author: PER CURIAM.

text:
    In re THE FLORIDA BAR. In re Lucille E. MORAN.
    No. 44915.
    Supreme Court of Florida.
    July 30, 1975.
    Rehearing Denied Sept. 29, 1975.
    Leonard Rivkind, Miami Beach, Richard C. McFarlain, Asst. Director, and William B. Wiley, Asst. Staff Counsel, Tallahassee, for petitioner.
    Lucille E. Moran, in pro per.
   PER CURIAM.

This cause is before us on an amended, supplemental petition of The Florida Bar, charging Respondent with the unauthorized practice of law. This petition is filed pursuant to Article XVI of the Integration Rule of The Florida Bar, and this Court has original, exclusive jurisdiction to consider the matter.

Haying issued its Amended Rule to Show Cause, this Court directed that Judge Henry L. Balaban act as referee and that he hold such hearings and take such testimony as necessary to establish the facts of this case. Judge Balaban has filed this report, which reads in pertinent part as follows :

“Upon stipulation, of counsel and the evidence presented, the referee makes the following findings of fact:
“1. That the Respondent was the subject of unauthorized practice of law litigation in the case of The Florida Bar v. Lucille E. Moran, 273 So.2d 390 (Fla.1973). In a per curiam opinion, the Supreme Court of Florida determined that Respondent had engaged in the unauthorized practice of law:
‘The unauthorized practice consisted of her distribution and use of business cards bearing these words: “Independent Bar Association of Massachusetts, Lucille E. Moran, Attorney-at-law, Specializing in Tax Defenses, P.O. Box 641, Tavernier, Florida 33070.” The Bar’s position is that the card falsely represents and suggests that she is an attorney licensed to practice in this state. We agree. Respondent is a resident of Florida; she appears to hold herself out for business here; she advertises that her specialty is tax defense work and that she is an attorney-at-law. The logical inference is that Florida permits her to practice.’ ”

Parenthetically, we note that case continued as follows:

“Although acknowledging in her response to the Rule that she had distributed the cards, respondent now states through her counsel that she does not intend to distribute the card in the future. Accepting this statement of cooperation as true, we are satisfied that the Rule heretofore issued should be discharged.”

The referee’s report continues :

“2. That the Respondent, a resident of Monroe County, Florida, is not and has never been licensed to practice law in the State of Florida or any other jurisdiction within the United States of America.
“3. That the Respondent is- not eligible to practice and has never been eligible to engage in practice before the Internal Revenue Service in federal taxation matters.
“4. That the Respondent has communicated by letters and through various documents (see The Florida Bar’s Composite Exhibit A) with officials of the Internal Revenue Service on behalf of federal taxpayers wherein the appellation ‘counsel and attorney’ were utilized in conjunction with her name. In addition, said correspondence and documents make specific reference to the ‘Independent Bar Association of American and Independent Bar Association of Massachusetts’ and contain either of two Florida return addresses, to wit: Post Office Box 187, Islamorada, Florida 33035 or Post Office Box 641, Tavernier, Florida 33070.
“5. That Respondent has submitted various documents of a legal nature (see The Florida Bar’s Composite Exhibits A and B) to officials of the Internal Revenue Service on behalf of federal taxpayers including ‘Summons,’ ‘Subpoena(s) Duces Tecum,’ and ‘Demand(s) for Immunity.’ Again, a Florida return address of either Post Office Box 187, Is-lamorada, Florida 33036, or Post Office Box 641, Tavernier, Florida 33070, was imprinted on said documents.
“6. That the Respondent has corresponded with officials of the Texas Employment Commission and a jurist of the state of Texas on behalf of a ‘client’ via letters and assorted documents (see The Florida Bar’s Composite Exhibit B) which utilize the appellations ‘counsel and attorney,’ ‘Independent Bar Association of Massachusetts,’ and ‘Independent Bar Association of America’ together with either of two Florida return addresses to wit: Post Office Box 187, Is-lamorada, Florida 33036 or Post Office Box 641, Tavernier, Florida 33070.
“7. That the above described correspondence and documents contain language suggesting that Respondent represented the legal rights and interests of the persons on whose behalf the letters were written.
“Based on the foregoing findings of fact, the referee has reached the following conclusions of law:
“1. That by utilization of the terms ‘counsel and attorney’ and ‘Independent Bar Association of America’ and ‘Independent Bar Association of Massachusetts,’ Respondent’s letters and documents as described above create the reasonable impression and suggestion in those to whom they are conveyed that she is licensed to practice law in the State of Florida and has undertaken the legal representation of federal taxpayers in conjunction with their legal problems.
“2. That the utilization of the above described appellation constitute a holding out by Respondent of authorization to engage in the practice of law. See. e. g., The Florida Bar v. Frank M. Joyce, 299 So.2d 27 (Fla.1974), The Florida Bar v. Lucille E. Moran, 273 So.2d 390 (Fla.1973), and Petition of Kearney, 63 So.2d 630 (Fla.1953).
“3. That by her communications and submission of legal-type documents to the Internal Revenue Service, Texas Employment Commission, and judicial officials, Respondent has ‘represented’ persons as an advocate, and further, has expressly and impliedly suggested that she is a licensed Florida attorney.
“4. That the utilization of the above described appellations in conjunction with Florida return addresses on letters and documents also suggests and creates the impression that Respondent is a licensed Florida attorney.
“5. That the contents of the various letters and documents expressly and impliedly suggest that the, Respondent is the legal representative of the individual on whose behalf the letter or document was submitted.
“6. That the writing of letters to the Internal Revenue Service on behalf of federal taxpayers concerning their tax problems and/or controversies constitute ‘legal representation’ and the unauthorized practice of law in this state.
“7. That there is no issue of federal pre-emption in this matter by virtue of the fact that Respondent is not eligible to engage in the practice of federal tax law before the Internal Revenue Service and further has never been so eligible.
“8. That by the above described activities, Respondent has engaged in the unauthorized practice of law in this state.
“Based on the above findings of fact and conclusions of law, the undersigned referee makes the following recommendations for final disposition of this cause:
“1. That Respondent be permanently enjoined from calling herself ‘Counsel and Attorney,’ ‘Attorney-at-Law,’ and from using any appellation which expresses or impliedly suggests that she is licensed to engage in the practice of law.
“2. That Respondent be permanently enjoined from using the terms: ‘Independent Bar Association of America’ and ‘Independent Bar Association of Massachusetts’ or any similar terms which express or impliedly suggest that she is a member of the bar of any jurisdiction in the United States of America.
“3. That Respondent be permanently enjoined from holding herself out as a licensed attorney by the use of the above described or any similar appellations in conjunction with a Florida return address in any correspondence, documents or papers.
“4. That Respondent be permanently enjoined from giving legal counsel and advice to others concerning federal tax matters unless and until she is eligible and admitted to practice before the Internal Revenue Service in such matters.
“5. That Respondent be permanently enjoined from writing letters and submitting documents on behalf of federal taxpayers to the Internal Revenue Service in conjunction with federal tax matters that are not personal to her.
“6. That Respondent not be found to be in contempt of this Court by virtue of the cooperation expressed through counsel and the willingness of Respondent to abide by the order of this Court issued in this cause.”

The record and report of the Referee have been examined by this Court, and we agree that the foregoing conduct constitutes the unauthorized practice of law by Respondent.

After the filing of this report Respondent advised her attorney in a telephone communication that his services were terminated and that she would conduct her own defense in the future; upon motion of counsel to withdraw, this Court in an abundance of caution granted the motion with an additional two weeks granted Respondent so that she might file any objections she had to the Referee’s findings and might obtain new counsel. Thereafter, Respondent filed in this Court a copy of a nine-page letter to her former attorney, specifying that this letter “incorporates, by reference,” all of her objections to the Referee’s report; from this letter and others filed herein, it is clear that Respondent intends to represent herself in this matter without help of additional counsel.

In letters filed herein Respondent exhaustively presents her position, clearly showing that she neither respects the earlier decision of this Court nor the recent findings and conclusions of the Referee, as given above. Further, she makes plain her resolution not to abide by these determinations. So that there can be no question of misinterpreting Respondent’s position, we quote pertinent portions of her letter to her former attorney, as filed in this Court:

“You have asked what I think about these HERESY proceedings at this stage of the game:
“I say, quite frankly, ‘NOT MUCH’. Perhaps this is because I DO NOT respond with religious AWE the way I am supposed to — OR do my part to make sure these SHAMS work. I leave such things to people with neither Far Sight —NOR Hindsight. And that can be chalked up to the fact I’m neither a chauvinist NOR a sychophant. I’m a Christian! How can I possibly be a respecter of persons — and an Iconoclast (image-breaker) at the same time? And, if you think I CAN — or SHOULD BE — you have made a bad mistake. You are judging me by your own standards —NOT by what you KNOW to be mine.
“You have endeavored to mislead me with the idea you SPOKE for me and represented MY position. But, on December 2, 1974 you DID NEITHER. You deliberately conveyed false impressions to me about the basis of your game-plan and the effects it would have on me when you played it out. This was your way of slyly selling me out. You SPOKE ONLY FOR YOURSELF by pretending I was willing to concede even one inch to the Opposing Team, (which, of course, always includes one of their own PARTISANS refereeing the match.) You made it appear I believed myself ‘guilty’ of some kind of cognizable ‘offense’; was contritely CONFESSING my ‘HERESIES’ through you AND would therefore meekly accept whatever PENANCE the Tallahassee HOLY OFFICE deemed meet and just in the premises.
“The transcript of the December 2, 1974 closet ‘hearing’ AND Reverend Balaban’s Report clearly support the foregoing.)
“You are reminded THAT if I wanted to unburden myself of HERETICAL guilt by confessing my SINS I sure as heck wouldn’t need any middle-man to do it for me. I could do THAT all by myself — without spending one red cent OR imperiling my INDEPENDEN-CIES, LIBERTIES — OR FREEDOM. I’d simply go to the local Catholic Church and confess my Offenses to the parish priest. There, at least, I would be treated with the respect due Free born Americans. Not only would I be ALLOWED to speak my piece DIRECTLY to the Priest, I WOULD BE EXPECTED TO DO SO — in order that I might fully relate and discuss with him the nature, premises and motives of my imagined ‘transgressions’.
* * * * * *
“Aside from NOT needing an interpreter to draw him pictures — [my Catholic Confessor] would then do EXACTLY as the Rt. Reverend Balaban has done and for EXACTLY the same reasons. He, TOO, would defer declaring my PENANCE — until he explained the conditions surrounding my HERESY, and make his recommendations to his HOLY OFFICE companions so they might have the ‘privilege’ of determining my PENANCE. Then, IF my Iconoclastic disposition warranted EX CO-MUNI CATION —they would have the ‘honor’ of declaring EX CATHEDRA the degree and extent of punishment needed to bring me into line OR — ordering me PURGED as an example to OTHERS. (I DON’T think I’m mistaken in saying that the priests and bishops and Popes of the Roman persuasion ARE ALL CATHOLICS — AND that Florida’s counterpart heirarchy are ALL BAR MEMBERS.)
* * * * * *
“Upon reading Reverend Balaban’s report and the moves you anticipated making, I re-read the transcript and sadly concluded I must relieve you of further responsibility in this matter. To allow you to continue along the course you chose to take in December 1974 would have ripped me off and eventually shut me down completely. You were proceeding under the fallacy MY RIGHTS are subject to negotiation by EBB [Entrenched Bench-Bar] dudes who can alter — or dispose of them to meet their pleasure and convenience. Now you should know I DON’T BUY THAT! But, since you share the advantage of the same religious cultural insights I do, and I have personally defined my position to you in a variety of ways — IT WAS UP TO YOU to tell them I NEITHER ACCEPTED their PREMISES —NOR THEIR TERMS. Then this entire matter could have been properly argued from a broad base of Constitutional principles rather than assuming a narrow, parochial stance to avoid challenging the status quo. Since you proposed to duck telling them THAT I view these things as ABRIDGMENTS of my Free Exercise of Religious beliefs AND my Right to REVOLT, PROTEST and DISSENT against the oppressions and corruptions fostered by entrenchment, I HAVE TO DO IT MYSELF.
“So it becomes my job to disabuse this Inquisitorial team of their conspicuous and inexcusable IGNORANCE of some of the more fundamental differences between the British (and other European) ecclesiastical RULE OF MEN schemes —AND the American RULE OF LAW strategy. . . .
* * * * *
“History further records that combination of ingredients RESULTED in the MOST SUCCESSFUL scheme for coercing entire communities into submissive accommodation to the conceits, arbitrary whims and self-serving notions of ‘LAW’ — ever DEVISED by any entrenched Ministerial consortium. From this, it should be obvious that Advocates and Prosecutors of the Mediterranean Inquisition WERE NOT SPEAKING FOR the community of average people. They were speaking ONLY FOR THEMSELVES and their chauvinist hitmen and camp-followers. Just like EBB [Entrenched Bench-Bar] actors do today.
5k * * * * *
“And, Article 10 of the New Hampshire Constitution entitled RIGHT OF REVOLUTION expresses my sentiments — especially where it says:
‘. . . whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.’
“These Articles DO NOT SOUND exactly like LOYALTY OATHS to the status quo of COME-LATELY Entrenched Bench-Bar Associations of any State.
* * * *
“Since the First Amendment ENJOINS Catholic prelates from carving up my Right to MAKE and EXERCISE Free Will Choices — where does any other group of associates get the idea they can step in and take up where Roman clergy left off? What Constitutional provisions transfers to another partisan group LICENSE to expediently encumber or dismember my inhering entitlements' to fully exercise my volition? And, where does the U. S. Constitution empower partisans to contrive statutes and canons for deliberate purpose of INTERFERING with or DEFEATING my inborn rights to provide themselves a means for ENFORCING their Objections to the way I express MY FAITH ?
“If Catholic clerics have NO LICENSE to enforce their DISAPPROVAL when I made the Free Will decision to become a PROTESTANT MINISTER — and hence, NO LICENSE to enforce their RESENTMENT at my defying their authority — by invoking the PROTESTANT ETHIC — to openly compete with them — other partisans will have to come up with more than a demonstration of their parochial stance if they expect to STOP me defying their ‘authority’ to eliminate the competition. . .

Inasmuch as Respondent, by her own admissions, has shown beyond a reasonable doubt that she has willfully continued her unauthorized practice of law and intends to do so in the future, we adjudge her to be in contempt of this Court and order that she is to be imprisoned in the Monroe County jail for a period of sixty days. The sentence of imprisonment is suspended on the condition that she desist from engaging in the practice of law. Upon a satisfactory showing by The Florida Bar that the Respondent has violated the condition of this suspension then in that event the sentence of confinement shall with the approval of this Court become operative. Provided further that in any event The Florida Bar shall report to this Court one year from the date of this opinion as to whether or not it has found any evidence of a violation and if none then in that event the sentence shall be vacated and the cause dismissed.

It is so ordered.

ROBERTS, Acting C. J., and BOYD, OVERTON and ENGLAND, JJ., concur.

McCAIN, J., dissents.

      . Article V, Section 15, Florida Constitution.

      . The Florida Bar v. Moran, 273 So.2d 390 (Fla.1973).

       Romans 2:11.


source: Caselaw Access Project

license: Public Domain

text:
    James Claude ORR, Petitioner, v. STATE of Florida, Respondent.
    No. 46750.
    Supreme Court of Florida.
    June 23, 1975.
    Rehearing Denied Sept. 25, 1975.
   Certiorari denied. 304 So.2d 565.

ROBERTS, OVERTON, BOYD, and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    The STATE of Florida, Petitioner, v. Michael J. MULLIN, Respondent.
    No. 47033.
    Supreme Court of Florida.
    June 30, 1975.
    Rehearing Denied Sept. 18, 1975.
   Certiorari denied. 307 So.2d 829.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ„ concur.


text:
    Verna M. LEHMANN et al., Petitioners, v. Claude CLONIGER and his wife, Blanche Cloniger, Respondents.
    No. 46859.
    Supreme Court of Florida.
    July 7, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied. 306 So.2d 216.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    L & A CONTRACTING COMPANY and the Western Fire Insurance Company, Petitioners, v. Shelly ALFORD and the Industrial Relations Commission, Respondents.
    No. 47026.
    Supreme Court of Florida.
    July 10, 1975.
    Rehearing Denied Sept. 25, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Robert YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 46863.
    Supreme Court of Florida.
    July 10, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied. 305 So.2d 307.

ADKINS, C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.

ENGLAND, J., dissents.


text:
    Annabelle G. BELCHER, Petitioner, v. John A. BELCHER, Respondent.
    No. 47114.
    Supreme Court of Florida.
    July 14, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied. 307 So.2d 918.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Alan ROBBINS et al., Petitioners, v. John DOLL and Grace Doll, Respondents.
    No. 46732.
    Supreme Court of Florida.
    July 14, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied. 303 So.2d 338.

ADKINS, C. J., and ROBERTS, OVERTON and ENGLAND, JJ., concur.

BOYD, J., dissents.


text:
    STATE of Florida ex rel. Robert SCHAFFER, Petitioner, v. The Honorable Paul BAKER, Judge of the Circuit Court of Dade County, Florida, Respondent.
    No. 47119.
    Supreme Court of Florida.
    July 14, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied. 306 So.2d 626.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    CITY OF MIAMI BEACH, Florida, and Board of Adjustment of the City of Miami Beach, et al., Petitioners, v. ALLSTATE MORTGAGE CORPORATION OF FLORIDA, Respondent.
    No. 47129.
    Supreme Court of Florida.
    July 15, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied. 308 So.2d 629.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    Irving GREEN and Benjamin Green, Petitioners, v. NORTH AMERICAN MORTGAGE INVESTORS, etc., Respondent.
    No. 47275.
    Supreme Court of Florida.
    July 15, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied. 308 So.2d 629.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Ansel L. HARGRAVES et al., Petitioners, v. Cecil G. COSTIN, Jr., et al., Respondents, (two cases). STATE of Florida ex rel. Robert L. SHEVIN, Attorney General, Petitioner, v. Ansel L. HARGRAVES et al., and Cecil G. COSTIN, Jr., et al., Respondents.
    No. 47107.
    Supreme Court of Florida.
    July 15, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, OVERTON and ENGLAND, JJ., concur.

BOYD, J., dissents.


text:
    Levy Carlton MEARS, Petitioner, v. STATE of Florida, Respondent.
    No. 47315.
    Supreme Court of Florida.
    July 30, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, and ENGLAND, JJ., concur.


text:
    STATE of Florda, Petitioner, v. Marion HAYES et al., Respondents.
    No. 47219.
    Supreme Court of Florida.
    July 31, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied. 305 So.2d 822.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, and ENGLAND, JJ., concur.


text:
    James D. SHAW, Petitioner, v. CITY OF MIAMI and Industrial Relations Commission, Respondents.
    No. 47171.
    Supreme Court of Florida.
    Aug. 6, 1975.
    Rehearing Denied Sept. 25, 1975.
   Certiorari denied.

ADKINS, C. J,, and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Roy L. WRIGHT, Petitioner, v. Don LEHMAN, d/b/a Don Lehman Sales Company, et al., Respondents.
    No. 47056.
    Supreme Court of Florida.
    Aug. 6, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Bernard GASS, Petitioner, v. MID-VALLEY, INC., et al., Respondents.
    No. 47132.
    Supreme Court of Florida.
    Aug. 7, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Ruth V. KASTANIAS, Petitioner, v. W. T. GRANT COMPANY et al., Respondents.
    No. 47015.
    Supreme Court of Florida.
    Aug. 7, 1975.
   Certiorari denied.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    Willie Lee MAYS, Petitioner, v. STATE of Florida, Respondent.
    No. 47821.
    Supreme Court of Florida.
    Aug. 7, 1975.
   Certiorari dismissed sua sponte. 314 So.2d 154.


text:
    Ruth E. Wheeler SPATHIS, Petitioner, v. FLORIDA STATE EMPLOYMENT SERVICE et al., Respondents.
    No. 47213.
    Supreme Court of Florida.
    Aug. 7, 1975.
   Certiorari denied.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    TIP TOP OIL and Sentry Insurance Company, Petitioners, v. George BARNES and the Industrial Relations Commission, Respondents.
    No. 47102.
    Supreme Court of Florida.
    Aug. 7, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Virginia V. BOWEN, Petitioner, v. Edna E. VENESS, Respondent.
    No. 47319.
    Supreme Court of Florida.
    Aug. 8, 1975.
   Certiorari denied. 309 So.2d 223.

ADKINS, C. J., and 'ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Darian Northrup CASTLE, a/k/a Sam H. Castle, Petitioner, v. STATE of Florida, Respondent.
    Nos. 46971, 46996.
    Supreme Court of Florida.
    Aug. 8, 1975.
   Certiorari denied. 305 So.2d 794.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Thomas EDMONDSON, Respondent.
    No. 46685.
    Supreme Court of Florida.
    Aug. 8, 1975.
   Certiorari denied. 304 So.2d 458.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Gary L. TILLMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 46726.
    Supreme Court of Florida.
    Aug. 8, 1975.
   Certiorari denied. 304 So.2d 161.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    33 FLAVORS OF FLORIDA, INC., Petitioner, v. Kenneth A. LARSEN and Dorothy A. Larsen, his wife, Respondents.
    No. 47177.
    Supreme Court of Florida.
    Aug. 11, 1975.
    Rehearing Denied Sept. 26, 1975.
   Certiorari denied. 308 So.2d 591.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Llsabet Hope GREEN, Petitioner, Appellant, v. Elmer Gunnison GREEN, Respondent, Appellee.
    Nos. 47009, 47080.
    Supreme Court of Florida.
    Aug. 11, 1975.
   Certiorari denied. 307 So.2d 246.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    Robert S. KLINE and Jeanne Kline, Petitioners, v. Annette HEYMAN, etc., et al., Respondents.
    No. 47256.
    Supreme Court of Florida.
    Aug. 11, 1975.
   Certiorari denied. 309 So.2d 242.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Harry SHONER et al., Petitioners, v. The CONCORD FLORIDA, INC., CORPORATION, etc., et al., Respondents.
    No. 47008.
    Supreme Court of Florida.
    Aug. 11, 1975.
   Certiorari denied. 307 So.2d 505.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Raymond M. WEBB, Respondent.
    No. 47478.
    Supreme Court of Florida.
    Aug. 11, 1975.
   Certiorari denied. 311 So.2d 190.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    Kenneth S. WIMBERLY, Petitioner, v. STATE of Florida, Respondent.
    No. 47181.
    Supreme Court of Florida.
    Aug. 11, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    WINCAST ASSOCIATES, INC., Petitioner, v. Percy ROSEMURGY et al., Respondents.
    No. 47184.
    Supreme Court of Florida.
    Aug. 11, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, OVERTON and ENGLAND, JJ., concur.

BOYD, J., dissents.


text:
    UNIVERSITY SHORES UTILITIES, INC., Petitioner, v. William T. MAYO, Respondent.
    No. 47755.
    Supreme Court of Florida.
    Aug. 12, 1975.
   Certiorari dismissed.


text:
    Charles JEFFERS, Appellant, v. STATE of Florida, Appellee.
    No. 47111.
    Supreme Court of Florida.
    Aug. 14, 1975.
   Cause dismissed. 308 So.2d 215.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    David E. FLINCHBAUGH, Petitioner, v. David R. BURTON, Respondent.
    No. 47859.
    Supreme Court of Florida.
    Aug. 14, 1975.
   Certiorari dismissed sua sponte. 312 So.2d 827.


text:
    TOWN OF HILLIARD, Florida, etc., Appellant v. The STATE of Florida et al., Appellees.
    No. 47582.
    Supreme Court of Florida.
    Aug. 18, 1975.
   Appeal dismissed.


text:
    Paul MAGNANI, Petitioner, v. STATE of Florida, Respondent.
    No. 47866.
    Supreme Court of Florida.
    Aug. 19, 1975.
   Certiorari dismissed sua sponte. 313 So.2d 423.


author: SCHEB, Judge.

text:
    Charles Bernard ADKINS, Appellant, v. Linda C. EDWARDS, Appellee.
    No. 74-1249.
    District Court of Appeal of Florida, Second District.
    July 23, 1975.
    Gary C. Simons, Savage, Krim & Si-mons, Ocala, for appellant.
    D. J. Bradshaw, Bradshaw, Wagner & Mountjoy, Inverness, for appellee.
   SCHEB, Judge.

The appellant (ex-husband) appeals from a final judgment partitioning the parties’ former marital home where appellee (ex-wife) was allowed a set-off for reasonable rental value against appellant’s award of reimbursement for mortgage payments, taxes and insurance.

Upon dissolution of their marriage on August 8, 1972, the parties became tenants in common of their former marital home, previously held by them as tenants by the entireties. The ex-husband, as required by the judgment of dissolution, continued to pay the mortgage payments, taxes and insurance while the ex-wife resided upon the property. On November 4, 1972, the ex-wife remarried and vacated the premises. The ex-husband then moved into the home while continuing the payments as aforesaid.

In April, 1974, the ex-wife brought suit for partition of the former marital home-place. The ex-husband counterclaimed for an allowance for the mortgage payments, taxes and insurance premiums advanced by him. Answering, the ex-wife sought an accounting for the reasonable rental value of the premises during the period of her ex-husband’s occupancy. While the parties stipulated as to the reasonable rental value during this period, the ex-husband contested liability for any rental value.

The trial court held the ex-wife entitled to one-half of the reasonable rental value of the property for the period of time her ex-husband exclusively occupied it, said sum to be credited against his entitlement to one-half of the mortgage payments, taxes and insurance paid by him after his ex-wife’s remarriage.

The ex-husband seeks reversal of the trial court’s judgment to the extent the ex-wife was granted a set-off for the reasonable rental value of the property during his period of exclusive occupancy. We affirm the trial court’s judgment.

Appellant seeks reversal upon authority of Seesholts v. Beers, Fla.App.4th 1972, 270 So.2d 434. There, our sister court held in a partition suit that an ex-wife tenant in common was not entitled to claim one-half of the reasonable rental of the former marital home where the ex-husband tenant in common did not hold adversely to her. In Seesholts the court applied the common law rule adopted by the Supreme Court of Florida in 1875 in Bird v. Bird, 15 Fla. 424. This case involved farm crops, and set out the rule that when one cotenant has exclusive possession of lands owned in common with another and uses these lands for his own benefit and does not receive rents or profits therefrom, he is not accountable to his cotenant- out of possession, unless such cotenant holds adversely or is out of possession as a result of ouster or equivalent thereof. The majority in Seesholts cited Bird as well as two other Florida cases in support of its opinion. Taylor v. Taylor, Fla.App.2d 1960, 119 So.2d 811, dealt with a large farm with no rental value, while Coggan v. Coggan, Fla.1970, 239 So.2d 17, dealt with an office building. In each of these cited cases the property was of a nature whereby joint occupancy by the cotenant was not effectively precluded. The dissent by Judge Walden in Seesholts is an excellent analysis of the problem at hand and we think arrives at the correct decision, for as Judge Walden points out the foregoing cases relied upon in Seesholts are not analogous to a situation involving a former marital home.

More nearly in point is Potter v. Garrett, Fla.1951, 52 So.2d 115, where two daughters inherited certain homestead property. One occupied the property and several years later brought suit against the other for partition. The one daughter claimed reimbursement for mortgage payments, taxes, repairs, etc. while the other sought a reasonable rental value for the time it was occupied by the adverse party. The Supreme Court held that while the daughter who was in possession was entitled to reimbursement for one-half of her mortgage payments, taxes, insurance and funds spent on essential improvements, the other daughter was entitled to have credited against this amount, one-half of the reasonable rental value of the property for the period of occupancy by the daughter in possession.

In cases like this there frequently exists an aura of hostility and awkwardness not necessarily common to cotenancy of lands or other properties held for commercial purposes. While neither of the parties contended that he or she was ousted from possession, it is unrealistic to believe that parties who could not get along living together while they were married would be expected to enjoy common usage of the former marital home after their divorce.

Here, unlike Seesholts, the ex-wife merely sought partition of the former marital home. Then she was confronted with a counterclaim by her ex-husband seeking reimbursement for mortgage payments, taxes and insurance. Since her former husband had enjoyed the exclusive use of the premises during the period of time for which he sought his reimbursement, the ex-wife answered setting up her own claim for the reasonable rental value. Within the context of the ex-husband/ex-wife situation, this was appropriate. The ex-husband who is seeking equity cannot object to doing equity.

The trial court arrived at a just decision in awarding the ex-wife a set-off for one-half of the reasonable rental value of the property during the period of the ex-husband’s occupancy and should be and is hereby affirmed.

HOBSON, Acting C. J., and GRIMES, J., concur.


text:
    STATE of Florida DEPARTMENT OF POLLUTION CONTROL, Appellant, v. SEBRING PARK PROPERTIES, INC., a Florida Corporation, Appellee.
    No. 74-1520.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
    Vance W. Kidder, Tallahassee, for appellant.
    William J. Roberts, Tallahassee, for ap-pellee.
   PER CURIAM.

The notice of appeal was filed one day late. We therefore do not have jurisdiction to entertain this appeal, and the same must be dismissed ex mero motu. Berger v. G & S Food Market, Inc., Fla.App.2d 1971, 250 So.2d 348; Robberson v. Jefferson, Fla.App.2d 1968, 207 So.2d 467; Ramagli Realty Co. v. Craver, Fla.1960, 121 So.2d 648.

Dismissed.

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


author: HOBSON, Judge.

text:
    DEPARTMENT OF NATURAL RESOURCES of the State of Florida, Relator, v. The CIRCUIT COURT OF the TWELFTH JUDICIAL CIRCUIT and the Honorable Evelyn Gobbie, as Circuit Judge thereof, Respondents.
    No. 74-1389.
    District Court of Appeal of Florida, Second District.
    July 18, 1975.

      Jack W. Pierce, Gen. Counsel, Dept, of Natural Resources, Robert L. Shevin, A.tty. Gen., and Thomas A. Harris, Asst. Atty. Gen., Tallahassee, for Relator.
    C. Eugene Jones and Larry Byrd, Ginsburg, Ross, Dent & Byrd, Sarasota, for respondents.
   HOBSON, Judge.

The Department of Natural Resources of the State of Florida was sued by Mr. and Mrs. Holmes as parents and personal representatives of Sharon Holmes, deceased, and the estate of Sharon Holmes. There were also two other defendants who are not parties to this original application for writ of prohibition. The plaintiffs alleged that Sharon Holmes, a 16 year old girl, was lawfully on the premises of Oscar Scherer State Park, which was operated and maintained by relator, having paid an entrance fee, and that while swimming in a swimming lake located in the park she was attacked and killed by an alligator. It was alleged that the relator was liable to the plaintiffs for the death of Sharon Holmes under three separate theories of law: 1) negligence; 2) strict liability; and 3) breach of contract. The plaintiffs further alleged that the relator waived sovereign immunity by engaging in the proprietary function of operating the park.

The relator filed a motion to dismiss the complaint for lack of jurisdiction of the subject matter under the doctrine of sovereign immunity. The trial court denied the motion to dismiss, finding that the relator under the facts alleged in the. complaint waived its sovereign immunity by engaging in a proprietary function. The relator filed an interlocutory appeal from the denial of its motion to dismiss, which interlocutory appeal was dismissed by this court on authority of State Road Department v. Brill, Fla.App.1st 1964, 171 So.2d 229. Whereupon relator filed this original application for writ of prohibition.

While the respondents do not question the remedy of prohibition as being proper under these circumstances, we note that the fundamental question in every prohibition case is jurisdiction. If in fact the circuit court was without jurisdiction over the subject matter, prohibition is the appropriate remedy. Smith v. Bettinghaus, Fla.App.2d 1965, 178 So.2d 201; State v. Love, 1930, 99 Fla. 333, 126 So. 374, and Crill v. State Road Department, 1928, 96 Fla. 110, 117 So. 795.

Article X, § 13, Florida Constitution, provides: “Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.” This section of the constitution expressly prohibits, absent a general legislative act, any suit against the State or an agency which serves as an instrumentality of the State; Spangler v. Florida State Turnpike Authority, Fla. 1958, 106 So.2d 421. There is no doubt that the relator is a State agency and absent a specific waiver it shares in the sovereign immunity to suit.

At the time and under the facts and circumstances of this cause of action, the plaintiffs admit that the legislature had not waived sovereign immunity by a duly enacted general law. However, they urge that the State or an agency of the State waives sovereign immunity when acting in a proprietary rather than governmental function. They rely mainly on the case of Suwanee Hospital Corp. v. Golden, Fla. 1952, 56 So.2d 911. In Loucks v. Adair, Fla.App.1st 1975, 312 So.2d 531, our sister court distinguished the Suwanee case as being a suit against a hospital operated by a non-profit corporation created pursuant to a special act setting up a county hospital district and was not a part of any statewide system maintained at public expense. It is undisputed that the relator herein is a State agency operating and maintaining a state-wide system of public parks. The Division of Recreation and Parks of the Department of Natural Resources is created by Chapter 592, Fla.Stat. A reading of Chapter 592 of the Florida Statutes reveals that there is no mention of waiver of sovereign immunity. Any statutes purporting to waive sovereign immunity must be clear and unequivocal and are to be strictly construed. Spangler v. Florida State Turnpike Authority, supra.

It has also been held that under the doctrine of sovereign immunity and the prohibitory provisions of Article X, § 13, Florida Constitution, it makes no difference whether the negligent act is committed while in the performance of a governmental or a proprietary function. Buck v. McLean, Fla.App.1st 1959, 115 So.2d 764.

Respondents argue that the State or its agencies are not immune from suit when the cause of action is for a breach of contract, citing as authority Gay v. Southern Builders, Inc., Fla. 1953, 66 So.2d 499 and Butts v. County of Dade, Fla.App.3d 1965, 178 So.2d 592.

In Gay, supra, Southern Builders entered into a contract with the Board of Commissioners of State Institutions to construct certain buildings for the State of Florida. The Board took the position that the building was not constructed in accordance with the plans and specifications and Southern Builders contended that it was entitled to payment under the contract plus damages for breach of contract. Southern Builders filed a claim with and against the Board. Three persons were named, who were, called arbitrators, and held hearings and investigations as to the contentions of the parties. They filed a report with the Board; whereupon, the Board approved for final payment the amounts as recommended by the arbitrators.

The claim as adopted by the Board was presented to the comptroller who paid all the claim except that portion which he decided was for tort arising out of breach of contract. Southern Builders filed suit against the comptroller for payment of the claim in full as it had been approved for final payment by the Board. The circuit court rendered judgment for Southern Builders and the comptroller appealed. We feel the Supreme Court affirmed the lower court on the basis that the claim was approved by the Board for payment; that there was a determination by the Board that the amount ordered paid was just and due by the State to Southern Builders; and that in effect the suit was not a suit against the State for breach of contract but was for the enforcement of a claim previously determined to be due and owing by the State. The suit was actually seeking to enforce the comptroller to comply with the Board’s directions.

There is dicta in the Gay case, supra, which could be interpreted as saying that the State and its agencies are not immune from suit for breach of contract. If this is what Gay, supra, holds, it is in direct conflict with a long precedent of law first set forth in 1895 in Bloxham v. Florida Cent. & P. R. Co., 35 Fla. 625, 17 So. 902, followed by Hampton v. State Board of Education, 1925, 90 Fla. 88, 105 So. 323, and State v. Love, 1930, 99 Fla. 333, 126 So. 374. We have found no case where our Supreme Court has held that under the facts and circumstances of this case the State or its agencies are not entitled to invoke sovereign immunity.

There is an opinion of our sister court, Third District, Butts, supra, which specifically holds that a paying passenger on a bus has the right to sue the County of Dade, which enjoys sovereign immunity, in contract for the breach of the contract of carriage. The Butts opinion is bottomed mainly on Gay, supra, and Suwanee Hospital Corporation, supra. As pointed out above, we do not interpret Gay as did the Third District. The Suwanee County Hospital case was not based on a breach of contract but turned on the fact that the services were proprietary and not governmental. As we have pointed out above, the Suwanee County Hospital case was distinguished, and we think properly so, in the Loucks opinion.

For the foregoing reasons we hold that under the facts of this case the relator is entitled to a peremptory writ of prohibition. It is so ordered.

McNULTY, C. J., and GRIMES, J., concur.


text:
    WALTER HARVEY CORP., a Florida Corporation, Appellant, v. COHEN-AGER, INC., a Florida Corporation, Appellee.
    No. 75-277.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.

      Barnett Robinson, Jr., and Barry N. Greenberg, Miami, for appellant.
    Richard W. Wasserman, Miami Beach, Philip D’Abbieri, Lauderdale by the Sea, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The defendant to a lien foreclosure suit appeals an order denying its motion to dismiss the complaint. The single ground set forth in the motion to dismiss is that “Plaintiff has failed to provide an Affidavit as required by Florida Statute § 713.-06(3) (d) 1: ‘ . . . stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, showing the names of each lienor who has not been paid in full and the amount due or to become due, each for labor, services or material furnished.’ ”

Attached to the complaint is the contract between the plaintiff and the defendant. It affirmatively appears from the contract that some prospective lienors were to be paid by the owner and others were to be paid by the contractor. In view of this fact, we hold that plaintiff’s sworn statement attached to his complaint as Exhibit D, which purports to list all the material-men and labor paid by him and makes claim therefor, is sufficient to comply with the statute. Cf. Eastland Investment Company v. J. R. Trueman & Associates, Inc., Fla.App.1973, 287 So.2d 365, where this court held:

“Ordinarily, the general contractor must furnish the sworn statement as a condition precedent to the right to maintain an action to foreclose a mechanic’s lien unless the complaint alleges facts clearly avoiding the necessity to furnish it, and the circumstances peculiar to each case govern. Brown v. First Federal Savings & Loan Association of New Smyrna, Fla.App. 1964, 160 So.2d 556.”

Affirmed.


text:
    Ben D. WILDER d/b/a Southland Associates Realtors, Appellant, v. Joseph M. BURTON, Appellee.
    No. 74-1436.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1975.

      Caidin, Rothenberg, Kogan & Kornblum, Miami, for appellant.
    Smathers & Thompson and Earl D. Waldin, Jr., Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Southland Associates Realtors, plaintiff in the trial court, appeals an adverse summary final judgment in an action to recover a real estate broker’s commission.

Defendant-appellee, Joseph M. Burton, is the owner of certain real property located in Monroe County. Early in 1973 Burton orally authorized an agent of Southland Associates Realtors to procure a purchaser for the subject realty for the price of one million dollars.

Southland communicated to Burton two offers of purchase from a Mr. Bernstein. Both offers were rejected. On August 6, 1973 Southland presented to defendant Burton a “so called” contract to purchase executed by the J. A. Vails Construction Company as purchaser. The contract was conditioned, inter alia, upon the purchaser being able to retain rezoning for commercial use, permits to use the basin and chan-, nel as a marina, all necessary water, building and sewer permits, filling and dredging permits. The t contract further provided that the closing would be held 90 days from the fulfillment of the last of these conditions precedent. Burton refused to enter into the agreement and the property remains unsold to J. A. Vails Construction Company or anyone else.

Thereafter, Southland filed the instant complaint to recover a real estate commission of 10% of the purchase price of $1,050,000 or $105,000 for allegedly procuring a purchaser ready, willing and able. Defendant Burton answered and after extensive discovery moved for summary final judgment. After a hearing was held thereon, the trial judge determined that the agreement executed by J. A. Vails Construction Company was not a firm contract to purchase but an option to purchase. Thereupon, summary final judgment was entered in favor of the defendant Burton. Southland appeals therefrom.

The established rule in this jurisdiction is that a broker who is employed to find a purchaser is entitled to compensation if he produces for the owner a purchaser who is ready, willing and able to purchase on the terms prescribed by the owner. See 5 Fla.Jur. Brokers § 42 (1955) and cases cited therein.

The record in the case at bar reflects that broker Southland submitted the alleged contract to purchase which plainly contained terms and conditions unacceptable and unagreed to by the seller. Thus, plaintiff Southland failed to make a prima facie case that it was entitled to a commission. Furthermore, we are in accord with the trial judge that the subject contract with its numerous conditions submitted by the broker to the owner was at the most an option to purchase and the broker’s claim for a commission must fail. See Orange City Hills, Inc. v. Florida Realty Bureau, Inc., Fla.App.1960, 119 So.2d 43; Zwirn v. Gelvan, Fla.App. 1972, 268 So.2d 539.

For the reasons stated and upon the authorities cited, the final summary judgment herein appealed is affirmed.

Affirmed.


author: GRIMES, Judge.

text:
    Steve MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 74-782.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    James A. Gardner, Public Defender, Sarasota, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

While admitting that he told the undercover agents that the tablets he was offering were LSD, appellant claimed at his trial that they were really birth control pills. The state chemist said it was LSD and the jury agreed. Appellant’s conviction and five-year sentence for illegal delivery of LSD is affirmed.

However, the adjudication and six-month sentence for direct criminal contempt must be set aside because the judge failed to follow the procedure prescribed by Rule 3.830, RCrP. Speller v. State, Fla.App.2d, 1974, 305 So.2d 231. Nothing herein shall preclude further proceedings on the charge of contempt.

Affirmed in part; reversed in part.

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


author: McCORD, Judge.

text:
    STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF FLORIDA HIGHWAY PATROL, Petitioner, v. Jerry HUNTER, and Career Service Commission of the State of Florida Department of Administration, Respondents.
    No. X-88.
    District Court of Appeal of Florida, First District.
    July 30, 1975.
    Edwin E. Strickland, Gen. Counsel, and Enoch J. Whitney, Asst. Gen. Counsel, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Stephen F. Dean, Asst. Atty. Gen., and Edwin F. Blanton, Novey & Blanton, Tallahassee, for respondents.
   McCORD, Judge.

This is a petition for writ of certiorari to review an order of the Career Service Commission of the State of Florida.

Respondent Jerry Hunter was employed by petitioner in 1957 as a janitor and was subsequently reclassified as a custodial worker in which capacity he was employed on the date of his dismissal. He was dismissed by petitioner because of absence from duty without authorized leave on two occasions. The first absence was on July 5 and 6, 1972, for which he received a two-day suspension and the recent absence which precipitated his dismissal was on June 7, 10, and 11, 1974. Respondent Commission found from the evidence presented before it that Hunter was absent without leave as above stated; that disciplinary action was necessary and that the rules and regulations of petitioner (which had been approved by the State Personnel Director) provide that a second offense of unauthorized leave by an employee may be punishable by dismissal. The Commission then found that in view of the fact that the first offense resulted in a two-day suspension and occurred in 1972, the dismissal was too harsh a disciplinary action. It reversed the dismissal and ordered that Hunter be reinstated without pay.

Upon consideration of the record, briefs and argument of counsel, we find there was competent substantial evidence to support all of the above findings of the Commission with the exception of its conclusion that dismissal was too harsh a disciplinary action. The authorized penalty for commission of the offense was discharge. The evidence showed and the Commission found that the employee had committed the offense and there was no finding showing justification for the act. If discipline is to be enforced among employees in state agencies, such agencies should not be required to reinstate employees they have discharged for just cause.

Certiorari is granted and the order of the Career Service Commission of October 15, 1974, is quashed.

RAWLS, Acting C. J., and HARDING, MAJOR B., Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    R. Diane BURLINGHAM, Appellant, v. Patricia Gilmer ALLEN, also known as Patricia Ann Gilmer, et al., Appellees.
    No. V-60.
    District Court of Appeal of Florida, First District.
    Aug. 1, 1975.
    Maurice Wagner, and Richard D. Bertone, Daytona Beach, for appellant.
    David B. Javits, Miami, Alfred A. Green, Jr., of Green, Strasser & Hammond, Daytona Beach, and Milton E. Grusmark, Miami Beach, for appellees.
   BOYER, Chief Judge.

Appellee Grusmark moved for a summary judgment, whereupon appellant sought to have the court consider, in passing upon the appellee’s motion for summary judgment, certain depositions taken in another case to which appellee was not a party. Appellee received no notice of the taking of the depositions in the other case, was not present, was not represented and had no opportunity to cross examine the deponent. In considering a motion for summary judgment the trial judge is authorized to consider only those things and matters authorized by Rule 1.510 RCP. He was eminently correct in refusing to consider the above mentioned depositions which were never even filed in the case sub judice.

Finding the other points raised by appellant to be without merit, the summary judgment here appealed is

Affirmed.

McCORD and MILLS, JJ., concur.


text:
    R. Diane BURLINGHAM, Appellant, v. Patricia Gilmer ALLEN, also known as Patricia Ann Gilmer, et al., Appellees.
    No. W-182.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1975.
    Maurice Wagner, and Richard D. Ber-tone, Daytona Beach, for appellant.
    Alfred A. Green, Jr., of Green, Strasser & Hammond, Daytona Beach, for appel-lees.
   PER CURIAM.

Appellant, plaintiff in the trial court, now appeals from a summary final judgment entered in favor of the defendant Matthew L. Gold. Although other issues are raised, appellant’s primary point relates to the propriety of the entry of the final summary judgment. It is elementary that upon a motion for a summary judgment being properly and timely filed the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Rule 1.510 RCP) The principles of law applicable to summary judgment have been heretofore thoroughly discussed by this Court (see Connell v. Sledge, Fla.App. 1st 1975, 306 So.2d 194 and Forrest v. Carter, Fla.App. 1st 1975, 308 So.2d 141) and nothing will be added to the jurisprudence of this State by again reciting those principles here. We have carefully examined the record on appeal and find that at the time the appel-lee’s motion for summary judgment was heard by the trial judge and at the time of the entry of the summary final judgment here appealed the pleadings, depositions, and affidavits then on file demonstrated that there was no issue as to any material fact. The learned trial judge was accordingly eminently correct in entering the summary final judgment. There is nothing in the record-on-appeal to reflect any motion to have that summary final judgment vacated or set aside.

The appellant having failed to demonstrate error, the summary final judgment here appealed is

Affirmed.

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


text:
    The STATE of Florida, Appellant, v. Arthur Lee SAMPSON, Appellee.
    No. 73-1357.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Richard E. Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The State has appealed an order discharging the defendant, Arthur Lee Sampson, from prosecution for murder in the second degree. The discharge was ordered pursuant to the Speedy Trial Rule, CrPR 3.191. We reverse and remand for trial because of our holding that CrPR 3.-191(g) is applicable and because of our interpretation of that rule.

Arthur Lee Sampson was adjudicated guilty of murder in the second degree. Upon appeal to this court, the judgment was affirmed. See Sampson v. State, Fla.App.1972, 268 So.2d 467. He was awarded a new trial upon the ground of newly discovered evidence. This last order was appealed to this court and affirmed. See State v. Sampson, Fla.App.1973, 279 So.2d 370. Upon the expiration of 109 days from the order awarding a new trial and 79 days after the filing of the mandate of this court affirming that order, the defendant filed his motion for discharge.

The ground alleged for the motion for discharge was that “[o]ver sixty (60) days has expired since the filing of Defendant’s demand for Speedy Trial; excluding the time from the filing of the State of Florida’s appeal until the District Court’s mandate.” The trial judge granted the motion upon this ground. Upon this appeal, the defendant has abandoned that ground and agrees with the State that the rule applicable to defendant’s position is CrPR 3.191(g). The expiration of more than 90 days was alleged in the motion and prayer for discharge under Rule 3.191(g) and was included as an alternate ground. We hold that rule to be applicable.

This subsection requires the discharge of a defendant when he has not been retried “90 days from . . . the date of an order by the trial court granting a new trial, . or the date of receipt by the trial court of a mandate . . . from an appellate . . . court which makes possible a new trial for the defendant, whichever is last in time." [Emphasis provided] It is apparent that the 90 days must begin to run from the time of the latest of the applicable occurrences listed in the rule.

The filing of the mandate was the last in time but the question is whether it is applicable as “a mandate . . . which makes possible a new trial for the defendant.” [Emphasis provided] The State says that the provision is applicable because it could not retry the defendant during the pendency of the State’s appeal from the order granting a new trial. The defendant says the provision is inapplicable because the 90 day term was clearly running under the “date of an order by the trial court granting a new trial” provision. In addition, the defendant points out that it was the State’s appeal which is used as an excuse and that the appeal was not necessary because there was already an order for a new trial. Thus, it is argued that the subsequent mandate could not “make possible a new trial.”

The parties have been able to present us with much argument but little guidance. We reason that the State had a clear right to appeal the order granting a new trial upon the ground of newly discovered evidence. To hold that the State must retry the defendant within 90 days of the order would deny the right of appeal because it would be a practical impossibility to get every such appeal decided in 90 days under the present Appellate Rules. If we were to hold that the time ran from the order granting a new trial and that the State could get an extension of the 90 days under the “exceptionable circumstances” rule, CrPR 3.191(f), then the State’s right to appeal would be dependent upon the trial court’s agreement to the appeal. We think that the proper interpretation of the rule requires retrial within 90 days from the filing of the mandate in the trial court when -appellate review of the order granting new trial is sought.

Therefore, we hold that the motion for discharge filed 79 days after the filing of the mandate was premature and that the trial judge erred in granting the motion. Accordingly, the order and amended order granting defendant’s motion for discharge are reversed. The cause is remanded with directions to proceed with reasonable expedition to retry the defendant.

Reversed and remanded.

      . The appeal was filed as a petition for certiorari was dismissed by this court as an improper remedy. The dismissal -was quashed by the Supreme Court of Florida and the cause remanded to this court with directions to consider the petition as an appeal. See State v. Sampson, Fla.1974, 306 So.2d 103.

      . (a) Trial court grants defendant a new trial (Dec. 18, 1972).
      (b)Defendant makes demand for speedy trial (Jan. 4, 1973).
      (c) State appeals trial court’s order granting new trial (Jan. 17, 1973).
      (d) District Court of Appeal affirms order granting new trial (opinion filed, June 26, 1973; mandate issued, July 13, 1973 ; mandate received by trial court, July 17, 1973).
      (e) Defendant moves for discharge (Oct. 4, 1973).
      (f) Trial court orders defendant’s discharge (Oct. 12, 1973).

      . See CrPR 3.191(a)(2).

      . “(g) Effect of Mistrial, Order of New Trial. A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.”


author: BOARDMAN, Judge.

text:
    Thomas M. NEBUS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1334.
    District Court of Appeal of Florida, Second District.
    July 9, 1975.
    Charles R. Holley, Naples, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Upon careful consideration of each of the points relied on by appellant for reversal, in light of the record and briefs, oral argument having been waived, we find that no reversible error has been demonstrated or misapplication of law by the trial judge.

We pause, however, to discuss one of the points raised by appellant wherein he contends that under the alleged charges of violations of Florida Statutes, Chapter 893, it was necessary for the state to introduce evidence that marijuana is cannabis. We do not agree. See United States v. Chapman, E.D.Va.1971, 321 F.Supp. 767, in which the court held that:

. cannabis is a synonym for marihuana as they both mean and include the flowering tops of the hemp plant.

Cf. Martinez v. People, 1966, 160 Colo. 333, 417 P.2d 485, wherein that court held marijuana is identical with cannabis, as a matter of law.

The judgment is, therefore,

Affirmed.

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


text:
    LIBERTY MUTUAL INSURANCE COMPANY, as personal injury protection carrier, Appellant, v. Marcelino AVILA et al., Appellees.
    No. 74-1555.
    District Court of Appeal of Florida, Third District.
    July 24, 1975.

      Highsmith, Strauss & Nelson, Miami, Frederick A. Gunion, Jr., West Palm Beach, for appellant.
    Bernard H. Butts, Jr., and Anthony Die-guez, Hialeah, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

This is another case where we are called upon to review an order of equitable distribution, returning to plaintiff’s PIP carrier $250.00 after the carrier had advanced $1,388.45 as PIP benefits.

The plaintiff filed a suit, but the matter was immediately settled before answer for $5,000.00 The plaintiff then petitioned for equitable distribution, but offered no legal evidence as to the extent or permanency of his alleged injuries. The court, without receiving any legal evidence or stating any equitable consideration, awarded the PIP carrier $250.00 and this appeal ensued.

Since the enactment of the no fault insurance statute, there have been a number of decisions on this subject matter of equitable distribution. State Farm Automobile Insurance Company v. Hauser, Fla.App. 1973, 281 So.2d 563; Murray v. Leatherby Insurance Company, Fla.App.1973, 287 So.2d 344; Reyes v. Banks, Fla.App.1974, 292 So.2d 39; State Farm Mutual Automobile Insurance Company v. Mance, Fla.App.1974, 292 So.2d 52; Liberty Mutual Insurance Company v. Guillet, Fla.App. 1974, 294 So.2d 1; Johnson v. State Farm Mutual Automobile Insurance Company, Fla.App.1974, 294 So.2d 2; Hartford Accident Insurance & Indemnity Company v. Diaz, Fla.App.1974, 296 So.2d 504; White v. Reserve Insurance Company, Fla.App. 1974, 299 So.2d 661; Unigard Insurance Company v. Davis, Fla.App.1974, 299 So.2d 667; Hartford Accident & Indemnity Company v. Orlow, Fla.App.1974, 300 So.2d 36; Central National Insurance Company v. Fernandez, Fla.App. 1975, 307 So.2d 906. One of the most recent opinions on this matter is one by the Fourth District Court of Appeal of Florida, which obviously was not available to the trial judge, styled American Fire and Casualty Company v. Oller, Fla.App.1975, 313 So.2d 67 (1975). We have previously followed the reasoning of the Fourth District in Reyes v. Banks, supra [Johnson v. State Farm Mutual Automobile Insurance Company, supra; Hartford Accident & Indemnity Company v. Diaz, supra], and we now believe our sister court, in a well-reasoned opinion by Judge Owen, has laid out an appropriate formula to be considered by a trial court in making an equitable distribution, and we herewith adopt said opinion and its reasoning and reverse the order of equitable distribution here under review and return the same to the trial court for further proceedings in accordance with this opinion and the authorities cited herein.

Reversed and remanded, with directions.

      . The eases of State Farm Automobile Inurance Company v. Hauser, supra, and White v. Reserve Insurance Company, supra, are in direct conflict as to whether or not equitable distribution is allowable in those cases where the insured has settled his claim with the tortfeasor without filing suit. Both of these cases have been reviewed by the Supreme Court of Florida without resolution of that question, as in each case certiorari was denied without opinion. See: State Farm Automobile Insurance Company v. Hauser, Fla.1974, 293 So.2d 716, case dismissed; State Farm Automobile Insurance Company v. Hauser, Fla.1974, 295 So.2d 301, cer-tiorari denied; Reserve Insurance Company v. White, Fla.1975, 308 So.2d 113, certiorari denied.

      . We have exercised our discretion and certified this case to the Supreme Court of Florida, under and as provided for in Article V, Section 3(b)(3) of the Constitution of Florida, as this decision passes upon a question of great public interest.


author: NATHAN, Judge.

text:
    MANCHESTER INSURANCE AND INDEMNITY COMPANY, a Foreign Corporation, Appellant, v. Valley JONES, Appellee.
    No. 74-1474.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Rehearing Denied Aug. 29, 1975.
    Petersen, McGowan & Feder, Miami, and Abraham S. Shukat, Miami Beach, for appellant.
    Ser & Keyfetz, Miami, and Mark Poses, South Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   NATHAN, Judge.

Manchester Insurance & Indemnity Company, defendant in the trial court, appeals from a final judgment entered pursuant to a jury verdict in favor of Vailey Jones, plaintiff, in his declaratory judgment action for a determination of rights under an insurance policy. Manchester’s agent, William Manker, was originally a defendant, but the trial court dismissed him from the cause. Manker appeals from the order dismissing him.

A jury trial was held. The jury returned a verdict in favor of Jones against Manchester, finding, in effect, that at the time of his accident, Jones was covered by Manchester with uninsured motorist coverage. The court entered a final judgment on the jury verdict, in which it provided that pursuant to stipulation of counsel, the matter shall proceed to arbitration in the manner set out in Jones’ insurance policy.

On appeal, Manchester contends that the judgment should be reversed. As its first point, Manchester argues that the testimony of Jones and his wife was so incredible that no verdict could be based thereon, and that the court should have directed a verdict in favor of Manchester because the manifest weight of the evidence was in its favor. Manchester’s second point on appeal is that it is immaterial whether Jones’ written rejection of uninsured motorist coverage was executed before or after the accident.

We find that sufficient evidence was presented from which a jury could find for the plaintiff, Jones, against Manchester. Therefore, the trial judge did not err in entering judgment on the verdict and in failing to direct a verdict for Manchester. Garcia v. Lujando, Fla.App. 1971, 253 So.2d 725; Tuz v. Burmeister, Fla.App.1971, 254 So.2d 569, 571.

Manchester’s second contention is without merit. The applicable statute, § 627.727, Fla.Stat., specifically provides that an insured is covered with uninsured motorist protection unless such protection has been rejected. The record reflects that Jones made a deposit for automobile insurance on May 5, 1970; he was involved in an accident on May 14, 1970, and he allegedly signed a rejection of uninsured motorist coverage on May 22, 1970, while in the hospital. In view of the fact that the rejection of uninsured motorist coverage was signed after the accident, it cannot be said that such rejection was effective at the time that Jones paid the deposit on the insurance policy or at the time of the accident. Manchester would have us act on the assumption that it was Jones’ intent ab initio not to have uninsured motorist coverage due to this rejection of such coverage in writing after the accident, in spite of the evidence presented that Jones did not understand what he was signing, which the jury apparently believed.

Manker appeals on the ground that the court abused its discretion in dismissing him from the case prior to trial pursuant to his motion since he was Manchester’s agent and, therefore, only Manchester could be liable. Prior to trial, Manchester and Manker stipulated to a severance of Manchester’s claim against Manker. There was no error in dismissing Manker as he did not meet his burden to show that he was prejudiced by such dismissal. A party cannot complain of a favorable order of dismissal from the court unless he can show that he was prejudiced thereby. Witt v. Baars, 1895, 36 Fla. 119, 18 So. 330.

Therefore, for the reasons stated and upon the authorities cited, the final judgment and the order of dismissal herein appealed are affirmed.

Affirmed.


author: McNULTY, Chief Judge.

text:
    CITY OF ST. PETERSBURG, Appellant, v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL NO. 747, Appellee.
    No. 74-854.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Sept. 25, 1975.
    James P. Ogden, St. Petersburg, for appellant.
    Thomas A. Capelle, Hamilton, Douglas & Bennett, Tampa, for appellee.
   McNULTY, Chief Judge.

Appellant, City of St. Petersburg, appeals from a final judgment in favor of appellee, International Association of Firefighters, Local No. 747, finding the City liable for breach of the group health insurance provisions contained in two collective bargaining agreements executed by the parties.

The operative facts are simply stated. Following negotiations in 1972, the Union and City entered into a written agreement covering employment of firefighters for 1972-73 which included a “Memorandum of Understanding” with the City’s negotiating committee which contained the following language pertinent to this appeal:

“The negotiation committee agrees to recommend, the following changes in the Group Insurance Plan at no cost to Firefighters.
1. Daily room and board allowance up to Forty ($40.00) dollars.
2. Maternity benefit (Blue Cross) increased an additional one hundred ($100.00) dollars.
3. Supplemental accident benefits of one hundred fifty ($150.00) dollars. (For accident)
4. Major Medical Coverage availability for employees who retire to age sixty-five (65) under the Firemens Pension Plan. Inclusion for those presently retired.” (Italics ours.)

Subsequently, the City increased the health insurance coverage but assessed the City employees for the additional cost. The Union objected contending that these increased benefits should have been given at no additional cost pursuant to the Memorandum. Thereafter, the Union filed a complaint herein alleging breach of the 1972-73 agreement and a supplemental complaint alleging breach of a second 1973-75 agreement containing a “Prevailing Rights Clause” which incorporates the same benefits as provided for in the 1972— 73 agreement.

Following trial and hearing of post-trial motions, the court issued a final judgment ruling that the City had breached both agreements. He awarded $8,073 as damages for improperly withholding Union members salaries and ordered a discontinuance of such deductions. We reverse.

At trial the court, erroneously we think, permitted over appellant’s timely objection the introduction of parol evidence establishing that the City agreed not only to recommend increased coverage but, if given, that it would be provided at no extra cost to employees. This was fatal.

To begin with, it is rudimentary that parol evidence is inadmissible to modify, alter or affect the construction of a written contract which is expressed in clear terms unless the terms are latently ambiguous. Here, we think that the language of the appended “Memorandum of Understanding” is clear and unequivocal. The negotiation committee had agreed only to recommend increased group insurance coverage. Nowhere in the contract does it appear that the City accepted or ratified that recommendation even assuming it was made.

The trial court was of the view that there is indeed an ambiguity and agreed with the Firefighters’ contention that what the contracts mean is that, while the changes in the group insurance plans were only to be recommended, if the increased coverage was in fact implemented the City would be obligated to provide it without cost. No reasonable interpretation of the aforequoted language gives rise to such meaning; hence no ambiguity. Accordingly, we hold that in construing the contracts as a matter of law, as the trial judge should and unquestionably would have in the absence of the parol, the four corners thereof must be read as not providing that the City assented to any recommendations of “no-cost” health insurance benefits to appellees. There is no basis to construe their express terms otherwise.

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.

HOBSON and GRIMES, JJ., concur.

      . 13 Fla.Jur., Evidence § 398 (1957).


author: OWEN, Judge.

text:
    AMERICAN PEST CORPS., INC., a Florida Corporation, and Henry Wolfman, Appellants, v. BARCO CHEMICALS DIVISION, INC., a Florida Corporation, Appellee.
    No. 74-166.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
    Rehearing Denied Sept. 29, 1975.

      Harry A. Gaines, Miami, for appellants.
    Dennis Alan Richard, Richard & Richard, Miami Beach, for appellee.
   OWEN, Judge.

In a suit brought by appellee under the Uniform Deceptive Trade Practices Act, Fla.Stat. § 817.69 et seq. (1969), the court entered a summary judgment in which it enjoined the defendant-appellants from further use of certain trade names and from certain trade practices.

We conclude that the disposition of the case via summary judgment was inappropriate in that there were genuine issues of material fact as to whether appellants’ conduct caused the likelihood of confusion or of misunderstanding on the part of the public either as to (1) the source, sponsorship, approval, or certification of goods or services, or (2) the affiliation, connection, or association with or certification by plaintiff-appellee.

The summary judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.

WALDEN, C. J., and YAWN, THERON, Associate Judge, concur.

      . Repealed by Ch. 73-124, Laws of Fla. (1973).


text:
    Orin GILBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1641.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1975.
    Orin Gilbert, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: HOBSON, Acting Chief Judge.

text:
    Harry O’Neil ANJIMA, Appellant, v. STATE of Florida, Appellee.
    No. 74-220.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 1975.
    Rehearing Denied Sept. 8, 1975.
    Loyd C. Mosley, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant was convicted of murder in the first degree and sentenced to a term of life imprisonment.

Appellant’s main point on appeal is that the circumstantial evidence of his guilt was insufficient to meet the requirements of the Circumstantial Evidence Rule.

We have examined the voluminous transcript of the trial and find that the evidence meets the Circumstantial Evidence Rule as set forth in Mayo v. State, Fla.1954, 71 So.2d 899. The Supreme Court stated the rule to be:

“Circumstantial evidence is never sufficient to support a conviction where, after there is assumed all to be proved which the evidence tends to prove, another hypothesis still may be true, because it is the actual exclusion of each other hypothesis which clothes mere circumstances with the force of proof. Thus evidence leaving uncertain which of several hypotheses may be true, or establishing only a probability favoring one hypothesis rather than another, cannot be equal to proof of guilt, no matter how strong the probability may be.”

The other point on appeal has been considered and found to be without merit.

Affirmed.

BOARDMAN and GRIMES, JJ., concur.


text:
    James Michael LALLY, Appellant, v. STATE of Florida, Appellee.
    No. 75-260.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
    Rehearing Denied Sept. 26, 1975.
    Tobey C. Hockett, of Hockett, Silver, Spalding & Lewis, Sarasota, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See United States v. Hand, 5th Cir. 1975, 516 F.2d 472.

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


author: RAWLS, Acting Chief Judge.

text:
    Timothy Alan DINAUER, Appellant, v. STATE of Florida, Appellee.
    Nos. X-26, X-27.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.
    Frederick B. Tygart, of Tygart & Ty-gart, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

By these consolidated appeals, appellant Dinauer challenges the trial court’s orders denying his motions for assessment of costs.

Dinauer was chargéd by information with possession of a controlled substance and walking on a limited access highway. In preparation for the trial court’s Case No. 74-1884-CF (X-27), Dinauer expended the sum of $93.75 in taking the depositions of three police officers. The trial jury was sworn on July 29, 1974, and on the following day, July 30, the State entered a nolle prosequi of this case.

Following the nolle prosequi in Case No. 74-1884-CF (X-27), the State filed an identical information against Dinauer in Case No. 74-3304-CF (X-26). A nolle prosequi was subsequently entered in this case by the State on September 16, 1974.

Apparently after his initial arrest, Dinauer returned to his home in Milwaukee, Wisconsin, for he claims travel expenses from Milwaukee for attendance of the July 29, 1974, trial as a part of his cost bill. In our Case No. X-27, Dinauer itemizes his costs as :

Plane fate from Milwaukee, Wisconsin $170.00
Lodging for three nights 30.00
Meals for three days 10.00
Court reporter's fee for taking depositions of Officers Sweeney, Britt and Zier (per diem — $25.00, original — $68.75) 93.75
Total $303.75

In our Case No. X-26, Dinauer itemizes his costs as:

Bail bond premium to American Bail Bond, Inc. d/b/a American Dixie Bonding Company — Total $150.00

In Wood v. City of Jacksonville, this Court, in reviewing the question of assessment of costs in criminal cases, held:

“Costs as such in criminal cases were unknown to the common law. As a consequence, recovery and allowance of such costs rest entirely on statutory provisions and no right to or liability for costs exists in the absence of statutory authorization. The foregoing principle has been adopted as the prevailing rule in this state.”

In reviewing the itemized costs submitted by the appellant in Wood, this Court rejected the premium sought for bail bond and approved those sums sought for the transcript of testimony.

In Warren v. Capuano, the Supreme Court reviewed a decision of the Fourth District Court of Appeal which initially construed a controlling new provision of the Florida Constitution (1968) pertaining to the subject matter under consideration. There, the Supreme Court held:

“The gist of the District Court’s interpretation is that a controlling new provision of the State Constitution denotes that ‘defendants in criminal cases who are acquitted or discharged be allowed cost, and that the cost should be paid by the county’ and that this provision has been followed by the courts and that the Legislature has duly implemented this constitutional mandate by statutes.”

In affirming the District Court, the Supreme Court stamped with approval the District Court’s opinion affirming the trial court’s assessment of enumerated costs. The opinion by the District Court observed that the trial court found Capu-ano entitled to recover:

“ . . . proper taxable costs subject to the provisions of the Florida Statutes § 939.08, F.S.A., . . . Ca-puano then instituted his action in the circuit court for the payment of the costs by the county to recover the amount of $2,124.64, expended for witness fees and mileage, bail bond premiums and filing fees. The circuit judge in his summary judgment ordered the reimbursement of the costs petitioned by the defendant with the exception of a bail bond premium expense of $150 and a hotal expense of $85.82, . . ..” (emphasis supplied)

In analyzing the claims of Dinauer, we conclude that the sum of $93.75 expended for taking the officers’ depositions is a proper taxable cost and that the trial court erred in not assessing same. As to the remainder of Dinauer’s claim for costs, we conclude that defendant-appellant s travel expenses, hotel expenses, meals, and bail bond expense are not “proper taxable costs”.

Affirmed in part; reversed in part.

MILLS and SMITH, JJ., concur.

      . Wood v. City of Jacksonville, 248 So.2d 176 (1 Fla.App.1971).

      . Warren v. Capuano, 282 So.2d 873 (Fla.1973).

        .Warren v. Capuano, 269 So.2d 380 (4 Fla. App. 1972).


text:
    Glenn Dale MAGYARI, Appellant, v. STATE of Florida, Appellee.
    No. W-432.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.
    Richard W. Ervin, III, Public Defender, and Judith J. Dougherty, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant was convicted of breaking and entering with intent to commit grand larceny. He contends the evidence is insufficient to show that he intended to take property of the value of more than $100. Witnesses saw appellant carrying armloads of groceries from a grocery store to his automobile through a glass door he had broken, and they called the police. When intercepted by the police, appellant had carried eight or ten armloads to his car and was still in the process of loading his car with groceries. He threw the groceries he had at the time into his car and fled the scene. Appellant allegedly had only about $60 worth of groceries in his car at the time of his interception and he contends there is no evidence that he intended to take more than that amount.

The evidence shows that the inventory of the grocery store at the time was $8,000 to $10,000. Thus, there was property in the store valued at more than $100 at the time appellant was intercepted in the act of burglarizing it. The circumstances fully support the jury’s finding that appellant intended to take property of more than $100 value had he not been interrupted by a police officer. Rebjebian v. State, Fla., 44 So.2d 81 (1949); Eaton v. State, Fla.App.(3d), 307 So.2d 915.

Affirmed.

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


text:
    Raymond Thomas DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. Y-130.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Affirmed. See State v. Gustafson, 258 So.2d 1 (Fla.1972).

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


author: WALDEN, Chief Judge.

text:
    BURGER CHEF SYSTEMS, INC., Appellant, v. BURGER CHEF OF FLORIDA, INC., and Wesley S. Woodson, Appellees.
    No. 74-1194.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1975.
    Rehearings Denied Sept. 29, 1975.

      William E. Sadowski and John H. Ward, Helliwell, Melrose & DeWolf, Miami, for appellant.
    William L. Eagan, Arnold, Matheny & Eagan, Orlando, for appellees.
   WALDEN, Chief Judge.

This is an appeal by Burger Chef Systems (Franchisor) from an injunction preventing it from terminating its July 14th, 1966, franchise agreement with Burger Chef of Florida, Inc. (Franchisee). The injunction was entered upon a request by Franchisor for a declaratory judgment defining its right to terminate under the agreement. The trial court found the territorial franchise was terminable only for cause, and not terminable at the will of Franchisor without cause. We agree with the trial court’s interpretation of the applicable franchise agreement clause, which reads as follows:

“ITEM VII
“In the event that Licensee or William P. Woodson, individually or collectively, own less than one hundred percent (100%) of the voting outstanding stock of an assignee corporation, or in the event of the death of both Licensee and William P. Woodson and the assignee corporation does not fulfill the Licensee’s obligations under this agreement, which alleged failure to fulfill the obligations under this agreement shall be determined by Burger Chef, then this Territory Franchise Agreement shall be terminated. Burger Chef shall then take over the obligations of this agreement and Burger Chef will pay to Licensee, his heirs, executors, or assigns, or to assignees an amount equal to twenty-five percent (25%) of the service charges collected from each store sold and installed by Licensee, said payments to continue for a period ending ten (10) years from date of termination; provided, however, that nothing contained herein shall require Burger Chef to continue the operation of stores sold and installed by Licensee if it should become impracticable to continue such operation. The payment of said twenty-five percent (25%) of the service charges collected shall be made only after such service charges have been received by Burger Chef from the store franchise owner.”

The trial court continued, however, to grant an injunction against any action in termination by Franchisor:

“The . . . [Franchisor] is hereby permanently enjoined and restrained from the cancellation or termination of the territorial franchise agreement issued by . [Franchisor] to . . . [Franchisee], WESLEY S. WOOD-SON, dated July 14, 1966, and assigned to [Franchisee], BURGER CHEF OF FLORIDA, INC., except in the manner provided in the instrument in case of default by [Franchisees], The suspension of the operation and effect of the . . . [Franchisor’s] termination letter of May 21, 1973, as provided in the Court’s temporary order of February 4, 1974, is confirmed and made permanent and the [Franchisor], its agents, servants and employees are restrained from refusing to furnish customary account-ings and reports, payments and remittances in accordance with the previous normal practice of the parties under the franchise agreement so long as it remains in effect.”

We reverse this action of the trial court. The injunction, requiring as it does the continued performance of Franchisor, is essentially a grant of specific performance to Franchisee. 29A Fla.Jur., Specific Performance § 4 (1967):

“It is pertinently observed that certain other forms of action constitute, in effect, actions for the specific performance of contractual obligations. For example, injunction against breach of contracts, or the enforcement of negative covenants in contracts by injunction against their breach, may result in specific performance of the contract, . . .” Id. at 576.

We are aware of the individual characteristics of a franchise; the personal efforts and commitment on the part of a Franchisee to market the Franchisor’s products, the consideration given by Franchisee for the exclusive right to market Franchisor’s product and the singular personal service performed by a Franchisee in establishing the product of a Franchisor. Nonetheless, the rules of specific performance must govern, and it is improper to — in effect— grant this Franchisee a decree of specific performance. Mutuality of obligation and remedy must exist for a specific performance suit to succeed. Florida-Georgia Chemical Co., Inc. v. National Laboratories, Inc., 153 So.2d 752 (1st DCA Fla. 1963); Con-Dev of Vero Beach, Inc. v. Casano, 272 So.2d 203 (4th DCA Fla. 1973); see Sanchez v. Crandon Wholesale Drug Co., 173 So.2d 687 (Fla.1965). 29A Fla.Jur., Specific Performance § 33 (1967):

“Insofar as mutuality of remedies is concerned, it is clear that there must exist a recognized mutuality of remedies in equity between the parties to the suit which can constitute a basis for awarding specific performance in equity to the complanant, as against the defendant.” Id. at 621.

Franchisee here is bound by the agreement to perform certain personal services to Franchisor. Personal services are not subject to a suit for specific performance. Florida-Georgia Chemical Co., Inc. v. National Laboratories, Inc., supra; 29A Fla. Jur., Specific Performance § 111 (1967); see Sanchez v. Crandon Wholesale Drug Co., supra. As a result, the order granting, as it does, specific performance to Franchisee, is in error — as no like order could be had for Franchisor.

Franchisee must seek his damages at law should Franchisor breach.. We find that remedy of damages is adequate to compensate Franchisee, should Franchisor breach. The measure of damages would depend upon a jury evaluation of what would be a reasonable time for the contract duration. See Annot., 19 ALR3d 196, Termination by Principal of Distributorship Contract Containing No Express Provision for Termination (1968). In 62 Am. Jur.2d 769 § 12, Termination of Franchise (1972) it is noted:

“It is usually true that the actual understanding and expectation is that the franchisee will make a substantial commitment in time or money to develop and establish the business of selling the product of service of which the franchisor will also be a beneficiary, and it would therefore be unfair for the franchisor to wait until this is done and then arbitrarily terminate the contract without cause, and thus compel the franchisee to lose his investment in time and money.
“Generally, the franchise contract is for a specific term of years, and the agreement usually provides for renewals.
A franchise agreement by means of which a franchisee is given the right to operate his franchise for a definite term of years cannot be said to be terminable at the mere option of the franchisor.” (Emphasis added.) Id. at 770.

This contract spoke of no time duration, although it did provide that should Franchisee breach, and Franchisor, therefore, terminate for cause, Franchisee for ten years thereafter should receive 25% of all service fees generated from operative stores in his former franchise area. It follows that Franchisee’s damages for Franchisor’s breach could be no less than this amount, plus any damages in lost income determined by a jury to be due and owing the Franchisee. For a discussion of analogous termination problems see annot. 19 ALR3d 196, supra, in which it is said:

“What constitutes a ‘Reasonable Time’ for the duration of a distributorship or sales agency has been deemed to be a question of fact, or a mixed question of law and fact, which depends upon the general nature and circumstances of the case.”

Reversed and remanded for action not inconsistent with the foregoing opinion.

Reversed and remanded.

OWEN and CROSS, JJ., concur.

      “ITEM III
      1. “(1) Licensee agrees to franchise, sell and install Burger Chef stores and sell the complete line of Burger Chef equipment necessary for the sale of Burger Chef products only upon the form of agreement furnished by Burger Chef. The form of agreement shall be ‘Burger Chef Franchise and Lease Agreement’ and ‘Burger Chef Franchise Agreement’, a current copy of which is attached hereto for purposes of illustration only and which may be amended from time to time, and which is marked ‘Exhibit A’. Neither the said Burger Chef Franchise and Lease Agreement nor the Burger Chef Franchise Agreement shall be effective until approved and executed by an authorized representative of Burger Chef at Indianapolis, Indiana, and shall not be signed by Licensee as agent of Burger Chef.
      “(2) Licensee or his agent (said agent to be approved by Burger Chef) agrees to make a minimum of two (2) calls per month at each Burger Chef store in the territories herein-before described in ITEM I to render aid and assistance to the store franchise owner, and Licensee further agrees to prepare and submit to Burger Chef office at 1348 West 16th Street, Indianapolis, Indiana 46207, a written store inspection report on forms provided by Burger Chef for each store at the time of making his two monthly calls. The above requirement may be modified or waived by Burger Chef by written agreement.
      “ (3) Licensee agrees to travel to Indianapolis or other designated place for the purpose of receiving training in Burger Chef procedures, practices and methods.
      “(4) Licensee agrees to complete and forward to Burger Chef, Indianapolis, Indiana, all forms and papers as may be required from time to time by Burger Chef pertaining to the leasing, sales, inspection and operation of the stores in the territories described in ITEM I.
      “(5) Licensee agrees that in the event Burger Chef is required by the terms of the lease to open a store before a qualified operator is obtained, the Licensee will assume all obligations contingent with the opening and operation of said store including any rent that might become due until a qualified operator is secured. Furthermore, any net profit which shall accrue during this period when the store is held by the Licensee shall accrue to the Licensee as compensation for said operation. At the time the store is sold to an operator all liabilities shall be transferred to said operator.”

      . There are cases in which temporary injunctions have been granted against termination while suits were in progress. Bateman v. Ford Motor Co., 302 F.2d 63 (3d Cir.1962); Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir. 1970).

      “ITEM V
      3. “In the event of any default of Licensee of any of the provisions of this agreement, Burger Chef shall, after the giving of thirty (30) days notice in writing by registered mail, and if remaining uncorrected after thirty (30) days, have the right to terminate Licensee’s right in this Territory Franchise Agreement. In the event of such termination by Burger Chef, Licensee shall be paid an amount equal to twenty-five percent (25%) of the service charges collected from each store sold and installed by Licensee for a period ending ten (10) years from the date of termination of this agreement; provided, however, that nothing contained herein shall require Burger Chéf to continue the operation of stores sold and installed by Licensee if it. should become impracticable to continue such operation. The payment of said twenty-five percent (25%) of the service charges collected shall be made only after such service charges have been received by Burger Chef from the store franchise owner.”