text:
    Bernice RUTENBERG, Appellant, v. Arthur RUTENBERG, Appellee.
    No. 75-1324.
    District Court of Appeal of Florida, Second District.
    June 30, 1976.
    James D. Wing and Wm. Reece Smith Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    John R. Parkhill, Tampa, for appellee.
   GRIMES, Judge.

In this appeal from a judgment of dissolution, much of the wife’s argument is directed to the alleged insufficiency of the alimony award. While the members of this court might have been inclined to be more generous had the case been tried before us, from our vantage point we cannot say that error was committed. Since the outcome of a suit for dissolution is so dependent upon the testimony and the credibility of the witnesses, the determinations of the trial court cannot be lightly set aside. Shaw v. Shaw, Fla.1976, 334 So.2d 13.

The wife’s claims to portions of the rentals from five long-term land leases warrants further discussion. Record title to the properties is held by the husband and a corporation controlled by his brother. In 1966 and 1967, the properties were leased to another Rutenberg corporation. However, in each of the leases, the husband and the wife were named among the lessors of the real estate. As a consequence, the wife claims that she is entitled to one-fourth of the rents payable under the leases.

The husband testified that he had no intention of making a gift of an interest in these rentals to his wife. He said he was not even aware of his wife’s name being on the leases until this dissolution proceeding was commenced. The husband explained that he and his brother were financial partners in two types of businesses. He conducted a house building business and his brother devoted his time to land developing. Pursuant to a tacit understanding, he said that he would sign numerous papers relating to land development upon his brother’s assurances and his brother would do likewise with respect to the housing business. Thus, he suggested that he probably signed these leases which had been arranged by his brother without even reading them.

The leases were, in fact, prepared upon instructions from the husband’s brother. The leases were drafted by a Hallandale lawyer who had no contract with the husband. A letter from the husband’s brother to the lawyer was introduced into evidence in which it was stated that the husband and wife are owners of an undivided one-half interest in the properties. The husband’s brother said he had no recollection of why he specified the ownership of the property in that manner. According to instructions, the lease was drafted in a manner which reflected the wife as a lessor rather than as a spouse who is simply releasing her dower rights.

The wife testified that the husband had told her that he was going to have the leases put into their names rather than the names of their children so that they would have a source of income independent of their corporation. The husband denied this conversation. The same witnesses attested both signatures, but the husband said that his wife usually signed instruments requiring her signature at home rather than at the office and that the witnesses would recognize her signature.

The wife contributed no money to the purchase of the properties, and the husband alone had signed the promissory note which was secured by a mortgage on the properties. The husband had never given his wife an interest in any other property which he owned. The lease called for the rentals to be deposited in a bank, and the husband withdrew these monies from time to time. The wife never made a claim to any of the rentals until the suit began.

The court concluded that the husband did not make a gift to his wife of any interest in the leases or the proceeds thereof and that no estate by the entirety had been created. The wife contends that the legal effect of the leases themselves was to raise a presumption that a tenancy by the entirety had been created. She argues that her interest must be preserved because her husband failed to present evidence meeting the requisite burden to rebut this presumption.

Several Florida decisions hold that where a husband conveys property owned in his sole name to a third party and takes back an instrument in payment naming both him and his wife as payees, a tenancy by the entireties is presumed to be created in the proceeds. Powell v. Metz, 55 So.2d 915 (Fla.1952); Lauderdale v. Lauderdale, 96 So.2d 663 (Fla.App.3d 1957); Anderson v. Anderson, 153 So.2d 24 (Fla.App.3d 1963). This presumption can be overcome only by “conclusive evidence” (Powell v. Metz, supra) or by “clear, positive and unequivocal evidence” (Lauderdale v. Lauderdale, supra; Anderson v. Anderson, supra), or by “clear and convincing evidence,” cf. Abbott v. Abbott, Fla.App.2d 1974, 297 So. 2d 608.

The only Florida case involving a wife’s claim to an interest in rental payments from her husband’s property by reason of being designated as one of the lessors in the lease is Cantor v. Palmer, Fla.App.3d 1964, 163 So.2d 508. In affirming the trial court’s conclusion that there was no clear intention expressed in the lease to create an estate by the entirety in the unaccrued rents, the court said:

“It should be further noted, in support of the chancellor’s conclusion, that the husband is the sole grantor under this lease and that there is no implication of a gift as was the case in Powell v. Metz, Fla. 1952, 55 So.2d 915; Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727; See also Lauderdale v. Lauderdale, Fla.App. 1957, 96 So.2d 663; Anderson v. Anderson, Fla.App.1963, 153 So.2d 24. In the cases just cited there was a separate instrument presumably made at the husband’s direction in which the wife was granted her interest in the property. In the instant case it is sought to infer a tenancy by the entirety from the fact that the wife’s name appears as a lessor with the description ‘his wife’. Such an implication is against reason where, as in this case, it was necessary for the wife to join the husband in the lease instrument upon his property in order to release her inchoate dower for the term of the lease.”

The only apparent difference in the Cantor lease and the one in the instant case is that the lease there specifically stated that the rent should be paid to the husband.

In Tingle v. Hornsby, Fla.App. 1st 1959, 111 So.2d 274, a widow claimed that she had become a tenant by the entirety in land owned by her husband by virtue of the fact that they had joined together in a contract to sell the land prior to his death. In the course of reversing of summary judgment to permit the parties to fully litigate the question of intent, the court said:

“. . . [W]e do not mean to hold that title to every contract of sale executed by a husband and wife jointly will be vested in them by the entirety. Whether or not such an estate is created depends upon the nature of the transaction and the intent of the parties as reflected by the language employed in the contract. If by the plain language used it is clearly apparent that there was no intention to create an estate by the entirety, none will be presumed. On the other hand, if from the clear and unambiguous language of the instrument, it appears that the benefits were intended to accrue to the husband and wife jointly, such would give rise to the presumption that an estate by the entirety was intended.
“We are of the opinion that the language employed in the disputed contract here considered is no more inconsistent with an intention to create an estate by the entirety than with a contrary one. In the absence of language showing clearly the intent of the parties one way or the other, it is always appropriate to investigate the facts and circumstances surrounding the transaction. . . .”

Likewise, in the instant case, we cannot say that the language of the leases clearly shows the intent of the husband one way or the other. The court heard evidence relating to the facts and circumstances surrounding the transactions and found that gifts had not been intended. Since there is evidence to support this conclusion, it must not be disturbed.

AFFIRMED.

HOBSON, Acting C. J., and SCHEB, ]., concur.


source: Caselaw Access Project

author: McNULTY, Chief Judge.

license: Public Domain

text:
    Isaac Calvin BARR, Appellant, v. STATE of Florida, Appellee.
    No. 75-758.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.
    Jack O. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Chief Judge.

Appellant appeals a 60-year sentence for robbery and a 6-months sentence for contempt for calling the trial judge a son-of-a-bitch.

His assault on the robbery sentence, on the ground that it exceeds the statutory limit of “life” since his life expectancy is less than 60 years, is patently without merit. No error appearing otherwise on the robbery conviction, the judgment and sentence therefor are left undisturbed.

The conviction for contempt, however, is fatally defective. It undisputedly appears that at the sentencing on the aforementioned robbery, and after having heard his sentence, appellant uttered the words “son-of-a-bitch” towards the court. The trial judge admits that he did not hear these comments, although the bailiff and other persons in the courtroom did. The bailiff conferred with the trial judge and brought the matter to the court’s attention. The court then ordered appellant returned before him and cited him for contempt. He thereupon summarily imposed an additional sentence of five years for the contempt to be served consecutively with the robbery sentence.

After a recess, the court reconsidered and set aside the judgment and sentence for contempt. He immediately conducted an evidentiary hearing and, after taking testimony including that of appellant, found appellant guilty of direct criminal contempt. He promptly sentenced appellant to a term of six months in the county jail, again to run consecutively with the robbery sentence. Those proceedings cannot stand.

Rule 3.830, RCrP, relating to “direct criminal contempt,” provides that criminal contempt may be punished summarily if the court “saw or heard the conduct constituting the contempt committed in the actual presence of the court.” Here, as noted above, the trial judge did not hear the comments of the alleged contemnor. There was, therefore no direct criminal contempt.

If anything, appellant’s utterances constituted “indirect” criminal contempt within the purview of Rule 3.840, RCrP, relating to actions outside the presence of the court. Significantly, subsection 5 of that rule provides that: “If the contempt charged involves disrespect to or criticism of a judge he shall disqualify himself from presiding at the hearing. Another judge shall be designated by the Chief Justice of the Supreme Court.” Having not heard or directly witnessed the contempt herein, therefore, the trial judge ought not to have presided over the plenary hearing summarily held as aforesaid.

Parenthetically, we point out that a judge may not impose a sentence of six months or greater upon a judgment of guilty of contempt unless a jury trial has been afforded the accused. The sentence imposed for the contempt herein, being precisely for six months, was therefore also defective. We are certain that these considerations will be taken into account on remand.

In view whereof, the judgment and sentence entered and imposed herein for the offense of robbery should be, and they are hereby, affirmed. The judgment and sentence entered and imposed herein for the offense of contempt, however, should be, and they are hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES and SCHEB, JJ., concur.

      . See Aaron v. State (Fla.1973), 284 So.2d 673.


author: PER CURIAM.

text:
    Willie Charles WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 75-960.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1976.
    Rehearing Denied July 29, 1976.
    Richard L. Jorandby, Public Defender, and Craig Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The judgment of conviction and sentence are reversed and the case remanded for a new trial upon authority of Bostic v. State, 332 So.2d 349 (Fla.App. 4th, 1976).

REVERSED AND REMANDED.

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


text:
    Dennis MAGNIN, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1201 and 75-1202.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.
    Jack O. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

In Case No. 75-1201 appellant pled guilty to breaking and entering with intent to commit a felony and in Case No. 75-1202 he pled guilty to grand larceny. The crimes were both committed in February 1975. He was sentenced to two years imprisonment for the grand larceny charge. The maximum sentence for breaking and entering with intent to commit a felony is 15 years; notwithstanding, the trial court placed appellant on probation for a period of 17 years.

Appellant contends that the term of probation was improper. We agree. In Watts v. State, Fla.App.2nd, 1976, 328 So. 2d 223, in an opinion authored by Judge Scheb, this court held that the elimination of the provision in Fla.Stat. § 948.04, that probation could not extend more than two years beyond the maximum possible sentence, limited the power of the courts to impose a period of probation beyond the maximum permissible sentence except where expressly provided by law.

Accordingly, the judgment and sentence in Case No. 75-1202 are affirmed; the judgment in Case No. 75-1201 is likewise affirmed, but we remand for the trial court to impose a term of probation in Case No. 75-1201 consistent with this opinion.

BOARDMAN, Acting C. J., and. GRIMES and SCHEB, JJ., concur.

      . See Ch. 74-112, effective July 1, 1974.


author: BOARDMAN, Judge.

text:
    PINELLAS COUNTY, a political subdivision of the State of Florida, Appellant, v. JASMINE PLAZA, INC., a Florida Corporation, Appellee.
    No. 75-1433.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.
    James A. Helinger, Jr., Asst. County Atty., Clearwater, for appellant.
    Edmund S. Whitson, Jr., of Whitson & Whitson, Clearwater, for appellee.
   BOARDMAN, Judge.

Pinellas County, appellant, sought by mandatory injunction to enjoin Jasmine Plaza, Inc., appellee, to replace certain trees and recover a civil penalty for removal of said trees from its property without first obtaining a tree removal permit, pursuant to County Ordinance 72-9, as amended by County Ordinance 74-5. Ap-pellee filed its answer to the complaint and affirmative defenses and, thereafter, filed a motion for summary judgment. After hearing, the trial judge entered an order granting summary judgment in favor of the appellee finding that:

The only limitation upon the discretion of the County Administrator, if it be a limitation, is found in paragraphs (a) (b) and (c) of Section 8, [Pi-nellas County Ordinance 72-9 as amended 74 — 5] as follows:
“(a) The condition of the trees with respect to disease, danger of falling, proximity to existing or proposed structures, and interference with utility services;
(b) Necessity to remove trees in order to construct proposed improvements to allow economic enjoyment of the property;
(c) Topography of land and the effect of tree removal on erosion, soil retention and the diversion or increased flow of surface waters.”

Additionally, the trial court, in the summary judgment, adjudged, in pertinent part that:

(a) Pinellas County Ordinance 72-9 as amended by 74-5 is unconstitutional, violative of the Constitution of the State of Florida and of the United States Constitution in that it appropriates for public purpose private property without just compensation and without due process of law.
(b) Ordinance 72-9 supra is unconstitutional in that it delegates to the County-Administrator powers and authority without providing standards, criteria, or limitations in the exercise of said powers and authority.
(c) The Court finds that the Countv does have the authority to enact reasonable regulations concerning the preservation and protection for the growing of and removal of trees in the county and this Order is to be construed only as a ruling that Ordinance 72-9 is bad by virtue of its application and effect. .

Appellant filed its motion for rehearing which was denied. This appeal timely followed.

Appellant has raised three points on this appeal. After review, we find that, in essence, there is one basic issue before us, that being whether said ordinance delegates power to the county administrator without providing adequate standards or guidelines.

It is a fundamental principle of law that a proper delegation of legislative authority to one of its administrative officers must impose sufficient guidelines upon that officer in order to withstand constitutional attacks. Without said criteria the decisions of the designated official could be arbitrary or capricious.

The trial court correctly found that the county has the authority as an agency of the State of Florida to adopt Ordinance 72-9 as amended by 74-5, to protect the general welfare, public health and safety. What concerned the trial court, as it does this court, is whether the guidelines and standards to be applied by the county administrator in deciding whether to approve or deny the issuance of a tree permit, as set out in paragraphs 8(a), (b) and (c) of the ordinance constituted an unlawful delegation of authority because it granted the administrator the power to arbitrarily decide each case. We agree with the trial court and hold that the ordinance, as presently enacted, is overly broad, imprecise and too loose.

The rationale for our holding may be found in Early Mobile Homes, Inc. v. City of Port Orange, Fla.App.lst, 1974, 299 So. 2d 56:

. [I]t is fundamental in our legal system that when the power to issue or deny permits is delegated to an official, it must be accompanied by definitive standards upon which the official’s decision must be based. Because of the absence of such guidelines in the instant case, the ordinance must fall. [299 So. 2d 56, page 57].

See, also, North Bay Village v. Blackwell, Fla. 1956, 88 So.2d 524; Drexel v. City of Miami Beach, Fla.1953, 64 So.2d 317; City of St. Petersburg v. Schweitzer, Fla. App.2d, 1974, 297 So.2d 74, cert. den., Fla. 1975, 308 So.2d 114; City of Homestead v. Schild, Fla.App.3d, 1969, 227 So.2d 540; and Mid-State Homes, Inc. v. Ritchie, Fla.App.lst, 1966, 181 So.2d 725.

This decision does not preclude the appellant from passing an appropriate tree ordinance that meets constitutional standards consistent with this opinion.

Accordingly, the trial court’s ruling in declaring the ordinance herein involved to be unconstitutional is

AFFIRMED.

McNULTY, C. J., and HOBSON, J., concur.


author: PER CURIAM. DOWNEY, Judge

text:
    James Frank LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 75-648.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1976.
    Rehearing Denied July 19, 1976.
    Marc L. Lubet of Levine & Cohen, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and MAGER, JJ., concur.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge

(dissenting).

Appellant James Frank Lewis, J. Milton Crosby, Timothy Turner, and David Blu-menauer had a flat tire in a residential area late one evening. While Blumenauer and Turner were changing the tire Crosby and appellant walked over to a Winnebago camper and a Mustang automobile parked on the street in front of a nearby house.

A witness for the state testified that he observed two of the four individuals walk over to the camper and the Mustang. One of them entered the camper and exited with some object. The other individual was standing by the Mustang with the door open looking in.

Crosby testified that when he started over toward the camper appellant had told him not to take anything. Appellant followed him over to the camper and remonstrated with him. Appellant did not enter either vehicle; he did not participate in any way in the breaking and entering or the larceny. Turner also testified that he heard appellant trying to talk Crosby out of taking anything from the vehicles. Finally, appellant testified that he had not participated with Crosby in the criminal acts charged; in fact he had followed him trying to talk him out of any criminal act.

In summary, the incriminating evidence against appellant is that he was present at the scene of the crime. All of the other evidence either failed to show any participation on appellant’s part or it absolutely refutes his participation.

The case against appellant is circumstantial. Therefore the state had the burden to prove that guilt was the only reasonable hypothesis which could be drawn from the facts presented. If there is a reasonable hypothesis of innocence demonstrated by the proof, the state cannot prevail. McGuire v. State, 288 So.2d 271 (Fla.App. 4th, 1974); Lockett v. State, 262 So.2d 253 (Fla.App. 4th, 1972). In my judgment the facts of this case are much stronger for reversal than those of either of the above cited cases.

Without belaboring the point further, it appears to me this is a clear case for application of the circumstantial evidence rule. A proper application of that rule to these facts requires appellant’s discharge.

Accordingly, the judgment and sentence appealed from should be reversed and upon remand appellant should be discharged.


text:
    Dalton ABBOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1791.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied July 29, 1976.

      Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Steven Ginsburg, Legal Intern; Richard E. Ger-stein, State’s Atty., and Lance R. Stelzer, Asst. State’s Atty., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant, Dalton Abbott, was one of the defendants in an information which charged him in two counts. Other defendants were charged in other counts. Defendant Abbott was charged with conspiracy to commit a felony, to-wit: accessory after the fact and with being an accessory after the fact to the crimes of grand larceny, forgery and uttering forged instruments. He was found guilty by a jury, adjudication and sentence were entered and this appeal ensued.

The principal defendant at the trial of the seven defendants was S. K. Bronstein who was charged in sixty-three counts with appropriation of monies belonging to Cedars of Lebanon Hospital Corporation, an institution in Miami, Florida. In substance, those counts charged that Bronstein, the President of the Cedars of Lebanon Hospital Corporation, wrongfully caused that hospital to issue twenty-one checks to various payees, which were fraudulently endorsed and cashed and the proceeds of which were appropriated by Bronstein.

Abbott has presented four points for our consideration in this appeal. We have studied the voluminous record of the trial court proceedings in this cause and we conclude that none of the points demonstrates reversible error. All four points will be discussed in this opinion.

The first point is whether the trial court erred in denying a co-defendant’s motion for continuance based on television and newspaper publicity prior to trial. It is a general rule that the trial judge is vested with broad discretion in matters of a requested continuance, and by virtue of his closeness and intimacy with the circumstances of the case he will not be reversed on appeal unless there is a clear showing of a palpable abuse of this judicial discretion. Matera v. State, Fla.App. 1969, 218 So.2d 180; Sikes v. State, Fla.App.1973, 280 So.2d 17.

During voir dire examination of the prospective jurors, each juror was asked whether he/she had heard, read or seen anything about the case. Those who replied affirmatively were asked whether or not what they observed caused them to form an opinion as to the guilt or innocence of the defendants. Of the sixty-five persons who had some form of knowledge about the case, only seven responded that they had formed an opinion, and two were not sure whether they had an opinion. Four of these nine were promptly excused for cause based on their statements of opinion. The other five were ultimately excused and formed no part of the final jury panel. The remaining prospective jurors (fifty-six) all stated that they had formed no opinion as to the guilt or innocence of any of the defendants. The panel indicated that they understood that what was read or seen outside of court did not constitute evidence, and they agreed to consider only the evidence presented at trial. The jurors were asked if they could lay aside anything they may have read, observed or heard, or any feelings they might have. The response was affirmative. Affirmative response also came when questioned if they could give both the defendants and the State a fair and impartial trial. The jurors promised to consider each individual defendant separately. As to the television publicity, only sixteen prospective jurors saw anything at all about the case. At least thirty-four jurors saw absolutely nothing. Of those that saw anything on television, what they saw was characterized by the jurors themselves as: a glimpse, a few times, very little, no court proceedings, once over a month ago, twice, but nothing recently, and no opinion of what was seen, a little, but didn’t learn from it nor remember. On the question of newspaper publicity, some of the jurors stated they seldom or hardly read the newspaper. Others restricted their readings to such sections as sports, television, comics and horoscopes. Others managed to “glance” through the newspaper or see headlines relating to the case. These people did not read any of the articles. Most of these people were not interested in what they read, did not remember anything, and only noticed anything several months prior to the trial when the story first broke. Only a few answered that they read articles relating to the case. Of all of the jurors who indicated they had heard or read something about the case, none of them knew of defendant Abbott, appellant herein.

In a case such as this, when the publicity is neither inherently inflammatory nor the circumstances of the case egregiously prejudicial, the declarations of the jurors as to their impartiality must be dis-positive unless the appellant surmounts the burden of showing actual substantial prejudice to him from trial before the jury. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Gordon v. United States, 5th Cir. 1971, 438 F.2d 858; United States v. D'Andrea, 3rd Cir. 1974, 495 F.2d 1170, 1172 fn. 5. Based on the foregoing, we find that the trial judge did not abuse his discretion in denying the motion for continuance based on pretrial publicity.

The second point is whether the trial court erred in denying the defendant’s motions for severance made prior to and during the course of the trial. The thrust of this point is a 3-pronged attack, contending (1) that the trial court erred in denying Abbott’s motion for severance seeking relief from misjoinder; (2) that the trial court erred in denying his motion for severance where it was shown that Bronstein, the principal defendant, charged with 63 counts of larceny, forgery and uttering forged instruments, would give exculpatory testimony on behalf of Abbott if a severance were granted; and (3) that the trial court erred in denying Abbott’s motions for severance seeking relief from prejudicial joinder because evidence irrelevant to Abbott was introduced against Bronstein which was prejudicial to Abbott, and because verbal exchanges between Bronstein’s counsel and the prosecutors, in the presence of the jury, rendered a fair trial for defendant Abbott impossible.

On the question of misjoinder, Rule 3.150(b), Florida Rules of Criminal Procedure, provides:

“(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information upon which they are to be tried:
(1) when each defendant is charged with accountability for each offense charged;
(2) when each defendant is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy; or
(3) when, even if conspiracy is not charged and all defendants are not charged in each county, it is alleged that the several offenses charged were part of a common scheme or plan.
Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.”

Rules 3.150, 3.151 and 3.152 of the Florida Rules of Criminal Procedure provide for one trial in instances involving related offenses as well as those instances involving several defendants charged with the same offense. Certainly, conspiracy to cover up a larceny is a related offense. In Wilson v. State, Fla.App.1974, 298 So. 2d 433, 434-435, the rule is stated that joinder is not proper unless:

“. . . the charging document makes one of the following allegations: (a) each defendant is charged with accountability for each offense, or (b) each defendant is charged with conspiracy, or (c) the several offenses charged are part of a common scheme or plan. The answer lies in the interpretation of Rules 3.150(b) and 3.152(b), RCrP, and authorities construing similar federal rules.”

We hold that the joinder of defendant Abbott with defendant Bronstein has not been shown to be error.

On the question of severance due to Bronstein’s willingness to give exculpatory testimony on behalf of Abbott, Rule 3.152 (b), RCrP, concerning “Severance of defendants,” in pertinent part, provides:

“(1) On motion of the State or a defendant, the court shall order a severance of defendants and separate trials:
(i) before trial, upon a showing that such order is necessary to protect a defendant’s rght to a speedy trial, or is appropriate to promote a fair determination of the guilt or innocence of one of more defendants . . .”

Motions for severance are addressed to the sound discretion of the trial judge and the order will not be reversed except for palpable abuse of judicial discretion. Grech v. State, Fla.App.1971, 243 So.2d 216, 218. Therefore, it is incumbent upon a defendant who appeals a denial of his motion for severance to show at least a likelihood that he did not get a fair trial because of the denial of the motion to sever. The only possibility of prejudice to Abbott that is urged is that Abbott was deprived of Bronstein’s testimony that he, Abbott, did not know of Bronstein’s larceny. But Bronstein could not testify as to what Abbott knew or did not know. The best that Bronstein could do for Abbott would be to testify that he did not tell Abbott that he, Bronstein, was guilty. Abbott’s guilty knowledge, or lack of it, had to be determined by the jury from the circumstances surrounding Abbott’s actions in attempting to help Bronstein to cover up the illegal dispositions of the hospital’s money.

Judicial efficiency and economy dictate one trial where possible. Cf. Eagle v. State, Fla.App.1971, 249 So.2d 460. In addition, Bronstein’s offer to tender testimony was contingent upon Abbott’s being tried in a “separate later trial,” and was conditioned upon Bronstein’s being removed from criminal jeopardy. It is not clear whether this means after acquittal or after the exhaustion of appellate remedies. If the latter is the meaning, Abbott was asking for an indefinite postponement of his trial. This is a clearly impractical proposal. It is clear that Bronstein’s offer to testify for Abbott was not an unconditional offer to testify at a separate trial. Because no real prejudice has been shown and because the possibility of helpful testimony from Bronstein was too remote, the court did not err in denying the motion to sever on this ground.

As to the interaction during trial between Bronstein’s counsel and the prosecutor, the record reflects that the former was held in contempt on six occasions during the trial, and the latter on one occasion. In our opinion, however, the remarks they made were not so prejudicial as to have required a declaration of a mistrial or granting a severance. It has long been held that the granting or denial of a motion for mistrial is a matter of discretion with the trial judge. Garcia v. State, Fla.App.1962, 142 So.2d 318; Reis v. State, Fla.App.1971, 248 So.2d 666, 670. Such motion should never be granted in the midst of a criminal trial unless there is an absolute legal necessity to stop the trial and discharge the jury. Kelly v. State, Fla.App.1967, 202 So.2d 901, 903; Reis v. State, supra.

During closing arguments, counsel advised the jury, as did the court during the course of the trial and in its instructions to the jury, to disregard the editorial comments made by the attorneys, since such comments are not evidence. No abuse of discretion has been shown in the denial of the motions for severance on this ground or on the other grounds discussed above.

The third point is whether the trial court erred in denying Abbott’s motion for judgment of acquittal where the evidence was insufficient to support the convictions as charged in the information. The burden of establishing error is always on the appellant. The verdict or judgment of guilt having arrived in this court clothed with a presumption of correctness, all inferences to be drawn from the evidence are to be in favor of the verdict or judgment of guilt. Crum v. State, Fla. App.1965, 172 So.2d 24, 25. As a general proposition, it is the burden of the appellant to make error appear in the record. Bryant v. State, Fla.App.1967, 204 So.2d 9. Conflicts in evidence and the fact that it may have been susceptible of differing inferences and presented the trier of the facts with questions as to credibility of witnesses and weight to be given to testimony and other evidence presented, will not establish insufficiency of the evidence to sustain a judgment of conviction when the record discloses there was competent substantial evidence in law for its support. Wetherington v. State, Fla.App.1972, 263 So.2d 294, 295. Without a recitation of the myriad facts in evidence implicating defendant Abbott, suffice it to say that from our review of the record, it is clear that there is competent substantial evidence to support the verdict and conviction of guilt.

Defendant’s fourth point is whether the trial court erred in denying Abbott’s motions for mistrial based on the prosecutors’ prejudicial comments during closing arguments to the jury. Each case involving an alleged impermissible appeal by the prosecutor to the sympathy of the jury must be considered on its own merits and within the circumstances pertaining when the questionable argument was made. Breniser v. State, Fla.App.1972, 267 So.2d 23, 26. The burden is on the defendant to show that the comments of the prosecutor constituted harmful error, since prosecu-torial comment may constitute harmless error. Falcon v. State, Fla.1969, 226 So.2d 399. In order to constitute reversible error, the comments must be so fundamentally tianted that neither objection nor retraction could entirely destroy their sinister influence. Sherman v. State, Fla.1971, 255 So.2d 263, 266. Having reviewed the closing arguments of the prosecutors in this case, we are of the opinion that they were neither harmful nor so fundamentally tainted that neither retraction nor request for cautionary instructions could destroy their alleged possible harmful influence. Therefore, reversal on this point is unwarranted.

Affirmed.


text:
    Max J. BROWN, Individually and as Trustee, Appellant, v. J. Bruce VINING, Appellee.
    No. 75-431.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Rehearing Denied July 29, 1976.

      Norman F. Solomon and David M. Bernstein, Miami, for appellant.
    Horton, Perse & Ginsberg, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, Max J. Brown, individually and as Trustee, seeks review of an adverse final judgment after non-jury trial in a suit against defendant, J. Bruce Vining, a registered real estate broker.

Plaintiff’s complaint alleged that plaintiff was a trustee and part owner, individually, of certain land which he sold to For-ney B. Stafford, as trustee, in March 1971 ; that Vining, by contract, was to, and did, receive a brokerage commission for furnishing Stafford, as trustee, as the purchaser; that at the time of the execution of the purchase agreement, Vining was an agent of J. E. Greiner Company, Inc., consulting engineers to the Florida State Department of Transportation, who were retained to locate rockpits for expressway purposes; that Vining, by scheme, defrauded plaintiff by not advising plaintiff that he (Vining) was the true purchaser and that he was an agent for the Greiner Company; that Vining made a secret unconscionable profit from the land he purchased from Brown and, therefore, because of his fiduciary capacity as a real estate broker, a constructive trust was created in favor of the plaintiff which entitles Brown to a return of the real estate commission and profits made by Vining by virtue of the sale of rock to the Florida State Department of Transportation. Vining answered, denying such allegations, issue was joined, and the cause tried. After voluminous testimony, the trial court made the following findings of facts and conclusions of law,

“THAT in March of 1971, the Defendant, VINING, a real estate broker, answered a newspaper ad (Defendant’s Exhibit A) run by J. A. CANTOR AND ASSOCIATES offering land for sale. At all times, VINING acted and represented that he acted solely for the purchasers. This is admitted in Plaintiff’s Amended Complaint. J. A. CANTOR, a registered real estate broker, was acting for the seller and had an ownership interest in the property as well. On March 20, 1971, Plaintiff contracted to sell the land to VINING’S purchaser, FORNEY B. STAFFORD, as Trustee for $4,800.00 per acre, a gross purchase price of $289,-872.00. It was admitted that after the contract, but prior to the closing, VIN-ING informed CANTOR’s sales manager, Sidney Houseman, that he, VIN-ING, in addition to being the purchaser’s broker, had an ownership interest as purchaser. (Transcript of Mr. Houseman’s testimony Pages 6 thru 10).
THAT J. BROCE (sic) VINING knew that the West Dade Expressway was being constructed in the general area of the property. J. A. CANTOR, also, knew, or should have known, that the expressway was coming through and maps showing its location were prominently displayed in CANTOR’s sales office.
THAT this court further finds that the Plaintiff had knowledge at all times material to this cause of the fact that certain testing, i. e. surveys and obtaining of engineering data was to be done on behalf of the Defendant, J. BRUCE VIN-ING, as set forth in Paragraph 13 of Plaintiff’s Exhibit 2 wherein the sellers granted the buyers its agents or its representatives access to the premises for the purposes of making soil surveys and other engineering data.
THAT immediately, upon signing the purchase contract, VINING negotiated an option with the agents of the Florida State Department of Transportation for a borrow pit on the land. The option price on the land was $61,500.00. There was no obligation to exercise the option on the part of the State, or any indication that it would, in fact, be exercised. Had it been unexercised, VINING and STAFFORD would have received the $61,500.00 but would still have owed $228,372.00 on the purchase price. It was alleged that VINING was an agent of the consultants of the Florida State Department of Transportation. This 'Court finds that he was not. There was no creditable evidence presented by Plaintiff on this point. The option was, in fact, later exercised and VINING and STAFFORD made a profit. Plaintiff now seeks either the return of the commission paid to VINING or a constructive trust of the profits made.
THAT this Court finds on the evidence presented that no scheme, fraud or misrepresentation was practiced on the Plaintiff. The Plaintiff knew that at all times that VINING was acting as an agent for the purchaser and not as his agent. The Plaintiff knew, or should have known as an experienced real estate broker, at all times that the West Dade Expressway was to be erected near his property. At the time the property was sold no one knew exactly when, if ever, this property would be used by the Department of Transportation as a borrow pit as only an option agreement had been negotiated with J. BRUCE VINING and not a binding contract.”

The question preserved for review by Brown is whether the record reflects substantial competent evidence to support the final judgment in favor of Vining. Brown contends that he proved that Vining concealed the fact that he was the true purchaser of the property and made a secret profit on the purchase which imposed a constructive trust in Vining (by virtue of his fiduciary relationship) for the benefit of Brown for the profits and commission obtained by Vining out of the transaction.

The law is well settled that the existence of a constructive trust must be proved by clear and convincing evidence. Carberry v. Foley, Fla.App.1968, 213 So.2d 635. The trial court entered detailed findings of fact. It is not within the province of this court to substitute its judgment for that of the trier of fact unless the record clearly reflects that the findings and conclusions by the trial court are not supported by any substantial competent evidence. Old Equity Life Insurance Company v. Levenson, Fla.App.1965, 177 So.2d 50. While we might have reached a different conclusion if we had been the initial arbiter of the facts in this case, we have carefully reviewed and considered the record and find there was sufficient evidence to support the final judgment herein.

Affirmed.


author: PER CURIAM. NATHAN, Judge

text:
    Agnes LAIRD, Appellant, v. Charlotte VOGEL, a/k/a Charlotte Chester and Herman Cohen, Appellees.
    No. 75-867.
    District Court of Appeal of Florida, Third District.
    May 26, 1976.
    Rehearing Denied July 29, 1976.
    Walter & Pelaia, Miami, for appellant.
    Herman Cohen, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   ON REHEARING

PER CURIAM.

This appeal by Agnes Laird is from a summary judgment for the defendants Charlotte Vogel and Herman Cohen in an action brought by Agnes Laird for fraud and deceit, malicious prosecution and abuse of process.

The cause grew out of litigation over a tax deed. A tax sale was held on Agnes Laird’s property at which Charlotte Vogel was the successful bidder. Ms. Laird maintained that the tax sale was illegal and refused to remove her possessions from the property. Ms. Vogel was represented by her brother, Herman Cohen, who had formerly represented Agnes Laird. A tax deed was issued to Charlotte Vogel who, thereupon, brought an unlawful de-tainer action against Agnes Laird. Ms. Laird filed an answer claiming the invalidity of the tax deed and claiming disqualification of purchase by Charlotte Vogel upon the basis of Herman Cohen’s former representation of Ms. Laird. On May 11, 1973, the circuit judge entered a summary judgment by default against' Ms. Laird. On May 24th, the court issued an order giving Ms. Vogel immediate possession of the property and, pursuant thereto, entered a writ of assistance. While Ms. Laird’s motion was pending, Charlotte Vogel took possession of the property pursuant to her deed and with the help of the sheriff under the writ of assistance. Ms. Laird’s possessions were removed from the house and suffered damage as a result thereof. On July 21, 1973, the circuit court rescinded the summary judgment and the order for possession which it had previously entered, and Ms. Laird was returned to her property. Thereafter, Ms. Laird started the court proceedings out of which the present appeal arose. She sued Charlotte Vogel and Herman Cohen for the damages caused by what she alleged to he an unlawful and fraudulent court proceeding. The trial judge entered a summary judgment against Ms. Laird holding that Charlotte Vogel and Herman Cohen had acted under a presumptively valid order and writ of possession, having previously secured a tax deed. We affirm. The law applicable to this cause is set out at 19 Fla.Jur. Judgments and Decrees § 253, where it is stated:

“A judgment or decree which is voidable, as being erroneous, is not a nullity. Until superseded, reversed, or vacated, it is valid, is binding everywhere, has all the attributes and consequences of a valid adjudication, and affords complete protection to one who acts in reliance upon the adjudication. Such an adjudication is conclusive, and is not subject to collateral attack.” (Emphasis added)

See the general rule in Bank of the United States v. Bank of Washington, 31 U.S. (6 Pet.) 8, 8 L.Ed. 299, 303 (1832); and State National Bank v. Ladd, 65 Okl. 14, 162 P. 684, 685 (1916). The law demands that we uphold actions authorized by an order of the court and taken under a presumptively valid tax deed. We so hold, even though it is clear that the actions taken here do not reflect credit upon Attorney Cohen in view of his prior representation of Ms. Laird and his apparent knowledge of the circumstances surrounding Ms. Laird’s property at the time of the tax sale.

Therefore, we hold that the trial court correctly found that Agnes Laird does not have an action against Charlotte Vogel and Herman Cohen for their actions in proceeding under a presumptively valid tax deed.

Affirmed.

NATHAN, Judge

(dissents).

I respectfully dissent and adopt the initial majority opinion of this court as follows:

This is an appeal by the plaintiff, Agnes Laird, in proper person, from an order granting a motion for summary judgment filed by the defendants, Herman Cohen and Charlotte Vogel a/k/a Charlotte Chester, and entering judgment for said defendants in an action for fraud and deceit, malicious civil prosecution, malicious criminal prosecution and abuse of process.

The plaintiff filed a complaint in the trial court alleging that the defendants knowingly and wrongfully secured a tax deed on the plaintiff’s homestead property, brought an unlawful detainer action to gain possssion thereof and caused all of the plaintiff’s furniture, possessions, private papers and personal effects to be placed on the street and damaged or stolen by vandals and thieves or ruined by exposure to weather conditions. The defendants filed an answer to the complaint, and the parties proceeded with discovery, Following several months of procedural skirmishing, the trial court entered summary final judgment for the defendants and this appeal ensued. The plaintiff present's the following questions for our consideration:

“1. Whether the Writ of Assistance without hearing or notice, was void ab initio ?
2. Whether or not Defendants having the Writ of Assistance committed Abuse of Process by stealthly and secretly breaking into Plaintiff’s homestead, throwing her household furnishing outside, and padlocking all the outer doors ?
3. Whether or not Defendants by their acts of breaking into Plaintiff's homestead became trespassers ab initio ?
4. Whether or not Defendants are liable in damages for maliciously and without probable cause prosecuting Plaintiff for trespassing on Plaintiff’s homestead, which charges were nolle prosequi by the Criminal Court in favor of Plaintiff?
5. Whether or not on the reversal of the Summary Judgment of Possession and the Writ of Assistance, defendants were liable for all damages, and restore Plaintiff to her original position before they broke into her Homestead, and dispossessed Plaintiff? ”

Having studied the briefs and the record on appeal including the depositions of all parties and the affidavits of the defendants, I concluded that there are genuine issues of material fact to be determined in this case by the trier of fact. Thus, summary judgment was precluded. See Holl v. Talcott, Fla.1963, 191 So.2d 40.

As to the plaintiff’s allegations of malicious civil prosecution, malicious criminal prosecution and abuse of process, it is clear that some of the elements required to prove up the charges are present. The criminal trespass charge filed by the defendants against the plaintiff, was determined in favor of the plaintiff when Charlotte Vogel Chester, the complaining witness failed to appear for the trial. In addition, the civil action for unlawful detain-er filed by the defendants against the plaintiff resulted favorably to the plaintiff when the plaintiff was granted relief from judgment of possession, the writ of assistance was set aside and the tax deed sale was set aside. Although I find it questionable whether the plaintiff could prove malice on the part of the defendants, her allegations that she had advised the defendant that the matter of her taxes was pending on appeal to the Florida Supreme Court when the tax deed sale took place, and that plaintiff remained on her premises under color of title after such sale, creates an issue of fact which may be dispositive of the question of malice.

I also find a material issue of fact as to the defendants’ liability for the damage, loss, destruction, mutilation and disappearance of the plaintiff’s belongings, furnishings and personal papers as alleged in her complaint. I took particular note of the fact that the defendants hired men to assist in the removal of the plaintiff’s property from the premises. These workmen were privately hired by the defendants and were in no way connected with the Sheriff who acted pursuant to a writ of assistance.

Accordingly, I would reverse the summary judgment and remand the cause to the trial court with directions to proceed consistent herewith.


text:
    Stanley B. GOLDBERG and Joyce Goldberg, his wife, Appellants, v. MAJORCA TOWERS CONDOMINIUM ASSOCIATION, a Florida Corporation not for profit, and Walter S. Macauf, its president, Appellees.
    No. 75-1293.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied July 29, 1976.
    Stanley B. Goldberg and Joyce Goldberg, in pro per.
    Michael Colodny, North Miami, for ap-pellees.

      Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Johnson v. Killian, 157 Fla. 754, 27 So.2d 345 (1946).


author: PEARSON, Judge.

text:
    SWEDISH EAST ASIA COMPANY, LTD., et al., Appellants, v. TOPP ELECTRONICS, INC., et al. Appellees.
    No. 75-1061.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied July 29, 1976.
    Fowler, White, Burnett, Hurley, Banick & Knight and William B. Milliken, Miami, for appellants.
    Milledge, Horn & Hermelee, Smathers & Thompson and Christian D. Keedy, Pred-dy, Haddad, Kutner, Hardy & Josephs and Michael J. Parenti, III, Miami, for appel-lees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

This appeal is from a final judgment for Topp Electronics, Inc, the plaintiff in the court below. The appellants, Swedish East Asia Company, Ltd, Ocean Steamship Company, Ltd, China Steamship Navigation Company, Ltd, together constituted the Blue Sea Line for the transactions involved on this appeal. (We will refer to them as the defendant Blue Sea Line.) The action was for failure to deliver goods, according to the bills of lading, shipped from various Asian ports.

The parties, other than Topp, are as follows: Fireman’s Fund Insurance Company is Topp’s insurer and is subrogated to Topp’s rights. Harrington & Co. was the stevedoring company that unloaded the shipments. Land Trucking Company was the land carrier.

Judgment was entered for Topp against Blue Sea Line after a trial before the court without jury. Blue Sea Line has appealed the judgment. Topp has cross-appealed, assigning as error the judgments for defendants Harrington and Land. Harrington has cross-assigned as error the order dismissing it without prejudice as to any claim of Blue Sea Line against it.

The trial was almost without any live testimony. The evidence was entirely documentary and was introduced upon the testimony of the office manager of the plaintiff, Topp. The evidence consists of bills of lading, packing slips, invoices and incoming warehouse shipment documents.

The theory asserted by Topp is that a prima facie case is established by a shipper against an ocean carrier and its agents by showing a clean bill of lading and proof that it did not receive the merchandise. Schnell v. The Vallescura, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373 (1934); Stein Hall & Co. v. S.S. Concordia Viking, 494 F.2d 287, 1974 American Maritime Cases 275 (2d Cir. 1974); The Titania, 131 F. 229 (2d Cir. 1904).

The subject matter of this appeal involves fifty-eight shipments of radios, tape recorders, phonographs and other miscellaneous electronic products manufactured in the Far East for Topp Electronics, a distributing company with its principal warehousing and office facilities in Miami, Florida. The great majority of these shipments left Far Eastern ports (principally Hong Kong and Yokohama) for Miami during July and August, 1971, aboard eleven sea carriers chartered or owned by Blue Sea Line. Clean bills of lading for all shipments were issued by Blue Sea Line naming Topp in Miami as consignee.

Upon arrival of the vessels at the Port of Miami, Harrington performed the steve-doring functions of unloading from the ships the merchandise reflected in the fifty-eight bills of lading. Land Trucking was the common carrier dispatched by Topp to the Port of Miami to pick up the merchandise reflected in the fifty-eight bills of lading for delivery to Topp’s warehouse.

When Topp received the merchandise at its Miami warehouse, it accounted for every carton described in every bill of lading issued by Blue Sea Line. It accomplished this through the use of “Warehouse Incoming Shipments” documents, each of which directly corresponded to a particular bill of lading, and included references to the name of the manufacturer of the product, name of the vessel, bill of lading number, and number of cartons on the bill of lading. Each such document contained 500 numbered boxes, each corresponding with an actual carton number reflected on the bill of lading. “Total cartons received” were then noted just below “Total cartons on B/L” (bill of lading). The specific cartons missing (pilferage) were noted in a box for “remarks and/or exceptions.”

When the bills of lading were issued in the Far East, Topp also was sent packing slips and invoices from the manufacturers, which directly corresponded to the bills of lading. These were all received by Topp within a few days of the loading of the ship. After matching the bills of lading with the invoices and packing slips, the “Warehouse Incoming Shipments” documents were prepared. The shipments would arrive in Miami a few weeks later.

When the fifty-eight shipments arrived at Topp’s warehouse, after handling by Blue Sea Line, Harrington and Land Trucking, it was determined by the above-described procedure that shortages existed as to fifty-six of the shipments.

Blue Sea Line and Harrington have each presented a point urging that the evidence was insufficient and that proof of shortage upon delivery to Topp’s warehouse is not proof that Topp did not receive the merchandise inasmuch as the merchandise was delivered at the dock to Topp’s agent, the land carrier, Land Trucking Company. In the words of Topp’s manager and only witness, the difficulty arises because:

^ ‡ * * ‡ *
“THE WITNESS: It was a mess. At this particular time it was the most unholy mess down at the piers that we ever went through, and I have been doing this eleven years at Topp’s and prior to that with another company, but this was the worst because of the impending strike, and we had to get the merchandise off the pier before the strike hit, because this was Christmas merchandise. As far as we were concerned — and we were pushing the trucking company and the steamship company to get it to us and get it off the pier.
* * * * * *
“MR. HERMELEE: The problem there, Your Honor, is that Land’s bill of lading used different quantums of measurement than Harrington’s. In many instances Land refers to its delivery as pallet. A pallet is, as you know, a platform of wood. It can have anywhere from six cartons to seventy cartons on it. Harrington is dealing in numbers of cartons always. If Land were also dealing in numbers of cartons, theoretically we can add up everybody’s number, but they were not using carton numbers.”
% ‡ * ‡ ‡ 5fc

A shortage of goods may be proved against a sea carrier when the shipper makes a showing of delivery in good order and outturn by the vessel in damaged condition. The documentary evidence here shows the delivery but not the outturn by the vessel in a damaged condition. The only evidence of the shortages is by count at Topp’s warehouse after another carrier, Land, had accepted delivery and had, in turn, carried the goods. It is clear that no count of other than cartons was made by Land. Therefore, it is not established that the sea carrier is responsible for damaged cartons.

In a multi-carrier shipment, the shipper may hold all carriers liable for proved shortages and the last carrier is liable until it proves delivery to it in the damaged condition. See Savannah, F. & W. Ry. Co. v. Harris, 26 Fla. 148, 7 So. 544 (1890); and Atlantic Coast Line R. Co. v. Hinely-Stephens Co., 64 Fla. 175, 60 So. 749 (1912). Therefore, under the bare facts proved by Topp, it may be entitled to a judgment against all the carriers but not against Blue Sea Line alone.

Appellant’s point directed to the jurisdiction of the court is not well taken. See Milhet Caterers, Inc., v. North Western Meat, Inc., Fla.App.1966, 185 So.2d 196.

In view of our holding that the court applied an incorrect principle of law in arriving at the judgment, the cause must be returned for further consideration. Appellant’s remaining points and the cross-assignments need not be considered.

The cause is remanded for further consideration by the court in the light of our holding and with directions to take such further testimony as the court shall find material.

Reversed and remanded.

HENDRY, J., dissents.


text:
    L. L. J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 73-970.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied July 29, 1976.
    Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

On February 27, 1975, appellant, a child of 14 years of age, was charged in a petition for delinquency with loitering and prowling in a parking garage at the Miami International Airport. An adjudicatory hearing was held. The judge of the juvenile court found “beyond and to the exclusion of any reasonable doubt that said child . . . did unlawfully loiter and prowl . . . ,” adjudication was temporarily withheld and the child was placed on probation in the custody of his mother under the supervision of the Division of Youth Services. This appeal ensued.

The evidence adduced at the adjudicatory hearing showed that on January 29, 1975, a uniformed Dade County Public Safety Department Officer observed the appellant and another youth walking into a parking garage at Miami International Airport. They walked between the motor vehicles on the ground level, exited the building and walked across to the next parking garage. When the appellant saw the officer, “. . .he turned, and said something to the other subject, and took off running, and the other subject hesitated and took off running.” The officer pursued the youths, lost sight of them and next saw the appellant crawling underneath a ramp to the building. The officer apprehended and arrested the appellant. The officer testified that the youths were not questioned as to what they were doing there until after they were placed under arrest for loitering and prowling. Following the testimony of the State’s witnesses, the State rested and defense counsel moved for judgment of acquittal on the grounds that the arrest was not pursuant to Chapter 39, Fla.Stat., because the offense occurred outside the presence of the arresting officer; that there was no prima facie showing that there was any concern for the safety of persons or property in the vicinity; and that the officers failed to ask for a reasonable explanation from the two youths before placing them under arrest. The motion was denied. The defense then rested and renewed the motion for judgment of acquittal on the ground that the State failed to prove a prima facie case. The motion was denied, and the appellant was found to have committed the delinquent act. The court withheld adjudication and placed the youth on probation in the custody of his mother. We reverse.

It is uncontroverted from the record that the State failed to introduce evidence that the police gave the appellant an opportunity to explain his presence and conduct or to show circumstances making it impracticable to give the appellant such an opportunity, pursuant to the requirements of § 856.021, Fla.Stat. See State v. Ecker, Fla. 1975, 311 So.2d 104.

Reversed.

HENDRY, Judge, dissents.


text:
    Jerry Lindon TYSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1779.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied July 29, 1976.
    Phillip A. Hubbart, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The appellant was, by information, charged with an assault to commit murder. He was tried and found guilty of culpable negligence. Upon the rendition of the jury verdict, the trial court adjudicated the defendant guilty and sentenced him to the maximum term allowed. This appeal ensued.

The appellant contends that culpable negligence is not a lesser included offense to the crime upon which he was informed against. The culpable negligence statute, at the relevant time, was § 784.05, Fla. Stat., which read in part as follows:

“784.05 Punishment for culpable negligence. — Whoever through culpable negligence, or a reckless disregard for the safety of others inflicts any personal injury or injuries upon another, not resulting in death, shall be guilty of a misdemeanor of the first degree, * * * ”

There was no allegation of negligence on the part of the defendant. There was no allegation that he inflicted personal injury to another, and this conviction and adjudication must be reversed. See: Murray v. State, Fla.App.1976, 328 So.2d 501. Therefore, this cause is returned to the trial court with directions to discharge the defendant.

Reversed and remanded, with directions.

      . This statute was amended effective October 1,1975.


text:
    Willie Charles COVINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1635.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied July 29, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The appellant was found guilty by a jury, adjudicated and sentenced for murder in the second degree. The proof of guilt was abundant and evident. On this appeal, a new trial is sought upon the ground of several comments made by the prosecutor in closing argument. Three comments are specified as objectionable. The defendant did not object at the time of trial to the first two comments. Because only a strained reading of these comments would make them prejudicial, no error has been shown in these instances. See Johnsen v. State, Fla.1976, 332 So.2d 69.

Objection was made to the third comment, which is claimed to be prejudicial as an appeal to prejudice by the State’s injecting into the case the element of community opinion. See Stewart v. State, Fla.1951, 51 So.2d 494. The comment was as follows: “Common sense tells you it is not common sense if you go out into the community and say he is not guilty when he is, and if you can say that, then you have to live with this.” We hold that under the facts of this case, the comment was not such as to deprive the appellant of a fair trial. See Spencer v. State, Fla. 1961, 133 So.2d 729, 731.

Also raised in this appeal is the contention that the State violated the appellant’s Fifth Amendment privilege against self-incrimination through comments by the prosecution on the failure of appellant to take the stand:

“I didn’t hear any testimony, whatsoever, from any of the State witnesses, including the Defendant, that Bobby Wyles, was an eye witness, that George Joiner was an eye witness.”

We find that the appellant’s position lacks merit because a written statement of the defendant concerning the circumstances surrounding the killing was read into the record and because there is no showing that the jury could reasonably have inter-peted the comments in the manner here alleged, thereby precluding the application of the rule as expressed in Otto v. State, Fla. App.1961, 126 So.2d 152; and Flaherty v. State, Fla.App.1966, 183 So.2d 607.

Affirmed.


text:
    Charles RICKENBACH et al., Appellants, v. Albert E. BARRS, Jr., et al., Appellees.
    No. 75-959.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.
    William E. Blyler of Patterson, Maloney & Shankweiler, Coral Springs, for appellants.
    E. E. Jordan, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

A review of the record convinces us that there was sufficient evidence to warrant submitting this case to the jury. It was therefore improper for the circuit court to direct a verdict for the defendant-appel-lees. 32 Fla.Jur., Trial, § 98.

We therefore reverse the judgment for appellees and remand the cause for a new trial.

REVERSED and REMANDED.

WALDEN, C. J., DOWNEY, J., and SCHULZ, GEORGE E., Associate Judge, concur.


text:
    CITY OF INDIAN HARBOUR BEACH, Florida, Petitioner, v. BREVARD COUNTY, Florida, and Curtis R. Barnes, Clerk of the Circuit Court, Brevard County, Florida, Respondents.
    No. 75-2069.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.
    Palmer W. Collins of Collins & Clark, Melbourne, for petitioner.
    Christopher R. White and Frank J. Griffith, Jr., of Goshorn, Stahey, Nabors, Miller & McClelland, Titusville, for respondent Brevard County.
   PER CURIAM.

We are presented with a certified question from the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida, it being:

“If its Municipal Court has not been abolished, is a municipality entitled to the fines and forfeitures received in County Court when a Municipal Court case is transferred to County Court for jury trial pursuant to Florida Statutes?

We answer the question “no”, upon the rationale expressed in Op.Atty.Gen. 073-201, June 6, 1973. See also Op.Atty.Gen. 073-202, June 6, 1973; Op.Atty.Gen. 074-96, March 28, 1974.

We hereby offer to certify the question as being of great public interest to the Supreme Court of Florida upon appropriate application. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); Rule 4.5(c) (6), F.A.R.

THE CERTIFIED QUESTION IS HEREBY ANSWERED IN THE NEGATIVE.

WALDEN, C. J., ALDERMAN, J., and DAKAN, STEPHEN L., Associate Judge, concur.


text:
    Dewey GODBY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-902.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.
    Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Margarita Esquiroz, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

This judgment of conviction of receiving stolen property is reversed on authority of Ketelsen v. State, 211 So.2d 853 (Fla.App. 3d 1968); Thomas v. State, 216 So.2d 25 (Fla.App. 3rd 1968); and E. C. v. State, 280 So.2d 492 (Fla.App. 3rd 1973), and the cause is remanded with directions to discharge the appellant from custody.

REVERSED and REMANDED with directions.

WALDEN, C. J., DOWNEY, J., and MORROW, RUSSELL O., Associate Judge, concur.