text:
    BAILEY v. CULOTTA.
    No. 3042.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Seale & Kelton and Marion Weimer, all of Baton Rouge, for appellant.
    R. W. Williams Jr., of Baton Rouge, for appellee.
   ELLIS, Judge.

Plaintiff has filed this suit seeking to recover from defendant the sum of $1001.-44 which he alleges is due him for services rendered to the defendant in the construction, repairing and supervision of certain .buildings and improvements on property owned by the defendant. The plaintiff sets forth in detail the various services and buildings upon which plaintiff’s claim is based, which said article is as follows:

“Since February 27, 1946, petitioner has contracted with defendant and as a result of said contract of employment, has rendered services for defendant on construction and repair jobs on property owned by defendant, all of which is located in the Parish of East Baton Rouge, and the different jobs on which defendant employed petitioner to work are as follows:
“(a) The supervision of construction of a dwelling house on Chatsworth Street, Magnolia Place, Baton Rouge, Louisiana
“(b) The supervision of the construction of a garage located on the premises located on Chatsworth Street, Baton Rouge, Louisiana.
“(c) The supervision of the construction of the finishing up of a building located on the Airline Highway about one-half mile North of circle toward the river bridge, and previously started by a party named Claude Thibodeaux.
“(d) The supervision of the construction of one apartment located in the building on Airline Highway and being built in part of the building mentioned in 4(c) above, but originally not included in the contract to build the building set forth in 4(c) above.
“(e) The supervision of furnishing and applying a metal roof on a building located on Airline Highway, in the rear of the building set forth in paragraph 4(c) above.
“(f) The supervision of replacing a roof on a dwelling house located at 3008 Jackson Avenue, Baton Rouge, Louisiana.
“(g) The supervision of the construction of a shop owned by the defendant and located at 205 East Polk Street, Baton Rouge, Louisiana, and now occupied by one Ralph Morrow.”

Plaintiff alleges that as a consideration for the supervision of the construction of the building of the dwelling house set forth in 4(a) that the defendant agreed to give him one Willis Pick-up truck, which truck was delivered to petitioner in full payment therefor.

Plaintiff further alleges that as a consideration for his services as set forth in 4(c) defendant agreed to pay him the sum of $800.00 of which $500.00 has been paid; that the construction and finishing up of the Airline building was to consist of the supervision of the construction of one big second-hand parts work shop, on the first floor, and one apartment on the second floor, which apartment consisted of one-half of said floor, the other half to he a storage room.

Plaintiff alleges that the defendant agreed to pay him 20% of the total cost of labor and material used in the construction of the buildings described in Article 4(b), (d), (e), (f), (g) as a consideration for his services.

Plaintiff also made the following allegation in Article 21 of the petition;

“And now in the alternative, if the Court should find that the above is not owing petitioner under the agreement heretofore set forth, petitioner now shows that the defendant owes said sum under a quantum meruit, in payment for services rendered.”

Defendant denies that he owes plaintiff any amount for any services alleged under Article 4 of the plaintiff’s petition except the sum of $300.00 for services rendered by the plaintiff to the defendant under Article 4(c) of plaintiff’s petition, but the defendant further sets forth that the plaintiff has not completed his part of the contract in that there is still work to be done to the apartments upstairs, and the second-hand parts room downstairs must be ceiled and plastered in order to finish it. Defendant further answers that he was only to pay the labor and materials necessary to construct the buildings set forth in Article 4(b), (e) and (f) of plaintiff’s petition.

Upon the trial of the case, counsel for plaintiff and defendant entered into the following stipulation:

“It is stipulated by and between counsel for the plaintiff and defendants that on all of the various jobs in question, defendant has admittedly paid all costs of material and labor charges other than the alleged contractor’s commission. That all labor furnished by Bailey as supervisor was paid for by Bailey and he was reimbursed for the amount he expended for labor by Culotta, and that the materials that went into the different jobs were paid for by Culotta upon the presentation of vouchers by the various vendors of material.”
“It is stipulated by and between counsel for plaintiff and defendant that the labor charges and material costs set forth in Paragraphs 16, 17, 18 and 19 of the petition are correct and there is no need to supplement by evidence.”

The case was duly tried and the Judge of the District Court, without written reasons, dismissed plaintiff’s suit at his cost as in case of non-suit. From this adverse judgment of the district Court, plaintiff has appealed.

The evidence in the case shows that on January 25, 1946 the plaintiff and defendant entered into a short written agreement whereby the plaintiff agreed to order all materials, furnish all labor and construct a residence, and the defendant agreed to pay all bills for materials and all labor weekly. It was agreed that the plaintiff was to receive in consideration of his services one Willis pickup truck. This is the only written agreement entered into between the plaintiff and the defendant, all others with regard to all other work as outlined in Article 4 of plaintiff’s petition being oral. Plaintiff admits that he received this truck. The labor and materials for this job were approximately $5,900.00.

During the year 1946 material was scarce, and both the plaintiff and defendant testified that in order for a contractor to keep his labor employed, it was necessary to have quite a number of jobs under construction at the same time, and, therefore, defendant contends that in order to assist plaintiff in keeping his labor busy he only agreed to pay the labor and material cost for putting a roof on his home and for building the' garage in the rear of the dwelling on Chatsworth Street, Magnolia Place, Baton Rouge, and also for applying a metal roof on the small building located in the rear of the large building on the Airline Highway. This is denied by the plaintiff and he testified that he told the defendant that his customary charge for any work under $500.00 was 35% to 40%; up to $1000.00 from $500.00, 30%; and up to $10,000.00, 20%, “However, for our work, the little, big and all, I would do it all for twenty per cent.”

Plaintiff testified'that on the completion of each of these jobs, he rendered a bill, but did not keep a copy thereof, to the defendant. This is emphatically denied by the defendant, and, from the testimony, -we are of the opinion that plaintiff did not render any bill or make-any demand upon the defendant until after defendant refused to employ the plaintiff to construct the building on Highland Road during or shortly after December of 1946.

In some respects, the testimony of the defendant is not entirely satisfactory; but, taking all of the testimony, we do not believe that there was any agreement or understanding between plaintiff and defendant except as to the construction of the dwelling house on Chatsworth Street (Art. 4(a) of plaintiff’s petition); Art. 4(c) the supervision of the construction of the uncompleted building located on the Airline Highway, and the supervision of the construction of a building located at 205 East Polk Street, City of Baton Rouge, and referred to in the testimony as the Ralph Morrow job. All of these various jobs were under construction at practically one and the same time, which was, of course, due to the shortage of materials, and if the materials ran out on one job, the labor was transferred to another job where they could get material.

There is no doubt that defendant paid the plaintiff 20% for the construction of the building at 205 East Polk Street. While defendant denies that he originally agreed to pay 20%, he testifies that on this particular job the plaintiff stated that material and labor would cost $2000.00 and that he, defendant, agreed to pay to the plaintiff $400.00 for supervising construction of this building. Of course, this is 20%. Upon the completion of the job, the cost of labor and materials amounted to $3267.12 and the defendant paid to the plaintiff $653.43, which is 20% of the above cost. Defendant, however, testified that he paid this under protest, 'and at that time decided not to employ the plaintiff to do any more work for .him. While the -plaintiff testifies that the final payment on the Ralph Morrow job was made to him on January 9, 1947, the defendant has introduced in evidence check-#1072, signed by the defendant for $193.19, .and written on said check is: “Ralph Bldg in full.”. This check is not dated, ■ however, it bears, the Louisiana National Bank -stamp, December 23rd, 1946. Defendant’s wife and the witness Tony Maggio testified that they were present when the plaintiff received this check and that the plaintiff stated to the defendant in their presence that the defendant had paid him everything except $300.00 which would be due on the Airline Building (Art. 4(c)) as soon as he (plaintiff) completed the job. Plaintiff denies such a -statement.

Plaintiff is asking for $443.67 for the supervision of the -construction of the north apartment located in the building on Airline Highway (Art. 4(d), which he contends was originally to be a storeroom, and tha't the defendant changed his plans after the original agreement and had him to build this apartment. The total labor and material cost on this apartment was $2218.53. Plaintiff’s claim of $443.67 is 20% of this amount. This building, when completed, contained two apartments upstairs, commonly referred to in ■ the testimony as the south apartment and the north apartment, the latter -being the one plaintiff claims was not included in the original agreement.

It appears that the defendant had originally employed a contractor by the name of Cloid Thibodeaux to construct this building, but evidently became dissatisfied with Thibodeaux, or Thibodeaux had taken the building too cheap to complete it, and, in any event, after Thibodeaux had partially constructed the outside concrete •block walls, the defendant entered into an agreement with the plaintiff to complete the building for $800.00. The evidence shows that the labor and material necessary to complete this building at the time that the plaintiff took over the supervision amounted to approximately $12,000.00 to $14,000.00. The defendant had in his employ prior to and during the time that the plaintiff was working for the defendant, a carpenter by the name of Harmon Ward. Ward testified that he was employed by the defendant prior to the time that the plaintiff went to- work upon the Airline Building and that he always understood that this building was to contain two apartments upstairs and a.paint room and second-hand parts room downstairs; that the second-hand parts room was to be ceiled and plastered. He further testified positively that the metal lathe was put on in the north apartment first. The plaintiff testifies that the metal lathe was put up in the south apartment first, and was practically all up at the time the defendant decided to make an apartment out of the so-called storage room on the north end of this Airline building.

Plaintiff also called as a witness O. C. Lagard, who was employed by him as a foreman and who testified that, according to his instructions, only one apartment was to be built upstairs in the Airline Building.

Thus, we have the testimony of the plaintiff and one witness as against the testimony of the defendant and one witness that there was to be only one apartment in this Airline Building. It is clear that the plaintiff did not take the Airline job on a 20% commission basis, and it is also clear that if the building was to contain only one apartment that at the time the alleged change in plans was made there was no agreement that the plaintiff was to charge 20% for the supervision of the construction of this so-called second or north apartment. In view of the testimony, we áre of the opinion that the plaintiff has failed to prove that the building was to contain only one apartment.

While the plaintiff contends that he has completed his part of the work on the Airline building, the photographs introduced in evidence by the defendant clearly show that there is some work still to be done upstairs, and the down-stairs secondhand parts room is totally unfinished. Plaintiff contends that this downstairs room was finished in accordance with his agreement. On this phase of the agreement, again the testimony is hopelessly in conflict, and we are of the opinion that plaintiff has failed to prove his contention that this second-hand parts room was not to be ceiled and plastered, and we are also of the opinion that if the burden rested upon the defendant, that his proof would not be sufficient to sustain his contention that it was to be ceiled and plastered.

On the contractual claim of the plaintiff, the evidence convinces us that only one job was on a 20% basis and that was the Ralph Morrow job designated as Art. 4(g) in plaintiff’s petition; that there is not sufficient evidence to prove an agreement for any definite amount to be paid the plaintiff by the defendant for jobs designated as Art. 4(b), (d), (e), and (f) in plaintiff’s petition, other than the labor and material costs, for the reason that the plaintiff never rendered a bill to this defendant for these amounts and it is shown that the defendant paid all labor weekly and material bills promptly and without question. Plaintiff testified that defendant had told him he was short of funds is the reason that defendant had not paid him these amounts. This is entirely disproven by the- fact that defendant evidently was not short of funds as he paid all other bills promptly. There is no evidence to even indicate that defendant was short of funds. Also, we believe that plaintiff did make the statement in the presence of' defendant’s wife and the disinterested, witness, Tony Maggio, that the defendant had paid him all that he owed him except $300.00, which would be due when he completed the Airline building.

Counsel for defendant’ objected to any testimony on plaintiff’s alternative plea upon the merits, set forth in Article 21, on the ground that such a plea must be set forth with particularity and in detail. Regardless of this objection, the testimony is not sufficient upon which to base a judgment on quantum meruit. The record fails to show the amount of time the plaintiff worked in the supervision of the construction of these various buildings on which he claims that 20% of the labor and materials is due to him for his* services. Plaintiff fails to prove, except by his own testimony, that 20% is the usual and proper charge for such work; in fact, he has absolutely failed to prove sufficient facts to justify a recovery on quantum meruit.

It is, therefore, ordered that the judgment of the District Court be and the same is hereby affirmed.


source: Caselaw Access Project

author: LE BLANC, Judge.

license: Public Domain

text:
    TAYLOR v. MARION T. FANNALY, Inc.
    No. 3038.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 5, 1948.
    Reid & Reid, of Hammond, and A. B. Pierson, of Ponchatoula, for appellant.
    Carter & Erwin, of Franklinton, for ap-pellee.
   LE BLANC, Judge.

This is a suit to recover workmen’s compensation under the Employer’s Liability Law of Louisiana, Act No. 20 of 1914, as amended.

The plaintiff, Frank Taylor, was employed by the defendant, Marion T. Fan-naly, Inc. as a common laborer at the defendant’s ice plant in Pontchatoula, Louisiana. He had been so employed for a few months prior to October 4, 1945, when, on that day, while acting wi-thin the scope of his employment, he sustained an accident in which his right leg and foot were crushed and broken. He was in the act of assisting in loading ice by means of a mechanical elevator when, accidentally, a block of ice fell on his foot causing the injury he sustained.

He alleges that at the time he was earning 40$ an hour, working ten hours a day, seven days a week, and that as a result of' his injury he has become permanently disabled from performing work of the kind he was accustomed to- do and is therefore entitled -to compensation as for total, permanent disability at the rate of 65% of $28.00 per week for the full period of 400 weeks.

He also alleges that after his injury, the-defendant began paying him compensation, in the sum of $13.64 a week and continued, doing so until December 21, 1946, at which time payments were discontinued for no-reason known to him and have since been, refused. He prays for judgment in accordance with the allegations set out in his-petition.

The defendant for answer admitted that plaintiff had been employed as stated by.him and that on October 4, 1945, he suffered an injury from an accident but denies the nature and the extent of the injury as set forth by plaintiff in his petition.. It alleges further that immediately following -the accident plaintiff received treatment from Dr. Glenn T. Scott and was later taken to the Florida Parishes Hospital at Independence, Louisiana, for treatment. It denies that plaintiff is perm'a-nently disabled and avers to the contrary,, that he has entirely recovered from the injury he-sustained and is now in as good,, if not better physical condition, then when he started to work for it. Defendant disputes -the amount of wages plaintiff claims-he made per week and avers specifically that he averaged $20.99 per week, 65% of which amounts to $13.64 and it avers further that it paid him that amount for 63 weeks compensation.

Further the defendant sets out that plaintiff is suffering no disability as a result of the accident described by him and has suffered no such disability since it ceased paying him compensation; that if he is under any disability whatever, it is the result of other causes which existed prior to the accident alleged by him! and which are wholly disconnected therewith; that at the time he was employed he was crippled due to infantile paralysis or some other disease suffered in early childhood, which condition has existed practically throughout his adult life; that he has long since recovered from ■the injury as a result of the accident of October 4, 1945 and is now in better condition than he was before.

The Florida Parishes Charity Hospital filed an intervention in the suit claiming the sum of $318 for medical and hospital services in treating the plaintiff for the injury forming the basis of his demand and prays that in the event there be judgment in his favor its claim against him and the defendant herein, in solido, be recognized.

On the issues as thus presented the case was tried in the district court and resulted in a judgment in favor of the plaintiff awarding him compensation in the sum of $13.64 per week for a period not to exceed 400 weeks, beginning October 4, 1945, less the amount of compensation paid him by the defendant at the same rate for a period of 63 weeks. Judgment also awarded the Florida Parishes Charity Hospital the full amount of its claim, the sum of $318, to be paid by the defendant.

• The defendant has appealed and as there is no answer to the appeal on behalf of the plaintiff, we take it that he is satisfied with the amount of the award fixing the rate of compensation at $13.64 per week which according to the pleadings, appeared •to be a disputed issue in the case.

Inasmuch as the employment and the accident are admitted, the only controverted points in the case seem' to be whether or not the plaintiff had recovered from the effects of his injury a-t the time defendant ceased paying him compensation and secondly, if he suffers any further disability whether the same is due to the accident or is the result of a physical disability which has existed since his early childhood.

On the question of the nature and the extent of the injury and whether there are any remaining results we have to be controlled largely by the medical testimony in the case and in this regard we have, first, the testimony of Dr. Arthur William Bahm-felt, Jr., senior resident surgeon at the Florida Parishes Hospital who treated the plaintiff when he was transferred there. He states that plaintiff’s right foot and leg had been severely injured, two bones in the lower leg being fractured and that they have not healed correctly. They have healed together but are not in true alignment. He claims that the plaintiff has ankylosis and a limitation of motion and in his opinion he should do no work that requires the use of weight on his ankle. He examined the plaintiff in court at the time he was testifying and stated that he found the condition to be essentially the same as it was the last time he had seen him and that in his opinion he is permanently and totally disabled as far as the use of his ankle is concerned.

On cross-examination this doctor was questioned at length with regard to the plaintiff’s physical condition prior to the accident and what effect that might have on the present disability which he claims, but apparently the doctor had not taken that into consideration as he states that he made not such examination as to the matter he is being interrogated about. He was also questioned with respect to the form of treatment recommended in injuries of this kind and whether non-pse of the injured member would tend to produce the disability but he seems to be very positive in his opinion that in this case disability is due entirely to the injury.

•The only other medical testimony in this case comes from Dr. Glenn Scott to whose office plaintiff was sent following the accident. Dr. Scott was not in his office that day and plaintiff was seen by another doctor who was replacing him. This doctor’s name is not given and he did not testify. Dr. Scott did not examine him until December 30, 1946, and once again on January 20, 1947. His examination through x-ray revealed scars of a previous injury, which apparently was the injury of October 2, 1945, instead of October 4, as alleged in the petition and corrected in the testimony, and he says that the x-ray shows a completely healed fracture of the two bones in the ankle. The alignment, he stated was very good and looked functional. The examination he made on January 30, 1947 was of the entire bony structure of the body. He says that revealed some deformities. He was not able to say exactly when it began but he found it to be scoliosis or a disalignment in the spine, a very marked disalignment of the bones of the pelvis and a shortening of the left leg, involving the hip, the knee and the ankle of his right leg. His opinion was that this deformity occurred probably in childhood. He tried to obtain records from the Charity Hospital to verify this fact but was unable to do so. We understand his testimony to be that this condition which he found created a very marked impediment in the plaintiff in the use of his leg which did not permit free motion, and the awkward manner in which he had to move by reason of nature attempting to compensate for this injury he had had as a child, was the cause of his trouble. He had in effect become then disabled and his present disability might be attributed to that rather than because of the injury of October 2, 1945. In other words, we take his opinion to be that this man is not any more disabled now by reason of the accident than he was before. He thinks that he could not stand hard labor for more than a week at a time but believes that he couldn’t do any more before the accident.

With this apparent conflict in the testimony of these two doctors, we find it necessary to resort to whatever lay testimony there is found in the record and when we examine it, we observe the strong preponderance to be that even with the inpediment he may have had prior to the accident, plaintiff, who is still a young man, performed as hard manual labor, no matter in which employment he was engaged, as the average working man. Numerous witnesses testified to that. The most important fact in this connection is that he had been employed by this defendant, and had rendered satisfactory work as a laborer, for some four or five months prior to the date of the accident on October 2, 1945. Therefore, if there is some disability now, the only conclusion we can draw is that it results from his accident and not from a previous condition which may have existed previously in his body.

In spite of Dr. Scott’s opinion that he thinks plaintiff has recovered from his injury to a degree where he is no more disabled than he was before the accident, we find that he admits that even on the day of the trial, plaintiffs ankle was swollen and tender. Plaintiff himself complains of suffering pain when he places any strain on his anide and that would seem' most natural since Dr. Scott testified that it was still swollen and tender. That, to us, is added proof which supports plaintiff’s claim of disability because the jurisprudence is definitely to the effect that no one is compelled to perform the duties of his employment whilst he is suffering pain in order to qualify for compensation under the Workmen’s Compensation Law.

A careful consideration of all the issues presented in the case leads to the conclusion that plaintiff is entitled to recover. The trial judge decided in his favor and we certainly are unable to point to any manifest error in his holding on the question of plaintiff’s right under the law and under the facts. He may have been handicapped physically before this accident but the fact remains that he was able to hold his own in any sort of work he engaged in as a manual laborer. If he has any disability at present, it is one arising independently of any physical condition he may have had before and was brought about solely by the accident and injury which he sustained on October 2, 1945.

Judgment affirmed at the costs of Defendant, appellant herein.

ELLIS, J., recused.


author: ALDERMAN, Chief Judge.

text:
    Clarence JACKSON and Ethel Jackson, Individually, and as parents of Deborah Ann Jackson, a minor Decedent, and Willie Roy Jackson, Administrator to be appointed on behalf of the Estate of Deborah Ann Jackson, Appellants, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 77-24.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied June 7, 1978.
    Jose Smith of Feldman & Abramson, P. A., Miami, for appellants.
    R. William Rutter, Jr., County Atty. and Lawrence J. Langer, Asst. County Atty., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

This is a wrongful death case in which the parents and the administrator of the estate of a deceased minor appeal the entry of a final judgment in favor of Palm Beach County. The final judgment was entered after the trial court dismissed the plaintiffs’ second amended complaint and the plaintiffs elected not to amend further. The determinative issue is whether Palm Beach County, at the time of the child’s death and under the circumstances alleged, had sovereign immunity. We hold that it did and affirm.

The plaintiffs alleged:

3. That PALM BEACH COUNTY is a political subdivision of the State of Florida.
4. That PALM BEACH COUNTY at all times material herein owned and maintained a body of water known as Lake Ida which is situated in Palm Beach County, Florida.
5. That PALM BEACH COUNTY at all times material herein owned and maintained land adjacent to and adjoining the above-described Lake Ida.
6. The defendant, PALM BEACH COUNTY, owned, maintained and utilized Lake Ida as a bathing area, and the adjacent land as a park or recreational area open to the public, and more particularly to the decedent, and as such the defendant PALM BEACH COUNTY, was engaged in operating a proprietary function and not in operating a governmental function.
7. That on or about April 6, 1969, the said decedent drowned in Lake Ida within the confines of Palm Beach County, State of Florida.
8. Decedent’s death was due to the negligent failure of said County, by and through the employees, servants, and agents, to have posted notice warnings or other caution to the minor decedent, and others of such tender years, that the waters near the shores of Lake Ida were dangerous, treacherous, and that the lake’s ground beneath said waters had dangerous and hazardous drop-offs unknown to the minor decedent. Such trap was known or reasonably should have been known to defendant.
9. That defendant County was negligent, by and through its agents, servants and employees, in its failure to have properly inspected, maintained, or have otherwise provided that said waters were safe for the normal recreational uses intended, to-wit: bathing, swimming and wading by bathers.
10. That the minor decedent, while utilizing the defendant’s recreational area, drowned by reason of being exposed to a sudden and unexpected drop-off in the lake bottom beneath said waters, which drowning was proximately caused by the foregoing negligence of the said County.
11. At all times material hereto defendant County had a duty to warn decedent of the sudden and unexpected drop-off in the lake bottom and/or to have corrected the danger and made the area safe for the use of the public, and more particularly the decedent.
12. At the time of her death decedent was a business invitee of defendant County-

It should be noted that the limited waiver of sovereign immunity allowed by Section 768.28, Florida Statutes, is not applicable in this case since the alleged wrongful death occurred before the effective date of the statute.

In an attempt to overcome the bar of sovereign immunity, the plaintiffs allege that by owning, maintaining and utilizing Lake Ida as a bathing area, and the adjacent land as a park or recreational area open to the public, Palm Beach County was engaged in a proprietary rather than a governmental function. But, as the supreme court said in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976), the state and its agencies have absolute sovereign immunity absent waiver by legislative enactment or constitutional amendment. Cases such as Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), the supreme court’s landmark decision modifying the sovereign immunity of municipalities, are distinguishable because they involve municipal corporations, not the state or its agencies. The governmental/proprietary distinction, which has on occasion been viewed as a test for waiver of sovereign immunity, has almost invariably been crucial only in the cases involving municipalities.

In Circuit Court, Etc., the Department of Natural Resources was sued by the parents of a child killed at a state park. The supreme court held that the circuit court lacked subject matter jurisdiction because the Department was protected from suit by sovereign immunity. The parents in that case argued that the Department had waived sovereign immunity by engaging in the proprietary function of operating the park. The court rejected this argument and refused to apply the governmental/proprietary distinction to limit sovereign immunity of the state and its agencies.

Counties have traditionally been recognized as political subdivisions or agencies of the state. Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916). If this is true, then we see no reason, if the Department of Natural Resources prior to the enactment of Section 768.28 had sovereign immunity, why Palm Beach County in this case would not also have had absolute sovereign immunity.

The parents in the present case, as did the parents in Circuit Court, Etc., rely upon two cases which are apparent exceptions to the general statements that the governmental/proprietary distinction is crucial only in cases involving municipalities. The first case, Suwannee County Hospital Corp. v. Golden, 56 So.2d 911 (Fla.1952), is not controlling. As stated by the supreme court in Circuit Court, Etc., at page 1115: “We read this decision as holding only that a public corporation whose functions are local rather than state-wide does not share the sovereign immunity of the state.” The other case relied upon by the plaintiffs is Butts v. County of Dade, 178 So.2d 592 (Fla. 3d DCA 1965). The supreme court in Circuit Court, Etc., at page 1115, said: “Without expressly overruling the Butts decision, we question the wisdom of its apparent extension of the Hargrove rationale to the county level.” Although Circuit Court, Etc., may be factually distinguished from the present case because it involved the Department of Natural Resources rather than a county, the legal principle is the same. Article X, Section 13, Florida Constitution, provides absolute sovereign immunity for the state and its agencies absent waiver by legislative enactment or constitutional amendment. Prior to the effective date of Section 768.28 there had been no waiver. In Circuit Court, Etc., the supreme court held that the Department of Natural Resources, as an agency of the state, was immune from suit even though it was allegedly engaged in the proprietary function of operating a park. It follows that counties, which are also political subdivisions or agencies of the state, were also immune from suit. This is so even under the circumstances of the present case where Palm Beach County was allegedly engaged in the proprietary function of operating a park.

AFFIRMED.

CROSS, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.


author: RIVKIND, LEONARD,

text:
    Michael Lee CAVE, Appellant, v. STATE of Florida, Appellee.
    No. 77-2011.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Rehearing Denied June 7, 1978.
    Sheldon M. Schapiro of Stone & Schapiro, P. A., Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   RIVKIND, LEONARD,

Associate Judge.

Appellant entered a nolo contendere plea to possession of PCP specifically reserving his right to appeal the order denying the motion to suppress evidence. He was sentenced to two years in state prison. Appellant had been arrested for driving under the influence and driving with a suspended driver’s license. A pat-down search was conducted at the scene. At the police station, during the booking process, a complete search of the person was undertaken. Personal effects were inventoried and placed in a property bag. A large bulge in his wallet was examined and revealed a plastic bag containing the contraband, PCP. We reject appellant’s contention that the search of the wallet was illegal. The search was incident to a lawful arrest. The trial judge was correct in denying the motion to suppress. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); State v. Gustafson, 258 So.2d 1 (Fla.1972), aff’d, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); Christian v. State, 265 So.2d 83 (Fla. 3d DCA 1972); Dolan v. State, 185 So.2d 185 (Fla. 3d DCA 1966). We have also considered each of the other points raised by appellant and find them to be without merit.

AFFIRMED.

DOWNEY, C. J., and MOORE, J., concur.


author: PER CURIAM.

text:
    In re BEFORE the THIRD STATEWIDE GRAND JURY, State of Florida. John B. MATHES, George Kelley and Vanley Hubbard, Petitioners, v. William F. ROBERTS, Sheriff, Pinellas County, Florida, Respondent.
    Nos. 78-772 to 78-774.
    District Court of Appeal of Florida, Second District.
    May 19, 1978.
    Rehearing Denied June 12, 1978.
    John M. Edman, of Meros, Coit, Edman, Meros & Smith, St. Petersburg, for petitioners.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

Petitioners seek writs of habeas corpus challenging their incarceration by orders of the presiding judge of the Third Statewide Grand Jury. In considering their petitions, we have had the benefit of briefs from all parties involved.

The presiding judge advised petitioners that immunity had been conferred upon them, and directed them to answer questions before the grand jury. They refused and so the judge found them in both civil and criminal contempt, imposing a $500 fine against each petitioner for the criminal contempt and imprisoning them during the grand jury session for their civil contempt. However, the court stated the petitioners could purge themselves of civil contempt by appearing and testifying before the Third Statewide Grand Jury. Petitioners declined to comply with the contempt orders which they contend are illegal.

Two points raised by petitioners merit discussion: First, whether petitioners were granted sufficient immunity to compel their testimony; and second, whether it was beyond the authority of the presiding judge to hold petitioners guilty of both civil and criminal contempt for the same act.

The extent of immunity conferred is apparent from the following colloquy between the court, counsel, and Petitioner Kelley:

MR. MEROS: Yes. We, of course, were not present when the immunity was granted. The immunity that is granted, as I understand it, is transactional immunity for past occurrences and use immunity for past occurrences or prior occurrences, if I may state that.
THE COURT: Which included as I understood from the attorney any perjury-
MR. MEROS: Past perjury. Yes, sir.
THE COURT: Yes, sir. Right. Past perjury. We don’t have any present yet.
MR. MEROS: And on that basis, that understanding, Your Honor, I have no objections to Your Honor proceeding with the questioning.
THE COURT: All right. Mr. Kelley, under the law, when immunity is given to you, sir, by the State, which has been done in this case as set forth by the Assistant State Attorney here, you cannot be prosecuted for any crime whatsoever in the past. You cannot be prosecuted by the use of any matter that’s brought to you in this courtroom, any testimony that you may have before the Grand Jury. I understand it’s complete transactional immunity for testimony.
MR. ATWATER: Any question we ask.
THE COURT: Any transaction, any matter that would be related to your testimony, you cannot be prosecuted for that crime.
The only matter that you could be prosecuted for, if you do testify, that is if you falsely testify, you could be prosecuted for perjury, if you testify falsely, in a false manner before the Grand Jury. Except for that, you will be completely free of any and all crimes whatsoever bearing in any way upon your testimony.

The colloquy which took place between the court, counsel and petitioners Mathes and Hubbard was substantially the same and conferred immunity in terms at least as broad as those outlined ábove.

As is apparent, the grant of immunity to each petitioner specifically exempted him from any charges arising out of prior criminal conduct including charges of perjury by inconsistent statements. Immunity from prosecution for future perjury (i. e., perjury committed in giving the compelled testimony) was not granted and is not required. See McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975). However, petitioners contend that even if they testify truthfully in the future, they fear prosecution for perjury because testimony from other witnesses may be inconsistent with their testimony. This possibility exists in every case and to hold this as a sufficient reason to allow a witness to refuse to testify would effectively bar the state from ever compelling testimony. This we refuse to do. We hold the grant of immunity was sufficient.

The imposition of both criminal and civil contempt was authorized in this case. In making this determination, we must look to the purpose for which the contempt orders were directed. The purpose of the criminal contempt was to punish refusal to obey a direct order of the presiding judge. The purpose of the civil contempt was to coerce petitioners to testify after being granted sufficient immunity. As recognized in In re Tierney, 328 So.2d 40 (Fla. 4th DCA 1976), civil and criminal penalties for the same acts of contempt are permissible given the distinct purposes involved. We think both contempt adjudications were appropriate here.

The point raised relating to bail on appeal is moot in light of our disposition, and the remaining points are without merit.

Accordingly, we deny the petitions for writs of habeas corpus.

BOARDMAN, C. J., and SCHEB and DANAHY, JJ., concur.


text:
    Darlene MAROTTO, Petitioner, v. STATE of Florida, Respondent.
    No. 77-2273.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1978.
    Rehearing Denied July 12, 1978.
    Robert S. McCain, Fort Lauderdale, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED,

ANSTEAD and MOORE, JJ., and Sir MONS, STUART M., Associate Judge, concur.


text:
    Edward BELL, Appellant, v. STATE of Florida, Appellee.
    No. 77-487.
    District Court of Appeal of Florida, Second District.
    May 24, 1978.
    Rehearing Denied June 28, 1978.

      Jack 0. Johnson, Public Defender, David S.Bergdoll, Asst. Public Defender, and Carol C. Murphy, Research Assistant, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

On this appeal from the denial of his motion to vacate, set aside or correct sentence filed pursuant to Fla.R.Crim.P. 3.850, Edward Bell contends that the trial court committed fundamental error in trying him under an information for a capital offense. We agree and reverse.

On June 10, 1972, appellant was arrested for first degree murder, which was then a capital offense. On July 24, 1972, Florida’s statutory procedure for imposing the death penalty became unconstitutional by the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). On July 27, 1972, an information was filed against appellant charging him with first degree murder. On October 1, 1972, Florida’s new death penalty statute became effective. Appellant’s case was originally set for trial on October 23, 1972, but there was a lengthy delay while appellant’s competency to stand trial was being determined. Appellant was finally tried under the July 27,1972 information on January 17,1974 by a six-man jury; he was convicted as charged and sentenced to life imprisonment.

In abolishing Florida’s death penalty, the United States Supreme Court also, in effect, abolished the classification of capital crimes, which, by definition, are crimes punishable by death. State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974).

The offense with which appellant was charged was committed on June 10, 1972, prior to Furman, and he was tried in January 1974, 15 months after reinstatement of the death penalty in Florida. First degree murder was a capital offense both at the time when the crime was committed and at the time when appellant was tried, so appellant was subject to the death penalty. Miller v. State, 332 So.2d 65 (Fla.1976).

In Miller the offense (first degree murder) was committed and the defendant was indicted prior to the Furman decision, but the defendant was not tried until after the new death penalty statute went into effect. He was convicted and sentenced to death. He contended on appeal that he was not subject to the death penalty because the penalty statute in effect at the time the offense was committed had been declared unconstitutional. The Florida Supreme Court disagreed, although it remanded for a new sentencing hearing due to the trial court’s failure to conform to the statutory procedures.

Article I, Section 15, Florida Constitution, provides in pertinent part: “No person shall be tried for capital crime without presentment or indictment by a grand jury . . .” While the filing of the information against appellant during the interim period (July 27, 1972) was proper when done because at that point there were no capital offenses, the requirement of Article I, Section 15, Florida Constitution was once again controlling sub judice as of the effective date of the new death penalty statute. Manucy, supra, and Lowe v. Stack, 326 So.2d 1 (Fla.1974).

Manucy, supra, came before the Florida Supreme Court on a petition for writ of prohibition. The offense with which Manu-cy was charged was committed prior to Furman ; the information against him was filed after the new death penalty statute became effective. The court stated at 348:

“In Donaldson v. Sack [265 So.2d 499 (Fla.1972) supra], decided in the aforementioned interim period on July 17, 1972 (prior to the denial of rehearing in Fur-man), this Court did not speculate as to the necessity of an indictment for capital offenses after the effective date of the new death statute.
“ ‘. . . Such matter of bifurcated trials is not of concern and of course is not applicable at this point “ ‘It therefore follows that until further legislation a grand jury can no longer indict for a “capital case” by that name because there is no “capital offense” for which they can do so.’
“The Court was obviously dealing with the procedure for commencing criminal actions during the interim period. Subsequent to the effective date of Fla.Stat. § 921.141, F.S.A. (1972) the definition of capital crimes was re-vitalized. The requirement of Fla.Const., Art. I, § 15, which commands that indictment in ‘capital cases’ shall only be by indictment by a grand jury, was once again controlling.” [footnotes omitted]

Although the information in Manucy was filed after, rather than during, the interim period, this factual distinction does not require a different result here. The supreme court’s reasoning mandates a requirement that if a defendant is to be tried for a capital offense, he must be charged by indictment, regardless of whether an information has previously been filed against him which was valid when filed.

We hold that appellant’s trial under the information was void. Lowe v. Stack, supra. Accordingly, the judgment and sentence must be reversed.

In view of our holding, we find it unnecessary to address the remaining points raised by appellant. The judgment and sentence are vacated and the cause remanded for further proceedings not inconsistent with this opinion.

HOBSON, Acting C. J., and OTT and DANAHY, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Eric COX, a minor, by and through his guardian and next friend, J. W. Caldwell, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellee.
    Nos. 77-700, 77-1580.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    Rehearing Denied June 27, 1978.

      Beckham, McAliley & Proenza, and Robert Orseck of Podhurst, Orseek & Parks, Miami, for appellant.
    Michael N. Brown of Allen, Dell, Frank & Trinkle, Tampa, for appellee.
   HOBSON, Acting Chief Judge.

In this appeal, we affirm the trial court’s denial of leave to amend a complaint to assert a separate and distinct cause of action. The action arose from a train-car collision in which minor suffered personal injuries and minor’s parents were killed. Minor brought suit for the wrongful death of his mother, and recovered. Minor then brought suit for the wrongful death of the father. After this second wrongful death action had been pending for three years, minor sought to amend his complaint to assert his cause of action for personal injuries. By the time of this attempted amendment, the period of the statute of limitations had run and barred any separate action for the personal injuries. The trial court denied minor’s motion for leave to amend based upon the court’s ruling that the amendment would not relate back to the filing of the original complaint and hence the claim would be barred by the statute of limitations.

While it is established that: “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading” [Fla.R.Civ.P. 1.190(c)], it is equally well established that this does not authorize a plaintiff, under the guise of an amendment, to state a new and different cause of action. Gables Racing Ass’n v. Persky, 131 Fla. 842, 180 So. 24 (1938). Consequently, an amendment will not be allowed if the amendment will change an issue, introduce new issues, or materially vary the grounds of relief. United States v. State, 179 So.2d 890 (Fla. 3d DCA 1965).

Minor’s personal injury action is a different cause of action than his wrongful death cause of action. In Bowie v. Reynolds, 161 So.2d 882 (Fla. 1st DCA 1964), the court held that a plaintiff entitled to bring a wrongful death action after an accident in which the plaintiff also suffered personal injuries, may assert his common law personal injury action as a cause of action separate and distinct from the statutory wrongful death cause of action. The second suit was not subject to dismissal as a splitting of a cause of action.

Minor’s amendment would have introduced new issues and varied the grounds for relief. In Shearn v. Orlando Funeral Home, 88 So.2d 591 (Fla.1956), our supreme court recognized that the plaintiff’s right to maintain an action for personal injuries required proof of some different essential facts than the plaintiff’s wrongful death action arising from the same accident. Under the facts of that case, the court held that although estoppel by judgment barred re-litigation of the identical facts actually presented at trial of the first cause of action, res judicata would not apply to the second action.

The trial court, sub judice, did not abuse its discretion in ruling that the proposed amendment would present a different cause of action, new issues, and varied grounds for relief. Consequently, the trial court’s ruling that the amendment would not relate back to the date of filing the wrongful death complaint was proper, as was denial of leave to file the proposed amendment.

We are aware of the liberality to be accorded a motion for leave to amend the pleadings and the liberal construction of “cause of action” to permit relation back of the amendment. See Handley v. Anclote Manor Foundation, 253 So.2d 501 (Fla. 2d DCA 1971); Fla.R.Civ.P. 1.190, Author’s Comments (relation back), but compare 1954 Fla.R.Civ.P. 1.15. However, we do not see that this rule should be so liberally construed as to allow a plaintiff to circumvent the statute of limitations on the plaintiff’s separate cause of action which could have been asserted by separate suit brought at any time within the statutory period. This is not a case such as where amendment to an answer is sought to assert a compulsory counterclaim which could not be asserted in any suit other than the original action.

The trial court’s denial of appellant’s motion for leave to amend is hereby

AFFIRMED.

GRIMES and OTT, JJ., concur.


author: DANAHY, Judge.

text:
    George ROBBINS and Aaron Robbins, Appellants, v. May ROBBINS and Jere Pinco, Appellees.
    No. 77-937.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    Rehearing Denied June 28, 1978.
    James P. Bennett of Bennett & Dietrich, St. Petersburg, for appellants.
    Michael A. Smith and Ray J. Peacock of Goza, Hall, Peacock & Peters, Clearwater, for appellees.
   DANAHY, Judge.

Appellants/plaintiffs, George and Aaron Robbins, filed suit to quiet title to a parcel of real property. They bring a plenary appeal from an order granting with prejudice appellees/defendants’ motion to dismiss for failure to state a cause of action. The following facts alleged by appellants/plaintiffs are taken as true for purposes of the motion to dismiss.

On August 4, 1959, Hyman Robbins and his wife, Jeanette Robbins, natural parents of appellants/plaintiffs, purchased the real property at issue in this case and took title as an estate by the entirety. Jeanette Robbins died on July 7, 1965. Hyman Robbins subsequently remarried and on May 25, 1966, executed a deed conveying the property to himself and his second wife, May Robbins, as an estate by the entirety. May Robbins did not join in the deed, which recited that the consideration for the transfer was “one dollar and other good and valuable consideration . . .” Hyman Robbins died on May 11, 1968. On December 10, 1975, May Robbins, the unremarried widow of Hyman Robbins, executed a deed conveying the property to her son, Jere Pinco, subject to a life estate in herself.

Appellants/plaintiffs then initiated this action against May Robbins and Jere Pinco seeking a declaration that appellants/plaintiffs possessed a remainder interest in the real property. They alleged that at the time of the 1966 conveyance Hyman and May Robbins were living on the property as a homestead, that the 1966 deed was null and void, and that the attempted conveyance in 1975 was in derogation of their title. We hold that appellants/plaintiffs’ complaint stated a cause of action.

Case law firmly established that under the 1885 constitution, which was in effect in 1966 when Hyman Robbins attempted to create an estate by the entirety with May Robbins, both spouses were expressly required to join in the execution of a deed conveying homestead property. Thomas v. Craft, 55 Fla. 842, 46 So. 594 (1908); Moorefield v. Byrne, 140 So.2d 876 (Fla.3d DCA 1962); 16 Fla.Jur., Homestead, Section 57 (1957). Additionally, the homestead provision of the 1885 constitution was construed to implicitly require that any alienation of homestead property be accompanied by valuable consideration. See, e. g., Jackson v. Jackson, 90 Fla. 563, 107 So. 255 (1925). Therefore, a gratuitous conveyance of homestead property from husband to wife was held to be void, at least where there were children. Church v. Lee, 102 Fla. 478, 136 So. 242 (1931); Reed v. Fain, 145 So.2d 858 (Fla.1962).

Appellees/defendants argue that subsection 2 of Section 689.11, Florida Statutes (1977) validates the 1966 conveyance. That statute by its terms validates prior deeds made between husband and wife which would otherwise have been effective except for the fact that the parties were married. We do not agree.

First, the deed here in question was void ab initio because the attempted conveyance was in derogation of two requirements under the 1885 constitution, joinder and valuable consideration. The supreme court has held that a statute is “unconstitutional if it be construed in such manner as to breathe life into an instrument made and executed in contravention of constitutional inhibitions.” Reed v. Fain, supra. Accordingly, we hold that Section 689.11(2) does not apply to a homestead deed which is void ab initio due to constitutional infirmities.

Second, not only was the 1966 deed void ab initio due to failure to comply with the express and implied constitutional requirements, but it was voidable by appellants, who possessed an inchoate interest created and protected by the constitution at the time the 1966 deed was executed. Appellants’ inchoate remainder interest in the homestead was subject to alienation only if the constitutional requirements of joinder and consideration were complied with. The interest became vested in them when Hy-man Robbins died prior to the effective date of the 1968 constitution. A statute cannot dissolve either an inchoate or vested right which is of constitutional magnitude. If we applied Section 689.11(2) as suggested by appellees, we would abrogate the constitutional protection accorded to homestead property under our prior constitution. Reed, supra.

REVERSED AND REMANDED.

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

      . The order appealed from is interlocutory, not final, and may not be the subject of a plenary appeal. However, this case came to us prior to the effective date of our new appellate rules and is a matter formerly cognizable in equity. Therefore, we can and do choose to treat the appeal as an interlocutory appeal. Washington Security Co. v. Tracy’s Plumbing and Pumps, 166 So.2d 680 (Fla.2d DCA 1964).


text:
    Esther RAEDEL and Fredrik Raedel, her husband, Appellants, v. WATSON CLINIC FOUNDATION, INC., and Glen Barden, M.D., Appellees.
    No. 77-1494.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    Rehearing Denied June 28, 1978.
    Wagner, Cunningham, Vaughan & Genders, Tampa, and Joel D. Eaton of Pod-hurst, Orseck & Parks, Miami, for appellants.

      Michael B. Colgan and Thomas. R. Bay-less, of Holland & Knight, Lakeland, for appellee Glen Barden, M.D.
   DANAHY, Judge.

Does jurisdiction of a medical mediation panel terminate at the end of six months following the filing of a claim, where no hearing was begun within that six months, but where an order was entered by the judicial referee within 120 days following the filing of the claim, pursuant to stipulation of the parties, extending the time for final hearing to a date beyond six months? Our answer is yes.

As provided by Section 768.44(l)(a), Florida Statutes (1977), appellants submitted a claim against appellees to a medical mediation panel. The following provisions of Section 768.44 govern the progress of such a claim:

(3) The clerk shall, with the advice and cooperation of the parties and their counsel, fix a date, time and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed six months from the date the claim is filed. If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.
(4) The filing of the claim shall toll any applicable statute of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date of the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court. (Emphasis added).

But for the tolling provision, the statute of limitations applicable to appellants’ cause of action would have expired 17 days after their claim for medical mediation was filed.

Prior to the expiration of 120 days following the filing of the claim, appellants and appellees stipulated to an extension of the date for final hearing “for a period not to exceed 10 months from the original filing of this claim.” The judicial referee entered an order in accordance with the stipulation.

At the expiration of six months from the filing of appellants’ claim, no hearing on the claim had begun. In doubt as to whether the jurisdiction of the medical mediation panel had terminated, and fearful of being barred by the statute of limitations, appellants filed a complaint against appellees in circuit court 54 days following expiration of the six month period. Their action was ultimately dismissed by the trial judge on the ground that, when the complaint was filed, jurisdiction of the medical mediation panel had not terminated and, therefore, the circuit court did not have jurisdiction of the subject matter. This appeal followed; we reverse.

In doing so, we revert to the question posed at the outset of this opinion. To answer that question we must construe the provisions of a particularly confusing statute. It is helpful to us to consider the construction placed upon the statute by the Florida Supreme Court in the Florida Rules of Medical Mediation Procedure. Fla.R. Med.P. 20.190 provides:

The clerk shall send to all parties a notice of termination of the proceedings when any of the following events has occurred:
(a) a defendant has not filed an answer within 20 days of the date of service;
(b) a hearing has not been held within 120 days from the date of the filing of the claim and no extension order has been entered by the judicial referee;
(c) an extension order has been entered by the judicial referee but the hearing has not been commenced within 6 months from the date of the filing of the claim; or
(d) the final hearing has not been concluded within 10 months from the date the claim is filed.
Termination for any of the foregoing reasons terminates the jurisdiction of the panel. Such termination is final and cannot be extended; modified or reinstated by the panel, the judicial referee or by agreement of the parties. A termination for one of the foregoing reasons is automatic, and the clerk’s act or failure to act is ministerial only.

Were the above rule applicable, the answer to the question confronting us would be clear. However, the Rules of Medical Mediation Procedure took effect on September 1, 1977, after the entry of the order appealed from in this case. Nevertheless, Rule 20.190 represents the supreme court’s construction of Section 768.44(3) and thus is indicative of the supreme court’s position. We so observed in Febles v. Abercrombie, Nos. 77-2016 and 77-2012, 358 So.2d 568 (Fla. 2d DCA 1978). Accord, Graney v. Rippey, 349 So.2d 845 (Fla. 2d DCA 1977); Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978).

In cases decided prior to the effective date of the Rules of Medical Mediation Procedure, Florida courts have reached results consistent with Rule 20.190. Two recent decisions of the Fourth District make it clear that if a defendant in a medical mediation proceeding does not file an answer within 20 days of the date of service of process, jurisdiction of the medical mediation panel terminates, and this is so notwithstanding that the answer was mistakenly filed in the wrong circuit court or that the late filing was with the consent of opposing counsel. Latorra v. Patrick, No. 77-1129, 359 So.2d 463 (Fla. 4th DCA 1978); Johnson v. Crawford, No. 77-233, 361 So.2d 741 (Fla. 4th DCA 1978). In Mercy Hospital, Inc. v. Badia, 348 So.2d 631 (Fla. 3d DCA 1977), the Third District Court of Appeal held that, where the answer was timely filed, but no hearing begun within 120 days from the date the claim was filed and no extension granted within the 120 day period, jurisdiction of the medical mediation panel terminated at the end of 120 days. Another decision of the Fourth District Court of Appeal makes it clear that, notwithstanding that an extension of time may have been granted within 120 days, if no hearing has begun within six months, the jurisdiction of the medical mediation panel terminates at the end of six months. Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978). But see State ex rel. Love v. Jacobson, 343 So.2d 1328 (Fla. 3d DCA 1977).

Finally, this court and others have held that where the final hearing has not been concluded prior to the expiration of ten months from the date a claim for medical mediation was filed, jurisdiction of the medical mediation panel then terminates. Febles v. Abercrombie, supra; Aldana v. Holub, supra; Kirschgessner v. Miami International Hospital, 356 So.2d 11 (Fla. 4th DCA 1977).

In only one situation does the statute permit an extension of time by order of the judicial referee; that is, an extension of the 120 day limitation to six months. In all other cases, the judicial referee is without authority to extend the time for holding a final hearing beyond the time limitations of the statute. Mercy Hospital, Inc. v. Badia, supra; Green v. Broward General Medical Center, supra; Febles v. Abercrombie, supra.

Appellees argue that the result should be different where the judicial referee’s order is predicated upon a stipulation of the parties. We disagree. The time limitations of the statute are jurisdictional, Johnson v. Crawford, supra, and jurisdiction cannot be extended by agreement of the parties.

Accordingly, the jurisdiction of the medical mediation panel in the case before us terminated at the end of six months following the filing of appellants’ claim. Therefore, appellants’ complaint filed within 60 days thereafter was appropriately filed in the circuit court and the trial judge was in error in dismissing the action.

We reverse and remand with instructions to reinstate appellants’ complaint.

BOARDMAN, C. J., and RYDER, J., concurs.

      . The order of dismissal was entered after the expiration of 60 days following the 10 month period running from the date of the filing of appellants’ claim. Appellants chose not to file a new complaint within that 60 days.

      . § 768.44(l)(c) provides: All parties named as defendants in the claim shall file an answer to such claim within 20 days of the date of service. No other pleadings shall be allowed. If no answer is filed within such time limit, the jurisdiction of the mediation panel over the subject matter shall terminate, and the parties may proceed in accordance with law.


author: HOBSON, Judge.

text:
    James F. RYAN, Appellant, v. Nick BEUCHER, Jr. and Robert N. Beucher, Appellees.
    No. 77-1632.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    Rehearing Denied June 28, 1978.
    P. C. Gorman, Leesburg, for appellant.
    Bernard C. O’Neill, Jr., of Roby, O’Neill, Dyer & Bogner, Orlando, for appellees.
   HOBSON, Judge.

Appellant appeals a final summary judgment entered in favor of appellees.

The final summary judgment included the basic judgment for $5,000 plus interest and costs. The cost judgment included the payment for copies of depositions taken by the appellant and furnished to the appellees. This portion of the judgment for costs was error. Cohen v. Dennis, 209 So.2d 465 (Fla.3d DCA 1968); Florida Greyhound Lines v. Jones, 60 So.2d 396 (Fla.1952).

The final summary judgment is affirmed in part and reversed in part.

BOARDMAN, C. J., and DANAHY, J., concur.


text:
    Herbert VAN DERVEN et ux., et al., Appellants, v. Mary Elizabeth HASKINS, a free dealer, Appellee.
    No. 77-307.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied July 10, 1978.
    Horton, Perse & Ginsberg, Miami, for appellants.

      Harris, Albury & Morgan, Key West, Joe N. Unger and Mark King Leban, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Lee Engineering and Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968); Garrett v. Oak Hall Club, 118 So.2d 633 (Fla.1960); Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla.1st DCA 1975); Kaplan v. Lennecker, 293 So.2d 738 (Fla.3d DCA 1974); Ferrer v. McMurry, 238 So.2d 315 (Fla.3d DCA 1970); Titusville Enterprises, Inc. v. Newkirk, 205 So.2d 16 (Fla.4th DCA 1967); St. Paul Fire and Marine Insurance Co. v. Hodor, 200 So.2d 205 (Fla.3d DCA 1967); Brooks v. Adams, 115 So.2d 578 (Fla.2d DCA 1959); Robbins v. Grace, 103 So.2d 658 (Fla.2d DCA 1958).


author: KEHOE, Judge.

text:
    The TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Marti B. GRAY, by her father and next friend, Billy G. Gray, and Billy G. Gray, Individually, Appellees.
    Nos. 77-354, 77-477.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied July 14, 1978.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellant.
    Ezzo & Garel and Bruce A. Saylor, Miami, for appellees.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings these consolidated appeals from an order dated January 21, 1977, granting appellee Marti B. Gray’s motion for summary judgment and denying appellant’s motion for summary judgment, and from a final judgment dated February 16, 1977, incorporating and making final the order of January 21, 1977. For the reasons set forth below, we reverse.

The following statement of facts is based upon the stipulated statement of facts on appeal filed in the record.

Appellee Marti B. Gray, a minor, was injured on July 17, 1975, in an automobile accident with Mrs. Bledsoe. At that time, Mrs. Bledsoe was insured with The Kenil-worth Insurance Company under a policy containing applicable limits of $15,000.00. (Mrs. Bledsoe is not a party to this action). At the time of the accident, Marti was residing in the household of appellee Billy G. Gray, her father. Mr. Gray had in effect an automobile liability policy, issued by appellant The Travelers Insurance Company, which had uninsured motorist limits of $35,-000.00. Marti was an insured under the Travelers policy, insofar as she had a right to claim benefits thereunder.

Appellees brought suit against Mrs. Bled-soe and her insurer, The Kenilworth Insurance Company. During the pendency of that suit, The Kenilworth Insurance Company paid to appellees its policy limits of $15,000.00. The Grays did not execute any release in exchange for the policy limits; however, they did enter into a stipulation dismissing with prejudice the case against Mrs. Bledsoe and her insurer. Pursuant to this stipulation, the trial court on March 18, 1976, entered an order of dismissal. The relevant portion of the order of dismissal reads as follows:

“. . . that the above and foregoing cause be and the same is hereby dismissed with prejudice to the Plaintiff herein, that Defendant go hence without day . . .”

Appellant never gave its written consent to the stipulation or the order of dismissal.

After the stipulation and the order of dismissal were entered by the trial court, appellees filed a demand for arbitration against appellant seeking to recover benefits, in excess of the $15,000, under the uninsured motorist provision of their policy, pursuant to the “under-insured” provisions of Section 627.727, Florida Statutes (1975). For purpose of this appeal, no issue was raised about the extent of the minor appel-lee’s damages, and the parties concede that this issue would be one for arbitration. Subsequently, appellant filed a complaint for a declaratory judgment which reads, in pertinent part, as follows:

“That the Defendants [appellees herein] are not entitled to coverage under the aforementioned policy issued to Billy G. Gray by the Plaintiff [appellant herein] inasmuch as (the Stipulation and Order of Dismissal) was contrary to the policy provision set forth in (TRAVELERS insurance policy) in that said settlement was entered into without the written consent of the Plaintiff.”

In response, appellees raised as affirmative defenses: (1) that no release had been executed; and (2) that appellant had been made aware of the progress of negotiations prior to the execution of the stipulation and order of dismissal and, having raised no objections to the negotiation, thereby, waived any possible objection to the settlement. Appellant denied the affirmative defenses. Prior to the trial court’s entry of summary judgment in favor of appellees, no facts were ever adduced as to appellant’s knowledge of the negotiations.

Upon the facts as stated, both appellant and appellees moved for summary judgments. Thereafter, the trial court entered an order granting appellees’ motion for summary judgment and, subsequently, entered a final judgment on the issue of coverage. The final judgment dismissed with prejudice appellant’s complaint for declaratory judgment. From this order and final judgment, appellant appeals.

Appellant’s basic contention on appeal is that appellees were not entitled to “under-insured” coverage under their policy because appellees had entered into a settlement with the tort-feasor and her insurer contrary to the provisions of the policy.

Appellees contend that they may recover under the uninsured motorist provision of their policy with appellant, even though they had received the policy limits of $15,-000 from the tort-feasor’s insurance company, because they had not executed any release and their policy limits exceeded those of the tort-feasor’s policy.

Appellees argue that, pursuant to Section 627.727(3), Florida Statutes (1975), the uninsured motorist provision of their policy applies where such coverage limits exceed the bodily injury limits of a tort-feasor’s policy. Assuming this to be true, appellees’ argument is misplaced. Section 627.727(2)(b), Florida Statutes (1975), provides that:

“(2) For the purpose of this coverage, the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
* * * * * *
(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.” [Emphasis added.]

Although Section 627.727(3) may provide “under-insured” coverage to appellees under their policy with appellant, this Section, when read in conjunction with Section 627.-727(2)(b), clearly makes such coverage subject to the other valid terms and conditions of the policy. In the instant case, one of the provisions of the policy, in regard to the unauthorized settlement of uninsured motorist claims, reads as follows:

“This insured motorist part does not apply:
* * * * * *
b. Unauthorized Settlement. To bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefore.”

Another provision, in regard to subrogation, reads as follows:

“In the event of any payment under this policy, the company shall be subrogated to all the insured’s rights or recovery therefore against any person or organization and, with respect to Part b, all rights of recovery therefore which the injured person or anyone receiving such payment may have against any person or organization. The insured, or with respect to Part B such person, shall execute and deliver instruments and papers, do whatever is necessary to secure such rights and shall do nothing after loss to prejudice such rights.”

We do not think that Section 627.727(3) abrogates either of these provisions of the policy. In our opinion, appellees, by entering into the stipulation dismissing with prejudice their cause of action against the tort-feasor, Mrs. Bledsoe, and her insurer, The Kenilworth Insurance Company, made in effect a settlement contrary to the provisions of their policy with appellant. Accordingly, appellees’ failure to comply with the valid terms and conditions set forth in these provisions caused them to lose their “under-insured” coverage under their policy with appellant. Such a result, i. e., of losing coverage for failure to comply with the terms and conditions of a policy, is not a novel one. See, e. g., Arrieta v. Volkswagen Insurance Company, 343 So.2d 918 (Fla. 3d DCA 1977); Sena v. State Farm Mutual Automobile Insurance Company, 305 So.2d 243 (Fla. 3d DCA 1974); and McInnis v. State Farm Mutual Automobile Insurance Company, 208 So.2d 481 (Fla. 4th DCA 1968).

Because of this determination, it follows that the trial court erred in entering the order and final judgment appealed granting summary judgment in favor of appellees. Therefore, the order and final judgment are reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    F & D ELECTRICAL CONTRACTORS, INC. a Florida Corporation, Emelio Diaz and Jewell Diaz, Appellants, v. MILLER & SOLOMON, INC., a Florida Corporation, Appellee.
    No. 77-1885.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied July 10, 1978.
    Quarles & Mills, Rollins, Peeples & Meadows, South Miami, for appellants.
    Mark Casper, Miami, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CRAWFORD, GRADY L., (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Frank J. Rooney, Inc. v. Charles W. Ackerman of Fla., 219 So.2d 110 (Fla.3d DCA 1969).


author: RIVKIND, LEONARD, Associate Judge.

text:
    Lois W. BAKER, Appellant, v. William H. BAKER, Appellee.
    No. 76-2397.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied July 17, 1978.

      Ronald Sales of Law Offices of Ronald Sales, Palm Beach, for appellant.
    George H. Bailey of Jones, Paine & Poster, P. A., West Palm Beach, for appellee.
   RIVKIND, LEONARD, Associate Judge.

This is an appeal from an order modifying a final judgment by transferring custody of a minor child of the parties from the appellant-mother to the appellee-father. The facts are fully set forth in the trial judge’s order of modification. No useful purpose would be served by repeating them here.

The decision of the trial judge carries with it the presumption of correctness and it is incumbent upon appellant to demonstrate that the order appealed was clearly erroneous. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); Cowen v. Cowen, 95 So.2d 584 (Fla.1957); Bennett v. Bennett, 146 So.2d 588 (Fla. 2nd DCA 1962).

In order to modify custody there must be a substantial change in circumstances since the time the original judgment was entered. A trial court does not have the same degree of discretion to modify the custody provisions of a final judgment of dissolution as it does at the time of the original judgment. Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967); Tash v. Oesterle, 356 So.2d 61 (Fla. 3d DCA 1978).

We have carefully considered the entire record in this case in the light of the foregoing legal principles. We cannot say the trial court’s decision was clearly erroneous or that he abused his discretion. Ergo, we must uphold it even though we might have decided differently had we been the trier of fact. Bennett v. Bennett, supra.

As the Supreme Court stated in Grant v. Corbitt, 95 So.2d 25, 28 (Fla.1957):

[T]his 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 a child custody.

AFFIRMED.

DOWNEY, C. J., and MOORE, J., concur.


text:
    Vivian LARKINS, Appellant, v. Glonger CARTER, Appellee.
    No. 77-261.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied July 17, 1978.
    Michael N. Gomes of Week & Stone, P. A., Pompano Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

The record fails to support the ruling of the trial court. Accordingly, the final judgment is reversed and the cause remanded with instructions to enter judgment for the appellant.

REVERSED with instructions.

DOWNEY, C. J., ANSTEAD, J., and SIL-VERTOOTH, LYNN N., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Frank A. SMITH, III, Appellee.
    No. 77-1662.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied July 12, 1978.
    See also, 314 So.2d 226.
    Robert L. Shevin, Atty. Gen., Tallahassee, Glenn H. Mitchell, Asst. Atty. Gen., for appellant.
    Robert J. Buonauro, P. A., Orlando, for appellee.
   RIVKIND, LEONARD, Associate Judge.

The state appeals an order of a trial court which mitigated a sentence of life imprisonment. The trial court reduced this sentence to an “. . . indeterminate sentence of not less than two (2) years and not to exceed six (6) years . . . ”

Appellee was charged by information with second degree murder. On September 6, 1974 he was adjudged guilty and sentenced to life imprisonment. The judgment and sentence were affirmed on appeal to this court. Smith v. State, 314 So.2d 226 (Fla. 4th DCA 1975), cert. den., 345 So.2d 427 (Fla.1977). The mandate from this court was filed in the trial court on April 11, 1977. Appellee filed his motion to mitigate on May 10, 1977 alleging that he had been a model prisoner and presented no danger to society. The motion to mitigate was timely filed. However, the trial court, because of calendar commitments, declined to schedule a hearing until July 21, 1977, albeit appellee requested a hearing on May 11, 1977.' In an order nunc pro tunc, entered on July 26, 1977, the trial court ruled that the time required for hearing and disposition was tolled by the filing of the motion to mitigate.

Appellant asserts that the trial court was without jurisdiction to mitigate appel-lee’s sentence on a date more than sixty days after the mandate was received by the trial court. We agree.

Pursuant to Fla.R.Crim.P. 3.800(b), a trial court may reduce a legal sentence at any time within sixty days after such imposition or within sixty days after completion of appellate review. In the case sub judice the sentence was reduced 101 days after receipt by the trial court of the mandate issued by this court. The trial court lost jurisdiction over the appellee sixty days after the mandate was received. This being the case, the mitigation of sentence on July 21, 1977, was a nullity. The trial court exceeded its authority in entering an order “tolling” the time limitations provided in R.Crim.P. 3.800(b). That order is likewise a nullity.

In State v. Evans, 225 So.2d 548, 550 (Fla. 3rd DCA 1969), cert. den., 229 So.2d 261 (Fla.1969), cert. den., 397 U.S. 1053, 90 S.Ct. 1393, 25 L.Ed.2d 668 (1970), the mandate was filed in the trial court on April 21, 1967. The sixty day period ended on June 20, 1967. The Third District stated:

“At the end of the latter date [June 20, 1967] the criminal court of record had no power to change respondent’s lawful sentence in any way. Therefore when that court entered the order of March 18,1969, it acted without jurisdiction. As a consequence that order is a nullity”.
“The respondent contends and urges us to hold, that if a motion to mitigate sentence is filed within 60 days of the date a sentence is pronounced by a trial court, that court has the power to hold hearings on the motion and act upon it at any time. . . . Respondent’s construction of the statute and rule would permit indefinite supervision by a trial court over all legal sentences it imposes. Such supervision does not accord with reason or public policy. Under our tripartite system of government there must come a time when the judiciary’s power to reduce a lawful sentence ends and rests in the executive department. . . . ”

In its denial of certiorari in State v. Evans, supra, the Supreme Court of Florida stated:

“. . . the District Court of Appeal correctly concluded that the trial court proceeded without jurisdiction”.

The appellate courts of Florida have consistently held that the limitation of time provided in R.Crim.P. 3.800(b) for reduction of sentence is jurisdictional. State v. Sotto, 348 So.2d 1222 (Fla. 3rd DCA 1977); Collins v. State, 343 So.2d 680 (Fla. 2nd DCA 1977); Moss v. State, 330 So.2d 742 (Fla. 1st DCA 1976); Sayer v. State, 267 So.2d 42 (Fla. 4th DCA 1972); Ware v. State, 231 So.2d 872 (Fla. 3rd DCA 1970).

We address ourselves to one further matter. In articulating the reasons for a reduction in sentence, the trial judge said, inter alia:

“. . .1 also know it is the custom among judges to sentence more harshly if you go to trial than if you plead, I am afraid that I have been probably a victim of that same sentencing process. It is not proper and not constitutional. And, I feel that had Mr. Smith entered a plea or discussed it with the court, he would have been sentenced differently . ..”

Appellee contends the original sentence, therefore, was unconstitutional. Fla.R.Crim.P. 3.800(a) or (b) is not the proper vehicle for the submission of this issue. The order of the trial court reducing the appellee’s sentence is reversed and the original life sentence is reinstated with credit given for any time served. The reversal is without prejudice to the filing of a Rule 3.850 motion in the trial court seeking an evidentiary hearing on whether or not the sentence was imposed in violation of the Constitution or laws of the United States or of the State of Florida. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Hankerson v. State, 326 So.2d 200 (Fla. 4th DCA 1976); Weathington v. State, 262 So.2d 724 (Fla. 3rd DCA 1972). We express no opinion on the merits thereof. The cause is reversed and remanded for proceedings consistent with this opinion.

DOWNEY, C. J., and MOORE, J., concur.

      . No question has been raised in the briefs concerning the legality of an indeterminate sentence of not less than 2 years where the legislature has specifically provided for an indeterminate period of 6 months to a maximum period of imprisonment which may be less than the maximum provided by law for the offense. F.S. 921.18. In view of our disposition reversing the amended sentence for the reason stated, we deem it unnecessary to consider this further.

      . Transcript of Mitigation Hearing on July 21, 1977, Page 54.


author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. Jack AGERTON, Appellee.
    No. 77-1923.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied July 12, 1978.
    David H. Bludworth, State Atty., and Steven W. Gomberg, Asst. State Atty., West Palm Beach, for appellant.
    Donald P. Kohl of Kohl, Springer & Springer, Palm Springs, for appellee.
   DAUKSCH, Judge.

Reversed on the authority of State v. Kurtz, 354 So.2d 890 (Fla. 4 DCA 1978) and remanded for further proceedings.

REVERSED and REMANDED.

DOWNEY, C. J., and LETTS, J., concur.


text:
    Robert DePUEY, Petitioner, v. VREELAND CLAIM SERVICE and State of Florida, Department of Commerce, Division of Employment Security, Respondents.
    No. 77-2274.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied July 18, 1978.
    Chester A. Parker, III, Orlando, for petitioner.
    Kenneth H. Hart, Jr., Gen. Counsel, and Ollie L. Evans, Tallahassee, for respondent State of Florida, Dept, of Commerce, Div. of Employment Security.
   DAUKSCH, Judge.

Because the petition for writ of certiorari was filed more than thirty days after the order to be reviewed was rendered, we have no jurisdiction to grant a writ of certiorari.

Petition for writ of certiorari is DISMISSED.

CROSS and MOORE, JJ., concur.


author: RYDER, Judge.

text:
    Horace C. KINSLER, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1204.
    District Court of Appeal of Florida, Second District.
    June 2, 1978.
    Rehearing Denied June 28, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant contends the trial court erred in denying his motion to suppress the use of his footprint as evidence against him during his trial on charges of robbery and burglary. We find merit in his arguments and reverse.

On October 1, 1977, two men entered the home of Mr. and Mrs. Robert Staton and robbed them of their wallets containing approximately forty-three dollars. When the police investigated the crime, they found it was similar to other burglaries in which appellant was a suspect. Consequently, they wished to match a footprint found at the Statons’ with that of appellant.

At this time, appellant was on parole from a conviction in an unrelated case. Police Sergeant Richard Evans contacted appellant’s parole officer, Dennis Chapman, and asked for his cooperation in obtaining appellant’s footprint. Chapman agreed. Thereafter, during a meeting with appellant, Chapman confronted him with Sergeant Evans’, story. Appellant said that the police had asked him several times to give a footprint and that he had declined each time. He also denied any involvement in the burglary and robbery of the Statons.

Mr. Chapman then asked appellant to go to the police station voluntarily and give the footprint. When appellant refused, Chapman told him he could either go voluntarily or he could go under Section 10 of his parole conditions. Section 10 requires a parolee to carry out all instructions of his supervisor. While Chapman did not tell appellant his parole would be revoked if he did not give the footprint, Chapman did state that appellant really had no choice in the matter. As a result, appellant went with Chapman to the police station and gave his footprint.

Appellant’s footprint matched the one found at the Statons and the State charged and tried appellant for burglary and robbery. A jury found appellant guilty of both offenses, and the court sentenced him to two consecutive fifteen year prison terms. The footprint evidence was obviously a decisive factor at trial since neither of the Statons could positively identify their assailants.

In considering the question of whether the trial court should have allowed the introduction of the footprint into evidence, we have found rulings by the Florida Supreme Court and the United States Supreme Court which, we think, are dispositive. In Anderson v. State, 241 So.2d 390 (Fla.1970), the court said:

Fingerprints taken by the police before a defendant is arrested and without probable cause would violate his Fourth Amendment protection against unreasonable search and seizure. 241 So.2d at 393.

Accord, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Since the record shows that appellant was not under arrest at the time the police took the footprint and that the police did not have probable cause, we believe that Anderson and Davis mandate the suppression of the footprint evidence.

The State concedes the absence of the arrest and probable cause elements. However, it argues that there was no Fourth Amendment violation because appellant gave his voluntary consent to the taking of the footprint. We disagree. To say that appellant voluntarily went to the police station is to defy common sense. Obviously appellant allowed the taking of his footprint only because his parole officer made it clear that to do otherwise would be a violation of a condition of parole. As we have said before, mere submission to the authority of an officer of the state does not constitute voluntary consent. Samuels v. State, 318 So.2d 190 (Fla. 2d DCA 1975).

The State also argues that by accepting parole appellant gave up his right to the protections contained in the Fourth Amendment. This contention is without merit. While evidence seized in violation of the Fourth Amendment is admissible at a parole revocation hearing, such evidence is not admissible during a criminal trial. Croteau v. State, 334 So.2d 577 (Fla.1976). See also State v. Heath, 343 So.2d 13 (Fla.1977).

In view of what we have said, we reverse appellant’s conviction and remand the case for proceedings consistent with this opinion.

BOARDMAN, C. J., and OTT, J., concur.

      . Of course, there is no difference in a Fourth Amendment context between the taking of fingerprints and the taking of footprints.


text:
    Walter PETERSON, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 77-639.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 14, 1978.
    Groland, Brown & Huysman and James B. Matthews, Miami, for appellant.
    Stuart L. Simon, County Atty. and Stephen P. Lee and John E. Finney, Asst. County Attys., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977); and Commercial Carrier Corp. v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977).


text:
    Ivy LOVE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1209.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 14, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant seeks reversal of a judgment of conviction based upon a jury verdict finding him guilty of involuntary sexual battery by threats of violence likely to cause serious injury.

It is appellant’s contention that the trial court erred in overruling his objections to the admission of testimony of collateral crimes and denying his motion for a mistrial.

We have carefully considered appellant’s contentions in the light of the record on appeal, and briefs and have concluded that reversible error has not been shown. Williams v. State, 110 So.2d 654 (Fla.1959); Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA 1976), and Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968).

Therefore the judgment and sentence are affirmed.


text:
    Helio CASAS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1299.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 14, 1978.

      Alvin E. Entin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

The single point presented on this appeal urges error upon the trial court’s denial of a motion to suppress certain evidence seized at the time of defendant’s arrest. Defendant urges (1) that the court erroneously failed to rule upon the motion because the court considered it untimely filed, and (2) that the motion should have been granted. The record conclusively refutes both positions. The judgment and sentences are affirmed. See State v. Parnell, 221 So.2d 129 (Fla.1969), concerning the “clear view” doctrine; and Sessions v. State, 213 So.2d 614 (Fla. 1st DCA 1968), concerning search and seizure incident to arrest.

Affirmed.