author: DeCARLO, Judge.

text:
    Floyd BYRD v. STATE.
    4 Div. 602.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      E. H. Graves, Jr., Eufaula, for appellant.
    William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

On July 18, 1977, the grand jury of Barbour County indicted Floyd Byrd, charging:
“. . . Floyd Byrd, whose name is to the Grand Jury otherwise unknown, did assault with a deadly weapon William Petty, a peace officer of this State, while the said officer was engaged in the active discharge of his duty or duties, by shooting at him with a gun or pistol, . . .”

After a jury trial on August 10, 1977, Byrd was found guilty and sentenced to five years. Notice of appeal was given, and, on motion by retained counsel, bail was fixed and the execution of sentence was suspended.

The facts presented by the State in support of the indictment were, that on May 2, 1977, Officer William Petty, Jr., of the Clayton Police Department, was on routine patrol in a police car, and in uniform. He had stopped at a dry cleaners and, while talking to the proprietor, received a call over the car radio from Terry Gilmore. Petty was told to go to the Westville Courts housing project and pick up R. V. Jones for a bail bondsman in Eufaula.

Petty explained that he could not pick Jones up without a warrant. He was then instructed to call the bondsman. Petty returned to police headquarters, called the bondsman, and explained to him that he could not pick Jones up without a warrant, but would go to the project and ask Jones to call the bondsman.

It was approximately 9:30 P.M., when he arrived at the housing project. After delivering the message, he was driving on a street in the project, and noticed Floyd Byrd’s car was parked improperly on the street. The officer got out of his car, asked Byrd to park his car properly, then returned to his own car. After parking his car, Byrd walked over to the patrol car and stuck his hand inside. According to Petty, Byrd said: “Nigger, somebody is going to blow you up.” Petty responded: “Well, Floyd, I hope you be the lucky one.” Byrd shook his finger at the officer and Petty and reached to get his night stick from the floorboard. Petty struck the appellant on the hand. The officer then got out of his car and the two “kept swapping words.” The appellant then ran his hand in his pocket and pulled out a knife. Petty said to the appellant: “Floyd, put your knife back up before you make me do something I’ll be sorry about.”

The officer said they were both standing at the rear of the ear when the appellant said: “Don’t nobody like you, you aint nothing but a white man’s pimp.” The officer replied: “Well, Floyd, you break the law and that is it, white or black.” Petty recalled that it was about then that Charles Hall started walking down the sidewalk toward them, and he (Petty) unsnapped his holster, cocked his gun, and dropped it down beside his leg. As Petty continued to watch Charles. Hall, a third man at the scene caught the appellant by the arm and said: “Come on Byrd. Every dog got his day. I don’t like him anyway either.” Thompson, Hall and the appellant then left the scene.

Petty returned to his car and as he was driving through the project, about fifteen or twenty miles per hour, he heard a shot hit the passenger side of the car and shatter the glass. Petty said he grabbed his shotgun, got out and went to the rear of the patrol car, and fired. He testified that he returned fire in the direction from where the shot was fired, explaining that he saw a silhouette in a window of a man wearing a hat. Further, he said he recognized the hat because: “I had not too long ago talked to the man who had it on.”

During cross-examination, Petty said that at the time of his encounter with Byrd Martha Ann Eutsey was standing near a parked car, but after he drove off and returned to where the shooting occurred she was not there.

Petty also said that he had not had any prior difficulty with the appellant and that they had “gotten” along fine.

Two witnesses testified that they had heard the discussion between the police officer and the appellant. Both testified that Byrd had threatened to kill the officer.

Martha Ann Eutsey testified that she had heard the argument while standing near the police car. She said she overheard Byrd say to the officer: “I have been wanting your ass for a long time. You shot my dog.” According to Eutsey, Jeff Thompson, at that time, said something to the appellant and Officer Petty then drove off.

She stated that she then saw the appellant get out of a car with a “long gun” and walk to a nearby house.

Eutsey testified that she then went to a neighbor’s house and, after discussing the incident with some people she knew there, she left and went to her house. According to Eutsey, as she approached the house, she heard a “big boom” and then heard the sound of glass falling. She stated that she heard another shot and when she looked out the door she saw the appellant run by her house with a gun in his right hand. He told her to “be cool.”

During cross-examination, she said the appellant was her cousin and that she liked him.

Essie Mae White, also, heard the argument between the officer and the appellant. She testified that she asked the appellant what was going on and he said: “Willie Petty shot my dog a few years ago and I am going to kill his . ass.” She and the appellant returned to her house and she resumed her telephone conversation she had been engaged in. After she completed her telephone conversation, Jeff Thompson told her to: “Give me your gun because we’re going to kill the m. f.” White told Thompson that she was not going to give him her gun. She recalled that it was about that time that she heard a shot.

At the conclusion of White’s testimony the State completed its case and the defendant made a motion to exclude the State’s evidence on the ground that the State had failed to prove a prima facie case. The motion was overruled. The defendant then requested that the court grant the defendant a directed verdict again, on the grounds that the State had failed to make a prima facie case against the defendant. This request was also denied.

The defense called, as its first witness, Katherine Taylor. Taylor lived in the Westville Courts housing project in Clayton, Alabama, on the date the shooting occurred. She said that Floyd Byrd was in her apartment on the night in question and she went on to say that she did not hear any shooting.

Lillian Fountain was next called and said that she, too, lived in the housing project on the night the shooting occurred. She testified that at the time of the shooting she crawled into her bathroom and got into her bathtub. Subsequently she said that she went outside and talked to some people, among them Martha Ann Eutsey. According to Fountain, Eutsey told her that she was in the house at the time of the shooting.

During cross-examination, Fountain said that she did not know anything about the shooting and did not see it.

Willie Kinsey lived in the same apartment building with Lillian Fountain at the Westville Housing Project. According to Kinsey, immediately after he heard the shot fired, he went outside of his house and saw Martha Ann Eutsey and the appellant standing near a tree.

At the completion of Kinsey’s testimony, the defense rested and, after some rebuttal testimony, the case was submitted to the jury-

I

Appellant contends the trial court erred in taking judicial notice, that if the assaulted police officer was on patrol, he was on official business. Counsel argues that this was an essential fact in issue and was a “gross usurpation of the jury function and irreversibly prejudiced the rights of the appellant.”

The comments by the trial judge were found in the testimony as follows:

“Q All right. And where were you when you said you got this call?
“A I was over on East College Street at B. C. Britt’s Dry Cleaners.
“Q What was your purpose in being there?
“A I was just talking to him.
“Q Huh?
“A I was just talking to him.
“Q On official business?
“A Well, I wouldn’t call it official business. I was on my patrol.
“Q But, you stopped to talk to the fellow at the cleaners there?
“A Right.
“Q And were you on official business when you were talking with the man at the cleaners?
“A Well, there wasn’t no official business but I was on my patrol.
“Q Well, if it wasn’t official business, it wasn’t the town’s business was it?
“A (No audible response.)
“Q You wasn’t on business for the Town of Clayton were you when you stopped to talk to the gentleman at the cleaners were you?
“A (No audible response.)
“MR. REEVES: Your Honor, I think he is badgering the witness. He was on duty, he was in uniform performing whether it was on business or not.
“THE COURT: I think so. He said he was on his patrol.
“MR. GRAVES: I believe he said he wasn’t on official business, your Honor.
“THE COURT: If he is on patrol he is on official business. He said he was on patrol.
“MR. GRAVES: All right, sir. Your Honor takes judicial notice of that?
“THE COURT: I do take judicial notice of that.
“MR. GRAVES: All right, sir.”

The statutory crime form which the defendant is charged is set out in Code of Alabama 1975, § 13-1-42, and reads as follows:

“Whenever any peace officer or other law enforcement officer of this state or any political subdivision of this state shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to commit any assault with a deadly instrument upon such officer, and any person guilty of such assault with a deadly instrument shall be guilty of a felony and, upon conviction, shall be imprisoned in the penitentiary for not less than two years nor more than 20 years. (Acts 1967, No. 746, p. 1600, § 3.)”

Under this statute it is a matter of proof for the State to show that the assaulted police officer was on duty. Hopkins v. State, 51 Ala.App. 510, 286 So.2d 920. See Savant v. State, 54 Ala.App. 541, 310 So.2d 260.

In the instant case it is uncontro-verted that at the time Petty was assaulted he was a policeman for the City of Clayton, Alabama, in uniform, and driving a police car in the Westville Courts housing project, in the city of Clayton. The fact that Officer Petty had previously stopped at a cleaners and talked to someone there would in no way alter the fact that, at the time the shooting occurred, he was in a police car, in uniform, “cruising” a street in a housing project in Clayton, Alabama. Without question, the State met this burden of proof and showed that Petty was acting in his official capacity at the time of the assault. See Washington v. State, 57 Ala.App. 465, 329 So.2d 155.

As to the question of whether the trial court was in error in taking judicial notice of this particular fact, we note that the appellant failed to interpose a proper objection. Further, we have examined the record and nowhere does it indicate that an objection was ever made on this point, and there were no requests by appellant for corrective instructions to the jury. Without proper objection interposed, the question is not preserved for review. Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73; Adams v. State, 291 Ala. 224, 279 So.2d 488; Dendy v. Eagle Motor Lines, 292 Ala. 99, 289 So.2d 603; Rice v. Hill, 278 Ala. 342, 178 So.2d 168; State v. Boyd, 271 Ala. 584, 126 So.2d 225.

II

It is insisted that the trial court was in error when it denied the appellant’s motion to exclude the State’s evidence and when it failed to direct the jury to return a verdict for the defendant on the grounds that the State had failed to prove a prima facie case.

Counsel maintains that the indictment returned against Floyd Byrd charged him with assault upon “William Petty, a peace officer of this state.” He argues that the State proved only that Petty was an employee of the town of Clayton and not a peace officer of the State.

T. 14, § 374(20), Code of Alabama 1940, Recomp.1958,1973 Cum.Supp., now Code of Alabama 1975, § 13-1-42, which was recited above, states in the beginning:

“Whenever any peace officer or other law enforcement officer of this state or any political subdivision of this state . .”

Under this section we hold that Petty was a police officer for the City of Clayton, Alabama, which is a political subdivision of this State. Further, he was a law enforcement officer of a political subdivision, any assault upon him comes within the purview of § 13-1-42, supra. Wallis v. State, 51 Ala.App. 499, 286 So.2d 909; Bowens v. State, 54 Ala.App. 491, 309 So.2d 844; Duke v. State, 56 Ala.App. 163, 320 So.2d 96; Carlile v. State, 57 Ala.App. 398, 328 So.2d 648; City of Birmingham v. Richard, 44 Ala.App. 127, 203 So.2d 692; Alexander v. State ex rel. Carver, 274 Ala. 441, 150 So.2d 204.

Under the facts established by the State, it was sufficiently demonstrated that Officer Petty was an employee of the town of Clayton, engaged in his lawful duty, and the appellant, Byrd, assaulted him with a deadly weapon while Petty was so engaged. The trial court, under these circumstances, was correct in overruling the motion to exclude and refusing a directed verdict for the defendant.

Ill

The appellant next maintains the trial court committed reversible error by sentencing him to five years imprisonment, which he claims: “Is grossly excessive when the judgment of conviction was for a misdemeanor.” Appellant argues that the judgment entry tracks the wording of § 13-1-41, Code of Alabama 1975, which covers a misdemeanor assault only, and reads as follows:

“§ 13-1-41. Assault upon peace officer —Generally. Whenever any peace officer or other law enforcement officer of this state or any political subdivision of this state shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to commit any assault or assault and battery upon such officer, and any person guilty of such assault or assault and battery shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than $50.00 nor more than $1,000.00, or by imprisonment in the county jail for not less than 30 days nor more than one year, or by both such fine and imprisonment. (Acts 1967, No. 746, p. 1600, § 2.)”

Counsel strongly insists that due to the fact that the judgment entry tracked the above section of the Code, the appellant could only be sentenced under the misdemeanor statute.

The judgment entry shows as follows: “CONSIDERED AND ADJUDGED by the Court that Floyd Byrd, the said defendant, is guilty of Assault of Police Officer in Performance of His Duties, and the defendant, being in open Court, and being asked by the Court if he had anything to say why the sentence of the law should not now be pronounced upon him, says nothing. It is therefore, considered by the Court and it is the judgment and sentence of the Court that the said defendant, Floyd Byrd, be imprisoned in the penitentiary of the State of Alabama for the term of five (5) years.”

From the reading of the judgment entry, we see that there was a deletion of the fact that the assault was committed with a deadly weapon.

It is clear that in the present case, the assault on Officer Petty was, in fact, with a deadly weapon. Officer Petty, during his testimony, stated that he found a bullet lodged in the channel in the top of the window that had been blown out by the blast.

The distinction pointed out in Sharpe v. State, Ala.Cr.App., 340 So.2d 885, is inapplicable here. In Sharpe, the instrumentality was an aluminum chair and that presented the factual issue of whether or not the chair used could be considered a deadly weapon. In the case before us, it cannot be reasonably inferred that the object that struck Officer Petty’s patrol car was not fired from a deadly instrumentality.

Under these circumstances, § 13-1-41, Code of Alabama 1975, had no application. Lowe v. State, 54 Ala.App. 280, 307 So.2d 86. Further, based on this court’s opinion in Lowe, no lesser included offense exists if, in fact, the assault on the police officer was done with a deadly weapon. It is clear from the transcript of evidence that the circuit judge was referring to the felony assault statute. The arrest warrant, the appearance bond, and the indictment were all framed in the language of the felony statute. In fact, the circuit judge read the felony assault statute verbatim to the jury in his oral charge. Further, the jury’s verdict referred to the indictment.

Under the facts proved by the State, the jury in this case could by no stretch of the imagination, reason that the assault was not committed with a deadly weapon. We recognize the judgment entry did not include the words, “with a deadly weapon,” and we believe that this was either an oversight or a clerical error. It is hard to conceive there would be any doubt what crime Floyd Byrd was charged with, tried for, or what crime the jury ultimately convicted him for.

The deletion of the words, “with a deadly weapon,” did in no way deprive this appellant of a fair trial. His rights were fully protected and the verdict rendered by the jury was in accordance with the evidence submitted during the trial. However, in order to assure that the judgment entry conforms to the record as it stands, it is the opinion of this court that the case be remanded for proper sentencing.

IV

Finally, the appellant asserts that, because the judgment of conviction was dated erroneously, the adjudication of guilt was not valid. Appellant points out that he was tried on August 10, 1977, and was sentenced on the same day. That the judgment of conviction states August 9, 1977.

Counsel for the appellant is correct in his assertion that the dates were incorrect. The discrepancy in dates is an obvious clerical error, especially when viewed in the light of the other court records and the notice of appeal signed by appellant’s attorney.

We do not believe that the discrepancy in dates requires a reversal of this case because it in no way prejudiced the rights or deprived the appellant of a fair trial. However, these discrepancies can be corrected by the remand we have mandated in the foregoing paragraph.

After examining the record and transcript of evidence we find that the judgment is due to be affirmed and the cause remanded for proper sentencing.

AFFIRMED: REMANDED FOR PROPER SENTENCING.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Robert GRUBBS, Jr. v. STATE.
    6 Div. 799.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Hiram Dodd, Jr., Birmingham, for appellant.

      William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

This is an appeal from the judgment of the Circuit Court of Jefferson County denying the appellant’s petition for writ of habe-as corpus. The appellant is in custody pursuant to a rendition warrant issued by the Governor of Alabama ordering his return to the State of Michigan. In arguing for his release the appellant contends (1) that the allied papers accompanying the requisition warrant are insufficient and do not support the issuance of the rendition warrant and (2) that the appellant proved at his hearing that he was not a fugitive from justice.

The rendition warrant issued by the Governor of this State does not establish a prima facie case of legal detention for it states that the appellant “is charged by complaint and warrant” in the State of Michigan with the crimes of murder in the first degree and armed robbery. Hagamaker v. State, 354 So.2d 851 (Ala.Cr.App.1978); Lofton v. State, 46 Ala.App. 229, 239 So.2d 901 (1970).

When the rendition warrant is defective, as here, and there are allied papers in evidence, we look to them to determine their legal sufficiency to justify the issuance of the rendition warrant. Harris v. State, 257 Ala. 3, 60 So.2d 266 (1951); Aldio v. State, 44 Ala.App. 303, 208 So.2d 212 (1965).

There is no indictment or information in the supporting papers. The appellant was charged by a complaint made by Neil Schwartz, a Sergeant attached to the Homicide Division of the Detroit City Police Department. The complaint is made on “information and belief” before a judge of the Recorder’s Court. The substance of the complaint states that the appellant and two other named individuals

“COUNT I
while in the perpetration or attempted perpetration of a robbery did kill and murder one CLIFFORD WILLIAMS, a/k/a ‘Snowball’, contrary to Sec. 750.-316, M.C.L.A.
“COUNT II
did assault CLIFFORD WILLIAMS, aka ‘Snowball’ while armed with a dangerous weapon or an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, towit: a baseball bat, knife, pliers and hypodermic needle and did then and there feloniously rob, steal and take from the person of said CLIFFORD WILLIAMS, aka ‘Snowball’ or in his presence, United States Currency, contrary to Sec. 750.529, M.C.L.A.”
The warrant of arrest issued upon this complaint recites that
“AND WHEREAS on examination on oath of said COMPLAINING WITNESS by me, it appears to me that said crime has been committed and there is just cause to suspect that said Defendants) are guilty thereof; THEREFORE IN THE NAME OF THE PEOPLE OF THE STATE OF MICHIGAN, you and each of you are hereby commanded forthwith to arrest said Defendants) and bring them before this Court, to be dealt with according to law.
s/ Arthur J. Koscinski
Judge (or Acting Judge) of the Recorder’s Court of the City of Detroit”

The supporting papers also contain the statement of Sergeant Schwartz sworn to before the same judge of the Recorder’s Court. It recites that Ronald Wade Smith told Sergeant Schwartz, who is in charge of the murder investigation of Clifford Williams, alias Snowball or Junior, that the appellant, Willie B. Washington, and Dev-ery Grubbs robbed and killed Williams and hid his body. The statement recites the facts surrounding the robbery and murder which reveal that the informer, Smith, was present during both the robbery and the actual killing.

The appellant alleges that the complaint is insufficient to support the rendition warrant (1) because it is made by an investigating officer stating information not within his personal knowledge and (2) because there is no affidavit supporting the “information” based on the personal knowledge of the affiant.

A ‘complaint in the form of an “affidavit” properly sworn to is sufficient compliance with the Alabama statutes authorizing extradition upon the production of a copy of an affidavit made before a magistrate. Dinkelman v. State, 43 Ala.App. 177, 184 So.2d 845 (1966). We have gone to the record in Dinkelman. The complaint in that case is set forth below.

“STATE COMPLAINT
“THE STATE OF NEBRASKA Plaintiff vs. DAROLD DINKELMAN Defendant THE STATE OF NEBRASKA, COUNTY OF BUFFALO
)
) For REMOVAL OF
) MORTGAGED PROPERTY
^ Sec. 69-110
)
ss.
)
)
)
“Complaint made in the name of the State of Nebraska before Harvey M. Wilson, County Judge in and for said County this 13th day of May A.D., 1965, by the undersigned, Duane Hubbard, Deputy County Attorney, of said County, who being duly sworn on his oath, says that Darold Dinkelman late of said County, did on or about the 30th day of June 1964 in said County of Buffalo then and there being, the said Darold Dinkelman of Buffalo County, Nebraska, on or about the 15th day of June, 1964, in due form of law did mortgage, in writing to Midstate Finance Co. of Kearney, Nebraska, certain personal property, to-wit: household furnishings and 1 1957 Buick automobile; said above described mortgaged personal property being situated and kept in Buffalo County, Nebraska, and on or about the 30th day of June, 1964, during the existence of the lien created by said above described mortgage, then and there being, then and there in said Buffalo County, Nebraska, unlawfully, wrongfully, knowingly, and feloniously did remove and cause to be removed a part of the above described mortgaged personal property, to-wit: household furnishings and 1 1957 Buick automobile, out of and away from the said County of Buffalo, State of Nebraska; that the above described mortgaged personal property was situated and kept in the County of Buffalo, State of Nebraska, at the time said above described mortgage was given, and the said illegal and unlawful removal of a part of the above described mortgaged personal property from Buffalo County, Nebraska, was done by the said Darold Dinkelman with the intent to deprive Midstate Finance Co., owner of said above described mortgage, of their security, and to defraud them thereby, contrary to the form of the Statutes in such case made and provided, and against the peace and dignity of the people of the State of Nebraska.
Duane Hubbard
“Subscribed in my presence and sworn to before me, this 13th day of May A.D., 1965.
Harvey M. Wilson_
In and for Buffalo County,
Nebraska”

The present complaint does not contain a statement of facts but alleges only conclusions of law. The affidavit — complaint in Dinkelman recited facts.

“Complaint and affidavit are not convertible terms. But if the complaint sufficiently states the criminal charge and constitutes an examination so as to authorize the issuance of a warrant of arrest, and a jurat be attached, and it is properly certified by the magistrate, it will be essentially an affidavit in the meaning of the law.”
II J. Moore, A Treatise on Extradition and Interstate Rendition, § 553 (1891).

However the affidavit filed by Sergeant Schwartz does contain facts and does state the source of his information and grounds for his belief which were the subject of the complaint. Therefore the supporting papers properly show that the appellant was substantially charged with having committed a crime in the demanding state.

“Generally, an affidavit based on information and belief is insufficient where it does not give the source of the information or the grounds for the belief; but it has been held that an affidavit on information and belief is sufficient where it states the sources of information and the grounds of belief.”
35 C.J.S. Extradition § 14(8) (1960).

To the same effect see 31 Am.Jur.2d Extradition § 38 (1967).

The propriety of a warrant issued upon an affidavit based on hearsay has been established. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Cossette v. Florida, 221 So.2d 427 (Fla.App.1969). An affidavit similar to the present one was sufficient to authorize extradition in Tingley v. State, 34 Ala.App. 379, 41 So.2d 276 (1949).

Additionally we note that in Michigan a complaint may be filed on information and belief. § 767.3 M.C.L.A. People v. Birch, 329 Mich. 38, 44 N.W.2d 859 (1951); People v. Collins, 52 Mich.App. 332, 217 N.W.2d 119 (1974); People v. Luster, 34 Mich.App. 447, 191 N.W.2d 488 (1971). A warrant will be issued upon a finding of probable cause. § 767.4 M.C.L.A. When a complaint is issued the judge’s primary function is to determine if a crime has been committed and, if so, if there is probable cause to believe that the defendant committed it. People v. Duncan, 388 Mich. 489, 201 N.W.2d 629 (1972).

The complaint, supplemented by the affidavit, and warrant of arrest, complied with the Alabama statutes requiring “a copy of [any] affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon”. § 15-9-31 and § 15-9-33, Code of Alabama 1975.

II

The appellant’s second challenge to the legality of his detention is based on the conflict in evidence between the extradition papers and his own testimony that he was not present in the State of Michigan at the time the offenses charged were committed. He alleges that his testimony “positively refuted the contention of the State of Michigan that appellant was a fugitive from justice”.

This issue was best answered in State v. Curry, 2 Ala.App. 251, 56 So. 736 (1911).

“The most that can be said in behalf of the petitioner as to the evidence on the issue raised as to the fact of his being a fugitive from justice is that the evidence on that subject is in conflict. ‘The court will not discharge a defendant where there is merely contradictory evidence on the subject of presence in or absence from the (demanding) state, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused.’ Munsey v. Clough, 196 U.S. 364, 375, 25 S.Ct. 282, 285, 49 L.Ed. 515; Bruce v. Rayner [4th Cir.], 124 F. 481, 62 C.C.A. 501; McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121.”
Curry, 2 Ala.App. at 255, 56 So. at 736.

The judgment of the Circuit Court of Jefferson County in denying the appellant’s petition for writ of habeas corpus was correct and is affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM. BOYER, Judge.

text:
    HAWAIIAN INN OF DAYTONA BEACH, INC., a Florida Corporation, and Harkness-Pinkerton, Inc., a Florida Corporation, Appellants, v. ROBERT MYERS PAINTING, INC., a Florida Corporation, Appellee (two cases).
    Nos. FF-64 and FF-65.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1978.
    Opinion on Motion for Rehearing filed Oct. 9, 1978.
    William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for appellants.
    William A. Parsons of Gosney, Cameron & Parsons, Daytona Beach, for appellee.
   PER CURIAM.

By these consolidated appeals we are requested to review final judgments entered in two separate cases, each judgment being in favor of Robert Myers Painting, Inc. and against Hawaiian Inn of Daytona Beach, Inc. and Harkness-Pinkerton, Inc. Each judgment contained additional provisions declaring mechanic’s liens against properties owned by Hawaiian Inn of Daytona Beach, Inc. and providing for the foreclosure thereof.

The relevant facts are: Hawaiian Inn of Daytona Beach, Inc., owner, entered into a contract with Snead’s Construction Company as general contractor, to construct in accordance with plans and specifications provided by the owner’s architect, three motels, only two of which are involved in this appeal. The painting of the motels was subcontracted to Robert Myers Painting, Inc. Without either the customary change order, authorization from the architect or authorization from the owner the general contractor, Snead’s Construction Company and the subcontractor Robert Myers Painting, Inc., agreed upon the use of a paint, less expensive, different from that specified in the specifications. The specifications were clear and specific and did not contain the provision sometimes found for the use of materials “substantially equivalent or better”. The general contractor, Snead’s Construction Company, abandoned the projects whereupon Harkness-Pinkerton took over as general contractor. Robert Myers Painting, Inc. negotiated subcontract agreements with the new general contractor. The specifications (insofar as here material) remained unchanged. Neither did the subcontractor change the paint being used, which, as above stated, was not that called for by the specifications.

Appellee urges that the general contractor is the agent of the owner and that therefore the owner is bound by any changes agreed to by the general contractor. There is no evidence in the record before us to establish such agency.

When an owner avails himself of the services of an architect for the purpose of preparing plans and specifications and thereafter enters into a contract for construction in accordance with those plans and specifications the owner is entitled, in the absence of an agreed change, acquiescence or estoppel, neither of which are sustained by the evidence sub judice, to expect and require construction in accordance with the plans and specifications. It being clear from the record that the paint (and other materials, specifically caulking) used by the painting subcontractor was not as specified we find insufficient basis for the assertion and foreclosure of mechanic’s liens: The portions of the final judgments so providing, in favor of appellee Robert Myers Painting, Inc. and against appellant Hawaiian Inn of Daytona Beach, Inc. are reversed.

The relationship between the general contractor and subcontractor is quite another matter. The general contractor entered into a contract with the owner to complete the construction in accordance with • the plans and specifications. The owner was entitled to rely upon that contract. The general contractor, on the other hand, selected the subcontractors. It is the obligation of the general contractor to assure himself that the subcontractors are performing their contracts in accordance with the owner’s requirements as contained in the plans and specifications. Appellant Harkness-Pinkerton, Inc. failed so to do. It was fully aware of the requirements of the specifications, that there had beep no change order and that the materials being used by the subcontractor were not as required by the specifications. There is sufficient evidence in the record, though contradicted, apparently believed by the trier of fact, to sustain the final judgment in favor of Robert Myers Painting, Inc. against Harkness-Pinkerton, Inc. Those portions of the final judgments are therefore affirmed.

The motion for attorney’s fees filed by appellee pursuant to Section 713.29 is denied.

Affirmed in part and reversed in part.

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

ON MOTION FOR REHEARING

BOYER, Judge.

Following the filing of our opinion herein appellants, the Hawaiian Inn of Daytona Beach, Inc. and Harkness-Pinkerton, Inc. petitioned for rehearing and for clarification of our said opinion. Finding that further examination of the nine volumes of the record on appeal would be required for us to meaningfully consider the assertions of said petition, we sua sponte ordered appel-lee to respond to said petition “giving cites to the record in said response”. Appellee thereafter filed a paper entitled “Response to Petition for Rehearing” which, however, failed to meet the contentions and allegations of said petition and which failed to contain citations to the record as requested. Appellant thereupon filed a motion to strike the response, correctly pointing out that it did not meet the directions of this court’s sua sponte order but that it was, instead, a belatedly filed petition for rehearing. We have refrained from granting that motion but do observe that the response would have been of greater benefit to the court had it met the allegations of appellant’s petition and had it contained citations to the record, as directed. In so far as said response might be construed as a petition for rehearing, it was clearly untimely and is therefore denied. We do find, however, that appellant’s petition requires expansion and modification of our opinion.

By our original opinion we provided that those portions of the final judgments impressing mechanic’s liens and providing for foreclosure thereof were reversed. Appellant accurately brings to our attention that we overlooked and failed to consider that, in accordance with the reservation in the final judgments, the trial court thereafter entered supplementary cost judgments and judgments for attorney’s fees pursuant to F.S. 713.29 in favor of Robert Myers Painting, Inc. and against Hawaiian Inn of Day-tona Beach, Inc. and that the entry of those judgments was assigned as error. Having reversed the final judgments as to the imposition of mechanic’s liens and foreclosure thereof, we also reverse the subsequent judgments for attorney’s fees and costs.

It necessarily follows that pursuant to F.S. 713.29, Hawaiian Inn of Daytona Beach, Inc. having prevailed in the actions brought to enforce liens under part one of Chapter 713, Florida Statutes, it is entitled to recover a reasonable fee for the services of its attorneys, which shall be determined and taxed by the trial court upon remand.

Appellants’ petition for rehearing also emphasizes that appellant Harkness-Pinkerton, Inc. was not the original general contractor and that the record clearly reveals that a substantial amount of work had been performed on both motels involved on this appeal while Snead’s Construction Company was still on the job and appellee Robert Myers Painting, Inc. was looking to it for payment. Upon reexamining the record, we adhere to our recitations in our original opinion regarding the relationship between the general contractor (Harkness-Pinkerton, Inc.) and the sub-contractor (Robert Myers Painting, Inc.) including the finding that there is sufficient evidence in the record, though contradicted, apparently believed by the trier of fact, to sustain a final judgment in favor of Robert Myers Painting, Inc. against Harkness-Pinkerton, Inc. However, we now further find that the amounts of those judgments must be reversed for the reason that the record reveals that the learned trial judge failed to apportion the sums owed to Robert Myers Painting, Inc. in accordance with the amounts to which it became entitled prior to its sub-contract with Harkness-Pinker-ton, Inc. and thereafter. Although there is sufficient evidence in the cold record for us to make such apportionment, we have not had the benefit, as did the trial judge, of observing the witnesses, their manner and demeanor to determine the weight and the credibility to be accorded the several aspects of the conflicting evidence.

We accordingly, while adhering to our holding in our original opinion affirming judgments in favor of Robert Myers Painting, Inc. and against Harkness-Pinkerton, Inc., reverse the amounts thereof and remand to the trial judge for reconsideration.

Except as hereby modified, we adhere to our original opinion.

Affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

McCORD, C. J., and MELVIN, J., concur.


author: BOOTH, Judge.

text:
    SOUTHEAST FIRST NATIONAL BANK OF MAITLAND, etc., Appellants, v. LeGRACE COMPANY, INC., etc., et al., Appellees.
    No. HH-414.
    District Court of Appeal of Florida, First District.
    June 2, 1978.
    William A. Kledzik, Orlando, and Arthur B. Friedman, Altamonte Springs, for appellants.
    Deno P. Dikeou of Baldwin & Dikeou, Fern Park, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Volusia County, in a mortgage foreclosure proceeding denying appellant’s motion for a deficiency judgment against the appellee.

Southeast First National Bank of Mait-land, appellant, brought an action to foreclose a mortgage on real property located in Volusia County against LeGrace Corporation, by and through Eugene Lay and Frank L. White, as trustees and surviving directors of defendant, a dissolved corporation. The complaint alleged that the corporate defendant executed a note and mortgage in August of 1974, and various renewals of the note, but subsequently defaulted, owing some $20,000 principle plus interest. The complaint further alleged that defendants White and Lay executed the notes as endorsers guaranteeing payment in full of all obligations of the corporate defendant. Judgment was sought against the defendants for any deficiency after sale of the subject property.

Personal service was obtained and judgment by default entered. On April 12, 1977, final judgment of foreclosure and sale was entered. Notice of sale was published the same day. No notice of sale was given to either White or Lay.

The property was bid in by appellant for the sum of $100. Thereafter, appellant filed a motion for deficiency judgment attaching an affidavit showing the appraisal of the property to be less than $10,000.

The trial court denied the motion for deficiency judgment citing this Court’s decision in Barnett v. Barnett Bank of Jacksonville, 345 So.2d 804 (1st DCA 1977), wherein we held:

“While there appears to be a division of authority outside of Florida on this point, the District Courts of Appeal of the Second, Third and Fourth Districts have aligned themselves with the courts which hold that the failure of the secured party to give the requisite notice prior to sale or disposition of the collateral precludes an action for deficiency against the guarantor. We agree with these rulings.”

The failure to give notice of sale to White and Lay is contrary to the provisions of the notes executed by White and Lay on behalf of the corporate defendant and individually as guarantors. These notes provide that the “Uniform Commercial Code (Florida)” applies and state in pertinent part as follows:

“Bank will give borrower reasonable notice of the time and place of any public or private sale thereof. The requirement of reasonable notice shall be met if such notice is mailed; postage prepaid, to borrower at address shown on record of bank at least five days before the time of the sale or disposition.”

Thus, the agreement of the parties (1) refers to the Uniform Commercial Code which provides for notice to the debtor, Florida Statute § 679.9-504(3) and (2) specifies the time and method of notice to be given the debtor prior to sale of collateral.

Notice was required prior to sale in this case and the trial court did not abuse its discretion in refusing to enter a deficiency judgment against appellants in the absence of such notice. The purpose of notice of sale is as stated by this Court in Bondurant v. Beard Equipment Company, 345 So.2d 806 (1st DCA 1977), to enable the debtor to protect his interest by paying the debt, finding a buyer or being present at the sale to bid on property or have others do so to the end that the property is not sacrificed at sale for less than its true value. In the Barnett case, supra, this Court held that no basis exists for distinguishing a guarantor after default of the principle debtor, from “debtor” under Florida Statute § 679.9-504(3) insofar as entitlement to notice prior to sale of collateral.

Accordingly, the judgment below is AFFIRMED.

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

      . Since the Uniform Commercial Code is specifically made applicable by the agreement of the parties, the exclusionary provision of the Code, Florida Statute § 679.9-104, does not apply and the applicability, if any, of the UCC to real estate foreclosure suits generally is not at issue. See, Rucker v. State Exchange Bank, 355 So.2d 171 (1st DCA 1978).


author: HENDRY, Judge.

text:
    Alvin WARREN, as Executor of the Estate of Susan Sossin, Deceased, Appellant, v. Dr. Isaac COHEN, Dr. Jerome Benson and Employers Fire Insurance Company, Appellees.
    No. 77-1090.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.

      Spence, Payne & Masington, Podhurst, Orseck & Parks, Miami, for appellant.
    George V. Lanza, Coral Gables, Daniels & Hicks and Sam Daniels, Miami, for appel-lees.
    Before HENDRY, J., and CHARLES CARROLL (Ret.) and PARKER, J. GWYNN, (Ret.), Associate Judges.
   HENDRY, Judge.

Appellant/plaintiff appeals from a summary final judgment entered in favor of appellees/defendants in a wrongful death action.

Briefly stated, the record reveals that in 1973, Susan Marleaux sued appellees alleging the negligent diagnosis of her cancer. While the suit was pending, she married Marvin Sossin. In May of 1973, the case was settled for ONE HUNDRED, TWENTY-FIVE THOUSAND (125,000.00) DOLLARS. The Sossins executed a release in accordance with the settlement. In pertinent part, the release provides as follows:

“This Release extends and applies to, and also covers and includes all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist. The provisions of any State, Federal, Local or Territorial Law or Statute, providing, in substance, that releases shall not extend to claims, demands, injuries or damages, loss or liability, which are unknown or unsuspected to exist at the time, to the persons executing such release, are hereby expressly waived.
“This Release also extends and applies to and also covers the Insurers of ISAAC COHEN, M.D., JEROME BENSON, M.D., and JAMES W. McCREADY, Jr., M.D., to wit: EMPLOYERS FIRE INSURANCE COMPANY, and any and all persons for whom the above-named Insureds might be derivatably liable.
“The payment of the aforesaid sum, in full and final settlement of this matter, in no way admits liability and/or malpractice on the part of ISAAC COHEN, M.D., JEROME BENSON, M.D., JAMES W. McCREADY, JR., M.D., and/or their Insurer, EMPLOYERS FIRE INSURANCE COMPANY.
“IN WITNESS WHEREOF, We have hereunto set our hands and seals at Miami, Dade County, Florida, this 19th day of May, 1973.
Susan Marleaux Sossin (SEAL!
SUSAN MARLEAUX SOSSIN Marvin Sossin_(SEAL)
MARVIN SOSSIN Individually and as Husband and Wife”

Pursuant to the settlement, the personal injury action was dismissed with prejudice.

Mrs. Sossin died on November 18, 1974. In 1975, appellant, the deceased’s personal representative, brought the present wrongful death action against appellees, again alleging the negligent diagnosis of Mrs. Sossin’s cancer. Appellees answered and asserted as an affirmative defense that the prior release and dismissal with prejudice barred the action. Appellees subsequently moved for summary judgment. Said motion was denied, but later renewed and granted by a successor judge. From the entrance of the summary judgment, this appeal has been taken.

Appellant has stated the sole point on appeal as follows:

“Whether a release of a tortfeasor, executed by an injured person during her lifetime, and her husband, who married her during pendency of her claim, and then dismissal of her claim upon settlement, bar the subsequent claims of (1) her surviving minor children; (2) her husband; or (3) her estate, for her wrongful death, when the releasor later dies as a result of her injuries.”

After a careful analysis of the controlling principles of law, in light of the record, briefs and arguments of counsel, it is our opinion that, sub judice, the subsequently filed wrongful death action is barred by the release signed by the decedent prior to her death.

While we note a split of authority on the issue, it appears that Florida follows the majority view, i. e., a decedent’s release bars a subsequent wrongful death action. Boole v. Florida Power & Light Co., 147 Fla. 589, 3 So.2d 335 (1941); Ryter v. Brennan, 291 So.2d 55 (Fla. 1st DCA 1974), cert. den. 297 So.2d 836 (Fla.1974); also in accord is the federal rule, as pronounced in Mellon v. Goodyear, 277 U.S. 335, 48 S.Ct. 541, 72 L.Ed. 906 (1928) and Walrod v. Southern Pacific Company, 447 F.2d 930 (9th Cir.1971).

Notwithstanding the above, appellant persuasively argues that Florida’s wrongful death statute creates a separate “right of action” for the decedent’s survivors, independent of the “right of action” of the injured person who later dies. See Shiver v. Sessions, 80 So.2d 905 (Fla.1955) and Moragne v. State Marine Lines, Inc., 211 So.2d 161 (Fla.1968). Appellant contends that the survivor’s right of action never arises until the death of the injured person, and is a new, independent right of action, not subject to procedural bars (release) which would have precluded the deceased from maintaining a personal injury action during his or her life. In addition, appellant argues that, pursuant to Chapter 768, Florida Statutes (1977), the damages awardable to the deceased’s survivors on a wrongful death claim are not identical to those paid to the injured person or settlement, and thus, double recovery is avoided.

While We agree that a deceased’s “right of action” during his or her lifetime is separate and distinct from a survivor’s “right of action,” we nevertheless hold that a release executed by a deceased subsequently bars the beneficiaries from filing a wrongful death claim. Ryter v. Brennan, supra. To hold otherwise would be to undermine the public policy favoring the settlement of lawsuits and the express intent and language of the aforementioned release agreement.

Accordingly, the summary final judgment entered by the trial judge is affirmed.

Affirmed.

      . Majority view: Roberts v. Union Carbide Co., 415 F.2d 474 (3d Cir. 1969), applying New Jersey law; Schlavick v. Manhattan Brewing Co., 103 F.Supp. 744 (D.Ct.Ill.1952), applying Indiana law; Haws v. Luethje, 503 P.2d 871 (Okl. 1972); Hutton v. Davis, 26 Ariz.App. 215, 547 P.2d 486 (1976); Crockett v. Missouri Pac. R. Co., 179 Ark. 527, 16 S.W.2d 989 (1929); Fuller v. Atchison, T. & S. F. Ry. Co., 124 Kan. 66, 257 P. 971 (1927).
      Minority view: Brown v. Moore, 247 F.2d 711 (3d Cir. 1957), applying Pennsylvania law; Gilmore v. Southern Railway Company, 229 F.Supp. 198 (D.Ct.La.1964), applying Louisiana law; Montellier v. United States, 202 F.Supp. 384 (D.Ct.N.Y.1962), applying Massachusetts law; Phillips v. Community Traction Co., 46 Ohio App. 483, 189 N.E. 444 (1933); Robinson v. Leigh, 153 Cal.App.2d 730, 315 P.2d 42 (1957).


author: PER CURIAM. ANSTEAD, Judge,

text:
    John E. OVERLOOK and Lucille A. Overlock, Appellants, v. Edward L. MARSHALL, Appellee.
    No. 77-847.
    District Court of Appeal of Florida, Fourth District.
    Aug. 30, 1978.
    Rehearing Denied Oct. 16, 1978.

      Sheldon C. Kurland of Kurland & Ross, Fort Lauderdale, for appellants.
    James G. Kincaid, Ford Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH, J., and BASKIN, NATALIE, Associate Judge, concur.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

This is another case which involves a rather harsh application of the forfeiture provisions of the balloon mortgage statute, Section 697.05, Florida Statutes (1975). This statute mandates the forfeiture of interest, costs and attorneys fees and an extension of the terms of the mortgage, when a so-called balloon mortgage fails to contain on its face the following language in bold printing:

THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OR THE BALANCE DUE UPON MATURITY IS . TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE.

The mortgage here did contain the following language in bold printing:

THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OF PRINCIPAL AND ACCRUED INTEREST IS DUE ON JUNE 4, 1979.

In addition, at the top of the mortgage the following was printed in bold lettering: THIS IS A BALLOON MORTGAGE. This language does not conform to the statutory requirement in that it fails to contain the amount of the final payment. The mortgagor made only one payment of $135 and thereafter, relying on the balloon mortgage statute, paid only the principal portions of the monthly payments. The mortgagee refused to accept these lesser payments and sought foreclosure of the mortgage. The statute was pled in defense and ultimately the trial court entered a summary judgment in favor of the mortgagor because the mortgage did not contain the language referred to above, namely the amount of the final payment.

Both parties were represented by legal counsel in this transaction. There could be no doubt that everyone was on notice that the mortgage was a balloon mortgage. But because the amount of the last payment was not included in the bold language, the mortgagee not only forfeits interest and attorneys fees but the term of the mortgage is extended from three years to nine. It is difficult for me to believe that the legislature intended such a result under the circumstances of this case. It is inconceivable that Marshall did not know the amount of the last payment. Indeed it is inconceivable that he did not know that this was a balloon mortgage. Under these circumstances I would hold that there was such substantial compliance with the statute to prevent the imposition of the harsh penalties contained therein. This is surely a case contemplated by the Florida Supreme Court when it stated:

The forfeiture of interest is a stringent penalty and its application ought not extend to properties outside the purview of the statute.
Winner v. Westwood, 237 So.2d 151, 153-154 (Fla.1970).


author: BOYER, Acting Chief Judge.

text:
    BLUE CROSS OF FLORIDA, INC., Petitioner, v. Robert L. TURNER, Respondent.
    No. JJ-224.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1978.
    Rehearing Denied Oct. 31, 1978.
    Edward P. Nickinson, III and Dennis K. Larry of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Pensacola, for petitioner.
    Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for respondent.
   BOYER, Acting Chief Judge.

The issue presented by this petition for certiorari is whether attorney’s fees can be recovered under § 627.428, Fla.Stat. (1975), by a Florida resident insured under a group life insurance contract where a certificate of insurance, but not the actual policy, has been delivered to the insured in this state. Blue Cross seeks review by certiorari of a circuit court order affirming a county court’s award of attorney’s fees to Respondent Turner, who had obtained a judgment for hospital benefits under a group disability insurance contract entered into by the U. S. Civil Service Commission and Blue Cross. The parties stipulated that Turner had paid his premiums in Florida and had received a brochure or certificate in Florida making specific references to the contract. They stipulated further that the contract was administered by Blue Cross of Florida, Inc., and that a copy of the master contract entered into in Washington, D.C., had been provided to the Blue Cross office in Jacksonville for the purpose of administering the federal plan in this state.

Blue Cross claims that an award of attorney’s fees was precluded by § 627.401(2) because that subsection limits the applicability of Part II of the Insurance Code, which includes § 627.428, to insurance contracts “issued for delivery or delivered in this state.” The county court found that the policy of insurance was issued for delivery and delivered in Florida so that § 627.-401(2) did not preclude an attorney’s fees award. Blue Cross appealed that order to the circuit court, which found that delivery of the brochure or certificate to Turner was “equivalent to delivery of the policy itself” because the master policy was intended to cover Turner in Florida and “premiums were received and benefits paid with that in mind.”

Blue Cross contends in its petition here that Turner is entitled to an attorney’s fee award only if the certificate delivered to him constitutes a “policy” within the meaning of § 627.402. That section provides:

“627.402 Policy defined.
(1) ‘Policy” means written contract of or written agreement for or effecting insurance, or the certificate thereof, by whatever name called, and includes all causes, riders, endorsements and papers which are a part thereof.
(2) The word ‘certificate’ as used in this section does not include certificates as to group life or disability insurance or as to group annuities issued to individual insureds.”

Blue Cross argues that since the insurance contract Turner sued upon was a group disability insurance policy within the meaning of § 627.402(2), no policy or contract, or certificate which constitutes a policy, was delivered or issued for delivery to respondent in this state. Thus, Blue Cross urges, the circuit court’s conclusion that delivery in Florida of the certificate or brochure was equivalent to delivery of the policy was erroneous, and consequently § 627.428, allowing attorney’s fees did not apply to this case under § 627.401(2)

Turner makes two responses to Blue Cross’ argument. Citing the definition of “policy” contained in § 627.402(1), he first contends that the brochure delivered by Blue Cross here was a policy or at the very least one of the “papers which are a part thereof” included in the definition in § 627.-402(1). That argument is without merit.

His second argument is more persuasive. He contends that the contract in question here was in fact “delivered or issued for delivery in the state” since the master contract was delivered from Washington, D.C., to Jacksonville for the purpose of administering the plan locally. He notes that § 627.401(2) does not require that the policy or contract be delivered to the insured in this state, but merely that it be delivered in this state. Therefore he contends that § 627.401(2) does not restrict the applicability of the attorney’s fee statute in this case.

The Florida Supreme Court construed § 627.401(2) in Pan-American Life Insurance Company v. Diaz, 322 So.2d 549 (Fla. 1975). In Diaz, a Louisiana life insurance company issued an individual policy through its New Orleans office and delivered that policy to the insured who was then a citizen and resident of Cuba. Diaz later moved to Miami where his claim on the policy was made. The Supreme Court held there that the attorney’s fees provision of § 627.428 were not applicable to the suit since the policy involved there was neither issued for delivery nor delivered in this state. The circuit court found Diaz distinguishable from Turner’s case because Turner had been a Florida resident at the time he received his insurance, had paid his premiums in Florida, and had received a brochure in Florida. Blue Cross argues that that distinction is insignificant because if the Legislature had intended the residence of the insured to be a factor in determining the applicability of the attorney’s fee statute, it could have done so explicitly.

After a thorough review of the statutes involved here and the eases cited by the parties, we agree with the circuit court that attorney’s fees were appropriate here. We find that the delivery of the master policy to the Jacksonville Blue Cross office was sufficient to satisfy the requirement in § 627.401(2) that the policy be “issued for delivery or delivered in this state.” That conclusion is buttressed by the fact that Turner, unlike the insured in Diaz, was a Florida resident who received his insurance through a Florida employer, paid his premiums in Florida, received his certificate in Florida, and had his insurance administered by a Florida corporation. The circuit court’s order did not constitute a departure from the essential requirements of law.

The Petition for Writ of Certiorari is denied.

SMITH and BOOTH, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    CITY OF PANAMA CITY, Florida, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Northwest Florida Police Benevolent Association, Inc., Respondents.
    No. CC-420.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1978.
    Rehearing Denied Oct. 31, 1978.

      John-Edward Alley and Robert A. Hanu-del of Alley & Alley, Miami, Rowlett W. Bryant of Sales, Bryant, Daniels & Thompson, Panama City, for petitioner.
    Austin F. Reed, Ben R. Patterson, William E. Powers, Jr., Tallahassee, for respondents.
   MILLS, Acting Chief Judge.

The City of Panama City (City) petitions for review of an order of the Public Employees Relations Commission (PERC) certifying the Northwest Florida Police Benevolent Association (NFPBA) as the exclusive bargaining representative of a unit consisting of all police patrolmen and sergeants employed by the City.

Although numerous points were raised by the City, we find that none of the alleged errors requires reversal. We do think that some of the points deserve comment.

The City contends that it was improperly denied access to the authorization cards filed in support of the NFPBA’s petition for certification. The City’s requests to review the cards were made pursuant to Chapter 119, the Public Records Act. However, authorization cards are not subject to the free access provisions of the Public Records Act. United Faculty of Florida FEA/United v. Branson, 350 So.2d 489 (Fla. 1st DCA 1977). Access to authorization cards is limited by Section 447.307(2), and an employer, employee or employee organization is not allowed to inspect the cards unless one of the grounds specified in that subsection is alleged, in good faith, by the employer, employee or employee organization. School Board of Marion County v. PERC, 334 So.2d 582 (Fla.1976). The denial of the City’s requests to inspect the cards was not error.

The City points out that PERC’s decision determining the appropriate unit and ordering an election was issued over ninety days after the hearing officer’s report was submitted to PERC, and argues that this violated Section 120.59(1), Florida Statutes. Section 120.59(1) states:

“The final order in a proceeding which affects substantial interests shall be rendered within ninety days:
(a) After the hearing is concluded, if conducted by the agency,
(b) After a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer . . . .”

In certification proceedings, final agency action is the certification of the employee organization as the exclusive bargaining representative of the employees in the appropriate unit. Panama City v. Florida PERC, 333 So.2d 470 (Fla. 1st DCA 1976). Thus, under Section 120.59(1), within 90 days after the submission of the hearing officer’s report not only would the unit determination have to be made, but the employee organization would have to be certified. Although PERC should make every effort to meet the time limitations imposed by Section 120.59(1), we recognize that as a practical matter, the numerous steps that must be taken between the issuance of the hearing officer’s report and the certification of the organization make the time restraints almost impossible to meet.

We agree with the City that PERC violated Section 120.59(1), but we do not find that such violation impaired the fairness of the proceedings or the correctness of PERC’s action. Therefore, the violation does not require reversal. G & B of Jacksonville, Inc. v. State of Florida, Dept. of Business Regulation, Division of Beverage, 362 So.2d 951, (Fla. 1st DCA 1978).

The City also urges that PERC erred by failing to determine the status of the employees listed in the City’s application for determination of managerial or confidential employees. We again conclude that no reversible error occurred. Firstly, in its order defining the appropriate bargaining unit as consisting of sworn patrolmen and sergeants, PERC, in effect, ruled that patrolmen and sergeants were not managerial employees. Secondly, the employees who were included in the application for confidential/managerial status were not given notice or an opportunity to contest such designation. Thus, it would have been error for PERC to designate any of those employees as managerial/confidential. School Board of Marion County v. PERC, 330 So.2d 770 (Fla. 1st DCA 1976).

Finally, we observe that there is competent substantial evidence in the record to support PERC’s determination that a bargaining unit of sworn patrolmen and sergeants is an appropriate bargaining unit. We also observe that the employees in the unit voted unanimously, 47-0, to have NFPBA as their exclusive bargaining representative. Because we find that none of the asserted errors prejudiced the City, affected the fairness of the proceedings, or impaired the correctness of the final agency action, the City’s petition for review is denied and PERC’s order certifying the NFPBA as the exclusive bargaining representative for the designated unit is AFFIRMED.

SMITH and ERVIN, JJ., concur.


author: DANAHY, Judge.

text:
    Marjorie L. HALL, Appellant, v. Michael G. HALL, Appellee.
    No. 77-626.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1978.
    Rehearing Denied Oct. 13, 1978.

      Frank A. McClung, Brooksville, and Carl G. Rassler, Tampa, for appellant.
    Wayne O. Smith of Leavengood, Wallace & Smith, St. Petersburg, for appellee.
   DANAHY, Judge.

In this dissolution of marriage proceeding initiated by the husband, the wife contends that the awards of child support and alimony were so inadequate as to constitute an abuse of discretion. We agree.

The parties were married in 1962 when the husband was still in medical school in New Jersey. Until their first child was born, the wife worked in that state as a physical education teacher helping to put the husband through medical school. She has not worked since then, the parties having chosen to have her keep up their home and rear their two children, now 13 and 11 years of age.

Her desire is to continue fulltime in her primary responsibilities of homemaking and child guidance until the children reach their majority. She is 38 years of age and holds a college degree in physical education. She is, however, not certified to teach in Florida and to secure such a certificate would have to be away from the children and commute from Brooksville to either Gainesville or Tampa for retraining at a university in one of those communities. She has no outside income and her assets are insignificant.

The husband has'been a medical doctor for eight years and has a successful medical practice in Brooksville. He and two other physicians own Brooksville Medical Center in that community. Although the wife holds no interest in that property, she remains jointly liable with the husband on notes and mortgages totaling the sum of $155,000.

In the final judgment, the trial court divided a small amount of jointly owned real property and stock between the parties; granted the wife possession of the parties’ modest home and ordered the husband to pay monthly home mortgage payments, taxes and insurance in the amount of $176.10 during the minority of the children while they are in the custody of the wife; ordered the husband to pay some of the wife’s attorneys’ fees; awarded the wife $600 per month child support; and awarded her $300 per month rehabilitative alimony for three years, presumably to enable the wife to obtain a Florida teaching certificate so as to try to obtain employment in the Hernando County school system.

The wife’s detailed financial affidavit introduced into evidence, without objection or refutation, establishes combined expenses for herself and the children of $2,419 per month to maintain the standard of living enjoyed by them during the marriage of the parties. During the last few years the parties lived together, the husband provided $1,700 per month to run the household and in addition paid various other expenses including house repairs, family vacations, country club expenses, and mortgage, taxes and insurance on the house. After the husband left home and during the one-year pendency of this action, he contributed $1,400 per month toward household expenses and also paid the house mortgage, taxes and insurance and certain other bills which totaled about $250 per month.

At trial the husband professed a general inability to pay a combined amount of alimony and child support in excess of $1,000 per month. The evidence submitted to the trial judge shows that the husband’s taxable income from his medical practice over the past three years ranged from $60,000 to $70,000 per year. His financial affidavit lists only common personal expenses and he testified to no other significant expenses. He has been paying generous sums into his Keough retirement plan and in the year prior to the final judgment, his contribution to that account was between $6,500 and $7,500. There is nothing in this record to indicate he is not able to pay substantially more child support and alimony than that ordered by the trial court.

When considering the question of alimony, the primary criteria to be used by the trial judge in his determination of the award are the husband’s ability to pay and the needs of the wife, taking into consideration their shared standard of living during the marriage. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). Under the final judgment in the case at bar, the wife and children are compelled to live on an amount which is less than one-half the amount shown by the wife to be necessary to maintain the shared standard of living of the family which was established by the husband. The amount she will receive under the judgment does not even include any additional expenses which she would incur in travel and educational expenses should she attempt to attain a Florida teaching certificate. Because of her demonstrated need for more money to maintain a standard of living reasonably commensurate with that established by him and shared by the parties during the marriage, and his clear ability to pay more, her income from alimony, when combined with the award of child support, is so inadequate as to constitute a clear showing of abuse of discretion.

While we do not purport to tell the trial court what amount the husband should reasonably pay or how that amount should reasonably be distributed between child support and alimony, we do say that when the trial court refashions the awards hereafter, the combined amount should be no less than the $1,700 per month which the husband has contributed over the past several years of this marriage, in addition to the mortgage payments, taxes and insurance on the home of the parties.

The wife also contends that she should continue to remain at home with the children, particularly as they enter the important and formative years of their teens. She argues that this would continue the custom and plan established by the parties after the birth of their first child. Because this is so, she argues that the form of alimony should be permanent rather than rehabilitative and that in any event, a period of three years is unreasonable. Had the trial judge who heard the parties’ testimony and who considered all aspects of this case granted permanent alimony, we do not believe he would have been unreasonable in doing so. Walton v. Walton, 354 So.2d 464 (Fla. 1st DCA 1978). And had any one of us been sitting as a trier of fact, we may well have granted permanent alimony. But that is not the test on appeal and we may not substitute our judgment for that of the trial judge, absent a clear showing of abuse of his discretion.

An award of rehabilitative as opposed to permanent alimony, of course, presupposes a potential for self-support. Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974). The wife here is 38 years of age, in good health and, though not certified in Florida, holds a teaching degree which she utilized for a brief period prior to the birth of the parties’ first child. The trial judge correctly perceived the potential for her attaining a Florida teaching certificate through further educational effort and subsequent employment at some future time. After a period of retraining, then, her capacity for employment supports the use of the rehabilitative form of alimony to sustain her until that time when she can contribute toward providing a part if not all of the sums necessary to maintain a standard of living reasonably commensurate with that established by the husband during the marriage.

Having decided that the use of rehabilitative alimony was appropriate in this case, we do agree with the wife that a fixed period of three years at which time the door will slam shut constitutes an abuse of discretion under the facts on this record. The final judgment should direct that rehabilitative alimony will continue during the minority of the children and during a reasonable rehabilitation period thereafter. Thirteen years ago the parties felt it important that the wife remain at home to rear and guide these children. While there is no reason for the husband to support her for the rest of her life, we think the decision of these parents to provide these children with their mother’s full attention over the years should not be changed solely because their father now decides he wants to dissolve his marriage to their mother. Smithwick v. Smithwick, 353 So.2d 572 (Fla. 1st DCA 1977).

Finally, the wife asks us to reverse because the judgment failed to award her the husband’s interest in their home as lump sum alimony and because the judgment awarded her an insufficient amount of attorneys’ fees and costs. On the latter point, the husband says it was error to order him to pay any of the wife’s attorneys’ fees. We reject these arguments and find no abuse of discretion by the trial judge in his treatment of these provisions of the final judgment.

Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion.

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

      . We note that, although not applicable to this case, Ch. 78-339, Laws of Florida, which became effective June 19, 1978, lists specific factors which must be considered in determining an award of alimony. All of these factors have been taken into consideration in this case in applying the criteria set forth in Sisson v. Sisson.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Robert R. THOMAS, Appellee.
    No. 77-2021.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1978.
    Rehearing Denied Oct. 4, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Affirmed. See State v. Sepulvado, 362 So.2d 324 (Fla. 2d DCA 1978).

HOBSON, A. C. J., and BOARDMAN and RYDER, JJ., concur.


text:
    Howard L. CLARK et al., Appellants, v. Gertrude E. KENNEDY et al., Appellees.
    Nos. 77-512, 77-550, 77-551, 77-1176 and 77-1177.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Rehearing Denied Oct. 31, 1978.
    Judith H. Hayes and Eugene Heiman of Heiman & Heiman, Miami, for appellants Kennedy and Lockhart Realty.
    Donald J. Beuttenmuller, Jr., of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellees.
   PER CURIAM.

These are appeals from several final judgments and orders entered in actions involving a contract for the purchase and sale of real property. After a non-jury trial the trial court entered judgments and orders on the issues which contained detailed findings of fact and conclusions of law. Upon review of the record and a consideration of the arguments of the parties, this court is of the view that no error has been demonstrated. Accordingly, the orders and judgments on appeal are affirmed.

ANSTEAD, MOORE and BERANEK, JJ., concur.


text:
    Stanley H. SIMMONS and Jane Anne Simmons, Appellants, v. Billy OWENS, Appellee.
    No. HH-323.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1978.
    Rehearing Denied Oct. 31, 1978.
    Terry P. Lewis, Tallahassee, for appellant.
    Carl R. Pennington, Jr., and Davisson F. Dunlap, Jr., of Pennington, Wilkinson & Sauls, Tallahassee, for appellee.
   MILLS, Acting Chief Judge.

The Simmons filed a complaint against Owens alleging that: Owens, a building contractor, constructed and sold a house to Snead; Owens negligently constructed the house contrary to the City of Tallahassee building code in that the clearance between the wood siding on a portion of the house and the ground was less than six inches; the defect was a latent defect which was not discoverable by reasonable inspection and was not discovered by Snead; the Simmons purchased the house from Snead; the latent defect was not readily discernable and was not discovered upon reasonable inspection by the Simmons; as a proximate result of Owens’ negligence, the Simmons’ house was damaged by water rot and termite infestation. They sought damages.

Owens moved to dismiss the complaint for failure to state a cause of action. The trial court granted the motion because the complaint failed to allege facts disclosing a dangerous condition or unreasonable risk to third persons. The Simmons appeal contending the trial court erred. We agree and reverse.

The general rule is that a building contractor is not liable for injuries to third parties occurring after he has completed a building and it has been accepted by the owner. Slavin v. Kay, 108 So.2d 462 (Fla.1959). This rule is subject to the exception that a contractor is not relieved of liability where he creates a dangerous condition or unreasonable risk which is latent and not discoverable by reasonable inspection. Sla-vin, supra.

In Forte Towers South, Inc. v. Hill York Sales Corp., 312 So.2d 512 (Fla.3d DCA 1975), the initial building owner brought suit against the contractor for negligent construction. It was alleged that the contractor negligently installed an air conditioning system. The defect was latent and was not discoverable by reasonable inspection. The Court concluded that a jury issue was raised as to whether the contractor was liable for damages to the building. There is no logical reason why this rule should not apply to a subsequent purchaser of the building.

The facts alleged in the complaint before us disclose a latent dangerous condition or unreasonable risk created by the contractor. Because Owens failed to comply with the City of Tallahassee building code, he created a latent condition or risk in the structure of the house that later caused water rot and termite infestation. Due to the negligent construction of the house it was damaged and repairs were required. These allegations state a cause of action. What the proof will show at subsequent discovery proceedings or at trial we do not know. But we are not concerned with that at the pleading stage.

Owens argues that no right of action exists in favor of a remote purchaser of a used house against the original contractor. The cases relied on by Owens are not applicable to the case before us. Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), holds that the first purchaser of a new house may sue the contractor for breach of implied warranties of fitness and merchantability. Oliver v. City Builders, 303 So.2d 466 (Miss. 1974); Utz v. Moss, 31 Colo.App. 475, 503 P.2d 365 (1972) and Duncan v. Schuster-Graham Homer, Inc., 563 P.2d 976 (Colo. App.1977), hold that remote purchasers of houses may not sue the contractor under the theory of implied warranty. We are concerned with whether a remote purchaser of a used house may sue a contractor on the theory of negligence.

Owens fails to refer us to a single case which holds that the purchaser of a used house may not sue the contractor for negligent construction where a latent defect causes damage to the house.

We must be realistic. The ordinary purchaser of a home is not qualified to determine when or where a defect exists. Yet, the purchaser makes the biggest and most important investment in his or her life and, more times than not, on a limited budget. The purchaser can ill afford to suddenly find a latent defect in his or her home that completely destroys the family’s budget and have no remedy or recourse. This happens too often. The careless work of contractors, who in the past have been insulated from liability, must cease or they must accept financial responsibility for their negligence. In our judgment, building contractors should be held to the general standard of reasonable care for the protection of anyone who may foreseeably be endangered by their negligence. Prosser, Torts, p. 519 (2d ed. 1955). But this is for our Supreme Court to decide. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We urge it to do so.

“. . . The law should be. based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times. Ancient distinctions which make no sense in today’s society and tend to discredit the law should be readily rejected.” Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972).

The allegations of the complaint dismissed by the trial court are sufficient to state a cause of action. To hold otherwise would result in the anomaly of fault without liability and wrong without a remedy, contrary to our sense of justice and directly conflicting with the express mandate of the Florida Constitution, Declaration of Rights, that “every person for any injury done him shall have remedy . . ..” Slavin v. Kay, 108 So.2d 462 (Fla.1959).

We reverse the final order appealed and remand to the trial court for further appropriate action.

ERVIN, J., concurs.

BOOTH, J., dissents.


author: ERVIN, Judge.

text:
    W. R. TOLAR, Appellant, v. SCHOOL BOARD OF LIBERTY COUNTY, Florida, Appellee.
    No. JJ-179.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1978.
    Rehearing Denied Oct. 31, 1978.
    Robert J. Vossler, Tallahassee, for appellant.
    Clinton E. Foster, Panama City, for ap-pellee.
   ERVIN, Judge.

In this interlocutory appeal Tolar seeks reversal of the lower court’s order which denied his motion for summary judgment. The parties are in agreement there is no genuine issue of material fact in dispute. Tolar brought an action seeking injunctive relief to set aside and declare void an action of the School Board of Liberty County which abolished his position as director of administration. He contends the Board’s decision was made during secret meetings, which culminated in the public decision of January 4, 1977 to terminate the position. The Board admits that a majority of its members agreed with the superintendent’s suggestion to so act at one of its non-public meetings, but argues that the legislature, in enacting the sunshine law, Section 286.-011(1), Florida Statutes (1975), did not require that an otherwise proper formal action of a public body be invalidated because the subject of that formal action was discussed at a prior unannounced meeting.

We agree with the Board’s contention. Tolar’s position was created by the School Board. As such, it could be abolished within the Board’s discretion after proper notice was given to the affected party. The Board’s power to discontinue positions is derived from sections 230.03(2), 230.22, 230.23(4), (5) and 230.35, Fla.Stat. (1975). Tolar advances no argument that the Board acted arbitrarily, with impermissible motives or otherwise in violation of the school code. Compare Mitchell v. School Bd. of Leon Cty., 347 So.2d 805 (Fla. 1st DCA 1977). His sole argument is directed to an alleged violation of the sunshine law, and he relies primarily upon certain language in Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla.1974), which states:

One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance.
$ * % sfc # ‡
Mere showing that the government in the sunshine law has been violated constitutes an irreparable public injury so that the ordinance is void ab initio. Times Publishing Co. v. Williams, 222 So.2d 470 (Fla.App.2d 1969). Florida Law Review, Government in the Sunshine by Ruth Mayes Barnes, Vol. XXIII, p. 369 (Winter 1971).

Unquestionably the action taken in secret was a technical violation of the statute which prohibits “any resolution, rule, regulation or formal action to be considered binding except as taken or made at such meeting.” (e.s.) Unlike statutes from other states, for example, Ark.Stat.Ann. § 12-2805 (1968); Cal. Gov’t Code § 54957 (West 1966), Section 286.011 does not except personnel matters from disclosure. The statute has been criticized as being overly broad in that regard. In opening all personnel considerations to public observation, “innocent . . . personnel may be ruined for life or their character assassinated if hearings relating to charges of misconduct are aired publicly and prove to be ill-founded.” Times Publishing Co. v. Williams, 222 So.2d at 474. Absent any constitutional right of privacy considerations, cf. Laird v. State, 342 So.2d 962 (Fla.1977); News-Press Pub. Co. v. Wisher, 345 So.2d 646 (Fla.1977); Harless v. State ex rel. Schellenberg, 360 So.2d 83 (Fla. 1st DCA 1978), there appears to be no impediment to disclosure.

Notwithstanding the violation of the act’s . provisions, it should be noted that the author of the majority’s decision in Gradison, Justice Adkins, while dissenting in part to an earlier opinion of the court in Bassett v. Braddock, 262 So.2d 425 (Fla.1972), concurred in that part of the court’s opinion holding valid an act of a school board which met in secret and elected a school board chairman. Later the Board held an open meeting and by voice vote ratified its prior action. Justice Adkins’ concurrence stated:

Although in my judgment the election of the Chairman by secret ballot was contrary to the spirit and letter of the government in the sunshine law, the subsequent election of the Chairman by voice vote in this instance should not be upset. The reasons for this view is that regardless of the prior violation of the statute, the Board members were at liberty to choose a Chairman of their choice by voice vote at a public meeting. This action should not be disturbed, although it may well be argued that it is the fruit of the illegal prior action. Id. at 431.

Here the Board members were at liberty to abolish the position of director of administration by voice vote at a public meeting. Tolar was given both notice of the meeting and an opportunity to express his views prior to the vote. We do not feel that the Board’s decision should now be disturbed.

AFFIRMED.

MILLS, Acting C. J., and BOOTH, J., concur.

      . Section 286.011(1) states:
      All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation, or formal action shall be considered binding except as taken or made at such meeting.

      . At least one commentator has suggested that the statute be amended by excluding from public disclosure deliberations concerning the appointment, employment, or dismissal of public officers. Kalil, Florida Sunshine Law, 49 Fla. Bar.J. 72, 79 (1975).

      . Justice Dekle, in Bassett, speaking for the majority, wrote: “In this particular instance, any initial violation by secret written ballot was cured and rendered ‘sunshine bright’ by the corrective open, public vote which followed.” Id. at 428-429.


text:
    Dale Allen STIERWALT and Gains Alfred Redman, III, Appellants, v. STATE of Florida, Appellee.
    No. 77-1886.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 1978.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellants’ convictions of unlawfully bringing a controlled substance into Florida, to-wit: cannabis, in violation of Section 893.13(1)(d), Florida Statutes (1976). Although the maximum permissible sentence for this offense is five years, the trial court sentenced appellants to three years incarceration at hard labor to be followed by seven years probation. We therefore reduce the sentence imposed to three years incarceration to be followed by two years probation [Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976)], and strike the “hard labor” provision [Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974)].

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


text:
    Frances Rebecca NASH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2116.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Nov. 2, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

The trial court, in a criminal prosecution, excluded a prospective defense witness for violation of the rule of sequestration without complying with the procedures and principles laid down by the Supreme Court of Florida in Dumas v. State, 350 So.2d 464 (Fla.1977).

Therefore, the conviction must be reversed, with directions to grant the appellant a new trial.

Reversed and remanded, with directions.

      . The penalty for violation of the sequestration rule in criminal cases is different from that in civil cases, because of the constitutional right of an accused to present witnesses in his defense. (Sixth and Fourteenth Amendments to the United States Constitution.)

      . It is noted that the trial court did not have the benefit of this opinion at the time he made his ruling.


author: MOORE, Judge. ANSTEAD, Judge,

text:
    Dianne Lynn MATTINGLY, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 76-1312.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.
    Rehearing Denied Oct. 31, 1978.

      Joe N. Unger of Law Offices of Joe N. Unger, Podhurst, Orseck & Parks, Miami, and Wolfson, Diamond, Logan & Edge, Miami Beach, for appellant.
    Michael D. Stewart and M. Jerome El-more of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee.
   MOORE, Judge.

In this appeal we are called upon to review the provisions of the uninsured motorist statute, Section 627.727(1), Florida Statutes (1975). The appellant Dianne Lynn Mattingly, is seeking reversal of an adverse summary judgment on the issue of the amount of coverage provided to her in a policy issued by the appellee, Liberty Mutual Insurance Company.

The parties agree that there are no factual disputes. Dianne Mattingly leased a motor vehicle from Terry Auto Leasing, Inc. for a term of 34 months. By the terms of the lease liability insurance was provided on the leased vehicle by Terry. The insurance provided was written by Liberty Mutual in a policy issued to Ford Motor Company. Ford leased motor vehicles to Terry who in turn leased the vehicles to members of the public, in this case Dianne Mattingly. No reference to uninsured motorist coverage was contained in the lease between Terry and Mattingly; however, it is undisputed that the terms of the Liberty Mutual policy provide uninsured motorist coverage for Mattingly. The sole question iii this appeal is the amount of such coverage.

The policy in question was first issued to Ford in 1965 and provided liability coverage in the amount of $100,000.00-$300,000.00 and uninsured motorist coverage in the amount of $10,000.00-$20,000.00. From the beginning, Ford’s instructions to Liberty Mutual were to provide uninsured motorist coverage only for those states which require it and in the minimum amounts allowed by law. In essence then, Liberty Mutual was responsible for keeping the policy in compliance with the law of the various states. The liability limits in the policy remained the same.

Pursuant to her interpretation of Section 627.727(1), Dianne Mattingly claimed uninsured motorist coverage equal to the limits of the liability insurance after she had had an accident with an uninsured motorist. In a final declaratory judgment the trial court held that she was entitled to a maximum of $10,000.00 in uninsured motorist coverage under the terms of the insurance policy which covered the automobile she had rented.

Section 627.727(1) reads as follows:

“627.727 Automobile liability insurance; uninsured vehicle coverage; insolvent insurer protection.—
(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle, shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in not less than the limits of the liability insurance purchased by the named insured for bodily injury, or such lower limits complying the company’s rating plan as may be selected by the named insured, under provisions filed with and approved by the department, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage; and provided further, that when a vehicle is leased for a period of one year or longer and the lessor of such vehicle by the terms of the lease contract provides liability coverage on the leased vehicle in a policy wherein the lessee is a named insured or on a certificate of a master policy issued to the lessor, the lessee of such vehicle shall have the sole privilege to reject uninsured motorist’s coverage.
. ” (Emphasis added).

This statute required uninsured motorist coverage to be provided in an amount equal to, or exceeding, the policy’s limits for personal injury liability unless rejected by any insured named in the policy and then only to the extent of such rejection or in such amount as may have been selected by the named insured. As noted above, the statute also addresses the problem of a long term lessee wherein the lessee is a named insured or named on a certificate of a master policy issued to the lessor, in which case the lessee has the sole privilege of rejecting uninsured motorist coverage. It was thus appellant’s contention that she, and only she, could have rejected the uninsured motorist coverage. Because she did not reject such coverage she was, therefore, entitled to the maximum limits provided for personal injury liability. We disagree.

Appellant was neither a named insured nor was she listed on a certificate of a master policy issued to her lessor. She did not therefore have the legislatively created privilege to reject uninsured motorist coverage. As an additional insured under the policy issued by the appellee, the appellant was afforded uninsured motorist coverage in the amounts selected by appellee, Ford Motor Company, which, as the named insured, was the only party privileged to select coverage in a lesser amount.

Although not directly on point this interpretation of the statute is consistent with the principles set forth in Guardado v. Greyhound Rent-A-Car, Inc., 340 So.2d 510 (Fla. 3d DCA 1977); Morpurgo v. Greyhound Rent-A-Car, Inc., 339 So.2d 718 (Fla. 1st DCA 1976), and Kohly v. Royal Indemnity Co., 190 So.2d 819 (Fla. 3d DCA 1966), cert. den., 200 So.2d 813 (Fla.1967). “The problem is one for legislative action, not judicial fiat.” Kohly at 822.

Accordingly, the judgment of the trial court is affirmed.

CROSS, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

Section 627.727(1) provided in part at the time in question:

and provided further, that when a vehicle is leased for a period of one year or longer and the lessor of such vehicle by the terms of the lease contract provides liability coverage on the leased vehicle in a policy wherein the lessee is a named insured or on a certificate of a master policy issued to the lessor, the lessee of such vehicle shall have the sole privilege to reject uninsured motorist’s coverage.

I believe that this portion of the statute expresses a clear intent by the legislature, in cases of long term leases of automobiles in which liability coverage is provided to grant the lessee the exclusive right to select the amount, if any, of uninsured motorist coverage. Here, the lessee, Dianne Mat-tingly, had the exclusive right to reject, in whole or in part, the uninsured motorist coverage. She had the sole right to determine the amount of such coverage. But it is undisputed that she was not advised of the options available and she did not reject such coverage in whole or in part. Accordingly, the policy should be deemed as a matter of law to provide coverage in not less than the limits of the liability insurance, in this case $100,000.00-300,000.00.

The majority states that Mattingly was neither a named insured or on a certificate of a master policy issued to the lessor. How else did Mattingly receive coverage under the policy issued to Ford? By the terms of the lease Terry provided liability insurance to Mattingly. A fee was charged. Terry in turn paid Ford to provide liability insurance for Terry’s lessees. The parties all agree that this coverage was provided to Terry’s lessees, here Mattingly, by the Liberty Mutual master policy. The majority is simply allowing the device of a sub-lease to defeat the clear intent of the legislature.

The majority also relies on the statutory provision that the uninsured motorist coverage may be in:

such lower limits complying with the company’s rating plan as may be selected by the named insured, under provisions filed with and approved by the department, .

And the even further language:

provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage .

I recognize there is some conflict between these provisions and the later provision regarding leased vehicles. However, I believe the later and clearly expressed provision giving lessees the sole privilege to reject the coverage is controlling. I also believe that this interpretation is in accord with the public policy considerations relied on by the legislature in enacting this statute.

Under the majority holding, the requirement for uninsured motorist coverage on leased vehicles is rendered virtually meaningless since the lessor as either “the named insured” or as “any insured named in the policy”, can reject the coverage notwithstanding the legislature’s grant of the right solely to the lessee. Likewise the purpose of the statute can be defeated by the use of sub-leases as was involved here.

      . Lumbermen’s Mutual Casualty Company v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978).


text:
    Julian S. MANGUM, Sr., Ida Frances Mangum, and Julian S. Mangum, Jr., Petitioners, v. STATE of Florida, DEPARTMENT OF REVENUE, et al., Respondents.
    No. 78-514.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.
    Rehearing Denied Nov. 2, 1978.
    Julian S. Mangum, Sr., pro se.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

DOWNEY, C. J., and MOORE and BER-ANEK, JJ., concur.