidney M. WEAVER, as Judge of the Circuit Court, Criminal Division, in and for Dade County, Florida, Respondent.
    No. 75-339.
    District Court of Appeal of Florida, Third District.
    April 8, 1975.
   PER CURIAM.

Peremptory writ issued.


text:
    STATE of Florida, Petitioner, v. Moses SCOTT, Respondent.
    No. X-304.
    District Court of Appeal of Florida, First District.
    June 17, 1975.
   PER CURIAM.

Petition for writ of certiorari denied.


text:
    CITY OF MIAMI BEACH, a Municipal Corporation created and existing under the laws of the State of Florida, Appellant, v. M. Jack BREITBART, Appellee.
    No. 75-313.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Rehearing Denied Sept. 15, 1975.
   PER CURIAM.

Affirmed.


text:
    J. D. BALL FORD, INCORPORATED, now known as Tally Embry Ford, Inc., Appellant, v. Joe MONFORTE and Virginia Monforte, his wife, Appellees.
    No. 74-1484.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    CHASE MANHATTAN BANK, a New York National Banking Association, Appellant, v. SAILBOAT APARTMENT CORP., a Florida Corporation, et al., Appellees.
    No. 75-519.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    Meinard Bud MEIER, Appellant, v. R. William VAN DETTE et al., Appellees.
    No. 74-1446.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    Larry HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. X-237.
    District Court of Appeal of Florida, First District.
    July 30, 1975.
    Rehearing Denied Oct. 6, 1975.
   PER CURIAM.

Affirmed.


text:
    Jerry Wayne ANDERSON and Bill R. Jones, Appellants, v. STATE of Florida, Appellee.
    No. Y-286.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1975.
    Rehearing Denied Oct. 2, 1975.
   PER CURIAM.

Affirmed.


text:
    Raymond L. CAPPS and Cora M. Capps, as Co-executors of the Estate of Nelson S. Jackson, Deceased, Appellants, v. J. Olan BRADDOCK, Appellee.
    No. W-501.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1975.
    Rehearing Denied Oct. 2, 1975.
   PER CURIAM.

Affirmed.


text:
    Gregory WINGARD, Appellant, v. STATE of Florida, Appellee.
    No. W-228.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1975.
    Rehearing Denied Oct. 6, 1975.
   PER CURIAM.

Affirmed.


text:
    Lawrence Alan HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. W-508.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Glynn D. HUCKABY, Appellant, v. STATE of Florida, Appellee.
    No. X-440.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Claude Franklin MOORE, Appellant, v. STATE of Florida, Appellee.
    No. Y-370.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    John Manuel RICHARDS, Appellant, v. STATE of Florida, Appellee.
    No. Y-19.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Jackie Boyd SWAIN, Appellant, v. STATE of Florida, Appellee.
    No. Y-173.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Frank CLEMONS, III, Appellant, v. STATE of Florida, Appellee.
    No. Y-116.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    The BARRINGTON CORPORATION, a Florida Corporation, and Robert B. Reed, Sr., Appellants, v. OBEE LEASING CO., a Florida Corporation, Appellee.
    No. 75-912.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 1975.
   Appeal from Circuit Court, Broward County; Stewart F. LaMotte, Jr., Judge.

Appeal dismissed.


text:
    Vincent William GILLESKI, a minor, by and through his mother and next friend, Jane Carlucci, Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation, et al., Appellees.
    No. 75-966.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 1975.
   Appeal from Circuit Court, Broward County; Louis Weissing, Judge.

Appeal dismissed.


text:
    Clyde PRIESTER and Bankers Fire and Casualty Insurance Company, Appellants, v. Nathaniel McPHAIL, Appellee.
    No. 75-582.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 1975.
   Appeal from Circuit Court, Palm Beach County; Hugh McMillan, Judge.

Appeal dismissed.


text:
    Charles H. VAN IDERSTYNE, Appellant, v. Thomas Glenn MILLER, Appellee.
    No. 75-992.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 1975.
   Appeal from Circuit Court, Palm Beach County; Thomas E. Sholts, Judge.

Appeal dismissed.


text:
    Paul A. LONG, an individual, and Luther Walker, an individual, Appellants, v. INTERNATIONAL HARVESTER CREDIT CORPORATION, a corporation, Appellee.
    Nos. 74-814, 74-815.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Oct. 2, 1975.
   PER CURIAM.

Affirmed.


text:
    BLUE ISLAND, INC., Appellant, v. SIX L’S PACKING COMPANY, INC., a Florida Corporation, Appellee.
    No. 75-942.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1975.
   Petition for Writ of Certiorari dismissed.


text:
    Fred M. BOBBETT, Appellant, v. Nancy Lee Broyles PIERCE, etc., Appellee.
    No. 75-132.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Horace Lee BOSTIC, Appellant, v. STATE of Florida, Appellee.
    No. 75-142.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Willie Clyde COVINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1272.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert Calvin HIGDON, Appellant, v. STATE of Florida, Appellee.
    Nos. X-539, X-540.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Walter Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-263.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Clayton Harvey NELSON, Appellant, v. STATE of Florida, Appellee.
    No. W-487.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Terry John PEPPER, Appellant, v. STATE of Florida, Appellee.
    No. Y-300.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Horace REESE, Appellant, v. STATE of Florida, Appellee.
    No. 74-624.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Henrietta RIVERS, Appellant, v. STATE of Florida, Appellee.
    No. V-488.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    James Dennis STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 74-668.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Ivory Lee SWAIN, Appellant, v. STATE of Florida, Appellee.
    No. Y-90.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Herman L. SYKES, Appellant, v. Victoria SYKES, Appellee.
    No. X-137.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Wayne Michael VOSS, Appellant, v. STATE of Florida, Appellee.
    No. Y-60.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Eddie Morris WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. Y-38.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Nadine STEELE, Petitioner, v. The SCHOOL BOARD OF COLLIER COUNTY, Florida, et al., Respondents.
    No. 75-1287.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1975.
   Prohibition denied.


text:
    David L. YORK, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 75-1263.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1975.
   Habeas corpus denied.


text:
    Ronnie Calvin LYNN, Appellant, v. STATE of Florida, Appellee.
    No. X-479.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.
   PER CURIAM.

Affirmed.


text:
    Georgia GILLIAM, Appellant, v. William D. HOPKINS, Appellee.
    No. W-211.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.
    Rehearing Denied Oct. 6, 1975.
   PER CURIAM.

Affirmed.


text:
    James W. DEJARNETTE, Petitioner, v. Jack KING, Respondent.
    No. X-111.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.
   PER CURIAM.

Certiorari denied.


text:
    James ADAMS and Mary Louise Adams, Appellants, v. STATE of Florida, Appellee.
    Nos. 74-709, 74-710.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    COUNTY OF SARASOTA, Florida, Appellant, v. The PENTHOUSE, INC., Appellee.
    No. 74-1305.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


author: PER CURIAM.'

text:
    Joseph S. DRAGO, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1442, 74-1443 and 74-1444.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.'

Affirmed.


text:
    Johnnie Lee GERMANY, Appellant, v. STATE of Florida, Appellee. Homer J. DAVIS, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1418, 74-1419.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Joseph W. HERBERT, II, Appellant, v. STATE of Florida, Appellee. Clarence E. BOMASTER, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-444, 74-1485.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Willie JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1282.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Anderson MINATEE, Appellant, v. STATE of Florida, Appellee.
    No. 74-953.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Louis F. MLECKA and Phyllis Ann Mlecka, his wife, Appellants, v. BARNETT BANK OF WINTER PARK, N. A., a National Association, Appellee.
    No. 74-1517.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
    Rehearing Denied Sept. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Irene Motsinger REDDEN, Appellant, v. NATIONWIDE LIFE INSURANCE COMPANY and Mrs. Erin J. Redden, Appellees.
    No. 74-356.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. Robert PIERCE, Appellee.
    Nos. 75-189, 75-190.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
    Rehearing Denied Nov. 6, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF YOUTH SERVICES, et al., Petitioners, v. The Honorable Robert L. WILLIAMS, as Circuit Judge of the Sixth Judicial Circuit in and for Pasco County, Florida, Respondent.
    No. 74-1165.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Ike WILLIAMS and Annie Williams, his wife, Appellants, v. Albert S. FORTNA and Mary L. Fortna, his wife, Appellees.
    No. 75-131.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Randolph WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-580.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Ellis Henry WINDSOR, a/k/a Elexis Henry Windsor, a/k/a Shorty Long, Appellant, v. STATE of Florida, Appellee.
    No. 74-1067.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    John BARRETT, Appellant, v. William G. BARR, and Federal Insurance Company, a Foreign Corporation, Appellees.
    No. 75-878.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1975.
   Appeal from Circuit Court, Broward County; George Richardson, Judge.

Appeal dismissed.


text:
    Paul J. BROWN and Whalen & Brown Yacht Sales, Inc., Appellants, v. Robert S. WHALEN, Jr., Appellee.
    No. 75-1193.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1975.
   Appeal from Circuit Court, Broward County; George W. Ledder, Jr., Judge.

Appeal dismissed.


text:
    D. L. CASH and Moseley Collins, Appellants, v. Wayne ALLEN, doing business as Wayne Allen Real Estate, Appellee.
    No. 75-1043.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1975.
   Appeal from Circuit Court, St. Lucie County; James E. Alderman, Judge.

Appeal dismissed.


text:
    DIVISION OF PERSONNEL, FLORIDA DEPARTMENT OF ADMINISTRATION, Appellant, v. Robert J. WITHROW, Jr., et al., Appellees.
    Nos. 75-488, 75-503.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1975.
   Appeal from Circuit Court, Palm Beach County; Lewis J. Kapner, Judge.

Appeal dismissed.


text:
    Grace C. ENGEL, Appellant, v. YUSEM PROPERTIES OF DELRAY LIMITED, Appellee.
    No. 75-204.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1975.
   Appeal from Circuit Court, Palm Beach County; James Stewart, Jr., Judge.

Appeal dismissed.


text:
    Ulysses HAYWARD, Appellant, v. STATE of Florida, Appellee.
    No. 75-529.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1975.
   Appeal from Circuit Court, Orange County; Peter M. DeManio, Judge.

Appeal dismissed.


text:
    Archie Junior PARSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-759.
    District Court of Appeal of Florida, Second District.
    Sept. 11, 1975.
   Appeal dismissed.


text:
    STATE of Florida ex rel. Harold S. RODOVICH, Relator, v. Robert S. HEWITT, Judge, Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, Florida, Respondent.
    No. 75-1537.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 1975.
   Prohibition denied.


text:
    Willie G. PAGE, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Appellee.
    No. 75-1550.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 1975.
   Habeas corpus denied.


text:
    Nathaniel SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1321.
    Court of Appeal of Florida, Second District.
    Sept. 11, 1975.
   Mandamus denied.


text:
    Richard R. BROWNING, Appellant, v. STATE of Florida, Appellee.
    No. 75-279.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
    Rehearing Denied Sept. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Winnis Holland LOFTON, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 75-1198.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
    Rehearing Denied Sept. 30, 1975.
   Habeas corpus denied.


text:
    Georgianna N. RIOS, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and Ivey’s of Orlando, Respondents.
    No. 75-296.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Annie Marie MAULTSBY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1021.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Leo BUTLER, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-148, 75-191.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. Laurentino A. GARCIA, Relator, v. Honorable Edward D. COWART, Judge of the Circuit Court, Criminal Division in and for Dade County, Florida, Respondent.
    No. 75-856.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    VIKING MOBILE HOMES, INC., Appellant, v. Lowden A. HANSELMAN and Clemence Hanselman, Appellees.
    No. 75-172.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    P. Thomas BOROUGHS, Trustee, Appellant, v. ORANGE COUNTY, Florida, a political subdivision of the State of Florida, et al., Appellees.
    No. 74-1195.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Jeanette CARSWELL, Appellant, v. STATE of Florida, Appellee.
    No. 74-1252.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Glennis COMBS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1228.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Brevard County; Volie A. Williams, Jr., Judge.

Appeal quashed.


text:
    Adrianne DISTASIO, Appellant, v. Patrick J. DISTASIO, Appellee.
    No. 75-809.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975
   Appeal from Circuit Court, Broward County; Gene Fischer, Judge.

Appeal dismissed.


text:
    In re ESTATE of Ryan Lester HATCHER, Deceased.
    No. 75-1234.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Palm Beach County; Paul L. Douglas, Judge.

Appeal dismissed.


text:
    FLORIDA KEYS AQUEDUCT AUTHORITY, a political subdivision of the State of Florida, Petitioner, v. CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT and Miami-Dade Water and Sewer Authority, Respondents.
    No. 75-378.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Certiorari dismissed.


text:
    Reynold FRINK, Appellant, v. STATE of Florida, Appellee.
    No. 75-795.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Broward County; M. Daniel Futch, Judge.

Appeal dismissed.


text:
    GOULD, INC., a corporation, Appellant, v. HYDRO-SKI INTERNATIONAL CORPORATION, a corporation, Appellee.
    No. 75-70.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Leonard HEALY et ux., et al., Appellants, v. CITY OF ORLANDO, Florida, et al., Appellees.
    No. 74-1008.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Orange County; Frederick Pfeiffer, Judge.

Appeal dismissed.


text:
    MACCARI BUILDING AND CONSTRUCTION COMPANY, INC., an Illinois Corporation, Appellant, v. Nicholas S. VUOTO and Terri Vuoto, Appellees.
    No. 75-1496.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Broward County; Russell E. Seay, Jr., Judge.

Appeal dismissed.


text:
    Thomas Max PARRISH, Appellant, v. Virginia D. PARRISH, Appellee.
    No. 75-1252.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Palm Beach County; Vaughn J. Rudnick, Judge.

Appeal dismissed.


text:
    Catharine PIERCE, Appellant, v. STATE of Florida, Appellee.
    No. 74-958.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Palm Beach County; Vaughn J. Rudnick, Judge.

Appeal dismissed.


text:
    Arthur H. SCHWAB, Appellant, v. Elsie SCHWAB, Appellee.
    Nos. 74-1236, 74-1510, 74-1676 and 75-275.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Dorothy M. SMITH, Appellant, v. John YORK, Jr., et al., Appellees.
    No. 75-1469.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Orange County; Thomas Kirkland, Judge.

Appeal dismissed.


text:
    Earl W. UPHOUSE, Appellant, v. Mary Ann UPHOUSE, Appellee.
    No. 75-1115.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Orange County; W. Rogers Turner, Judge.

Appeal dismissed.


text:
    Irma R. WARD, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, a Foreign Corporation et al., Appellees.
    No. 75-1049.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
   Appeal from Circuit Court, Orange County; W. Rogers Turner, Judge.

Appeal dismissed.


text:
    CRITERION INSURANCE COMPANY, a Florida Insurance Corporation, Appellant, v. Julia WARTHAW, as Guardian of Bobby E. Warthaw, a minor, Appellee.
    Nos. 75-436, 75-446.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Luis MARTI, Appellant, v. The STATE of Florida, Appellee.
    No. 75-926.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    STATE of Florida ex rel. Bernie APPELBAUM, Relator, v. The Honorable George ORR, Judge of the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 75-602.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
   PER CURIAM.

Prohibition denied.


author: PER CURIAM. '

text:
    Jane MYER, Appellant, v. Elizabeth A. ZABLE, as Administratrix of the Estate of Alexander J. Zable, Deceased, Appellee.
    No. 75-324.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM. '

Affirmed.


text:
    Laura Alice COHEN, Appellant, v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, a Florida Corporation, et al., Appellees.
    No. 75-734.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Marlow HASKEW, Appellant, v. Donald Ray NEAL, Appellee.
    No. 75-49.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    AMERICAN INTERNATIONAL LAND CORPORATION, Appellant, v. McCAUGHAN MORTGAGE COMPANY, INC., a Florida Corporation, Appellee.
    Nos. 75-685, 75-686, 75-687, 75-688 and 75-689.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Dennis JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-387.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Arnold F. KURZINGER, Appellant, v. The OCEANADA CORPORATION, Appellee.
    No. 75-40.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    James Charles PAYNE and Walter Payne, Individually and as next friend and father of James Charles Payne, Appellants, v. CONTINENTAL CASUALTY INSURANCE COMPANY, et al., Appellees.
    No. 75-300.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1975.
   Appeal from Circuit Court, Broward County; Robert Tyson, Judge.

Appeal quashed.


text:
    Tommy SPANN, Appellant, v. STATE of Florida, Appellee.
    No. 75-415.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Ralph STRONG and Dale Strong, Appellants, v. K. E. LARSEN, Appellee.
    No. 74-340.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Rosann Martin WEBSTER, Appellant, v. RIZZO WATERPROOFING CORPORATION, Appellee.
    No. 75-98.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert Glenn WHIDDEN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1476.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Timothy K. WRICH, Appellant, v. STATE of Florida, Appellee.
    No. 75-356.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    John BURSHEIM, Appellant, v. TRIPLE B. SECURITY COMPANY, a Florida Corporation, Appellee.
    District Court of Appeal of Florida, Third District.
    No. 75-317.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    CANADIAN UNIVERSAL INSURANCE COMPANY, etc., et al., Appellants, v. Stacy Marie CURRY, etc., et al., Appellees.
    No. 74-1018.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    CANADIAN UNIVERSAL INSURANCE COMPANY, etc., et al., Appellants, v. Stacy Marie CURRY, etc., et al., Appellees.
    No. 74-1092.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    CANADIAN UNIVERSAL INSURANCE COMPANY, etc., et al., Appellants, v. Stacy Marie CURRY, etc., et al., Appellees.
    No. 74-1093.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Stacy Marie CURRY, by and through her father and next friend, Floyd Curry, and Floyd Curry, individually, Appellants, v. CANADIAN UNIVERSAL INSURANCE COMPANY, an Alien Corporation, and Employers Surplus Lines Insurance Company, a Foreign Corporation, Appellees.
    No. 74-1043.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Katherine FROST, Appellant, v. Steven P. FROST, Appellee.
    No. 75-412.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Bertha KASS et al., Appellants, v. Harold G. FREIDMAN et al., Appellees.
    No. 75-510.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1975.
   PER CURIAM.

Appeal dismissed.