author: DAUKSCH, Judge.

text:
    George F. STRAUSER, Petitioner, v. STATE of Florida, Respondent.
    No. 78-340.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.
    Rehearing Denied July 19, 1978.

      Raymond G. Ingalsbe, of Saylor and In-galsbe, North Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for respondent.
   DAUKSCH, Judge.

Petitioner seeks our Writ of Certiorari to the circuit court to review its decision, in its appellate capacity, affirming a conviction in the county court. This petition was filed before the effective date of the new appellate rules. While petitioner urges error and brings up a partial transcript of the trial, he has failed to bring us the entire transcript and we cannot, from an inadequate record, determine if the alleged error was harmful or harmless. Of course, all judgments come to us presumed correct and it is petitioner’s burden to demonstrate otherwise. Pierson v. Sharp, 283 So.2d 880 (Fla.4th DCA 1973); Johnson v. Eatonville, 203 So.2d 664 (Fla.4th DCA 1967); Rosenstein v. Raticoff, 265 So.2d 387 (Fla.4th DCA 1972); Schmotzer v. Poisson, 345 So.2d 769 (Fla.4th DCA 1977); Johnson & Panico, P. A. v. Couch, 350 So.2d 1080 (Fla.4th DCA 1977).

Petition for Writ of Certiorari is DENIED.

CROSS and MOORE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. NIMMONS, RALPH W., Jr., Associate Judge,

license: Public Domain

text:
    Alice H. BEACH, Appellant, v. HALIFAX HOSPITAL DISTRICT, etc., et al., Appellees.
    No. EE-139.
    District Court of Appeal of Florida, First District.
    June 8, 1978.
    Rehearing Denied July 26, 1978.
    S. LaRue Williams, of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellant.
    Alfred A. Green, Jr., of Green, Strasser & Hammond, Daytona Beach, for appellees.
   PER CURIAM.

Having considered the record, briefs and arguments, we determine that under the particular facts of this case, the refusal to give an instruction on res ipsa loquitur was appropriate. Goodyear Tire and Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339, Case No. 50-411 (Fla., 1978).

AFFIRMED.

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

NIMMONS, RALPH W., Jr., Associate Judge, specially concurring.

NIMMONS, RALPH W., Jr., Associate Judge,

specially concurring.

I concur with the majority’s ground for affirmance of the lower court judgment. However, in my opinion, there are additional equally significant reasons why the judgment should be affirmed.

Appellant, plaintiff below, appeals from a jury verdict in her favor, claiming that the trial judge erred in refusing to instruct on the doctrine of res ipsa loquitur. The jury found appellee, defendant below, guilty of negligence and assessed damages in a sum certain. The jury further found that plaintiff was guilty of negligence which caused or contributed to her injuries. The verdict showed the apportionment of negligence to be 90% attributable to plaintiff and 10% attributable to defendant.

The elements of res ipsa loquitur, as stated by this Court in Holman v. Ford Motor Company, 239 So.2d 40, 44 (Fla. 1st DCA 1970), are as follows:

“(1) the instrumentality involved was within the exclusive control of the defendant at the time of the injury, both as to operation and inspection; (2) the injury was not the result of any voluntary action or contribution on the part of the plaintiff; and (3) the accident would not have occurred had the defendant used due care.”

Such elements have been stated identically in Pape v. DePew, 281 So.2d 224, 225 (Fla. 1st DCA 1973) and Stanek v. Houston, 165 So.2d 825, 927 (Fla. 2nd DCA 1964).

It is apparent from the record in this case that there was testimony from which the jury could properly find negligence on the part of plaintiff and that such negligence contributed to the accident and resultant injuries. Moreover, the dispositive factor, in my opinion, is that the jury specifically found that plaintiff was, in fact, guilty of negligence which caused or contributed to her injuries. Implicit in the jury’s verdict that plaintiff’s actions contributed to her injuries is a finding that the second element of the doctrine of res ipsa loquitur was not established by the evidence. If there had been an instruction on the doctrine of res ipsa loquitur, the jury, given its finding that plaintiff contributed to her own injuries, could not have properly found the second essential element of res ipsa loquitur to have been established. Therefore, even if we were to hold that the trial court erred in failing to instruct the jury on the doctrine of res ipsa loquitur, such error would have to be regarded as harmless.

I am also of the view that since the jury returned a verdict of negligence against defendant, the question of whether the trial court erred in refusing to instruct on res ipsa loquitur was thereby rendered moot. Res ipsa loquitur is a doctrine of “extremely limited applicability”. Goodyear Tire and Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339, Case No. 50-411 (Fla., 1978). Its only purpose is to furnish an injured plaintiff with an inference of negligence where direct proof of negligence is wanting. If the jury had returned a verdict of no negligence on the part of defendant, plaintiff would then be able to properly assert that the unavailability to the jury of the inference of negligence afforded by the doctrine was prejudicial to plaintiff, and, if the essential elements of the doctrine had been established, then the failure to so instruct the jury would be reversible error. However, since the jury found defendant guilty of negligence without the benefit of the inference afforded by the doctrine, the failure to so instruct, even if the elements of the doctrine were present, must be regarded as harmless error.

Finally, plaintiff’s argument that the jury might have reached a different percentage apportionment of negligence if the court had instructed on res ipsa loquitur is also without merit. The purpose of the doctrine is as mentioned above. It has nothing to do with apportioning the negligence between the parties.

      . Section 59.041, Florida Statutes, provides, in pertinent part:
      “No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause ... on the ground of misdirection of the jury . . unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.”


author: HAVERFIELD, Chief Judge.

text:
    Frances BRITT, Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 77-284.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 20, 1978.
    Alfred D. Bieley, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, and Bradford Swing, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HAVERFIELD, Chief Judge.

Frances Britt appeals from an order granting a motion of defendant, Fidelity and Casualty Company of New York, to dismiss her complaint for declaratory relief seeking to determine coverage under her automobile liability insurance policy issued by Fidelity.

On July 24, 1975 Britt purchased through Auto Liability Insurance Agency an automobile liability insurance policy issued by Fidelity and obtained a temporary insurance binder effective that date. She made premium payments on July 24, August 4 and August 18 to Auto Liability Insurance Agency. On August 18 she was involved in an automobile accident and as a result sustained personal injuries and incurred liability to a third party. Britt requested that Fidelity furnish her with personal injury protection benefits under the terms of the policy and that it defend the claim against her. Although Fidelity filed a Notice of Policy Under the Florida Financial Responsibility Law (Form SR-21) with the Bureau of Financial Responsibility on October 14, Fidelity subsequently cancelled her policy on December 31. Thereafter, by letter of May 20, 1976, Fidelity advised Britt that it was denying coverage both' as to her requests for personal injury protection benefits and defense of the third party claim. Britt then filed the instant action for declaratory relief seeking a determination of coverage under the policy. Fidelity moved to dismiss the complaint on the ground that it failed to state a cause of action under the declaratory judgment act. [Chapter 86, Florida Statutes (1975)]. After a hearing, the trial court entered an order dismissing the complaint for the above reason. We reverse.

Bona fide disputes over the coverage of an insurance policy have been traditionally considered a proper subject for declaratory relief. Tavares v. Allstate Insurance Co., 342 So.2d 551 (Fla. 3d DCA 1977). After a review of the complaint and several instruments attached thereto, we conclude that the complaint presents a bona fide dispute over coverage arising out of an interpretation of the binder and policy which should have been entertained by the trial court on the merits. Cf. Cruger v. Allstate Insurance Co., 162 So.2d 690 (Fla. 3d DCA 1964); Zeagler v. Commercial Union Insurance Co. of New York, 166 So.2d 616 (Fla. 3d DCA 1964); Jones v. New Amsterdam Casualty Co., 213 So.2d 502 (Fla. 3d DCA 1968) and Tavares, supra.

Accordingly, the order of dismissal is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: PER CURIAM.

text:
    SCHWAB & CO., INC., Appellant, v. BREEZY BAY, INC., Appellee.
    Nos. 77-529, 77-630.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 20, 1978.

      Iva W. Kay, Jr. and M. J. Kortis, Miami, for appellant.
    Bass & Stillman, Fort Lauderdale, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In these consolidated appeals, defendant-appellant, Schwab & Co., Inc., seeks review of two orders denying its motions to set aside default and final judgment and to dismiss the complaint in this action involving insurance coverage.

Plaintiff Breezy Bay, Inc. on July 9, 1976 filed a complaint against Great Northern Insurance Company and its agents, defendant Schwab and others. The complaint alleged the refusal of Great Northern to pay for loss of certain merchandise covered under its policy and the negligent failure of Schwab and the other defendants, as agents of Great Northern, to issue the endorsement that would have validated the policy as to loss of the subject merchandise. Service was perfected on Schwab and the other defendants. Schwab having failed to file any responsive pleading, Breezy Bay moved for a default which was granted on August 12. Breezy Bay then filed a motion for final judgment based upon the default along with an affidavit establishing damages in the amount of $17,850 and on August 24 final judgment was entered for Breezy Bay in that amount. Thereafter, on September 10 Schwab filed a motion to vacate default pursuant to Fla.R.Civ.P. 1.540(b), together with the affidavit of Frank T. Lazzaro and an answer. Mr. Laz-zaro alleged that he was an employee in the Ft. Lauderdale branch office of St. Paul Fire & Marine Insurance Company (Schwab’s insurer) at the time of the receipt of the file containing the suit papers and summons (forwarded by Schwab) on August 6, and the branch manager, Mr. Canig-lia was on vacation. Because the summons and complaint had been reduced to letter size in the file, Mr. Lazzaro thought there was nothing of an urgent nature and therefore it could wait until Mr. Caniglia’s return. Shortly after his return, Mr. Lazzaro on August 23 conferred with Mr. Caniglia about the file and discovered the summons and complaint to which an answer was due on August 2. Upon further investigation, they learned of the entry of the default. The file was then forwarded to local counsel who filed on behalf of Schwab the instant motion to vacate on the grounds of mistake, inadvertence, and excusable neglect. Schwab’s counsel also filed a motion to vacate the final judgment on the same grounds and a motion to dismiss the complaint. After hearing argument of counsel, the trial judge denied the motions to vacate default and final judgment. The trial judge also denied Schwab’s motion to dismiss the complaint. Schwab appeals these two denial orders.

Schwab first argues that the trial judge erred in not vacating the default. We cannot agree.

The precise circumstances constituting excusable neglect, mistake or inadvertence are not well defined and therefore the facts of each case are of singular importance in determining whether or not relief under Fla.R.Civ.P. 1.540(b) should be granted. Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972); Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733 (Fla. 1st DCA 1964). In addition, it is the duty of the trial court, not the appellate courts to make the determination of whether or not the facts constitute excusable neglect, mistake, or inadvertence sufficient to excuse compliance with the rules. Farish v. Lum's, Inc., 267 So.2d 325 (Fla.1972). The discretion reposed in the trial judge by Fla.R.Civ.P. 1.540 is of the broadest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion. Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977); Chamberlin v. Mid-Century Insurance Company, 350 So.2d 364 (Fla. 2d DCA 1977).

After reviewing the record in the case at bar, we cannot say that the trial judge abused his discretion, grossly or otherwise in determining that Schwab’s misplaced reliance upon its insurer for its timely defense is not excusable neglect and thereupon denying Schwab’s motion to set aside default. Cf. Lawn v. Wasserman, 226 So.2d 261 (Fla. 3d DCA 1969).

Schwab for its second point on appeal contends that the trial court’erred in not setting aside the final judgment because it did not receive notice of the hearing therefor pursuant to Fla.R.Civ.P. 1.440(c).

This contention is without merit because the above rule upon which Schwab relies did not become effective until January 1, 1977. See: In Re Florida Bar, Rules of Civil Procedure, 339 So.2d 626 (Fla.1976). Previously, there was no notice requirement where as in the instant case, the defaulting party failed to file any responsive pleading. See: Stevenson v. Arnold, 250 So.2d 270 (Fla.1971). Thus, this point must fail.

Last, we considered Schwab’s final point that the trial judge erred in denying its motion to dismiss the complaint and conclude that it lacks merit.

Affirmed.


text:
    Darlene K. MOLINARO, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1861.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 17, 1978.
    Bennett H. Brummer, Public Defender and Kurt Lyle Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Defendant, Darlene K. Molinaro, appeals her conviction for possession of a controlled substance, a barbituric acid derivative [Section 893.13, Florida Statutes (1975)], and contends the trial court erred in denying her sworn motion to dismiss because the undisputed facts fail to show that she had actual .or constructive possession of the controlled substance. The relevant facts appear as follows:

Defendant was a passenger in a disabled vehicle which was parked alongside the road. Officer Smith testified that he observed the car, walked over to it and asked the driver and the defendant to produce identification; that both appeared highly intoxicated and he had to revive the defendant who was passed out on the passenger side of the front seat. He then noticed two blue and red capsules on the front passenger floorboard and another on the seat between defendant and the driver. Based upon this testimony, the trial court denied the motion to dismiss. Thereafter, defendant entered a plea of nolo contendere and specifically preserved her right to appeal the denial.

If the premises on which drugs are found is not in the exclusive but only in the joint possession of the accused, then the prosecution in order to demonstrate constructive possession must prove knowledge on the part of the accused of the presence of the drugs on the premises and the ability to maintain control over them. See Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965); Harris v. State, 307 So.2d 218 (Fla. 3d DCA 1974). This requisite knowledge may be established by circumstances from which the trier of the fact might infer knowledge. See Markman v. State, 210 So.2d 486, 487 (Fla. 3d DCA 1968); Hively v. State, 336 So.2d 127, 129 (Fla. 4th DCA 1976).

The undisputed facts set out above presented sufficient circumstances from which the trial judge, the trier of the facts herein, could (and did) infer knowledge on the part of defendant. See Heineman v. State, 327 So.2d 898 (Fla. 3d DCA 1976).

Affirmed.

      . Adjudication of guilt was withheld.


text:
    Frank WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-783.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 17, 1978.
    Frank Williams, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, UJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Reubin O’D. ASKEW, Governor, Bruce A. Smathers, Secretary of State, Gerald A. Lewis, Comptroller, Philip Ashler, Treasurer, Robert L. Shevin, Attorney General, Doyle Conner, Commissioner of Agriculture, and Ralph Turlington, Commissioner of Education, as and constituting the Department of Revenue of the State of Florida, Appellants, v. W. S. BADCOCK CORPORATION, a Florida Corporation, Appellee.
    No. GG-298.
    District Court of Appeal of Florida, First District.
    June 16, 1978.
    Robert L. Shevin, Atty. Gen., and Edwin J. Stacker, Asst. Atty. Gen., for appellants.
    Marvin E. Barkin and Albert C. O’Neill, Jr., of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appel-lee.
   PER CURIAM.

Affirmed. Clearwater Federal Savings & Loan Association v. Department of Revenue of the State of Florida, 350 So.2d 1134 (Fla. 2d DCA 1977).

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


text:
    Jeff DONNER, Appellant, v. ARKWRIGHT-BOSTON MANUFACTURERS MUTUAL INSURANCE COMPANY et al., Appellees.
    No. 76-777.
    District Court of Appeal of Florida, Third District.
    June 16, 1978.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for appellant.
    Stephens, Schwartz, Lynn, Cherway & Brandy, P. A., Miami, for appellees.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL' (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on May 10, 1977 (346 So.2d 1210) affirming the final judgment of the circuit court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed April 6, 1978 (358 So.2d 21) and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on June 20,1977 is withdrawn, the judgment of this court filed May 10, 1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the final judgment of the trial court appealed herein is reversed and the cause is remanded for further proceedings not inconsistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


text:
    The NATIONAL UNION FIRE INSURANCE COMPANY, Appellant, v. LENOX LIQUORS, INC., Appellee.
    No. 75-1869.
    District Court of Appeal of Florida, Third District.
    June 19, 1978.
    Wicker,' Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellant.
    Theodore M. Trushin and Michael B. Solomon, Miami Beach, for appellee.
    Before HENDRY, BARKDULL and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 8, 1977 affirming the order of the Circuit Court of Dade County, Florida in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed December 15,1977 (358 So.2d 533) and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the judgment of this court filed February 8, 1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b) Florida Appellate Rules).


text:
    The MIAMI HERALD PUBLISHING COMPANY and John H. Payne, Appellants, v. Judith M. PAYNE, Appellee.
    No. 76-1167.
    District Court of Appeal of Florida, Third District.
    June 19, 1978.
    Steel, Hector, Davis and Joseph P. Klock, Jr., Miami, Francis E. Holden, Jr., Hialeah, for appellants.
    Robert M. Brake, Coral Gables, for appel-lee.
    Before HENDRY, BARKDULL and NATHAN,. JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on March 8, 1977 affirming the order of the Circuit Court for Dade County, Florida in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed March 9, 1978 (358 So.2d 541) and mandate now lodged in this court, quashed this court’s judgment, 345 So.2d 730;

NOW, THEREFORE, It is Ordered that the judgment of this court filed March 8, 1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


text:
    ALLSTATE INSURANCE COMPANY and Marshall Kleinman, Appellants, v. Gerinaldo NAVARRO, Don Julio Corporation, a Florida Corp. and Liberty Mutual Insurance Company, Appellees.
    Nos. 77-1321, 77-1322.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Rehearing Denied July 20, 1978.
    Underwood, Gillis, Karcher & Reinert and Edward H. Underwood, Jr., Miami, for appellants.

      Alfred D. Bieley, Irma V. Hernandez, Hialeah, Dixon, Dixon, Lane, Mitchell & Harris,and David R. Canning, Miami, for appellees.
    Before BARKDULL and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

By these consolidated appeals, we are called upon to review an order on partial summary judgment, and an order dismissing a third party complaint. The appellants are Allstate Insurance Company and Marshall Kleinman; the appellees are Gerinaldo Navarro, Don Julio Corporation and Liberty Mutual Insurance Company.

This action commenced as a collection case by Allstate against Don Julio Corporation for unpaid insurance premiums. It rapidly ballooned into a complicated morass of pleadings and tangentially related parties, claims and issues. We will first introduce the characters, and then explain their status in the case as they appear in the pleadings.

Don Julio Corporation, an ornamental ironworks business located in Hialeah, Florida, required several types of business insurance, including property, automobile, general liability, and workmen’s compensation and employer’s liability coverage. Representatives of Don Julio Corporation contacted Marshall Kleinman, a senior account agent of Allstate Insurance Company, in order to purchase such insurance coverage. Kleinman sold Don Julio Corporation an Allstate business package policy in December, 1972.

In September, 1973, Don Julio Corporation advised Kleinman that it had a subsidiary, and requested that Kleinman obtain workmen’s compensation and employer’s liability insurance coverage for such subsidiary. The subsidiary, Dodge Island Repair, Inc., is located at Dodge Island Shipyard, Miami, and has one employee, a welder.

In March, 1974, Gerinaldo Navarro, the welder, was injured while welding on a ship, the M/V Siboney, at Dodge Island. Navarro became disabled as a result of his injuries. For a time, Allstate voluntarily paid benefits to Navarro under its workmen’s compensation policy with Don Julio Corporation, but on September 10, 1974, Allstate controverted the claim and terminated payments. Navarro filed a claim in the United States Department of Labor, Office of Workmen’s Compensation, under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq., against Don Julio Corporation, Allstate Insurance Company, Reynolds Metals Company, Ocean Trailers Transport Corporation, Liberty Mutual Insurance Company and the M/V Siboney. The record reflects that Liberty Mutual is the workmen’s compensation carrier of Reynolds Metals and Ocean Transport; and that Reynolds Metals and Ocean Transport may have been co-employers with Don Julio Corporation and its subsidiary, Dodge Island Repair, on the work being done by Navarro at the time of his accident.

We will now explain how the foregoing persons or businesses became involved in these proceedings as parties or otherwise. As stated previously, a complaint was filed by Allstate alleging that Don Julio Corporation owed some $11,500.00 in unpaid insurance premiums. Together with an answer and affirmative defenses, Don Julio Corporation filed a counterclaim against Allstate, and a third party complaint against Geri-naldo Navarro and Marshall Kleinman. The third party claim against Navarro and Kleinman alleges that Don Julio Corporation advised Kleinman that its subsidiary, Dodge Island Repair, was performing maintenance operations on ships at Dodge Island Shipyard, and requested that Kleinman provide adequate workmen’s compensation and employer’s liability coverage for such subsidiary; that Kleinman informed Don Julio Corporation that the operations of Dodge Island Repair were covered by proper insurance; that, in fact, proper coverage was not obtained due to Kleinman’s negligence; and that judgment should be entered in favor of Don Julio Corporation against Kleinman for any and all sums for which Don Julio may be held liable in the claim for workmen’s compensation filed by Gerinaldo Navarro. The third party claim also seeks a declaratory judgment against Navarro because Don Julio is unsure of its rights and responsibilities in Navarro’s injury claim.

In the counterclaim, Don Julio Corporation asserts that Allstate acted in bad faith in failing to represent Don Julio against Navarro’s claim, and seeks (1) a declaration of rights as to coverage under the policy issued by Allstate, and (2) damages incurred by Don Julio as a result of Kleinman’s negligence, and Allstate’s bad faith and breach of contract.

Gerinaldo Navarro, injured welder and third party defendant, filed an answer and a pleading entitled “counterclaim” seeking a declaration of rights as between himself and Don Julio Corporation, Allstate, Klein-man and Kleinman’s errors and omissions liability insurance carrier (as yet unnamed in these proceedings). The “counterclaim” alleges that Allstate paid Navarro some benefits under Don Julio Corporation’s workmen’s compensation policy, but terminated benefits while Navarro was still in need of medical care and treatment; that Navarro is a third party beneficiary of the policy and that he is entitled to full benefits under the policy, in addition to compensation for pain and suffering, loss of earning capacity and other damages. The record fails to reflect that Don Julio Corporation filed a responsive pleading to this claim by Navarro.

Third party defendant Kleinman filed an answer and third party complaint against Liberty Mutual Insurance Company, alleging that in the event that Kleinman is declared liable on Navarro’s “counterclaim” or on Don Julio’s counterclaim and third party complaint, Liberty Mutual should be held liable to Kleinman for all damages assessed against him. Liberty Mutual, it is alleged, was involved in Navarro’s claim in that it

“ . . . was the workmen’s compensation carrier for a coemployer, REYNOLDS METAL COMPANY AND OCEAN TRAILERS TRANSPORT CORPORATION.”

Attached as an exhibit to Kleinman’s third party complaint, is a letter of August 27, 1975, to Navarro from the Claims Examiner, Office of Worker’s Compensation, United States Department of Labor, to the effect that Navarro’s counsel having withdrawn his Longshore and Harbor Worker’s claim against Allstate, Don Julio Corporation, Liberty Mutual, Ocean Transport, Reynolds Metals and the M/V Siboney, the file is closed.

Exhibits attached to Navarro’s brief show that Navarro executed a release and indemnification agreement in the Longshore and Harbor Worker’s claim, having settled with Liberty Mutual, Ocean Transport, Reynolds Metals and the M/V Siboney. Letters by Navarro’s counsel indicate that Navarro did not settle with Don Julio and Allstate, and that Navarro intended to proceed against them in the Florida courts.

Navarro next filed a motion for partial summary judgment against Allstate on the question of coverage. Attached to the motion is (1) Allstate’s notice to controvert, of September 10,1974, stating that the Florida Bureau of Workmen’s Compensation has no jurisdiction, and (2) a letter from Allstate’s counsel to the federal Office of Worker’s Compensation, of October, 1974, advising that Allstate did not have in force and effect for Don Julio Corporation, a compensation policy under the Federal Longshoremen’s and Harbor Workers’ Compensation Act, but that Allstate voluntarily paid Navarro temporary total disability benefits in the amount of $1,920.00 plus medical benefits in the amount of $1,415.50, until it discovered that this was a federal compensation matter.

Liberty Mutual filed a motion to dismiss Kleinman’s third party complaint against it, alleging that Kleinman’s claim failed to state a cause of action, and that under the facts and circumstances, Liberty Mutual cannot be liable to Kleinman. After a hearing, at which argument was had on these and other pending motions, the court granted Navarro’s motion for partial summary judgment as follows:

“ . . from the contents of the Court file, it would appear that the Counter-claimant GERINALDO NAVARRO is covered under the insurance policy of the employer DON JULIO CORPORATION, with ALLSTATE ...”

The court also entered an “order on pleadings” in which it ruled on all of the other motions, including Liberty Mutual’s motion to dismiss:

“The Third Party Defendant, Liberty Mutual Insurance Company’s Motion to Dismiss the Third Party Complaint against it, is granted, however, without prejudice to said Third Party Plaintiff, Marshall Kleinman, to commence a separate action for such relief as he may seek.”

We will first address the question of the correctness of entry of the partial summary judgment holding that Navarro is covered under the workmen’s compensation and employer’s liability policy. Having studied the record in this case, we find that it is pregnant with genuine issues of material fact, and that entry of summary judgment at this stage of the proceedings was improper. The record fairly bristles with questions to be answered before a determination can be made as to whether Navarro is covered by Don Julio’s policy: for example, Don Julio Corporation alleges in its pleadings that at the time it sought to obtain workmen’s compensation and employer’s liability insurance coverage for its subsidiary, Dodge Island Repair, it advised Kleinman of the nature of the work being performed at the shipyard. Kleinman, on the other hand, testified on deposition, that he wrote coverage for Dodge Island Repair after checking “thoroughly” and being told that there was “no exposure anywhere near” and no contact with marine vessels; that there was no longshoremen’s or harbor worker’s exposure; that it was never his intent, and that he had no facilities to provide coverage for longshoremen and harbor workers; and further, that the owners and representatives of Don Julio knew “concretely” that he was not providing such coverage.

There is a document dated September 25, 1973, and entitled “business insurance customer service request” ■ included in the exhibits which Kleinman produced at his deposition, which states:

“NOTE: Insured is operating under the Don Julio Corporation, a subsidiary known as Dodge Island Repair, located at the Dodge Island Ship Yark [sic], Miami. He has only one employee there who does welding work only. I have check [sic] thoroughly to negate any LONG SHORE MEN [sic] AND HARBOR Worker’s exposure, and it is absolutely no exposure any where [sic] near a vessell [sic] (ship). Increase W/C $5,000 under welding class, add on add’t vehicle shown below.”

Among other genuine issues of material fact to be determined in this case, are the following: what Navarro was doing at the time he was injured; which employer(s) Navarto was working for at the time of the accident; whether he is entitled to relief under federal or Florida workmen’s compensation provisions; whether Allstate’s policy covers Navarro, and if so, under federal or Florida worker’s compensation, or under its employer’s liability coverage provisions; whether Kleinman was advised by Don Julio that Navarro was welding on ships; whether Kleinman advised Don Julio that neither he, nor Allstate intended to provide, nor could they provide coverage for longshoremen and harbor workers. Clearly, the time was not ripe to find as a matter of law that Navarro is covered by the Allstate policy.

We next reach the order dismissing Kleinman’s third party claim against Liberty Mutual, without prejudice to Kleinman “to commence a separate action for such relief as he may seek.” We find that the trial court was correct in so ruling, and we affirm. In our opinion, Kleinman failed as a matter of law to plead facts stating a cause of action for indemnity against Liberty Mutual within the parameters of the instant case. We are unable to ascertain any legal relationship between Kleinman and Liberty Mutual, beyond the fact that Liberty Mutual settled a collateral matter with Navarro wherein Allstate and Don Julio Corporation were also parties.

The order dismissing the third party complaint against Liberty Mutual is affirmed. The partial summary judgment in favor of Navarro on coverage is reversed and the cause is remanded for further proceedings.

Affirmed in part, reversed in part and remanded.


text:
    CORSET COVE, INC., a Florida Corporation, Appellant, v. Ann ROSEN, Appellee.
    No. 77-1632.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Rehearing Denied July 17, 1978.
    Ainslee R. Ferdie, Coral Gables, for appellant.
    Smith, Mandler, Smith, Werner & Jaco-bowitz and Patricia M. Silver, Miami Beach, for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This case involves the validity of a non-competition agreement, executed in connection with the sale of a business.

The trial court found that the agreement was unreasonable as to geographical area and as to time. The appellant contends that this was an abuse of discretion.

We have examined the record and fail to find any abuse and therefore affirm. Flammer v. Patton, 245 So.2d 854 (Fla.1971); Kofoed Public Relations Associates, Inc. v. Mullins, 257 So.2d 603 (Fla. 4th DCA 1972); Orkin Exterminating Company, Inc. v. Girardeau, 301 So.2d 38 (Fla. 1st DCA 1974); Forrest v. Kornblatt, 328 So.2d 528 (Fla. 3d DCA 1976).

We have examined the cross-assignment filed by the appellee and find it to be without merit.

Therefore, the final judgment under review be and the same is hereby affirmed.


author: MILLS, Judge.

text:
    Johnie James LATHAM, Jr., Appellant, v. STATE of Florida, Appellee.
    No. DD-196.
    District Court of Appeal of Florida, First District.
    June 21, 1978.
    Rehearing Denied July 26, 1978.

      Woodburn S. Wesley, Jr., of Cotton & Wesley, Fort Walton Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Patti Eng-lander, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Latham was charged with grand larceny. He pled nolo contendere. The trial court withheld adjudication and placed him on probation. Approximately eight months later, Latham was charged with violation of probation. Following a hearing, the court found that he had violated the terms of his probation. Latham was adjudicated guilty of grand larceny and sentenced to three years imprisonment. He appeals.

Latham’s contention that the court erred in denying his motion to suppress is without merit. The exclusionary rule does not apply to probation revocation hearings. Croteau v. State, 334 So.2d 577 (Fla.1976).

Latham’s argument that the trial court erred in failing to state in writing the evidence relied upon and the reasons for revoking Latham’s probation is without merit. The Circuit Court is a court of record, therefore, the court reporter’s transcript of the probation revocation hearing provides an opportunity for review of the revocation hearing superior to the written statement of evidence and reasons required by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974). We have a full transcript of the revocation hearing before us in this appeal.

Lastly, Latham urges that the court erred in revoking his probation because the State failed to identify him at the hearing. We have read the transcript of the revocation hearing and though the identification of Latham was not as formal as would be required at a trial, at a revocation hearing which does not require strict adherence to substantive and procedural rights, it was sufficient.

We affirm the judgment.

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


text:
    James Rickey STANFILL, Appellant, v. STATE of Florida, Appellee.
    No. GG-318.
    District Court of Appeal of Florida, First District.
    June 23, 1978.
    Rehearing Denied July 25, 1978.

      F. Palmer Williams and Everett P. Anderson, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., and Doris E. Jenkins, Legal Assistant, for appellee.
   PER CURIAM.

By this appeal we are required to construe section 316.027(1) and (2), Florida Statutes 1975, in the light of State ex rel. Miller v. Patterson, 284 So.2d 9 (Fla.App. 2 1973); State ex rel. Seal v. Shepard, 299 So.2d 644 (Fla.App. 1 1974); Diggs v. State, 334 So.2d 333 (Fla.App. 2 1976); Holmes v. State, 342 So.2d 134 (Fla.App. 1 1977) and other relevant statutes and rules which will be hereinafter discussed.

By grand jury indictment appellant was charged with one count of manslaughter and three counts of unlawfully leaving the scene of an accident which resulted in the death of one person and injuries to two others. At trial, following voir dire, selection and swearing of the jury, the defense counsel brought to the attention of the trial judge an alleged inconsistency in the state’s position, urging that whereas counts two through four of the indictment charged the defendant with “unlawfully” leaving the scene of an accident the state was apparently preparing to try him for “willfully” leaving the scene. The state responded that the attack on the indictment was untimely.

It was the defendant’s position in the trial court, and his position on this appeal, that Fla.R.Crim.P. 3.140(o) as well as Rule 3.190(c) are inapplicable for the reason that, appellant contends, said counts of the indictment do indeed contain a valid charge, viz: a misdemeanor, but that they do not charge a felony. In his brief, referring to Rule 3.140(o), appellant states: “This rule does not apply to the instant indictment. Defendant will cheerfully concede that the indictment contains no defects or variance. It is entirely proper as to form. Further, it is entirely proper as to substance. The fact the indictment charges a substantive crime that happens to be a misdemeanor, and not a felony, is not by any stretch of the imagination a ‘defect or variance’ contemplated by Rule 3.140(o).” Referring to Rule 3.190(c), appellant continues: “This rule provides in substance that motions to dismiss an indictment must be made before the jury is impaneled, if waiver is to be avoided. Like the previously discussed rule, however, it has no application to the case at bar. This is so because the indictment is plainly sufficient on its face — sufficient to state a misdemeanor and a misdemeanor only. Hence, the indictment could have withstood a pretrial motion to dismiss. Were the indictment defective on its face, this rule would require defense counsel (on pain of waiver) to attack the deficiency prior to the jury being impaneled. But here, the only ‘deficiency’ was the state’s failure to charge defendant with a more severe crime than the facts arguable warranted. The law does not require defense counsel, either before or after impaneling of the jury, to advise the state on how to try its ease”, citing as authority this court’s opinion in State v. Ansley, 349 So.2d 837 (Fla. 1st DCA 1977).

We are faced therefore squarely with the query as to whether an indictment charging a driver with “unlawfully”, as distinguished from “willfully”, violating F.S. 316.027 charges a misdemeanor or whether it defectively charges a felony. By the verbiage of his brief, appellant urges that it charges a misdemeanor while apparently conceding that if it defectively charges a felony then the defect was waived and cured by the application of the above mentioned Rules of Criminal Procedure.

The issue is brought into focus in this case by the fact that, over the objection of the defendant, the trial judge charged the jury that it is a crime for the driver of a vehicle involved in an accident resulting in injury to, or death of, a person to “willfully” fail to stop at the scene of the accident. The trial judge did not instruct the jury that a misdemeanor is a lesser included offense provided in F.S. 316.027.

The first count of the indictment, charging manslaughter, was nol. prosed, and the defendant was found guilty on the three counts of willfully failing to stop at the accident scene. It is from the judgment rendered on that verdict, and the resulting sentence, from which this appeal emanates.

F.S. 316.027 provides as follows:

“(1) The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop such vehicle at the scene of the accident, or as close thereto as possible, and shall forthwith return to, and in every event shall remain at the scene of, the accident until he has fulfilled the requirements of s. 316.062.
“(2) Any person willfully failing to stop or to comply with the requirements of subsection (1) under such circumstances is guilty of a felony and, upon conviction, shall be punished by imprisonment in the state penitentiary for not more than 1 year or by fine of not more than $5,000 or by both such fine and imprisonment.”

Our sister court of the Second District in State ex rel. Miller v. Patterson, supra, a prohibition proceeding, squarely and unequivocally held that F.S. 316.027(1) proscribes conduct the violation of which is a misdemeanor and that the violation of F.S. 316.027(2) constitutes a felony.

Reciting that “[t]he facts of this case are virtually identical to those recited in an opinion of our sister court of the Second District, State ex rel. Miller v. Patterson ” we, in State ex rel. Seal v. Shepard, supra, also a prohibition proceeding, adopted the reasoning and conclusions of that case.

Again, in Diggs v. State, supra, the Second District Court of Appeal, citing State ex rel. Miller v. Patterson, supra, held that an information charging a violation of F.S. 316.027 but which did not recite the word “willfully” charged a misdemeanor, saying: “A person not charged with willfully failing to stop under these circumstances can only be convicted of a misdemeanor.”

In Holmes v. State, supra, this court considered a related problem, viz: Whether a person convicted of leaving the scene of an accident involving personal injury without willful intent, held to have been a misdemeanor by virtue of the cases hereinabove mentioned, could be punished therefor. Judge Mills, writing for the court, noted that “the crime was not declared by statute as a misdemeanor but was declared to be a misdemeanor by case law.”, concluding that the legislature had provided no punishment and that therefore the court could impose no sentence.

Our study and consideration of the pending appeal has guided us to a further examination of the “Florida Traffic Control Law”, Chapter 316, F.S., 1975, as well as Chapter 775, F.S., 1975, embracing the “Florida Criminal Code”.

In such pursuit, our attention focuses upon F.S. 775.08 “Classes and Definition of Offenses”. Of special interest is a portion thereof, viz:

“When used in the laws of this state:
* * * * * *
(2) The term ‘misdemeanor’ shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by a term of imprisonment in a county correctional facility, except an extended term, not in excess of 1 year. The term ‘misdemeanor’ shall not mean a conviction for any violation of any provision of chapter 316 or any municipal or county ordinance.” (emphasis supplied)

Clearly and without equivocation, that language eliminates an answer that a misdemeanor charge is encompassed within subsection (1) of F.S. 316.027.

Further enlightenment may be found in Section 316.026(4), F.S., 1975, Penalties. It is noted that the penalty for violation of F.S. 316.027 is as provided in subsection (4) of Section 316.026. The punishment is a felony, not a misdemeanor.

The legislature is presumed to know existing law when enacting statutes. 30 Fla.Jur., Section 110.

In order to properly construe F.S. 316.-027(1) and (2) that statute must be scrutinized along with, and side by side by, F.S. 316.026(4) and F.S. 775.08(2), and in pari materia with them.

Our reasoned judgment is that the legislature, in drafting and passing F.S. 316.027, never intended by the first two subsections to create two crimes, a misdemeanor by subsection (1) and a felony in subsection (2). What the legislature intended to condemn and, indeed, did condemn, was “willfully” leaving the scene of an accident involving death or injury to a person. The division of the statute into subsections (1) and (2) was purely incidental to the enactment of the statute. Subsections (1) and (2) of the Statute charges one crime, a felony.

We must therefore, and do, respectfully disagree with our sister court of the Second District in State ex rel. Miller v. Patterson, supra, and in Diggs v. State, supra, and recede from our holding in State ex rel. Seal v. Shepard. Our holding in Holmes v. State, supra, that a court is without authority to impose a sentence upon a defendant who has been convicted of a crime for which the legislature provides no punishment is correct. That opinion is also correct in recognizing and acknowledging that it was not the legislature but the courts which declared F.S. 316.027(1) to proscribe a misdemeanor. However, in so far as that opinion might be construed as being in conflict herewith, we also recede therefrom.

Sub judice, the three challenged counts of the indictment charged, albeit defectively, felonies. No timely attack was made thereon and neither the record nor the brief support any contention that the indictment “is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense” (Fla.R.Crim.P. 3.140(o)) nor that relief may be found in Fla.R.Crim.P. 3.190(c).

AFFIRMED.

McCORD, C. J., BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


text:
    Johnny Bell IRVING, Appellant, v. STATE of Florida, Appellee.
    No. HH-283.
    District Court of Appeal of Florida, First District.
    June 26, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen. and William E. Whitley, Asst. State Atty., for appellee.
   PER CURIAM.

We have carefully examined the record on appeal and briefs filed by able counsel. We find therefrom that each point here presented has been heretofore determined by decisions of the Appellate Courts of Florida, including the Supreme Court of Florida. Nothing would be added to the jurisprudence of this state by again discussing those points here.

Appellant having failed to demonstrate prejudicial error, the judgment and sentence appealed are

AFFIRMED.

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


text:
    Juan SALAZAR and Nieves Salazar, his wife, Appellants, v. Carlos VALLE and Felicia Valle, his wife, and State Farm Fire and Casualty Insurance Company, Appellees.
    Nos. 77-1214, 77-1215.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.

      Goldstein & Goldstein and Caron Balka-ny, Miami, for appellants.
    John A. Finn and George V. Lanza and R. David Donlin, Coral Gables, for appellees.
    Before PEARSON and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

In this personal injury action, we have consolidated an appeal by .the plaintiffs from a summary final judgment, and an interlocutory appeal by the plaintiffs from an order granting defendants’ motion to amend response to plaintiffs’ request for admissions.

Appellants, Juan and Nieves Salazar, plaintiffs in the trial court, filed a complaint against defendants, Carlos and Felicia Valle and State Farm Fire and Casualty Insurance Company, appellees herein, seeking damages for personal injuries. The complaint contains allegations of specific acts of negligence on the part of the Valles as owners of the premises where the accident is alleged to have occurred. An alias summons directed the sheriff to serve interrogatories and a request for admissions on the defendants together with the complaint. Request for admissions no. 4, sets forth verbatim the allegations of negligence contained in the complaint.

The sheriff’s return of service was filed on November 13, 1976. By letter dated March 31, 1977, defendants’ attorney advised plaintiffs’ attorney that he never received a copy of the request for admissions, and asked that he be furnished a copy. On April 13, 1977, plaintiffs’ attorney provided a copy of the request for admissions, but insisted that he considered the admissions to be admitted since there was no response to his request for over five months, which is far in excess of the time allowed in Florida Rule of Civil Procedure 1.370, governing requests for admissions.

On May 2, 1977, defendants filed answers to the request for admissions, denying Request no. 4. On the same date, defendants also filed a motion to withdraw or amend their response to the request for admissions on the grounds that they never received a copy of the request until April 13,1977, and further, that Request no. 4 was improper and thus, required no response.

At a hearing on May 4, 1977, the trial judge granted defendants’ motion to amend response to request for admissions, permitting the defendants to enter a denial of Request no. 4, inasmuch as said request was improper and objectionable on its face, and did not call for a response. At the same hearing, final summary judgment was entered in favor of the defendants. This appeal and interlocutory appeal ensued.

Reaching first the entry of summary final judgment in favor of the defendants, we find that the pleadings, depositions, interrogatories and other material of record demonstrate that there are questions of material fact to be determined by the trier of fact. Therefore, we hold that the entry of the summary final judgment was improper, and we reverse and remand for further proceedings.

The second question to be addressed is whether the trial court correctly determined that Request no. 4 was improper, objectionable and did not call for a response; and correctly entered the order permitting defendants to amend and enter denial of Request no. 4. The record shows that Request no. 4 asked defendants to admit the truth of the allegations of negligence contained in the plaintiffs’ complaint. In order to decide whether the request for admission asking defendants to admit the truth of the allegations of negligence in plaintiffs’ complaint is proper, we look to the Rules of Civil Procedure.

Florida Rule of Civil Procedure 1.280(b)(1), entitled “General Provisions Governing Discovery,” provides that

“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action . . . ”

Florida Rule of Civil Procedure 1.370(a), entitled “Requests for Admissions,” permits requests for admissions

“ . .of the truth of any matters within the scope of Rule 1.280(b) . that relate to statements or opinions of fact or of the application of law to fact . . . ”

There is a body of Florida law stemming from the case of City of Miami v. Bell, 253 So.2d 742, 744 (Fla.3d DCA 1971), which stands for the proposition that admissions are properly objectionable (1) where they seek admissions as to disputed facts lying at the heart of the case, and (2) where they seek admissions as to conclusions of law. This principle, however, was based on Rule 1.370 as it was framed before the 1972 Amendment to the Rules of Civil Procedure, and it is no longer the applicable law. The predecessor to our present Rule 1.370, which was entitled “Admission of Facts and Genuineness of Documents,” provided that a party could serve a written request for

“ . . . the truth of any relevant matters of fact set forth in the request.”

We interpret Rule 1.370, as amended, to permit the type of admission requested in the case now before us, as a “matter, not privileged, that is relevant to the subject matter of the pending action,” and as an “application of law to fact.”

Therefore, the trial court’s determination that Request no. 4 was improper, objectionable and did not call for a response, was erroneous. We reverse the order permitting defendants to withdraw or amend their response, and we remand the cause to the trial judge to inquire into and make a determination of such matters as whether the defendants timely received a copy of the request for admissions; whether there was a timely response by the defendants; if not, whether there is some justification for an untimely response; whether the request for admissions should be deemed admitted; and if so, whether relief ought to be granted under Rule 1.370(b). This rule, entitled “Effect of Admission,” provides as follows:

“Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to Rule 1.200 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. ...”

The summary final judgment is reversed. The order permitting withdrawal or amendment of response is reversed and the entire cause is remanded to the trial court with instructions to proceed in accordance with this opinion.

Reversed and remanded.


text:
    Carl DeMARCO, Appellant, v. PUBLIX SUPER MARKETS, INC., a Florida Corporation, Appellee.
    No. 78-81.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.

      Tobias Simon and Theodore L. Tripp, Jr., Miami, for appellant.
    Taylor, Brion, Buker & Greene and Frank B. Pridgen, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HAVERFIELD, Chief Judge.

This is an appeal by Carl DeMarco from an order dismissing with prejudice his complaint for compensatory and punitive damages against his former employer, Publix Super Markets, Inc., in this action for the allegedly wrongful termination of his employment.

Anne DeMarco, the minor daughter of Carl DeMarco, while shopping with her mother in one of the stores of the appellee, Publix Super Markets, Inc., sustained a severe eye injury when a soda bottle exploded. At the time of the accident Carl De-Marco was an employee of Publix, whose insurer, Hartford Insurance Company, paid the medical expenses incurred by Anne. After her initial treatment had been completed, Hartford offered the additional sum of $200 as a complete settlement on behalf of Publix. This offer was refused by Carl DeMarco who then filed suit on behalf of his minor daughter against Publix and the manufacturer of the bottle which exploded. Publix informed DeMarco that if he did not withdraw the lawsuit, he would be discharged. DeMarco refused and his employment was terminated. He thereupon filed the subject multi-count complaint against Publix seeking compensatory and punitive damages and reinstatement. He alleged that as a result of this deliberate and malicious termination, Publix was primarily liable in the following respects: (1) interference with the good faith exercise of his rights under Article I, Section 21 and 9, Florida Constitution (1968), and Section 447.09, Florida Statutes (1975); (2) damage to his reputation in that his firing imputed that he was unreliable or incompetent; and (3) severe emotional, distress and mental anguish suffered. Publix moved to dismiss the complaint for failure to state a cause of action. After hearing argument of counsel, the trial court dismissed the complaint with prejudice for the reason that there is no basis for a suit to obtain compensation for violation of DeMarco’s rights under the Florida Constitution. The court also found the facts as alleged failed to give rise to a cause of action for either damage to De-Marco’s reputation or intentional infliction of emotional distress. We affirm.

The established law is that where the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract. Wynne v. Ludman Corporation, 79 So.2d 690 (Fla.1955); Sher v. Shower Door Company of America, 197 So.2d 333 (Fla.3d DCA 1967); Critchlow v. WFC Mortgage Company, Inc., 315 So.2d 483 (Fla. 3d DCA 1975). The employment agreement in the case at bar having been for an indefinite time, Publix could terminate DeMarco for any reason without incurring liability. Thus, Publix was not liable for firing him for the reason that he was exercising his constitutionally protected rights. Furthermore, there is no civil cause of action for the interference with the exercise of one’s right under Article I, Section 21 of the Florida Constitution. See: Kirkpatrick v. Parker, 136 Fla. 689, 699, 187 So. 620, 624 (1939). In fact, DeMarco’s suit on behalf of his daughter is still pending which contradicts the allegation that he is being denied access to the courts in derogation of this constitutional right. Likewise, we find to be without merit the argument that Publix is liable for interference with DeMarco’s rights under Section 447.09, Florida Statutes (1975) in that Chapter 447, Florida Statutes (1975) clearly was enacted for the purpose of regulating labor organizations and was not intended by the legislature to apply to the present factual situation.

We next considered the count for emotional distress. The controlling principle of law is that if the action is basically for breach of an employment contract, there can be no recovery for mental pain and anguish resulting from the breach unless such breach amounts to an independent, willful tort. See: Henry Morrison Flagler Museum v. Lee, 268 So.2d 434, 436-7 (Fla. 4th DCA 1972). After reviewing this count, it is readily apparent that the allegations contained therein fail to set forth the elements of a willful independent tort.

Finally, we examined the count for damage to DeMarco’s reputation and have determined that it fails to state a cause of action because of the lack of any allegation to the effect that Publix published any defamatory statements about DeMarco to third persons. See: Maine v. Allstate Insurance Company, 240 So.2d 857 (Fla. 4th DCA 1970).

Affirmed.

      . “§ 21. Access to courts
      “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

      . “§ 9. Due process
      “No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against himself.


text:
    STATE of Florida, Plaintiff, v. Ronald Martin ALBERT, Defendant.
    No. 77-931.
    District Court of Appeal of Florida, Fourth District.
    June 28, 1978.
    Robert Eagan, State’s Atty. and Willie G. May, Asst. State’s Atty., Orlando, for plaintiff.
    Howard S. Reiss, Orlando, for defendant.
   DAUKSCH, Judge.

Before us is a question of law certified to us by the circuit court as being proper for our consideration under Fla.App. Rule 4.6 (1962). We have determined this case to be controlled by Boyer v. City of Orlando, 232 So.2d 169 (Fla.1970) and therefore respectfully decline to answer the questions and remand this matter to the circuit court.

CERTIFICATE DENIED.

LETTS, J., and BLACK, SUSAN H., Associate Judge, concur.


author: BOARDMAN, Chief Judge.

text:
    John Henry MORSMAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-1543.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.

      Jack 0. Johnson, Public Defender, Lawrence D. Shearer, Douglas Brinkmeyer, Asst. Public Defenders, Bartow, and Carole Grayson, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant/defendant John Henry Mors-man was charged with felonious possession of marijuana. He pled nolo contendere, reserving his right to appeal the denial of his motion to suppress the marijuana plants which were the basis of the charge. The trial court withheld adjudication and placed appellant on one-year probation, and fined him $200.

The facts developed at the hearing on the motion to suppress and not disputed by either appellant or the state demonstrate that the contraband at issue was seized from the back yard of appellant’s residence by a sheriff’s officer without a warrant. Officer Skeens had gone to the residence to investigate a report originating from a statement made by one of appellant’s neighbors to a second neighbor that there were marijuana plants growing in appellant’s back yard. Skeens had become aware of the matter after the second neighbor lodged a complaint with another deputy at the sheriff’s department. When no one answered Skeen’s knock at appellant’s front door he walked around to the back of the dwelling and saw plants which he recognized as marijuana. He proceeded further around the residence and observed additional marijuana plants. Skeens then seized the contraband. Although the record does not clearly reflect where the plants were located or at what point in the officer’s circuit of the dwelling he initially observed them, it does appear that they could not be seen from appellant’s front yard or from the street. It also appears from the record that the yard was not enclosed. There is no evidence in the record which explains how the first neighbor became aware of the plants, for example, whether he could easily and clearly see them from his property and identify the plants as marijuana from that distance, whether he had to employ extraordinary measures to see and identify the plants only from a point on appellant’s property.

The threshold question presented in this case is whether the fourth amendment proscription against an unreasonable search and seizure is applicable to evidence located in the yard surrounding a residential dwelling. Subsequent to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the standard by which the applicability of the fourth amendment is determined is whether the evidence at issue was seized from a zone clothed by a reasonable expectation of privacy into which the government could not reasonably intrude to conduct a search or seizure. See, e. g., State v. Belcher, 317 So.2d 842 (Fla. 2d DCA 1975).

In the case before us appellant asserts an expectation of privacy as to the area adjacent to the rear of his residence, and the state has not persuaded us otherwise by its argument that an unenclosed yard is not a subject of fourth amendment protection. The state would argue that the fourth amendment does not protect activities conducted in an area which can be observed from outside the boundaries of his premises. In other words, that any expectation of privacy as to activities in plain view is unreasonable, and therefore the fourth amendment is inapplicable to a seizure of evidence located in an unenclosed space. We agree with the analysis of this point made in State v. O’Herron, 153 N.J.Super. 570, 380 A.2d 728, 733 (N.J.Super.App.Div.1977):

This contention, if adopted, would necessarily overrule the principle summarized in Coolidge [Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564] that “plain view alone is never enough to justify the warrantless seizure of evidence”; for if “reasonable expectation of privacy” dissipates upon “plain view,” then every warrantless intrusion following a “plain view” observation is lawful.

Typically, the yard adjacent to a residential dwelling, particularly the part of the back yard blocked from view from the front yard or street by the dwelling, is clothed with a reasonable expectation of privacy from unreasonable governmental intrusion. See, e. g., Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974); accord, Olivera v. State, 315 So.2d 487 (Fla.2d DCA 1975). While we believe this to be the general rule, because the test is necessarily subjective it would not necessarily always be true. For example, a back yard which is used for commercial purposes and subjected to a constant stream of visitors or customers, even if surrounded by a high, opaque enclosure, would not satisfy the standard of privacy. The state has not shown us any facts peculiar to this case which would dispel appellant’s expectation of privacy.

The next question confronting us is whether the facts of this case fit in one of the well-defined exceptions of the warrant requirement of the fourth amendment. The state argues that the contraband was in plain view, hence a warrant was unnecessary. The burden of proof is on the state to demonstrate that all the elements of the plain-view exception are present, including exigent circumstances.

The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.

Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564, 584 (1971); see also Hornblower v. State, 351 So.2d 716 (Fla.1977). We can discern no exigent circumstances to justify a warrant-less seizure of a marijuana plant growing in the back yard of a residence where there is no indication that the contraband is subject to immediate destruction or removal. See O’Herron, supra.

Accordingly, we reverse the final judgment and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

OTT and RYDER, JJ., concur.

      . The assistant state attorney stated at the hearing that Skeens went to the back of the house to see if anyone was there but he did not state that the officer was acting on or had any indication that there were persons in the residence or on the premises.

      . Other jurisdictions have implicitly if not explicitly agreed with this analysis where they have held that an expectation of privacy may be unreasonable as to an otherwise lawful visual search, yet reasonable as to a seizure.
      When an officer inadvertently observes evidence of a crime from a vántage point that does not intrude upon a protected area or when that protected area is entered with pri- or justification, there is no violation of the search warrant rule because there has been no “search.” . . . This does not, however, mean that the officer may, without more, seize the evidence. If the evidence is itself within a protected area, the officer may not enter that area to effect the seizure without first obtaining a warrant, absent exigent circumstances or another exception to the warrant requirement.

        State v. Parker, 355 So.2d 900, 904 (La.1978) (observation of contraband in a lawfully parked van from outside the van not an intrusion and thereby not an unconstitutional search but absent exigent circumstances seizure of the contraband was unconstitutional.) See also United States v. Coplen, 541 F.2d 211 (9th Cir. 1976) (observation from outside an airplane, which did not constitute a search, would have established probable cause to secure a warrant and warrantless seizure upheld based on exigent circumstances provided by the mobility of the airplane); Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974) (observation made without physical encroachment on constitutionally protected area cannot justify search of defendant’s premises and seizure of evidence subsequently found); State v. Lewis, Mont., 565 P.2d 642 (1977) (warrantless seizure of evidence in plain view is invalid absent exigent circumstances, although police observed evidence from place where he had a legal right to be and the discovery was inadvertent); State v. O’Herron, 153 N.J.Super. 570, 380 A.2d 728 (N.J.Super.App.Div.1977) (contraband seen and identified from point off defendant’s property is not a fourth amendment search but seizure based on observation is unconstitutional even though observation established probable cause for a warrant).

      . People v. Bradley, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129 (1969) appears on first glance to be on all fours with the case before us. However, the evidence seized in Bradley was located in the front of defendant’s residence which was open to the view and accessible to any passerby.

      . In its brief the state relies on facts which may be true but are not included in the record which if we could accept them may have affected our decision.

      .
      All too often, lawyers and courts alike attribute greater importance to the “plain view” doctrine than it deserves: it is easy to call it an “exception,” but it is not an exception to the requirement that a search or seizure must be supported by a warrant issued by a magistrate upon a finding of probable cause. Plain view serves to provide a means of securing probable cause, and, absent the applicability of one of the true exceptions to the warrant requirement, nothing more.

        State v. Parker, supra, at 903.

      . At the hearing on the motion to suppress, the state did not even argue that exigent circumstances were existent.


text:
    Ronald Mark HOLLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 77-963.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.

      Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant/defendant Ronald Mark Holloway was charged with rape and kidnapping in case number 74 — 4334 by an information filed September 9, 1974. The trial court subsequently granted appellant’s motion to suppress. The state appealed that order to this court, and we reversed. State v. Holloway, 318 So.2d 421 (Fla. 2d DCA 1975). Upon the issuance of our mandate appellant pled nolo contendere to the offenses charged. On March 25, 1976 appellant was adjudicated guilty and sentenced to a term of life imprisonment on the rape count and to a term of fifteen years imprisonment on the kidnapping count, the sentences to run concurrently with one another. That same day appellant was also adjudicated guilty and sentenced in two separate cases, unrelated to case number 74-4334. In case number 75-2672 appellant was sentenced to a term of life imprisonment, and in case number 75-2943 he was sentenced to a term of imprisonment for fifteen years. Both of these sentences were to run concurrently with the sentences imposed in case number 74-4334.

Appellant had filed for a writ of certiora-ri in the Supreme Court of Florida seeking review of our decision reversing the trial court’s order granting appellant’s motion to suppress. The supreme court quashed our opinion, Holloway v. State, 342 So.2d 966 (Fla.1977), and we withdrew our original mandate issued to the trial court and remanded for further proceedings in case number 74-4334.

Upon remand appellant elected a jury trial on the charges. The jury found appellant guilty of the lesser included offenses of assault and attempted kidnapping. The trial court imposed a sentence of sixty days imprisonment for assault and five years imprisonment for attempted kidnapping. The sentences were to run consecutively to one another and consecutively to the sentence imposed in case number 75-2672.

The issue raised on this appeal is whether the trial court erred in imposing the consecutive sentences in case number 74-4334 when the sentences initially imposed had been concurrent with one another and with the sentences in two other cases. Appellant argues that the consecutive sentences of sixty days and five years are illegal because they are an enhancement of the original concurrent sentences. We cannot agree that this is an enhancement. Clearly, the aggregate length of these terms is less than either the life sentence or the fifteen-year sentence which were initially imposed. We do hold, however, that the trial court’s order making the new sentences run consecutively to the sentence in case number 75-2672 results in an enhanced sentence. To substantiate this position we need only point out that while the original sentences in case number 74-4334 began to run at the same time as did the sentence imposed in case number 75-2672, under the new sentences the time to be served will not commence until after the sentence in ease number 75-2672 has been served.

In Lyttle v. State, 352 So.2d 942 (Fla. 2d DCA 1977), this court held that a judge may not issue a greater sentence after retrial than that which was originally imposed unless he is able to cite facts concerning the defendant’s behavior which have come to light since imposition of the first sentence and which justify the enhancement. Accord, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). To hold otherwise would allow trial courts to punish defendants for exercising their right to appeal thereby offending our fundamental understanding of due process of law. Appellant argues and the state concedes that the trial court did not state its reasons or the factual data to justify imposing an enhanced sentence. Accordingly, it was error to order the sentences in case number 74-4334 to be served consecutively to the sentence in case number 75-2672.

We affirm the judgments but remand the case to the trial court with directions to correct the sentences imposed in this case by making them concurrent with the sentence imposed in case number 75-2672. Appellant need not be present for this purpose.

AFFIRMED in part, REVERSED in part, and REMANDED.

HOBSON and SCHEB, JJ., concur.


text:
    Theron BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 77-1233.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Is a grand jury indictment insufficient to sustain a conviction when it fails to specify the place where the crime allegedly occurred, even though this allegation is subsequently supplied by a bill of particulars, the defendant is not hindered in the preparation or presentation of his defense, and the situs of the crime is proven at trial?

On authority of Rimes v. State, 101 Fla. 1322, 133 So. 550 (1931), we reverse appellant’s conviction and hold such an indictment fatally defective; however, we certify the question to the Supreme Court of Florida.

Appellant was charged by indictment with murder in the first degree. The caption of the indictment named the circuit court for Hernando County; the body of the indictment read as follows:

The Grand Jurors of the State of Florida, duly called impaneled and sworn to inquire and true presentment make in and for the body of the County of Hernando, and inquiring into the facts and circumstances surrounding the death of CARRIE BELLE BLACK, on their oaths do present and charge that THERON BLACK, did, on the 9th day of May, 1976, in violation of Florida Statute 782.04, unlawfully and perpetrated from a premeditated design to effect the death of the person killed, or any human being, did kill and murder CARRIE BELLE BLACK, a human being, by shooting her with a firearm, a more particular description being to this Body unknown.

A month after the indictment was returned, appellant’s attorney filed a motion for a statement of particulars, asking the state to furnish “the exact time, date and place of the alleged crime.” In response to that motion, the state filed a statement of particulars stating that “the offense occurred on May 9, 1976 approximately 10:14 a. m. at the residence of Theron and Carrie Lee Black, Route 8, Box 12Y, Brooksville, Hernando County, Florida.”

Three months later, represented by new counsel, appellant filed a motion to dismiss the indictment on the grounds that (1) the indictment was void in that it stated no offense against the laws of the State of Florida; (2) the indictment was void in that it failed to allege the county in which the offense occurred; and (3) the indictment was so vague and indefinite that the defendant was unable to respond thereto. After a noticed hearing, not attended by appellant’s counsel, the trial judge entered an order denying the motion to dismiss. Thereafter, the state filed a demand for notice of alibi in which it stated that appellant was charged with the commission of the crime of murder, “said crime having taken place at the residence of Theron and Carrie Lee Black, Route' 8, Box 12Y, Brooksville, Hernando County, Fla.”

One month following the demand for notice of alibi, appellant was brought to trial. At trial it was clearly established that the crime occurred in Hernando County, Florida. The jury found appellant guilty of murder in the second degree, and the trial court sentenced him to 99 years imprisonment.

Appellant seeks reversal of his conviction solely on the ground that it was void because the body of the indictment did not allege the state and county where the crime occurred. For reasons hereinafter expressed, we are compelled to agree with appellant’s position and reverse his conviction.

Fla.R.Crim.P. 3.140(d)(3) specifically provides that each count of an indictment shall state as definitely as possible the place of the commission of the offense charged. Here, the indictment clearly was defective in failing to allege the place where the crime was committed. Thus, we must determine whether this omission was a fatal defect in the indictment and one which was not cured by the statement of particulars and the evidence at trial which did establish the venue.

Appellant relies on Rimes v. State, supra, for reversal. In Rimes a grand jury charged “that Wilbur Rimes on the 4th day of August A.D.1929, did unlawfully and fe-loniously desert his lawful wife, Virginia Rimes, and his lawful child, Thomas H. Rimes.” The indictment contained no allegation as to where the crime occurred. A jury returned a verdict of guilty and judgment was entered by the trial court upon that verdict. Before trial defendant Rimes had moved to quash the indictment, but his motion was denied. In reversing Rimes’ conviction, the court said, “[I]n order to charge one with the commission of a criminal offense in this state, the indictment must charge the time, place and acts done, or omitted, by the accused which constitute the offense.” The court went on to say that venue concerned substance and not form, and failure to make such an allegation rendered the indictment fatally defective.

While Rimes appears controlling, we note that the specter of double jeopardy was of great concern to the court in its holding. 133 So. at 551. We do not believe that in the instant case serious contention could be made that appellant is subject to double jeopardy. First, this was a homicide case and the identity of the victim was clearly established. Second, in any consideration of a plea of double jeopardy the transcript of the evidence at trial would be available, thus the issue of double jeopardy would not have to be determined solely upon the accusatory document and other pleadings in the cause. Section 92.10, Florida Statutes (1977). See also Note, Indictment Sufficiency, 70 Colum.L.Rev. 876 at page 885 (1970).

Nor has appellant argued that he was hindered in the preparation of his defense by the deficiency in the indictment. As noted above, the state filed an adequate statement of particulars as to the date, time, and specific place of the crime charged, and these details were reiterated in the state’s demand for notice of alibi.

Quite obviously, the defect in the indictment could have and should have been corrected by further proceedings of the grand jury by either amending the indictment or returning a new indictment. A statement of particulars cannot cure fundamental defects in an indictment. Middleton v. State, 74 Fla. 234, 76 So.2d 785 (1917); Kittleson v. State, 152 Fla. 242, 9 So.2d 807 (1942); Kelly v. State 92 So.2d 172 (Fla 1957); Annot., 10 A.L.R. 982 (1921); cf., Russell v. State, 349 So.2d 1224 (Fla. 2d DCA 1977).

The state argues that appellant waived this defect because his counsel did not attend the hearing on the motion to dismiss. We cannot accept this argument. Appellant properly challenged the indictment, contending it was void in failing to allege the county of the offense. This was sufficient.

Although the supreme court’s holding in Rimes appears controlling, we now review the two decisions which the state argues show a departure from earlier rules as to the sufficiency of an indictment or information and would allow this court to affirm appellant’s conviction.

The first of these is Sparks v. State, 273 So.2d 74 (Fla.1973), in which the supreme court abandoned the common law rule that use of the words “on or about” in stating the time of the commission of the offense in an information or indictment is insufficient. In its decision, the court said, “[bjecause of the availability of a motion for statement of particulars in our discovery proceedings, defendant is no longer in the position of having to prepare a defense just from the four corners of the indictment or information.” We do not view the decision in Sparks as a receding by our supreme court from its early rule that an allegation of the place where the crime was committed is essential to charge an offense against the laws of this state. We note that the information in Sparks did not totally lack a statement as to when the crime allegedly occurred; it simply dealt with the sufficiency of the inexact allegation of time as stated.

The other case cited by the state is this court’s recent decision in State v. Barnett, 344 So.2d 863 (Fla. 2d DCA 1977). In Barnett we considered an indictment handed down by a statewide grand jury which was defective in several respects. In alleging the place of the commission of the offense, three counties were named in the disjunctive; that is, “in the county of Collier or Dade or Hendry.” In disapproving that allegation, we reiterated the rule that it is essential for an indictment to state the county within which the offense was committed, citing Rimes v. State, supra. In discussing the collective defects in the indictment considered in Barnett, we alluded to the rule that indictments and informations should be upheld if they are in substantial compliance with the law, and said that “[tjherefore, especially in view of the availability of a statement of particulars, it may be that no one of the deficiencies discussed above would, by itself, require the dismissal of the indictment.” Our opinion in Barnett does not represent a departure from the rules which we here adhere to.

In Barnett, as in Sparks, there was not a total failure to state an essential allegation in the indictment, but only a failure to make the allegation as specific as it could have been.

Courts continually re-evaluate some matters in the criminal law which historically were required to be alleged with great precision. For example, in Lopez v. State, 106 Fla. 361, 143 So. 303 (1932), the court reversed a defendant’s conviction of breaking and entering a store building with intent to commit a felony because the information did not state the name of the owner of the building with accuracy. There the allegation as to ownership said:

[A] store building of the Independent Wholesale Grocery, Mulberry, Florida, which said Independent Wholesale Grocery is owned by Mutual Stores, Inc.

The court found this statement to be insufficient to allege that Mutual Stores, Inc. owned the building that had been broken into.

Again, in Alvarez v. State, 157 Fla. 254, 25 So.2d 661 (Fla.1946), information in a breaking and entering case charged that the building entered was “the property of Harold McGluckin.” At trial it developed that the building was not the property of Harold McGluckin, but rather belonged to McGluckin Liquor Stores, Inc. The trial judge permitted the prosecutor, over objection, to amend the information by interlining the proper corporate ownership. On appeal the court reversed the conviction because the amendment so vitiated the information as to deny the defendant due process of law.

Recently in Lackos v. State, 339 So.2d 217 (Fla.1976) our supreme court referred to the modern trend to excuse technical defects and has held that a showing of prejudice is a condition precedent to undertaking the kind of procedural niceties envisioned by Alvarez and Lopez. In so doing the court held that the state was properly permitted to amend over the objection of the defendant to specify the correct corporate name of the owner of the stolen property as “Remington Electric Shavers, a division of Sperry Rand Corporation,” which was contrary to the allegation in the information that the stolen property belonged to Remington Electric Razors, Inc.

In the Lackos case, there was no showing that the defendant was hindered in his defense or that he was exposed to double jeopardy. As noted above, neither such element is present in this case. Nevertheless, we are concerned here with an indictment, not an information, and with the total omission of an allegation of the place where the crime allegedly occurred. The supreme court early declared that such an allegation is a matter of jurisdiction. Connor v. State, 29 Fla. 455, 10 So. 891 (1892). In that sense, the indictment in this case fails to show that the grand jury was presented with, and considered, evidence of every material fact necessary to charge the crime of which appellant was accused and for which he was tried. We are mindful of these considerations, though they were not expressed by the court in the Rimes case.

The principle in Rimes is a judicial construction of common law requirements. Though criminal law and procedure has changed a great deal since that decision, we are bound by the decision of our supreme court. It is our duty to adjudicate cases based upon the Federal and Florida Constitutions, and statutory law, and decisions of the Supreme Court of the United States and Florida. Should a change in Florida decisional law occur it should be at the hands of our supreme court rather than at the hands of the district court of appeal. It is our prerogative to certify questions we consider to be of great public interest to the Supreme Court of Florida and to state reasons for our suggestion that a principle of law be re-evaluated by that court. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

It is our opinion that the Supreme Court of Florida should consider whether, in light of all the circumstances of this case, the doctrine in Rimes should be a controlling precedent of the law.

Accordingly, we reverse the judgment of the trial court but certify to the supreme court the question presented in the first sentence of this opinion as being one of great public interest.

GRIMES, A. C. J., and SCHEB and DAN-AHY, JJ., concur.

      . Since appellant was charged with a capital crime, an indictment was required. Art. I, Sec. 15(a), Fla.Const.; Fla.R.Crim.P. 3.140(a)(1).

      . The motion, however, was renewed by counsel at trial at the end of the state’s case and again denied.

      . In some states the requirement of an express allegation of venue in the charging instrument has been eliminated by statute. In others, the allegation is supplied by statutes providing that venue shall be deemed to be charged as being within the boundaries of the territorial jurisdiction of the court in which the grand jury was impaneled. 42 C.J.S. Indictments and Informations Sec. 121. In over four decades since Rimes, neither type statute has been adopted by our legislature.

      . We observe that the state is not precluded from charging appellant anew, Burnes v. State, 89 Fla. 494, 104 So. 783 (1925). Cf. Johnson v. State, 27 Fla. 245, 9 So. 208 (1891) and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).


text:
    Henry BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 78-508.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Henry Bryant, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Henry Bryant appeals a judgment and sentence for two counts of aggravated assault. He pled guilty to these offenses. He now contends that the trial court erred in accepting his pleas.

A defendant who pleads guilty has no right to a direct appeal, but must obtain review by means of collateral attack. § 924.06(3), Fla.Stat. (1977); Honeycutt v. State, 359 So.2d 503 (Fla. 2d DC A 1978). Accordingly, this appeal is dismissed.

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


text:
    Alan L. PRUNTY, Appellant, v. STATE of Florida, Appellee. David Robert MYDER, Appellant, v. STATE of Florida, Appellee.
    Nos. HH-226, HH-227.
    District Court of Appeal of Florida, First District.
    June 29, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Each appellant seeks review of an allegedly excessive sentence imposed following his voluntary plea of guilty to an amended information charging attempted robbery contrary to Sections 812.13 and 777.04, Fla.Stat. (1975). The information as amended contained no allegations concerning use of a firearm, deadly weapon, or other weapon. See Sections 812.13(2)(a) and 812.13(2)(b), Fla.Stat. (1975). Each appellant was adjudicated guilty of attempted robbery.

The information as amended alleged an attempt to commit the offense proscribed by Section 812.13(2)(c) Fla.Stat. (1975). The maximum term of imprisonment for this offense is five years. Section 777.-04(4)(c), Fla.Stat. (1975). The sentences imposed on appellants are thus excessive and illegal. The sentences are vacated and the cases are remanded for proper sentencing under Sections 812.13(2)(c) and 777.04(4)(c), Fla.Stat. (1975). Appellants need not be present for resentencing.

BOYER, Acting C. J., and SMITH and BOOTH, JJ., concur.


text:
    BWS CREDIT SERVICES, INC., Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY and Linda D. Grande, Respondents.
    No. II-329.
    District Court of Appeal of Florida, First District.
    June 29, 1978.
    Richard C. McFarlain and A. Russell Bobo, Tallahassee, of McFarlain & Bobo, for petitioner.
    Alex D. Littlefield, Jr., Tallahassee, for respondents.
   PER CURIAM.

Petitioner, BWS Credit Services, Inc., seeks review, by Petition for Writ of Certio-rari, of an order of the Industrial Relations Commission dismissing petitioner’s appeal on the basis that same was not timely filed.

The adverse referee’s decision which BWS wished to appeal was mailed to BWS on October 24, 1977, accompanied by a notice stating that: “Last date for filing appeal to Industrial Relations Commission: November 3, 1977”. Petitioner’s notice of appeal to the Industrial Relations Commission was postmarked November 4, 1977. Thus, it is apparent that petitioner’s notice of appeal was untimely filed, rendering the decision of the appeals referee final. See Florida State University v. Jenkins, 323 So.2d 597 (Fla. 1st DCA 1975).

The Petition for Certiorari is DENIED.

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