author: PER CURIAM. HUBBART, Judge

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 76-146.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied May 4, 1977.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff, Liberty Mutual Insurance Company, appeals a final summary judgment for defendant, Florida Farm Bureau Casualty Insurance Company, in this action to recover a prorata contribution of uninsured motorist coverage from the defendant.

On March 4, 1970 a collision occurred between a vehicle driven by William Mace, an uninsured motorist, and a vehicle operated by Emanuel E. Meyer who was insured by Florida Farm Bureau Casualty Insurance Company. As a result of the accident Isadore Fuss, a passenger in the Meyer car, was fatally injured. Isadore’s widow, Frieda, filed a wrongful death action against Meyer and Florida Farm (case # 70-17752) claiming damages in excess of $19,000. This case was dismissed on May 10, 1971 after Frieda negotiated a settlement for $10,000 and executed a general release on April 29,1971 in favor of Meyer and Florida Farm. Although Isadore was an insured under the uninsured motorist provision of Meyer’s policy, Florida Farm paid nothing to Frieda under this provision. Thereafter Frieda filed a claim under the uninsured motorist provision of her deceased husband’s policy issued by Liberty Mutual Insurance Company. This claim was submitted to arbitration, and on March 1, 1972 the American Arbitration Association awarded Frieda $20,000. On March 27 Liberty Mutual filed a complaint for declaratory judgment (case # 72-6333) seeking to have the $10,000 paid by Florida Farm declared a set-off from the $20,000 arbitration award. By order of September 15,1972 the set-off was denied and the arbitration award affirmed. Thereupon, Liberty Mutual filed the instant complaint against Florida Farm for a prorated contribution from the uninsured motorist provision of Florida Farm’s policy issued to Meyer. After pretrial discovery, Liberty Mutual filed a motion for summary judgment. After a hearing thereon, the trial judge determined that the release and the May 10, 1971 dismissal of Frieda’s action against Florida Farm and Meyer concluded any claims which were or might have been litigated in that action, including any and all claims which Liberty Mutual had or might have had against Florida Farm. The judge then denied Liberty Mutual’s motion for summary judgment and entered summary judgment for Florida Farm. Liberty Mutual appeals. We affirm.

Liberty Mutual did not appeal the September 15, 1972 order finding that the $10,-000 paid Frieda in case # 70-17752 on behalf of Meyer was not a set-off or deduction from the $20,000 arbitration award. Therefore, this issue cannot now be raised. Also, Frieda Fuss never made a claim against Florida Farm for the uninsured motorist benefits provided by the policy issued to Meyer. The case of State Fire & Casualty Co. v. National Indemnity Co., 225 So.2d 570 (Fla. 3d DCA 1969) upon which Liberty Mutual relies is distinguishable from the instant case because in that case the widow of the deceased filed uninsured motorist claims against both insurance carriers and she did not bring a civil action against the insurance carrier with whom she negotiated a settlement. In addition, in the State Fire & Casualty case there was no order dismissing any and all claims which were or might have been litigated.

Affirmed.

HUBBART, Judge

(dissenting):

I must respectfully dissent. Although both Florida Farm and Liberty Mutual are admittedly obligated to pay Mrs. Fuss under the uninsured motorist provisions of their respective insurance policies, only Liberty Mutual has paid. By its decision, the Court has barred Liberty Mutual from now seeking pro rata contribution from Florida Farm. This result is squarely contrary to the decisions of the Supreme Court of Florida in Sellers v. United States Fidelity and Guaranty Co., 185 So.2d 689 (Fla.1966), and Allstate Insurance Co. v. Dairyland Insurance Co., 271 So.2d 457 (Fla.1972).

In Sellers the Court established the principle that there should be pro rata contribution between multiple uninsured motorist carriers for injuries sustained by an insured and caused by an uninsured motorist. The Court stated:

“To recapitulate, if there exists more than one automobile liability insurance policy protecting the same insured, then in case of loss each of the insurers would pro-rate the amount paid to cover the loss of the insured * * * As a practical matter when settlement or recovery of the loss between insured and insurer or insurers is effected it will then be in order for the insurers to make pro-ration inter se * * * This construction requires pro-ration among multiple insurers issuing policies pursuant to F.S. § 627.0851, F.S.A.” Sellers v. United States Fidelity and Guaranty Co., 185 So.2d at 692.

In Allstate Insurance Co. the Court again reaffirmed this principle. An uninsured motorist had caused a collision with a car occupied by a driver and a passenger. The passenger made a claim against the driver’s uninsured motorist carrier and settled for a certain amount of money. This carrier in turn sued the passenger’s uninsured motorist carrier for pro rata contribution. The trial court granted the pro rata contribution, the First District Court of Appeal reversed, and the Supreme Court reversed reinstating the trial court’s judgment. The Court stated:

“In our view, the Sellers decision lays down policy guidelines and an interpretation of the uninsured motorist statute which must govern the result in the instant case. Proration of claims between insurers was suggested in Sellers as a method of carrying out the acknowledged goal of Fla.Stat. § 627.0851 that every policy provide uninsured motorist protection. We took the view in Sellers that in order to most fully effectuate this goal all insurers should share a proportion of the risk, rather than utilizing the conventional method of assigning the entire loss to one ‘primary’ insurer.” Allstate Insurance v. Dairyland Insurance Co., 271 So.2d at 458.

These cases directly control the case at bar. Liberty Mutual and Florida Farm are both uninsured motorist carriers responsible to pay Mrs. Fuss under their respective policies. Yet only Liberty Mutual has paid. Clearly, Liberty Mutual is entitled to a pro rata contribution against Florida Farm.

I am not impressed with the fact that Florida Farm got a full release from Mrs. Fuss and the trial court accordingly dismissed Mrs. Fuss’ lawsuit against Florida Farm. This in no sense decided Liberty Mutual’s right to contribution against Florida Farm. Liberty Mutual was not a party to that litigation and its contribution claim against Florida Farm could hardly be released by Mrs. Fuss nor decided by the court in its order of dismissal.

In State Fire and Casualty Co. v. National Indemnity Co., 225 So.2d 570 (Fla. 3d DCA 1969), this Court held that a similar release from the insured could not bar the second insurance carrier’s right to contribution. An uninsured motorist had caused a collision with a car occupied by a driver and a passenger. The passenger’s widow made an uninsured motorist claim against the driver’s insurance carrier. She settled her claim and issued a general release to that carrier. She later secured an arbitration award from her husband’s uninsured motorist insurance carrier. The latter carrier in turn sought pro rata contribution against the driver’s carrier. The driver’s carrier denied the claim, much as Florida Farm does in this ease, by asserting the widow’s release. This Court flatly rejected the argument and allowed pro rata contribution based on the principle established in the Sellers case.

If anything, the facts of the present case are more compelling than State Fire because here there was never any purported release of the widow’s uninsured motorist claim against Florida Farm. No uninsured motorist claim was ever made against Florida Farm. In State Fire there was such a claim, but quite rightly the Court held that this could not bar the second carrier’s admitted right to contribution. In any event, Mrs. Fuss’ release and the order of dismissal on her claim by the court cannot bar Liberty Mutual’s admitted right to pro rata contribution against Florida Farm.

I am also unimpressed with the fact that Liberty Mutual did not appeal from an adverse decision in its declaratory judgment suit against Mrs. Fuss. That was not a suit for contribution against Florida Farm. It was a suit seeking a set-off or reduction of Mrs. Fuss’ total award against Liberty Mutual. The decree denying such a set-off in no sense decided the contribution issue since it was not involved in the lawsuit. As such, the decree is hardly res judicata or estoppel by judgment against Liberty Mutual’s contribution claim.

The trial court erred in denying Liberty Mutual’s motion for summary judgment seeking a pro rata contribution against Florida Farm. I would accordingly reverse and remand.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph B. SCHAEFER, Appellant, v. Helen M. SCHAEFER, Appellee.
    No. 76-206.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied May 4, 1977.
    Hilton R. Carr, Jr., Herbert A. Warren, Miami, for appellant.
    Horton, Perse & Ginsberg, George Baker Thompson, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

The parties to this cause were divorced in 1961 in the State of Nevada. The final decree of divorce incorporated a settlement agreement, which provided that the husband would pay $12,000.00 a year in alimony. He recently brought an action in Florida to establish the Nevada decree as the decree of the Circuit Court of the Eleventh Judicial Circuit, and sought a modification of the alimony. The relief was denied, and this appeal ensued.

Although there may have been some decrease in the husband’s total net worth since the entry into of the agreement, he has had an income in excess of $50,000.00 a year for the past several years, and still has the ability to make the agreed upon alimony payments. It appears that having such ability prevents a modification of the decree for alimony. See: Fowler v. Fowler, 112 So.2d 411 (Fla. 1st D.C.A. 1959), wherein the following is found:

“The statute authorizes modification of an alimony decree only upon a clear showing that the circumstances of the parties or the financial ability of the husband have changed since the entry of the decree. Where the amount of alimony decreed is based upon an agreement freely entered into between the parties, a heavier burden rests upon the husband to justify a modification. A reduction of the husband’s income on any account will not itself justify a modification in the alimony requirements of the decree. Husband’s financial incapacity to continue the payment of alimony in the amount ordered by the decree must be shown if the court is to make such order as justice and equity may require.
* * * * * *
“We fail to find in the record any evidence tending to establish that it is beyond the husband’s capacity to pay from his present resources the amount of alimony fixed in the divorce decree. Indeed, no such finding was made by the chancellor in the modification decree here assaulted. In the absence of this necessary prerequisite, it was error to order cancellation and discharge of all payments required to be made by husband under the terms of the divorce decree.”

See, also: Scott v. Scott, 285 So.2d 423 (2nd D.C.A. 1973); also see and compare Singer v. Singer, 318 So.2d 438 (4th D.C.A. 1975).

Therefore, for the reasons above stated, the order denying modification here under review be and the same is hereby affirmed.

Affirmed.


author: BARKDULL, Judge. HUBBART, Judge

text:
    Howard SHIDLOWSKY, Appellant, v. NATIONAL CAR RENTAL SYSTEMS, INC., a Foreign Corporation, et al., Appellees.
    No. 76-571.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied May 4, 1977.
    Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellant.
    Mitchell M. Goldman, Miami, for appel-lees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   BARKDULL, Judge.

Howard Shidlowsky, plaintiff in the trial court, appeals from a final judgment, entered pursuant to a directed verdict entered in favor of the defendants, Morse, Dyer, and National Car Rental Systems, Inc., in an action for malicious prosecution.

Shidlowsky filed a complaint against the defendants for malicious prosecution of a criminal charge for stealing $7,500.00, which National Car Rental had inadvertently overpaid a corporation of which Shidlow-sky was a stockholder. Shidlowsky admitted this corporation received the overpayment and in the refusing to return the $7,500.00, because the money had been deposited in his corporate business account and the funds were no longer available. He continuously offered to pay back the money in $500.00 monthly installments, but each time was refused. Thereupon, the defendant (Dyer), on behalf of the appellee Corporation, instituted a criminal action which ultimately culminated in the charges being dropped by the Justice of the Peace, with the following notation thereon:

“Dismissed — req both sides (over)
12/7 note in repayment
other recourse
‘civil’ ”.

At the same time, Shidlowsky signed a promissory note to repay the $7,500.00 in $500.00 monthly installments. At the conclusion of Shidlowsky’s case, the trial court directed a verdict in favor of the defendants. The court concluded that Shidlowsky failed to meet his burden of proving that the defendants acted without probable cause in swearing out a criminal warrant against him, and that the criminal proceedings had a bona fide termination in favor of Shidlowsky. This appeal ensued.

The proofs indicated that at the time the criminal proceeding came on to be heard before the Justice of the Peace, Mr. Shidlowsky and his lawyer, Mr. Moran, negotiated with Mr. Dyer on behalf of the named Corporations and settled the matter by the execution of a promissory note providing for payments at the rate of $500.00 per month. Both counsel agree that there are six elements to be established by a plaintiff in a malicious prosecution case, to wit: 1. A criminal proceeding was commenced or continued against plaintiff. 2. The defendant or defendants commenced or caused the commencement of the criminal proceedings against plaintiff. 3. The criminal proceeding had a bona fide termination in favor of the plaintiff. 4. There was no probable cause for causing the commencement of such criminal proceedings. 5. There was malice in causing the commencement of such criminal proceedings. 6. The plaintiff suffered damage.

Both counsel agree, and it appears from the record, that the trial court directed a verdict in this cause because of her feeling that the third prerequisite of a malicious prosecution cause had not been demonstrated by the dismissal of this case, and that the matter was controlled by Freedman v. Crabro Motors, Inc., 199 So.2d 745 (Fla. 3rd D.C.A. 1967), in that the criminal action was dismissed by a bargain between the parties upon the execution of the promissory note.

We reverse, and return the matter for a trial on the issue of whether or not it was, in fact, an abandonment of the criminal charges or a bargain to dismiss the charges because the defendant corporation in this case received nothing more from Shidlowsky upon the termination of the criminal proceeding before the Justice of the Peace than that which he had been offering all along. This is contrary to the factual situation in Freedman v. Crabro Motors, Inc., supra.

Therefore, for the reasons above stated, the final judgment based on the directed verdict be and the same is hereby reversed, and this matter is returned to the trial court for the purpose of according the plaintiff therein a new trial.

Reversed and remanded, with directions.

HUBBART, Judge

(concurring).

I concur in Judge Barkdull’s able opinion for the court and would add only that the facts as developed by the plaintiff at trial, if true, show an outrageous use of the criminal justice machinery to collect on a patently civil debt. Although it is true that some civil debts may give rise to criminal liability where a criminal intent is present, it is clear that this is not one of those cases. The evidence tends to show that the debt was innocently incurred by the plaintiff herein with no criminal intent, a fact which the defendants continuously assured the plaintiff throughout the proceedings.

Although the defendants had every right to reject the plaintiff’s offer of $500 monthly installments to pay off the debt and pursue their civil remedies to obtain full and immediate payment thereof, they had no right to enforce their demands by having the defendant arrested and prosecuted on an admittedly baseless grand larceny charge. The fact that they belatedly accepted the plaintiff’s offer and joined with the plaintiff in dismissing the charges at the justice of the peace court, gives rise to a permissible, if not compelling inference that the defendants abandoned the prosecution at the eleventh hour only when they saw that the plaintiff would not capitulate to the blackmail of the criminal prosecution. In my judgment, this action constitutes a bona fide termination of the case in favor of the plaintiff. Calleja v. Wiley, 290 So.2d 123 (Fla. 2d DCA 1974).

In no sense can this dismissal be called, as a matter of law, a plea bargain in which the dismissal was bargained for in exchange for restitution. See Freedman v. Crabro Motors, 199 So.2d 745 (Fla. 3d DCA 1967). The defendants herein got exactly what the plaintiff was offering all along prior to the institution of criminal proceedings; and it is a perfectly reasonable, if not an obvious inference that the promissory note given was in no way prompted by the promise of dismissal of the criminal charges.

Beyond that, it is intolerable that any person in this country could be arrested, jailed and prosecuted for a patently civil debt in the manner and under the circumstances revealed by this record. Since the days when Charles Dickens devastatingly exposed the debtors prisons of the 19th Century, imprisonment for debt unaccompanied by fraud has long been considered incompatible with our cherished ideals of personal liberty. Article I, Section 11, Florida Constitution, (1968); Declaration of Rights, Section 16, Florida Constitution, (1885); Declaration of Rights, Section 15, Florida Constitution, (1868); Turner v. State ex rel. Gruver, 168 So.2d 192 (Fla. 3d DCA 1964). That a person subjected in this day and age to such an outrage should be without civil remedy is, to me, unacceptable. In my view, the plaintiff herein has established a prima facie case of malicious prosecution which precludes the entry of a directed verdict for the defendant. See: Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926); Silvia v. Zayre Corporation, 233 So.2d 856 (Fla. 3d DCA 1970).


text:
    Stephen D. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 76-589.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied May 4, 1977.

      Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender and Richard Levitt, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant appeals his conviction of the offense of disorderly conduct, for which the sentence imposed was 30 days confinement in the County jail, to be followed by a non-reporting probationary period of six months.

Mr. and Mrs. Zemba operated a gasoline service station. The defendant, after obtaining seven dollars worth of gasoline, drove off without paying. The Zembas followed him in an automobile, but were unable to overtake him. In returning to the station, the Zembas encountered the defendant who also was returning. They had some conversation but defendant left in his car when a police car was seen in the vicinity-

The occurrence which formed the basis for the prosecution took place when the defendant returned to the service station later that day, at a time when Mrs. Zemba was present and Mr. Zemba was at his home. The defendant told Mrs. Zemba he had given Mr. Zemba $100, and demanded that she refund him $93. By telephone Mr. Zemba denied he had received any money from defendant and so informed the defendant, who then, according to Mrs. Zem-ba, became “uptight and violent”, and threatened to shoot 93 holes in the place and bomb it.

By information the defendant was charged with threatening to. throw, place or discharge a destructive device (bomb) at said location, with intent to do bodily harm to the Zembas or with intent to damage the property, in violation of Section 790.162 Florida Statutes 1975. In a second count the defendant was charged with the crime of extortion.

The case was tried before a jury. The foregoing facts were brought out in testimony. There were additional facts, as testified to by Mrs. Zemba and another person who was present, as to the intimidating manner, tone and actions of the defendant in making the threats. A motion of the defendant for acquittal at the close of the State’s case was granted as to the count charging extortion, and was denied as to the first count. At the close of the case the defendant again moved for acquittal on the latter. The court stated the motion would not be granted, and said: “I’m going to reduce it to disorderly conduct which I think it probably is”. The State objected, but the defendant’s attorney approved, saying: “I agree with you, Judge.”

Later the court announced to counsel that he would charge the jury on disorderly conduct and use the language of the statute in defining the offense. After charging the jury including a charge as above mentioned, the court asked whether either party had any additional requests or objections relating to the charges. Counsel for both parties answered “No sir.”

By virtue of the reduction made by the court from the offense charged in the first count to the offense of disorderly conduct, the matter went to the jury on an offense which was a second degree misdemeanor, rather than on the greater offense charged, which was a second degree felony.

Appellant argues that the court committed error in reducing the charge to disorderly conduct, contending the latter was not a lesser included offense of the charge stated in the first count and that said reduced offense was not alleged in the information; and further that the evidence was insufficient to support a conviction for disorderly conduct, and that the charge given to the jury thereon was improper.

The State argues the appellant may not now contend to be error the reduction of the charge to disorderly conduct, whether or not it was a lesser included offense of the offense charged, because the defendant agreed to the reduction of the charge, which substantially lessened his liability, and subsequently not only made no objection to the case being submitted to the jury on that basis, but in fact affirmatively assented thereto. We hold such argument of the State has merit, and is supported by McPhee v. State, 254 So.2d 406, 410 (Fla. 1st DCA 1975). And see Andrews v. State, 309 So.2d 576 (Fla. 1st DCA 1975), concurring opinion by Judge McCord. The conviction on the reduced offense was based on competent substantial evidence. White v. State, 330 So.2d 3 (Fla.1976).

.No reversible error having been shown, the judgment is affirmed.


text:
    Michael SILVERMAN, Appellant, v. MIAMI DADE COMMUNITY COLLEGE, a public corporation, et al., Appellees.
    No. 76-792.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied May 4, 1977.
    Haber & Kaplan, Miami, for appellant.
    Preddy, Haddad, Kutner, Hardy & Josephs, Greene & Cooper, Miami, for appel-lees.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the plaintiff below from a summary judgment entered in favor of the appellees Miami Dade Community College and Lew Morrow, who were two of the defendants to the action. On consideration thereof we hold no reversible error has been shown, and affirm the summary judgment. See Wometco Theatres Corp. v. Rath, 123 So.2d 472 (Fla. 3d DCA 1960); Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969); DeMaggio v. Brasserie Restaurant, 320 So.2d 49 (Fla. 3d DCA 1975); Gottschalk v. Smith, 334 So.2d 102 (Fla. 3d DCA 1976).

Affirmed.


text:
    The CONTINENTAL INSURANCE COMPANY, Appellant, v. Marie LEVINSON, Appellee.
    No. 76-891.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied May 4, 1977.

      George V. Lanza and John A. Finn, Coral Gables, for appellant.
    Horton, Perse & Ginsberg, George P. Tel-epas, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

By this appeal, the defendant in the trial court questions the correctness of a final judgment entered by the trial court, sitting as the trier of the fact, in an action to recover under an accident policy.

The critical issue involved was whether or not the plaintiff had been involved in an accident resulting in total permanent disability. The following provision is found in the policy:

* * * * * *
“COVERAGE B — PERMANENT TOTAL DISABILITY means such disability commencing within 180 days from the date of accident and continuing for twelve consecutive months, which shall prevent the Insured from engaging in any occupation or employment for which he is fitted by reason of education, training and experience for the remainder of his life.”
* * * * * *

Counsel for the appellant urges that this determination is a question of law and not one of fact. We disagree.

It is a question of fact to be determined under proper pleadings, and not of law. Equitable Life Assurance Society of the United States v. Wiggins, 115 Fla. 136, 155 So. 327 (1934); New York Life Insurance Co. v. Lecks, 122 Fla. 127, 165 So. 50 (1936); Old Equity Life Insurance Company v. Levenson, 177 So.2d 50 (Fla. 3rd D.C.A. 1965); Hartnett v. Southern Insurance Company, 181 So.2d 524 (Fla.1965); Federated Department Stores, Inc. v. Planes, 305 So.2d 248 (3rd D.C.A. 1974).

The trier of fact having found that the claimant was permanently disabled under the terms of the policy, the final judgment here under review be and the same is hereby affirmed.

Affirmed.


author: ERVIN, Judge.

text:
    Bernardina Coridad ARNOLD, Petitioner, v. STATE BOARD OF EDUCATION of Florida, Respondent.
    No. CC-165.
    District Court of Appeal of Florida, First District.
    March 30, 1977.
    Rehearing Denied May 9, 1977.

      Sidney L. Matthew, Tobias Simon & Elizabeth DuFresne, Tallahassee, and William H. Maness, Jacksonville, for petitioner.
    Robert J. Vossler, Herbert D. Sikes, John D. Carlson, Tallahassee, for respondent.
   ERVIN, Judge.

This is a petition for review filed by Arnold from an order of the State Board of Education suspending her teaching certificate for a period of three years. On October 10, 1974, an affidavit was filed by Michael Halperin, principal of North Shore Elementary School, Jacksonville, Florida, alleging, inter alia, that Arnold used profanity in the presence of school children, that she struck children with a paddle without his knowledge or permission and that she had degraded children in the presence of the entire class. Based upon the allegations contained in the affidavit, on October 22, 1974, the State Commissioner of Education found probable cause existed to believe that Arnold was guilty of acts justifying revocation of her Florida teaching certificate pursuant to Section 231.28, Florida Statutes (1973). He thereupon directed the Professional Practices Council to file a petition seeking revocation of Arnold’s certificate. The petition was then filed before the State Board of Education.

Following hearing, the P.P.C. recommended to the Department of Education that the teaching certificate of Arnold be suspended for a three year period from the date of the Board’s action. On May 4,1976, the State Board of Education, having reviewed the findings and recommendations of the P.P.C., suspended Arnold’s teaching certificate for a period of three years beginning October 22, 1974, the date that the Commissioner of Education found probable cause to believe Arnold guilty of certain acts justifying revocation of her teaching certificate.

Arnold has assigned several errors from the Board’s order of suspension, none of which warrant reversal. We hold that the findings of the Department were based upon competent substantial evidence and should be affirmed. We do think that Arnold’s contention that the Department’s order was erroneous since it suspended her teaching certificate retroactively merits consideration since we have found no Florida cases directly related to the point before us.

Section 231.28 provides in part:

“231.28 Suspension or revocation of certificates. — The department of education shall have the authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (6); . . .

The statute confers no specific authority to the Board allowing it to suspend retrospectively, prior to the date of its order, a teacher’s certificate. Perhaps the leading case on the question whether an administrative agency may enter its orders retroactively is Securities and Exchange Com. v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1581, 91 L.Ed. 1995 (1947), which states:

“Every case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency. But such retroac-tivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles. If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law.”

In Berger, Retroactive Administrative Decisions, 115 U. of Pa.L.Rev. 371 (1967), at 392, it is stated:

“In sum, the cases demonstrate that an agency does not enjoy untrammeled discretion to make retroactive decisions, and that this discretion, like all discretion, must not be exercised in arbitrary fashion. Arbitrary action or abuse of discretion — the terms are used interchangeably — describes the unreasonable, oppressive use of delegated power. The inquiry, it has been said in the labor relations area, is whether the ‘situation and circumstances clearly show an abuse of discretion, that is arbitrary action not justifiable in view of such situation and circumstances.’ ” (Footnotes omitted.)

Thus, if the retroactive effect is “so oppressive and [works] hardship out of all proportion to the public ends to be achieved, . to allow such retroactive effect may be arbitrary and capricious.” 2 Am.Jur.2d Administrative Law section 477 (1962).

When we apply the above tests to the order retroactively suspending Arnold’s teaching certificate, we cannot state it was either an abuse of discretion or arbitrary and capricious.

The order of suspension is affirmed.

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


author: HENDRY, Chief Judge.

text:
    George AUMAITRE, Appellant, v. Sandra TROYANOS, Appellee.
    No. 76-213.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Rehearing Denied May 9, 1977.
    Lee & Long, Miami, for appellant.
    Stanley M. Brody, Miami Beach, for ap-pellee.
    Before HENDRY, C. J., NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   HENDRY, Chief Judge.

The appellant was sued by appellee in a paternity and support action in the Circuit Court of Dade County in 1966, wherein appellant was found to be the father of two girls borne by appellee out of wedlock. The final decree dated May 31, 1967, ratified and incorporated by reference a stipulation entered into by the parties in open court that settled all issues between the parties and obligated the appellant to pay, inter alia, the appellee as and for support, $35.00 per week for each child, until the child reaches the age of twenty-one (21) years.

On October 30, 1973, appellee applied to the court for an increased allowance for the children and was granted same on May 2, 1974.

By this appeal the appellant questions the correctness of the court’s orders requiring him to pay for the children’s college and summer camp expenses in addition to $65.00 per week, instead of $35.00 per week for each child as provided for in the original decree of May 31, 1967.

It is appellant’s contention that he is entitled to be relieved of such obligation by reason of the provisions of Chapter 73-21, Laws of Florida, which reduced the age of majority to eighteen (18) years of age, effective July 1, 1973. We cannot agree.

We have carefully considered all of appellant’s contentions in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been made to appear. See Finn v. Finn, 312 So.2d 726 (Fla.1975); Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975); Drotos v. Drotos, 311 So.2d 746 (Fla. 3d DCA 1975); Dalton v. Dalton, 304 So.2d 511 (Fla. 4th DCA 1974); Field v. Field, 291 So.2d 654 (Fla. 2d DCA 1974); Register v. Register, 230 So.2d 684 (Fla. 1st DCA 1970).

Affirmed.


text:
    Joann SINGLETON, Appellant, v. STATE of Florida, Appellee.
    No. 76-450.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Rehearing Denied May 9, 1977.
    Arthur E. Huttoe, Miami, for appellant.

      Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Chief Judge.

The appellant was charged by information with second degree murder. She entered a plea of not guilty and moved to suppress statements made by her to investigating officers. The motion to suppress was denied and a jury trial was had which resulted in a conviction of manslaughter and a sentence of fifteen years in the State Penitentiary.

The incident out of which the charge arose was the death of appellant’s husband from a gunshot wound which was inflicted when they were in their bedroom “horsing around.”

Appellant’s principal point on appeal is that the trial court erred in denying appellant’s motion to suppress statements made by her to the police officers.

Appellant contends that her statements should have been suppressed because they were taken in violation of her rights under the Fifth and Sixth Amendments to the United States Constitution. We agree and reverse for a new trial.

It appears from the record that two police officers arrived soon after the incident. Upon learning that appellant was involved, one of the officers advised appellant of her “Miranda” rights. At trial the officer testified that appellant “seemed bewildered, just like she did not want to talk at all.” The other officer present agreed that appellant was bewildered “to an extent.”

Later another officer arrived at the scene. After a conversation with appellant, the officer persuaded appellant to go to the police station and make a statement in furtherance of the investigation, which, according to the officer, was routine procedure. At the police station, the officer left appellant with other officers in the homicide department and departed. Appellant was thereupon shown a “rights form,” which she executed.

Thereafter, the officer returned and, based upon the prior conversation he had with appellant, placed her under arrest. The officer then proceeded to take a formal statement from appellant, testifying in court that he advised appellant of her constitutional rights. The officer also testified in court that he told appellant at that time that she didn’t need an attorney.

A review of the statement shows that appellant was asked if she wanted an attorney present during the questioning whereupon she replied, “Maybe I had better ask my mother if I should get one.” Appellant was, however, never given the opportunity to call her mother concerning the attorney. The statement was admitted in evidence after the trial court had denied appellant’s motion to suppress.

A waiver of a constitutional right, such as the right to counsel, is never presumed on the basis of the failure of an accused to specifically ask for an attorney and the burden rests with the prosecution to show that any waiver by an accused was made both knowingly and intelligently. United States v. Montos, 421 F.2d 215 (5th Cir. 1970); Sullins v. United States, 389 F.2d 985 (10th Cir. 1968).

Here, at best, the record reveals both confusion and indecision on the part of appellant. When appellant had originally waived her right to counsel, she had not as yet been charged with the crime and believed the purpose of her conversation with the police was purely investigatory. Upon solicitation of her statement by the officer, appellant realized she was then under arrest and sought advice from her mother concerning the presence of an attorney. She was never given the opportunity to place the telephone call, as questioning continued.

In light of the above, we are of the view that at the point appellant asked to speak with her mother, the questioning should have ceased and appellant should have been given the opportunity to phone. See Sample v. Eyman, 469 F.2d 819 (9th Cir. 1972).

In conclusion, we are unconvinced that upon realizing she was under arrest, appellant knowingly and intelligently waived her right to counsel and as such, the statements elicited from appellant by the police and subsequently introduced into evidence should have been suppressed. Appellant’s conviction is therefore reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: PEARSON, Judge.

text:
    Albert BARBER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-547.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Rehearing Denied May 4, 1977.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

On April 15, 1974,, this appellant pled guilty to the possession of a controlled substance and was placed on probation for a period of five years. One of the conditions of his probation was as follows:

“(b) You shall promptly and truthfully answer all inquiries directed to you by the Court and the Probation Supervisor; allow the Probation Supervisor to visit your home, employment site, or elsewhere, and carry out all instructions he gives you.”

The conditions of probation did not include a requirement that the defendant file written monthly reports. During the period of probation, the defendant’s Probation Supervisor filed an application of violation of probation setting forth as one of the grounds that the defendant had failed to file written reports as he was instructed to do by the probation officer. The trial court revoked defendant’s probation upon the sole ground that he had failed to file the monthly reports.

The State points out that it is often necessary for the Probation Supervisor to have written reports from a probationer in order to carry out his duties as supervisor. We think that this right to require reports affirmatively appears from the provisions of Section 948.02, Florida Statutes (1975). Nevertheless, it also appears that it is exclusively within the jurisdiction of the court to set the terms and conditions upon which a probationer’s probation may be revoked. See Section 948.03, Florida Statutes (1975); and Kominsky v. State, 330 So.2d 800 (Fla. 1st DCA 1976).

We, therefore, hold that although the Department of Offender Rehabilitation, acting through a probation officer, may require a probationer to file periodic reports, even though such a requirement is not made a condition of his probation, such probation may not be revoked solely upon the ground that the probationer has failed to file the reports, unless the requirement is made a condition of his probation by the court. In other words, only the court may set the conditions upon which probation may be revoked, and probation may be revoked only for the violation of a condition set by the court.

The order revoking appellant’s probation is reversed with directions to the court to remand appellant to the Department of Offender Rehabilitation for the continuation of his probation under the conditions as originally set out or for the assumption of additional conditions that the court may find proper. See Section 948.03(2), Florida Statutes (1975).

Reversed and remanded.


text:
    Mildred PERRY, Appellant, v. UNIVERSITY CABS, INC., Appellee.
    No. 76-2265.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Rehearing Denied May 9, 1977.
    Bridges & Dorsy, Coral Gables, for appellant.

      Carr & Emory, Miami, for appellee.
    Before NATHAN and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This interlocutory appeal, filed by the plaintiff below, is from an order granting a motion of the defendant to set aside a default which had been entered against the defendant for its failure to file a defensive pleading within the time provided therefor.

The defendant’s unsworn motion to set aside the default claimed excusable neglect of the defendant’s attorney in failing to timely file a defensive pleading, and stated that the defendant had a meritorious defense.

To entitle the defendant to have the default set aside, in addition to a showing of excusable neglect, it was incumbent upon the defendant to show it had a meritorious defense, and a mere statement to that effect in an unsworn motion was not sufficient. The existence of a meritorious defense should be disclosed in tendering a defensive pleading showing the defense, or by a sworn motion or affidavit stating facts which if proved would be a meritorious defense, where a factual defense is relied on, or by showing legal grounds constituting a meritorious defense where a legal rather than a factual defense is to be relied on. See State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40, 42-43 (1931); Florida Inv. Enterprises, Inc. v. Kentucky Co., 160 So.2d 733, 735 (Fla. 1st DCA 1964); Butler v. Butler, 172 So.2d 899, 901 (Fla. 3d DCA 1965); Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974); Grimsely v. Florida Universal Financial Gorp., 339 So.2d 721, 722 (Fla. 1st DCA 1976).

In this case the motion filed by the defendant to set aside the default should have been denied, in the absence of a showing that the defendant had a meritorious defense.

The order appealed from is reversed.


author: BOYER, Chief Judge.

text:
    Reginald Evans SMITH, Appellant, v. STATE of Florida, Appellee.
    No. Z-100.
    District Court of Appeal of Florida, First District.
    April 6, 1977.
    Rehearing Denied May 11, 1977.

      Walter G. Arnold, of Arnold, Stratford & Booth, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton and Richard L. Wilson, Asst. At-tys. Gen., for appellee.
   BOYER, Chief Judge.

Appellant was indicted for first degree murder, tried by a jury and convicted of second degree murder. He now urges several grounds for reversal, claiming that: The attempted cover-up of the murder became a feature and the homicide an incident of the trial; his wife, in derogation of the marital privilege, was allowed to testify as to -certain statements made by him to her; the prosecutor made prejudicial comments in his opening and closing statements to the jury; and the instructions given to the jury were deficient because the jury was misled as to a killing committed by virtue of unrestrained passion or ungoverned temper, and because the jury was not read an instruction relative to the testimony of an accomplice contended to be applicable to the wife’s testimony.

On June 30, 1974, appellant shot and killed Jose Fernandez DeCastro. The state established that on that date, shortly after appellant left his home to go to his place of employment, his wife received a telephone call from DeCastro, who then proceeded to appellant’s home where he picked up Mrs. Smith. The couple visited a local nightclub where they had a drink, danced, and talked. When they returned to appellant’s residence around 2:00 a. m., the telephone was ringing. When Mrs. Smith picked up the phone and discovered that there was no one at the other end, she realized it was her husband who had the habit of checking up on her by calling her up and then putting the telephone on hold. When she hung up the telephone, appellant immediately called again and inquired where she had been. Mrs. Smith answered that she had been asleep. She then fastened the safety latch on the door and fixed herself and Mr. DeC-astro a drink.. Appellant, in the meantime, decided to return home. When he arrived, he noticed the DeCastro car parked in front of his house. Looking through the glass partition in the front door he also noticed Mr. DeCastro’s boots in the foyer. After attempting to enter the home and finding that the safety latch was secured, appellant kicked the door open, drew his gun and shot DeCastro two times.

In addition to proving the killing itself, largely through the testimony of the wife, the state also sought to present evidence concerning the cover-up of the crime. The wife described in vivid detail how she and her husband removed the body from the home, wrapped it up and buried it in a secluded spot. The defense vociferously objected to such evidence on the grounds of relevancy and materiality, that the evidence showed an independent offense for which appellant was not charged and that it was calculated merely to prejudice appellant without any evidentiary value to prove the offense for which he was charged. The objection was overruled. Defense counsel also objected to testimony of the wife during which she related conversations between herself and her husband occurring after the shooting, the ground of objections being that such testimony invaded the confidential privilege between husband and wife. With but a few exceptions, the objections were overruled.

The defense asserted at and before trial the defense of temporary insanity and that appellant could at worst be found guilty of manslaughter. The psychiatrists called by the defense supported the insanity theory but the state’s psychiatrists testified contra.

Appellant initially claims that the state made the attempted cover-up of the homicide the feature and the homicide an incident of the trial, thereby depriving him of a fair trial. On that point, the wife’s testimony is most significant. Her testimony of the events leading up to the homicide and of the homicide itself, contained in 37 pages of trial transcript, is concise yet descriptive. Her testimony of the burial of the body and cover-up, covering 115 pages of trial transcript, presents an intricately drawn picture of the words and deeds of appellant from the time immediately after the homicide until his arrest. Specifically, the wife told how she and her husband disposed of the body, using plastic garbage bags, cords, mattress covers, a shovel, and an ax; how, after the body was buried, they disposed of the deceased’s automobile and returned home where, after showering and changing clothes, they went to a country club for dinner; how, the next day, they burned the couch upon which the victim was sitting when he was shot and concealed the remains thereof. In short, the wife’s version of the attempted cover-up was both extensive and complete.

Upon careful consideration of the trial testimony, we have concluded that the inquiry conducted by the state concerning the cover-up transcended the bounds of relevancy and became a feature of the case instead of the crime charged in the indictment. (See Williams v. State, 117 So.2d 473 (Fla.1960).) Numerous decisions have applied the so-called Williams rule. (See Simmons v. Wainwright, 271 So.2d 464 (Fla. 1st DCA 1973); Randall v. State, 239 So.2d 81 (Fla. 2d DCA 1970); Lucas v. State, 257 So.2d 261 (Fla. 1st DCA 1971).)

The state counters that evidence of the cover-up was to show the state of mind of the accused, relevant in light of appellant’s insanity defense. Appellant concedes, and we agree, that the state was entitled to show that the body of the deceased was removed from the home and buried in a secret location, and that appellant tried to conceal the homicide. The issue, however, is not resolved by a bare finding of relevancy. We have held in other contexts that the trial court must engage in a balancing process to determine whether the relevancy of certain evidence is outweighed by the potential prejudice to the defendant. (See Josey v. State, 336 So.2d 119 (Fla. 1st DCA 1976); see also Dodson v. State, 334 So.2d 305 (Fla. 1st DCA 1976); and Colbert v. State, 320 So.2d 853 (Fla. 1st DCA 1975).) Although it is extremely difficult to delineate the exact point at which the state may be said to have gone too far in the presentation of collateral matters, we can identify certain factors that are helpful in balancing the relevancy of evidence of collateral matters against the potential prejudice to a defendant. One factor is the issue of relevancy itself. To what extent is the objectionable evidence relevant? Clearly, testimony as to the events occurring immediately subsequent to the homicide are relevant to the insanity issue. Evidence that appellant acted coolly and calmly after the shooting was consistent with the state’s psychiatric testimony that a person who was temporarily insane at the time of the homicide would continue to remain in that condition for some time afterwards. However, the objectionable evidence, relating to deeds after the killing, would not be relevant to the issue of whether the crime was committed in such a heinous manner as to justify the death penalty. (See Halliwell v. State, 323 So.2d 557 (Fla.1975).)

A second factor is the necessity of the testimony. How important is the testimony to the state’s case? Sub judice, appellant had conceded that the killing and cover-up had occurred, and indicated that he was relying on extenuating circumstances as his defense. Consequently, the state’s need to introduce every shred of evidence and every word of testimony at its disposal was reduced.

A third factor might be termed “quality of testimony”. Was the testimony directly related to the material issues of the case, or was it more inclined to demonstrate the bad character of the accused, thereby unduly prejudicing him? Sub judice, some aspects of the testimony presented at trial could have served no purpose other than to assault appellant’s character. Illustrative of such evidence is testimony concerning appellant dragging the body of the deceased to the clandestine grave site, his jumping on the victim’s knees in order to flatten them out in the grave, and throwing away the deceased’s bibles, prayer books, screwdriver and class ring.

The several factors discussed and applied above are by no means exclusive. They should be, however, helpful analytically and have aided this court in arriving at our decision in this case. The inescapable conclusion is that the State engaged in overkill and that thereby appellant was deprived of a fair trial.

Appellant further urges, on the basis of the marital privilege, that the wife should not have been allowed to testify as to certain comments made to her by appellant after the shooting. Over appellant’s objection, the wife was permitted to testify that immediately after killing Mr. DeCastro, appellant, when asked by his wife what he had done, replied, “I killed him.” In other conversations as related by the wife, appellant told her to lock up the cat and keep it away from the victim’s body, instructed his wife as to the method of removing the body so that if an investigator should come by the house the body would not be found, stated how the body should be buried so that it would never be found, and informed her that the couch on which the deceased had been sitting when killed would have to be burned. The trial court determined that most of the statements made by appellant to his wife after the shooting would be admissible on the basis that the statements were made not by reason of the existence of the marital relationship, but because his wife happened to be the person who had witnessed the murder and cover-up.

The commonlaw privilege regarding confidential communications between husband and wife has been consistently followed in Florida. The policy underlying the marital privilege was well expressed in Mercer v. State, 40 Fla. 216, 24 So. 154 (Fla.1898):

“Society has a deeply-rooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage; and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. Therefore the law places the band of its prohibition upon any breach of the confidence between husband and wife, by declaring all confidential communications between them to be incompetent matter for either of them to expose of witnesses. * * * The matter that the law prohibits either the husband or wife from testifying to as witnesses includes any information obtained by either during the marriage, and by reason of its existence. It should not be confined to mere statements by one to the other, but embraces all knowledge upon the part of either obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known.” 24 So. at 157

More recent cases have reiterated the public policy expressed in the Mercer decision. (Cox v. State, 192 So.2d 11 (Fla. 3d DCA 1966).) However, the precise questions regarding marital privilege raised in this appeal have apparently never before been considered by a Florida appellate court.

The initial query is whether the trial court properly admitted most of the conversations which occurred between appellant and his wife after the shooting on the basis that the statements made by appellant to his wife were made incidental to, rather because of, the marital relationship. In light of the status of the record and the strong public policy in favor of the marital privilege we find that the conclusion reached by the trial court as well as the method employed in arriving at that conclusion is unacceptable. The great danger inherent in an inquiry concerning causation of an otherwise confidential conversation between husband and wife is the potential chilling effect upon the policy underlying the marital privilege. A married couple should be secure in the knowledge that their private communications will be protected and will not be susceptible to exposure by an after-the-fact determination that the communications did not arise as a direct result of the marital relationship.

The state has attempted by other reasoning to justify the trial court’s admission into evidence of appellant’s statements to his wife. First, the state argues that, as with the attorney-client privilege, the marital privilege should not apply to communications made in the furtherance of a crime. (See Kneale v. Williams, 158 Fla. 811, 30 So.2d 284 (1947).) We refuse to engraft such an exception upon the marital privilege, again because of the harm it would inflict upon the strong policy underlying the privilege.

The state further asserts that the statements made by appellant immediately following the shooting were part of the res gestae, making his words verbal acts rather than communications, and thus taking them outside the scope of the privilege. From our review of the record, however, it appears that most of the statements made by appellant which were introduced into evidence were made too remote in time after the shooting to be considered a part of the res gestae. Moreover, one of the more damaging statements made by appellant wherein he admitted the killing to his wife, was made as a direct result of a question posed to him by his wife. The statement therefore lacked the element of spontaneity which is required of res gestae statements.

The state maintains that even if the wife’s testimony was erroneously admitted, such was merely harmless error, especially because the wife could properly testify as to appellant’s numerous acts performed in the cover-up of the crime. Independent of our holding as expressed in the first part of this opinion that the wife should not have been allowed to minutely describe each and every facet of the cover-up, we note that certain comments made by appellant to his wife about which the wife testified at trial were devastating to appellant’s case. Appellant’s confession of guilt, his instructions regarding the removal and burial of the body, and the plans to destroy pertinent evidence were extremely prejudicial and refute the state’s harmless error argument.

The third point raised by appellant alleges that the prosecutor unfairly prejudiced the jury so as to deprive appellant of a fair trial by stating in his opening statement that appellant had taken money from the body of the deceased, which statement was not substantiated by the evidence. Because of our disposition of the case on the other points, we find it unnecessary to further discuss that point.

Appellant next complains that comments made by the prosecutor during his closing argument constituted a direct or indirect comment on his failure to testify, contrary to Fla.R.Crim.P. 3.250. In Trafficante v. State, 92 So.2d 811 (Fla.1957) the prosecutor in closing argument stated that the defendants had failed to contradict the testimony of a certain witness, Dietrich, as to a particular conversation. The Supreme Court concluded, “ * * * In the instant case the witness Dietrich was relating to a conversation which took place between him and the two. appellants. No one else was present ‘in the car’ during said conversation. Consequently the remarks of the State Attorney could not have been directed ‘to a failure to submit the testimony of other witnesses.’ ”

Similarly, in the case sub judice, the prosecutor remarked:

“ * * * and do you think if her story was not true they would not have called somebody in there to tell you it was not true? Do you think they would have done that? * * * ”
“She witnessed this thing; she’s therefore the principal witness in this thing. She’s—there is no question about it, she is the one that was there, the only one living that was there to come before you and testify. And what of the fact that she participated in the cover-up? She admitted T helped bury, I helped dig the grave, I burned the identification. Yes, I did.’ At whose direction? This man right here. Has there been any evidence to refute that? No, there has not. There’s not been a shred of evidence from the psychiatrist or anybody else that says that that is not the case. All of this was at his direction, not her own.” (Emphasis added)

Appellant’s motion for mistrial made at the conclusion of the above-quoted remarks should have been granted. The comment that appellant’s wife was the only living person to testify as to the homicide and cover-up when coupled with the assertion that if the wife’s story was not true then the defense would have produced someone to refute it amounts to a comment upon appellant’s failure to take the witness stand. Such comment is ground for reversal and cannot be held to be harmless error. (Trafficante v. State, supra; Childers v. State, 277 So.2d 594 (Fla. 4th DCA 1973), cert. den., 285 So.2d 23 (Fla.1973).)

According to appellant, certain of the trial court’s instructions were misleading. In its instructions on insanity, the trial court stated that unrestrained passion or ungovernable temper was not insanity and was no excuse for the commission of a crime. The court further stated in its instruction on excusable homicide that a homicide committed by accident and misfortune in the heat of passion committed upon sudden and sufficient provocation or sudden combat accomplished by the use of a dangerous weapon or in a cruel or unusual manner would be manslaughter. Appellant urges that, taken as a whole, the instructions misstate the law, because a killing done in heat of passion can reduce murder to manslaughter, citing Febre v. State, 158 Fla. 853, 30 So.2d 367 (1947).

Although the instructions, as given, were not so misleading as to require reversal, we do suggest that the trial court take steps upon the retrial of this case to avoid any potential confusion. First, defendant’s requested instruction number 41 which brings together all of the homicide instructions should be given. Second, that portion of the insanity instruction which states that unrestrained passion or ungovernable temper is “no excuse for the commission of a crime” should be deleted as it has been in the most recent instructions promulgated by the Supreme Court. See No. 2.10(b)-1, Standard Jury Instructions in Criminal Cases, Second Edition.

Finally, appellant asserts that the trial court, with reference to appellant’s wife, should have given an instruction regarding the testimony of an accomplice. The trial court correctly refused to give the requested instruction. The wife did not take part in the crime with which defendant was charged, i. e., murder. Moreover, the trial court had already properly instructed the jury concerning the credibility of the witnesses and the weight to be afforded their testimony.

For the reasons expressed above, the cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

RAWLS, J., concurs.

MeCORD, J., dissents.

      . The numerous activities of appellant about which the wife testified are not covered by the marital privilege which only applies to communications. Ross v. State, 202 So.2d 582 (Fla. 1st DCA 1967).

      . Even § 90.504, Fla.Stat. (Supp.1976), a part of the newly enacted Florida Evidence Code, which becomes effective July 1, 1977, would not except from the privilege the objectionable testimony under the facts sub judice.

      . The prosecutor sought to elicit from the wife the fact that appellant, before burying the victim, removed an amount of money from the victim’s body, but that testimony was not allowed into evidence by the trial judge.

      . That requested instruction reads as follows: “The killing of a human being, by the act, procurement, or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide, as herein defined, nor murder in any of its degrees is manslaughter. Thus killing done in sudden heat of passion, without any premeditated design to effect death, but not being done under such circumstances as would make it excusable homicide, as hereinafter defined, would be manslaughter.”

      . The requested instruction is a recitation of No. 2.12(d), Florida Standard Jury Instructions in Criminal Cases, which reads as follows:

        "ACCOMPLICE DEFINED When two or more persons take part in the commission of a crime, each is an accomplice of all the others. WEIGHT OF TESTIMONY The testimony of an accomplice must be received with great caution and carefully and closely examined by you before a conviction is based upon it. This is particularly true when there is neither direct testimony nor circumstances to corroborate the testimony of the accomplice. Moreover, the testimony of an accomplice, even though uncorroborated, is sufficient upon which to base conviction if you are convinced by it of the defendant’s guilt beyond a reasonable doubt.


text:
    Joseph FARRUGIA, Petitioner, v. W. D. FREDERICK, Jr., Chairman, et al., Respondents.
    No. BB-409.
    District Court of Appeal of Florida, First District.
    April 6, 1977.
    Rehearing Denied May 11, 1977.

      Charles H. Netter, South Miami, for petitioner.
    William P. White, Tallahassee, for respondents.
   PER CURIAM.

This is a Petition for Review of Final Agency Action of the Environmental Regulation Commission of the Department of Environmental Regulation of the State of Florida.

The Petitioner, Joseph Farrugia, is a fee simple owner of property located on Vaca Key, Monroe County, Florida, which he purchased in 1969. The property had been platted as a subdivision, showing an undug canal with adjacent lots. Mr. Farrugia applied for a permit to construct a proposed boat basin and access channel, plus the excavation of a canal similar to the one shown on the plat. The application was presented to both the Board of Trustees of the Internal Improvement Trust Fund under provisions of Chapter 258, Florida Statutes, and to the Department of Pollution Control in the form of a combined permit under the provisions of Chapter 408, Florida Statutes, and water quality certification under Section 401(a)(1) of Public Law 92-500, 86 Stat. 816.

Faced with a recommended denial of his request, the Petitioner presented this matter to a duly appointed Hearing Examiner. The Hearing Examiner recommended that the permits and certification for the boat basin and access channel be granted but recommended that permits be denied for the proposed canal. The Hearing Examiner found that there would be water quality degradation in the proposed dead-end upland canal and the construction would have an adverse effect on Class III waters as specified in Chapter 17-3 of the Florida Administrative Code. This action was reviewed by the Environmental Regulation Commission of the State of Florida. The Commission found there was competent substantial evidence to support the finding and recommendations of the Hearing Examiner and confirmed his recommendation of granting the boat basin and access channel but denying the request to construct the canal on the land.

This matter is before this Court, therefore, on whether the evidence in the record supports the finding that the construction of the proposed upland canal would affect Class III waters as described in the Administrative Code. (Class III waters are defined as waters for recreation, propagation and management of fish and wildlife.) The evidence in this record discloses that the waters in the canal would have insufficient oxygen, that the water would tend to have a foul odor at times because of the accumulation of noxious gases, that grass would float in and be trapped, thereby sinking to the bottom, and that fish life could not exist in the water because of poor oxygen and the gases. The Petitioner’s chief witness agrees that the canal would not be a good idea because of the foregoing and for the reason that a canal would not maximize the biological potential productivity of the area. He felt that the ill effects would be restricted to the waters within the canal itself, however. Other witnesses felt that the canal waters could likely cause damage to outside waters. It appears to this Court that the foregoing is substantial competent evidence to support the finding of the Environmental Regulation Commission to deny the application.

Petitioner claims that the denial takes his property without due process of law. This Court recognized the applicability of standards for water quality in the case of Sexton Cove Estates, Inc. v. State of Florida Pollution Control Board, 325 So.2d 468 (1st D.C.A., 1976), although in that case the regulations were not applicable as construction had taken place prior to their enactment. Admittedly, the Petitioner desires to construct the canal so that the lots he desires to sell will bring a higher price. Refusal of the right to construct the canal is not depriving the Petitioner of the right to use his property, but is merely restricting the profit that he could make on it. Certainly the action of the Commission shows no indication of arbitrariness or capriciousness. Its action was similar to the Trustees’ action in the case of James E. Yonge v. Reubin O’D. Askew, 293 So.2d 395 (Fla. 1st Dist. 1974), wherein it was noted:

“ . . . Their decision appears to us to be a conscientious effort to serve what they conceive to be the public interest as distinguished from the private interest of petitioner.”

This appears just as true in this case.

Petitioner has failed to demonstrate by the record evidence sufficient to overcome a presumption of correctness which clothed the actions of Respondent. Certiorari is, therefore, denied.

BOYER, C. J., McCORD, J., and MCDONALD, PARKER LEE, Associate Judge, concur.


author: MILLS, Judge.

text:
    Billie E. CALDWELL, Petitioner, v. DIVISION OF RETIREMENT, FLORIDA DEPARTMENT OF ADMINISTRATION, Respondent.
    No. DD-399.
    District Court of Appeal of Florida, First District.
    April 7, 1977.
    Rehearing Denied May 11, 1977.

      M. Stephen Turner of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, for petitioner.
    Stephen W. Metz, Tallahassee, for respondent.
   MILLS, Judge.

Caldwell seeks review of an order of the State Retirement Commission (Commission) denying Caldwell’s claim for in line of duty disability benefits, costs and attorney’s fees. Caldwell contends the Commission erred in the following respects:

1. by refusing to apply the presumption of in line of duty set forth in Section 112.-18(1), Florida Statutes (1975),

.2 by applying an incorrect causation standard for in line of duty disability,

3. by failing to find that Caldwell was entitled to in line of duty disability as a matter of law, and

4. by failing to award Caldwell costs and attorney’s fees under Section 121.-23(2)(a), Florida Statutes (1975).

Caldwell, a Brevard County Fire Department lieutenant suffered an acute myocardial infarction (heart attack) shortly after reporting to work on the 7:00 A. M. shift and while preparing coffee. As a result, he was totally and permanently disabled. At the time of his employment, Caldwell was found by a physician to be in good health. The evidence concerning the cause of Caldwell’s heart attack was conflicting. There was evidence that it was caused by arteriosclerosis unrelated to his employment, and there was evidence that recent employment stress or employment stress over a period of time caused the attack in whole or in part.

Section 121.021(13), Florida Statutes (1975), provides in pertinent part:

“ ‘Disability in line of duty’ means an injury or illness arising out of and in the actual performance of duty required by a member’s employment during his regularly scheduled working hours or irregular working hours as required by the employer.”

Section 112.18(1) provides in pertinent part:

“Any condition or impairment of health of any Florida . . . county, . fireman caused by . heart disease, . . . resulting in total . disability . . . shall be presumed to have been suffered in the line of duty unless the contrary be shown by competent evidence. . . .”

When read together these statutes clearly state that a heart attack suffered by a county fireman resulting in total or partial disability shall be presumed to have been suffered in the actual performance of duty required by his employment during working hours unless the contrary be shown by competent evidence. The Commission erred in refusing to apply the presumption of Section 112.18(1) to this case but it was harmless because there was competent substantial evidence in the record to support the Commission’s finding that Caldwell’s heart attack did not arise out of and in the actual performance of duty required by his employment during working hours.

The medical testimony crucial to this case was conflicting. The Commission found that the heart attack suffered by Caldwell resulted from arteriosclerosis which was unrelated to his duties as a fireman. There was competent substantial evidence in the record to support this finding. The causation standard applied by the Commission to the facts of this case was correct and Caldwell is not entitled to in line of duty disability as a matter of law.

Caldwell’s contention that he is entitled to an attorney’s fee and costs under Section 121.23(2)(a), Florida Statutes (1975), is without merit. Section 121.23(2)(a) does not specifically grant the Commission authority to award attorney’s fees and costs. This is necessary. Harris v. Groves Realty, Inc., 315 So.2d 528 (Fla. 4th DCA 1975).

The petition for review is denied.

BOYER, C. J., and McCORD, J., concur.


text:
    STATE of Florida ex rel. Felix AGUIAR, Jr., et al., Relators, v. The Honorable Bill G. CHAPPELL, Judge of the Circuit Court in and for the Sixteenth Judicial Circuit of the State of Florida, in and for the County of Monroe, Respondent.
    No. 77-308.
    District Court of Appeal of Florida, Third District.
    April 11, 1977.
    Alvin E. Entin, Miami, Manuel W. James, Key West, for relators.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for respondent.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is a suggestion for writ of prohibition against the respondent. Relators had moved to disqualify the respondent judge, alleging numerous claims of bias and prejudice and facts in support of their assertion that they could not receive a fair trial from the respondent. The motion was denied by an order wherein the respondent ruled that the motion and supporting affidavits were legally insufficient.

The relators subsequently filed this suggestion, whereupon this court issued a rule nisi. Respondent filed a brief in opposition to the suggestion for writ of prohibition, wherein the primary argument concerned the sufficiency of the facts alleged to support the claim of the relators.

As noted above, the motion for disqualification contained broad allegations of personal prejudice and bias. Standing alone, we do not feel that such charges would support disqualification. While we are acutely aware of the oft cited need for “cold neutrality” on the part of a trial judge, bare allegations of prejudice should not suffice to require a judge to recuse himself from exercising jurisdiction. However, further, more particular claims were recited by the relators and by four separate affiants in affidavits submitted in support of the motion for disqualification.

Relators claimed that the respondent had advised police officers to add additional charges against them which were not on the original complaint affidavit. They further alleged that the respondent had already formed an opinion as to the guilt of the relators and that he had expressed his opinion relative thereto. This latter charge was also reflected in all four of the affidavits. While the respondent argues that such claims are legally insufficient to support disqualification absent specific factual recitations concerning the precise time and place of the alleged improprieties, we are not convinced that such particularity is a necessary prerequisite to disqualification.

We are not dealing here with a matter which requires us to determine whether the weight of the evidence supports a verdict rendered by an impartial jury. Rather, we are required to determine whether the relators have demonstrated a legally sufficient fear that they may not receive a fair trial. In such cases the impartiality of the trial judge must be beyond question, for justice presumes an impartial judge. Thus it has been said in a similar situation that such matters are not dependent upon the actual state of mind of the trial judge, but rather the feelings that reside in the minds of those who come before the bench. See Crosby v. State, 97 So.2d 181 (Fla.1957).

The affidavits submitted herein uniformly state that the respondent has already formed an opinion as to the guilt of the relators, and that he has expressed that opinion. We will not take it upon ourselves to determine the veracity of this claim, or the others alleged by both the relators and the affiants. See State v. Cannon, 166 So.2d 625 (Fla.3d DCA 1964). Rather, we feel that this claim was sufficient to justify the respondent’s disqualification. In view of the gravity of the other charges made, the relators have at least demonstrated an actual fear in their minds that they would not receive a fair trial. Such fears are the essence of a motion for disqualification.

We find that the relators’ motion was legally sufficient to require the respondent to disqualify himself. Accordingly, it is ordered that the Rule Nisi in Prohibition heretofore issued is hereby made absolute and the Writ of Prohibition shall issue against the respondent. However, we assume that issuance of a formal writ will not be necessary.

It is so ordered.

HENDRY, C. J., dissents.

      . Although the parties to this proceeding have treated the original suggestion as a statutory disqualification pursuant to § 38.10, Fla.Stat. (1975), the respondent trial judge properly considered it as a motion for disqualification under Rule 3.230, Fla.R.Crim.P. Thus we find no need to discuss the contention that the affidavits were not filed “less than ten days before the beginning of the term of court,” as is required under § 38.10.

      . State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939).


text:
    David Allen WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1739.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.
    Rehearing Denied May 4, 1977.
    Gold & Fox, Coral Gables, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By indictment the appellant David Allen Williams was charged, in one count, with breaking and entering the dwelling of Carl Goldberg at a stated address in Dade County with intent to commit first degree murder, and with therein having assaulted Goldberg. In a second count Williams was charged with assaulting Goldberg with intent to commit first degree murder, and by a third count was charged with first degree murder by effecting the death of Martha Virginia Aultman, by beating her with his hands and fists. On trial before a jury he was found and adjudged guilty as charged in the first count, not guilty on the second count, and on the third count, guilty of second degree murder, a lesser degree of the crime charged in that count. Motion of the defendant for a new trial was denied, and he appealed. On consideration of the record, briefs and argument, we hold no reversible error has been shown.

The contention of the appellant that the trial court allowed the state to introduce testimony of a witness relating to defendant’s general reputation, is not borne out by the record, which reveals the inquiry made of the witness was as to the defendant’s reputation for truth and veracity in a certain community. Such testimony may be presented by the state as to a defendant who has testified at his trial. Baxter v. State, 294 So.2d 392, 393 (Fla. 4th DCA 1974).

Three witnesses, one of whom was a rebuttal witness, testified to having seen the physical results or effects on Virginia Aultman of prior beatings by the defendant. To one of said witnesses, on an occasion when Williams was present, he admitted responsibility for facial injuries Ault-man had. The others were clearly connected to Williams. On one Williams’ actions were observed, and on both such occasions Aultman had admitted or indicated Williams was responsible. When considered in connection with the.beating administered by Williams to the woman when he found her with Goldberg, which proved to be fatal, the relevance of such testimony was clear. It was admissable on authority of Williams v. State, 110 So.2d 654 (Fla.1959).

We find to be without merit the appellant’s contention that the state failed at trial to establish the identity of the deceased. That contention is presented here without having been made at trial. However, identity of the victim of the homicide was established in the evidence. Each of two police officers testified he had seen and identified the victim Aultman at the scene. One testified he had seen her previously and knew who she was, and the other officer who so testified stated he knew the woman personally.

We find to be without merit the contention of the appellant that the court committed error by denying defendant’s motion for bill of particulars. Thereby defendant had sought particulars as to the date, time and place of the alleged offense. The state responds here by pointing out that the rule [Fla.R.Crim.P. 3.140(n)] calls for statement of particulars to specify “as definitely as possible” the place, date and other material facts that “are known to the prosecuting attorney”. The place and date were stated in the indictment. The exact time did not appear to have been known.

The judgment is affirmed.


author: NATHAN, Judge.

text:
    Norman J. KASSER, Appellant, v. DADE COUNTY, Appellee.
    No. 76-743.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.
    Rehearing Denied May 9, 1977.
    John G. Fletcher, Coconut Grove, for appellant.
    Stuart L. Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appel-lee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

Norman J. Kasser, plaintiff below, appeals from an order dismissing with prejudice his suit for inverse condemnation against Dade County.

Kasser is the owner of certain property in Dade County for which he sought a change in zoning from a GU (Interim) classification to EU-lc (2% acre gross estates). The GU category prohibits the recordation of new subdivisions (except cemeteries) unless property in such a district is rezoned. Kas-ser’s request for rezoning was denied pursuant to a resolution passed by the Dade County Board of County Commissioners. He thereafter filed an inverse condemnation complaint against the County.

In his second amended complaint, Kasser alleged that the County had effectively taken his property without compensation, since he was precluded from making any reasonable use of the land under the retained interim classification. By way of relief, Kasser sought full compensation for the value of the land, asserting that the denial of rezoning was actually a result of the County’s exercise of its power of eminent domain, rather than its police power.

Dade County moved to dismiss the second amended complaint on the grounds that it was essentially a direct challenge to a County zoning resolution and that therefore the trial court was without jurisdiction, since the sole and exclusive method for reviewing a zoning decision of Dade County is through a Petition for Writ of Certiorari. After a hearing, the trial court dismissed the complaint. The dismissal order related the trial judge’s finding that Kasser’s complaint constituted a “direct attack upon a zoning resolution of the Dade County Board of County Commissioners rather than a general challenge to the validity of any zoning ordinances.” We agree, and accordingly affirm.

Kasser argues that he has accepted the propriety of the GU designation inasmuch as it conforms to the Dade County Master Plan, which placed the subject property in a conservation subzone. However, he further contends that the classification amounts to a taking for public purposes and that he should therefore be compensated for the property.

Section 33-316 of the Code of Metropolitan Dade County provides that review of a decision by the Board of County Commissioners relating to a zoning matter shall be by petition for writ of certiorari in the Circuit Court for Dade County. In substance, Kasser’s complaint challenges the confiscatory nature of the resolution denying his application for a zoning change, not the constitutional validity of the underlying zoning ordinance. Such a challenge would have served as a basis for review by the Circuit Court. Rose v. Dade County, 332 So.2d 136 (Fla. 3d DCA 1976); Baker v. Metropolitan Dade County, 237 So.2d 201 (Fla. 3d DCA 1970); Metropolitan Dade County v. Greenlee, 213 So.2d 485 (Fla. 3d DCA 1968).

Had review been sought in the stipulated fashion and the action by the Board found to be unreasonable and confiscatory, the County would then have had the option of rezoning the property or condemning it via its eminent domain authority. This result would have been more appropriate than that sought by the appellant herein, for the latter approach would put the County in the position of compensating a landowner who is in actuality dissatisfied with the zoning designation on his property — a designation which the appellant initially sought to change. It was the denial of that change which precipitated the instant controversy.

We cannot allow the appellant to.assert that the denial of rezoning was reasonable while simultaneously alleging that it was confiscatory. If we were to accept such contradictory claims as grounds for the relief which appellant sought in the trial court, we would debilitate the zoning review procedure established by Dade County and long accepted by this Court.

Affirmed.


text:
    E. Lamar BAILEY and Ernest Bailey, d/b/a E. Lamar Bailey Associates, a partnership, Appellants, v. Elbert C. ROBINSON and Berna Cotten Robinson, his wife, et al., Appellees. E. Lamar BAILEY and Ernest Bailey, d/b/a E. Lamar Bailey Associates, a partnership, Appellants, v. Nathan Leo LINZY and Patricia J. Linzy, Appellees.
    Nos. DD-341, DD-342.
    District Court of Appeal of Florida, First District.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Dayton Logue of Welch, Hilton, Bennett, Logue & Burke, Panama City, for appellants.
    James C. Truett of Madigan, Parker, Gat-lin, Truett & Swedmark, Tallahassee, for appellees (Case No. DD-341).
    W. .Ralph Durrance, Jr., for appellees (Case No. DD-342).
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the orders appealed are affirmed and the case of E. Lamar Bailey and Ernest Bailey, d/b/a E. Lamar Bailey Associates v. Nathan Leo Linzy and Patricia J. Linzy is remanded to the trial court for a jury trial on the claim for damages made by Nathan Leo Linzy and Patricia J. Linzy against E. Lamar Bailey and Ernest Bailey, d/b/a E. Lamar Bailey Associates.

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


text:
    EDWIN W. PECK, INC., et al., Petitioners, v. 2625 PLAZA MANAGEMENT CORPORATION, INC., a non-profit corporation, et al., Respondents.
    No. EE-394.
    District Court of Appeal of Florida, First District.
    April 13, 1977.
    Rehearing Denied May 11, 1977.

      Philip J. Chanfrau, Jr., of Black, Crotty, Chanfrau & Sims, Daytona Beach, for petitioners.
    Berrien Becks, Jr., David A. Monaco and Jeffrey C. Sweet of Fink, Loucks & Sweet, Daytona Beach, for respondents.
   PER CURIAM.

This is a petition for common law writ of certiorari from an order denying petitioner’s “Motion to Determine Authority of Attorney to Represent Alleged Class.”

Petitioner is the developer of a condominium project in Volusia County. He is defendant in a class action suit brought by the condominium association and its board of directors, both individually and as representatives of the remaining unit owners. Petitioner argues that there is no attorney-client relationship where only 20 out of 100 unit owners have actively supported this suit.

This, however, is the very purpose of class action litigation — the prosecution or defense by one or more for the whole. Fla.R.Civ.P. 1.220. The real question of the authority of the class attorney is answered by considering the prerequisites which a complaint in a class action must contain in order to withstand a motion to dismiss. Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291 (Fla.1973); Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976). The denial of petitioner’s motion to dismiss, is not and should not be before this court at this stage of the proceeding. Dairyland Insurance Company v. McKenzie, 251 So.2d 887 (Fla. 1st DCA 1971).

The petition for writ of certiorari is DENIED.

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


author: OTT, Judge.

text:
    Lester C. STRICKLAND, Appellant, v. L. Elaine STRICKLAND, Appellee.
    No. 76-1409.
    District Court of Appeal of Florida, Second District.
    April 13, 1977.

      Edward John Walsh, íort Charlotte, for appellant.
    Owen L. Luckey, Jr., Luckey & Harrell, LaBelle, for appellee.
   OTT, Judge.

Defendant/appellant brings this interlocutory appeal from the order of the trial court granting with prejudice plaintiff/ap-pellee’s motion to dismiss appellant’s “Counterclaim” for failure to state a cause of action.

The court below apparently agreed with appellee’s contention that the issues raised by the appellant were res judicata, having been settled by a decree or final judgment of dissolution of marriage entered by a Georgia court in 1973. We disagree and reverse.

In 1972, the appellee/ex-wife withdrew $7,290.20 from the parties’ joint bank account in Florida and removed herself and the money together with the three children of the parties to Georgia. She left a letter which provided in relevant part:

Do not worry about the boys — I can take care of them. I have taken all the cash. I have left the deeds so you can sell the [Hendry County real property owned by the parties as tenants by the entirety]. If you will . . . send me the papers I will sign them so you can sell. I figure this is approximately 50-50 of what we have.

In 1973, the ex-wife obtained an ex-parte divorce in Georgia. The divorce decree stated in relevant part:

All personal property ... in the possession of [ex-wife], shall be her property, free and clear of any claim of [ex-husband]. No determination of real estate division . . . [is] made at this time.

In 1975, the ex-wife successfully sued the ex-husband in Florida for child support. We note, in passing, that the mother could not waive the right of the children to support even if such was her intention. Kirkconnell v. Kirkconnell, 222 So.2d 441 (Fla.2d DCA 1969). The ex-wife made no claim and there was no adjudication as to property rights in this proceeding.

In 1975, the ex-wife brought the present action for partition of the Hendry County property, asserting an undivided one-half interest therein. The defendant filed his responsive pleadings and under what he designated a “Counterclaim” he pled all the above facts and sought appropriate equitable considerations and relief.

The doctrine of res judicata is certainly as appropriate to the judgment of a sister state as it is to one by a Florida court. Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347 (1913); see Donner v. Donner, 302 So.2d 452 (Fla.3d DCA 1974). Obviously, also , final judgments of sister states are entitled to full faith and credit. Thompson, supra; see Newton v. Newton, 245 So.2d 45 (Fla.1971). However, this is confined to those issues, the subject matter and parties properly before the court in the prior proceedings. See Matthews v. Matthews, 133 So.2d 91 (Fla.2d DCA 1961). Neither the Florida real property involved in these proceedings, the status of its title, the rights or claims of the parties with respect thereto, nor the facts and circumstances bearing on such were involved or determined in the Georgia proceedings. Rather, in this interlocutory posture, we feel that the defendant has a right to be heard on the merits of such equitable defenses or claims as he may plead and prove. We hold that the dismissal of his “Counterclaim” was error. See Haas v. Haas, 59 So.2d 640 (FIa.1952).

Our reversal herein merely avoids the precedence of form over substance. Even if defendant did not — as plaintiff asserts — succeed in stating a cause of action in the form of a counterclaim, this does not prevent the lower court from obtaining jurisdiction of the property and considering all the appropriate facts and law applicable to the rights of the parties therein. Furthermore, we are not troubled by plaintiff’s contention that defendant’s equitable estop-pel argument is an attempt to assert a “defense” as opposed to a “counterclaim,” which defense is not denominated in his pleadings. Technical forms of pleadings and prayers (or their technical denomination) have long been abolished in Florida. (See, e.g., Fla.R.Civ.P. 1.110.)

If these technical points have merit, this will become clear in a full trial.

We would also point out that our reversal does no harm to plaintiff’s right to an action for partition of the Hendry County real property. We do not foreclose this action. Rather, we are merely allowing the defendant to have his day in court.

Both of the parties'have filed motions in this court for allowance of attorney’s fees; both of which are hereby denied without prejudice to the rights of the parties, or either of them, to apply to the lower court for such allowance of attorney’s fees as the ultimate facts and the law may warrant.

Reversed and Remanded.

BOARDMAN, C. J., and GRIMES, J., concur.