author: WALDEN, Chief Judge.

text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 675, Appellant, v. Earl Lowell LASSITTER, Appellee. INTERNATIONAL UNION OF OPERATING ENGINEERS, Appellant, v. Earl Lowell LASSITTER, Appellee. Dennis WALTON, Appellant, v. Earl Lowell LASSITTER, Appellee.
    Nos. 72-566 to 72-568.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1975.
    Thomas J. Pilacek, Mamber, Gopman, Epstein & Foosaner, North Miami Beach, for appellant, International Union of Operating Engineers, Local No. 675.
    Larry Klein, Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, and Woll & Mayer, Washington, D.C., for appellant, International Union of Operating Engineers.
    J.Leonard Fleet, Hollywood, for appellant, Dennis Walton.
    Rex Conrad and Ronald Fitzgerald, Fleming, O’Bryan & Fleming, Fort Lau-derdale, for appellee.
   WALDEN, Chief Judge.

UPON SUPREME COURT MANDATE

Our initial opinion containing the facts, holdings and disposition is reported as International U. of Eng. Local No. 675 v. Lassitter, 295 So.2d 634 (4th DCA Fla.1974). Thereafter, certiorari application was made to the Florida Supreme Court with these results:

1. June 5, 1975
“The Cross-Petition for Writ of Certiorari filed in the above cases is hereby denied.”
2. June 5, 1975
“On consideration of the Petition for Clarification and/or Rehearing' filed by International Union of Operating Engineers, it is ordered that said petition is granted, and it is further ORDERED:
“This cause having heretofore been submitted to the Court on Petition for Writ of Certiorari, Cross-Petition for Writ of Certiorari, jurisdictional briefs and portions of the record' deemed necessary to reflect jurisdiction under Florida Appellate Rule 4.-5c (6), and it appearing to the Court that it is without jurisdiction, it is ordered that the Petition and Cross-Petition for Writ of Certiorari be and the same are hereby denied.”
3. April 30, 1975
“Certiorari is granted and the decision of the Fourth District Court of Appeal is quashed on the basis of Rin-aldi vs. Aaron, 314 So.2d 762 (Fla.) 1975.”
4. June 5, 1975
■ “ON REHEARING GRANTED
“Petitions for Certiorari are granted and the decision of the Fourth District Court of Appeal is quashed insofar as it is inconsistent with Rinaldi v. Aaron, 314 So.2d 762 (Fla.) 1975, and the cause is remanded for further proceedings consistent herewith.”

Synthesizing our original opinion and decision, we did three basic things :

1. Affirmed the judgments as to liability,

2. Reversed and remanded for a new trial on the issue of compensatory damages,

3.Reversed and remanded for a new trial on the issue of punitive damages.

Analyzing the Supreme Court Mandate as it applies to our opinion and decision, we see that Nos. 1 and 2, above, stand undisturbed.

How about No. 3, above; what are we mandated to do by the quashing of our opinion “insofar as it is inconsistent with Rinaldi v. Aaron” and the remand to us “for further proceedings consistent herewith” ?

We again look back to our opinion in light of Rinaldi v. Aaron, supra. We held that there must be adequate proofs of the defendant’s net worth or financial ability to pay in order for an award of punitive damages to stand. Exactly opposite, Rinaldi v. Aaron, supra, holds:

“. . . that evidence of financial worth is admissible and may be considered by the jury in its determination of the amount to be awarded as punitive damages, but evidence of worth is not a requisite to such award.” (Emphasis supplied.) 314 So.2d at 765.

We stand corrected and acknowledge as ordered that the portion of our opinion requiring evidence of net worth or financial 'ability to pay as a basis for an award of punitive damages has been quashed in favor of the opposite view expressed in Rinaldi v. Aaron, supra.

A review of our opinion reveals, though, that we assigned two additional reasons as a basis for reversing the award of punitive damages and remanding that issue for a new trial, reasons that were not encompassed or contradicted by Rinaldi v. Aaron, supra, or otherwise compromised by Supreme Court action.

First, we held:

“It is our firm judgment that the awards singly and in combination are so manifestly excessive as to shock our judicial conscience. Under the circumstances the verdicts could only be indicative of the improper influences of passion and prejudice working on the jury. These influences probably emanated from usual well known union partisanships, excited by injuries to an innocent victim, coupled with the publicity and heated climate
under which the case was tried. See Generally 9A Fla.Jur. Damages §§98 and 99 (1972).

Secondly, we held that, while an award of punitive damages was proper in the case, we were concerned with the amount of such award. We said:

“[I]t is our understanding that there should be some reasonable, albeit imprecise, relationship between punitive and compensatory damages. Air Line Employees Ass’n Int. v. Turner, 291 So.2d 670 (3d D.C.A. Fla.1974); Crowell-Collier Pub. Co. v. Caldwell, 170 F.2d 941 (5th Cir. 1948); Hutchinson v. Lott, 110 So.2d 442 (1st D.C.A. Fla.1959). With this background we opine that there is an impermissible and gross imbalance here between the actual damages suffered and the punitive damages awarded.” 295 So.2d at 640.

And now, since we necessarily return the case for a new trial on the matter of con-pensatory damages, it would be an anomaly not to likewise return the issue of punitive damages. If we said, as we did, that the balance between the two awards was impermissible, what would be the result if we now sustained the punitive damages and the new jury returned a lesser sum for compensatory damages on retrial, as it would be authorized to do ? The impermissible imbalance would be even larger with this court barred from appellate correction.

In sum, we are of the opinion that, after giving full credit to Rinaldi v. Aaron, supra, there remain fully sufficient legal reasons to still cause a new trial on the issue of punitive damages. Believing that the law and justice of the cause so indicate we, in accord with the mandate of the Supreme Court of Florida, reverse the awards of damages, compensatory and punitive, and remand for a new trial as to such issues.

It is so ordered.

OWEN and DOWNEY, JJ., concur.

      “4- An appendix to the brief of the local union contains fourteen newspaper articles of moderate length which were published at various times during the trial. The articles discuss events leading to the trial and the trial progress. Some of the article headlines were: ‘Union Harassment Claimed in Trial,’ and ‘More Testimony Given On Union Violence.’

      “5. The trial itself brought heated exchanges. The trial court judge admonished one attorney for calling a witness a liar, was provoked to the point of threatening to jail a union attorney and the jury heard evidence during the trial of union harassment of a union member who testified for Lassi-ter.” 295 So.2d at 639.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PERSHING INDUSTRIES, INC., a Florida Corporation, Appellant, v. Lawrence SHUPNICK and Albert Wilensky, Appellees.
    No. 75-425.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Rehearing Denied Feb. 11, 1976.

      Janice Revitz, Miami, for appellant.
    Michael A. Pelle, Ginsberg & Goldman, North Miami Beach, for appellees.
    Before PEARSON, HENDRY and HA-VERFIELD, JJ.
   PER CURIAM.

The issue presented on this appeal is: Is a contract for the purchase of stock in a corporation subject to the equitable remedy of rescission when the contract provides that the sale price of the stock shall be determined by a particular method and when that method is not capable of performance. The trial court held that the provision for the ascertainment of the purchase price was a dependent covenant and that by its impossibility of performance the contract was subject to rescission. Cf. Shore Inv. Co. v. Hotel Trinidad, 1947, 158 Fla. 682, 29 So. 2d 696; and Enid Corporation v. Mills, Fla.App.1958, 101 So.2d 906. We agree with the conclusion reached, and find that “[a]s in the case of specific performance, relief by way of cancellation lies within the sound discretion of the court, to be exercised according to what is reasonable and proper under the circumstances of each particular case . . . ” International Realty Associates, Inc. v. McAdoo, 1924, 87 Fla. 1, 99 So. 117. Additionally, “[w]e have no clear conviction that the construction so placed on the contract by the lower court is erroneous. There is a presumption that it is correct.” Clark v. Clark, Fla.1955, 79 So. 2d 426.

The appellant has also presented a point directed to the denial of certain of its motions and points directed to procedural rulings. None of them presents reversible error on this record.

Affirmed.


text:
    George HARDEMON, Appellant, v. Abraham FISH, Appellee.
    No. 74-1757.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.

      Matthews, Braynon & Culmer, Miami, for appellant.
    Jack Block, Miami, for appellee.
    Before BARKDULL, C. J., HENDRY, J., and PIERCE, WILLIAM C., Associate Judge.
   PER CURIAM.

By this appeal, plaintiff in the trial court seeks review of an adverse summary judgment dismissing a cause of action which sought, in effect, to cancel a deed allegedly executed by the grantor at a time when he was under the influence of the grantee and not competent to do such. The matter came on for hearing before the trial judge. The record consisted of a deposition of the grantee [Fish], an affidavit of Fish’s attorney, and an affidavit of the deceased grantor’s doctor. The summary judgment indicates it was granted in part on the “affidavits” in the file. We reverse.

First, it was inappropriate for counsel for the grantee [Fish] in the trial court to give an affidavit in support of the motion for summary judgment, because this is contrary to Canon 5, EC 5-9, DR 5-102, Code of Professional Responsibility; Millican v. Hunter, Fla.1954, 73 So.2d 58; Hubbard v. Hubbard, Fla.App.1970, 233 So.2d 150; In Re Estate of Freeman, Fla.App.1970, 240 So.2d 656. Counsel would not have been permitted to testify at the trial because of these authorities and, therefore, the trial judge should not have considered his affidavit as to the condition or competence of the grantor at the time he executed the deed. Dean v. Gold Coast Theatres, Inc., Fla.App. 1963, 156 So.2d 546; First Mortgage Corporation of Stuart v. deGive, Fla.App.1965, 177 So.2d 741; Rule 1.510(e), R.C.P.

Second, from a reading of the deposition of the grantee [Fish] it does not appear conclusively that the plaintiff did not have a cause of action. Therefore, it was error to grant the motion for summary judgment. Bishop v. City of Clear-water, Fla.App. 1972, 258 So.2d 337; Williams v. Florida Realty & Management Co., Fla.App.1973, 272 So.2d 176; Posey v. Pensacola Tractor & Equipment Company, Inc., Fla.App.1962, 138 So.2d 777. In the last cited case, the following is found •

“It is elemental that the movant at all times carries the burden of clearly and unequivocally establishing the right to summary judgment, and that it cannot be granted if there exists any controverted issue of material fact or if the proofs supporting the motion fail to overcome every theory upon which, under the pleadings, the adversary’s position might be sustained [authorities cited]”.

For the reasons above stated, the summary judgment here under review be and the same is hereby reversed, with directions to grant the parties a trial on the issues as may be framed by the pleadings.

Reversed and remanded, with directions.


text:
    Betty Jo CHAPIN, Appellant, v. Herbert NAURISON, Appellee.
    No. 75-443.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied Feb. 11, 1976.
    Jeffrey Feuer, Louis M. Rockman, Miami, for appellant.
    Heller & Kaplan, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff seeks reversal of a summary final judgment in favor of her ex-husband in an action to recover damages for his refusal to honor a $600,000 personal check.

Plaintiff Betty Jo Chapin and defendant Herbert Naurison were married on January 26, 1968. In early 1969 they were divorced and within three months remarried. During the course of the second marriage, on December 1, 1969 Herb asked Betty if she wanted some money. Upon Betty’s replying in the affirmative, Herb made out a check for $600,000 to Betty Chapin as payee. On several occasions while the parties were still married, Betty presented the check for payment which was refused. On October 21, 1970 Betty filed a petition for dissolution of marriage and at the hearing the issue of payment of the $600,000 check was raised and Herb, a man of modest means, claimed it was a joke. The marriage was dissolved on June 14, 1971 and Betty awarded $47,000 as lump sum alimony, a 1969 Dodge automobile and $4,500 in attorney’s fees. After entry of the June 14 judgment, Betty, on October 4, deposited the check in the United National Bank of Dadeland for collection and the check was returned uncollected. Thereupon, Betty filed suit against Herb for $600,000 in damages plus interest. Herb filed a motion for summary judgment on the basis that Betty’s rights, if any, with respect to the check had been disposed of by the 1971 final judgment. The trial court granted the motion. We affirm.

The rule is established that where the court has acquired jurisdiction to adjudicate property rights, a final dissolution of marriage judgment settles all property rights of the parties and bars any action thereafter by either party to determine property rights. Simon v. Simon, Fla.App.1974, 293 So.2d 780 and cases cited therein. The check was introduced into evidence and the issue of its validity was raised at the dissolution of marriage hearing. The final dissolution of marriage judgment disposed of the issue of the check claim adversely to Betty and if she intended to contest the judgment, she had a right of appeal. Having failed to do so, she is now barred from bringing a separate action on the claim.

Affirmed.


text:
    Anibal and Rebeca SOTO et al., Appellants, v. The STATE of Florida, Appellee.
    Nos. 75-466, 75-467 and 75-468.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied Feb. 11, 1976.
    Carling Stedman, Max Kogen, Ronald Fath, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., J. Robert Olian, Asst. Atty. Gen., and Charles Hauck, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellants bring these consolidated appeals from the trial court’s adjudication of their guilt and sentencing for aiding or assisting in conducting a lottery.

Appellants were tried nonjury on January 27 and February 1, 1975, for aiding or as-, sisting in conducting a lottery. On March 25, 1975, they were adjudicated guilty and sentenced. From these judgments and sentences, appellants bring these consolidated appeals.

Appellants contend on appeal that the trial court erred in issuing a warrant to’ search the premises involved in these cases because probable cause did not exist for its issuance, thereby depriving appellants of their constitutional right to be free from unreasonable searches and seizures; and that the trial court erred in failing to grant their motions for judgment of acquittal because, as a matter of law, the evidence was insufficient to sustain their convictions. Additionally, appellants Aníbal and Rebeca Soto contend that the fines imposed by their sentences are illegal and should be vacated.

Appellee contends that the trial court did not err in denying appellants’ motions to quash and suppress evidence obtained pursuant to the search warrant, and that the evidence was sufficient to sustain the convictions of appellants.

It is a well settled principle that no judgment or sentence in a criminal case will be reversed unless the appellate court after an examination of the record is of the opinion that error was committed which injuriously affected substantial rights of the appellant. Blackman v. State, Fla.App.1973, 279 So.2d 99; Matera v. State, Fla.App.1969, 218 So.2d 180, cert, den. Galtieri v. Florida, 396 U.S. 955, 90 S.Ct. 424, 24 L.Ed.2d 420; Sylvia v. State, Fla.App.1968, 210 So.2d 286, cert. den. 393 U.S. 981, 89 S.Ct. 452, 21 L.Ed.2d 442; § 924.33 Fla.Stat., F.S.A.; and see 2 Fla. Jur., Appeals § 358.

We have considered the record, all points in the briefs and arguments ‘of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgments and sentences appealed are affirmed.

Affirmed.


text:
    Lloyd A. DIXON, Jr., et al., Appellants, v. AVM CORPORATION, and Seaboard Surety Company, Appellees.
    No. 75-770.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1975.
    Marjorie D. Gadarian, Jones, Paine & Foster, West Palm Beach, for appellants.
    Robert T. Scott, Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, and Kirkpatrick, Lockhart, Johnson & Hutchi-son, Pittsburgh, Pa., for appellee-AVM Corp.
    Paul R. Regensdorf, Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee-Seaboard Surety Co.
   ON MOTION TO REVIEW ’SUPERSEDEAS

PER CURIAM.

Appellants, having filed an interlocutory appeal from an order of the trial court denying their motion for change of venue, here seek appellate review of an order fixing the amount of a supersedeas bond at $50,000, pursuant to Rule 5.10, F.A.R.

Since the order of the trial court failed to specify the conditions of the bond, we are unable to determine whether the amount thereof is excessive.

Accordingly, the motion to review the order in question is denied without prejudice to future review of an appropriate order fixing the terms and conditions of a supersedeas bond.

It is so ordered.

CROSS, OWEN and DOWNEY, JJ., concur.


author: NATHAN, Judge. PEARSON, Judge

text:
    BOSTON OLD COLONY INSURANCE COMPANY, a Foreign Corporation, Petitioner, v. Raul GUTIERREZ, Respondent.
    No. 75-1483.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied Feb. 11, 1976.
    Corlett, Merritt, Killian & Sikes and Tully Scott, Miami, for petitioner.
    Sams, Anderson, Alper & Post and Frank B. Pridgen, Miami, for respondent.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.j, Associate Judge.
   NATHAN, Judge.

This cause is before us on a petition for writ of certiorari filed by Boston Old Colony Insurance Company, defendant in the trial court, seeking review of an order granting a motion to compel discovery.

The question presented for our consideration in this case is whether a lawyer hired by an insurance company tO' defend the company and its insured in an action which results in a verdict in excess of the policy limits (and a judgment against the insured personally) may be deposed and required to produce the file in a later action for “bad faith” brought by the original plaintiff.

There is no question that had the defendant-insured, Bruce E. Brown, brought a bad faith action against his insurer, co-defendant, Old Colony, Brown would have been entitled to discovery as the attorneys represented both Old Colony and Brown. The quaere then, is whether Raul Gutierrez, as the initial party plaintiff, without an assignment of Brown’s rights, can compel discovery from the defendants’ attorneys.

The facts of this case as set out in the complaint are that the plaintiff, Gutierrez, sustained serious injuries in an automobile accident. He filed suit against the negligent party, Brown, and Brown’s insurer, Boston Old Colony Insurance Company. Brown had reported the accident and complied with all other conditions of his policy. Gutierrez offered to settle the claim for $10,000, the policy limit, but Boston Old Colony refused. Following a jury trial, a verdict and judgment were entered in the amount of $1,418,350.16. Boston Old Colony paid $10,000 in partial satisfaction of the judgment. In this action, Gutierrez seeks to recover the balance of the judgment from Boston Old Colony due to its alleged negligence and bad faith in failing to settle for the policy limits and thereby causing a judgment to be entered against Brown.

The attorneys who were retained by Boston Old Colony to represent both Boston Old Colony and Brown, its insured, in the original action were subpoenaed duces tecum for deposition to bring their respective files concerning the accident litigation. They refused to testify and refused to produce their files for inspection by the plaintiff. Following five months of procedural skirmishing, the trial court entered an order compelling the attorneys to comply. In this petition for certiorari, the defendant contends that to compel oral deposition by the attorneys and production of the files will cause a breach of the lawyer-client privilege of confidentiality.

In Shingleton v. Bussey, Fla.1969, 223 So.2d 713, the Florida Supreme Court established the doctrine that an insured has the right to recover against his insurer because of the latter’s bad faith in failing to settle a claim against its insured within policy limits. In extending the Shingleton doctrine, the Florida Supreme Court held, in Thompson v. Commercial Union Insurance Company of New York, Fla.1971, 250 So.2d 259, that a plaintiff in a personal injury action who obtained a judgment against a defendant in excess of the defendant’s insurance coverage could bring an action for bad faith against the insurance company without an assignment from the defendant insured on the third party beneficiary theory. It is well established that a third person can enforce a contract entered into between others for his benefit. See 81 A.L.R. 1279. As a third party beneficiary of the insurance policy, Gutierrez stands in the same posture as that of Brown, the insured. Just as Brown would be entitled to discovery, including deposition and production of files by the attorneys, since- both he (Brown) and Boston Old Colony were their clients, Gutierrez has the same right of discovery in furtherance of the preparation of his case.

The petition for a writ of certiorari is denied.

PEARSON, Judge

(concurring specially).

I concur in the decision reached only because I do not feel that the question of privilege is reached in this matter. There is no doubt that the lawyers must appear and that they may be examined. The extent of that examination is, I think, an open question.


text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Arthur R. MILLER, Appellee.
    No. 75-452.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Stuart Simon, County Atty., and Clifford A. Schulman, Asst. County Atty., for appellant.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and Sherryll Martens Dunaj, Miami, for appellee.
    Before HENDRY, HAVERFIELD and •NATHAN, JJ.
   PER CURIAM.

This is an appeal by Dade County, respondent in the trial court, from an order granting a petition for writ of certiorari. The writ granted Arthur R. Miller, as trustee, relief from resolutions of the Zoning Appeals Board (ZAB) and the County Commission denying a zoning change from GU (interim) and AU (agricultural) to IU-1 (industrial and light manufacturing) for the five acre parcel of land, fronting on the west side of northwest 27th Avenue at 15100 Northwest 27th Avenue, in unincorporated Dade County.

The area surrounding the land in question consists of residential neighborhoods to the east and west, and commercial and industrial development to the north and south. Immediately adjacent and to the north of the petitioner’s land, there is a roof truss factory and warehouse with parking and storage lots. Beyond the roof truss plant, on the same side of 27th Avenue, going further north, is a fast food franchise, gasoline station, an old shopping center, partially vacant and deteriorated, and a recently vacated and closed supermarket. The entire'property facing N.W. 27th Avenue, all the way north to highway 836 (Palmetto Expressway) is zoned for business, BU-3 or BU-2. The Opa Locka Industrial Park is composed of warehouses, plants, and industrial factories and is located diagonally across 15lst Street from petitioner’s 5-acre parcel. The Opa Locka airport is approximately one mile away from petitioner’s land, and has one of its flight paths directly overhead.

The petitioner acquired the land in 1973 from the Police Benevolent Association (PBA). The north portion of the land is vacant and undeveloped. On the south portion, there stands a concrete block structure built by the PBA to serve as a clubhouse. The building is now under a 7 year lease to a non-profit charitable organization for use as a drug rehabilitation center.

Petitioner Miller submitted an application seeking a zoning change to IU-1 in order to utilize the property for small bay single level warehouses, a use of the land which, he contends, is consistent with the nature of other N.W. 27th Avenue frontage and the development to the north and southeast. The zoning director, the planning director and the Zoning Appeals Board all recommended denial of the application for industrial use. The ZAB passed a resolution denying, without prejudice, Miller’s application. Approximately one month later, the Board of County Commissioners also passed a resolution denying the application.

The County Commission, on the record, conceding that the property should not be zoned RU-1 (single family residential), or GU and AU, offered the petitioner a rezoning to RU5A, which would include semi-professional business offices. The petitioner turned down the offer. Upon denial of the application, without prejudice, petitioner proceeded to file a petition for certiorari in Dade County circuit court, which was granted. In quashing the resolutions of the ZAB and the Board of County Commissioners, the circuit judge made findings of fact that the area along 27th Avenue is already commercially and industrially developed; . that the development proposed by Miller is in conformity with the present and probable future uses of the area; that the residential areas are adequately buffered and that any zoning classification more restrictive than IU-1 would be arbitrary and unreasonable. He then ordered and adjudged that the resolutions of the ZAB and the County Commission are

“. . . arbitrary, unreasonable, discriminatory, invalid and without substantial relationship to the public health, safety, welfare and morals, amounting to a confiscation of Petitioner’s property, and that the denial of a zoning category not less liberal than IU-1 is neither fairly debatable nor based upon competent substantial evidence, under the circumstances, development, and traffic patterns, combined with the existence of the adjacent roof truss factory, nearby commercial development, and the Opa-Locka Industrial Park, located across the street’ from the subject property. The requested zone category change to IU-1 is- compatible with the surrounding area’s use and potential future use; and a use category and (sic) less liberal deprives Petitioner of the use of his property.
3. The Court recommends that the only protection necessary to the residences to the west and southwest is a limitation upon Petitioner’s right to ingress and egress to 151st Street, which limitation is acceptable to Petitioner.
4. Thereupon, the Resolutions of the ZAB and County Commission are hereby quashed and this matter is hereby remanded to the Dade County Commission, which shall forthwith in accord with this Order and Writ rezone to a zoning classification not less liberal than IU-1, with the further recommendation that the Commission consider imposing a limitation and/or restriction upon the use of 151st Street for ingress and egress, as the County Commission, in the exercise of its legislative power, shall determine to be appropriate therefore.”

Having carefully studied the record on appeal and considered the briefs and arguments presented by counsel, we agree with the trial court and affirm that portion of the order determining the present zoning classifications of GU and AU to be unreasonable and confiscatory. We also agree that RU-1 would be confiscatory. However, we are of the opinion-that IU-1 zoning for industrial use of the property is unreasonable because of the surrounding residential development. In rezoning the land to IU-1, the trial court has eliminated any intermediate categories of zoning classification which might be more reasonable, such as BU-2 & 3. Petitioner has failed to substantiate with competent evidence that all uses of the property other than IU-1 would be confiscatory in nature.

The fact that industrial uses are permitted in the Opa-Locka Industrial Park, located in Opa Locka, and not a part of unincorporated Dade County, even though diagonally across 151st Street from petitioner’s property, will not in and of itself support a zoning change to an industrial classification. See Harris v. City of Coral Gables, Fla.App.1963, 157 So.2d 146. The fact that the property in question is located on the border of another district which permits a higher use is not sufficient to warrant a change of zoning. See Town of Surfside v. Skyline Terrace Corporation, Fla.App.1960, 120 So.2d 20.

Having determined that the GU and AU zoning is unreasonable and restrictive as would be RU-1, but that IU-1 is too liberal as not being consistent with the surrounding area, we reverse the order in this respect and remand the cause to the trial court to amend its order to the extent of requiring the proper legislative authority to re-zone petitioner’s property to a classification compatible with the BU2 and BU3 zoning along 27th Avenue.

Affirmed in part, reversed in part and remanded with directions.


text:
    Willie Albert EATON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-781.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.

      Engel & Mishkin and Don S. Cohn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and Ivan K. Chester, Legal Intern, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant was found guilty after a jury trial for possession of heroin and sentenced to five years in the state prison. Previously, his co-defendant, who was tried separately, pled guilty and received a sentence of four months in prison and 56 months probation. The burden of appellant’s main argument is that the judge was bound to give him the same short sentence as was received by the co-defendant. He urges that not to do so will result in a prejudice to him for having exercised his constitutional right to a jury trial.

The sentence in each case must be reviewed separately. There is nothing in this case to show that the sentence is not within the statutory limits of the crime for which appellant was found guilty. See Stanford v. State, Fla.1959, 110 So.2d 1. We are not apprised of the prior record of either of these men, nor do we know whether the judge took into consideration the adamant and unrepentant attitude of the appellant. We conclude that no error has been presented on this point. See Weathington v. State, Fla.App. 1972, 262 So.2d 724.

Appellant presents a procedural point claiming that he was irrevocably prejudiced by testimony that there was an exchange of money thereby implying that the appellant could have been prosecuted for sale of heroin. The trial court declined to allow introduction of- the money into evidence but the testimony as to the res gestae was not objected to and does not form a basis for reversal at this time. See Cornelius v. State, Fla.1950, 49 So.2d 332.

Affirmed.


text:
    ECONOMY SUPPLIERS AND FABRICATORS, INC., Appellant, v. CENTENNIAL HOMES, INC., Appellee.
    No. 75-397.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.

      Theo R. Manry, III, and Charles W Pittman of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    William B. Wilson and James M. Corri-gan of Maguire, Voorhis & Wells, Orlando, for appellee.
   WALDEN, Chief Judge.

Plaintiff sub-contractor appeals from a trial court order dismissing its complaint with prejudice and discharging the mechanic’s lien plaintiff had recorded against the defendant owner. We affirm the dismissal on the grounds the complaint was not adequate to support plaintiff’s claim. Plaintiff did not properly plead privity between plaintiff and owner, Foley Lumber Co. v. Koester, 61 So.2d 634 (Fla.1952):

“ ‘In order to create privity under the lien statute, there must be, in- addition to knowledge of the owner that a certain person is furnishing labor or material for the contractor to be used in the execution of his contract, and express or implied assumption by the owner of a contractual obligation to pay for the labor or materials furnished.’ ” Id. at 639;

plaintiff did not plead facts sufficient to make a clear case for fraud and deceit, see Fla.R.C.P. 1.120(b) (1975); plaintiff did not sufficiently plead any agency relationship between owner and contractor, see King v. Young, 107 So.2d 751 (Fla.App.2d 1958):

“The status of an independent contractor, as distinguished from that of an agent, consists of a contractual relationship by one with another to perform something for him, but the one so engaged is not controlled or subject to the control of the other in the performance of the engagement but only as to the result. Conversely, a principal in an agency relationship retains the right to control the conduct of an agent in regard to the engagement intrusted to him. It may be said that the recognized distinction between an agent and an independent contractor relationship is determined by whether the person is subject to or whether he is free from control with regard to the details of the engagement.” Id. at 753.

Although plaintiff pled he had given notice in conformance with the Mechanic’s Lien Statute requirement for lienors not in privity, Fla.Stat. § 713.06 (1973), there is conflict within the complaint as to what that notice was. Such conflict, unclarified, renders the notice allegation insufficient. Plaintiff’s complaint is further lacking in that it does not allege improper payments by the owner, or that the owner is in possession of amounts due the contractor, to which sums plaintiff would have at least a partial claim whether or not notice was filed. Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). Plaintiff claims an equitable lien, but such claim is also plead insufficiently. See Marshall v. Scott, 277 So.2d 546 (Fla.App.2d 1973).

We, therefore, affirm the dismissal of the complaint, but reverse that portion of the order dismissing with prejudice and remand with respectful directions to permit plaintiff to amend his complaint if he so wishes. See Fla.R.C.P. 1.190 (1975).

Affirmed in part; reversed in part, with directions.

OWEN, J., and ALDERMAN, JAMES E., Associate Judge, concur.


text:
    Darnell HARRISON, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 74-1663.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    Richard L. Jorandby, Public Defender, and Craig Barnard, Asst. Public Defender, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

We have considered all of petitioner’s points on appeal and find no reversible error demonstrated except as to the sentence imposed. It appears the trial court overlooked granting petitioner credit for time served in the county jail prior to sentencing, as required by § 921.161, F.S.1973.

Accordingly, we affirm the judgment of conviction but reverse the sentence and remand the cause with directions that the trial court either (a) resentence petitioner with credit for time served in the county jail prior to sentencing, or (b) enter an order reducing the sentence without calling the petitioner back before the court. Hollingshead v. State, Fla.App.1974, 292 So.2d 617.

Reversed and remanded with directions.

MAGER and DOWNEY, JJ., and TED-DER, GEORGE W., Jr., Associate Judge, concur.


text:
    Earl R. LITTLE, Appellant, v. Hazel M. LITTLE, Appellee.
    No. 75-1184.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Silver S. Squarcia, Miami, for appellant.
    Holtzman & Krause, South Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant husband takes this interlocutory appeal to review (1) an order denying his motion to dismiss his wife’s petition for dissolution of marriage, (2) an order of referral to a general master, and (3) an order denying his motion to suppress the notice of hearing before the general master.

Hazel Little, appellee, filed a petition for dissolution of her marriage to appellant, Earl Little. In the petition she sought child support, attorney’s fees, permanent custody of their minor child and a special equity in certain realty. Earl filed a motion to dismiss the petition on the grounds it was defective and failed to state a proper cause of action. This motion was denied. Hazel then noticed a hearing before the chancellor on her motion for alimony, support, fees and injunctive relief seeking to have Earl removed from the marital home. After a hearing, the trial judge entered an order referring appellee’s petition for alimony and child support and a determination of property rights to a general master pursuant to RCP 1.490. Hazel noticed a hearing before the general master and Earl moved to suppress the notice. The chancellor denied the motion to suppress.

Appellant primarily argues that the chancellor abused his discretion in delegating his authority to a general master to hear matters pertaining to alimony, child support, and a determination of property rights. We find the contention with respect to the matter of the property rights has merit.

A chancellor may appoint masters and refer certain matters to them as a matter of procedure, but the court’s judicial power is not delegable and cannot be abdicated in whole or in part by the chancellor to the master. Bell v. Bell, Fla.App.1975, 307 So.2d 911. Where the question of property rights is raised, the chancellor must determine the issue since the final dissolution of marriage judgment settles all of the property rights of the parties and bars any future action to determine such rights. See 10A Fla.Jur. Dissolution of Marriage § 71 (1973). Thus, we conclude that the chancellor erred in delegating his judicial power to the general master to determine the property rights of the parties in this case. However, his referral to the matters of temporary alimony and child support to the master was proper. See RCP 1.200(a).

We also considered appellant’s remaining argument on appeal that the chancellor erred in denying his motion to dismiss the petition for dissolution of marriage and find it to be lacking in merit.

Accordingly, that portion of the order of referral to the general master with respect to determining the property rights is reversed. In all other respects the order of referral is affirmed as are the orders denying the motions to dismiss and to suppress notice of hearing.

So ordered.

      . However, where all parties to the case consent, the trial judge can delegate to a master his authority to determine the issues of law and fact in the cause before him.


author: SMITH, Judge. BOYER, Chief Judge

text:
    Bruce Allen JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. V-402.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

This is another case in which both the prosecutor and defense counsel announced acceptance of the prospective jurors, who were excused and reassembled three days later to be sworn and to hear the case. Defense counsel, for a plausibly stated reason, then sought to exercise peremptory challenges which the trial court refused to honor. In two decisions rendered since the trial and conviction in this case, this Court has determined, on review of prior decisions of the Supreme Court, that the trial court’s action was reversible error requiring a new trial. Shelby v. State, 301 So.2d 461 (Fla.App. 1st, 1974); Walden v. State, 319 So.2d 51 (Fla.App. 1st, 1975).

Reversed.

MILLS, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(concurring specially) .

In order that the law be stable and certain, and in conformity with the time-honored principle of stare decisis, I concur. Shelby v. State, supra, and Walden v. State, supra, have become binding precedents. However, I yet adhere to my views as expressed in the dissenting opinion in Walden v. State, supra.


text:
    Jimmy Milton SMITH, Appellant, v. STATE of Florida, Appellee.
    No. X-398.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1976.
    Rehearing Denied Feb. 10, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant was represented at trial by an assistant public defender, He was found guilty of the two counts charging crimes in the amended information. The trial attorney timely moved for a new trial alleging, inter alia: “That the verdict of the jury was contrary to the weight of the evidence.” Upon petition filed by appellant, the trial court entered an order of insolvency directing Bay County to bear any costs necessary and incident to the prosecution of appellant’s appeal. On March 26, 1975, the public defender appointed to represent appellant in prosecuting the instant appeal filed the following assignments of error:

“1. The Court erred in denying the Defendant’s Motion for Judgment of Acquittal at the close of the State’s case.
“2. The Court erred in denying the Defendant’s Motion for Judgment of Acquittal at the close of the Defendant’s case and the entire trial.
“3. The Court erred in denying the Defendant’s Motion for New Trial.”

On the same date, the public defender filed a “Motion for Order Directing Court Reporter to Transcribe Notes of the Entire Proceedings”, which motion the trial court denied citing that court’s Administrative Order 74-04 and the opinion of this court in Moore v. State, 298 So.2d 561 (Fla.App. 1st, 1974).

The trial court erred in its interpretation of Moore v. State wherein we clearly stated:

“We wish to emphasize that where an assignment of error raises matters which inhere in the transcript of testimony, an indigent defendant is entitled to a free transcript of the testimony for use in his appeal.”

The above recited assignments of error, coupled with trial and post trial motions, entitles this appellant to a transcript of the trial proceedings.

The subject motion contains extensive philosophical statements seeking to attack the constitutionality of “Administrative Order No. 74-04, and, apparently, the trial judge denied the motion upon its contents. Were we confronted solely with the contents of the motion, we would agree. However, we must presume that the public defender fulfilled his obligation as an officer of this court in filing the assignments of error related above. We will not presume that trial and post trial motions were filed as a subterfuge to obviate the impact of Moore.

The order of the trial court denying appellant’s motion for a transcript is reversed. Jurisdiction of this cause is relinquished to the trial court with directions that it direct the court reporter to forthwith transcribe the proceedings. Further appellate proceedings shall then be had in accordance with the Florida Appellate Rules.

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

      . If such tactics are utilized by trial attorneys, they are subject to disciplinary action by the trial court and this court.


author: TENCH, BENJAMIN M., Associate Judge.

text:
    Dennis Sylvester ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. W-120.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1976.

      Carlton P. Maddox, Dawson, Galant, Maddox, Sulik & Nichols, Frederic A. Buttner, and Joseph W. Howard, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   TENCH, BENJAMIN M., Associate Judge.

The parties will be referred to as in the Court below.

After trial by jury Defendant was convicted of possession and sale of heroin and sentenced to two concurrent 5-year terms in the Division of Corrections. He raises three points on appeal.

First, he contends that the trial court erred in denying him a continuance.

Defendant was represented by two members of the Bar, one of whom was a former state attorney who several months previously had signed the Information charging the Defendant and who had been retained to assist in representing him only on the morning of the trial. After the jury was sworn in, the trial court, was advised that Defendant did not want the services of his remaining counsel, who nevertheless announced that he was ready for trial. The record is silent as to any motion for continuance, with the exception of a reference to some conversation in chambers, but it reflects that there had been a delay of two weeks during which Defendant had opportunity to retain counsel acceptable to him. The trial court insisted the cause proceed.

The granting of a continuance is within the discretion of the trial court. Riggins v. State, 283 So.2d 878 (Fla.App. 1st (1973); Robinson v. State, 256 So.2d 29 (Fla.App. 3rd 1971). A denial of a motion for continuance based on a request for additional time to secure counsel has been held not to be an abuse of discretion. Fuller v. Wainwright, 268 So.2d 431 (Fla.App. 4th 1972); Brown v. State, 224 So.2d 789 (Fla.App. 3rd 1969). We hold the trial court committed no error.

The Defendant’s second point on appeal is that the trial court erred in admitting in evidence a package containing the heroin which was the substance of the alleged violation. Defendant argues that because two officers had keys to the receptacle in which the arresting officer placed the heroin the chain of custody had been broken. He further argues that the State did not adequately negate the possibility of the exhibit to which he objects having been tampered with while in the custody of the forensic chemist. In each instance the State’s witness testified that there had been no tampering with the evidence, and each testified that when it left his possession it was in the same condition as when he received it. In the face of such testimony, which was not shaken on vigorous cross-examination, we hold the trial court committed no error. Stevens v. State, 245 So.2d 92 (Fla.App. 1st 1971); Bernard v. State, 275 So.2d 34 (Fla.App. 3rd 1973); Wilson v. State, 293 So.2d 81 (Fla.App. 3rd 1974).

The federal courts have spoken upon this matter and support our view. In Gallego v. United States, 276 F.2d 914 (9th Cir.1960), the court adopted the rule that where no evidence indicating otherwise is produced, the presumption of regularity supports the official acts of public officers, and courts presume that they have properly discharged their official duties.

We hasten to add that while we do not find error, neither do we grant the imprimatur of our approval to the manner in which the State presented its case, which at best can only be referred to as loose.

Third, Defendant argues that it is error to sentence him to two concurrent 5-year sentences where he is charged with the crimes of unlawful possession and sale of narcotic drugs, which two offenses grow out of the same transaction and are based on the same facts. We agree. Where an information contains more than one count, but each is a part of the same transaction only one sentence should be imposed, and that sentence should be for the highest offense charged. Yost v. State, 243 So.2d 469 (Fla.App. 3rd 1971); Torres v. State, 262 So.2d 458 (Fla.App. 3rd 1972). See also, Shaw v. State, 264 So.2d 95 (Fla.App.lst 1972); Brown v. State, 264 So.2d 28 (Fla.App. 1st 1972) and Johnson v. State, 260 So.2d 212 (Fla.App. 1st 1972).

Affirmed in part and reversed in part and remanded' for further action consistent with this opinion.

MILLS, Acting C. J., and DREW (Ret.), Associate Judge, concur.


author: OWEN, Judge.

text:
    Oscar Arthur ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 75-168.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant, charged with robbery, as a result of plea negotiation withdrew his previously entered plea of not guilty and entered a plea of guilty to the lesser included offense of assault with intent to commit robbery, for which offense he was adjudged guilty and sentenced to fifteen years in prison.

Appellant’s first point is that the court erred when it pronounced sentence without first adjudicating him to be guilty. His premise for this point is that the court reporter’s transcribed notes of the proceedings at the time the court accepted the plea and at the time of the subsequent sentencing do not disclose that the court made an oral adjudication of guilt. An oral in-court adjudication of guilt is unquestionably desirable, certainly customary, but not essential to the validity of the judgment when there is a written judgment of guilty rendered by the judge in open court and subsequently filed and recorded. The record reflects that such written judgment was rendered in open court at the time of sentencing and was subsequently filed and recorded. This is a sufficient compliance with Rule 3.670 RCrP.

The judgment and sentence are complete as they now stand on the record and absolutely no useful purpose could be served by our remanding this case to the trial court simply to go through the unnecessary formality of an oral adjudication of guilt as suggested by appellant and concurred in by appellee. But cf. Matera v. State, 218 So.2d 180 (Fla.App.3rd, 1969), which relied upon Hart v. State, 60 So.2d 489 (Fla.1952). This last cited case required a remand for the purpose of entering a proper judgment because the judgment which had been entered failed to expressly adjudicate appellant guilty of the crime charged. Such is not the case here, as the judgment entered did expressly adjudicate appellant guilty of the crime charged.

Appellant’s second point is that the trial court erred in failing to establish a factual basis for the plea of guilty. While the court’s questioning in this respect was limited to the inquiry of whether appellant was actually guilty of the charge of assault with intent to commit robbery, to which an affirmative response was given by appellant, there is no showing by appellant of prejudice or manifest injustice, therefore no basis for a reversal of the judgment and vacation of the plea. Williams v. State, 316 So.2d 267 (Fla.1975); Hall v. State, 316 So.2d 279 (Fla.1975).

Appellant’s third point is that the court erred by failing to establish that the plea was knowingly, willingly, understandingly and voluntarily entered. While the court’s interrogation of appellant before accepting the guilty plea was not as extensive as appellant now suggests it should have been, nor did the court take advantage of the provisions of Rule 3.171(c) RCrP, the scope of the inquiry was adequate to withstand the attack now made on it.

The judgment and sentence are severally affirmed.

MAGER and DOWNEY, JJ., concur.


author: RAWLS, Judge. McCORD, Judge BOYER, Chief Judge

text:
    Rufus Roy SHINALL, Appellant, v. Catherine D. PERGEORELIS, Appellee.
    No. V-308.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1975.
    Rehearing Denied Feb. 6, 1976.

      A. C. Soud, Jr., Jacksonville, for appellant.
    Roy E. Dezern, Jacksonville, for appel-lee.
   RAWLS, Judge.

May an unwed pregnant woman enter into an agreement with the alleged putative father to release him from liability in a paternity suit? The trial judge answered no. We agree and affirm.

In January of 1971, appellee, Catherine Pergeorelis, a single woman, and appellant, Roy Shinall, a married man, sealed a friendship by commencing to engage in sexual intercourse. The trial judge, from competent substantial evidence, found that thereafter this illicit adventure continued for a long period of time, resulting in Catherine becoming'pregnant and giving birth to a female child on May 18, 1973. Catherine testified that the child was conceived on or about August 19, 1972. On September 22, 1972, Catherine contacted an atttor-ney for the purpose of instituting a complaint in paternity against Roy. The complaint was filed on September 26, 1972, and assigned Case No. 72-8980. On November 14, 1972, as a result of negotiations, Roy executed an instrument acknowledging that the child Catherine was carrying “is my child” and agreed to pay her $500.00 for “dropping Case #72-8980”. This instrument was scrivened by the hand of Catherine’s attorney and witnessed by him. Catherine’s attorney testified that Catherine entered into the foregoing agreement over his vigorous objection It is undisputed that at this point in time, it was the intention of the parties to reach a final settlement as to any further claims against Roy with regard to the grievances voiced by Catherine in her paternity suit. On September 6, 1973, Catherine instituted the instant complaint to determine paternity of her child. Roy answered by general denial and alleged the affirmative defenses of release, settlement and estoppel. The trial court granted a motion to strike the affirmative defenses upon the ground that such a release is against the public policy of the State of Florida.

The trial judge was eminently correct in his holding as to the long enunciated public policy of the State of Florida. As late as September, 1972, this Court in Walker v. Walker recognized that an illegitimate child’s right to support from its putative father cannot be contracted away by its mother, and that any release executed by her is invalid to the extent that it purports to affect the rights of the child. The question now arises as to whether this long espoused public policy by the sovereign of Florida still prevails.

Subsequent to our decision in Walker, supra, the Federal Supreme Court on January 22, 1973, held in Roe v. Wade that it was no longer a crime for a woman to terminate a pregnancy by abortion and that during the first three months of gestation, as between the mother and the state, this decision was controlled solely by the mother. Appellant reasons citing Roe v. Wade, supra, that since a putative father has no “right” to participate in the decision of a woman to terminate the pregnancy, he has no interest in the fetus; an unborn child is not a person within the Fourteenth Amendment; and the mother may exercise her “right of privacy” by any means she desires, including negotiating a full release of liability in favor of the putative father which is binding upon the fetus as well as the mother. The position of appellant is not wholly without logic. In rejecting appellant’s logic, we must pause to emphasize that Roe v. Wade, supra specifically did not deal with the father’s right to participate in an abortion decision.

However, the Fifth Circuit Court of Appeals has recently declared Florida Statute 458.22(3) which requires that prior to an abortion: 1) a pregnant married woman obtain the written consent of her husband (if not living voluntarily apart from the wife); and 2) an unmarried pregnant minor female to obtain written consent of her parents, custodian, or legal guardian unconstitutional. In reaching its conclusion, the Court opined:

“There is, of course, a more fundamental reason for our conclusion that the father’s interest in the fetus is not sufficiently weighty to prevent the exercise of the woman’s fundamental right. Since the fetus is not a person [citing Roe, supra], neither is it a ‘child.’ ”

Using the rationale of the Fifth Circuit as espoused in Poe v. Gerstein, it is inescapable that if a father has no right to determine the destiny of the fetus and the mother is solely vested with this right of lifé or death, then surely the mother possesses the exclusive right to destroy or otherwise bargain away any potential rights of the fetus including support. To hold otherwise would fly in the face of the equal protection provisions of our State and Federal Constitutions.

The rationale of the Fifth Circuit Court of Appeals as espoused in Poe v. Gerstein, supra, obviously collides with the longstanding public policy of this State as enumerated in Walker v. Walker, supra. Not only does it collide with the long-standing public policy- of the State of Florida and other states of this Nation, but it ignores the recognition in Roe v. Wade, supra, that: “Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem.”

This separation of the abortion issue from the unborn’s property right which was recognized in Roe v. Wade, supra, is not new to the legal system of this country. The property rights of an unborn are as old as the common law itself. Blackstone in his commentary stated:

“An infant in [sic] ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born.”

An illegitimate unborn or born has a right to support from his putative father just as a legitimate child has a right for his father to provide his support. Our research reveals that courts of other jurisdictions have recently held following this Court’s reasoning in Walker v. Walker that an illegitimate’s right to support from his putative father cannot be contracted away by his mother. The factual situation in Reynolds v. Richardson, supra, is strikingly similar to the instant cause. In that case, after an illicit relationship of some period of time, the mother gave birth to an illegitimate child. Shortly thereafter, she filed bastardy proceedings against the putative father. The mother, the maternal grandparents, their attorney, the putative father, and his attorney met and negotiated a settlement in which the mother and the maternal grandparents in exchange for $500.00 released all claims that they had against the putative father which arose out of the birth of the child, and they agreed to accept the maintenance and support of the child. Some years later, the mother filed a second paternity action, and the father raised as a defense the previously executed release. Upon appellate review, the Tennessee Court of Appeals held that the release was valid only as to the mother’s rights against the putative father and did not affect the child’s right to support.

We reaffirm our holding in Walker v. Walker, supra, and affirm the judgment of the trial court.

Affirmed.

McCORD, J., specially concurs.

BOYER, C. J., dissents.

McCORD, Judge

(concurring specially).

I agree with the majority opinion with the exception that I am not prepared to in effect rule at this time that if the opinion of the Fifth Circuit Court of Appeals in Poe v. Gerstein is upheld by the U.S. Supreme Court and if the quoted statement from the Fifth Circuit’s opinion becomes the law of this state, a mother will then have the exclusive right to bargain away support for her child.

BOYER, Chief Judge

(dissents).

I respectfully dissent. It is inconsistent and illogical, it appears to me, to hold that the mother of an unborn fetus may, with impunity and contrary to the desires of its father, kill the fetus and thereby eliminate its need for support while at the same time holding that she may not, at the identical stage of pregnancy relieve the same father from the obligation to support. I cannot fathom how support is more important than life itself.

The majority bases its decision squarely upon this court’s opinion in Walker v. Walker. That opinion was based upon, and announced, the public policy of the State of Florida at that time. That public policy was admirable, sound and bottomed upon the general law and accepted standard of morals then prevailing, which held the life of an unborn child inviolate. It was then the law of this state that no woman could legally confer consent to anyone to produce an abortion and that the mere attempt to procure a miscarriage was unlawful, even though it may ultimately be determined that the woman seeking to abort was not actually pregnant. But, alas, that was before our present era of “enlightenment”. As acknowledged by the majority, since that time the Supreme Court of the United States has declared it to be the law of the land that a woman may terminate a pregnancy by abortion (during the first three months of gestation) solely in her own discretion, capriciously or otherwise; holding that an unborn fetus in not a “person” as used in the Fourteenth Amendment. Since that famous (or infamous) decision we are told that a fetus is voluntarily destroyed by the mother in whose womb it is incubating at a rate greater than one -per minute. To bring the enormity of the situation into understandable perspective, we are informed that in California alone more babies are destroyed each year than were American servicemen killed in the Viet Nam, Korean, Spanish, Mexican, 1812 and Revolutionary wars all combined; that in all the wars since the founding of this country there have been 667,286 American battle deaths while in one year alone over 600,000 unborn fetuses were voluntarily destroyed by abortion. It therefore becomes crystal clear that the “law of the land” which presumably reflects the morality and public policy of the nation, has substantially changed since this court rendered its opinion in Walker v. Walker, supra.

Indeed, within the past 120 days the United States Court of Appeals, 5th Circuit, has held that since a fetus is not a person neither is it a child; further holding that the father has such an insignificant interest in the fetus that a state law requiring his consent as condition precedent to a lawful abortion procured at the instance of the mother is unconstitutional. It follows, therefore, it seems to me, that if a father has no right to determine the destiny of the fetus and the mother is solely vested with the right of life or death, then surely the mother possesses the right to destroy or bargain away any potential rights of the fetus to ultimate support.

The mother of an unborn child has long been authorized to contract away its right of support by its natural father through the adoptive process.

The law is generally that a person may not accomplish by indirection that which may not be legally accomplished directly. In that regard it is illogical to hold that a mother of an illegitimate child may deprive the father of that child of all rights incident to the child and thereby relieve him of any obligation incident to the support of the child by the simple expedient of signing a consent to the child’s adoption without the father’s joinder, while holding on the other hand that the same mother may not release the same father from paying to the mother support for that child.

There is still another reason, in my view, for reversal in this case. As stated in the majority opinion, the trial court granted a motion to strike appellant’s affirmative defense of release, settlement and estoppel. I am of the view that such defense contained defensive matter worthy of consideration. It is noted that the ap-pellee in this cause is Catherine D. Per-georelis, the mother of the subject illegitimate child. The action giving rise to this appeal was commenced by her individually, not as a guardian nor as next friend. The final judgment here appealed requires monthly payments to be paid to her individually. Walker v. Walker, supra, involves “the rights of a helpless child”. The subject child is not a party to this action. If we are to hold that notwithstanding our “era of enlightenment” a fetus is indeed a child with certain inalienable rights then I am of the view that the rights of the child should be enforced by the child via a guardian or next friend and should be protected accordingly.

Somehow, somewhere and sometime the rights of the male participant in the activities giving rise to pregnancy must be recognized and protected. Simple justice requires no less. The majority hold that his unborn child may be destroyed by its mother without his consent and even against his will, but that same mother cannot release him from paying to her support for the child. Such a holding is, in my view illogical, incongruous and unjust. I would reverse.

      . The handwritten release signed by appellant states: “I, Rufus Roy Shinall, agree to pay Catherine D. Pergeorelis the sum of $500.00 for hospital and Doctor bills incurred by her in the birth of the child she is carrying which is my child in consideration for her dropping Case #72-8980, Division M, Circuit Court of Duval County.” It should be noted that the release does not direct itself to the question of support of the future child; however, the scrivener of the release, Catherine’s attorney, testified without refutation that the intent was that Catherine would release all rights including the child’s right to future support.

      . During trial, the judge stated: “ . and I think that this instrument possibly goes further, it substantiates the fact that it has been consummated as of this particular time as to any cause of action she has, but I don’t see how it could possibly affect an innocent child.”

      . Walker v. Walker, 266 So.2d 385 (Fla.App. 1st 1972).

      . Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

      . Id., 410 US. at 165, 93 S.Ct. at 733, 35 L. Ed.2d at 184, n. 67 where the Court notes that the opinion in no way touches on father’s rights in an abortion decision.

      . Id.

      . Poe v. Gerstein, 517 F.2d 787 (5th Cir.1975).

      . Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182.

      . For an excellent discussion of the law in this area, see 46 Notre Dame Law. 349 (Winter, 1971).

      . W. Blackstone, Commentaries 130.

      . Walker v. Walker, supra; and 1 St. Marys L.J. 146 (1969).

        .Reynolds v. Richardson, 483 S.W.2d 747 (Tenn.App.1971); and Fox v. Hohenshelt, 528 P.2d 1376 (Or.App.1974).

      . Fla.App.1st 1972, 266 So.2d 385.

      . Urga v. State, 1944, 155 Fla. 86, 20 So.2d 685. See also 782.10, Florida Statutes, 1971 and 797.01, Florida Statutes, 1971.

      . Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

      . Poe v. Gerstein, United States Court of Appeal, 5th Cir., 517 F.2d 787, Opinion filed August 18, 1975.

      . Citing Roe v. Wade, supra.

      . The Supreme Court of Florida in, In re Brock, 1946, 157 Fla. 291, 25 So.2d 659, held that even a minor mother of an illegitimate child could execute a valid consent for the adoption of that child by adoptive parents arid that upon the child being adopted the natural parents would be relieved of all duty and obligation due to the child; further holding that the future welfare and training of a child is a matter apart from its property and material rights. Also, in Clements v. Banks, Fla.App.3rd 1964, 159 So.2d 892, our sister court of the Third - District held that the father of an illegitimate child has no rights to the child and that his consent to adoption of that child is not necessary, notwithstanding that he had voluntarily supported the child since its birth. See also F.S. 63.062(1).

      . Rule 1.140, R.C.P.


text:
    Leo Alexander JONES, Appellant, v. STATE of Florida, Appellee.
    No. V-231.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
    Rehearing Denied Feb. 6, 1976.

      Ernest D. Jackson, Sr., of Jackson & Micks, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   TENCH, BENJAMIN M., Associate Judge.

The parties will be referred to as in the Court below.

After trial by jury the defendant was convicted of possession of a firearm by a convicted felon and was sentenced to IS years in the Division of Corrections.

The manager of the Howard Johnson Motel in Jacksonville had noticed the defendant’s automobile parked in the motel parking area over a period of 24 hours. Two police officers stopped to use the telephone at the motel, and, at the request of the motel manager, checked to determine whether the vehicle had been stolen. It had not, so the motel manager opened the door to defendant’s automobile with a coat hanger for the purpose of determining the ownership of the car. In the course of her search she discovered under the armrest in the front seat a hand gun, the exact caliber of which does not appear from the record. At this time the defendant arrived carrying jumper cables. In response to questions directed to him he first admitted, and then denied, ownership of the weapon, according to the motel manager. Both police officers testified that the defendant admitted owning the gun and that a friend of his had given it to him.

At trial the defendant took the stand and denied ownership of the weapon and any knowledge of it. Additionally, he offered the testimony of one David Hamilton who swore he had borrowed the car from the defendant the day before in order to show a friend the town. In the course of the evening the friend exhibited to him a weapon similar to the one found by the motel manager in the defendant’s car. Subsequently, Hamilton and the passenger drove to the Howard Johnson Motel where they parked defendant’s car in the parking area. When Hamilton sought to start the car later that evening, the engine refused to turn over; and he left the car in the parking lot over night.

Several points are raised on appeal, but all may be resolved by the threshold question whether the evidence is sufficient to support a conviction.

We hold it is not.

The Information in this case charged that the defendant, a convicted felon, did “unlawfully have in his possession a firearm, to wit: a pistol.” Although the pertinent statute (F.S. Section 790.23) makes it unlawful for a convicted felon to have in his care, custody, possession, or control any firearm, the Information in this case charged the defendant only with possession of a firearm. Thus, the State in its Information could have alleged that the defendant unlawfully had á firearm in his possession, care, custody, or control, but, instead, limited itself to the allegation of possession. We believe that the instant case is analogous to Flicker v. State, 296 So.2d 109 (1st D.C.A.1974), wherein the defendants were charged by Count I of a 3-count Information with uttering a forged instrument to a specific person. In holding that the evidence contained in the record failed to demonstrate that the documents received into evidence were uttered or published by the defendants to the person named in the Information, we noted that “. . . if the Information does in fact designate a specific person to whom the alleged forgery is uttered and published then that becomes a material part of the charge and proof of utterance or publication to another will not sustain the charge of uttering or publishing to the person named.” Similarly, in the instant case, by charging the defendant with possession of a firearm, the State obligated itself to prove possession in order to obtain conviction under the statute.

The State argues that conviction under F.S. Section 790.23 is sustainable on an ownership theory, as established by the testimony of the two police officers, even though the Information alleged possession of a firearm and not ownership thereof. In support of this argument, the State cites Larry v. State, 104 So.2d 352 (Fla.1958), wherein the Florida Supreme Court indicated that a defendant, charged by indictment with the unlawful and premeditated murder of a victim could be convicted of first degree murder on the basis of a felony-murder doctrine. However, as the Court noted, the element of premeditation is presumed as a matter of law when the felony itself is proved. Thus, Larry is inapplicable to the instant case. Possession is not presumed by virtue of ownership. The State must go forward and establish by clear and convincing evidence that the defendant was in possession of the firearm at the time of his arrest.

What, then was the State’s burden ? In affirming a conviction for the unlawful possession of liquor, the Florida Supreme Court defined what was meant by possession, construing it to mean having personal charge of or exercising the right of ownership, management, or control. The Court pointed out that “there must ... be a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.” Reynolds v. State, 92 Fla. 1038, 111 So. 285 (1926).

In affirming a conviction under the instant statute, the Second District Court of Appeal stated that the requirement that the possession be conscious and substantial was not applicable to F.S. Section 790.23 because the statute supplements “possession” with the additional words “care, custody, or control.” Maloney v. State, 146 So.2d 581 (2nd D.C.A.1962). However, in the Maloney case, the Information which was filed against the defendant charged him in the specific words of the statute, i. e., with the unlawful care, custody, possession, or control of the described weapons under the statute.

In charging the defendant with unlawfully having “in his possession a firearm, to wit: a pistol,” the State assumed the burden of showing that the possession by the accused was conscious and substantial, as distinguished from a mere involuntary or superficial possession (emphasis supplied).

Applying the relevant facts to the standard set out above, the insufficiency of the evidence to sustain the conviction in this case becomes apparent. Even accepting the police officers’ testimony that the defendant admitted ownership of the gun as true, there is no evidence in the record of conscious and substantial possession of the firearm by the defendant; at no time wa$ the defendant seen in the automobile; there was no evidence introduced before the Court that placed the defendant in the automobile with the revolver or near the revolver at any time; and'the uncontro-verted evidence showed that .the weapon was placed in the defendant’s automobile at a time when the possession and control had been relinquished to a friend of the defendant. Thus, prior to the pistol being removed from his locked car by the motel manager, defendant cannot be said to have been in conscious and substantial possession of the pistol. Accordingly, we hold that the State has not met its burden of proof in this case and that the evidence is insufficient to sustain a conviction.

Reversed and remanded with directions that the defendant be discharged.

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


text:
    Charles Franklin FINLEY, Appellant, v. STATE of Florida, Appellee.
    No. Z-49.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1976.
    Rehearing Denied Feb. 6, 1976.
    Richard W. Ervin, III, Public Defender; and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See Estep v. State, 318 So.2d 520 (Fla.App. 1st, 1975); and Pons v. State, 278 So.2d 336 (Fla.App. 1st, 1973).

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


author: NATHAN, Judge.

text:
    Jordan SUKERT, Appellant, v. The STATE of Florida, Appellee.
    No. 75-673.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Rehearing Denied Feb. 11, 1976.
    Alfred Gustinger, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen. for appellee.

      Before PEARSON, HENDRY, and-NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by the defendant, Jordan v. Sukert, from an order of the trial court finding and adjudicating him guilty of probation violations, revoking probation and sentencing Sukert to one year in the Dade County Jail, providing that he serve one month in jail to be followed by eleven months probation.

In August of 1973, Sukert entered a plea of guilty to wrongful sale of securities. Adjudication and sentence were withheld and he was placed on probation for a period of three years. Subsequently, an affidavit was filed in the trial court alleging that between September 1974, and March 3, 1975, Sukert violated probation in that (а) he changed his place of residence without first obtaining permission from the pro bation authority, and (b) he failed to file monthly reports for the months of September, October, November and December, 1974, and January and February, 1975.

The defense took the deposition of Sukert’s probation officer, pursuant to a subpoena duces tecum requiring her to bring her file and all books, records and correspondence concerning Jordan Sukert. During the deposition, the probation officer refused to answer questions based on the records, refused to permit defense counsel to view the records requested and refused to produce the records for any purpose, claiming privilege under § 947.14 (б), Fla.Stat. The questions and the refusal to produce were certified.

On April 24, 1975, the court heard the defendant’s motion to compel production of records and answers to certified questions. The deponent was ordered to answer two of the three certified questions, but the court refused to compel production of the records. Later the same day, during the probation hearing, the State introduced as State’s Exhibit 4 (over defense counsel’s objection) part of the records which had been requested. At the conclusion of the hearing, the court found Sukert guilty of violations (a) and (b), recited above, adjudicated him guilty and sentenced him to one year in the county jail with eleven months withheld.

On appeal, Sukert contends that he was denied procedural due process, and thus a fair and impartial probation hearing, as a result of the State’s placing into evidence certain records as proof of probation violation which were claimed to be privileged by the probation officer during discovery proceedings. We agree.

Probation revocation proceedings must meet the minimal criterion of due process. Mato v. State, Fla.App. 1973, 278 So.2d 672. In King v. Florida Parole and Probation Commission, Fla.1975, 306 So.2d 506, involving revocation of parole, it is stated that although changing residence without permission is not a criminal offense, when the violator is on parole (or probation as in the instant case), such action may result in the deprivation of freedom. Neither in the record nor in § 947.14(6), Fla.Stat., the statute relied on by Sukert’s probation officer in asserting the privilege as to information contained in the file, do we find the reasons for failing to permit Sukert to obtain discovery of the materials on which the revocation of his probation was based. It is provided in § 947.14(6), Fla.Stat., that

“The commission may make such rules as to the privacy or privilege of such information and its use by others than the commission or its staff as may be deemed expedient in the performance of its duties.” ' •

However, the record demonstrates a lack of evidence as to what the commission’s rules or policies are regarding use of its information by others. In our opinion, then, under the facts, revocation of probation was arbitrary and unreasonable.

Accordingly, the order revoking probation is reversed, and the judgment and sentence is set aside with directions to return Sukert to probation under the terms and conditions originally established. The action of this court is without prejudice to a further affidavit and further proceedings on the violations for which the hearing was held. Mato v. State, supra.

Reversed with directions.


text:
    Manfred H. DULLE, Appellant, v. Marilyn R. DULLE, Appellee.
    Nos. 75-478, 75-1080.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Von Arx & Lipscomb, Miami, for appellant.
    Sack & Retter, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   NATHAN, Judge.

This cause is brought before us on the consolidated interlocutory and plenary appeals of Manfred H. Dulle in which he contends in his plenary appeal that the court erred in denying his petition for rehearing, granting to the wife custody of two of the three children of the marriage, failure to set aside his conveyance by deed to his wife of the marital home and the court’s award of support money for the children. The husband, in his interlocutory appeal, complains that the court erred in requiring him, in a post trial hearing, to pay his arrearages in child support for the children pursuant to the wife’s motion to compel payment thereof because the wife left the State of Florida with the children. There was no court order prohibiting her from so doing.

There was ample substantial evidence to support the trial judge’s award to the wife of custody of two of the three children and the amount of money for their support, as well as the award of the third child (the oldest, age 11) to the husband. Immediately subsequent to the final judgment of divorce, the husband filed a timely petition for rehearing on the basis of newly discovered evidence urging the court to rehear the case pertaining to custody and support money because the ex-wife, the appellee, had taken the children out of the State and had refused him visitation rights. The court properly denied the petition for rehearing. It affirmatively appears that the relief sought by the husband is by way of a petition for modification based on a change of circumstances rather than rehearing. It is clear that the matters of which the husband complains happened after the final judgment and were not existent prior to or at trial.

Prior to this petition for dissolution, the parties had a matrimonial dispute and then reconciled. Before reconciliation, the husband executed a deed to his interest in the marital home which apparently was the only real property owned by either of them. The deed was signed, witnessed and notarized without filling in the description of the property. Afterwards, the wife filled in the description of the property and recorded the deed. She alleges this was done with the consent of the husband. In the final judgment, the trial court ratified and confirmed the deed and “granted her the home by virtue of the warranty deed.” While the depositions of both parties make reference to some of the facts and circumstances in connection with the existence of the deed, neither the depositions nor testimony were offered in evidence at final hearing in this regard. The trial judge stated in the record that the reason for ratifying and confirming the deed was for the benefit of the minor children in custody of the wife. In view of the scant record and further that the wife has left the home and is residing out of this state, it is felt that the trial court should take further testimony as to the disposition of the marital home because the record does not support the validity of the deed and the final judgment does not reflect the trial judge’s view that the house should be solely the wife’s because of the need to house and support the minor children.

Affirmed in part, reversed in part with directions.


text:
    Ramon MAYAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-762.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied Feb. 11, 1976.

      Manners & Amoon and Harold Mende-low, Albert Carricarte, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., and William M. Grodnick, Legal Intern, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

During the trial of this case, the presiding judge made a comment during the testimony of a witness that was improper because it could be interpreted by the jury as a statement that the judge did not consider the witness’s testimony to be important or presented for any justifiable purpose. Upon objection and motion for mistrial, the court instructed the jury to disregard the comment and then polled the members, receiving from them an affirmative response that the comment would in no way influence them.

On this appeal, the defendant urges that the improper comment requires a new trial. The State, on the other hand, admits the error of the trial court but contends that it is not sufficient for reversal.

We have reviewed the record and find that the proof of the defendant’s guilt is overwhelming and that the testimony of the witness concerned was of no importance to the defense of the charge. Therefore, we affirm the judgment on authority of the rule which allows us to affirm a conviction where there is- error, but no prejudicial error. See Casso v. State, Fla.App. 1966, 182 So.2d 252, and Ennis v. State, Fla.App.1974, 300 So.2d 325.

Affirmed.


text:
    The STATE of Florida, Appellant, v. The Honorable William E. GLADSTONE, as Circuit Judge of the Eleventh Judicial Circuit In and For Dade County, Florida, Juvenile-Family Division, Appellee,
    No. 75-1160.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.

      Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellant.
    Stuart Simon, County Atty., and Lisa Bennett, Asst. County Atty., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

We are presented with a petition for certiorari directed to an order of the trial court which ordered and adjudged that $750 “in counsel fees shall now be paid by the State of Florida to Donald Bierman, Esq., for his representation of the above-named child.”

We have considered this petition for cer-tiorari as an appeal and finding no authority in law for the entry of said order we, therefore, are required to reverse the same. See Dade County v. McCrary, Fla.App. 1972, 260 So.2d 543.

Reversed.


text:
    Wayne Carlton ALLEN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1419.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Wayne Carlton Allen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

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


text:
    Robert L. MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1440.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Robert L. Miller, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

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


text:
    W. L. H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1449.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    W. L. H., a juvenile, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

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


author: PIERCE, WILLIAM C., Associate Judge.

text:
    Harold HUR et al., Appellants, v. SAUL J. MORGAN ENTERPRISES, INC., a Florida Corporation, et al., Appellees.
    No. 75-34.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    Joseph S. Paglino, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, and Maurice M. Garcia, Hallandale, for appel-lees.
    Before BARKDULL, C. J., and HEN-DRY, J., and PIERCE, WILLIAM C., Associate Judge.
   PIERCE, WILLIAM C., Associate Judge.

Harold Hur, one of the appellants who was one of the plaintiffs in the court below, appeals with his co-plaintiffs from an order dismissing with prejudice their third amended complaint against Morgan Enterprises and other co-defendants.

The last amended complaint is a rambling 17-page complaint alleging in essence that Morgan Enterprises is the developer of a condominium having more than four hundred unit owners. Various wrongful acts are alleged on the part of the developers, such as misuse of funds collected for maintenance and other wrongful acts allegedly causing the developers to sustain a budget deficit. As intimated here, the various amended complaints are loosely drawn and it is with some degree of linguistic license that we proceed to determination on the merits.

It does sufficiently appear, however, that, while the complaint alleges it is a class action, a careful perusal of the pleadings sufficiently demonstrates to our satisfaction that it cannot be properly denominated as such. We are convinced that the cause of action exists, if at all, only in favor of the condominium association, not the unit owners.

The order of dismissal appealed from holds that the pleadings reflect that plaintiffs below have no standing to bring an action for the relief sought, although having “ample opportunity through repeated amendments to the complaint * * * to state any cause of action they may have”. We think this holding by the trial court was eminently correct. The order appealed is therefore affirmed.

Affirmed.


author: BOYER, Chief Judge.

text:
    Lester Louis GIBSON and Bernard Brinson, Appellants, v. STATE of Florida, Appellee.
    No. Y-379.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1976.
    Rehearing Denied Feb. 6, 1976.
    Richard W. Ervin, III, Public Defender; and Michael J. Minerva, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellants were charged and found guilty by a jury of robbery, use of a firearm in the commission of a felony, and aggravated assault. They have appealed their convictions and 15 year prison sentences, assigning as error the failure of the trial court to order a pre-trial lineup as requested by a defense motion filed six days prior to trial.

The crucial issue at trial was identity. But for the testimony of an eyewitness, W. B. Philmon, there was insufficient evidence to sustain appellants’ convictions. Mr. Philmon testified that on the evening of August 9, 1974, two black males entered the motel that he was managing and, after a brief conversation robbed him. As the robbers were leaving the scene, one of them hit Mr. Philmon on the back of the head and knocked him out. The blow to Mr. Philmon’s head had an understandably detrimental effect on him. The first officer to arrive at the scene .of the robbery observed Mr. Philmon in a dazed and shocked condition. Further demonstrating Mr. Philmon’s dazed condition is evidence that although he had recently rented a particular room to a person he told the police that the room was empty. On September 20, 1974, the Tallahassee Police Department showed Mr. Philmon nine color photographs of black males approximately 25 years of age. From those photographs Mr. Philmon identified the appellants as the individuals who had robbed him. Both defendants testified at trial that they were in Havana, Florida, on the night of the robbery. Appellant Gibson called four witnesses to corroborate his testimony while appellant Brinson produced two witnesses to corroborate his.

Appellants’ pre-trial motion for a lineup requested the trial court not only to order a lineup either prior to or during the trial but also to prohibit Mr. Philmon from identifying either defendant in court in the absence of a pre-trial corporeal lineup. The trial court, after conducting a hearing on the motion, denied it. The motion was renewed immediately prior to trial and was again denied. The issue was also presented to the trial court when defense counsel objected during trial to Mr. Philmon’s in-court identification of appellants. This objection was. overruled. Appellants have based this appeal on the failure of the trial court to provide for a pre-trial lineup as- requested.

Two fallacies in appellants’ reasoning are apparent. First, appellants do not contend that the photographic lineup from which they were positively identified was unconstitutionally suggestive.

Second, the motion for lineup specifically requested the trial court to “order the State to arrange a fair lineup identification. .” It is axiomatic that in a criminal case, defendant and his counsel, and not the State, are charged with the primary responsibility of preparing the defense. Sub judice, if the defendants were dissatisfied with the method of identification, they could have arranged for a lineup, with court assistance if necessary. For instance, the defense could have provided - for the taking of the deposition of the victim with the defendants being present, accompanied by other individuals similar in age and appearance to appellants, and could have requested the victim to make a positive identification of the assailants.

Appellants rely on James v. State, Fla.App. 1st 1975, 305 So.2d 829, for the proposition that in a proper case, there is a right to a lineup vested in a defendant. This is not such a case. In the James opinion, this Court pointed out that the identification witness could not pick out the defendant from a photographic display conducted prior to trial. Even more significantly, the prosecuting attorney had orally stipulated not to employ the witness for an in-court identification unless there was a pre-trial lineup. In the instant case, the victim made a positive identification of appellants from the photographic lineup, and the State Attorney made no stipulation whatsoever.

We agree with appellants that an identification procedure must not be so suggestive as to violate due process. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967). We also agree that photographic identification is not usually as accurate nor as reliable a method of identification as a corporeal lineup. Simmons v. U. S., 390 U.S. 377, 385 (1968). However, we cannot find reversible error where appellants have requested the trial court to order the State to conduct a lineup, and where there is no hint of constitutional impropriety in the prior photographic identification.

Affirmed.

SMITH, J., and SACK, MARTIN, Associate Judge, concur.


text:
    Emery W. THRIFT and J. Watt Kirkpatrick, etc., Appellants, v. Dorothy HAYTHORNE, etc., Appellee.
    No. W-369.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1976.
    William N. DeCarlis, Jones, Bates & DeCarlis, Gainesville, for appellants.
    William D. Ryals, Dell, Graham, Will-cox, Barber, Rappenecker, Ryals & Henderson, Gainesville, for appellee.
   PER CURIAM.

We have examined the record, briefs and the comprehensive final judgment of the trial judge and have also considered the able oral arguments of counsel. Finding no error, the final judgment is affirmed.

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