author: HOBSON, Acting Chief Judge.

text:
    Raymond JOHNSON, a minor, by and through his Mother and next friend, Violet Johnson, Appellant, v. Douglas BATHEY, Individually, Mercy Bathey, Individually, and Naples Limitee, Inc., a Florida Corporation, Appellees.
    No. 76-503.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.

      G. Holdt Garver of Thornes & Garver, and Fred L. Gillette, Jr. of Parks, Gillette, White & Manz, Naples, for appellant.
    Patrick E. Geraghty and Kempton P. Logan of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee, Naples Limi-tee, Inc.
   HOBSON, Acting Chief Judge.

In this appeal, arising out of an accident on defendant/appellee’s agricultural property, the plaintiff/appellant asserts the trial court erred in granting summary judgment for the defendants. Plaintiff specifically assails entry of such a judgment in a case predicated on negligence involving theories of attractive nuisance and dangerous instrumentality.

The plaintiff, a minor of nine years of" age, was playing hooky on the day of the accident herein. He was accompanied by his 13V2 year old brother. The accident which caused the injury occurred at approximately 12:00 noon on the day in question. Both boys were on their way to a packing house which was on farm land leased by the defendant Bathey to the farming operator, the defendant Limitee. The purpose of this trip was to pick up some vegetables discarded by Limitee since they were too small for packing. The boys had been to the packing house previously for such purposes and the plaintiff’s brother had worked for Limitee in the fields before.

In choosing a route to the packing house the boys decided to take a short-cut across the farm property. This route required them to climb over a dike or hill and wade across a four-foot irrigation ditch, the depth of which is described as reaching the waist of the older brother. Some 60 yards further the boys happened on a water pump which was near the path which they were taking. The record reveals that the pump was a portable pump having an open shaft with two universal joints exposed. The plaintiff’s deposition indicates that the pump was emitting a loud noise as well as radiating some heat. There was no one attending the pump nor did any sign or fence either warn of or prevent access to the same.

Shortly after arriving at the vicinity of the pump the plaintiff’s older brother went swimming. The plaintiff, at the time without his shirt on, began inspecting the pump’s operation and simultaneously putting on his shirt. His shirt became enmeshed in the pump’s rotating shaft and pulled his right hand and arm into the shaft. Although the extent of resulting injuries is disputed, suffice it to say that the plaintiff sustained severe injury to his right hand and arm.

The case was filed against the defendants on the three theories: 1) negligence in maintaining the pump; 2) attractive nuisance; and 3) that the pump was a dangerous instrumentality. Defendants responded with denials and affirmative defenses of comparative negligence and assumption of risk. Following discovery the defendant Limitee moved for summary judgment on the claims. Thereafter the trial judge in his order granting summary judgment to the defendants made several findings which included, inter alia, the following:

“(1) That the minor plaintiff’s initial entry onto the property leased by NAPLES LIMITEE, INC., as more fully described in the plaintiff’s Complaint, was a simple trespass and was not predicated upon any attractive nuisance;
“(2) That the irrigation pump, which was in operation on Defendant, NAPLES LIMITEE, INC.’S farm property on the date as alleged in plaintiff’s Complaint, was not even secondarily the attraction for the minor plaintiff, RAYMOND JOHNSON’S, trespass onto said property;
“(3) That the irrigation pump in its normal operation does not create nor is it a dangerous instrumentality;”

We agree with the court’s third finding that an irrigation pump in its normal operation does not constitute a dangerous instrumentality. Likewise, though not made the subject of a specific finding, we concur that the plaintiff has failed to make out a claim for negligent maintenance of the pump. However, the applicability of the doctrine of attractive nuisance is more troublesome.

Section 339 of the Restatement of Torts dealing with this subject was quoted extensively with approval in Cockerham v. R. E. Vaughan Inc., 82 So.2d 890 (Fla.1955). This section as now set forth in the Restatement of Torts 2d reads as follows:

“§ 339. Artificial Conditions Highly Dangerous to Trespassing Children A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

Significantly, the comment on clause (a) of the foregoing section states:

“e. Necessity that children’s presence he caused by dangerous condition. It is not necessary that the defendant shall' know that the condition upon his land is likely to attract the trespasses of children, or that the children’s trespasses shall be due to the attractiveness of the condition. It is sufficient to satisfy the conditions stated in Clause (a) that the possessor knows or should know that children are likely to trespass upon a part of the land upon which there is a condition which is likely to be dangerous to them, because of their childish propensities to intermeddle or otherwise. Therefore the possessor is subject to liability to children who after entering the land are attracted into dangerous intermeddling by such a condition, although they were ignorant of its existence until after they had entered the land, if he knows or should know that the place is one upon which children are likely to trespass and that the condition is one with which they are likely to meddle.”

There is ample evidence in the record below to reflect that children were permitted to come to the packing house to pick up culls. Furthermore, the farm management knew that children sometimes went into the fields because they had run them out on previous occasions. Thus, if Section 339 represents the law of Florida, the evidence in this case together with all reasonable inferences to be drawn therefrom would preclude the entry of a summary judgment against the plaintiff’s claim based on attractive nuisance. The problem lies in the fact that in Concrete Const., Inc. of Lake Worth v. Petterson, 216 So.2d 221, 223 (Fla.1968), our Supreme Court said:

“Although we often cite the Restatement in such instances as appropriate, we have never adopted it in the sense of altering basic elements in a cause of action. Since this Court first approved this so-called attractive nuisance doctrine in Stark v. Holtzclaw, supra [90 Fla. 207, 105 So. 330] we have steadfastly held that it must be alleged that defendant allured the youthful plaintiff upon the dangerous premises, for without such showing plaintiff could not attain a status of implied invitee, which status entitles him to recover based upon simple or ordinary negligence.”

This statement points up the relevance of the first two findings of the court below. There is no doubt that plaintiff was not allured onto the premises by the existence of the pump, because the children didn’t even know about the pump until they had traveled some distance onto the property. Therefore, under the rationale of Concrete Const., Inc., the court below properly entered a summary judgment for the defendants.

We are obligated to follow the pronouncements of our Supreme Court, even though at times we might disagree. Therefore, we must affirm. Yet, we are convinced that Section 339 of the Restatement of Torts states the better rule. Although the dissent in Concrete Const., Inc., supra, was predicated upon the absence of a conflict of decisions, it is evident from the body of the dissenting opinion that the three dissenting justices likewise favored Section 339. In view of the passage of time since Concrete Const., Inc. was decided, the closeness of the decision and the continuing acceptance of the Restatements by the courts of Florida, we hereby certify this question as being of great public interest so as to give the Supreme Court the opportunity to revisit this important segment of the law.

GRIMES and SCHEB, JJ., concur.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Joseph HAUSER, Appellant, v. DR. CHATELIER’S PLANT FOOD COMPANY, INC., and Equitable Health Corporation of America and Farmers Financial Corporation, Appellees.
    No. 76-2019.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.
    Rehearing Denied Nov. 1, 1977.

      Gary Kalos of Merlin & Horowitz, Miami, for appellant.
    Lawrence Klepetko of Lyle, Skipper, Wood & Anderson, St. Petersburg, for ap-pellees.
   SCHEB, Judge.

The trial court entered final judgment after default against appellant/garnishee without first receiving evidence of any indebtedness from garnishee to the judgment debtors. The garnishee appeals. We reverse.

After obtaining a judgment for $185,959 against Equitable Health Corporation of America and Farmers Financial Corporation, appellee Chatelier moved for a writ of garnishment against appellant Joseph Hau-ser. Chatelier’s one-sentence motion for the writ did not allege the amount of the garnishor’s claim, nor otherwise comply with the requirements of Section 77.03, Florida Statutes (1975). The writ, as issued by the clerk, was substantially as required by Section 77.04, and required the garnishee to respond as to whether or not he was indebted or held any property belonging to the judgment debtors. Default was entered against Hauser on November 12,1976, for his failure to respond.

On November 19, 1976, final judgment was entered against him for $185,979.50, representing the total amount of Chatelier’s judgment against the two judgment debtors, plus court costs. At the time the final judgment was entered, the following relevant documents were before the court: proof of service on Hauser; default entered by the clerk; an affidavit from appellee’s counsel concerning service of the writ; and a motion by appellee’s counsel for final judgment as authorized by Fla.R.Civ.P. 1.500(e), relating to default judgments.

Fla.R.Civ.P. 1.500(e) provides:
Final Judgment. Final judgments after default may be entered by the court at any time but no judgment may be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator or other representative who has appeared in it or unless the court has made an order under Rule 1.210(b) providing that no representative is necessary for the infant or incompetent. If it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter to enable the court to enter judgment or to effectuate it, the court may receive affidavits, make references or conduct hearings as it deems necessary and proper and shall accord a right of trial by jury to the parties when required by the Constitution or any statute. (Emphasis supplied.)

Since there were no allegations in the writ or in any pleading, affidavit, or other document upon which the court could have predicated a final judgment against Hauser, we think it was necessary here for the trial court to have received evidence pursuant to the italicized portion of the rule, concerning the existence and amount of any debt owed by Hauser to the judgment debtors. Hauser merely by suffering a default against the writ did not admit any ultimate facts on which a judgment could have been based. Bay Products Corp. v. Winters, 341 So.2d 240 (Fla.3d DCA 1976); Williams v. Williams, 227 So.2d 746 (Fla.2d DCA 1969). Accordingly, Chatelier has not established any rights whatsoever to the garnishee’s assets.

Appellee attempts to sustain the judgment against Hauser on the basis of Section 77.081, Florida Statutes, which provides:

Default; judgment (1) If the garnishee fails to answer as required, a default shall be entered against him. (2) On the entry of judgment for plaintiff, a final judgment shall be entered against the garnishee for the amount of plaintiff’s claim with interest and costs. No final judgment against a garnishee shall be entered before the entry of, or in excess of, the final judgment against the original defendant with interest and costs. . (Emphasis added.)

We think that Section 77.081 and Rule 1.500(e) do not conflict but rather must be read in pari materia to afford the required due process of law to a defendant whose property is vulnerable to judgment entered by the court. If we did perceive a conflict between the rule and the statute, we would hold that the statute must defer to the rule on this procedural matter. Article V, Section 2(a), Florida Constitution; Section 25.371, Florida Statutes.

Accordingly, the final judgment heretofore entered against garnishee Hauser is vacated and this cause remanded for further proceedings consistent with this opinion.

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

      . Recent federal and Florida decisions have shown an increasing disposition to afford due process to alleged debtors in judicial proceedings. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (invalidating a Georgia statute allowing prejudgment garnishment of a corporation’s bank account); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (invalidating the former Florida prejudgment replevin statutes); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (invalidating a Wisconsin statute allowing prejudgment garnishment of wages); Ray Lein Construction, Inc. v. Wainwright, 346 So.2d 1029 (Fla.1977) (invalidating Florida’s prejudgment garnishment statutes); Unique Caterers, Inc. v. Rudy’s Farm Co., 338 So.2d 1067 (Fla.1976) (invalidating Florida’s prejudgment attachment statutes).


author: PER CURIAM.

text:
    John F. ADERHOLD, Jr., et al., Appellants, v. BLAIR CONTRACTING COMPANY, INC., et al., Appellees.
    No. EE-355.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1977.
    Samuel Z. Goldman of Hastings & Goldman, Miami, for appellants.
    James C. Rinaman, Jr., and William S. Burns, Jr. of Marks, Gray, Conroy & Gibbs, and Robert M. Sharp of Bullock, Sharp & Childs, Jacksonville, for appellees.
   PER CURIAM.

The record supports the trial court’s determination that there are no genuine issues of material fact and that appellant, when injured on the job, was an employee of the contractor who was engaged to perform the owner’s work. The subcontractor whose negligence allegedly caused appellant’s injury was immune from liability, as the trial court held in granting the motion for summary judgment. Sections 440.-10, .11, Florida Statutes (1971).

AFFIRMED.

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


text:
    David SWEET and Claudia Sweet, Appellants, v. Daurice POPE, Guardian Ad Litem for Dawn D’Antoni, a minor, and Government Employees Insurance Company, Appellees.
    No. EE-398.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1977.
    David R. Lewis of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellants.
    H. Franklin Perritt, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   PER CURIAM.

Reversed for a new trial. Barrett v. Gill, 347 So.2d 132 (Fla. 1 DCA 1977); Godshall v. Unigard Insurance Company, 281 So.2d 499 (Fla.1973).

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


text:
    Johnny JORDAN, Appellant, v. Frances WILLIAMS and the State of Florida, Department of Health and Rehabilitative Services, Appellee.
    No. FF-425.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1977.
    Elwin R. Thrasher, Jr. of Dye & Thrasher, Tallahassee, for appellant.
    Harry Morrison, State’s Atty., Joseph R. Boyd, Asst. State’s Atty., for appellee.
   PER CURIAM.

Jordan filed his interlocutory appeal from an order vacating default, subject to the condition that the affirmative defense of the statute of limitations not be raised. We hold the order vacating the default may not be so conditioned. However, we remand to the trial court with directions that Jordan be allowed to file supporting proof as to his alleged meritorious defense relating to the statute of limitations. Goodlett v. Locke Timber Co., 328 So.2d 483 (Fla. 1st DCA 1976); Scott v. Premium Development, Inc., 328 So.2d 557 (Fla. 1st DCA 1976). After further consideration as to whether such pleadings and proof demonstrate a meritorious defense, the trial court shall thereupon enter its order on Jordan’s motion to vacate.

Remanded for further proceedings not inconsistent with this opinion.

MILLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


author: SMITH, Judge.

text:
    John L. THORPE, Appellant, v. STATE of Florida, Appellee.
    No. EE-289.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1977.

      Larkin & Kattman, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Thorpe appeals from a judgment of conviction and 30-year sentence for possession of a firearm by a convicted felon. The court imposed an extended term of imprisonment pursuant to Section 775.084, Florida Statutes (1975).

Thorpe complains of the trial court’s exclusion from evidence of testimony by Thorpe’s employer that he never observed Thorpe in possession of a firearm before March 13,1976, the date of Thorpe’s alleged offense. Thorpe’s defense was that he was the victim of a holdup attempt, that he wrested the weapon from the robber, and that he was pursuing the fleeing robber with the pistol in hand when he was apprehended. The proffered evidence of Thorpe’s prior conduct concerning weapons was inadmissible on the charge made. Dodson v. State, 334 So.2d 305 (Fla. 1st DCA 1976).

Thorpe complains also of his cross-examination by the prosecutor, for impeachment purposes, concerning prior convictions. Thorpe’s counsel had stipulated to his prior conviction of manslaughter, a felony which the information charged as a predicate for prosecution under Section 790.23, Florida Statutes (1975). On cross-examination, when Thorpe admitted one conviction only, the prosecutor elicited Thorpe’s testimony that he had been convicted of manslaughter, then inquired:

Q. Do you remember being convicted of resisting a police officer without violence [on October 11, 1972]?
A. Right.
Q. Does that refresh your recollection?
A. Yes, sir.
Q. Do you remember on that same date being convicted of possession of heroin?
A. No.
Q. You don’t remember being sentenced on that?
A. Nope.

After consulting Thorpe, his counsel made a motion for mistrial on the ground the prosecutor’s inquiry concerning a heroin conviction was unfounded in fact and was prejudicial. The trial court denied that motion and refused to instruct the jury “that he has not been convicted of a heroin charge,” stating:

“The Court’s testimony is not going to be put before the Jury. I don’t know, if the State wants to make an issue of it, they have got to get a certified copy and proceed further. I don’t know what they intend to do.”

The prosecutor stood silent during this colloquy. The State’s rebuttal included no evidence of a heroin conviction. At the charge conference Thorpe’s counsel again asked the court to “make some comment as to the heroin charge to clear up any misconception the Jury has.” The prosecutor again stood silent and the court again denied the request.

The record shows Thorpe was previously accused of heroin possession but was not convicted. We assume the prosecutor’s inquiry was innocent, resulting from an excusable misreading of a rap sheet or other information at hand. But, after the prosecutor phrased his interrogation to suggest as facts a conviction and sentence for heroin possession, there was no excuse for his standing silent when he realized the truth. This prosecutor chose to let the known false inference remain with the jury. The implication that Thorpe had been convicted of possession of heroin was prejudicial in that Thorpe, when arrested, had several hundred dollars in cash on his person. He said the money was the day’s receipts at the gas station where he worked and was the apparent object of the attempted robbery. The prosecutor dealt with that testimony in this fashion:

Q. So you just walk around this intersection of Davis and West State Street with over $800.00 in your pocket?
A. That sounds strange for a black man to have $800.00.
Q. No, it’s not.
A. That’s a business—
Q. Just answer my question, okay?
Q. Now, Mr. Thorpe, how in God’s name does this mysterious man in maroon know you have over $800.00 in your pocket?
A. I don’t know. I guess he know like the rest of them who robbed us.
Q. Just answer my question.

During its deliberation the jury returned to inquire of the court whether Thorpe’s possession of $800 when arrested gave rise to a “presumption” or bore on “calling him guilty or not guilty.” The court properly advised the jury that “the Jury can consider that any way they want to. There is no presumption one way or the other.”

In summary: The jury was concerned with Thorpe’s explanation of his possession of $800 in cash. The prosecutor, without justification, had insinuated that Thorpe was previously convicted of heroin possession. The prosecutor could not prove the truth of his accusation and made no move to correct the damning inference that Thorpe was a large-scale buyer or seller of heroin. Whether Thorpe was in fact a drug dealer, as indicated by information in a pre-sentence report, is not relevant to the inquiry. We are persuaded that the court should have taken corrective measures, as requested, when the prosecutor did not:

“The State prosecutor has an affirmative duty to correct what he knows to be false and to elicit the truth. . . . When . it appeared that the prosecuting attorney did not intend to make a clear revelation . . ., the trial court should have done so.” Lee v. State, 324 So.2d 694, 697, 698 (Fla. 1st DCA 1976).

This Court held, in State v. Young, 283 So.2d 58 (Fla. 1st DCA 1973), that it was not improper or at least not harmful error for the prosecutor to “refresh the defendant’s memory” of the number of his prior convictions, when that was in issue, by inquiring whether the witness “remembers” his convictions for named offenses on certain dates. In Young such a procedure was characterized as at most a “technical error” in a prosecution on “abundant” evidence. 283 So.2d at 60. There are, of course, less damaging ways to refresh a witness’ recollection of prior convictions, as by silently handing him a list of them or inquiring if he was convicted on one date and again on another date. We do not require adherence to the less damaging methods of impeachment, for a witness who is not prepared to state accurately the number of his prior convictions invites inquiry in any form reasonably calculated to call his attention to the facts. But the prosecutor who so cross-examines should be prepared to prove the facts concerning prior convictions. Houston v. State, 337 So.2d 852 (Fla. 1st DCA 1976). And when the prosecutor frames his questions to suggest as a fact that the accused was previously convicted of a certain offense, and the inference is false, the trial court must at least emphatically charge the jury to dispel the inference. Other remedies may be necessary if a corrective instruction is ineffective or if a prosecutor knowingly or recklessly plants a false inference.

There must be another trial.

REVERSED.

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


text:
    Bruce Stanley TOBLER, Appellant, v. STATE of Florida, Appellee.
    No. FF-438.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1977.
    Bruce Stanley Tobler, in pro per.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Tobler prosecutes this pro se appeal from a circuit court order denying his motion to vacate his judgments and consecutive sentences for five offenses. Fla.R.Cr.P. 3.850. Tobler’s motion urged he was denied the effective assistance of counsel to prosecute an appeal following his conviction, that he was improperly subjected to five consecutive sentences, and that the trial court denied him due process of law by denying his motion to suppress evidence of statements made by Tobler while in custody.

Approximately a year ago, the Public Defender for the Fourth Judicial Circuit presented to us, in Tobler’s behalf, a petition for leave to file a notice of appeal out of time in keeping with the principles with Baggett v. Wainwright, 229 So.2d 239 (Fla.1969) and Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), cert. den., 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968). The petition represented that, immediately following Tobler’s conviction and sentence, To-bler advised the assistant public defender who represented him under appointment at trial that he wished to appeal; that through inadvertence the assistant public defender failed to qualify Tobler as still indigent and entitled to appointed counsel on appeal, and failed to file a notice of appeal; and, consequently, that Tobler was entitled to a tardy appeal. Without opinion we denied To-bler’s petition for a “Hollingshead appeal,” conceiving that any post-sentence neglect by Tobler’s former appointed counsel could not be attributed to the State and that no relief by way of tardy appeal should be granted one whose petition made no assertion of error in the judgment and sentence.

On reconsideration of the case in its present posture, we are persuaded we erred in denying Tobler a “Hollingshead appeal.” It was not a prerequisite for that relief that Tobler assert some arguably reversible error. Baggett rejected that proposition, previously approved in Robertson v. State, 219 So.2d 456 (Fla. 1st DCA 1969). It also appears that the appointment at trial of the Public Defender for the Fourth Judicial Circuit as Tobler’s counsel should be considered as extending beyond judgment and sentence for the purpose of qualifying the defendant, on his timely request, for appointed appellate counsel. That is so whether counsel’s duty is considered as within the terms of his original appointment or simply as a matter of the defendant’s reasonable expectation of the Public Defender as a State officer and Tobler’s former counsel. See Leggett v. Wainwright, 297 So.2d 605 (Fla. 1st DCA 1974), app. dism., 308 So.2d 115 (Fla.1975); Thompson v. Dilley, 275 So.2d 234 (Fla.1973).

To remedy the loss of a timely appeal from the judgments and sentences by which Tobler is now confined, we will consider the present appeal as sufficient to preserve for review the judgments and sentences imposed by the circuit court on July 7, 1976. Without a further showing of indigency, the Public Defender for the Second Judicial Circuit is appointed to represent Tobler on this appeal. Pursuant to his directions the clerk of the circuit court will prepare and transmit with dispatch the record on appeal. Assignments of error are dispensed with. Within 30 days after transmittal of the record on appeal, or within such other time as the court may allow, appellant’s brief will be filed. Upon filing of the State’s brief within 30 days thereafter, consideration of this cause will be expedited.

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


author: MELVIN, Judge.

text:
    Johnny Ray BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. DD-487.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1977.

      William R. Ptomey, Jr., of Fisher & Bell, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser and Patti L. Englander, Asst. Attys. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant was charged with the offense of robbery while carrying a firearm and found guilty of such charge by a jury.

Appellant urges reversal and presents two points, viz: 1) alleged incompetency of trial counsel, and 2) failure of the trial court, in absence of request or objection, to charge the jury as to lesser included offenses. We dispose of these contentions in the order presented.

There were no objections presented to the trial court as to the newly found alleged incompetence of counsel. The matter cannot surface for the first time on appeal. State v. Barber, 301 So.2d 7 (Fla.1974); and Arline v. State, 303 So.2d 37 (Fla. 1st DCA 1974).

As to claimed error for failure to charge the jury on lesser included offenses, here presented for the first time, it is well established that the trial court is under the duty to charge the jury on the law of the ease, and it is error for the court to fail to do so. However, appellant also has a responsibility, in person or through his counsel, to address appropriate requests or objections to the court as to any omission. No such request was made of the trial court; neither was any objection presented as to such failure. See Florida Rule of Criminal Procedure 3.390(d); Fla.App.Rules 6.7(g) and 6.16(a); Williams v. State, 285 So.2d 13 (Fla.1973); and McCaskill v. State, 344 So.2d 1276 (Fla.1977).

Appellant is content to rest heavily on Hammer v. State, 343 So.2d 856 (Fla. 1st DCA 1976); Brown v. State, 206 So.2d 377 (Fla.1968); Lomax v. State, 345 So.2d 719 (Fla.1977); and State v. Terry, 336 So.2d 65 (Fla.1976). Also in this line of cases, we refer to the opinion of this court in Carver v. State, 344 So.2d 1328 (Fla. 1st DCA 1977). Such contentment must be short-lived for these cases basically turned upon the refusal of the trial court to give a requested instruction, or to favorably consider an objection to the court’s failure to give an instruction on lesser included offenses.

In McCaskill v. State, supra, appellants directly appealed to the Florida Supreme Court their convictions of attempted robbery, robbery and felony murder in the first degree and sentences of death. One of their contentions was that the trial court committed fundamental error by failing to instruct the jury on lesser included offenses of attempt. In disposing of this point, the court stated:

“. . . Considering the instructions as a whole, there was no fundamental error and the jury was properly advised of the applicable law. We note that there were no objections to the instructions either at the instruction conference or after they were presented to the jury. See Florida Rule of Criminal Procedure 3.390(d); Williams v. State, 285 So.2d 13 (Fla.1973).”

In the instant case, the appellant not only failed to request the instructions now desired, or to object to the failure of the court on its own motion to give such instructions, or to the form and content of the three proposed verdicts, viz: 1) not guilty, 2) guilty of robbery, and 3) guilty of robbery while carrying a firearm, but announced that he had no objections when the court inquired.

In McCaskill, the robbery resulted in a vicious murder, a situation from which the victim may never be released on a technicality. Here, the victims of the robbery, while at all crucial times being separated from eternity only by a trembling trigger finger, were spared such last sacrifice.

We must here observe that while rules of procedure are designed to protect the unjust as well as the just, they likewise are designed to afford appropriate protection to society.

Appellant, having failed to demonstrate reversible error, the judgment appealed is

AFFIRMED.

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


author: SCHEB, Acting Chief Judge.

text:
    Jerry K. PETTERS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1203.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Appellant was placed on probation as a result of the trial court having reconsidered his prison sentence which had been imposed at a prior term of court. In his appeal from revocation of that probation we hold that the court lacked jurisdiction to modify the sentence. Consequently the probation and revocation thereof were nullities. We reverse.

After appellant entered a plea of nolo contendere to a charge of felonious possession of a firearm, the trial court adjudged him guilty and, on July 3, 1973, placed him on probation for five years. Exactly one year later, after he pled guilty to violating the conditions of his probation, the court sentenced appellant to prison for an indeterminate term of six months to three years. Thereafter, on June 24, 1975, the trial court, on appellant’s petition for reconsideration, vacated that judgment and sentence and placed him on probation for three years. This latter probation was revoked on June 30, 1976, at which time the trial court sentenced appellant to six years in prison with credit for the 182 days served in county jail. This appeal is taken from this last revocation of probation.

At the time the trial court reduced appellant’s sentence, Fla.R.Crim.P. 3.800 allowed a court to modify a sentence only during the same term at which it was imposed or within sixty days after sentence if less than sixty days remained in the term. After this time elapsed the sentencing court had no further control except to enforce the sentence it had previously imposed. There are two terms of the circuit court in Pinel-las County. The spring term commences on the first Monday in May; the fall term on the first Monday in December. Section 26.-27, Florida Statutes (1975). The order placing appellant on probation on June 24,1975, was entered beyond the permitted time limit and was therefore void for lack of jurisdiction. Solomon v. State, 341 So.2d 537 (Fla.2d DCA 1977). The modification of appellant’s sentence having been void, it follows that the placing of appellant on probation and the revocation thereof were nullities.

Accordingly, the order of the trial court is reversed, and the indeterminate sentence of six months to three years imposed on July 3, 1974, is reinstated. The trial court is directed to allow credit for all time served as a result of the offense for which appellant has been sentenced.

Reversed and remanded.

OTT and RYDER, JJ., concur.

      . On March 3, 1977, the Florida Supreme Court amended Fla.R.Crim.P. 3.800 to read, “A court may reduce a legal sentence imposed by it within sixty days after such imposition . removing all language referring to terms of court. The Florida Bar (Re Florida Rules of Criminal Procedure), 343 So.2d 1247 (Fla.1977).


text:
    Richard SING ENG, Appellant, v. STATE of Florida, Appellee.
    No. 77-131.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the revocation of appellant’s probation is affirmed. However, the judgment and sentence of the court, while indicating that appellant is to receive credit for all time served in jail, does not specifically set forth the amount of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

In addition, the order of revocation of probation must be corrected. The affidavit filed against appellant charged him with two violations of condition (e) and one violation of condition (c). At the conclusion of the revocation hearing, the trial court found that the allegations as to condition (e) had been sustained, but made no mention of the allegation as to condition (c). Yet the written order revoking appellant’s probation recites that appellant violated both conditions (c) and (e). Since the court’s order of revocation enlarged the announced findings, the order must be corrected to conform to the findings of the court made at the hearing.

Remanded for correction of the sentence and the order of revocation of probation; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    Michael James MARAMAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-332.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Appellant was also improperly sentenced to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

Remanded for the purpose of specifically stating the amount of credit time to which the appellant is entitled and for striking the phrase “at hard labor” in the judgment and sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    Jose SANCHEZ a/k/a Roberto Ortiz, Appellant, v. STATE of Florida, Appellee.
    No. 77-507.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    Timothy Isaac WILSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-549 and 77-509.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment of the trial court is affirmed, but this case is remanded for resen-tencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975), Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). Moreover, the sentence imprisons appellant “at hard labor” for which there is no statutory authority. Speller v. State, 305 So.2d 231 (Fla.2d DCA 1974). The appellant does not have to be present at re-sentencing.

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


author: BOARDMAN, Chief Judge.

text:
    Edward Leo ANDRIAKOS and Christopher Andriakos, Plaintiffs, v. John CAVANAUGH et al., Defendants.
    No. 77-650.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.

      William A. Patterson, of Masterson, Rogers & Patterson, St. Petersburg, for Edward Leo Andriakos and Christopher Andri-akos.
    H. Shelton Philips, of Kaleel & Kaleel, St. Petersburg, for State Farm Mut. Auto. Ins. Co.
    James C. Hadaway, of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Pe-tersburg, for Aetna Life and Cas. Co.
   BOARDMAN, Chief Judge.

The Circuit Court of the Sixth Judicial Circuit has certified the following question to this court pursuant to Fla.App. Rule 4.6(a):

WHERE A POLICY OF INSURANCE EXCLUDES COVERAGE FOR BODILY INJURY LIABILITY TO ANY INSURED OR ANY MEMBER OF THE FAMILY OF AN INSURED RESIDING IN THE SAME HOUSEHOLD OF THE INSURED, SHOULD SUCH EXCLUSION BE GIVEN EFFECT WITH RESPECT TO THE DRIVER OF THE INSURED VEHICLE, WHERE SAID DRIVER IS INSURED UNDER THE POLICY PURSUANT TO THE POLICY DEFINITION OF “INSURED” AS INCLUDING PERSONS “USING THE OWNER VEHICLE, PROVIDED THE OPERATION AND THE ACTUAL USE OF SUCH VEHICLE ARE WITH THE PERMISSION OF THE NAMED INSURED”?

Since the question posed is broader than the issue dispositive of the cause we address only the following part of the question:

WHERE A POLICY OF INSURANCE EXCLUDES COVERAGE FOR BODILY INJURY LIABILITY TO ANY INSURED, SHOULD SUCH EXCLUSION BE GIVEN EFFECT WITH RESPECT TO THE DRIVER OF THE INSURED VEHICLE, WHERE SAID DRIVER IS INSURED UNDER THE POLICY PURSUANT TO THE POLICY DEFINITION OF “INSURED” AS INCLUDING PERSONS “USING THE OWNER VEHICLE, PROVIDED THE OPERATION AND THE ACTUAL USE OF SUCH VEHICLE ARE WITH THE PERMISSION OF THE NAMED INSURED”?

On July 9, 1975, Edward Andriakos was test driving an automobile owned by and with the permission of John Cavanaugh. During the test drive Andriakos was involved in an accident in which he sustained personal injury. Andriakos filed suit against Cavanaugh alleging that his negligent maintenance of the automobile resulted in the accident. Mutual Automobile Insurance Company, which is Cavanaugh’s insurance carrier, denies coverage based upon the policy exclusion.

The pertinent part of the State Farm policy provided that:

COVERAGE A — BODILY INJURY LIABILITY
COVERAGE B — PROPERTY DAMAGE LIABILITY
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
(a) bodily injury sustained by other persons, and
(b) property damage, caused by accident arising out of the ownership, maintenance or use, including loading or unloading, of the owned motor vehicle; and to defend, with attorneys selected by and compensated by the company, any suit against the insured alleging such bodily injury of property damage and seeking damages which are payable hereunder even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.
EXCLUSIONS — SECTION 1
THIS INSURANCE DOES NOT APPLY UNDER:
(h) COVERAGE A, TO BODILY INJURY TO ANY INSURED . . ..
DEFINITIONS — SECTION 1
Insured — the unqualified word “insured” includes (1) the named insured, and . (4) any other person while using the owned motor vehicle, PROVIDED THE OPERATION AND THE ACTUAL USE OF SUCH VEHICLE ARE WITH THE PERMISSION OF THE NAMED INSURED OR SUCH SPOUSE AND ARE WITHIN THE SCOPE OF SUCH PERMISSION.

State Farm argues that the policy exclusion should be enforced because it is clear and unambiguous, and it is not in conflict with the statutory provisions pertaining to compulsory insurance.

We agree the exclusion is clear and unambiguous. A person driving the insured automobile with the permission of the named insured falls within the omnibus definition of insured. The exclusion specifies that the policy is not applicable in the case of bodily injury to any insured. The word “any” is all-inclusive and does not limit the word “insured” in the sense that the word “the” was construed to qualify the word “insured” in Cochran v. State Farm Mutual Automobile Ins. Co., 298 So.2d 173 (Fla. 4th DCA 1974).

Whether the exclusion conflicts with our insurance statutes is not so clear. Admittedly the Florida Financial Responsibility Law, Sections 324.011-.251, Florida Statutes (1975), has never required an automobile driver to procure automobile liability insurance or other security to operate an automobile until he has one accident. E. g., Ennis v. Charter, 290 So.2d 96 (Fla. 1st DCA 1974). However, under the Florida Automobile Reparations Reform Act, Sections 627.730-.741, Florida Statutes (1975), which became effective in 1972, every automobile owner is required to have personal injury protection and automobile liability insurance or equivalent security without consideration of his accident record. Section 627.733(3)(a) of the Automobile Reparations Reform Act incorporates the coverage requirements of the Financial Responsibility Law.

Furthermore, in 1973 Section 325.19(7), Florida Statutes (1975), was enacted to require every person presenting his motor vehicle for compulsory inspection to produce evidence of insurance as provided in Section 324.021.

Thus, by the passage of the Florida Automobile Reparations Reform Act, the legislature mandated compulsory liability coverage even though it failed to delete the second accident provision of the Financial Responsibility Law. Any insurance policy which is represented as providing security under the Automobile Reparations Reform Act will be enforced as if it were in compliance with that act regardless of its actual terms. See Section 627.733(3)(a), Florida Statutes. In addition Section 324.151 of the Financial Responsibility Law provides that an insurance policy must secure coverage to the insured “against loss from the liability imposed by law for damage arising out of the ownership, maintenance, or use .” of a motor vehicle if used as proof of financial security. Therefore, a motor vehicle liability policy under our compulsory insurance laws cannot contain exclusions which destroy the effectiveness of the policy as to any substantial segment of the public. See Makris v. State Farm Mutual Automobile Ins. Co., 267 So.2d 105 (Fla. 3d DCA 1972). As applied to the facts of this case the exclusion falls in this category.

We answer the question, as modified, in the negative.

McNULTY and OTT, JJ., concur.

      . The rationale of Yakelwicz v. Barnes, 330 So.2d 810 (Fla. 3d DCA 1976), and Ennis v. Charter, 290 So.2d 96 (Fla. 1st DCA 1974) is inapplicable because the accidents in both these cases predated the passage of the Automobile Reparations Reform Act.

      . We need not consider the effect of Chapter 11-iQS, Laws of Florida 1977, which eliminated the requirement of compulsory automobile liability insurance because the accident occurred prior to the passage of this law.


text:
    Donnie W. PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 77-921.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment of the trial court is affirmed, but this case is remanded for resen-tencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975), Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). Moreover, the sentence imprisons appellant “at hard labor” for which there is no statutory authority. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974). The appellant does not have to be present at resentencing.

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


text:
    Lonnie Joe KELLUM, Appellant, v. STATE of Florida, Appellee.
    No. 77-955.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The order revoking appellant’s probation and the judgment are affirmed but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.-161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). The appellant does not have to be present for resentencing.

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


text:
    Max L. AHRENDT, D. Diane Caliguire, Mary Ann Blanche, and Donna V. Ahrendt, Individually, and Donna V. Ahrendt, as Executrix of the Estate of Ben H. Ahrendt, Deceased, Appellants, v. MANASOTA BURIAL PARK, INC., and Aetna Insurance Company, Appellees.
    No. 77-1044.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.
    Martin J. Campbell of Garland & Garland, Bradenton, for appellants.
    Michael F. Tew of Barr & Murman, Tampa, for appellees.
   PER CURIAM.

This interlocutory appeal has been taken from an order which is not appealable under Fla.App. Rule 4.2, and is therefore dismissed on the court’s own motion.

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


text:
    Sheldon SPECTOR, Appellant, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee.
    No. 77-1686.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1977.
    Tobias Simon and Roger J. Schindler, Miami, for appellant.
    Lionel Barnet, Miami Beach, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Reversed. Fla.R.Civ.P. 1.420(e); Little v. Sullivan, 173 So.2d 135 (Fla.1965); Newman v. Bennefeld, 193 So.2d 482 (Fla. 2d DCA 1967); Lindquist v. Williams, 262 So.2d 899 (Fla. 2d DCA 1972).


author: McCORD, Chief Judge.

text:
    David Eugene PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. EE-267.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1977.

      Michael J. Minerva, Public Defender, and Margaret C. Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

Appellant, having pled not guilty to a charge of sale of marijuana, subsequently appeared before the trial court pursuant to plea bargaining and changed his plea to nolo contendere in return for a state recommendation that he be placed on probation for a period of five years. The trial judge stated that although he gave great consideration to the state’s recommendation, he did not consider it binding and indicated that he might give appellant a jail sentence and would consider the presentence investigation report. Neither appellant nor his attorney responded to the judge’s statement. The assistant state attorney presented a factual basis for the plea and determined that appellant understood, among other things, that the court could sentence him to a maximum of five years in the state penitentiary, impose a lesser sentence of imprisonment or place appellant on probation. The trial judge then accepted the plea and withheld adjudication pending a presentence investigation. Subsequently, when appellant appeared before the court for sentencing and the court indicated that he could not place him on probation, his attorney moved to withdraw the plea of nolo contendere. The trial court denied the motion, adjudicated appellant guilty and sentenced him to three years in the state prison. Appellant contends that the court erred in not allowing him to withdraw his plea of nolo contendere.

In Adams v. State, 328 So.2d 48 (Fla. 1st DCA 1976), this Court relying upon Fla.R. Crim.P. 3.171(c), reversed and remanded with directions that the trial court either impose sentence in accordance with the plea bargain or vacate the judgment and offer appellant an opportunity to withdraw his plea. The aforesaid rule relied upon by this Court states as follows:

“After an agreement on a plea has been reached, the trial judge may, with the consent of the parties, have made known to him the agreement and reasons therefor prior to the acceptance of the plea. The terms of the agreement shall be placed in the record. He shall thereafter advise the parties of whether other factors (unknown at the time) may make his concurrence impossible. Should such other factors make ultimate judicial concurrence impossible, any plea of guilty or nolo contendere entered based upon such agreement may thereafter be withdrawn.”

On certiorari, the Supreme Court reversed this Court and remanded for further remand to the trial court with instructions to reinstate the sentence. State v. Adams, 342 So.2d 818 (Fla.1977). In its opinion, the Supreme Court made no reference to the above-quoted rule but grounded the opinion upon its previous opinion in Brown v. State, 245 So.2d 41 (Fla.1971), decided prior to the adoption of the aforesaid rule, and Davis v. State, 308 So.2d 27 (Fla.1975).

The case sub judice is governed, of course, by the Supreme Court’s opinion in Adams. We have recited the foregoing because we feel that a caveat is advisable to defendants and their attorneys who might rely upon the aforesaid rule of criminal procedure. Unless a defendant is willing to enter a plea of guilty or nolo contendere to a charge based only upon the state’s recommendation as to disposition of the case, the entry of such a plea should be conditioned upon agreement by the trial court that if it determines that it will not make the recommended disposition, it will then allow the defendant to withdraw his plea. Such procedure would, we believe, carry out the intent of the aforesaid rule and would eliminate the possibility that a defendant may be misled by too great a reliance upon the prosecutor’s recommendation. The court, of course, can decline to accept such a condition, and if it does, the defendant must then determine whether or not he wishes to enter the plea without a commitment by the court that it will either accept the state’s recommendation or allow the defendant to withdraw his plea if it is not accepted.

AFFIRMED.

MELVIN and SMITH, JJ., concur.


text:
    McArthur GRIFFIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-790.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen. and John Map-pert, Legal Intern, for appellee.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Defendant McArthur Griffin seeks review of the order revoking his probation and imposition of sentence thereon.

Defendant’s sole contention for reversal is that the trial court denied him his right to a full and fair hearing and the effective assistance of counsel because the trial court refused to grant defendant’s motion for continuance at the time of trial.

On December 12, 1973, defendant pled guilty to the charges of robbery and automobile theft. He was sentenced to one year imprisonment and a five year term of probation. The initial affidavit of violation of probation was filed on January 14, 1976, alleging that defendant had violated his probation by changing his residence without consent of his probation officer and by failing to make monthly reports. On March 15, 1976, four days prior to hearing, an amended affidavit of violation of probation was filed alleging the same violations as in the initial affidavit, but including additional charges: burglary of a dwelling, grand larceny and failing to report to his probation officer.

At the outset of the hearing on March 19, 1976, defendant’s counsel orally requested a continuance, stating as grounds therefor, in essence, that counsel did not have sufficient time to prepare his defense within the four day period after the amended affidavit was filed.

The trial court denied the motion. Testimony was adduced by the prosecution as to defendant’s violation of probation with respect to the matters in the initial affidavit as well as additional allegations contained in the second affidavit of violation of probation.

However, during the hearing on March 19, the court recessed the proceedings for further testimony until March 24, in order to afford the prosecution the opportunity to obtain expert testimony as to fingerprints, and at the same time, in effect, said defendant’s counsel could present the testimony of any witnesses he wished at the time of the further hearing. It is unclear from the record whether the trial judge meant defendant’s testimony with reference to the expert testimony as to fingerprints, or any testimony the defendant wished to adduce. At the hearing on March 24, defendant neither offered any evidence, nor requested a continuance. At the conclusion of the hearing on March 24, defendant’s probation was revoked on the grounds contained in the initial affidavit as well as the amended affidavit.

Rule 3.190, Florida Rules of Criminal Procedure, requires that pre-trial motions for continuance shall be in writing and signed, and further requires that the motion be accompanied by a certificate by movant’s counsel that the motion is made in good faith. No written motion was made by defendant’s counsel.

It is clear that granting a motion for continuance lies within the sound discretion of the trial court. Acree v. State, 153 Fla. 561, 15 So.2d 262 (1943). We cannot find, from the record before us, such abuse of discretion as to warrant reversal of the trial court’s denial of defendant’s motion for continuance. Robertson v. State, 64 Fla. 437, 60 So. 118 (1912); Diehl v. State, 117 Fla. 816, 158 So. 504 (1935); Lyles v. State, 312 So.2d 495 (Fla. 1st DCA 1975).

Affirmed.


text:
    Nadine THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1079.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Appellant was charged by information with tampering with a witness. She pleaded not guilty but later withdrew the plea and entered a plea of guilty. The trial court adjudicated her guilty, withheld sentence, and ordered that appellant be placed on probation for a period of one (1) year.

Soon thereafter an affidavit of violation of probation was filed. Upon hearing on the alleged violations, the trial court revoked the probation and sentenced the appellant to five (5) years in prison.

Appellant argues in this appeal that the trial court erred in revoking the term of probation previously imposed upon appellant because the revocation was based solely upon a plea of guilty entered in municipal court to a charge of disorderly conduct; that the judgment of guilt was not introduced into evidence and the document introduced was insufficient to prove that a valid judgment of guilt was entered, and that the facts of the alleged offense, as adduced at the hearings, were insufficient to prove the appellant did in fact commit the alleged offense.

We have carefully considered appellant’s contentions in the light of the record on appeal, briefs and argument of counsel and have concluded that appellant has failed to demonstrate reversible error. State ex rel. Roberts v. Cochran, 140 So.2d 597 (Fla.1962); Bernhardt v. State, 288 So.2d 490 (Fla.1974); Singletary v. State, 290 So.2d 116 (Fla.4th DCA 1974); and Ivey v. State, 308 So.2d 565 (Fla.2nd DCA 1975).

Affirmed.


text:
    CAVALIER INSURANCE CORPORATION, Appellant, v. Sigmund SCHY, Robert Podhurst, Individually, and as Agent for Bridge Bindery, Inc., a Foreign Corporation, and Royal Globe Insurance Company, an Illinois Corporation, Appellees.
    No. 76-1444.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Corlett, Merritt, Killian & Sikes and Donald W. Hardeman, Jr., Greene & Cooper, Miami, for appellant.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

The determinative issue in this appeal is whether the trial court erred in denying appellant, Cavalier Insurance Corporation, recovery on equitable distribution for PIP benefits it paid to appellee, Sigmund Schy.

After a hearing on appellee-Schy’s petition for equitable distribution, the trial court entered its order dissolving and extinguishing appellant’s lien and denying its right to any sums of money by way of equitable distribution which it had paid to Schy for PIP benefits. The order did not detail any equitable considerations upon which such holding was based.

We have considered the point on appeal in the light of the record, briefs and arguments of counsel, and have concluded that the order on the petition for equitable distribution must be reversed and the cause remanded for further consideration in light of the principles enumerated in Williams v. Gateway Insurance Company, 331 So.2d 301 (Fla.1976), and American Fire and Casualty Company v. Oller, 313 So.2d 67 (Fla. 4th DCA 1975).

Reversed and remanded.


author: NATHAN, Judge.

text:
    RANGER INSURANCE COMPANY and George Franklin Jakes, Appellants, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.
    No. 76-1668.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.

      Talburt, Kubicki & Bradley, Jeanne Hey-ward, Knight, Peters, Pickle, Niemoeller & Flynn and Joseph W. Downs III, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   NATHAN, Judge.

Ranger Insurance Co., and George Franklin Jakes, defendants in the trial court, appeal from a summary final judgment construing an insurance policy in favor of United States Fire Insurance Company, defendant and cross-defendant, in an action for damages stemming from an airplane crash.

The record reflects that in 1972, four doctors joined together to purchase an airplane. The doctors contacted George Franklin Jakes, an independent aviation insurance agent employed by the firm of T. C. Roberts & Associates, to obtain liability insurance coverage for the aircraft. After contacting Jakes, the doctors formed a corporation, Performance Aircraft, Inc., which would own and operate the plane. The change in ownership from the doctors to the corporation was reported by Jakes to the insurance brokerage firm from which a policy of liability coverage for the plane was obtained with Ranger Insurance, Inc., in March of 1972. The policy issued by Ranger contained an endorsement providing in pertinent part:

“ADDITIONAL EXCLUSIONS ENDORSEMENT
IN CONSIDERATION OF THE REDUCED PREMIUM CHARGED IT IS AGREED THAT THE POLICY IS AMENDED TO INCLUDE THE FOLLOWING ADDITIONAL EXCLUSIONS:
11. Under coverages C and D to injury to or destruction of property, including the loss of use thereof, belonging to (the four doctors) or any member of their immediate families.
12. Under coverages A, B and D to bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by (the four doctors) or any member of their immediate families.”

On September 27, 1972, two of the doctors and their wives were on an evening flight when the plane crashed killing both doctors and injuring one of the wives. As a result of the crash, in December of 1973, suit was brought by the injured wife against Performance Aircraft, Inc., and Ranger Insurance. Ranger initially denied coverage to Performance, but later settled the claims which had been filed against Performance. Cross-claims were filed by Ranger against Jakes and T. C. Roberts & Associates, and by Performance against Ranger, Jakes and Roberts & Associates, alleging numerous causes of action, including breach of contract, fraudulent concealment, breach of fiduciary duty and Jakes’ negligence in failing to advise the doctors of the endorsement excluding themselves and their families from coverage. Performance contended that the doctors sought “the broadest coverage available for the aircraft” and that they were never advised by Jakes or Roberts & Associates, that there were “purported exclusions and restrictions” on the policy. Ranger filed a motion to join as a defendant, United States Fire Insurance Company, Jakes’ liability insurer, which motion was granted by the court because it appeared that in November of 1973, Jakes took out an errors and omissions policy with U.S. Fire, covering himself in his professional capacity as an insurance agent.

U.S. Fire filed a motion for summary judgment together with a copy of the U.S. Fire policy issued to Jakes, and an affidavit of one of its claims managers, stating that the policy in question, issued in November of 1973, did not provide coverage on the date of the aircraft accident, which was in September of 1972. Summary final judgment was entered in favor of U.S. Fire, whereupon Ranger and Jakes took this appeal, alleging that the U.S. Fire policy is ambiguous and subject to a reasonable interpretation that coverage is provided on the alleged acts or omissions of Jakes prior to its issuance, thereby precluding entry of a summary judgment.

The question, then, for our determination, is whether the U.S. Fire errors and omissions policy issued to Jakes in November, 1973, could be interpreted to provide Jakes with coverage when the crash occurred in 1972, and suit was filed in December, 1973. In deciding whether the policy can be so interpreted to cover Jakes against the claim that he negligently failed to advise the doctors that the policy issued to Performance by Ranger excluded coverage of the doctors themselves and their families, we must look to the terms of Jakes’ policy.

The pertinent provisions of the errors and omissions policy issued by U.S. Fire to Jakes are as follows:

“POLICY PERIOD, TERRITORY—
This policy applies only to occurrences happening anywhere during the policy period.” (emphasis supplied)
“CONDITIONS
(D)(d) Occurrence. With respect to Coverage 1(a) [personal injury liability] and 1(b) [property damage liability] “occurrence” means either an accident happening during the policy period or a continuous or repeated exposure to conditions which unexpectedly and unintentionally causes injury to persons or tangible property during the policy period.

In another section, entitled “Professional Liability Endorsement,” it is stated:

“It is agreed that this policy applies to liability arising out of the performance of professional services for others by the named insured in the capacity as a(n) insurance agent and caused by any negligent act, error or omission of the named insured or any person employed by the named insured, or of any other person for whose acts the named insured is legally liable.”

Both appellants, Jakes and Ranger, contend that the U.S. Fire policy is ambiguous for the reason that although the term occurrence is defined under the policy conditions, as recited above, the professional liability endorsement, also recited above, does not use the term occurrence; rather it refers to “liability arising out of the performance of professional services.” It is our opinion, however, that this matter depends primarily upon whether the policy in question is, by its terms, a “discovery policy” or an “occurrence policy.”

As explained in Samuel N. Zarpas, Inc. v. Morrow, 215 F.Supp. 887, 888 (D.N.J. 1963), a discovery policy is one wherein the coverage is effective if the negligent or omitted act is discovered and brought to the attention of the insurance company during the policy period no matter when the act or omission occurred; an occurrence policy is one wherein the coverage is effective if the negligent act or omission occurs during the policy period, regardless of the date of discovery. Accord: J. M. Brown Construction Company v. D & M Mechanical Contractors, Inc., 222 So.2d 93, 95 (La.App. 1st Cir. 1969). In the Zarpas case, the court found that the policy involved was a discovery policy. The policy contained a clause that it covered claims “which may be made” during the period of the policy, which language implied discovery during the period, rather than occurrence.

In a further discussion of the distinctions between the two types of policies, it is stated in Rotwein v. General Accident Group, 103 N.J.Super. 406, 247 A.2d 370, 377 (1968) that,

. . ‘discovery’ policies permit recovery for any errors or omissions (regardless of whether occurring during the policy period) as long as the claim is made during the policy period. ‘Occurrence’ policies, on the other hand, permit recovery for errors or omissions (provided they occur during the policy period) regardless of when the claim is made. It is apparent that both types of policies have as their distinctive features an expanded coverage which protects against liability which may follow long after actual performance of professional services.”

We hold that the policy in the instant case is not ambiguous, and that by the terms thereof, is an occurrence policy. Compare Prieto v. Reserve Insurance Company, 340 So.2d 1282 (Fla. 3d DCA 1977). Moreover, from the cases cited above, it is made clear that discovery policies contain specific language such as “claims made,” “receipt of notice from any person of an intention to hold the Assured responsible,” or “shall become aware.” These terms, or others of similar meaning, are absent from this policy.

For the foregoing reasons, we hold that the policy in question is an occurrence policy. Therefore, the summary final judgment in favor of U.S. Fire is affirmed.

Affirmed.


text:
    The SOUTHEAST FIRST NATIONAL BANK OF MIAMI, Appellant, v. Michael A. BUTTER, Appellee.
    No. 76-1789.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Friedman & Britton and John L. Britton, Miami, for appellant.
    Merlin & Horowitz and Gary Kalos, Cira-volo & Feldman, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The plaintiff appeals from an order dissolving a writ of garnishment entered prior to judgment pursuant to Sections 77.031, 77.04, 77.06 and 77.07, Florida Statutes (1975). The reason as urged by the appellant as to why the order dissolving the garnishment may have been erroneous at the time of the entry of the order in this cause are moot because the Supreme Court of Florida has declared unconstitutional all of the above enumerated sections of the Florida Statutes insofar as they pertain to pre-judgment garnishment. See Ray Lein Const., Inc. v. Wainwright, 346 So.2d 1029 (Fla.1977). Therefore, the order dissolving the writ of garnishment is affirmed without further discussion.

Affirmed.


text:
    SNEAD CONSTRUCTION CORPORATION, a Florida Corporation, Appellant, v. J. T. STEWART MORTGAGE COMPANY, INC., Appellee.
    No. 76-1793.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Malcolm H. Friedman, Miami, for appel-lee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings based on the following authorities: Reinhard v. Bliss, 85 So.2d 131 (Fla.1956); Snead Construction Corp. v. Parkway East, Inc., 324 So.2d 206 (Fla. 3d DCA 1975).


author: HENDRY, Chief Judge.

text:
    Edna GEORGE, Appellant, v. Alfred GUSTINGER, Jr., Appellee.
    No. 77-534.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Daniel E. Scott, Sarasota, for appellant.
    Alfred Gustinger, Jr., pro se.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HENDRY, Chief Judge.

Appellant, defendant below, brings this interlocutory appeal from an order of the trial court which, inter alia, denied her “amended motion to abate” for improper venue.

Appellee, plaintiff below, filed a complaint for declaratory judgment in the Circuit Court of Dade County, in which he sought a determination of his rights in certain real property located in Manatee County which was given to him by appellant as payment for legal services furnished to one Fred John Roti. Appellant, by motion, sought to have venue transferred to the Circuit Court of Manatee County on the ground that the complaint filed by appellee was, in substance, a suit to quiet title to the realty. The trial court denied the motion and this appeal follows.

After carefully reviewing the allegations contained in the complaint in conjunction with the relief sought by appellee, it is our opinion that the trial judge erred in not transferring the case to the Circuit Court of Manatee County.

While appellee, relying upon the case of Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934), contends that the gravamen of the complaint is a determination of his rights to certain real property resulting from a breach of an employment contract which allegedly occurred in Dade County, the allegations of the complaint reveal that by virtue of a prior transfer made by appellant, appellee already has record title to the property.

In addition, the relief prayed for by ap-pellee is clearly of the kind sought in quiet title actions, to-wit:

“WHEREFORE, the plaintiff petitions the Court for declaratory judgment as follows:
“1. That the Plaintiff herein be declared to have clear title to said property in accordance with Exhibits A & B.”

It is our opinion therefore, that the order appealed from must be reversed and remanded with directions to transfer the cause to the Circuit Court of Manatee County, in accordance with the rule that actions to quiet title must be brought in the county where the land lies. Hendry Corporation v. State Board of Trustees of Internal Improvement Trust Fund, 313 So.2d 453 (Fla.2d DCA 1975).

Reversed and remanded with directions.


author: HUBBART, Judge. PEARSON, Judge

text:
    STATE of Florida ex rel. Nathaniel D. WASHINGTON and Anthony Adams, Relators, v. Leonard RIVKIND and Ira L. Dubitsky, Judges of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondents.
    Nos. 77-563, 77-1200.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1977.
    Bennett H. Brummer, Public Defender, and Irv J. Lamel and Paul Morris, Asst. Public Defenders, for relators.
    Richard E. Gerstein, State’s Atty., and Dennis L. Curran and Paul M. Rashkind, Asst. State’s Attys., for respondents.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

These consolidated cases present a single issue as to whether an attempted third degree burglary is a third degree felony or a first degree misdemeanor within the meaning of Sections 777.04(4)(c), (d) and 810.02, Florida Statutes (1975). We hold that an attempt to commit a burglary of any degree, including a burglary of the third degree, constitutes a third degree felony under Section 777.04(4)(c) and 810.02, Florida Statutes (1975).

The relators in this case [Nathaniel D. Washington and Anthony Adams] were charged by information with attempted third degree burglary before the Circuit Court of the Eleventh Judicial Circuit of Florida. The relators moved to dismiss these informations for lack of jurisdiction of the circuit court to entertain them because the informations allegedly charged first degree misdemeanors which only the County Court of Dade County can constitutionally entertain. The respondent trial judges denied the motions on the ground that the charges lodged in the informations constituted third degree felonies which the circuit court had jurisdiction to entertain. Article V, Sections 5(b), 6(b), Florida Constitution; Sections 26.012(2)(d), 34.01(1), Florida Statutes (1975).

The relators have thereafter filed proceedings in this court which we treat as petitions for a writ of prohibition. We issued the rule nisi, but after considering the return and a full argument thereon, we conclude that the rule should be discharged and the petitions dismissed.

Section 777.04(4), Florida Statutes (1975) provides as follows:

“(4) Whoever commits the offense of criminal attempt, criminal solicitation, or criminal conspiracy shall be punished as follows:
(a) If the offense attempted, solicited, or conspired to is a capital felony, the person convicted shall be guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.
(b) If the offense attempted, solicited, or conspired to is a life felony or a felony of the first degree, the person convicted shall be guilty of a felony of the second degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.
(c) If the offense attempted, solicited, or conspired to is a felony of the second degree or any burglary, the person convicted shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(d) If the offense attempted, solicited, or conspired to is a felony of the third degree, the person convicted shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

The only attempted crime singled out by name for punishment in the above attempt statute is attempted burglary. All other attempted crimes are referred to in generic terms. Subsection (c) provides that an attempt to commit “any burglary” shall be punished as a third degree felony. No interpretation of the statute is necessary. It means exactly what it says: all attempted burglaries are punishable alike as a third degree felony.

The relators seek some comfort from subsection (d) of the statute but fail to read it in pari materia with subsection (c). Subsection (d) provides in general terms that an attempt to commit a third degree felony shall be punished as a first degree misdemeanor. This subsection is obviously not referring to attempted burglaries as such crimes are separately and exclusively dealt with in the prior subsection.

Relators contend that this reading of the statute runs counter to an overall legislative scheme to punish attempted crimes less severely than the completed crimes. It is true that the attempt statute has such a general pattern, but with two exceptions. Subsection (e) of the statute provides that an attempted second degree misdemeanor shall be punished as a second degree misdemeanor, not a non-criminal violation. See Section 775.08(3), Florida Statutes (1975). And subsection (c) of the statute punishes any attempted burglary as a third degree felony.

With respect to the latter, the legislature clearly deemed attempted burglary such a serious crime that it deserved to be punished as a felony and never as a misdemean- or. We perceive no legal impediment for the legislature to accomplish this objective even though it may depart from its overall scheme of punishment for other attempted crimes. Moreover, we see no similar impediment in punishing an attempted second degree misdemeanor the same as the completed crime although this, too, departs for different reasons from the general pattern of punishment for attempted crimes.

We recognize that criminal statutes should be strictly construed and that where a statute is susceptible of differing constructions, the construction most favorable to the accused should be adopted. Section 775.021(1), Florida Statutes (1975). We find, however, no other reasonable construction to be given to the attempt statute short of amending it entirely.

The relators ask us to interpret “any burglary” in subsection (c) to mean “any [second degree] burglary.” We are not authorized to amend a statute, including a criminal statute, in order to achieve a favorable construction thereof for the benefit of a defendant. See Fine v. Moran, 74 Fla. 417, 429-430, 77 So. 533, 536 (1917). Moreover, to adopt such a construction is to make the statute completely redundant. Subsection (c) makes attempted second degree felonies punishable as a third degree felony. If we interpret “any burglary” in the same subsection to mean only second degree burglary, such a term as interpreted would add nothing to what has already been prohibited. Obviously, the legislature meant something more. And we believe it meant exactly what it said: the attempt to commit “any burglary”, not just a second degree burglary, is punishable as a third degree felony.

Criminal statutes must be strictly construed, but they are not to be construed so strictly as to emasculate the statute and defeat the obvious intention of the legislature. In other words, such strict construction is subordinate, to the rule that the intention of the lawmakers must be given effect. George v. State, 203 So.2d 173, 176 (Fla. 2d DCA 1967).

We are supported in our result in this ease by a recent decision of the First District Court of Appeal in Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977), which held that attempted third degree burglary constitutes a third degree felony under section 777.04(4)(c), Florida Statutes (1975). Bownes v. State, 345 So.2d 787 (Fla. 4th DCA 1977), does not reach a contrary result because no contention was made in that case that attempted third degree burglary was a third degree felony, and, thus, the issue was not before the court.

Finally, we have not overlooked the Attorney General’s opinion on this subject which reaches a contrary result to that reached in this case. 1977 Attorney General’s Opinion 077-4. We are not, however, persuaded by that opinion. Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977).

The rule nisi is discharged and the petitions herein are dismissed.

PEARSON, Judge

(dissenting).

I would find that under the present Florida Statutes the crime of an attempt to commit burglary in the third degree is a first degree misdemeanor. An attempt to commit a crime was not punishable at common law. If it is to be made a crime by statute, then it must be made a crime by definite and clear enactment. See State v. Llopis, 257 So.2d 17 (Fla.1971).

In a consideration of the two statutes involved, the courts are presented with a direct conflict. The conflict cannot be reasoned away. The ordinary rules for “interpretation” of a statute are of little help and I think they are of doubtful application.

Therefore, I would return to the fundamental principle that, when charged under a statute, a defendant is entitled to the most favorable reading of that statute. See State v. Llopis, supra; and Negron v. State, 306 So.2d 104 (Fla.1974). I am encouraged in the wisdom of this result by the reasoning of 1977 Attorney General’s Opinion 077-4, where it is pointed out that to eliminate the attempt to commit any burglary from the effect of Section 777.04, Florida Statutes (1975), would destroy the overall statutory scheme of making an attempt a lesser offense than the crime itself. I am also encouraged in the view I have expressed by the apparent holding of the District Court of Appeal, Fourth District, in Bownes v. State, 345 So.2d 787 (Fla. 4th DCA 1977).

I would, therefore, issue the writ.

      . The information in the Washington case reads as follows:
      “RICHARD E. GERSTEIN, State Attorney of the Eleventh Judicial Circuit of Florida, prosecuting for the State of Florida, in the County of Dade, under oath, information makes that NATHANIEL DEWITT WASHINGTON on the 25th day of December, 1976, in the County and State aforesaid, did unlawfully attempt to enter or remain in a certain structure, to-wit: BROADMOOR PHARMACY, INC., located at 1220 Northwest 95th Street in the County and State aforesaid, the property of ELLIOT ROSOW, with the intent to commit an offense therein, to-wit: PETIT LARCENY in violation of 810.02 and 777.04 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida."
      The information in the Adams case reads as follows:
      “THOMAS K. PETERSEN, Assistant State Attorney of the Eleventh Judicial Circuit of Florida, prosecuting for the State of Florida, in the County of Dade, under oath, information makes that ANTHONY ADAMS and RUDOLPH WILLIS on the 30th day of December, 1976, in the County and State aforesaid, did unlawfully attempt to enter or remain in a certain structure, to-wit: SOUTH DADE TIRE CO., located 18030 South Dixie Highway, in the County and State aforesaid, the property of JOHN COLLINS and/or SOUTH DADE TIRE CO., with the intent to commit an offense therein, to-wit: LARCENY, and in such attempt did make a hole in the wall of said structure, in violation of 810.02 and 777.-04 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”


author: McNULTY, Acting Chief Judge.

text:
    CHARLOTTE COUNTY, a political subdivision of the State of Florida, and Englewood Disposal Company, Inc., Appellants, v. Walter L. FISKE and Lucy E. Fiske, Husband and Wife, Vernon Ridenhour and Geraldine Ridenhour, Husband and Wife, Emil R. Sweptson, Richard G. Bowman, Ada Bondi and Gertrude Lingeman, Appellees.
    No. 76-1870.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1977.

      H. William Thompson, County Atty., Punta Gorda, for appellant Charlotte County.
    Leo Wotitzky of Wotitzky, Wotitzky, Johnson, Mandell & Batsel, Punta Gorda, for appellant Englewood Disposal Company, Inc.
    William R. Korp of Korp, Wheeler & McGill, P. A., Venice, for appellees.
   McNULTY, Acting Chief Judge.

Appellants appeal from an order voiding a county ordinance regulating garbage and trash collection and disposal in a certain unincorporated area of Charlotte County. We reverse.

In 1975 Charlotte County had a garbage problem because the county’s dumps were ordered closed and were replaced by a single sanitary land fill located in the southern part of the county. The Englewood area, about 40 miles from the land fill, was becoming inundated with garbage illegally dumped on roadside ditches and other public ways. In an attempt to alleviate the problem, the assailed ordinance was enacted creating the West Charlotte Sanitation District.

The ordinance established a mandatory garbage disposal system financed by an annual $51.00 “special assessment” on each residential unit in the district. While commercial properties within the district were not assessed, they were nonetheless required by the ordinance either to contract for the service with the franchised disposal company for the district (appellee Engle-wood Disposal Company) or to obtain a permit to haul their own garbage.

It is to be further noted at this point that the ordinance was enacted upon a legislative finding that there was an inordinate amount of littering on the public rights of way in the area affected; that the entire $51.00 assessment was payable to the contract franchisee Englewood Disposal Company and no profit inured to the county; and that it was legislatively determined by the county that commercial properties be omitted from the assessment, and be required to arrange otherwise for garbage' disposal services, because of the widely varying production of garbage among such commercial properties.

Plaintiffs/appellees, owners of the residences assessed, brought this action to void the ordinance. They prevailed, the trial court having found: (1) that there is no rational basis for distinguishing the properties subject to the assessment and those not; (2) that some of the properties especially benefitted by the assessment are not subject to the assessment; (3) that the ordinance imposes special assessments without construction of any public improvement from the levy; and (4) that the ordinance does not require that the amount of the assessment equal or approximate the benefit. We think he was wrong.

To begin with, while the ordinance before us speaks of the assessment involved as a “special assessment,” we are of the view that such a term is a broad one and may embrace various methods and terms of charges collectible to finance usual and recognized municipal improvements and services. Among such charges are what are sometimes called “fees” or “service charges,” when assessed for special services. Moreover, these may take the form (at least for lien purposes) of “special assessment.” In point, indeed, such charges for garbage disposal were denominated “waste fees” in a Dade County ordinance interpreted by our sister court in the Third District in Turner v. State ex rel. Gruver wherein they were defined not as a form of taxes but as “special charges” imposed for a “special service” performed by the county. In fact, “service charges” for garbage disposal are expressly authorized by statute. Section 125.01(l)(q), Florida Statutes (1975), provides in material part as follows:

“(1) The legislative and governing body of a county shall have the power to
(q) establish . . . municipal service taxing or benefit units . within which may be provided . garbage and trash collection and disposal . . . facilities from funds derived from service charges, special assessments, or taxes within such unit . . . .” (Italics ours.)

Notwithstanding, the trial judge voided such charges in the instant case for the four reasons aforesaid. We summarily dispose of his third reason, viz., that the ordinance imposes a special assessment without construction of a public improvement, by saying that the construction of a public improvement is not necessary. The “improvement” involved may well be simply the furnishing of or making available a vital service, e. g., fire protection or, as here, garbage disposal.

Now, with respect to the trial court’s first finding, that there is no rational basis for distinguishing the properties subject to the assessment and those not, it certainly cannot be said that the legislative finding of the distinction between residential units and commercial units based upon a recognition of the widely varying production of garbage among commercial units is without reason. Common experiences compel agreement with such legislative finding. In any case, administrative or legislative determinations or findings of fact are entitled to great weight and ought not be lightly tampered with or voided absent a clear showing that they are arbitrary, oppressive, discriminatory or without basis in reason. Clearly, no such showing was made here.

The trial court’s second finding, that some of the properties especially benefitted by the assessment are not subject to the assessment, must also fall. The fees assessed, as we’ve said, are for a “service”; and only those properties assessed (the residential units) enjoy the service. The mere fact that the community at large, or the commercial properties within the service district, peripherally may also enjoy the cleaner and garbage-free environment does not change this; and the residential owners affected can no more complain of the “service charges” to them any more than the commercial users can be heard to complain when compelled otherwise to dispose of their garbage — the entire matter of garbage and waste disposal, after all, being within the police prerogatives of the county.

Finally, the trial court’s fourth reason for voiding the ordinance, i. e., because it does not require that the amount of the assessment equal or approximate the benefit, is also fatally defective. First of all, there is no contention made here that the fees charged for the services furnished are unreasonable as to amounts. Secondly, the total of the charges collected for the total services is paid out to the franchised disposal company and no profit is made by the county (thus, incidentally, there is no improper “tax” aspect inuring to the benefit of the county at large). Thirdly, the entire cost of the services to the residential units is equally distributed among such units. It necessarily follows, therefore, that since all residential units bear equal prorata shares of the costs for equal prorata shares of the service, the proportionate “benefits” equal the apportioned costs. The general rule relating to “special assessment,” viz., that the “special benefit” must be commensurate with the “special charge,” is accordingly satisfied.

In sum, we hold that the assailed ordinance is valid and that the service charges provided for therein may be assessed and levied as a “special assessment.” In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

SCHEB and OTT, JJ., concur.

      . See Gleason v. Dade County, 174 So.2d 466 (Fla.3d DCA 1965).

      . 168 So.2d 192 (Fla.3d DCA 1964).

      . See South Trail Fire Control District, Sarasota County v. State, 273 So.2d 380 (Fla.1973); and Fire District No. I of Polk County v. Jenkins, 221 So.2d 740 (Fla.1969).

      . See n. 2, supra.

      . See n. 3, supra.

      . Cf. Clein v. Lee, 146 Fla. 306, 200 So. 693 (Fla.1941).

      . See, e. g., Meyer v. City of Oakland Park, 219 So.2d 417 (Fla.1969).