author: McCORD, Acting Chief Judge.

text:
    Brooks TAYLOR, Appellant, v. Mary Todd TAYLOR, Appellee.
    No. X-475.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.

      W. Paul Thompson, of Thompson & Ad-kinson, DeFuniak Springs, for appellant.
    John G. O’Brien, Pensacola, for appellee.
   McCORD, Acting Chief Judge.

This is an appeal from an order entered by the court upon appellee’s motion that appellant be held in contempt of court. Among other things, the court ordered that within ninety days appellant deposit in the registry of the court the sum of $14,635.75. The deposit was required by the court as security to assure the availability of funds to furnish college educations to the two minor children of the parties when they become ready for college. The final judgment of dissolution of marriage required (pursuant to agreement of the parties) that appellant “shall make a college education available to each of the above named children and agrees to pay for the cost of the education even though incurred after the children obtain the age of twenty-one (21).” The final judgment further stated, “Plaintiff husband agrees to maintain educational policies for the children in order to assure the. education mentioned above.” It developed at the hearing upon which the foregoing order was entered that appellant had allowed insurance policies to lapse for non-payment of premium which policies would have provided such security. The court in the final judgment had ordered that appellant maintain the policies in force.

While we agree that the objective of the trial court’s order requiring the deposit in the registry of the court was proper, a review of the record indicates no evidence which would support a finding that appellant had the ability to raise and deposit such sum within the required time. We, therefore, reverse on this point. Compare Faircloth v. Faircloth, Fla.App.(1st), 321 So.2d 87.

Appellant also contends that the court abused its discretion in not granting appellant’s motion for continuance of the hearing upon which the appealed order was entered. The motion was presented to and heard by the court at the time set for the hearing, 9:00 a. m., January 17, 1975. The stated ground therefor was that appellant’s attorney was engaged in the jury trial of another case which had not been completed in time for him to appear at the hearing in the cause. Under the circumstances with which the trial judge was confronted at that time, we cannot say that he abused his discretion in denying the motion. Appellee was noticed for the January 17, 1975, hearing on December 3, 1974. Appellant, who is himself a practicing attorney, was accompanied to the hearing by the associate of his regular attorney. The trial judge had previously experienced numerous continuances in the case and appellee had made a trip from her home in North Carolina to attend the hearing.

Appellant further contends that it was error for the trial judge to hold the continued hearing in Escambia County in this Okaloosa County case. On a previous motion for continuance of the prior hearing in this matter which had been set for October 24, 1974, (grounded upon appellant being in the hospital) appellant requested that the continued hearing be set in. Oka-loosa County and that any further hearings in the cause be set in Okaloosa County. It has been customary because of crowded court dockets and scheduling problems for busy trial judges to at times hold. some hearings in a case in the county of the judge’s residence in the judicial circuit rather than to prolong the case until the particular judge’s docket will allow him to make a trip to the county of its venue. While this is understandable, a litigant has the right to have his case, even though it is a non-jury case, tried in the county of its venue. The hearing in the case sub ju-dice was for the purpose of trying appellant on a contempt charge which would normally involve the receiving of evidence. In the absence of a waiver, he was entitled to a trial on this charge in the county of the case’s venue.

While we recognize that trial courts have many problems in scheduling trials and hearings because of increased case loads, we suggest that a trial judge should make every effort to initially schedule hearings which would involve the taking of testimony in the county of the case’s venue for the convenience of the parties, attorneys and witnesses unless the parties agree to the hearing being held in another county. This is particularly true when the county of venue is a considerable distance from the residence of the judge to whom the case is assigned. The case could, of course, be reassigned to the resident circuit judge of the county of venue, if such county has a resident judge. Such would avoid the sometimes embarrassing necessity that a lawyer or litigant move that the hearing be reset in the county of venue.

Reversed and remanded for further proceedings not inconsistent herewith.

MILLS and SMITH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The SURF CLUB, a Florida Corporation, Appellant, v. Maurice C. LONG, and all persons similarly situated, Appellees.
    No. 75-538.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Feb. 4, 1976.
    Walton, Lantaff, Schroeder, Carson & Wahl and James Knight, Miami, for appellant.
    Sibley, Giblin, Levenson & Ward, Shutts & Bowen, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, The Surf Club, appeals a final judgment (1) enjoining the Club and its board of governors from borrowing any money for the purpose of paying operational losses, (2) directing the Club’s board of governors to determine and assess the current dues paying members of the Club the amount necessary and sufficient to pay all current operational losses, (3) declaring the plaintiffs as proprietary owners to be joint owners of a prorata share of the property and franchises of the Club and their rights cannot be defeated by any bylaw adopted by the Club, and (4) ordering an accounting of the operations for the year 1974 to the date of the judgment. Jurisdiction was retained to grant further relief to protect the rights and interest of the plaintiffs in the property and franchises of the Club.

The Surf Club is a large active social club organized in 1930 as a Florida nonprofit corporation. In 1955 the Club’s charter was amended to read that the highest amount of indebtedness or liability to which the Club could subject itself was $750,000 and the amount in value of the real estate it could hold could not exceed $5,000,000. This amendment was approved by court order.

Plaintiffs, appellees herein, are called proprietary members of the Club and they are each the holder of a proprietor’s certificate which provides that the proprietor “is entitled to all the rights and privileges attaching to proprietors. The by-laws defining such rights and privileges appear on reverse hereof.” The reverse side of the certificate contains the following language which is identical to Article VII of the by-laws which were in effect at the time of the issuance of the certificates:

“ARTICLE VII
“Section 1. Proprietors are Regular Members who, in addition to the rights and privileges of the Club thereby possessed by them, are the sole owners of all property and franchises of the Club, and each Proprietor shall, upon dissolution, be entitled to his pro rata share of such property and franchises of the Club or in the proceeds of sale thereof.
“When a Proprietor dies, or whenever the interest owned by a Proprietor shall pass from him or her, whether voluntarily or involuntarily, whether by gift, sale, bequest, distribution, legal process, or in any other manner, Proprietorship in the Club of such member shall cease and determine and the Club shall have in each and every instance, at its option for a period of one year from the date that the Club shall receive written notice of such transfer or termination, the power:
“1. To admit the holder of such interest as a Proprietor and a Regular Member in the Club upon the payment of such regular membership fees as the Board of Governors shall from time to time establish; or
“2.' To purchase such interest for cash from such holder or deceased Proprietor’s estate at a price representing an equal share of the net assets of the Club at the time of the exercise of the option with the Proprietors whose memberships existed at the time the interest passed, provided that the valuation of the net assets of the Club shall be based upon an appraisal by the Board of Governors, which said appraisal shall be binding upon all parties.”

Article XV of the by-laws provides the Club’s charter can only be amended “by a a vote of a majority of the Proprietors then in good standing.” [Emphasis supplied] In addition, by the terms of the by-laws, Articles VII and XV can only be amended by a 2/3 vote of the proprietors.

Commencing with the year ending Sep-témber 30, 1970 and up to the present, The Surf Club for the first time in its history began to suffer operational losses resulting in rather large deficits which spawned the instant litigation. To continue operation of the Club, its board of directors sold the Surf Club Apartments and with the proceeds therefrom reduced the indebtedness to $370,000 at the end of its 1971 fiscal year. Nevertheless, in the ensuing years the Club sustained larger and larger operational losses and had a deficit in excess of $1,000,000 as of November 15, 1974.

In March 1970 the Club had attempted to amend Article IX of the charter to authorize an increase of the allowable indebtedness from $750,000 to $5,000,000. In 1974 the Club also attempted to amend Article VII to read as follows:

“Proprietors * * * shall he entitled, in the event of dissolution of the Club, to share pro-rata with the other proprietors in the distribution of the net assets of the Club * * * [Emphasis supplied]

Finally, on May 11, 1974 the Club’s board of governors authorized the issuance of $1,500,000 in promissory notes to finance the operation thereof.

Thereupon, plaintiff Maurice Long, a proprietor, filed a complaint against The Surf Club on behalf of himself and all other proprietors who might desire to intervene as parties-plaintiff. Other appellees did intervene during the course of the litigation. The complaint in essence alleged that the assets of the Club were owned by the proprietors, and the other types of members thereof have no ownership or rights therein and refuse to pay sufficient money in dues and assessments to meet the Club’s operating deficit which is in excess of $1,000,000 contrary to the $750,000 limit in the charter. The complaint further alleged that the sale of and pledging of the assets to secure the Club’s indebtedness resulted in a dissipation of the proprietors’ assets. The plaintiffs prayed that (1) the Club and its officers be enjoined from creating an indebtedness against the Club in the amount of $1,500,000, (2) the court declare the Club in violation of its charter provisions, (3) the court liquidate the Club and, sell the assets, and (4) the proceeds therefrom be divided among the proprietors. The Club answered claiming the right to incur the deficits in its operation notwithstanding the fact that said deficits depleted the value of its assets.

The cause was tried non-jury and the trial judge entered his final judgment which reads in pertinent part:

“Based upon the pleadings, evidence, exhibits, and memoranda of counsel, the Court finds:
“1. The provisions appearing on the proprietors’ certificates constitutes a contract between the proprietors and the club and creates in the Plaintiffs and those similarly situated full and complete ownership of all of the property and franchises of The Surf Club, subject only to the rights of the active members of The Surf Club to utilize the property and franchises for social purposes.
>k if* * * >k *
“3. The members and the Board of Governors do not have the power or authority to charge the proprietors’ ownership interest of The Surf Club with any operational deficit created or caused by the active members’ utilization of the property and franchises of The Surf Club. Any such operational loss or deficit must be paid by the members of The Surf Club enjoying the benefits of the utilization of the property and may not become a charge against the proprietors’ ownership interest as such.
“It is, thereupon,
■ “CONSIDERED, ORDERED and ADJUDGED that the Defendant and its Board of Governors and officers are hearby permanently enjoined and restrained from borrowing any money for the purpose of paying operational losses or from incurring any indebtednesses by reason of operation losses. It is further,
“CONSIDERED, ORDERED and ADJUDGED that it is the duty of the Board of Governors of the Defendant to ascertain, determine and assess the current dues paying members of the club the amount necessary and sufficient to pay all current operational losses. It is further,
“CONSIDERED, ORDERED and ADJUDGED that the Court hereby declares that the Plaintiffs and all persons similarly situated, as proprietary owners, jointly own a pro rata share of the property and franchises of the Defendant Surf Club and their rights cannot be defeated by any By-Law adopted by the club or its Board of Directors which seeks to limit the contractual rights of such proprietary owners. It is further,
“CONSIDERED, ORDERED and ADJUDGED that the Defendant shall forthwith file an accounting of the operations for the year 1974 and to the date of this judgment, serving a copy thereof upon the attorneys for the Plaintiffs. The Court retains jurisdiction of this cause to take an accounting in order to ascertain the amount of each annual operating loss which forms a part of any present, outstanding indebtedness of the club and to grant such further relief relating to indebtednesses of the club which have accumulated because of operating losses as shall be proper to protect the rights and interest of the Plaintiffs in the property and franchises of the Defendant club.”

The Surf Club perfected this appeal therefrom.

For the first of its three contentions on appeal, appellant Club argues that provisions of the by-laws printed on a membership certificate of a social dub organized as a non-profit Florida corporation do not constitute such a contract between the Club and the members as to preclude the Club from amending those by-laws as permitted by its charter and the applicable state statute. We disagree.

On the authority of Surf Club v. Motland, Fla.1957, 93 So.2d 384 at 386 we find the language appearing on the proper-ietors’ certificates created a contractual relationship between The Surf Club and the holders thereof, and thereby the proprietors were vested with complete ownership of all the property and franchises of the Club. The - general rule established long ago is that a corporation is prohibited from amending its by-laws so as to impair a member’s contractual right. Grand Lodge Knights of Pythias of North America, etc. v. Harris, 124 Fla. 1, 167 So. 814 (1936); Brotherhood’s Relief and Compensation Fund v. Cagnina, Fla.App. 1963, 155 So.2d 820.

Hence, our conclusion that the attempted 1974 amendment of Article VII, set out hereinabove, was invalid and void. We also agree with the finding of the trial judge that the members and board of governors of the Club did not have the authority to charge the proprietors’ ownership interest of the Club with any operational deficit created by the active members’ utilization of the property and franchises of the Club.

Even assuming arguendo that the board of governors had the power to authorize the issuance of $1,500,000 in promissory notes to finance the operation of the Club, we have determined that this authorization exceeded the charter limit of $750,000. For the 1970 amendment to Article IX, raising the Club’s liability from $750,000 to $5,000,000, was not effective in that the amendment was not approved by a vote of the majority of the proprietors and further was not approved by the Department of State as required by § 617.02, Fla. Stat., F.S.A.

We also have examined appellant’s remaining two points on appeal and find that no reversible error has been made to appear therein.

Accordingly, the judgment appealed is affirmed.

Affirmed.

      . For an indepth discussion of the difference in the Club memberships see Surf Club v. Motland, Fla.1957, 93 So.2d 384.

      . We also note that the amendment of Article YII was not approved by % vote of the proprietors as required therein.


author: SMITH, Judge.

text:
    Morrison KIMBROUGH and Pace Finance Company, Inc., a Florida Corporation, Appellants, v. Ronnie McCRANIE, Appellee.
    No. Z-207.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
    Allen W. Lindsay, Beall, Lindsay & Lindsay, P.A., Milton, for appellants.
    Bill E. Parker and T. Sol Johnson, Milton, for appellee.
   SMITH, Judge.

The trial court dismissed this independent action to set aside, as having been obtained by fraud on the court, a money judgment entered for appellee McCranie against appellants Kimbrough and Pace. Dismissing the action, the trial court ruled that the petition was untimely filed because more than a year had elapsed since the judgment was entered. Rule 1.540(b)(3), R.C.P. While the petition thus dismissed was filed as an independent action and not in the cause which resulted in the judgment attacked, the alleged fraud described in the petition is not that McCranie made misrepresentations misleading the court as to its jurisdiction or preventing Kimbrough and Pace from effectively presenting a defense, but rather that McCranie falsely stated the amount of the damages he had sustained. Allegations of that character are appropriate when a judgment is sought to be vacated within one year on grounds of fraud but not when the attack is delayed longer than a year and must therefore rest on a showing of “fraud on the court.” Alexander v. First Nat’l Bank of Titusville, 275 So.2d 272 (Fla.App. 4th, 1973). Contrast Corrigan v. Corrigan, 184 So.2d 664 (Fla.App. 4th, 1966).

Affirmed.

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


text:
    FUTURA REALTY, INC., Appellant, v. Norman J. KASSER, Appellee.
    No. 75-397.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Lapidus & Hollander and Robert J. Schaffer, Miami, for appellant.
    Joe N. Unger, Miami Beach, for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Futura Realty, Inc., plaintiff in the trial court, appeals from a final judgment for the defendant, Norman J. Kasser, in an action to collect a real estate brokerage commission.

Futura Realty, Inc., filed a complaint in Dade County Circuit Court, alleging that Norman J. Kasser and Claire Kasser requested that Futura Realty obtained a purchaser, ready, willing and able to purchase on specific terms and conditions a certain tract of land located in Dade County, Florida, owned by the Kassers; that Futura Realty obtained a purchaser, ready, willing and able to purchase on the exact terms requested; that the Kassers refused to sell and refused to pay the brokerage fee. A jury trial was held. At the close of the plaintiff’s case, the trial court granted defendant Norman J. Kasser’s motion for a directed verdict on the basis that Futura Realty failed to establish, as a matter of law, entitlement to a commission. The trial court had determined that there was an absence of evidence that the purchasing group was financially able to purchase on the required terms, and that failure to consummate the sale was not the fault of the seller, Norman J. Kasser. Fu-tura Realty takes this appeal from the final judgment entered on the directed verdict in favor of the defendant.

We agree with the trial court and affirm the final judgment. It is clear from the record that numerous contracts were drafted pursuant to this transaction; that failure to consummate the transaction was not due to any fault on the seller’s part and that all parties knew that the seller would be unable to produce trailer-park zoning at the date of closing. The record further shows that even if the latest oral contract is construed in favor of the broker, it would still not be entitled to a commission because Futura Realty agreed that if the closing did not take place, there would be no broker’s commission. In an action for a broker’s commission, where the record on appeal, properly viewed, fails to prove a jury submissible prima facie case, the defendant is entitled to judgment as a matter of law. Scott v. Downey, Fla.App.1975, 314 So.2d 16. A directed verdict is appropriate where the record fails to establish the broker’s entitlement to a commission. See Hodges v. Altobello, Fla.App.1973, 274 So.2d 892.

Affirmed.

      . The trial court subsequently granted a motion for summary judgment on behalf of Claire Kasser since she was neither an owner of the property nor did she participate in this or any other real estate transaction with Futura Realty,


text:
    Eugene BLACKNELL, Appellant, v. BARNES DETECTIVE AGENCY’S AUTO RECOVERY BUREAU, INC., Appellee.
    No. 75-757.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Rehearing Denied Feb. 4, 1976.
    Michael A. Masinter, Florida Rural Legal Services, Inc., Homestead, for appellant.
    William Ingraham, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed upon authority of the rule stated in Lynch v. State, 1934, 114 Fla. 839, 155 So. 99.


author: PER CURIAM. BARKDULL, Chief Judge

text:
    Alfred KESSLER, Trustee and Individually, et al., Appellants, v. Henry HILSENROTH, Individually and as Trustee, and Sheldon Leventhal, Individually and as Trustee, Appellees.
    Nos. 74-1385, 74-1386.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Rehearing Denied Feb. 4, 1976.

      Jack R. Rice, Jr., Miami, for appellants.
    Snyder, Young, Stern & Tannenbaum and Paul R. Lipton, North Miami Beach, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellants seek review of an adverse judgment. There is also an interlocutory appeal (No. 74-1386) which has been consolidated with the full appeal.

The nature of the case, the pleadings involved and the positions taken by the parties in the trial court are clearly disclosed and discussed in the judgment of the trial court which included findings of fact and conclusions of law, as follows:

“FINAL JUDGMENT”
“The Plaintiffs invoked the Declaratory Judgment Act (Chapter 86, F.S.) by seeking a judicial construction of a provision in a written mortgage indenture. The Plaintiffs alleged in their Complaint that there was a building moratorium or there was sewerage unavailability for subject property which would allow them, pursuant to the, terms of said mortgage indenture, to suspend mortgage principal and interest payments due. Plaintiffs alleged compliance with all conditions • precedent to the mortgage indenture.
“The Defendants answered the Complaint and denied the existence of said building moratorium or sewerage unavailability as contemplated by the parties. Defendants demanded dismissal of the case and the assessment of reasonable attorneys’ fees.
“The case proceeded to trial on the issue as made. The Court considered testimony of the parties, their witnesses and all the documentary evidence submitted and received.
“UPON CONSIDERATION, it is the finding of the Court that:
“1. The Plaintiffs and Defendants entered into an agreement for purchase and sale of real property in Dade County, Florida. The parties agreed that the Plaintiffs (Purchasers) would be able to suspend principal and interest - payments due under a mortgage to be made and delivered to Defendants (Sellers) as part of the purchase price, if sewerage became unavailable to the encumbered property.
“2. That at the closing the parties formalized their agreement and the Plaintiffs took title to the subject property and delivered to the Defendants a Mortgage Deed. Specifically, paragraph 12 of the Mortgage indenture states:
“ ‘Should a building moratorium be imposed upon the land by Dade County or other governmental agency, or should water and sewerage become unavailable and either mortgagors or mortgagees, within a thirty (30) day period, be unable to correct this water and sewerage unavailability, then the within purchase money mortgage and note will be subject to a moratorium as to principal and interest during the existence of said moratorium or unavailability or said water and sewerage (said moratorium as to principal and interest resulting from the unavailability of sewerage and water to commence thirty (30) days from notification, in writing, of unavailability as aforementioned). The term moratorium is used herein to refer to principal and interest shall be due or accrue during said period and that no principal shall be due during said period.’
“3. That Defendants produced a contract that they had entered into with the Public Utilities Department of the City of North Miami Beach which would provide sewerage disposal from the encumbered and subject property to existing facilities. The Plaintiffs relied upon said contract. It was the parties’ intention that sewerage availability was availability to existing facilities.
“4. That it was the apparent intention of the parties that should a building moratorium or sewerage and water, or either, become unavailable, the Plaintiffs would be entitled to suspend principal and interest payments due under the said mortgage indenture.
“5. That sewerage became unavailable to existing facilities, as contemplated by the parties because of the moratorium invoked by a lawful authority, COLIN MORRISSEY, Director of Pollution Control of Dade County, Florida. That said, moratorium is and was in effect at all times material to this action.
"6. That the equities of this case are with the Plaintiffs and against the Defendants, and that the Plaintiffs are entitled to the relief they seek.
“Accordingly, it is
“ORDERED-:
“A. That paragraph 12 of the mortgage indenture be judicially construed as to granting the Plaintiffs a moratorium on principal and interest payments due under the mortgage indenture delivered by them to the Defendants, which mortgage indenture is dated June 27, 1973, until such time as the moratorium invoked by COLIN MORRISSEY on December 1, 1972 is revoked or is. modified to allow a sewerage hook up to existing facilities at or adjacent to the subject encumbered property.
“B. That the Defendants are enjoined from foreclosing the said mortgage indenture or taking any action to declare a default of the said mortgage indenture, as long as there is sewerage unavailability as defined in paragraph A. above.
“C. That all sums held in the Trust Account, as created by this Court’s Order of January 11, 1973, be released to the Plaintiffs forthwith. That Trustees are directed to take such action as may be necessary to accomplish this transfer of funds immediately.
“D. That costs will be assessed against the Defendants by appropriate Order upon application therefor.”

This court has considered all points and contentions presented by the appellants, in the light of the record, briefs and arguments of counsel, and concludes that no reversible error has been demonstrated. The findings of the trial court are supported by competent substantial evidence, and in our view the several rulings of the trial court, challenged by appellants did not, on the record and under the law, constitute harmful error.

Affirmed.

BARKDULL, Chief Judge

(specially concurring).

I concur in this opinion because of the state of the record at this time. However, it is recognized that equity can relieve parties from an oppressive or unconscionable agreement. See: 17 Am.Jur.2d, Improvident, oppressive, or unconscionable agreements, § 192. Inasmuch as a moratorium is temporary suspension of certain rights or remedies, it would appear that a moratorium could be of sufficient duration so as to render an agreement [deferring payments on a contract for the duration of the moratorium] oppressive or unconscionable to such an extent as to justify equity exercising its powers and relieving the parties from the agreement'.


author: SCHEB, Judge. McNULTY, Chief Judge GRIMES, Judge

text:
    STATE of Florida ex rel. Michael W. MEYER and Dale James Schultz, Relators, v. The Honorable Lawrence E. KEOUGH, as Circuit Judge of the Sixth Judicial Circuit of the State of Florida, Respondent.
    No. 75-1482.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 1976.
    Rehearing Denied Feb. 5, 1976.
    Gregory G. Gay, New Port Richey, for relator Schultz.
    Robert M. Focht, Asst. Public Defender, New Port Richey, for relator Meyer.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for respondent.
   SCHEB, Judge.

Relators seek a writ of prohibition against the respondent trial judge, contending the state is barred under the provisions of the speedy trial rule RCrP 3.191(h)(2) from trying them on an information charging possession and sale of a controlled substance. We grant the writ.

The narrow question we resolve here is what constitutes a “single episode of criminal conduct” under the speedy trial rule as relates to certain drug offenses. .

The relevant chronology leading to the present posture of the case starts on January 1, 1975, at about 11:30 p.m. At that time a confidential informant for the Pas-co County Sheriff’s Department made a controlled purchase of methylenedioxy amphetamine (MDA) at the relators’ mobile home. Then, about 3:30 a.m. on the following day, pursuant to a search warrant obtained almost immediately after the 11:30 p.m. purchase, officers searched re-lators’ mobile home and discovered quantities of both MDA and marijuana, the MDA being in the same place as the drugs were kept when the controlled purchase was made by the confidential informant. As a result, relators were arrested on January 2, 1975, on charges of possession of these two controlled substances on that date.

On March 25, 1975, the state filed three informations charging relators as follows:

(1) Case No. 75-2 - possession of marijuana on January 2, 1975;
(2) Case No. 75-3 - possession of MDA on January 2, 1975; and
(3) Case No. 75-420 - possession and sale of MDA on January l, 1975.

On June 20, 1975, Cases 75-2 and 75-3 were dismissed. Then on August 14, 1975, both relators were arrested on the charges in Case No. 75-420, relating to the offense of possession and sale of MDA on January 1, 1975.

On October 2, 1975, relators filed a motion to be discharged under RCrP 3.-191(h)(2). They contended the state was barred from proceeding with the trial since 180 days had elapsed from the date of their original arrest for this particular criminal episode. Unquestionably the 180 day period specified in the rule did elapse from initial arrest of relators on January 2, 1975, until the scheduled date for their trial on the offense charged under Case No. 75-420. Likewise, no question is raised concerning the continued availability of the relators for trial. The thrust of re-lators’ contention below and on this appeal is that the drug offenses for which they were originally arrested on January 2, 1975, resulted from the same conduct or criminal episode as gave rise to the offense for which the state is now prosecuting them.

The testimony on the motion leaves no question but that the relators’ possession of the controlled substances was first discovered by the authorities as a result of the confidential informant’s purchase, and that almost immediately thereafter Detective Richard L. McCoy of the Pasco County Sheriff’s Department made the required affidavit and obtained the search warrant. Within approximately four hours from the time of the controlled purchase the search warrant was executed at relators’ mobile home. The relators argue that while not the “same offense,” the alleged sale and possession and the latter possession were all part of the same conduct or episode since all took place within the same mobile home within four hours with the same individuals involved in both instances. Further, relators point out that the factual predicate for the search warrant led to discovery of the drugs at 3:30 a.m. on January 2, 1975, in relators’ refrigerator, being the identical location of the same type of drugs as the controlled purchase on January 1, 1975, at 11:30 p. m.

The state, however, sees the issue here as being whether the relators had the right to be arrested on all charges at some specific point in time. Concluding that the statute of limitations alone controls this aspect of the case, the state emphasizes our previously stated view that the objective of the speedy trial rule is merely to insure that once a person has been arrested, that he be brought to trial with reasonable promptness. See Sumbry v. State, Fla.App.2d 1975, 310 So.2d 445. The state argues it should not be precluded from prosecuting the relators for any criminal charges within the statute of limitations merely because the relators now incorrectly view their own conduct as an event which is part of one continuing sequence of activity.

The proper resolve of the problem depends upon a correct interpretation of the language in RCrP 3.191(a)(1), which states in part:

“[Ejvery person charged with a crime by indictment or information shall without demand be brought to trial . within 180 days if the crime charged be a felony . . . The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged . ” (Emphasis supplied)

Unfortunately, there is a paucity of authority interpreting what constitutes the “conduct or criminal episode giving rise to the crime charged.”

In Bryant v. Blount, Fla.App.1st 1972, 261 So.2d 847, the defendant was initially charged with conspiring to commit bribery and later with a substantive charge of bribery. The court stated that two separate informations clearly charged a crime “ ‘based on the same conduct or criminal episode.’ ” The court there distinguished between whether two crimes are the same offense for purpose of double jeopardy and for the “same criminal episode” test. It is apparent from the court’s opinion that the criminal episode concept is viewed in a broader context than the concept of what constitutes the same offense for double jeopardy purposes. See also State v. Boren, Fla.App.3d 1973, 273 So.2d 415.

In Crain v. State, Fla.App.2d 1974, 302 So.2d 433, this court held the conduct of a defendant arrested for driving while under the influence of a prohibited drug, who was later charged with contemporaneous possession of marijuana, involved only one criminal episode. We said there that even though the offenses were separate, if they were grounded on the same conduct they must both be tried within the time prescribed under the speedy trial rule. Here, the basis for the search warrant for entry into the relators’ mobile home at 3 :30 a.m. on January 2, 1975, was within the factual context related to the charge of possession and sale arising directly from the conduct of the relators on January 1, 1975, at 11:30 p.m. The January 2, 1975 offense is closely related to the continued possession and sale of the same controlled substance at the same location by the same parties and close to the same time. When coupled with the fact that recitation of the prior sale was a significant part of Detective McCoy’s affidavit for the search warrant relating to the possession charges, this constitutes the same conduct or criminal episode.

Were we to find that the possession and sale of controlled substances at 11:30 p.m. on January 1, 1975, and the possession of the same drug four hours later were, for the purpose of the speedy trial rule, two separate criminal episodes it would permit the prosecution to avoid the salutary purposes served by the speedy trial rule.

Our holding today is limited to a situation where the enforcement authorities obtain knowledge of controlled substances being possessed by individuals through a “controlled buy” and almost immediately thereafter obtain and execute a search warrant and as a result thereof seize additional unlawful drugs of the same type their confidential informant first obtained and which drugs were possessed by the same individuals in the same place. Under these circumstances we hold that the prosecution arising out of such factual situation should take place within the time requirements of the speedy trial rule with the time running from the initial taking of the accused parties into custody.

Accordingly, the writ of prohibition is granted and the respondent is hereby prohibited from taking further action toward trial of the relators.

Writ granted.

McNULTY, C. J., concurs specially with opinion.

GRIMES, J., dissents with opinion."

McNULTY, Chief Judge

(concurring specially).

I concur in the conclusion of my brother Scheb, although I would be less inclined to rely so heavily on the “closeness in time” element as between the “buy” and the issuance of the search warrant. Rather, I would emphasize, the controlled buy on January 1 was clearly the “conduct” and “criminal episode” which gave rise to the crime charged. It was indeed the sine qua non of the search warrant and arrest which followed so closely on.

Judge Grimes, it seems to me, fails sufficiently to distinguish between the “criminal conduct” or “episode” which precipitates the taking “into custody,” regardless of the number or kinds of crimes which then and there may have been committed and which may subsequently be charged, on the one hand and the specific kinds of offenses themselves on the other. Certain conduct or a criminal episode may result in an arrest but the state should not be permitted piecemeal to file separate charges arising therefrom, assuming the alleged crimes knowingly to have been completed thereby, in a manner which would avoid the consequences of the speedy trial rule. As Judge Scheb indicates, it is the initial arrest resulting from the “criminal conduct” or “episode” which starts the counting of time, not subsequent re-arrests for different crimes knowingly committed by or within such “conduct” or “episode.” Prohibition properly issues herein.

GRIMES, Judge

(dissenting).

Admittedly, this is a close case, and Judge Scheb has written an excellent opinion which has the effect of limiting the holding to the particular facts. Nevertheless, I am compelled to dissent.

While the search warrants were predicated in large part upon the information supplied by the confidential informant, the record^'clearly reflects that the relators were originally arrested for having drugs in their possession at that time. Information relating to the relators’ prior conduct may have provided the means whereby the police would be in a position to make the arrest, but “the conduct or criminal episode giving rise to the crime charged” was the conduct or criminal, episode of possessing the drugs on January 2, 1975. The conduct or criminal episode giving rise to the crime charged in the instant case occurred on January 1, 1975. As a matter of fact, one of the crimes alleged to have occurred on January 1 was the sale of MDA, an offense totally different in kind from the possession offenses which were allegedly committed the following day.

The fact that the MDA which was sold on January 1 came from the same supply which was. seized on January 2, does not convince me that both transactions are a result of the same “conduct or criminal episode” as contemplated by the speedy trial rule. Likewise, when a person is arrested on a drug possession charge I cannot read the speedy trial rule as mandating the commencement of the speedy trial time with respect to prosecutions on previous possession charges then known by the state even though the same supply of drugs may have been involved.

Moreover, the state cannot be charged with dealing unfairly with the relators. The reason the relators were not originally arrested on the January 1 charge was that the proof of that charge depended upon the testimony of a confidential informer. The state wished to keep the identity of this informer confidential since he was continuing to make controlled drug purchases for the police authorities. Apparently, when the possession and sale charge was filed on March 25, 1975, the reasons for keeping the informer’s name secret no longer existed. However, the speedy trial time does not begin to run upon the filing of án information but rather, where no demand has been made, when a person is taken into custody. RCrP 3.191(a) (1). This only occurred on August 14, 1975, after the two possession charges had been dismissed.

The purpose of the speedy trial rule is to see that persons who are arrested shall be promptly brought to trial. The relators were not arrested for the crime with which they are charged in this case until August 14, 1975. In my judgment, their motion for discharge for failure to have a speedy trial which was filed less than two months later was properly denied. The fact that the relators had been arrested more than six months before for different charges occurring on a different date caused them no prejudice with respect to their right to a speedy trial on the instant charge.

In essence, the relators are arguing that, for purposes of the speedy trial rule, they had a right to be arrested on the instant charge at the time they were first arrested for possession. I know of no such right.

      . “The intent and effect of this Rule shall not be avoided by the State by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode, or otherwise by prosecuting new and different charges based on the same- conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.”

      . The situation in State ex rel. Lee v. Rose (Fla.App.2d, 1973), 277 So.2d 66, of course, is inapposite since there the defendant, in a case of manslaughter by operating a motor vehicle while intoxicated, was immediately arrested for driving while intoxicated. The death of the victim did not occur until a considerable time thereafter. The charge of manslaughter set for trial more than 180 days from the original arrest was not barred by the speedy trial rule for the reason that the specific crime had not indeed been completed at the time of the arrest. That is clearly not the situation here.


author: OWEN, Judge.

text:
    Reginal McKNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 74-1011.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks, Asst. Public Defender, and Craig Barnard, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

On appeal from a conviction on two counts of violation of the drug abuse laws, appellant’s points relating to the validity of the judgment are without merit and the judgment is therefore affirmed.

In sentencing appellant, the trial court refused to give appellant credit for jail time already served while awaiting sentence. During at least a part of that time, appellant was being held on other charges for which he was subsequently convicted and sentenced. Appellant has supplemented the record in this case by furnishing us a certified copy of the judgment and sentence imposed on appellant as a result of the other charges then pending against him, and this supplemental record reflects that appellant did not receive credit in that case for jail time already served. He is entitled to such credit although not to duplicate credit. See, Lawrence v. State, 306 So.2d 561 (Fla.App. 4th, 1975). Upon remand the court is directed to determine whether appellant has, in fact, received credit for jail time served and if he has not, the court shall modify the sentence in this case accordingly.

After a verdict had been returned in appellant’s jury trial, he had been allowed to remain at liberty pending adjudication and sentencing. A date was set for his sentencing and when he failed to appear, a ca-pias was issued for his arrest, and, pursuant to Rule 3.840 RCrP, an order was issued directing him to show cause why he not be held in contempt of court. As a result of the capias appellant was arrested and incarcerated, accounting for a portion of the presentence jail time to which we have referred earlier.

When appellant was ultimately brought before the court for adjudication and sentencing he was also given a hearing on the contempt charge. Appellant was found in contempt of court and sentenced to be confined in the.county jail for a period of six months at hard labor. The record discloses that the judgment, while reflected in the circuit court minutes, was never reduced to writing and entered of record and, further, that there was no recital of the facts constituting the contempt, as required under Rule 3.840 RCrP. The court’s failure to comply with the requirements of Rule 3.840 RCrP necessitates that the judgment and sentence be set aside and the cause be remanded to the trial court for the entry of a proper judgment and sentence in accordance with this Rule. Miller v. State, 305 So.2d 826 (Fla.App. 4th, 1975); Speller v. State, 305 So.2d 231 (Fla.App. 2nd, 1974); Davis v. State, 261 So.2d 188 (Fla.App. 1st, 1972); Moore v. State, 245 So.2d 880 (Fla.App. 2nd, 1971). We note also that a sentence “at hard labor”, such as the trial court attempted to impose here, has been disapproved. McDonald v. State, Fla.App. 4th, 321 So.2d 453, opinion filed November 7, 1975; Speller v. State, supra. The judgment and sentence for contempt is accordingly reversed and that cause remanded for further proceedings consistent herewith.

Affirmed in part; reversed in part.

WALDEN, C. J., and DOWNEY, J., concur.


text:
    George W. DRYSDALE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-548.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.

      Richard L. Jorandby, Public Defender, Leon St. John and Elliot R. Brooks, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Dispositive of this appeal is our conclusion that the State failed to establish the corpus delicti of the crime charged, second degree murder, independently of the defendant’s inculpatory extra-judicial statements.

Appellant was charged with the shooting death of one Debra Crawford. He and Miss Crawford, engaged to be married, were living together at the time of the incident in the home of a Mr. Melvin Huntley. At about 1:00 a. m. on September 23, 1973, Huntley heard a shot while he was watching television in the. living room. Appellant came running out of the bedroom into which he and Miss Crawford had earlier retired, went directly to the telephone and called the police for emergency assistance. Appellant stated on the phone that decedent had been shot when she reached under the bed for a gun. The gun was one of three owned by appellant, who was employed as a security guard. Both appellant and the decedent were familiar with guns and had, in fact, been target shooting that day. Huntley did not hear any screams or arguing prior to hearing the gun shot. When the police arrived appellant cooperated with them fully and agreed to accompany them to the police station in order to make a statement.

Through various expert and police witnesses, the prosecution also established that Miss Crawford’s body was found lying face down across two beds which were drawn together; that her death was instantaneously caused by a gun-shot wound in the chest, inflicted at close range; that the bullet, which was never recovered, entered at a 45° angle and was discharged from a .44 magnum pistol; that the pistol, if half cocked, required 30 pounds of trigger pressure, and, if fully cocked, 3 to 3j4 pounds to discharge; that laboratory tests failed to identify any specific fingerprints on the gun; and that a swab test taken of appellant’s hands to determine if he had recently fired a gun was inconclusive.

The trial court, overruling appellant’s motion to suppress and his objection that the State had failed to establish the corpus delicti as a necessary predicate, admitted evidence of appellant’s extra-judicial statements. In his first statement to the police on the morning of September 23, appellant related that he and the decedent had gone into the bedroom, talked for a while, and then decided to go to sleep. The decedent reminded appellant to put his gun, a .44 magnum pistol, which was under the bed, under the pillow as he usually did; appellant reached under the bed for the gun and in putting it under the pillow, it went off. However, after about an hour of interrogation, appellant began “rambling;” he became very upset, started crying violently, and began asking for his brother. The officers ceased transcribing his statement but continued to question him. At this point, appellant gave a different version of the shooting: he stated that he became upset when the decedent began talking about her family, that she got off the bed, appellant went blank, and remembered only the explosion and flash of the gun.

At trial, after unsuccessfully moving for a judgment of acquittal at the close of the State’s case, the appellant took the stand in his own behalf and testified to the facts essentially as given in the first of his two extra-judicial statements, except that, this time, he stated that both he and Miss Crawford reached for the gun and that he did not know whose hand was on the gun when it discharged. The jury found appellant guilty as charged and he was sentenced to ten-years’ imprisonment.

There are two separate proof burdens upon the State with respect to the corpus delicti. Jefferson v. State, 128 So.2d 132 (Fla.1961): (1) at the conclusion of all of the evidence in any criminal case, the State must have established the elements of the corpus delicti of the crime charged beyond a reasonable doubt. Jefferson v. State, supra; Hulst v. State, 123 Fla. 315, 166 So. 828 (1936); Lee v. State, 96 Fla. 59, 117 So. 699 (1928); (2) in those cases in which the satisfaction of this ultimate burden relies upon an admission or confession by the defendant, the State is required to establish the elements of the corpus delicti by some independent proof before such admission or confession may be considered by the jury. Schneble v. State, 201 So.2d 881 (Fla.1967); Jefferson v. State, supra; Rowe v. State, 84 So.2d 709 (Fla.1956); Adams v. State, 153 Fla. 68, 13 So.2d 610 (1943); Keir v. State, 152 Fla. 389, 11 So.2d 886 (1943); Parrish v. State, 90 Fla. 25, 105 So. 130 (1925); Robbins v. State, 312 So.2d 243 (Fla.App.2nd 1975); Hester v. State, 310 So.2d 455 (Fla.App.2nd 1975); Sciortino v. State, 115 So.2d 93 (Fla.App.2nd 1959); 3 Wharton, Criminal Evidence, § 691 (13th ed. 1973).

Exactly what quantum of independent proof is required to meet this latter corpus delicti proof burden before an extra-judicial confession may be admitted into evidence is a troublesome question. The burden varies from jurisdiction to jurisdiction and anywhere from “slight” to “clear and convincing” proof may be required. See, Annot., 45 A.L.R.2d 1316 (1956). The Florida courts have not been consistent among themselves in defining the requisite quantum of proof with the result that at least three different standards have been articulated: “At least some prima facie proof,” McElveen v. State, 72 So.2d 785 (Fla.1954); Keir v. State, supra; “some additional substantial evidence,” Tucker v. State, 64 Fla. 518, 59 So. 941 (1912); LaSalle v. State, 187 So.2d 407 (Fla.App. 3rd 1966); or evidence which “tends to show” the elements of the corpus delicti, Schnebel v. State, supra; Schneider v. State, 152 So.2d 731 (Fla.1963); Jefferson v. State, supra; have been standards variously cited and applied. Because we conclude that here the State’s evidence failed to satisfy even the most minimal of these burdens, in that the State failed to produce any evidence to establish an essential element of the corpus delicti of a homicide, we need not attempt to reconcile or choose from among these standards.

Three elements must be proved in order to establish the corpus delicti in a homicide case: (1) the fact of death; (2) the criminal agency of another person as a cause thereof; and (3) the identity of the decedent. Schneider v. State, supra; Jefferson v. State, supra; Hulst v. State, supra; Lee v. State, supra. We are not concerned here with the State’s proofs as to the first .and third elements, which we deem sufficient, but we think that the State fell short of its burden in'proving the second element — that Miss Crawford died as a result of the criminal agency of another.

“Evidence of ‘criminal agency of another,’ as that phrase applies in connection with corpus delicti in homicide cases, means evidence that tends to show that the deceased died, not as the result of natural or accidental causes, or by his own hand, but by the hand of another under such circumstances that the killing would amount to homicide in any of its degrees.” (e.s.) Jefferson v. State, supra, at 135-6.

The State’s independent evidence in this case not only utterly failed to support the thesis that the deceased died “by the hand of another” but actually tended to negative this thesis, the evidence pertaining to the initial report of the incident to the police reflecting that the decedent had indeed died by her own hand. Reviewing the evidence most favorably to the State, we find a complete dearth of either direct or circumstantial evidence to show that the fatal shot was caused by appellant, rather than the decedent. Other than appellant, there were no eye-witnesses to the event; there was no evidence of any motive which might implicate appellant; and, finally, there was no physical evidence which was consistent with appellant’s, rather than decedent’s, having pulled the trigger. Accordingly, it was error for the. trial court to admit into evidence appellant’s extra-judicial statements. With such statements properly excluded, the corpus delicti was not established and appellant was entitled to a judgment of acquittal at the close of the State’s case.

Because of our disposition of the case on this ground, it is unnecessary for us to reach the issue of the propriety of the trial court’s denial of appellant’s motion to suppress these statements as having been involuntarily made.

The judgment is reversed and the cause remanded with instructions to discharge appellant.

Reversed and remanded.

MAGER and DOWNEY, JJ., concur.

      . We recognize that it is not necessary to the establishment of the corpus delicti to prove that the criminal agency was that of the particular defendant charged with the act, Daughtry v. State, 65 Fla. 415, 62 So. 345 (1913) ; 3 Wharton, Criminal Evidence § 691 (13th ed. 1973), however, in the instant ease, as there were only two people in the room in which the death occurred — appellant and the decedent — in order to establish the corpus delicti, the State necessarily would have had to establish that it was appellant who caused Miss Crawford’s death.


author: SMITH, Judge. BOYER, Chief Judge

text:
    David Glenn PURCELL, Appellant, v. STATE of Florida, Appellee.
    Nos. Y-402 to Y-404.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.

      Scott R. Nabors of Staats & Nabors, Panama City, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

Convicted and sentenced on three charges of possession of cocaine and hashish, Purcell asserts on appeal that the drugs were seized as a result of a search of his leas.ed storage rooms in violation of Fourth Amendment standards.

The State questions whether the appeal was appropriately begun, suggesting that the filing of the notice of appeal antedated the filing or rendition of the written judgment and sentence. The record before us contains a minute entry of an earlier judgment in the case, to which the notice of appeal properly related. In any event, the question raised by the State has been answered favorably to appellant by the Supreme Court’s recent decision in Williams v. State, 324 So.2d 74 (Fla.1975).

Appellant, whom the authorities knew from investigation had possession of stolen photographic equipment in a black cardboard carrying case and a silver camera case, was arrested on March 14, 1975, with the silver camera case, containing a stolen camera, in his possession. Surmising then that the black case and the rest of the stolen equipment would be found in a two-story storage facility rented by appellant, Detective Evans sought and obtained a magistrate’s warrant to search the premises for:

“. . . certain stolen property to-wit : a black cardboard carrying case containing photographic lights, stands, and other photographic equipment, specifically a Berkey-Colotran Mini Pro Kit (A.C.) which are believed to have been stolen. And a Sylvania Sun Gun Kit, Sun Gun head and power supply.”

With appellant jailed, Evans and Investigator Parker cut the lock from the door of the large storage facility and entered. They searched the ground floor quickly and unsuccessfully and turned their attention to the attic. There, from the top of the stairs, they saw. the black case described in the warrant on the far side of the room. A set of sensitive drug scales sat in plain view on top of a desk at the head of the stairs and a sawed-off shotgun was likewise clearly visible. The officers did not immediately seize the black case, which predictably contained the photographic equipment described in the warrant, but launched a thorough search of the entire upstairs, working systematically, as they described it, from the point of entrance to the rear of the room where the black bag sat. The entire cache included plastic containers of cocaine and hashish, assorted drug paraphernalia and other drug-related evidence, all of which was found in the desk drawers, several guns whose serial numbers demonstrated that they had been stolen, the sawed-off shotgun, the drug scales and, at last, the black carrying case and its contents.

During the attic search, Evans and Parker encountered a locked blue trunk. Having already found the black case and equipment specified in the search warrant, they decided not to open the trunk but to seek another search warrant. Parker’s affidavit supporting the application for that warrant on March 20 recited as grounds the fruits of the prior day’s search and af-fiant’s belief that the storage premises, “including a large footlocker located in the attic section of the storage locker,”

“. . . are being used to violate the laws of the State of Florida, specifically the possession of narcotics or dangerous drugs and/or any other illegal contraband.”

The Fourth Amendment to the Constitution, made applicable to the States by the Fourteenth, proscribes unreasonable searches and seizures and forbids that warrants issue without “particularly describing the place to be searched, and the . things to be seized.” “General searches,” reminiscent of those conducted under the despised writs of assistance in pre-Revolu-tionary days, “have long been deemed to violate fundamental rights. It is plain that the amendment forbids them.” Marron v. United States, 275 U.S. 192, 195, 48 S.Ct. 74, 75, 72 L.Ed. 231, 236 (1927). While subsequent decisions make clear that the searcher, having an adequate warrant, need not disregard evidence of crime or contraband appearing “in plain sight” in the execution of the warrant, Harris v. United States, 331 U.S. 145, 186, 67 S.Ct. 1098, 91 L.Ed. 1399, 1425 (1947), the searcher and the search are otherwise confined to the objects specified in the magistrate’s warrant :

“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron, supra, 275 U.S. at 196, 48 S.Ct. at 76, 72 L.Ed. at 237.

So it is in this case that Detective Evans and Investigator Parker, standing at the top of the stairs and seeing across the attic what they correctly took to be the black carrying case in which the stolen photographic equipment was contained, all as described in the magistrate’s warrant, had a duty on the 19th to seize the case and inventory its contents and to report the results as the warrant required. They of course were authorized, as well, to seize, as in plain sight, the drug scales and the sawed-off shotgun. But the systematic search of the attic, the opening and rummaging of the desk drawers and the confiscation of their contents simply was not authorized by the Constitution or by the warrant which, pursuant to § 933.07, F.S. 1973, specified the property sought and commanded the officers “to search diligently for said stolen property described in this warrant; ... to seize and secure the same, and to make return of your doings . . ..” Alford v. State, 307 So.2d 433, 439 (Fla.1975).

The search' conducted on the 20th, pursuant to the second warrant obtained that day by Parker, was in all respects but one a repeat of the prior day’s search. The only variation was the opening and search of the locked blue metal trunk, which was found to contain a number of weapons. More incriminating material was mined from the desk, including an altered twenty dollar bill, a Columbian license plate, appellant’s passport, an “anarchist cookbook,” a “Mafia Contramafia” newsletter and a green envelope which was shown, by search under yet another warrant, to contain cocaine.

If it were necessary to pass on the validity of the second warrant as though it were not based almost entirely on the fruits of the general search conducted pursuant to the first, we would question whether it sufficiently described the objects for which the magistrate intended to dispatch the searchers. The only hints the searchers had from the face of the warrant were oblique references to unidentified “illegal contraband described in this warrant” and to “laws of the State of Florida” proscribing “possession of narcotics or dangerous drugs and/or any other illegal contraband.” We need not suppress the fruits of the second and third searches on that ground, however, for all of it was the fruit of the illegal first general search on the 19th.

Reversed.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting.)

I respectfully dissent.

As recited in the majority opinion, when the investigators reached the top of the stairs they saw the black case described in the search warrant and simultaneously observed in plain view a set of sensitive drug scales and a sa\yed-off shotgun. In my view those findings were such as to have required prudent and competent investigators to have searched further. They did. Had they failed to do so they would have been rightfully subject to criticism for dereliction of duty. In my view no constitutional rights have.been infringed upon this case. The able police officers should be complemented for their careful and thorough search which was initiated by a valid search warrant. I would affirm.


text:
    Mercedes M. RAMOS, Appellant, v. NORTHWESTERN MUTUAL INSURANCE COMPANY, and Lawrence J. Williams, Appellees.
    No. 75-150
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Grover, Ciment, Weinstein & Stauber, Miami Beach, for appellant.
    Stephens, Magill, Thornton & Sevier, Jeanne Heyward, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

-o . , .. , By this appeal we are called upon to review the final judgment, after a jury trial findinS that there was no ^erage by an insurance carrier because of the non-cooperation of the insured. In said final judgment, the trial court made the following findings of fact and conclusions of law:

“The foregoing cause came on before the Court for non-jury trial on the issue of insurance coverage, raised by way of defense to the principal action, and the Court having examined the pleadings and the evidence submitted by the respective parties, and being otherwise fully advised in the premises, makes the following findings:
“1. The plaintiff and Lawrence J. Williams, hereinafter referred to as WILLIAMS, were involved in a motor vehicular accident on November 28, 1969. At the time, WILLIAMS was the insured under a policy of automobile liability insurance issued by Northwestern Mutual Insurance Company, hereinafter referred to as NORTHWESTERN.
“2. On August 9, 1971, the plaintiff initiated this action against WILLIAMS and NORTHWESTERN.
“3. NORTHWESTERN answered plaintiff’s complaint alleging, among other things, that there was no coverage for WILLIAMS because of his failure to give NORTHWESTERN notice of the accident and his failure to cooperate with NORTHWESTERN.
“4. Actual service of process was never made upon WILLIAMS, notwithstanding valiant and persistent efforts by plaintiff’s counsel to locate WILLIAMS and effect such service.
“5. Upon appropriate motion the Court found that WILLIAMS was concealing his whereabouts and attempting to avoid service of process and, accordingly, impressed jurisdiction over WILLIAMS on May 2, 1974.
“6. The cause proceeded to trial, except as to the issue of coverage, on October 21, 1974, and verdict was returned for plaintiff in the sum of $52,037.00.
“7. NORTHWESTERN received notice of the accident from plaintiff’s counsel on December 29, 1969. However, WILLIAMS never contacted NORTHWESTERN, failed to report the accident, failed to notify NORTHWESTERN of his apparent changes of address and, despite efforts of NORTHWESTERN and plaintiff’s counsel, was never located.
“8. WILLIAMS breached the terms of the policy issued by NORTHWESTERN because of his total failure to cooperate. Further, the breach was material and substantially prejudiced NORTHWESTERN.
“It is, therefore, the opinion and judgment of this Court that WILLIAMS was not entitled to coverage under the policy and that NORTHWESTERN was correct in its denial of coverage. The plaintiff relies in part upon the case of American Fire and Casualty Company v. Collura, Fla.App.1964, 163 So.2d 784. Such reliance, however, is misplaced because there the insured notified his carrier of the accident and his whereabouts were known to all parties throughout the proceedings. Further, in considering the issue of cooperation in that case the Second District Court of Appeal stated at page 788:
“In considering the question of breach of a cooperation clause in an insurance policy, it must always be borne in mind that in order for the company to avoid liability by reason of the insured’s breach, the company must show that it has exercised diligence and good faith in bringing about the cooperation of the insured, and that it has in good faith complied with the terms and conditions of the policy, [cases cited] On the other hand, the insured is bound to cooperate with his insurer and to abide, both in letter and in spirit, with the terms of the contract; or he should at least be held to reasonably strict compliance with the terms thereof.’
“Here, not only did NORTHWESTERN exercise diligence in attempting to locate WILLIAMS but, also, was precluded by WILLIAMS’ concealment from ‘bringing about’ his cooperation. Moreover, WILLIAMS totally disregarded his own responsibility in the premises.” [Emphases supplied]
* * * * * *

Under existing Florida law, we conclude that the trial judge’s order should be affirmed. American Fire and Casualty Company v. Vliet, 148 Fla. 568, 4 So.Zd 862; American Fire and Casualty Company v. Collura, Fla.App.1964, 163 So.2d 784; Bordettsky v. Hertz Corporation, Fla.App. 1965, 171 So.2d 174; Anno. 60 A.L.R.2d 1146. However, the appellant has made a persuasive argument that because of the modern trend of requiring that motorists carry insurance [§ 627.733, Fla.Stat.; 7 Am.Jur.2d, Automobile Insurance, §§ 4, 6] insurance carriers are real parties in interest in automobile accident litigation. Stecher v. Pomeroy, Fla.1971, 253 So.2d 421; Godshall v. Unigard Insurance Company, Fla.1973, 281 So.2d 499; Allred v. Chittenden Pool Supply, Inc., Fla.1974, 298 So.2d 361. That, because of the mandatory requirements of the no fault insurance act adopted in recent years in Florida, these older decisions should be ignored and the law should be changed as a matter of public policy and a carrier should suffer the responsibility of finding its insured and, if it could not, it should then be required to respond for any damages within the limits of its policy to the injured innocent party and be left to its remedy by seeking indemnification from its insured.

In light of the Supreme Court’s opinion in Hoffman v. Jones, Fla.1973, 280 So.2d 431, we seriously doubt that we could change these decisions as a matter of public policy. However, we are going to certify this matter to the Supreme Court of Florida as one that passes upon a question of great public interest in that it determines that, notwithstanding recent developments in the law, an automobile insurance carrier may still be permitted to avoid liability pursuant to a provision in its contract requiring the insured to give his cooperation in connection with any claim of which the carrier would have responsibility under the contract.

Therefore, for the reasons above stated, the final judgment under review be and the same is hereby affirmed.


text:
    POLLY DAVIS CAFETERIAS, INC., a corporation, Appellant, v. RESTAURANT ASSOCIATES INDUSTRIES, INC., a corporation, et al., Appellees.
    No. 75-1140.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    Rehearing Denied Jan. 12, 1976.
   PER CURIAM.

Affirmed.


text:
    Frank Vetto SHABARECK, Petitioner, v. STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 75-1726.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1975.
    Rehearing Denied Jan. 12, 1976.
   PER CURIAM.

Certiorari dismissed.


text:
    DADE PIPE & PLUMBING SUPPLY, INC., a Florida Corporation, Petitioner, v. Charles E. BATZ, Jr. and the Florida Department of Commerce, Industrial Relations Commission, Respondents.
    No. 75-1772.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 1975.
    Rehearing Denied Jan. 13, 1976.
   PER CURIAM.

Certiorari dismissed.


text:
    STANWICK INTERNATIONAL, INC., and the Stanwick Corporation, Appellants, v. Chester G. BROWN, Jr., Appellee.
    No. 75-1031.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 12, 1976.
   PER CURIAM.

Affirmed.


text:
    Nathan H. KELLY, Petitioner, v. DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATIONS, State of Florida, Respondent.
    No. 75-1416.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 1975.
    Rehearing Denied Jan. 13, 1976.
   PER CURIAM.

Certiorari denied.


text:
    Jose de la FUENTE, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION OF the DEPARTMENT OF COMMERCE of the State of Florida, and Parts Depot Inc., of Miami, a Florida Corporation, Respondents.
    No. 75-1195.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1975.
    Rehearing Denied Jan. 14, 1976.
   PER CURIAM.

Certiorari denied.


text:
    Joseph Francis ROCHE, Sr., Appellant, v. Joyce Catherine ROCHE, Appellee.
    No. 75-1255.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Kenneth L. WINSLOW and Dow Corning Corporation, Appellants, v. Archie G. DAVIS and Marie S. Davis, his wife, Appellees.
    No. 75-491.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Rehearings Denied Feb. 2, 1976.
   PER CURIAM.

Affirmed.


text:
    James THORNTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-389.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    REDWING CARRIERS, INC., Appellant, v. Warren E. CRESSMAN, Appellee. REDWING REFRIGERATED, INC., Appellant, v. Warren E. CRESSMAN, Appellee.
    Nos. 75-526, 75-527.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Reconsideration Denied Jan. 29, 1976.
   PER CURIAM.

Affirmed.


text:
    AETNA CASUALTY & SURETY COMPANY, a Foreign Corporation, Appellant, v. DIXIE LIME & STONE COMPANY, a Delaware Corporation, and Trans Area Utilities Co., Inc., a Florida Corporation, et al., Appellees.
    No. 75-740.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    BEBER, SILVERSTEIN AND KILPATRICK ADVERTISING, INC., a Florida Corporation, Appellant, v. ALLMAND-NEWBY PRODUCTIONS, INC., Appellee.
    No. 75-473.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Bartolome P. COSTA, Appellant, v. Alicia COSTA, Appellee.
    No. 75-471.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Renee DAWSON, a single woman, Appellant, v. METROPOLITAN DADE COUNTY TRANSIT AUTHORITY, etc., et al., Appellees.
    No. 75-454.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Betty Jo BELL, Petitioner, v. The STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF SOCIAL AND ECONOMIC SERVICES, Respondent.
    No. 75-1911.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1976.
   PER CURIAM.

Certiofari dismissed.


text:
    CITY OF OPA LOCKA, a Municipal Corporation, Appellant, v. MAGNOLIA PROPERTIES, INC., etc., Appellee.
    No. 75-1200.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Joseph FORNI et al., Appellants, v. Leroy LEVY, as Executor of the Estate of William Gerstein, Deceased, and Rhoda Bouzek, formerly Rhoda Gerstein, individually and jointly, Appellees.
    Nos. 75-1072, 75-1103.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1976.
   PER CURIAM.

Appeals dismissed.


text:
    CY CLYDE, INC., Appellant, v. Jose JIMENEZ, Appellee.
    No. 75-2027.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Robert M. TRAUGOTT, Appellant, v. TEW, TEW, ROZEN & MURRAY, a Professional Association, Appellee.
    No. 75-1653.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    James E. ALLEN, Petitioner, v. James E. DAVIS and Florida Sanitarium & Benevolent Association, a Florida Corporation, Respondents.
    No. 75-1463.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1976.
   Certiorari dismissed.


text:
    CARLSBERG MOBILE HOME PROPERTIES, LTD., ’72, Appellant, v. Gil BLEVINS, d/b/a Gil Blevins & Sons, et al., Appellees.
    Nos. 75-394, 75-395 and 75-396.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 1976.
    Rehearing Denied Feb. 2, 1976.
   PER CURIAM.

Affirmed.


text:
    Joseph BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 75-796.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1976.
   Appeal dismissed.


text:
    Kenneth BLYTHE, Appellant, v. R. W. WILLIAMS et al., Appellees.
    No. 75-1909.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1976.
   Appeal dismissed.


text:
    Israel GUERRA, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1459.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    GULFSTREAM LAND AND DEVELOPMENT CORPORATION, Appellant, v. S. AND N. KURASH, INC., Appellee.
    No. 75-2293.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1976.
   Appeal dismissed.


text:
    Joyce Mathew HUBSHMAN, Appellant, v. Louis HUBSHMAN, Jr., Appellee.
    No. 75-1572.
    District Court of Appeal of Florida, Fourth Distinct.
    Jan. 7, 1976.
   Appeal dismissed.


text:
    Dorothy L. MITCHELL, Appellant, v. Richard CAPPADONA et ux., et al., Appellees.
    No. 75-1468.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1976.
   Appeal dismissed.


text:
    Thomas A. PRESTON, Appellant, v. Edward J. STACK, Sheriff In and For Broward County, Florida, Appellee.
    No. 75-379.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1976.
   Appeal dismissed.


text:
    STATE of Florida ex rel. Timothy Lee MORRIS, Relator, v. The Honorable Robert B. McGREGOR, Circuit Judge, Eighteenth Judicial Circuit, Respondent.
    No. 75-2276.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1976.
   Prohibition denied.


text:
    Charles E. WOODSBY, Appellant, v. GREAT AMERICAN MORTGAGE INVESTORS, a business trust organized under the laws of the commonwealth of Massachusetts, et al., Appellees.
    No. 75-1882.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1976.
   Appeal dismissed.


text:
    Roosevelt ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. Y-412.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1976.
   PER CURIAM.

Affirmed.


text:
    Larry BROWN, Appellant, v. STATE of Florida, Appellee.
    No. Y-240.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1976.
   PER CURIAM.

Affirmed.


text:
    Terry Wayne HAISTEN, Appellant, v. STATE of Florida, Appellee.
    No. Y-225.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1976.
   PER CURIAM.

Affirmed.


text:
    1178 DEVELOPMENT CORPORATION and Esther Brenner, Appellants, v. Felix PEREIRA and Herenia Pereira, his wife, Appellees.
    No. 75-1400.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Ira ROSENFELD, Appellant, v. ALY HANDBAGS, INC., a Florida Corporation, and Alberto Llodra, Appellees.
    No. 75-1523.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Miriam TOLEDO and Israel Toledo, Appellants, v. LEWIS & MURPHY REALTY, INC., Appellee.
    No. 75-1034.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    The WAHL CHILDREN et al., Petitioners, v. The Honorable James A. LENFESTEY, Judge of the Circuit Court of Hillsborough County, Florida, and Dennis Richard Wahl, Respondents.
    No. 75-1767.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 1976.
   Prohibition denied.


text:
    In the Interest of D. Q., a child.
    No. 75-644.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    CITY OF DELRAY BEACH, Florida, Appellant, v. SOMMERS AND MESSMER CONSTRUCTION COMPANY, INC., and Big Chief Wrecking Corporation, Appellees.
    No. 75-1414.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   Appeal dismissed.


text:
    Steven Lee COE, Petitioner, v. STATE of Florida, Respondent.
    No. 76-25.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   Hábeas corpus denied.


text:
    Billy Dean DePRIEST, Appellant, v. STATE of Florida, Appellee.
    No. 75-237.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    ELDER AGENCY, INC., a Michigan Corporation, and Stanley W. Elder, Appellants, v. George REUTER and Katherine Reuter, his wife, Appellees.
    No. 75-1236.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    Steve Taylor GERBERT, Appellant, v. STATE of Florida, Appellee.
    No. 74-1491.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    Jeffrey W. GRAFFIUS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1019.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    Samuel JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-716.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    Naomi E. KEENY, Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a body corporate, et al., Appellees.
    No. 75-252.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    Jimmie Ralph KNEE, Petitioner, v. Louie L. WAINWRIGHT, Secretary of Department of Offender Rehabilitation, Respondent.
    No. 76-14.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   Habeas corpus denied.


text:
    Kenneth Delbert LEMON, Appellant, v. STATE of Florida, Appellee.
    No. 75-533.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    Robert L. MORSE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-45.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    O. J. POWELL and J. Robert Stobs, as Successor Trustees and General Partners of West Dade X-Way, Ltd., Appellants, v. HOLIDAY GENERAL CORPORATION et al., Appellees.
    No. 75-1536.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Michael SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. 75-398.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Rehearing Denied Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Francis Jarad SCHULTZ, Petitioner, v. Ray E. HOWARD, Chairman, Florida Parole and Probation Commission, and William Roberts, Sheriff of Pinellas County, Florida, et al., Respondents.
    No. 76-39.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
   Habeas corpus denied.


text:
    Robert NUSHAWG and Mary Nushawg, his wife, Appellants, v. LINARDY FLOOR COVERING, INC., a Florida Corporation, and Bickert Construction, Appellees. Robert NUSHAWG and Mary Nushawg, his wife, Appellants, v. BICKERT CONSTRUCTION CO., INC., et al., Appellees. Robert NUSHAWG and Mary Nushawg, his wife, Appellants, v. G & M TILE TERRAZZO, INC., and Bickert Construction Co., Inc., Appellees. Robert NUSHAWG and Mary Nushawg, his wife, Appellants, v. BICKERT CONSTRUCTION CO., INC., Appellee.
    Nos. 74-1472, 74-1473, 74-1474 and 74-1475.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    William L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 75-401.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    Daisy Mae WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 74-516.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
   PER CURIAM.

Affirmed.


text:
    Butler L. YOUNG, Petitioner, v. Louie L. WAINWRIGHT, as Secretary of the Department of Offender Rehabilitation, Respondent.
    No. 76-38.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
   Habeas corpus denied.


text:
    CYNAMON BROTHERS & SONS, INC., Appellant, v. UNIFRAME INDUSTRIES, INC., Appellee.
    No. 74-168.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Ruth HILL, Appellant, v. Jean Carol LANGER, Appellee.
    No. 75-1700.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Dorothy ROBERTSON, Appellant, v. AUTOMOBILE SALES, INC., Appellee.
    No. 75-1403.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    John W. ASMUTH, Appellant, v. Sandra E. ASMUTH, Appellee.
    No. 75-472.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Dale P. BENTKOWSKI, Appellant, v. August VAGTS and Mathilda Vagts, his wife, Appellees.
    No. 75-330.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Sandra Jean CALLEJA, Appellant, v. Kent WILEY, V.M.D., Appellee.
    No. 75-325.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Paul F. CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-37, 75-38.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Joseph COLE et al., Appellants, v. FLORIDA CONSTRUCTION INDUSTRY LICENSE BOARD, Appellee.
    No. Z-427.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
   PER CURIAM.

Interlocutory appeal dismissed.


text:
    Eddie Bobby FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 75-388.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    John William HARVEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-479, 75-495.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Johnny HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-488.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Samuel WARD, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-873, 74-1004.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. Kevin A. STANLEY, Appellee.
    No. 75-1068.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Horace LOVETT, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 75-197, 75-198.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Willie SETTLE, Appellant, v. STATE of Florida, Appellee.
    No. 75-456.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Ronald A. NICHOLS, and Public Service Mutual Insurance Co., By Robin Harris, Attorney-in-Fact, Appellants, v. STATE of Florida, Appellee. James MILLER, and Public Service Mutual Insurance Co., By Robin Harris, Attorney-in-Fact, Appellants, v. STATE of Florida, Appellee. Harry D. JOHNSON, and Public Service Mutual Insurance Co., By Robin Harris, Attorney-in-Fact, Appellants, v. STATE of Florida, Appellee. Robert SLAUTER, and Public Service Mutual Insurance Co., By Robin Harris, Attorney-in-Fact, Appellants. v. STATE of Florida, Appellee. Heyward D. WITT, and Public Service Mutual Insurance Co., by Robin Harris, Attorney-in-Fact, Appellants, v. STATE of Florida, Appellee. Joseph SILVIE, and Public Service Mutual Insurance Co., By Robin Harris, Attorney-in-Fact, Appellants, v. STATE of Florida, Appellee.
    Nos. 75-299, 75-300, 75-301, 75-302, 75-303 and 75-305.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Lynn M. LoPUCKI, Trustee in Bankruptcy of Ryals Plumbing, Inc., Appellant, v. FIRST NATIONAL BANK OF GAINESVILLE, a banking corporation, Appellee.
    No. Y-453.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Ronald JACKSON and Joanne V. Jackson, his wife, Appellants, v. Mary Birt FRAZIER, Appellee.
    No. 75-643.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Reginald E. WILLIAMS, Appellant, v. Edward Roger WILLIAMS et al., Appellees.
    No. Y-323.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Lillian M. (Mathews) BRINK and the Gold Carriage, Inc., a Florida Corporation, Appellant, v. Evelyn S. (Hagler) HOWE, Appellee.
    No. 75-934.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Donald COOK, Appellant, v. STATE of Florida, Appellee.
    No. 75-540.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Lavelle FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1190.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Nathaniel JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-797.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    William H. KECK, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-289, 75-290 and 75-291.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. Ann L. BROWN, a/k/a Ann Loraine Brown, Appellee.
    No. 75-1200.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. F. L. T., Jr., a child, Appellee.
    No. 75-749.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Glen SUMMERS, Appellant, v. HARTSDALE ENTERPRISES, INC., d/b/a T. V. and Music Center, et al., Appellees.
    No. 75-1042.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Edward WYSOCKI, Appellant, v. SARGEANT CITRUS PRODUCTS, INC., Appellee.
    No. 75-903.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Thomas J. TSISTINAS, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-265 and 75-266.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1976.
   Appeal dismissed.


text:
    FLORIDA BANK & TRUST COMPANY OF DAYTONA BEACH, Appellant, v. Ray L. HOUGH, Appellee.
    No. 75-998.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1976.
   Appeal dismissed.


text:
    Virginia M. SPINNER, Appellant, v. Frank L. SPINNER, Appellee.
    No. 75-1155.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1976.
   Appeal dismissed.


text:
    Nancy Lou SWISTEK et al., Appellants, v. Lester F. NIXON et al., Appellees.
    No. 75-1323.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1976.
   Appeal dismissed.


text:
    Elidia H. GONZALES, Appellant, v. LEE COUNTY BANK, a Banking Corporation, Appellee.
    No. 75-1817.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
   Appeal dismissed.