author: MILLS, Acting Chief Judge. MILLS, Acting Chief Judge.

text:
    Edd SHEDD, Appellant, v. STATE of Florida, Appellee.
    No. GG-322.
    District Court of Appeal of Florida, First District.
    May 4, 1978.
    Rehearing Denied June 6, 1978.

      William J. Dorsey , of Dorsey & Arnold, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Acting Chief Judge.

A jury convicted Shedd of receiving stolen property. He appeals contending the trial court erred in denying his motion to suppress evidence seized from his home.

A search warrant was issued describing the property to be searched as:

“A house located at 5738 Blanding Boulevard, Jacksonville, Duval County, Florida, more particularly described as follows. The location to be searched is a wood frame house, green in color with white trim. The house has a front porch facing Blanding Blvd. Directly in front of the location to be searched is a mailbox with the numbers 5738 painted on the mailbox.”

Shedd filed a motion to suppress the evidence seized on the grounds that the search warrant did not authorize a search at 6573 Blanding Boulevard and that the warrant did not particularly describe the premises at 6573 Blanding Boulevard as the place to be searched.

At the suppression hearing, the evidence adduced showed that the house searched was located at 6573 rather than 5738 Bland-ing Boulevard; that the house searched was basically concrete block rather than wood frame; that the front porch faced south rather than west toward Blanding Boulevard; and that the mailbox in front of the house searched had the numbers 6573 painted on it rather than 5738. 5738 Blanding Boulevard was located 1.1 miles from 6573 Blanding Boulevard. The house searched was green in color with white trim, was on the east side of Blanding Boulevard, and was under constant surveillance from the time officers received information concerning it until the search warrant was issued. The officer who gave the affidavit on which the warrant was issued stated that he and the officer accompanying him went directly to Shedd’s home after the warrant was issued and paid no attention to the address given in the warrant or to the numbers on the mailbox. They relied on their independent knowledge of Shedd’s home.

Search warrants are to be strictly construed. The authority to search is limited to the place described in the warrant. This does not include additional or different places. Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126 (1960). See also State v. Lee, 247 La. 553, 172 So.2d 678 (1965), and United States v. Kenney, 164 F.Supp. 891 (D.D.C.1958).

In a search warrant, the description of the place to be searched must be sufficient enough to point out the place to be searched to the exclusion of all others and on inquiry lead the searching officers unerringly to it. Jackson v. State, 87 Fla. 262, 99 So. 548 (Fla.1924).

The search warrant here fails to do this. A search of a citizen’s residence must be based on the description set forth in the warrant and not left to the discretion of an officer. In the case before us, an officer without independent knowledge would have searched an incorrect residence. This can and must be avoided. It can be avoided by obtaining an accurate description of the place to be searched, setting forth this description in the warrant, and then searching the place described in the warrant. The Constitution requires no less.

The State’s reliance upon Smith v. State, 182 So.2d 461 (Fla. 2d DCA 1966), and State v. Gallo, 279 So.2d 71 (Fla. 2d DCA 1973), is misplaced. In the Smith case, the warrant omitted the word “South” from the address. Otherwise, the address was correct and apparently there was no other such address on the designated street. The court found that the house could be located as described with certainty. In the Gallo case, the warrant contained an incorrect apartment number. The court found this was a minor mistake and surplusage where the description of the place to be searched was otherwise sufficiently specific without reference to the apartment number.

We reverse the judgment appealed and remand for a new trial.

ERVIN and BOOTH, JJ., concur.

ON PETITION FOR REHEARING DENIED

MILLS, Acting Chief Judge.

By its petition for rehearing, the State points out several inaccuracies appearing in the second paragraph on page 2 of the Court’s opinion of 4 May 1978. The Court amends the phrase “that the front porch faced south rather than west toward Bland-ing Boulevard” to read “that a portion of the front porch faced Blanding Boulevard”, and amends the sentence “5738 Blanding Boulevard was located 1.1 miles from 6573 Blanding Boulevard.” to read “Although a 5738 Blanding Boulevard was not located, if it existed it would have been located 1.1 miles from 6573 Blanding Boulevard.” After making these amendments, the State’s petition was considered and is denied.

ERVIN and BOOTH, JJ., concur.


source: Caselaw Access Project

author: HUBBART, Judge. HAVERFIELD, Chief Judge

license: Public Domain

text:
    STATE of Florida ex rel. Ronald D’AMATO, Randall Quick Linnard Broom and Douglas Ghiloni, Relators, v. Honorable Ellen J. MORPHONIOS, Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 77-1954.
    District Court of Appeal of Florida, Third District.
    May 4, 1978.
    Rehearing Denied June 9, 1978.

      Eugene P. Spellman and Denis Dean, Miami, for relators.
    Janet Reno, State’s Atty., and Paul M. Rashkind, Asst. State’s Atty., for respondent.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   HUBBART, Judge.

This is an original suggestion for a writ of prohibition filed by the relators Ronald D’Amato, Randall Quick, Linnard Broom and Douglas Ghiloni on the ground that the respondent Ellen J. Morphonios as judge of the Circuit Court for the Eleventh Judicial Circuit of Florida has lost jurisdiction to try the relators on certain criminal charges pending before the respondent because the relators have been immunized from prosecution on such charges. We have jurisdiction to entertain the suggestion. State ex rel. Byer v. Willard, 54 So.2d 179 (Fla.1951); Article V, Section 4(b)(3), Florida Constitution. Accordingly, we ordered the respondent trial judge to show cause in writing why the writ of prohibition should not issue. A response thereto has been filed and the court in addition has had the benefit of briefs and full argument from the parties.

The central question raised by the petition and response is whether an accused can acquire immunity from prosecution under Section 914.04, Florida Statutes (1975), based on testimony given by the accused as a witness at a defense discovery deposition in a criminal proceeding in which he is not charged when such testimony is given in response to questions propounded on cross examination by a state attorney. We hold that the accused cannot acquire statutory immunity for such testimony under Section 914.04, Florida Statutes (1975), and deny the prohibition relief herein sought.

The facts of the case are undisputed. On November 27,1976, the relators were police officers of the Dade County Public Safety Department. On that date they participated in the arrest of one Michael Wilkey in Dade County, Florida, and charged him with aggravated assault and driving while intoxicated. A preliminary hearing was held at which the relators Quick and D’Am-ato testified. The defendant Wilkey was bound over for trial to the Circuit Court.

During the pre-trial discovery process, Wilkey’s defense counsel and the state attorney agreed to have Wilkey submit to a polygraph examination, the results of which were stipulated to be admissible in evidence. Wilkey took the examination and the results substantiated his claim of innocence. Also the prosecutor deposed two of Wilkey’s expert witnesses who testified as to certain ballistics evidence and concluded that Wilkey’s weapon had not been fired contrary to the testimony of the relators Quick and D’Amato at the preliminary hearing. An informal conversation ensued between Wilkey and the state attorney wherein Wilkey narrated his version of the facts surrounding the arrest. At that time, the state attorney informed defense counsel that there would be an investigation into the conduct of the relators.

Subsequent thereto, Wilkey’s defense counsel issued subpoenas upon the relators for the purpose of taking defense discovery depositions under Fla.R.Crim.P. 3.220(d). Wilkey’s defense counsel and the state attorney attended these depositions and asked a number of questions on direct and cross examination respectively relating to the incident giving rise to the charges against Wilkey. The state attorney did not advise the relators during the deposition that they were under criminal investigation or advise them of their Miranda rights. We have held that his failure to do so rendered the statements inadmissible in evidence. State v. D’Amato, 358 So.2d 575 (Fla. 3d DCA 1978) (case no. 77-2127, opinion filed May 4, 1978).

On July 24, 1977, the state attorney filed an information charging the relator D’Ama-to with improper exhibition of a dangerous weapon and aggravated assault. The rela-tors D’Amato and Quick were also charged in separate counts with perjury at Wilkey’s preliminary hearing. Finally, all of the re-lators were charged with perjury at the defense discovery depositions. The relators filed a motion to dismiss the information on the ground that they were immunized under Section 914.04, Florida Statutes (1975), based on their testimony given at the defense discovery depositions in response to questions propounded by the state attorney. After a hearing, the trial court denied the motion and the relators have filed the instant suggestion for a writ of prohibition.

Section 914.04, Florida Statutes (1975), upon which the relators rely for their claim of immunity, provides as follows:

“No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or State Attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty for forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.” [Emphasis added]

By its very terms, the immunity granted by the foregoing statute is limited to testimony given “before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state.” A defense discovery deposition taken under Fla.R. Crim.P. 3.220(d) is not an investigation, proceeding, or trial before (1) a court with felony trial jurisdiction, or (2) a grand jury or (3) a state attorney. Accordingly, no witness, including the relators herein, can acquire such statutory immunity by answering a subpoena and giving testimony at such a defense discovery deposition. State v. Powell, 343 So.2d 892 (Fla. 1st DCA 1977).

The fact that the relators were under investigation and were cross examined by the state attorney at the time of the depositions herein does not change this result. Such depositions cannot be converted into ex parte state attorney investigative proceedings under Section 27.04, Florida Statutes (1975), to which the above general immunity statute is applicable by the simple expedient of the state attorney propounding questions of the witness on cross examination. The proceedings remain defense discovery depositions at which the state attorney is entitled to be present and ask proper questions in an adversary setting on cross examination of the deposed witness. Fla.R.Crim.P. 3.220(d).

A witness subpoenaed for such a defense discovery deposition no more gets immunity under the statute for his testimony based on such state attorney questioning than a witness subpoenaed for an adversary or a non-adversary preliminary hearing on a felony charge before the county court could get immunity for his testimony based on similar state attorney questioning. Fla.R. Crim.P. 3.131(a), (b). The same holds true for a witness subpoenaed by the state to give testimony at trial before the county court on a misdemeanor charge. None of these proceedings are covered by Section 914.04, Florida Statutes (1975), and in none can a witness ever acquire statutory immunity. To the extent that State v. Powell, 343 So.2d 892, 894 (Fla. 1st DCA 1977), contains dicta reaching a different conclusion, we decline to follow it as being contrary to the statute.

Writ denied.

HAVERFIELD, Chief Judge

(dissenting in part, affirming in part).

I disagree with the majority’s denial of the relators’ suggestion for writ of prohibition with respect to Counts I-IV of the information.

The dispositive issue is whether the officers were in fact under investigation by the state attorney at the time they were deposed and therefore received immunity under Section 914.04, Florida Statutes (1975). In response to the suggestion for prohibition, the prosecution contends that no formal investigation was undertaken until after the depositions and thus the relators reliance upon the above statute is misplaced. The majority reasons that a defense discovery deposition taken under Fla. R.Crim.P. 3.220(d) is not an investigation, proceeding or trial before (1) a court with felony trial jurisdiction, or (2) a grand jury or (3) a state attorney; accordingly, the relators could not acquire such statutory immunity. I must reject both these arguments.

Although the prosecution did not formally open an investigation until after the rela-tors were deposed, as early as the beginning of February, 1977, the seeds of suspicion had been sown in the mind of the prosecutor that the relators were not testifying truthfully based upon the results of Wil-key’s polygraph examination, his narrative about his arrest and the deposition testimony of the defense expert witnesses with regard to the ballistics evidence which the prosecutor retained in his possession. In fact the prosecutor stated to Wilkey’s counsel that there would be an investigation into the conduct of the relators. It is very apparent that the investigation by the prosecutor had already been initiated at the time the relators were deposed. While, a defense deposition under Fla.R.Crim.P. 3.220(d) ordinarily is not considered an investigation before a state attorney, if the prosecutor is permitted to elicit incriminating statements from a witness on cross-examination, then the prosecution’s cross-examination would convert the taking of the deposition into an investigative proceeding before the state attorney which is covered by the immunity statute. See: State v. Powell, 343 So.2d 892, 894-5 (Fla. 1st DCA 1977). In the case at bar, the prosecutor extensively cross-examined the relators with the view toward probable prosecution. It is obvious that the underlying purpose of taking these defense depositions was to permit the prosecutor to elicit on cross-examination incriminating statements from the relators thereby converting the depositions into an investigative proceeding before the state attorney. I therefore would grant the writ of prohibition as to counts I-IV of the information. With respect to counts V-VIII (charging relators with perjury while testifying at their depositions), the writ must be denied because immunity does not extend to perjury a witness commits while testifying under compulsion. See: McDonald v. State, 321 So.2d 453, 456 (Fla. 4th DCA 1975).

      .I. Improper exhibition of a dangerous weapon (D’Amato)
      II. Aggravated assault (D’Amato)
      III. Perjury (preliminary hearing) (D’Amato)
      IV. Perjury (preliminary, hearing) (Quick)

      . V. Perjury (deposition) (D’Amato)
      VI. Perjury (deposition) (Quick)
      VII. Perjury (deposition) (Broom)
      VIII. Perjury (deposition) (Ghiloni)


author: BOOTH, Judge. ERVIN, Judge,

text:
    Paul E. HARRIS, Individually and Harris Realty, Inc. of Panama City, Petitioners, v. FLORIDA REAL ESTATE COMMISSION, Respondent. FLORIDA REAL ESTATE COMMISSION, Petitioner, v. Bruce CHILDERS, Individually and Childers Realty, Inc., Respondents.
    Nos. HH-13 and HH-396.
    District Court of Appeal of Florida, First District.
    May 5, 1978.
    Rehearing Denied June 16, 1978.
    Sam Spector and Cynthia S. Tunnicliff of Spector & Tunnicliff, Tallahassee, for petitioner in No. HH-13 and respondent in No; HH-396.
    Howard Hadley, Winter Garden, for respondent in No. HH-13 and petitioner in No. HH-396.
   BOOTH, Judge.

These causes are before us on petitions for review of agency action, and have been consolidated in this Court. Both cases involve action by the Florida Real Estate Commission (FREC) undertaking to regulate the use of trade names which include the name of a franchisor.

Petitioner Harris and Respondent Child-ers are registered real estate brokers whose businesses are located in Panama City and Pensacola, Florida, respectively. They entered into franchise agreements with Century 21 Real Estate, the franchisor, whereby as franchisees, Harris and Childers became entitled to use the trade name, trade mark, service mark, and logo of Century 21 and to secure management services, personnel training and advertising services from the franchisor. The franchise agreements require that the franchisor’s name appear first, followed by the name of the franchisee. Petitioner Harris and Respondent Childers applied to FREC to change their corporate names in accordance with Florida Statute § 475.42(l)(k), and their franchise agreements.

Meanwhile, the matter of franchising was the subject of a meeting of FREC held March 31, 1977, at which time various “guidelines and directives” relative to franchising in the State were formulated. The Commission met again on May 18, 1977, approved the directives and instructed immediate staff implementation. Investigations were to begin within 90 days of that date. Among the “directives” approved at the May 18 meeting was the following:

“Any real estate broker desiring to use the name of a Franchisor in connection with his own name must register the name as a part of his own trade name and same Franchisor’s name must follow rather than immediately appearing above or before the broker’s name.”

As a result of the foregoing “directive” both Childers and Harris, in May and July of 1977, respectively, were denied registration of their corporate names which showed “Century 21” preceding the name of the realtor.

Childers petitioned under Florida Statute § 120.56 to have the “directives” declared invalid, on two grounds:

(1) That the “directives” were “rules” and not properly adopted under Chapter 120 and

(2) Even if properly adopted, the directives exceeded the delegated authority of the Commission.

Hearing was held on Childers’ petition and on September 21, 1977, the hearing examiner entered the final order holding that the statement or directive requiring the franchisor’s name to follow that of the franchisee was a rule and, since not properly adopted, was invalid.

Petitioner FREC seeks review of the order of the hearing examiner ruling that the directive in question is a rule and not properly adopted. FREC, at its February meeting shortly prior to oral argument in these cases, cancelled the May 18, 1977, directives as “not workable.” The directive here in question has now, presumably, been withdrawn along with the other directives on franchisor-franchisee real estate operations in Florida, but the question still warrants our determination. We hold the hearing examiner was correct in ruling that the directive in question was a rule and invalid because not promulgated as required by Chapter 120. State, D. O. A. v. Stevens, 344 So.2d 290 (1st DCA 1977).

The second basis of Childers’ petition, before the hearing examiner and in this Court, is that the Commission has no authority, by properly adopted rule or otherwise, to regulate trade names by refusing to register a requested name. The same contention is made by Petitioner Harris, whose review in this Court under Florida Statute § 120.68 is from the action of FREC in refusing to register the requested trade name of his company.

The Commission’s brief asserts that there has been no final agency action in the Harris case which is subject to review by this Court, and that Harris “should have demanded a hearing under § 120.57.” In oral argument before this Court the Commission conceded that refusal to register Harris’ trade name was a final agency action, and we agree. General Development Corporation v. Division of State Planning, etc., 353 So.2d 1199, 1207 (1st DCA 1977). Further, the Commission cannot be heard to assert that its own dispositive action was not taken with the formalities which are the agency’s responsibility. An agency’s failure to enter a proper order, or to afford a hearing, is an occasion for judicial review, not an impediment of it. In the instant case, there are no material issues of fact which would require a formal proceeding under § 120.57(1) and nothing to be gained by now requiring the agency to provide an informal proceeding under § 120.-57(2).

The question before us is one of law. The record for judicial review in this Court sufficiently presents the determination below and is as described in Florida Statute § 120.68(5)(c):

“The agency’s written document expressing the action, and other written documents identified by the agency as having been considered by it before its action and used as a basis for its action . if there has been no proceeding under § 120.57.”

The letter of Petitioner Harris requesting the name change registration and the agency’s letter of July 8, 1977, constitute the record for judicial review and clearly express the action of the agency. Judicial review under § 120.68 does not depend on whether an agency has seen fit to formalize its communications with the complaining party.

The question before us on the merits is whether the Commission has power under Florida Statutes, Chapter 475, to reject names submitted to it for registration, or to dictate the sequence of the words used within the names submitted for registration. We hold that it does not, and that the duty to place the name of a broker in good standing on the registration list is purely ministerial.

Florida Statute § 475.01(4) requires the Commission keep a registration list showing the names and addresses of salesmen and brokers. Subsection (5) of that statute defines a “registrant” as a person whose name and address “has been placed and lawfully remains on said registration list” and (10) provides that a registration certificate “shall be issued to every broker . as soon as registration is granted and renewed annually thereafter as long as renewals thereof shall be granted.” Florida Statute § 475.20 provides that renewals of certificates of registration “shall be issued upon written request,” on a form provided by the Commission, accompanied by the required fee. Florida Statute § 475.42(l)(k) provides:

“No person shall operate as a real estate broker under a trade name without causing the same to be noted in the records of the commission and placed on his certificate, or so operate as a member of a partnership or as a corporation or as an officer or manager thereof, unless said partnership or corporation is the holder of a valid current registration certificate.”

Under the foregoing statutes, it is the duty of the Commission to keep a current list of registrants and to issue certificates evidencing that registration. For their part, registrants are required to maintain their registration in a current status and to supply the Commission with the correct information, including the accurate trade names under which their businesses are operating. There is no authority given to the Commission to refuse a requested name change by the registered broker.

The Commission relies to some extent on Florida Statute § 475.47 and urges that it be broadly construed to allow rejection of names which it feels would be misleading to the public. Florida Statute § 475.47 provides:

“It shall be unlawful for any person to publish or cause to be published by means of newspaper, periodical, radio, television, or written or printed matter, any false or misleading information for the purpose of offering for sale or for the purpose of causing or inducing any other person to purchase real estate located in the state, or to acquire an interest in the title thereof.”

The statute plainly deals with misleading information in the promotion of sales and requires a finding that the person is guilty of disseminating false or misleading information for the purpose of inducing the sale of real estate in Florida. The statute is not authority for the action of the Commission in these cases.

In Lee v. Delmar, 66 So.2d 252 (Fla.1953), the Florida Real Estate Commission adopted a resolution which prohibited salesmen from operating on a part-time basis and, pursuant to that resolution, denied a salesman’s application for renewal of his registration. The Supreme Court ruled that the resolution was beyond the power delegated to the Commission and invalid, stating:

“The right to work, earn a living and acquire and possess property from the fruits of one’s labor is an inalienable right. There may be certain trades, professions or occupations so clothed with the public interest that they may be regulated by the Legislature in the public interest. When any business, occupation or profession is so clothed with the public interest, then the Legislature must provide the yardstick for such regulation.
* * * * * *
The power of the appellant is limited to the yardstick laid down by the Legislature and this yardstick does not include power of the appellant to regulate or prescribe the time a real estate salesman must devote to that particular occupation. .
******
It is clear that no such power, as that attempted to be exercised by the appellant, was granted to it by the Legislature and the adoption of this resolution attempting to exercise such power was an unlawful assumption of power on the part of appellant. . . . ”

Accordingly, the action of the Commission in refusing registration of the trade names of Petitioner Harris is REVERSED and the order of the hearing examiner in the Childers’ case, AFFIRMED, and the causes REMANDED with directions that the trade names of both Harris and Childers be registered as requested.

MILLS, Acting C. J., concurs.

ERVIN, J., concurs in part and dissents in part.

ERVIN, Judge,

concurring and dissenting.

I concur with the court’s majority opinion in Childers affirming the order of the hearing examiner on the ground that the directive issued by the Commission was nothing more than an unpublished rule. I disagree, however, with the opinion in Harris that the matter which Harris Realty, Inc. sought review was final agency action and therefore ripe for disposition on the merits. After Harris sent a letter to FREC seeking permission to change its registered name to Century 21 Harris Realty, Inc., the Commission’s registration section, in a letter dated July 8, 1977, signed by Renata Hedrick, supervisor, replied:

The Commission considers that in view of the large number of franchisees and the possibility of many more in the future, name confusion and misidentification could result. The main concern is that the public not be misled into believing that they are doing business with one entity, while actually they are dealing with another.
If you desire to include the name of the franchisor in your registered name, the Commission has no objection to the inclusion after the broker identification, i. e. Harris Realty, Inc. of Panama City- — Century 21.

Without seeking any further proceedings before FREC, Harris filed petition for review directly with this court.

I simply cannot consider this letter, written by an employee of the Commission, which is tantamount to nothing more than a conditional rejection of Harris’ request for registration, as final agency action. Section 120.52(3), Florida Statutes (1977), defines agency head as “the person or collegial body in a department or other governmental unit statutorily responsible for final agency action.” Ms. Hedrick, who appears on the letterhead to have no status other than an employee of the Commission, can hardly be deemed a person responsible for final agency action. While Section 20.-05(l)(b) grants authority to department heads to delegate any power, duty or function “unless the head of the department is explicitly required by law to perform the same without delegation . . . Section 475.29 vests the Commission with power to grant, deny, revoke or suspend registration, and to enter a final order on an application for registration upon proceedings as otherwise provided under Chapter 475. Moreover Section 475.31 places the responsibility for final orders in the Commission. Finally Section 475.35 provides that final orders and rulings entered or issued in any proceeding before FREC shall be reviewable before the appropriate district court of appeal. Compare Kawasaki of Tampa, Inc. v. Calvin, 348 So.2d 897 (Fla. 1st DCA 1977), in which it was stated that in the absence of express delegation of authority only the agency head or a hearing officer assigned by the Division of Administrative Hearings shall conduct hearings, and Sheffield v. Department of Highway Safety and Motor Vehicles, 356 So.2d 353 (Fla. 1st DCA 1978), which found proper authority had been delegated to the Director of the Division of the Florida Highway Patrol to accept resignations from the Patrol’s personnel.

General Dev. Corp. v. Div. of State, 353 So.2d 1199 (Fla. 1st DCA 1977), is hardly authority for the majority’s position that the letter from Ms. Hedrick to Harris was final agency action. General Dev. Corp. requires, at the very minimum, when Section 120.57(1) proceedings do not apply, reasonable notice of the agency’s action, together with a summary of the factual, legal and policy grounds, and an opportunity at a convenient time and place for affected parties to present written or oral evidence in opposition to the agency’s action. Furthermore we there stated that final agency action must conform to the provisions of Section 120.59, requiring that orders resulting from formal or informal proceedings be in writing and include findings of fact and conclusions of law separately stated. Id. at 1210. Obviously the letter from Ms. He-drick did not comply with the requirements of 120.57(2) or 120.59.

Finally I am unpersuaded by the majority’s view, on the basis of this limited record consisting of nothing more than Harris’ letter requesting the name change and the registration section’s response, that the question before us is simply one of law. On the contrary there may well be disputed issues of material facts which can only be resolved in a 120.57(1) proceeding. I cannot concede that Section 475.42(l)(k) precludes any discretion in the Commission to refuse a requested name change by a registered broker. Assume for example that a broker, already registered, wishes to capitalize upon the goodwill of a well known competitor’s name previously registered with the Commission and requests that its name be changed to one practically identical with the other name so registered. The majority opinion states the Commission’s responsibility by law is merely ministerial and it must in all cases accept the requested change. I do not believe Section 475.42(l)(k) can be isolated from the provisions of Section 475.-47, prohibiting the advertising of information misleading to the public, and I feel both statutes must be read in pari materia. Surely the advertising of a registered realtor’s name, which is very similar to a trade name previously registered, could, at the very minimum, be misleading to the public. The net result of this opinion is to handcuff the Commission’s enforcement powers at the registration level, while presumably allowing it to enforce the provisions of 475.47 when a validly registered broker later seeks to advertise its patently misleading registered name. Surely the Legislature could not have intended this result at the time it enacted the pertinent statutes involved. When a statute grants a right or imposes a duty, it also confers by implication the power and reasonable means necessary for the exercise of the one or the performance of the other. Mitchell v. Maxwell, 2 Fla. 594 (1849); McNeill v. Pace, 69 Fla. 349, 68 So. 177 (1915); Deltona Corp. v. Florida Public Service Comm., 220 So.2d 905 (Fla.1969).

Being of the view that the matter sought reviewed by Harris' is not final agency action, I would dismiss its petition.

      . Ervin v. Capital Weekly Post, 97 So.2d 464 (Fla.1957).


author: DAUKSCH, Judge.

text:
    Richard BARLOW and Diane Barlow, husband and wife, Appellants, v. AUTO-OWNERS INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 76-2268.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Rehearing Denied June 14, 1978.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellants.
    Maureen L. McGill, José G. Rodriguez of Adams, Sullivan, Coogler, Watson & Smith, West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was a passenger in a vehicle owned by himself and driven by John Lockwood. It is alleged Lockwood negligently drove the car in such a manner as to injure appellant.. Since Lockwood personally has no insurance appellant seeks to recover from appellee as the insurer of his vehicle under the Uninsured Motor Vehicle Coverage. Section 627.727 Florida Statutes. The insurance policy says:

“Uninsured Automobile . . . shall not include: (a) an automobile owned by or furnished for regular use to the named insured . . . ”

Appellant urges us to declare this provision in the insurance contract to be void as against public policy; particularly, Section 627.727(1):

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage. When a vehicle is leased for a period of 1 year or longer and the lessor of such vehicle, by the terms of the lease contract, provides liability coverage on the leased vehicle in a policy wherein the lessee is a named insured or on a certificate of a master policy issued to the lessor, the lessee of such vehicle shall have the sole privilege to reject uninsured motorist coverage. Unless the named insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy when the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer. The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident. Such coverage shall not inure directly or indirectly to the benefit of any workmen’s compensation or disability benefits, carrier or any person or organization qualifying as a self-insurer under any workmen’s compensation or disability benefits law or any similar law.

This case appears to be rather close to our Reid v. Allstate, 344 So.2d 877 (Fla. 4th DCA 1977) and the Supreme Court’s case Reid v. State Farm, 352 So.2d 1172, opinion filed October 31, 1977. There appellant was injured as a result of the negligence of her sister who was driving a family car from the home in which both sisters resided. That appellant said she should be covered by Uninsured Motor Vehicle Coverage because she was subject to the “family-household exclusion” and therefore unprotected by the policy because of her relationship to the driver, owner and vehicle. We held and the Supreme Court agreed that the exclusionary language in that case is valid and not against public policy. As noted in Reid v. State Farm, supra, this case is distinguishable from Lee v. State Farm, 339 So.2d 670 (Fla. 2d DCA 1976) because only one policy is involved. See also Hartford Accident and Indemnity Company v. Fonck, 344 So.2d 595 (Fla. 2d DCA 1977).

We cannot distinguish this case from the two Reid, supra, cases and must affirm the trial court leaving any future remedy to the legislature.

AFFIRMED.

DOWNEY, C. J., and BURNSTEIN, MIETTE K., Associate Judge, concur.

      . Despite the different stylings of the cases, they are the same case. Allstate and State Farm were co-defendants.


author: LETTS, Judge.

text:
    Jackie Lee MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 77-532.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Rehearing Denied June 7, 1978.

      Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Broward County, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, West Palm Beach, for appellee.
   LETTS, Judge.

In this case we are faced with yet another appeal spawned by Fla.R.Crim.P. 3.191(a)(1), the speedy trial rule. On Monday, January 3, 1977, the last day of appel-lee’s 180 day trial period, a large body of prospective jurors was sworn in by the clerk in readiness for examination as to their qualifications to serve as jurors. None of these jurors were actually seated for voir dire examination in appellant’s case, nor was any other action taken with reference to his particular trial on that day. The trial judge denied the ensuing motion for discharge for violation of the 180 day rule from which the accused appeals. We affirm.

We affirm, somewhat reluctantly. We are not offended at the thought that the initial swearing should prove sufficient to toll the speedy trial time; however, we find it difficult to accept the premise that this commences a particular trial. Notwithstanding our difficulty, the end result of this affirmance permits prospective jurors to be sworn on a Monday, in accordance with Fla.R.Crim.P. 3.300, and not actually be examined for the defendant’s particular trial until Friday, four days beyond the 180 day limit. Two appellate cases have dealt with these identical facts and have come to an opposite and more sensible conclusion than we do now. Their opinion is that the defendant in such circumstances should be discharged: Hall v. State, 348 So.2d 932 (Fla. 2d DCA 1977) and State v. May, 332 So.2d 146 (Fla. 3rd DCA 1976) cert. den. 339 So.2d 1172 (Fla.1977). However, we feel compelled after a close reading of, the applicable rule and the Supreme Court case of State ex rel. Maines v. Baker, 254 So.2d 207 (Fla.1971) to disagree with our sister courts. In Maines, identical facts existed except that late on the same day, voir dire for the defendant’s particular trial did commence. Notwithstanding this important factual distinction, it does not appear to us that it was essential to the court’s decision which upheld Rule 3.191(a)(3) and stated that it “seems clear”. Accordingly, we do not believe that the holding of Maines required the voir dire to begin on the same day despite the fact that it did begin. All that was required was the initial swearing.

The Supreme Court further stated that “we feel it necessary to declare [Rule 3.191(a)(3)] constitutional”, Maines, supra. In particular, that rule states in toto:

Commencement of Trial. A person shall be deemed to have been brought to trial if the trial commences within the time herein provided. The trial is deemed to have commenced when the trial jury panel is sworn for voir dire examination, or, upon waiver of a jury trial, when the trial proceedings begin before the judge. [emphasis supplied.]

Accordingly we see no alternative but to affirm the trial court’s ruling, although it is hard indeed to explain to a still incarcerated accused that his trial has commenced on Monday morning, when his jailer has just informed him it will not begin until the following Friday.

As already stated, we do not object to a tolling of the time period upon the occasion of the initial swearing in of a panel. The 180 days was an arbitrarily chosen period in any case and a figure of 150 or 200 days could have been selected. It is simply that the existing rule quoted above, appears to be marching to a different drummer, when it declares that the initial swearing commences the actual trial of an accused.

Realizing that this opinion creates a conflict and being convinced that this is a matter of great public interest we therefore certify the following question to the Supreme Court.

FOR THE PURPOSES OF THE 180 DAY RULE, DOES THE TRIAL COMMENCE UNDER RULE 3.191(a)(3) WHEN THE INITIAL OATH IS ADMINISTERED TO A LARGE PROSPECTIVE PANEL UNDER RULE 3.300(a) OR DOES THE TRIAL COMMENCE WHEN THE PANEL IS SEATED FOR VOIR DIRE EXAMINATION.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . This denial of certiorari has not been ignored by us, but we deem it an insufficient guide.

      . The only other oath provided for in the Rules, is the one set forth in Rule 3.360, given to the jurors selected for the particular trial after voir dire. Obviously this latter is not the critical oath. We point to the author’s comment in 33 Fla.Stat.Ann. 315 (1975) wherein it is said: “As pointed out in Maines ... it makes no difference if voir dire examination commences on the last day since the critical period is when the trial jury panel is actually sworn.”


author: PER CURIAM.

text:
    Jean BEATTIE, a single woman, Appellant, v. CITY OF CORAL GABLES, a Municipal Corporate subdivision of Dade County, Florida, Bill Ussery Motors, Inc., a Florida Corp. the Travelers Insurance Company, a Foreign Corporation, and Continental Casualty Company, a Foreign Corporation, Appellees.
    No. 77-78.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 9, 1978.

      Goethel & Garcia-Vidal, Coral Gables, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The plaintiff Jean Beattie appeals from a final summary judgment entered in a slip and fall negligence action in favor of the defendants City of Coral Gables and its insurer Continental Casualty Company, Bill Ussery Motors Inc., and its insurer Travelers Insurance Company, in the Circuit Court for the Eleventh Judicial Circuit of Florida. The plaintiff contends on appeal that summary judgment was improper as there was a genuine issue of material fact as to whether the plaintiff fell and injured herself on a public sidewalk in the City of Coral Gables due to an alleged negligent defective condition in the said sidewalk, to wit: a crack. We agree and reverse as to the City of Coral Gables and its insurer Continental Casualty Company. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Leon v. City of Miami, 312 So.2d 518 (Fla. 3d DCA 1975). We affirm, however, as to the defendant Bill Ussery Motors, Inc. and its insurer Travelers Insurance Company on the ground that Bill Ussery Motors, Inc. owed no duty to the plaintiff to maintain the sidewalk herein in a safe condition. Woods v. City of Palatka, 63 So.2d 636 (Fla.1953); Gornto v. Marks, 311 So.2d 177 (Fla. 1st DCA 1975). We find the other contention raised by the appellant on this appeal to be without merit.

Affirmed as to the defendant Bill Ussery Motors, Inc. and its insurer Travelers Insurance Company; reversed and remanded for further proceedings as to the defendant City of Coral Gables and its insurer Continental Casualty Company.


text:
    Mario PEREZ, II, and Hilda Perez, his wife, Appellants, v. CITY OF MIAMI, Allan Poms, Lester C. Pancoast, Bouterse Borelli Albaisa Architects Planners, Inc., De Zarraga & Donnell, Inc., and Volkert Associates, Inc., a joint venture, the Stuyvesant Insurance Company, American Employers Insurance Company, First State Insurance Company, Houston General Insurance Company, and United States Fidelity and Guaranty Company, Appellees.
    Nos. 77-95 to 77-98, 77-420 and 77-421.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 9, 1978.
    Horton, Perse & Ginsberg, Dan G. Wheeler, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, James E. Tribble, Arky, Freed, Stearns, Watson & Greer, Alison W. Miller, Goodwin, Ryskamp, Welcher & Carrier, Knight, Peters, Pickle, Noemoeller & Flynn, Jeanne Heyward, Carey, Dwyer, Austin, Cole & Selwood, Steven R. Berger and Bette Ellen Quiat, Miami, for appellees.
    Before HENDRY, J., and CHARLES CARROLL (Ret.) and PARKER, J. GWYNN (Ret.), Associate Judges.
   PER CURIAM.

Plaintiffs have appealed from summary judgment entered in favor of the defendants. On consideration thereof in light of the record, briefs and argument, we have concluded there are presented genuine issues of material fact relating to the status and duties of defendants as bearing on the question of liability which properly may not be resolved by summary judgment.

Reversed and remanded for further proceedings.


text:
    Alejandro ISAZA, a minor, by and through his father and next friend, Bill Isaza, Bill Isaza, Individually, and Maria Isaza, Appellants, v. Dr. Sanford YANKOW, Appellee.
    No. 77-283.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 9, 1978.
    Horton, Perse & Ginsberg, Cohen & Ko-kus, Miami, for appellants.
    Preddy, Kutner & Hardy, Joe N. Unger, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the plaintiffs below from an adverse judgment entered on a jury verdict in a medical malpractice action.

Appellants contend the evidence was insufficient to support the verdict, and that the court erred in striking portions of the deposition of an expert witness for plaintiffs. On consideration thereof in light of the record, briefs and argument we hold no reversible error has been shown. The challenged evidentiary ruling did not constitute harmful error. It was the province of the jury to resolve the conflicts in the evidence, and there was substantial competent evidence to justify and support the verdict and judgment. See: Anderson v. Gordon, 334 So.2d 107 (Fla. 3d DCA 1976).

The judgment is affirmed.


author: PEARSON, Judge.

text:
    CALVARY CHURCH, INC., Appellant, v. Robert SIEGEL and Jacob L. Bockol, Appellees.
    No. 77-426.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 9, 1978.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and William L. Rogers, North Miami Beach, for appellant.
    Leo Greenfield, North Miami, for appel-lees.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PEARSON, Judge.

The defendant, Calvary Church, Inc., appeals a final judgment entered after a trial before the court without jury. The judgment is based upon a complaint by appellees Robert Siegel and Jacob L. Bockol, alleging that the appellant conspired with another defendant, Calvery Temple, Inc., to defeat Siegel and Bockol’s contract to purchase real property owned by Calvery Temple, Inc. The question presented is whether the facts which were proved at trial, when viewed in the light most favorable to the plaintiffs, established a prima facie case sufficient to support the judgment.

The trial judges’ finding of fact are as follows:

“1. The Defendant, CALVARY TEMPLE, INC., [not an appellant here] was the owner of a parcel of land and certain improvements thereon, located at 1301 West 68th Street, Hialeah, Florida, .
******
2. The property and all improvements, were listed for sale by CALVARY TEMPLE, INC. with the Keyes Company on November 13, 1973 at a listed sales price of $232,000.00 ‘all cash or cash above the existing mortgage, or that purchaser would obtain new financing at his own expense’.
3. Plaintiff, ROBERT SIEGEL, was the owner of an interest in a shopping center located in close proximity to the church premises and was familiar with the property and negotiated for the purchase of the said church property over an extended period of time.
4. On December 18, 1973 CALVARY CHURCH, INC., [Sic — the agreement was with Calvery Temple, Inc.] being in a severe financial crisis, entered into an agreement with SIEGEL, by way of a brief letter contract, to sell the property and all improvements to SIEGEL for the sum of $121,000.00 subject to two mortgages: one held by Alah Farms and a second by Melrose Properties. The agreement provided that if Allapattah Baptist Church put up a cash deposit of no less than $20,000.00 by December 19, 1973 at 2:00 P.M., the agreement with SIEGEL would become null and void. The agreement further provided that ‘time is of the essence’. No funds were deposited by the Allapattah Baptist Church within the deadline, and the SIE-GEL agreement therefore remained in full force and effect.
5. On December 19th and 20th, in anticipation of the elimination of the use of the property in question as a church, both Plaintiffs filed an application with the Board of Business Regulation, to obtain a liquor license for a premises which was in close proximity to the church, and where previously due to the proximity of the church, the sale of liquor had been prohibited.
6. On January 2, 1974 an inventory was taken by SIEGEL and REV. HA-VENER of CALVARY TEMPLE, INC. of the personal property; the abstract was delivered to SIEGEL’s attorney in anticipation of the closing which was to be completed early in January, upon the return of HAVENER from an out of town trip.
7. During this same period, the exact time being undetermined, Rev. Havener had conversations with Rev. Jones, a licensed, experienced real estate salesman, licensed in Florida since 1971, and in Pennsylvania for seven years prior thereto, of CALVARY CHURCH, INC. toward the end of selling the property to the Defendant, CALVARY CHURCH, INC. During these conversations, or shortly thereafter, Jones became aware of the fact that SIEGEL had entered into a contract for the purchase of the property from CALVARY TEMPLE, INC.
8. On January 14, 1974 CALVARY CHURCH, INC. entered into a contract for the purchase of the property which was under contract to SIEGEL and agreed to purchase same for the total amount of $130,000.00, subject to certain other terms and conditions. On that same date, SIEGEL entered into an agreement with JACOB L. BOCKOL to sell to BOCKOL an undivided interest in his contract to purchase.
9. The Plaintiffs, after January 14, 1974, became aware of the fact that CALVARY TEMPLE, INC. had entered into a second contract to sell the property to CALVARY CHURCH, INC. and thereupon on the 18th day of January, 1974 the Plaintiffs instituted an action for specific performance and damages, against CALVARY TEMPLE, INC., cause No. 74-1695, and caused a Lis Pendens to be filed against the property.
10. At a date subsequent to January 18, 1974, but prior to February 19, 1974, Rev. Jones of CALVARY CHURCH, INC. met with his counsel and reviewed with his counsel all of the pleadings filed by the Plaintiffs and thereafter determined that notwithstanding the claim of the Plaintiffs, CALVARY CHURCH, INC., they would proceed to close on the said property. At that time CALVARY CHURCH, INC. recognized the risks involved but determined that notwithstanding the SIEGEL contract it would go forward to conclude the purchase of the property. Having made such decision, it then negotiated an amendment to the deposit receipt agreement whereby it was agreed that the price of the property would be reduced from $130,000.00 to $121,000.00, in consideration of which CALVARY CHURCH, INC. would hold CALVARY TEMPLE, INC. and the Rev. R. T. Havener harmless from any damages flowing from the law suit instituted by the Plaintiffs. As part of the indemnification CALVARY CHURCH, INC. agreed that it would provide legal counsel for the purpose of the lawsuit and would provide CALVARY TEMPLE, INC. with counsel. Thereupon the transaction was closed and the property conveyed by CALVARY TEMPLE, INC. to CALVARY CHURCH, INC. The deed conveying the property specifically provided: ‘Grantee is on notice of a specific performance suit filed in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, Case No. 74-1695, in which Robert Siegel and Jacob L. Bockol are the Plaintiffs and Calvary Temple, Inc. is the Defendant. Said suit is still pending in the Circuit Court and no warranties are made as to the outcome of said litigation.’ ”

Based upon these facts, the trial judge found liability against Calvary Church for a conspiracy to defeat Siegel’s contract to purchase the property involved. In an attempt to achieve clarity, we reiterate that there were originally two defendants: (1) Calvary Temple, the owner of the property, which will be referred to as the “Temple” (the Temple is not an appellant) and (2) Calvary Church, the purchaser of the property, which will be referred to as “Calvary Church” (Calvary Church is the present appellant).

Calvary Church urges under its first point that the court erred in finding a conspiracy to defeat Siegel’s contract to purchase because the claimed contract was insufficient as a matter of law to confer a right to purchase upon the plaintiffs. The Siegel-Temple agreement was, in pertinent part, as follows:

“In consideration (of) the sum of $10.00 and other valuable consideration we agree to sell to Robert Siegel . [the property involved] . . . and all [buildings] thereon described with content^] for $121,000.00 less the mortgage held by Allah Farms and Melrose Properties at the time of transfer of title. The total price shall not exceed $121,000.00, Terms shall be arranged for the balance.”

It is argued that this agreement was in reality an agreement to enter into a future contract.

We must determine whether the Sie-gel-Temple agreement was sufficient to support the action. In Franklin v. Brown, 159 So.2d 893 (Fla. 1st DCA 1964), the court pointed out that for one to have a cause of action in tort against a wrongdoer who has willfully or maliciously interfered with the injured party’s favorable business relationship with another, it is not necessary that the business relationship be founded upon an enforceable contract. Citing Chipley v. Atkinson, 23 Fla. 206, 1 So. 934 (1887); and Dade Enterprises, Inc. v. Wometco Theaters, Inc., 119 Fla. 70, 160 So. 209 (1935). The holding in Franklin v. Brown is that a complaint which alleges wanton conduct by the defendant intentionally destroying the subject matter of the contract between the plaintiff and another, or unlawfully rendering performance under the contract impossible, states a cause of action in tort for unlawful interference with the contract between the plaintiff and another. We hold that the agreement between Siegel and the Temple, incomplete as it was, constituted a contract sufficient to set forth an advantageous contractual undertaking, whether it was to sell or to contract to sell. Cf. Allen v. Leybourne, 190 So.2d 825 (Fla. 3d DCA 1966).

We have considered the other points of appellant Calvary Church, which are directed to the findings of the trial court, and hold that they do not present reversible error.

Appellant’s fifth point urges that the trial court erred in awarding attorney’s fees to the plaintiffs for the prosecution of this action. We agree and reverse the post-judgment order allowing attorney’s fees. See cases cited at 9A Fla.Jur. Damages § 79. The exception set out in Milohnich v. First National Bank of Miami Springs, 224 So.2d 759 (Fla. 3d DCA 1969), is not applicable under the facts of the instant case.

Affirmed in part; reversed in part.


author: KEHOE, Judge.

text:
    Anthony SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-435.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 16, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before KEHOE, J. and BOYD, JOSEPH A., Jr., Associate Judge and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction and sentence entered pursuant to a jury verdict for attempted robbery and unlawful possession of a firearm while engaged in a criminal offense. For the reasons set forth below we reverse.

Appellant, in one of his two points on appeal, contends that when the prosecutor, during his opening statement to the jury, made the following comment, it violated Section 918.09, Florida Statutes (1969), and his rights under the Fifth and Fourteenth Amendments to the United States Constitution:

“The basic issue, and just keep this throughout the whole trial, the basic issue in this whole case is going to be one of credibility. Do you believe Mrs. Sentz [State’s witness] or are you going to believe the Defendant [appellant]. That’s going to be the basic issue.”

Accordingly, appellant further contends that the trial court erred when it denied his motions for a mistrial based on this comment.

Section 918.09, Florida Statutes (1969), provides, among other things, as follows:

“. . no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf, . .

Appellant argues that the prosecutor’s comment amounted to a challenge for him to meet the State’s evidence with his own proof of innocence and that such comment lodged within the minds of the jury the impression that he should come forward to personally rebut the State’s testimony. Appellant further argues that when he failed to meet that challenge, by exercising his right not to testify, the jury was left with the prosecutor’s direction to test the victim’s testimony against his lack of testimony, thereby, turning his right to remain silent into a fiction.

Plausible as the effect attributed by appellant to the prosecutor’s statement may be, it is unnecessary for us to agree. It is sufficient that we determine the contentious statement to be one which commented on appellant’s failure to testify in his own behalf. Under the circumstances of this case, we have concluded that the statement, set forth above, made by the prosecutor did amount to a comment on the failure of appellant to testify in his own behalf. It follows that such a comment was a violation of Section 918.09, Florida Statutes (1969). However, appellee argues that the trial court gave adequate curative instructions to the jury to ignore the improper comment. We disagree with appellee’s argument. In our opinion, the statement constituted a comment on the failure of appellant to testify in his own behalf, contrary to the provision of Section 918.09, Florida Statutes (1969), and could not be cured by the trial court instructing the jury to disregard it. See, e. g., Trafficante v. State, 92 So.2d 811 (Fla.1957); Way v. State, 67 So.2d 321 (Fla.1953); Rowe v. State, 87 Fla. 17, 98 So. 613 (Fla.1923); and Singleton v. State, 183 So.2d 245 (Fla. 2d DCA 1966). Consequently, the failure of the trial court to grant appellant’s motions for a mistrial, based on the improper comment, was an abuse of its discretion. Because of this determination, it is unnecessary for us to reach the constitutional aspects of this point on appeal.

Appellant’s other point on appeal, i. e., whether the trial court erred in denying his motion to suppress a pre-trial identification, is without merit. See, e. g., Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Settle v. State, 288 So.2d 511 (Fla.1974); Ashford v. State, 274 So.2d 517 (Fla.1973); and Grech v. State, 243 So.2d 216 (Fla. 3d DCA 1971).

For the reasons set forth above, the judgment and sentence appealed are reversed and the cause is remanded for a new trial.

Reversed and remanded.

CHARLES CARROLL (Ret.), Associate Judge, dissents.


author: CARROLL, Associate Judge.

text:
    Helene Sue RADOFF, Appellant, v. NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Appellee.
    No. 77-1066.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 9, 1978.
    Haiman Long Clein, North Miami, and Thomas P. Bell, Hialeah, for appellant.
    Shutts & Bowen and Eric B. Meyers, Miami, for appellee.
    Before HENDRY and PEARSON, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CARROLL, Associate Judge.

This is an appeal for the plaintiff below from a summary judgment entered in favor of the defendant.

On January 1, 1976, the defendant, North American Company for Life and Health Insurance, issued a certificate of life insurance to Samuel I. Radoff in the amount of $40,000. The certificate recited it was issued under the terms of policy number G-060953 to Trustee for the Fraternal Order of Police Trust, and it contained a provision making its effectiveness dependent on the insured being regularly performing the duties of his occupation on a full time basis. It is disclosed that Samuel I. Radoff, while a policeman employed by the City of Miami, became insured for $5,000 of life insurance under a group policy of the Fraternal Order of Police issued by Continental Assurance Company. Also, in 1970, Radoff was retired on a two-thirds disability benefit. In 1971, an application made by Radoff to increase the amount of insurance under that policy to $40,000 was denied. In January of 1976, the group carrier was changed from the initial carrier to North American, which thereupon issued to Radoff the certificate of insurance described above.

Radoff died on July 17,1976. This action was brought by his widow, as beneficiary, against North American to recover life benefits under said policy, in the amount of $44,000, alleging the initial amount of $40,-000 had been increased thereafter by $4,000.

North American answered, denying coverage because of noncompliance with the provision referred to above, which is quoted at footnote no. 1. Alternatively, in defense, North American averred that the insurance certificate was made for $40,000 life insurance by mistake, due to the fact that its agent thereon had mistakenly advised the company that Radoffs insurance under the original policy was for $40,000 when, in fact, it was for $5,000, and North American sought reformation thereof.

Following hearing on defendant’s motion for summary judgment, the trial court entered a summary judgment for the defendant in which the court found as undisputed fact that on January 1,1976, and thereafter until his death on July 17,1976, Radoff was disabled and was not regularly performing the duties of his occupation or profession on a full time basis, and that under the terms of the North American policy, for that reason, was not entitled to life insurance benefits. The court ordered North American to refund to the plaintiff the premiums paid thereon amounting to $149.80.

In its answer, North American, while contending for noncoverage by it because of said exclusionary provision, averred that Radoff, at the time of his death, remained covered for $5,000 life insurance under the Continental Assurance policy and that the latter had tendered payment thereon. At the argument of this case, the attorney for the appellee so stated, and represented that while North American was not liable therefor under its policy, the $5,000 life benefit was payable to the beneficiary by Continental Assurance Company. Our affirmance of the judgment holding North American not liable for the payment is made on the assumption that such payment will be made by Continental Assurance Company.

We hold the court was correct in ruling that the said exclusionary clause was effective as to North American. We reject appellant’s contention that the acceptance of premiums by North American estops it from disclaiming coverage. Estoppel does not operate to create coverage. Six L’s Packing Co. v. Florida Farm Bureau Mutual Insurance Co., 268 So.2d 560 (Fla. 4th DCA 1972); Johnson v. Dawson, 257 So.2d 282, 284 (Fla. 3d DCA 1972). The provision in the group policy conditioning its effectiveness upon the insured being in regular performance of duties of his occupation or profession on a full time basis was one of coverage. Carageorge v. Fidelity & Guaranty Life Insurance Company, 345 So.2d 865 (Fla. 1st DCA 1977). The provisions of Section 627.573, Florida Statutes (1975), do not create liability on North American which replaced the group life contract of Continental Assurance Company where the coverage under the latter continued. In view of lack of coverage by the North American policy, the dispute or question as to the amount of the benefit provided for therein is not material.

The judgment is affirmed.

      . The provision thus referred to:
      “ * * * In any instance when a Member is not regularly performing the duties of his occupation or profession on a fulltime basis for a Member’s Spouse or Children are disabled on the date they would become insured such Member shall become insured on the 1st day of the month following the date he resumes such duties on a fulltime basis, and such disabled Spouse and disabled children shall become insured the 1st day of the month following the date they are no longer disabled and return to their fulltime activities.”


text:
    Terrence GHENT, minor, by and through his natural mother and guardian, Mary Alice Fowler, and Mary Alice Fowler, Individually, Appellant, v. NEW YORK BRONZE POWDER COMPANY, INC., Appellee.
    No. 77-1854.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 9, 1978.
    Richard B. Burke, Miami, for appellant.
    Walsh, Kahn & Gustafson and Mark R. Boyd, Fort Lauderdale, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PEARSON, Judge.

The question presented by this interlocutory appeal is whether the trial court committed a gross abuse of discretion in setting aside a default entered against the defendant-appellee.

The appellee was served June 29, 1977, through service upon the Secretary of State. Default was entered on August 2, 1977, for failure to plead. A motion to set aside default was filed by the appellee on August 9, 1977, and a proposed motion to dismiss was filed by the appellee on August 19, 1977. Also filed by the appellee was a document entitled “Addendum.” We are not furnished with a copy of this pleading.

Appellant asserts that no reference was made to the existence of a meritorious defense, but we are unable to determine this fact from the record submitted. Therefore, the order appealed is affirmed. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962).

Affirmed.

      . The appellant failed to file an appendix as provided for by Fla.App. Rule 4.2. We have only appellee’s appendix.


text:
    Eva Lana Caraway DePRYCKER, Linda Ruth Caraway Forshee, Anita Leola Caraway and Bettie S. Caraway, as guardian of the property of Howard Wilson Caraway, Jr., a minor, Appellants, v. Myra Jean Whitehurst BROWN and Barnett Bank of Jacksonville, N. A., as Trustee under the Last Will and Testament of Howard W. Caraway, Deceased, Appellees.
    No. GG-382.
    District Court of Appeal of Florida, First District.
    May 11, 1978.
    Rehearing Denied June 14, 1978.

      C. Harris Dittmar of Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, for appellants.
    Paul R. Sanford and Donald C. Wright of Rogers, Towers, Bailey, Jones & Gay, Walter R. Stedeford, Jacksonville, for appellees.
   MASON, ERNEST E. (Circuit Judge, Retired), Associate Judge.

Appellants are the natural children of Howard W. Caraway, now deceased, by his wife of a second marriage. Appellee, Myra Jean Whitehurst Brown, is the natural child of Caraway by his first marriage. Caraway’s first marriage ended in divorce and his first wife later remarried. The first wife was granted custody of Myra Jean in the divorce decree entered in 1940. Thereafter, in 1951, Myra Jean was adopted by her mother’s second husband. In 1957 Caraway executed a will which specifically named the two eldest daughters of his second marriage, Eva and Linda, as beneficiaries thereunder. The drafter of this will testified at the final hearing herein that he was instructed by Caraway not to include Appellee, Myra Jean, the daughter of his first marriage, as a beneficiary under the will. After the execution of the 1957 will, Caraway’s last two children by his second marriage, Anita and Howard, Jr., were born.

In 1962 one Lucius Buck was engaged by Caraway to draw a new will. This will specifically revoked the 1957 will. Caraway had several conferences with Buck in connection with the contents of the new will. In the first conference Caraway identified his children as three daughters and a son, Appellants herein, and discussed with Buck and his partner the creation of four inter vivos trusts, one for each of these four children by his second marriage. These trusts were created and documents executed on June 11, 1962.

During the discussion period between Caraway and his lawyer, to-wit: on February 14,1962, Caraway’s C.P.A. prepared for him and his lawyer an inventory of Caraway’s assets and certain personal information pertaining to Caraway in which the four Appellants were named as his children. Caraway’s lawyer was not informed of the existence of Appellee Myra Jean, born of the first marriage, nor did he inquire whether Caraway had been married more than once, and, if so, whether there existed issue of another marriage.

The Last Will and Testament of Caraway prepared by Buck contains a residuary clause naming “my children who survive me” as ultimate beneficiaries thereunder. The drafting of this will followed upon the receipt by Caraway of a letter from Buck, his lawyer, making a recommendation for drawing the will and the division of the testator’s property between his second wife, Bettie, and “four children”. This letter was dated March 6th, 1962, and the will was dated and executed on April 17, 1962.

Following the execution of the will Mr. and Mrs. Caraway implemented the balance of the estate plan prepared by Buck, the lawyer, by creating on June 11, 1962, four inter vivos trusts, one for each of the four Appellants, children of the second marriage, and conveying certain real property to those trusts. Each of the trusts provided for remainder benefits to the other three children born of the second marriage. The will created a life estate in Bettie, the second wife, and designated the remainder beneficiaries as “my children who survive me”. Caraway died in 1969.

On September 21, 1976, Appellants filed this declaratory action seeking in the Circuit Court below a judicial determination of the persons intended by Caraway to receive the benefits of his testamentary trust upon the termination of the widow’s life estate. Appellee, Myra Jean Whitehurst Brown, Caraway’s adopted-away child by his first marriage, and Appellee trustee, Barnett Bank of Jacksonville, were named as defendants in the suit.

The court below held that the testator’s children designated as beneficiaries in Caraway’s will are all of his natural children, including Appellee Brown, and that the latter is entitled to share in the benefits of the residuary clause of the will. Hence this appeal.

The resolution of the issue before us, namely, was Appellee one of the surviving children of the testator, Caraway, so as to be a designated beneficiary under the residuary clause of his will, depends upon the answer to another question, and that is whether an adopted-away child of the testator was, at the time of the latter’s death, a legal child of such testator for the purpose of testate inheritance. We think this latter question has been answered in the negative by the Supreme Court of this state in Gessner v. Powell, 238 So.2d 101 (Fla.1970), wherein the court specifically held, in construing Section 63.151 F.S. (1969), a provision of the Adoption Statute of Florida, that

“. . .a decree of adoption has the effect of severing the legal ties between a child and his natural parents, except for the inheritance right expressly reserved,” by the statute.
The statute further provides that “After the adoption the natural parents, if living, are relieved of all legal duties and obligations due from them to the child and are divested of all rights with respect to the child . . . ”

It is true that in Gessner the court was dealing with the question of the right of an adopted-away minor child to have a cause of action against a tortfeasor for the wrongful death of his natural father. But certainly the same interpretation of the statute must be made when, as here, the natural child was an adult, both at the time of the execution of the will in question, and at the time of her natural father’s death. In neither case was there any obligation of support nor claim upon the beneficent bounty on the part of the natural father toward such adopted child. We therefore hold that Appellee was not one of “my children surviving me” of the testator, Caraway, entitled to participate as a beneficiary under the residuary clause of the latter’s will.

It is true that Appellee was a blood-child of Caraway and that he could have included her in his will as a recipient of his bounty, just as he could devise any part of his estate to any person he chose. Having concluded that Appellee is not included in the term “my children surviving me” it is not necessary that we analyze the evidence further to determine if Caraway did in fact intend to include Myra Jean, Appellee herein, as a beneficiary of his estate. However, all of the circumstances surrounding his instructions to his attorney toward the preparation of the will as above recited, taken in conjunction with the fact that he had excluded her specifically in his first will, point to the conclusion that he did not intend in this last will to make her a beneficiary. There is no evidence that his attitude of excluding her as evidenced by his first will had changed at the time of the execution of the second will, the one in question here. There is nothing in the evidence to indicate that he intended to in-elude her in his last will. We therefore reverse the judgment below and remand with instruction to the trial court to enter a judgment in accordance with the views herein expressed, declaring that only the four children of the deceased’s second marriage are beneficiaries of his residuary estate.

It is so ordered.

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


text:
    Matthew Allen MASTERS, Petitioner, v. STATE of Florida, Respondent.
    No. II-440.
    District Court of Appeal of Florida, First District.
    May 11, 1978.
    Rehearing Denied June 15, 1978.
    Ronald A. Nour, Daytona Beach, for petitioner.
    William K. Howell, Jr., Senior Asst. County Atty., Volusia County, for respondent.
   PER CURIAM.

Petitioner/defendant filed a motion to tax costs against Volusia County seeking to recover certain appellate costs. Defendant urges the trial court departed from the essential requirements of law by denying this motion.

Defendant was tried and convicted upon a three count information for certain alleged drug offenses. In Masters v. State, 344 So.2d 616 (Fla. 1st DCA 1977), cert. den., 352 So.2d 173 (Fla.1977), the judgment and sentence as to he third count of the information (misdemeanor possession of marijuana) was remanded with directions that it be vacated and set aside. The judgments and sentences as to the remaining counts were affirmed; however, the cause was remanded to the trial court to set aside one or the other of the concurrent sentences under the single transaction rule.

Recovery and allowance of costs in criminal cases is solely dependent on statutory provisions. See Wood v. City of Jacksonville, 248 So.2d 176 (Fla. 1st DCA 1971). Section 939.15, Florida Statutes (1975), provides:

“When the defendant in any criminal case pending in any circuit or county court, a district court of appeal or the supreme court of this state has been adjudged insolvent . . ., or when the defendant is discharged or the judgment reversed, the costs allowed by law shall be paid by the county in which the crime was committed, . . ” (emphasis supplied).

We construe Section 939.15 as applicable solely to costs attributable to the charge as to which the defendant was discharged or for which the judgment was reversed. The defendant has failed to sustain his burden of proof that any portion of the costs claimed herein were so attributable. Accordingly, the petition for writ of certiorari is DENIED.

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


text:
    STATE of Florida, Appellant, v. William Michael CASERTA and John D. Benson, Appellees.
    Nos. 77-1611 and 77-1612.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellant.
    R. N. Koblegard, III, Fort Pierce, for appellee, John D. Benson.
    Ben L. Bryan, Jr., Fort Pierce, for appel-lee, William Michael Caserta.
   LETTS, Judge.

This interlocutory appeal stems from a refusal by the trial judge to permit the State to amend the information. We reverse.

We have no quarrel with the trial judge’s order granting the motion to suppress the evidence. Judge Sample expressly found that the officers were lying about the facts of their alleged probable cause to search the hangers for contraband contained iri two aircraft. However, we feel his understandable disgust with the authorities may be what prompted him to refuse the State’s motion to amend the information and in this he was in error.

The original information contained two counts and read as follows:

I.
“. . . did then and there unlawfully deliver a controlled substance, to wit: CANNABIS, commonly known as marijuana, in an amount in excess of One-Hundred (100) Pounds, in violation of Florida Statute 893.13(l)(a);”
II.
“. . . did then and there unlawfully have in their actual or constructive possession a controlled substance, to wit: CANNABIS, commonly referred to as marijuana, in an amount in excess of One-Hundred (100) Pounds, in violation of Florida Statute 893.13(l)(a)2;”

The requested amended information deleted Count I and amended Count II to read as follows:

II.

“. . . did then and there unlawfully possess with the intent to sell or deliver a controlled substance, to wit: CANNABIS, commonly known as marijuana, in an amount in excess of One-Hundred (100) Pounds in violation of Florida Statute 893.13(l)(a)2;”

We cannot see how this amended information would have changed the facts, or the defense, in the case at bar and the appellees would not have been prejudiced thereby. In such event technical defects are to be excused unless prejudice is shown. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), Lackos v. State, 339 So.2d 217 (Fla.1976). The statute the defendants were charged under was the same [§ 893.13(l)(a)(2) Fla.Stat.1977] and the amendment did not prejudice nor surprise the defendants. Nor was the original motion to amend filed on the morning of the trial, same being filed at least 30 days prior thereto.

Accordingly, we are of the view that the amendment to the information should have been permitted under Fla.R.Crim.P. 3.1400).

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . We assume, however, that the original information should have read Fla.Stat. 893.13(l)(a)2 in Count I and Fla.Stat. 893.13(l)(b) in Count II.


text:
    John Allen FREEMAN a/k/a Jerry Lee Parks, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1073.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Rehearing Denied June 15, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt and William M. Grodnick, Asst. Attys. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and NATHAN, JJ.
   PER CURIAM.

Reversed on authority of Willinsky v. State (Fla.1978), case no. 49,330, opinion filed April 5,1978.


author: HAVERFIELD, Chief Judge.

text:
    TOWN OF MEDLEY, a Municipal Corporation, Appellant, v. Leonard L. KIMBALL, Hilton R. Carr, Jr., and Herbert A. Warren, Appellees.
    No. 77-46.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.

      Stephen Lubow, Miami, for appellant.
    Herbert A. Warren, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   HAVERFIELD, Chief Judge.

Defendant, Town of Medley, appeals a $3,214 final judgment entered pursuant to a directed verdict for the plaintiff-attorneys in an action for breach of a contingency fee agreement.

The Town entered into a contingency fee agreement, which subsequently was amended, with the plaintiffs, Leonard Kimball and co-counsel Hilton Carr and Herbert Warren, to represent it in the prosecution of its claim for damages against Frank Solomon, a former Town attorney. The agreement, as amended, the subject of the present action, provided that plaintiffs as compensation for their services would receive 33V3% of the gross proceeds of recovery before verdict; 40% of the gross proceeds of recovery after verdict. On the day of trial, a settlement agreement was reached whereby Solomon would pay the Town $25,000 and execute a promissory note in favor of the Town in the sum of $85,000 payable in three annual installments. Upon receipt of the first two of Solomon’s payments, plaintiffs retained Vs thereof as their fee and forwarded the balance to the Town pursuant to the terms of the agreement. Solomon did not make the final payment on time and only remitted a portion thereof, leaving a balance of $9,502.56. Subsequently, plaintiffs filed suit on behalf of the Town seeking recovery of this balance. While the suit was pending, the Town dismissed the plaintiffs and retained new counsel who obtained a default judgment for $10,819.96 (which included a $1,100 attorney’s fee and interest) and eventually satisfaction of the judgment by Solomon. Plaintiffs then demanded the Town pay them $3,606.65 under the contingency fee agreement which plaintiffs contended entitled them to Vs of all the proceeds of the money represented by the promissory note. The Town refused arguing that plaintiffs were entitled under the agreement to Ms of the monies actually collected and inasmuch as they were discharged before collection of the remaining outstanding balance under the promissory note, they were only entitled to a reasonable attorney’s fee. Plaintiffs instituted the present breach of contract action. At the close of all the evidence, the trial court directed a verdict in plaintiffs’ favor and entered a judgment for $3,214.26. This appeal ensued.

The Town, in essence, is contending that the court erred in directing a verdict for plaintiffs because the contingency fee agreement is ambiguous and under the circumstances, plaintiffs are only entitled to a reasonable fee. We cannot agree.

In reviewing the agreement, we find the language to be clear, concise and unambiguous and the trial court properly exercised its duty in giving effect to the terms thereof. See Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla. 2d DCA 1963). The agreement clearly entitles plaintiffs to V3 of the gross proceeds of recovery before verdict. Recovery is defined therein as:

“. . . the total gross amount of any and all monies, property and compensation of any and every kind whatsoever realized or received by the client for his claim, whether realized as the result of settlement or litigation or otherwise; [Emphasis Supplied]

When Solomon and the Town reached a settlement on the first day of trial, plaintiffs, under the terms of the amended contingency fee agreement, then became entitled to Va of the gross amount of the settlement. Cf. Milton Kelner, P. A. v. 610 Lincoln Road, Inc., 328 So.2d 193, 196 (Fla. 1976). We therefore, must reject the Town’s contention that under the agreement, plaintiffs were entitled only to Vs of the money actually collected by virtue of the paragraph authorizing plaintiffs to deduct and retain their fee out of the proceeds of the final recovery and to remit the balance to the Town. That paragraph at most only determined a means of payment, not the actual total amount of compensation.

Affirmed.


text:
    Ivar BLACKER, Appellant, v. SHEARSON HAYDEN STONE, INC., etc., et al., Appellees.
    No. 77-123.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Rehearing Denied June 15, 1978.
    Cypen & Nevins, Miami Beach, for appellant.
    Paul, Landy, Beiley & Yacos, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final judgment for defendants [appellees] dismissing with prejudice the securities counts of a second amended complaint. We affirm.

Appellant filed his second amended complaint against appellees for damages based upon fraud, negligence, breach of contract and violations of state and federal securities laws. Upon appellees’ motion, the trial court dismissed with prejudice all of the securities counts and entered final judgment thereon in favor of appellees. From the final judgment, appellant appeals.

As stated by appellant in his brief, the crux of the second amended complaint and of this appeal centers around paragraph 15 of the second amended complaint. This paragraph reads as follows:

“15. The program presented by defendants to plaintiff by which defendant TIGUE purchased and sold commodities on a discretionary basis, said program being the Straddles, constituted a ‘security’ within the meaning of the Securities Act of 1933, Title 15 USC § 77b(l) and of § 517.02, Florida Statutes, in that plaintiff invested in a program relying solely on the efforts of defendants for his expected profit, plaintiff being only one of many investors who were offered and invested in defendant SHEARSON’S program relying on defendants’ expertise for their expected profits. The offer and sale of the Straddles was made not only to plaintiff, but also to numerous other offerees and purchasers whose investment objectives were often comparable or similar to those of plaintiff. Defendant SHEARSON would not have engaged in the business of Straddles as described herein unless same were offered to and purchased by a number of investors. Thus, defendant SHEARSON’S plan of business was dependent upon the offering and sale of comparable services to members of the public having investment objectives appropriate for Straddles. Accordingly, the success of defendant SHEARSON’S plan of operations was dependent on the participation in a common enterprise by persons having common goals. Hence, defendants offered and sold to plaintiff the opportunity to invest in a common enterprise with the expectation of profits to be generated solely through the efforts of defendants. The investment scheme offered and sold to plaintiff was therefore a ‘security’ in that it was an ‘investment contract’ and/or an ‘interest in or under a profit-sharing agreement or scheme’ and/or a participation in a device ‘commonly known as a security.’ ” [Emphasis added.]

Appellant contends that his second amended complaint stated a cause of action for violations of the state and federal securities laws.

Appellees contend that appellant’s second amended complaint did not state a cause of action for violations of the state and federal securities laws, because his commodities straddles account with appellees was not a security.

The dispositive question raised by this appeal is succinctly framed by the parties’ contentions, i. e., was appellant’s account with appellees a security under the state and federal securities laws. If the account was not a security under the state and federal securities laws, appellant’s second amended complaint (Counts I — IV) did not state a cause of action and, therefore, were properly dismissed by the trial court. We believe that the correct answer to this question has been set forth in Milnarik v. M-S Commodities, Inc., 457 F.2d 274 (7th Cir. 1972) [hereinafter cited as Milnarik ].

In Milnarik the court was called upon to determine whether a discretionary brokerage account, nearly identical to the one in the instant case, was a security covered by the federal securities laws. Judge Stevens [now Justice Stevens] writing for the court in Milnarik stated:

“[j]udicial analyses of the question whether particular investment contracts are ‘securities’ within the statutory definition have repeatedly stressed the significance of finding a common enterprise.” Id. at 276.
******
“We find the element of commonality absent here. Although the complaint does allege that Nelson entered into similar arrangements with other customers, the success or failure of those other contracts had no direct impact on the profitability of plaintiffs’ contract. Nelson’s various customers were represented by a common agent, but they were not joint participants in the same investment enterprise.” Id. at 276-77.
******
“We do not believe an investor who grants discretionary authority to his broker thereby joins the broker’s other customers in the kind of common enterprise that would convert the agency relationship into a statutory security.” Id. at 279.

Judge Stevens also quoted the following from the District Court’s opinion:

“ ‘In essence, this contract creates an agency-for-hire rather than constituting the sale of a unit of a larger enterprise. No matter how many different persons Nelson became an agent for under similar or even identical discretionary contracts, his relationship with each would remain as that of agent and principal. Each contract creating this relationship is unitary in nature and each will be a success or failure without regard to the others. Some may show a profit, some a loss, but they are independent of each other.’ ” Milnarik at 277 quoting Milnarik v. M-S Commodities, Inc., 320 F.Supp. 1149, 1151 (N.D.Ill.1970).

In resolving the question before us of whether appellant’s account with appellees was a security, we adopt the rationale of the Milnarik case and hold that the account was not a security under either our state or the federal securities laws. But cf. SEC v. Continental Commodities Corp., 497 F.2d 516 (5th Cir. 1974) (discretionary options account). See generally SEC v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). Accordingly, the final judgment appealed should be affirmed. We note that this determination does not leave appellant without a remedy. Although we do not comment upon their merit, appellant may pursue his other causes of action for fraud, negligence, and breach of contract, as set forth in the second amended complaint.

Affirmed.

      . Appellees in their brief offer the following helpful definition of a straddle:
      “A ‘straddle’ is neither a commodities future nor an option, but rather a peculiar two-step transaction involving commodities futures. Specifically, a straddle is a simultaneous purchase and sale of commodities contracts on two different commodities exchanges for different prices. For instance, if a client were to request a broker to purchase silver for May delivery on the Chicago Board of Trade Exchange and simultaneously order the broker to sell silver for May delivery on the Commodity Exchange, Inc., New York, after following these instructions, the broker could be said to have invested in a straddle for the client.”


text:
    AMERICAN WOOD PRODUCTS, INC., Appellant, v. WALTER E. HELLER & COMPANY SOUTHEAST, formerly known as Walter E. Heller & Company of Florida, Appellee.
    No. 77-425.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Rehearing Denied June 15, 1978.

      Nichols & Tatich, Orlando, for appellant.
    Friedman & Britton, Orlando, for appel-lee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a summary final judgment entered by the trial court on February 1,1977, in favor of appellee, defendant below. Appellant contends that, at the time the trial court granted the summary final judgment, certain genuine issues of material facts existed which precluded its proper entry. We disagree with appellant’s contention, and affirm the summary final judgment appealed.

About November 16, 1970, appellant and appellee entered into an agreement for certain financing arrangements with respect to accounts financing and inventory loans. Subsequently, this agreement was amended by four “letter agreements.” Thereafter, on January 13, 1976, appellant filed a complaint alleging that appellee charged, demanded, and collected interest from appellant at a rate in excess of that permitted under the laws of the State of Florida. Appellee filed an answer and affirmative defenses admitting all of the material allegations of the complaint, except those relating to the character of the amount of $27,-668 collected by appellee and appellant’s entitlement to attorney’s fees in connection with the action.

Appellee admitted in its answer that, as of September 30, 1975, appellant owed it the aggregate amount of $1,086,035.80 computed as follows:

Outstanding principal balance of indebtedness $1,072,831.80
Accrued interest through September 30, 1975 13.204.00
Total 1.086.035.80

In addition to this amount, appellee demanded and received from appellant, under protest, the amount of $27,668.

The agreement between appellant, as borrower, and appellee, as lender, provided that appellant would maintain a minimum loan balance of $150,000 until such time as the agreement terminated in accordance with its provisions on December 31, 1976. However, prior to this date, appellant voluntarily sought to terminate the agreement. Although the agreement made no provision for it, appellee demanded the payment of $27,668 from appellant as a condition for appellee’s acceptance of the proposed termination. On September 30, 1975, the agreement was terminated and appellant paid the demanded amount of $27,668. Appellee admits that this amount was calculated by applying the rate of interest set forth in the agreement to the minimum loan balance for the remainder of the original financing period specified in the agreement.

Appellant and appellee agree that the agreement was not usurious at its inception; however, appellant contends that the amount of $27,668 which it paid for the right to terminate the agreement constituted an usurious interest charge, i. e., a rate in excess of 15% per annum, in violation of Section 687.03, Florida Statutes (1975).

Appellee contends that the amount of $27,668 did not constitute a payment of interest, but instead constituted an amount due it as consideration for appellant’s voluntary termination of their agreement prior to its maturity.

The record reflects that the trial court, in granting appellee’s motion for summary final judgment, necessarily determined that, as a matter of law, appellant’s payment of the amount of $27,668 was consideration for the right to terminate the agreement and not the payment of interest under the agreement. We agree with the trial court’s characterization, and note that the transaction was the antithesis of a loan, i. e., putting an end to credit instead of giving it. Although we are unaware of any Florida authority directly on point, the majority of the other states which have considered similar questions have arrived at the same conclusion. See Northway Lanes v. Hackley Union National Bank & Trust Co., 464 F.2d 855 (6th Cir. 1972); Feldman v. Kings Highway Savings Bank, 303 N.Y. 675, 102 N.E.2d 835 (1951); Annot., 75 A.L.R.2d 1265 (1961); and 130 A.L.R. 73 (1941). Further, based on the facts of this case, we feel that the manner by which appellee computed the amount which it would charge appellant for the right to terminate their agreement does not affect its characterization as consideration for such right, rather than being characterized as additional interest and, therefore, becoming an usurious interest charge. The parties’ agreement contained no provision for a premature termination. As a result, appellee was lawfully entitled to exact a termination charge, here the amount of $27,668, as a condition for releasing appellant from their agreement.

Affirmed.