author: HATCHETT, Justice.

text:
    STATE of Florida, Appellant, v. Rudolph S. SAUNDERS, Appellee.
    No. 48438.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Robert L. Shevin, Atty. Gen., Charles Corees, Jr., Asst. Atty. Gen., E. J. Salcines, State Atty., and Robert H. Nutter, Asst. State Atty., for appellant.
    Rick B. Levinson, Levine, Freedman & Hirsch, Tampa, for appellee.
   HATCHETT, Justice.

On February 16,1974, an off-duty policeman sought to arrest one Stephens for a supposed violation of Section 877.03, Florida Statutes (1975). Stephens was selling newspapers in Tampa on the corner of Franklin and Polk Streets “confronting people on the street and appearing to hassle with them.” Appellee Saunders was accused by amended information of resisting Stephens’ arrest with violence, in violation of Section 843.01, Florida Statutes (1975). The trial court granted an untraversed motion to dismiss the charges against Saunders on the ground that the arrest of Stephens, which Saunders concededly resisted with force, was unlawful “in that it was predicated on an unconstitutional statute, to-wit: the Breach of Peace Statute, Florida Statute 877.03.” The prosecution took an appeal to the District Court of Appeal, Second District, and that court transferred the cause here. Because the trial court “initially and directly pass[ed] on the validity of a state statute,” Article V, Section 3(b)(1), Florida Constitution, we have jurisdiction.

We conclude that there was no probable cause to justify the arrest of Stephens for violation of Section 877.03, Florida Statutes, and affirm the trial court’s order of dismissal because the prosecution has urged no other lawful basis for the arrest. Unlike the trial court, however, we take the view that Section 877.03, as narrowed in a series of decisions including today’s, is not facially incompatible with the state or federal constitutions.

Before this Court had placed any gloss on Section 877.03, the question of the statute’s constitutionality was considered on petition for writ of habeas corpus in Severson v. Duff, 322 F.Supp. 4 (M.D.Fla.1970), and that court concluded that the language of Section 877.03, unnarrowed by judicial construction, “suffered] from the constitutional defect of vagueness” 322 F.Supp. at 8, and was also “unconstitutionally over-broad.” 322 F.Supp. at 10. When this Court disagreed, lower state courts found themselves “in a state court versus federal court bind,” State v. Migliaccio, 38 Fla.Supp. 47, 49 (17th Cir.), but “absent a controlling decision of the United States Supreme Court [generally felt] obligated to follow the controlling authorities of the Florida appellate courts.” Id. We are hopeful that our decision in this cause will alleviate any “state court versus federal court bind” that may exist with regard to Section 877.03.

In In re Fuller, 255 So.2d 1 (Fla.1971), this Court reversed an adjudication of delinquency based on Section 877.03. Fuller, who had just posted a sign on a classroom door, got into an argument when another juvenile ripped the sign off the door. The Court concluded that Fuller’s conduct and vulgar language fell outside the purview of Section 877.03 and, in reversing, “carefully delineated between a mere ‘angry altercation’ between two individuals and a ‘commotion’ which would have breached the public order.” Wiegand v. Seaver, 504 F.2d 303, 306 (5th Cir. 1974), cert. den. app. dam., 421 U.S. 924, 95 S.Ct. 1650, 44 L.Ed.2d 83 (1975). In line with In re Fuller, supra, other courts rejected expansive interpretations of Section 877.03. M. E. M. v. State, 277 So.2d 566 (Fla. 3d DCA 1973); Wertheimer v. State, 276 So.2d 67 (Fla. 3d DCA 1973); State v. Blocker, 39 Fla.Supp. 136 (Dade Cty. 1973) (statute does not forbid newspaper reporter’s seeking interview). The District Court of Appeal, Fourth District, reversed a conviction under Section 877.03, in a case in which the defendant repeatedly said to a police officer, “ ‘F_you.’ ” Phillips v. State, 314 So.2d 619, 620 (Fla. 4th DCA 1975). See also Scott v. State, 330 So.2d 220 (Fla. 4th DCA 1976).

This Court declared Section 877.03 constitutional for the second time in Bradshaw v. State, 286 So.2d 4 (Fla.1973). The decision in In re Fuller, supra, was distinguished on the ground that “although the words were similar, the time, place and circumstances were quite different,” 286 So.2d 8, and the conviction was upheld. But the appellants’ convictions were reversed in the consolidated cases of Gonzales v. Belle Glade and Smith and Sweet v. State, 287 So.2d 669 (Fla.1973), for insufficiency of the evidence:

All that appears from the record — taken in the light most favorable to the State and the City — is that Smith and Sweet participated in a protest march, that both made threatening comments to police officers, and that Gonzales was vocally dissatisfied with the service afforded her and her companions in an eating establishment. There was no evidence that Smith or Sweet struck or even touched a police officer, that they actually offered a physical threat to any officer, or that they violated any law. Likewise, there was no evidence of any wrongdoing by Gonzales with the possible exception of the utilization of an intemperate expletive or two. In neither case was there any evidence that the actions of any of the appellants were inore than annoying to those around them, and a violation of Fla.Stat. § 877.03, F.S.A., requires more than the creation of a mere annoyance. 287 So.2d at 670.

After this decision, if not before, it should have been clear that Section 877.03 did not outlaw selling newspapers, however enthusiastically.

The incident which gave rise to the present case antedates our most recent decision construing the statute, White v. State, 330 So.2d 3 (Fla.1976). In White we recognized that Section 877.03 required judicial narrowing in order to withstand a constitutional challenge on the grounds of over-breadth. Still more recently, we discussed the “[sjpecial rules of decision applicable] in cases where a statute makes speech punishable as a crime.” Spears v. State, 337 So.2d 977 (Fla.1976). We concluded that:

Statutes regulating speech must “punish only unprotected speech and not be susceptible of application to protected expression.” Gooding v. Wilson, 405 U.S. at 522, 92 S.Ct. at 1106, 31 L.Ed.2d at 414. Where a legislative enactment “is susceptible of application to protected speech, . [i]t is constitutionally overbroad and therefore is facially invalid.” Lewis v. New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 972, 39 L.Ed.2d 214, 220 (1974). Consistently with the United States Supreme Court’s decisions, nobody can be punished under a statute purporting to outlaw spoken words, if the statute would be unconstitutional as applied to anybody. “This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights.” Coates v. City of Cincinnati, 402 U.S. at 620, 91 S.Ct. at 1691, 29 L.Ed.2d at 221.

In light of these considerations, we now limit the application of Section 877.03 so that it shall hereafter only apply either to words which “by their very utterance . inflict injury or tend to incite an immediate breach of the peace,” White v. State, 330 So.2d at 7; see Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others. We construe the statute so that no words except “fighting words” or words like shouts of “fire” in a crowded theatre fall within its proscription, in order to avoid the constitutional problem of overbreadth, and “the danger that a citizen will be punished as a criminal for exercising his right of free speech.” Spears v. State, supra, 337 So.2d at 980. With these two exceptions, Section 877.03 should not be read to proscribe the use of language in any fashion whatsoever. To this extent, we modify our previous decisions construing the statute.

We have taken pains to delineate precisely which words are proscribed because “the mere existence of statutes . purporting to criminalize protected expression operates as a deterrent to the exercise of the rights of free expression.” Id. There is also a problem of vagueness with respect to which acts are proscribed by Section 877.03, see Annot., 12 A.L.R.3d 1448 (1967), but this vagueness issue is an abstract question which does not now require decision. Because we have concluded that Stephens’ conduct falls outside the statutory prohibition, there is no occasion in the present case to resolve the question whether the statute would have been vague if it had proscribed his conduct. If events require, we will continue to decide on a case by case basis whether Section 877.03, as construed, gives adequate notice to any citizen whom the authorities prosecute under the statute.

The judgment is affirmed.

OVERTON, C. J., and BOYD, ENGLAND and SUNDBERG, JJ., concur.

ROBERTS and ADKINS, JJ., concur in result only.

      . Section 877.03 provides as follows:
      Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

      .On account of the ban against ex post facto laws, see Article 1, Section 10, and Article 10, Section 9, Florida Constitution; Article 1, Section 9, Constitution of the United States, we are concerned here only with the law existing at the time of the alleged offense. At that time, Florida law permitted citizens forcibly to resist unlawful arrests. Alday v. State, 57 So.2d 333 (Fla.1952); Gay v. State, 147 Fla. 690, 3 So.2d 514 (1941); Burgess v. State, 313 So.2d 479 (Fla. 2d DCA 1975) merits not reached 326 So.2d 441 (Fla.1976); English v. State, 293 So.2d 105 (Fla. 1st DCA 1974); Smith v. State, 292 So.2d 69 (Fla. 3rd DCA 1974) cert. den. 297 So.2d 570 (Fla.1974); Kishel v. State, 287 So.2d 414 (Fla. 4th DCA 1974). The rule was stated in Phillips v. State, 314 So.2d 619, 620 (Fla. 4th DCA 1975), as follows:
      [I]f a person . . is to be convicted of resisting [a warrantless] arrest with violence, the state must prove that the officer was attempting to make an arrest which he had lawful authority to make without a warrant. Licata v. State, 156 Fla. 692, 24 So.2d 98 (1945); Kirby v. State, 217 So.2d 619 (4th DCA Fla.1969). See Jones v. State, 293 So.2d 116 (3d DCA Fla. 1974); Smith v. State, 292 So.2d 69 (3d DCA Fla. 1974); Rosenberg v. State, 264 So.2d 68 (4th DCA Fla. 1972); F.S. 843.01 (1973).
      After the episode which gave rise to these proceedings, the legislature enacted Ch. 74-383 § 13, Laws of Florida, now codified as Section 776.051 and effective July 1, 1975. Section 776.051(1) provides:
      A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.
      Pursuant to Ch. 74-383 § 1, Laws of Florida, codified as Section 775.011, Florida Statutes (1975), the provisions of Section 776.051 are not applicable in the present case.

      . In State v. Magee, 259 So.2d 139 (Fla.1972), this Court affirmed a conviction under Section 877.03 for fornication in the front seat of an automobile and “h[e]ld Fla.Stat. § 877.03, F.S.A., to be constitutional.” 259 So.2d at 141. But cf. E. G. v. State, 326 So.2d 445 (Fla. 1st DCA 1976) (disorderly conduct not a lesser included offense of prostitution where “appellant allegedly engaged in prostitution in a quiet and orderly manner.” at 446). In State ex rel. Springer v. Smith, 189 So.2d 846 (Fla. 4th DCA 1966), the City of Dania had enacted an ordinance incorporating by reference all misdemeanors under state law. In this indirect way, Section 877.03 was brought to bear against a citizen “charged [under the ordinance] with disorderly conduct and with possessing and showing, obscene motion picture films." 189 So.2d at 847. See also Moffett v. State, 340 So.2d 1155 (Fla.1976).

      . A delinquent child is defined as “a child who commits a violation of law.” Section 39.-01(12), Florida Statutes (1975).

      . The first time was in State v. Magee, 259 So.2d 139 (Fla.1972). See ante, p. 642 n. 3.

      . The United States Court of Appeals for the Fifth Circuit concluded that Section 877.03 was constitutionally overbroad even as narrowed by the decisions in In re Fuller, 255 So.2d 1 (Fla.1971), and Gonzales v. City of Belle Glade, 287 So.2d 669 (Fla.1973):
      Nothing in the construction by the state supreme court of F.S. 877.03 limits the application of the statute to those disturbances caused by a narrow class of unprotected speech — “fighting words,” Gooding v. Wilson, 405 U.S. 518, 523, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)—as opposed to those caused by controversial ideas. While the narrowing construction is thus remedial, the Florida courts have not construed F.S. 877.03 “so as to avoid all constitutional difficulties.” United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1405, 28 L.Ed.2d 822 (1971).

        Wiegand v. Seaver, 504 F.2d at 307.
      Subsequently a different panel of the Fifth Circuit refrained from reaching the merits in a habeas proceeding because they were persuaded “that Florida may change its position with respect to the statute.” Glenn v. Askew, 513 F.2d 61, 62 (5th Cir. 1975).

      .We followed White in State v. Dwyer, 332 So.2d 333 (Fla.1976).

      . Without exception, Section 877.03 should not be read to proscribe the exhibition of motion picture films.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James Attison WHITTINGTON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 48735.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, Tallahassee, for petitioner.

      Robert L. Shevin, Atty. Gen., and Raymond L. Marky and Wallace E. Allbritton, Asst. Attys. Gen., for respondent.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Fla.App. Rule 4.5, subd. c(6).

After hearing argument, we are of the opinion that the writ of certiorari heretofore granted in this cause should now be discharged. Accordingly, the writ of certio-rari is discharged.

OVERTON, C. J., and ENGLAND, SUNDBERG, HATCHETT and DREW (Retired), JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Garrett D. QUICK, Respondent.
    No. 49045.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Lealand L. Lovering, Rockledge, and Robert J. Telfer, Jr., Titusville, Bar Counsel, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Ben H. Ervin, Tallahassee, for respondent.
   PER CURIAM.

In grievance proceedings, the referee found from overwhelming evidence that Mr. Quick failed on four occasions to place the proceeds of sales of clients’ real property in a separate trust account. Some $23,-000.00 was not returned to clients and is still unaccounted for. This- constitutes a flagrant violation of Integration Rule 11-02(4).

On account of this misconduct, Garrett D. Quick is hereby disbarred, and costs -in the amount of $1,016.05 are hereby taxed against him.

OVERTON, C. J., and BOYD, ENGLAND, HATCHETT and DREW (Retired), JJ., concur.


text:
    OVERSEAS TRANSPORTATION CO., INC., Petitioner, v. William T. MAYO et al., Respondents.
    No. 49122.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Norman J. Bolinger of Schwartz, Bolinger & Peterson, for petitioner.
    Prentice P. Pruitt, Chief Staff Counsel and Norman H. Horton, Jr., Staff Counsel, Tallahassee, for respondent.

      Gregory A. Presnell of Akerman, Senter-fitt & Eidson, Orlando, for Alternan Transport Lines, Inc., intervening respondent.
   PER CURIAM.

The petition for writ of certiorari is denied.

OVERTON, C. J., ENGLAND, SUND-BERG, HATCHETT and DREW (Retired), JJ., concur.


text:
    Sheldon M. KRUPNICK, Petitioner, v. William T. MAYO et al., Respondents.
    No. 49129.
    Supreme Court of Florida.
    Nov. 12, 1976.
    David B. Erwin and Alan N. Berg of Erwin & Berg, Tallahassee, for petitioner.
    Prentice P. Pruitt and Cynthia S. Joa-chim, Tallahassee, for respondents.
    Norman J. Bolinger of Schwartz, Bolinger & Peterson, Jacksonville, for Alterman Transport Lines, Inc., Gator Freightways, Inc., Overseas Transportation Co., Inc., and South Florida Freightways, Inc., interve-nor-respondents.
   PER CURIAM.

Petition denied.

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


author: BY THE COURT:

text:
    Petition of the ATTORNEY GENERAL AND OTHERS TO AMEND ARTICLE XVIII OF the INTEGRATION RULE OF THE FLORIDA BAR.
    No. 46652-C.
    Supreme Court of Florida.
    Nov. 18, 1976.
    Robert L. Shevin, Atty. Gen., and James D. Whisenand and William C. Sherrill, Jr., Asst. Attys. Gen., for petitioner.
    Richard C. McFarlain, Asst. Director, and William B. Wiley and John A. Weiss, Asst. Staff Counsels, Tallahassee, for The Florida Bar.
   BY THE COURT:

Upon the petition of the Attorney General and 25 other members of The Florida Bar, presented in accordance with Article XIII of the Integration Rule of The Florida Bar, we are asked to amend Article XVIII, Section II to permit those participating in the Law School Civil and Criminal Practice Program to appear on the behalf of the state in civil as well as criminal matters. The Florida Bar has filed a memorandum in opposition to the amendment, suggesting that our decision should await the outcome of a proposed poll of judges as to the effectiveness of the entire “legal intern” program.

Despite the Bar’s suggestion that we defer a decision, we conclude that the petition should now be granted, without prejudice to a later filing of proposed changes the need for which are brought to light by the Bar’s impending poll. In the fraternal tradition of the legal profession, it has been deemed the duty of experienced practitioners to make available to law students and neophyte lawyers the practical educational opportunities necessary to make them proficient in the practice of law. Classical legal education has of necessity been limited to academic training. However, with the assistance of the organized bar, law schools recently are offering increasing programs for clinical training of law students. It was in response to this perceived need for providing practical legal training that the law school Civil and Criminal Practice Program was recommended by The Florida Bar and adopted by this Court. The response of The Florida Bar to the petition in the instant proceeding advises that an evaluation of the Practice Program is currently being undertaken. Periodic evaluation of any Bar program should not be discouraged. However, stultification of the program during the pendency of such a reevaluation does not appear called for, particularly where the program has met with apparent success and there is no suggestion of any patent deficiencies. There is no allegation that, in fact, the public has been disserved, and all indications are that the educational aspects of the program have been highly successful. Any suggestion of potential adverse economic impact on the profession clearly seems to be outweighed by the educational opportunities afforded to the participants.

Furthermore, the order entered today leaves open the opportunity to revisit the entire program if the Bar’s reevaluation results reflect abuses.

Accordingly, Article XVIII, Section II is amended to renumber existing paragraphs “C” and “D” as “D” and “E”, respectively, and to add a new paragraph “C” to read:

“C. An eligible law student may also appear in any court or before any administrative tribunal in any civil matter on behalf of the state, state officers, or state agencies, with the written approval of the attorney representing the state, state officer, or state agency. The attorney representing the state, state officer, or state agency shall supervise the law student and shall be personally present when required by the court or administrative tribunal, which shall determine the extent of the law student’s participation in the proceeding.”

Pursuant to the inherent powers of the Court under Article V, Section 15 of the Florida Constitution, we also amend Article XVIII, Section VIII of the Integration Rule of The Florida Bar to establish procedures for obtaining the Court’s approval of legal aid organizations authorized to utilize graduates of law school practice programs. A new paragraph “B” is added to this Section to read:

“B. A legal aid organization seeking approval from the Supreme Court for the purposes of this Article shall file a petition with the clerk of the Court certifying that it is a nonprofit organization and reciting with specificity:
(1) The structure of the organization and whether it accepts funds from its clients;
(2) The major sources of funds used by the organization;
(3) The criteria used to determine potential clients’ eligibility for legal services performed by the organization;
(4) The types of legal and non-legal services performed by the organization; and
(5) The names of all members of The Florida Bar who are employed by the organization or who regularly perform legal work for the organization.
Legal aid organizations approved on the effective date of this order need not reapply for approval, but all such organizations are under a continuing duty to notify the Court promptly of any significant modification to its structure or source of funds.”

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ROBERTS and BOYD, JJ., dissent.


author: SUNDBERG, Justice.

text:
    James WADE, Petitioner, v. STATE of Florida, Respondent.
    No. 46982.
    Supreme Court of Florida.
    Nov. 18, 1976.
    Phillip A. Hubbart, Public Defender, and Roy S. Wood, Jr. and Paul Morris, Asst. Public Defenders, for petitioner.
    Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State Atty., and Milton Robbins and John H. Lipinski, Asst. State Attys., for respondent.
   SUNDBERG, Justice.

This case is on certiorari from the Third District Court of Appeal. Our jurisdiction vests under Article V, Section 3(b)(3), Florida Constitution.

Petitioner was involved in a gun fight in the parking lot of a nightclub in Miami, Florida. A bullet fired by him fatally wounded a man who allegedly was among those shooting at him.

.On January 4, 1972, petitioner was charged by information in the Circuit Court of the Eleventh Judicial Circuit with second degree murder. Before his trial, he demanded discovery of his automobile to demonstrate that there were bullet holes in it which would tend to establish a plea of self-defense. The State was unable to produce the automobile, which had been impounded by the municipal police authority and sold at public auction. Petitioner moved to dismiss the charges. Finding that the automobile was material and critical to the defense, the trial judge ordered it produced for inspection; upon the State’s failure to produce such automobile, the information was dismissed. The order of dismissal was filed on April 9, 1974, and recorded on April 12, 1974.

On May 10, 1974, the respondent State filed a notice of appeal, seeking review in the District Court of Appeal, Third District, of the order granting the motion to dismiss. The District Court reversed the trial court’s order of dismissal. State v. Wade, 305 So.2d 851 (Fla. 3d DCA 1974).

After denial of his petition for rehearing, petitioner filed in this Court a petition for writ of certiorari on February 27, 1975. Wade subsequently filed a “Motion to Relinquish Jurisdiction to the District Court of Appeal, Third District,” arguing that that court had lacked jurisdiction to enter its order of reversal because the State’s notice of appeal had been untimely filed. The Court denied this motion but agreed to consider the jurisdictional argument as an additional ground for granting the petition for writ of certiorari. On February 6,1976, this Court entered its order allowing certio-rari because of conflict with State v. Armstrong, 312 So.2d 508 (Fla. 3d DCA 1975), cert. denied 327 So.2d 34 (Fla.1976). We have dispensed with oral argument pursuant to Rule 3.10(e), F.A.R.

In the consolidated cases considered in Armstrong, supra, the Third District Court of Appeal agreed with the defendant-appellees and defendant-respondent that the State’s respective appeals and petition for writ of certiorari were untimely because they were not filed within 30 days of rendition of the orders. The court further held:

“Appeals in criminal cases must be prosecuted in accordance with part VI of the Florida Appellate Rules, and with such provisions of other parts of the Appellate Rules as are not inconsistent with the provisions of part VI. Rule 6.1, Florida Appellate Rules. The time for filing a notice of appeal is governed by Rule 6.3, Florida Appellate Rules, which provides that the appeal may be taken within 30 days from the day the order is entered, or prior to trial, whichever is sooner. The term ‘entered’ in the context of the Criminal Appeals Section of the Florida Appellate Rules has been held to mean the same as ‘rendered’ as defined in Rule 1.3, Florida Appellate Rules. State v. Shedaker, Fla.App.1966, 190 So.2d 429; State ex rel. Faircloth v. Cross, Fla.1970, 238 So.2d 81; White v. State, Fla.App.1972, 267 So.2d 360.”
Id. at 509.

Rule 1.3, F.A.R., provides:

“ ‘Rendition’ of a judgment, decision, order or decree means that it has been reduced to writing, signed and made a matter of record, or if recording is not required then filed. A paper is deemed to be recorded when filed with the clerk and assigned a book and page number. .” (Emphasis supplied)

Because it was not necessary that the order issued by the trial judge be recorded, the time for entry of a notice of appeal ran from the date the order was filed, i. e., April 9, 1974. Thus the State’s notice of appeal, entered as it was on May 10, 1974, was not timely filed.

While our decision may seem unduly harsh to the interests of the State, we are mindful of the constitutional issue present here, as described by the District Court in Armstrong, supra, at page 510:

“It would be a denial of the right to procedural due process to permit the delay between the filing of an order and the date of its recordation to extend the time for the State to appeal such order, except any order required to be recorded by statute or rule. It would be tantamount to allowing the clerk of the circuit court, a ministerial office, to govern and enlarge the time for the taking of an appeal in derogation of the exclusive rule-making authority which has been delegated to the Florida Supreme Court.” (Footnote omitted)

Accordingly, the writ of certiorari is granted, and the opinion of the District Court of Appeal is quashed with instructions to remand the cause to the circuit court for reinstatement of the order of dismissal.

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

      . The Florida Rules of Criminal Procedure specify that the verdict (see Fla.R.Cr.P. 3.440, 3.570) and judgments of guilty or not guilty (see Fla.R.Cr.P. 3.670, 3.830, and 3.840) must be recorded in criminal cases. In addition, § 28.29, Fla.Stat. (1975), which describes the duties of the clerk of the circuit court, provides that orders of dismissal and final judgment of such courts in civil actions shall be recorded in official records and that other orders shall be recorded only on written direction of the court.


author: ROBERTS, Justice.

text:
    Richard L. K. FAIRCLOTH, Petitioner, v. Barbara Hall FAIRCLOTH, Respondent.
    No. 48368.
    Supreme Court of Florida.
    Nov. 18, 1976.
    John S. Winnie of Winnie, Winnie & Uh-rig, Gainesville, for petitioner.
    Peter Enwall of Enwall & Silverman, Gainesville, for respondent.
   ROBERTS, Justice.

We have for review by petition for certio-rari granted the decision of the District Court of Appeal, First District, in Faircloth v. Faircloth, reported at 321 So.2d 87 (Fla. App. 1, 1975), which conflicts with this Court’s decision in State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936), and the decision of the District Court of Appeal, Third District, in Ratner v. Ratner, 297 So.2d 344 (Fla.App. 3, 1974), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

The final judgment of dissolution of marriage between respondent and petitioner ordered that petitioner pay monthly child support of $200, one-half of the mortgage payments, taxes and assessments on the marital home, and provide maintenance thereof, that he pay lump sum alimony in the amount of $2,070.79 over an 18-month period together with attorney’s fees of $1,500 to be paid in 12 monthly installments. Upon appeal, this final judgment was affirmed.

Subsequently, a petition and motion for adjudging petitioner in contempt of court for failure to abide by the final judgment of marriage dissolution was filed. Contempt hearing was held on September 30, 1975 (22V2 months after final judgment of dissolution) at which evidence was adduced showing that none of the lump sum alimony had been paid nor had appellant made any contribution toward the mortgage, taxes, assessments or maintenance of the marital home; that petitioner was $930 in arrears in child support payments and had paid nothing on attorney’s fees; that petitioner conveyed his undivided one-half interest in the marital home to a third person putting it beyond reach for satisfying his obligations under the final judgment. Furthermore, appellant had made no attempt to secure modification of the final judgment.

The trial court entered an order adjudging petitioner to be in contempt and stated in pertinent part:

“1. Respondent, Richard L. K. Fair-cloth, is in willful contempt of this Court for his failure to abide by the Final Judgment of Marriage Dissolution in that he is in arrears in certain financial obligations pursuant to that Final Judgment in excess of Four Thousand Three Hundred Dollars ($4,300.00).
“2. This Court, therefore, finds the Respondent in said willful contempt; and as punishment therefore, sentences him to the full term and period of five (5) months and twenty-nine (29) days in the Alachua County Adult Detention Center; PROVIDED, HOWEVER, commitment shall be withheld for ten (10) days and the Respondent may continue at liberty and PROVIDED, FURTHER, that he may purge himself at any time of said contempt by paying the said sum of $4,300.00.” (Emphasis supplied.)

The judgment of contempt was appealed to the District Court. Inter alia, petitioner therein argued that the trial court erred in finding him in contempt without making an express finding that petitioner had the present ability to pay the $4,300 required. The District Court affirmed relative to the issues raised on certiorari to this Court and found:

“Appellant has cited no authority and we know of none requiring appointment of counsel for an indigent charged with civil contempt. .
“Appellant next contends that a contempt commitment for failure to obey a court order must reveal on its face an affirmative finding that the contemnor had the ability to obey the order or that his inability was brought upon himself due to his own fault. He states that the court made no evidentiary finding regarding his ability to pay, ignored his assertions that he had no money or assets, and ignored his offer to bring in financial records. Appellee contends that once she established the arrearage, it then became appellant’s burden to prove that he was unable to pay through circumstances beyond his control (citing Naster v. Naster, Fla., 163 So.2d 264); that appellant’s bare assertions that he was unable to pay were insufficient; that while appellant offered to produce financial records, he did not bring any to the hearing and produced no evidence to substantiate his claims. We agree.
* * * * * *
“In the case sub judice, although the record may not show that appellant has the present ability to immediately pay the full amount of the arrearage, the final judgment, which was appealed and affirmed, stands inviolate that he had the ability to comply with its requirements at the time it was entered. In addition, he has made no evidentiary showing of a subsequent inability to comply with it nor has he shown that any inability which he may have had was not caused by his own neglect or misconduct. To the contrary, the record shows otherwise — that he disposed of his V2 interest in the marital home.”

We disagree with the District Court of Appeal, First District, insofar as it has determined that the trial court may forgo an express finding that petitioner had the present ability to comply with the order of the trial court. We hold a trial judge must make an affirmative finding that either (1) the petitioner presently has the ability to comply with the order and willfully refuses to do so, or (2) that the petitioner previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.

This Court expressly stated in State ex rel. Trezevant v. McLeod, supra, as follows:

“Under the most respectable authority on contempt that we have been able to find, a ‘process’ contempt commitment for refusing to obey an order of court must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such finding must be made to appear on the face of the order of commitment, else it is void. Ex parte Cohen, 6 Cal. 318; Repalje on Contempt, par. 129. The order here involved is not an order of that nature.”

In Ratner v. Ratner, 297 So.2d 344 (Fla. App. 3, 1974), relying on this Court’s decision in Trezvant, supra, the District Court of Appeal, Third District, explicated:

“It is well established that a contempt order for refusing to obey an order of the court must be based on an affirmative finding that it is within the power of the defendant to obey the order and such finding must be made to appear on the face of the order of commitment, else it is void. State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936). No such finding of financial ability of the appellant to pay appears on the face of the order in the case sub judice and thus, it is void.”

We approve the following logic and reasoning of Judge Smith in his cogent dissent to the decision here under review concerning the burden of proof and intentional or neglectful acts by the defaulting party to avoid compliance with the court order:

“We do not imprison for debt. Art. I, § 11, Fla.Const. Therefore, a finding that the debtor ordered to pay is able to pay and willfully refuses to do so is the touchstone of the proceeding: the essential fact, found to be a fact, which validates the process. Without that finding, aberrant judicial power might soon punish for debt alone, and that without the benefit of specific criminal charges, the assistance of counsel, trial by jury or other benefits of due process in a criminal case. The absence of such a finding, therefore, should not be easily tolerated. That there was evidence in the record on which the chancellor might have predicated such a finding does not supply the finding itself. If we are to abstain from appellate trials in deference to the chancellor’s superior ability to find the facts, we must insist, at least in these cases, that his findings be made explicit.
“This is not to say that it was the chancellor’s responsibility, or Ms. Fair-cloth’s, to cast about for evidence that the defaulting Mr. Faircloth secretly has funds which he on oath declares he does not have. The burden is upon the party in default to prove not only that he is unable to comply with the court’s present order to pay but also that his present inability is due not to his fault or neglect but rather to circumstances beyond his control which intervened since the final decree ordering him to pay. Yandell v. Yandell, 160 Fla. 164, 33 So.2d 869 (Fla.1948); Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939); Naster v. Naster, 151 So.2d 313 (Fla.App. 2nd, 1963); cert. disch. 163 So.2d 264 (Fla.1964). This burden of proof is cast upon him not by mere presumption of law, which vanishes upon the introduction of any evidence to the contrary [Locke v. Stuart, 113 So.2d 402 (Fla. App. 1st 1959); Leonetti v. Boone, 74 So.2d 551 (Fla.1954)], but by the court’s decree which created the obligation to pay. That decree, long since final and therefore invulnerable, is itself a finding that, as of the moment of its entry, Mr. Faircloth had the ability to make the required payments. Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939). As against such a decree, he will not be heard to say that he could not comply when the decree was entered, (emphasis supplied.)
“Upon the affected party’s failure to discharge his burden of proving that he is disabled to pay by reason of intervening factors not due to his own neglect or fault, the chancellor may find as a fact that he continues to be able to pay, as was originally decreed, or that any disability was self-induced. And on that finding the chancellor may order the defaulting party to pay or be imprisoned for his contemptuous refusal to do so.”

Having considered the other points raised by petitioner relative to appointment of counsel, we find them to be without merit.

For the reasons expressed the decision of the District Court is quashed and the cause remanded with directions to remand to the trial court to make such affirmative finding of ability if supported by the record or otherwise vacate the order of contempt.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and SUNDBERG, JJ., concur.


author: BOYD, Judge.

text:
    Charles E. MILLER, etc., Petitioner, v. Earle BENNETT, etc., et al., Respondents.
    No. 48694.
    Supreme Court of Florida.
    Nov. 18, 1976.
    Robert L. Cowles, of Cowles, Coker & Myers, Jacksonville, for petitioner.
    Marion R. Shepard, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for respondents.
   BOYD, Judge.

We issued a writ of certiorari because the decision of the District Court of Appeal, First District, reported at 323 So.2d 710 conflicted with other decisions of Florida appellate courts. In the meantime we rendered an opinion in Hanley v. Liberty Mutual Ins. Co., 334 So.2d 11 (Fla.1976), which disposes of the issue in this case in favor of the District Court decision.

Accordingly, the writ is discharged and the petition for certiorari is denied.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    Myrtle FLOYD, Petitioner, v. Verna Lee WALLACE, Respondent.
    No. 48901.
    Supreme Court of Florida.
    Nov. 18, 1976.

      Joseph A. Scarlett, De Land, for petitioner.
    Frank D. Newman of Newman & Peterson, De Land, for respondent.
   SUNDBERG, Justice.

This case is before us on petition for writ of certiorari to the District Court of Appeal, First District. We entered our order allowing certiorari and dispensing with oral argument pursuant to Rule 3.10e, F.A.R. Our jurisdiction vests under Article V, Section 3(b)(3), Florida Constitution, because of conflict between the District Court’s decision, reported at 324 So.2d 723, and Izlar v. Slyke, 94 Fla. 1218, 115 So. 516 (1928) and Hull v. Burr, 62 Fla. 499, 56 So. 673 (1911).

On June 14, 1974, respondent Wallace filed suit to rescind and cancel a quitclaim deed and to have a diamond ring returned. Four days later, the complaint was served on the petitioner, Myrtle Floyd. Two days after that, on June 20, 1974, plaintiff-respondent Verna Lee Wallace died. Four days later, her attorney filed and served notice of lis pendens.

On November 23, 1974, some 156 days after service of summons, counsel for respondent moved for default, which the trial judge entered. Thereafter respondent’s counsel filed a suggestion of death and motion for substitution of personal representative as party plaintiff. Plaintiff-respondent’s counsel moved for final judgment, which was granted on February 14, 1975, and recorded five days later. This final default judgment ordered rescission of the deed, return of the ring, and payment of costs.

The First District Court of Appeal affirmed the judgment of the trial court per curiam without opinion on October 30,1975. Rehearing was denied on January 16, 1976.

After examining the briefs submitted by the parties and studying the authorities cited therein, we have concluded that the petition for writ of certiorari should be granted. The operative factors are that the death of the plaintiff occurred after the complaint was filed but before entry of the default and that the suggestion of death and substitution was filed after default was entered but before final judgment on default. Thus it appears that all the real parties in interest were not present, either actually or constructively, before the court at the time default was entered. This result directly conflicts with this Court’s decision in Hull v. Burr, supra. In Hull, a trustee in bankruptcy filed suit to enforce an equitable right to certain realty. The defendants argued that the suit should be dismissed because the plaintiff had resigned as trustee. Nevertheless, the judge entered final judgment for the plaintiff. This Court reversed, holding that the trial court was bound to determine whether the proper parties were before it prior to proceeding any further.

The other case with which the District Court decision conflicts, Izlar v. Slyke, supra, involved a suit to quiet title in which a default and final decree were entered for failure to appear. Plaintiff sought to vacate the decree to correct some errors; this was done in a second final decree. More than 30 days later, the children and heirs of the defendant filed to vacate and intervene, attacking service and alleging that one defendant, their mother, had been dead many years and the other, their father, was dead at the time the second decree was entered. Thereupon, the lower court vacated the second decree, and this Court affirmed, holding that the death of an indispensable party before a decree pro confesso or before a final decree abates the action, which must be revived by bringing in a legal representative.

Despite their age, Hull and Izlar enunciate the correct rule of law in this area. The instant cause of action abated upon the death of Verna Lee Wallace, an indispensable party, and the trial court erred in adjudicating the rights of the parties without having all of them actually or constructively before it. Respondent’s counsel should not have been permitted to proceed on behalf of a deceased plaintiff without first complying with the substitution provision of Rule 1.260(a)(1), Fla.R.Civ.P.

Accordingly, the petition for writ of cer-tiorari is granted, the judgment of the District Court of Appeal is quashed, and the cause is remanded to the Circuit Court in and for Volusia County with directions to vacate the final judgment of default entered against petitioner and for further proceedings not inconsistent herewith.

■ ROBERTS, ADKINS and HATCHETT, JJ., concur.

OVERTON, C. J., dissents.

      . Rule 1.260, Fla.R.Civ.P., reads in pertinent part as follows:

        “(a) Death.

      “(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in Rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.”


text:
    MISAL INDUSTRIES and Allstate Insurance Company, Petitioners, v. Maria HARTMAN and Industrial Relations Commission, Respondents.
    No. 48941.
    Supreme Court of Florida.
    Nov. 18, 1976.
    Charles Desmond Crowley, Fort Lauder-dale, for petitioners.
    Edward Schroll, Miami, for respondents.
   PER CURIAM.

We have for review by petition for writ of certiorari an order of the Industrial Relations Commission reversing a decision of a Judge of Industrial Claims on the sole basis that it was not entered within the thirty-day period specified in Section 440.25(3)(b), Florida Statutes.

Since the entry of the Commission’s order in this case, we have decided Scottie-Craft Boat Corp. v. Smith, Fla., 336 So.2d 1150, and Miller v. Oolite Industries, Inc., Fla., 336 So.2d 1152, opinions filed July 30, 1976. On the authority of those decisions, we now grant the petition in the instant ease, quash the order of the Industrial Relations Commission, and remand to the Commission for a determination whether on the facts of this case a trial de novo before a Judge of Industrial Claims is necessary.

It is so ordered.

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


text:
    Stanley Anthony LEVITZ, Appellant, v. STATE of Florida, Appellee.
    No. 49242.
    Supreme Court of Florida.
    Nov. 18, 1976.

      Rex Ryland, Jr., Coconut Grove, for appellant.
    Robert L. Shevin, Atty. Gen., and Donna H. Stinson, Asst. Atty. Gen., for appellee.
   ROBERTS, Justice.

This cause is before us on direct appeal to review the judgment of the County Court in and for Dade County which inherently passes on the constitutionality of Section 318.14(5), Florida Statutes. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution. Cf. Demko’s Gold Coast Trailer Park v. Palm Beach County, 218 So.2d 745 (Fla.1969), Ogle v. Pepin, 273 So.2d 391 (Fla.1973).

On November 6, 1975, appellant was charged with unlawful speed in violation of Section 316.181, Florida Statutes, was furnished a copy of the summons and was given an instruction sheet entitled “Notification To Individual Charged With Traffic Infraction” which notified appellant that he could either comply with Section 318.14(4), Florida Statutes, or Section 318.14(5), Florida Statutes, that is to say he could pay the $25.00 fine or he could request a hearing and be subject to a penalty not to exceed $500.00.

Appellant filed a motion for declaration of the unconstitutionality of Section 318.-14(5), Florida Statutes, on the ground that it subjected him to a greater penalty when he exercised his right to confront witnesses against him. This motion was denied by the County Court.

After hearing, he was found guilty of the charge of speeding and fined $25.00 plus $5.00 plus $1.00 plus $1.00, the cost of the proceedings.

Section 318.14(5), Florida Statutes, provides:

“Any person electing to appear before the designated official or who is required so to appear shall be deemed to have waived his right to the civil penalty provisions of § 318.18. The official, after a hearing, shall make a determination as to whether an infraction has been committed. If the commission of an infraction has been proven, the official may impose a civil penalty not to exceed $500 or require attendance at a driver improvement school, or both.”

We cannot agree with appellant that the challenged statute violates his constitutional rights to due process and equal protection of the law.

By Chapter 318, the Legislature sought to decriminalize certain violations of Chapters 316, 325, part II, 339, 239 and 340, to facilitate implementation of a more uniform and expeditious system for the disposition of traffic infractions. See Section 318.12, Florida Statutes. Pursuant to the provisions of Section 318.14, Florida Statutes, one charged for any infraction enumerated therein may either pay the civil penalty established by Section 318.18, Florida Statutes, or request a full hearing to contest the citation. Chapter 318, Florida Statutes, does not deprive appellant of his due process right to a full and fair hearing but rather avails him of an alternative more expedient method of complying with the law by merely paying a previously statutorily determined fine.

Appellee, State, contends that in effect Chapter 318.14, Florida Statutes, provides for a type of plea bargaining, a principle not only upheld but also encouraged by the Courts. As was stated by the Second District Court of Appeal in Chambers v. State, 293 So.2d 752 (Fla.App. 2, 1974), for the trial judge to impose a greater sentence after trial than was agreed upon in a plea bargaining agreement if appellant would plead guilty did not penalize appellant for his election to exercise his constitutional right to a jury trial. Pursuant to the challenged statute, there is no question as to the terms of the agreement, if one pays the $25.00 fine he will be deemed to have complied with the law.

If one pleads not guilty and requests a hearing under Chapter 318, Florida Statutes, at the hearing the commission of the charged infraction must be proved beyond a reasonable doubt. Section 318.14(6), Florida Statutes.

In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), wherein appellant challenged the constitutionality of the greater sentence he received in his trial de novo under Kentucky’s two-tier system for adjudicating certain criminal cases (whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment) on the ground that it violated due process requirements, the Supreme Court upheld the constitutionality of Kentucky’s two-tier system and imposition of the greater sentence and opined:

“In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the superior court with sentence to be determined by the full record made in that court. We cannot say that the Kentucky trial de novo system, as such, is unconstitutional

The State posits that by Chapter 318, Florida Statutes, the State merely grants an “offer in settlement” to one charged with a “noncriminal traffic infraction.”

It is undisputed that if one chooses to contest a traffic citation all constitutional guaranteed due process rights are available to him.

This Court finds that Section 318.-14(5), Florida Statutes, is constitutional and not violative of due process guarantees or equal protection of the law.

Accordingly, the judgment of the trial court is affirmed.

It is so ordered.

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

SUNDBERG, J., dissents.


text:
    Ollie V. WHITENER, Appellant, v. WHITENER BUILDERS, INC., et al., Appellees. WHITENER BUILDERS, INC., a corporation, Appellant, v. Ollie V. WHITENER, Appellee.
    Nos. Z-250, Y-533.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1976.
    Rehearing Denied Dec. 16, 1976.
    John S. Buss, for appellant.
    Ernest D. Jackson, Sr., for appellee.
   PER CURIAM.

On June 30, 1976, following oral argument in these consolidated cases, we filed a per curiam opinion which is reported at 334 So.2d 322. Thereafter, on July 22,1976, the trial judge, in accordance with our above-mentioned opinion, entered an order containing various findings. He concluded by holding:

“That Whitener Builders, Inc., a corporation, by its authorized officers, shall issue to Ollie V. Whitener, 23 shares of stock as subscribed by her in such corporation, as fully paid.”

A certified copy of the trial judge’s order was filed in the office of the clerk of this court on July 26, 1976, thereby revesting jurisdiction in this Court in accordance with our prior opinion of June 30, 1976. Although that opinion provided that “The parties may thereupon, if they so desire, within 30 days thereafter, file such briefs and supplemental record as they deem necessary, * * * ” no such briefs nor supplemental record have been filed.

Our examination of the record reveals sufficient evidence to sustain the findings of the learned trial judge as recited in his order of July 26, 1976, and those findings are sufficient basis for the adjudicatory portion of that order hereinabove quoted. Accordingly, the final judgment here appealed, as supplemented and modified by the above-mentioned order of July 26,1976, is

AFFIRMED.

BOYER, C. J., McCORD, J., and SCHLE-GEL, LEW, Associate Judge, concur.


text:
    Alphonso STUART, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1172.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Dec. 21, 1976.

      Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY and HAVERFIELD, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

Appellant was charged in the trial court with breaking and entering with the intent to commit a felony, to-wit, grand larceny. An order withholding adjudication was entered, and the defendant was placed on probation for three (3) years. This appeal questions whether the trial court should have discharged the defendant/appellant and dismissed the case pending against him on the ground that he was not afforded a speedy trial in accordance with the requirements of law, and further questions whether the trial court properly refused to instruct the jury on criminal trespass.

The defendant was arrested on November 8, 1974. The record reveals that the defendant’s trial commenced on May 8, 1975, the 181st day after arrest. From the record it affirmatively appears that there has been a waiver of defendant’s right to speedy trial by the proceedings taking place in open court. On Monday, April 28, 1975, counsel for the State and the defendant appeared before the trial judge as a plea was being negotiated. It was agreed to set the case over to April 30, 1975, for a report on the plea. Subsequently, the State and the defendant’s counsel reported that the negotiated plea was refused, and the case would be placed on standby status for trial. On May 7, 1975, the Court announced, “All right, could we go with this one number one today?” Counsel for the State announced the State witness had come to court numerous times, and the defendant was on standby as well. Then the Court announced again, “I will put it over to tomorrow, but if a trial starts and runs three days, I don’t want anyone complaining they can’t get a speedy trial.” Defense counsel did not object and, even though his defendant was not present in court, he said he was ready for trial.

We have determined that the defendant effectively waived his right to be tried within the time limitation of the Rule because of the plea negotiations and because of the defense counsel’s acquiescence to the Court setting the trial on the 181st day. See State v. Kelley, 322 So.2d 581 (Fla.App. 1st 1975). Also, see State v. Earnest, 265 So.2d 397 (Fla.App. 1st 1972).

We find that the trial court properly refused to instruct the jury on criminal trespass. We find that the proposed less included charge is not an offense necessarily included in the offense charged of breaking and entering with the intent to commit a felony therein, to-wit, grand larceny. The record reveals that the trial court instructed the jury on a number of lesser offenses of which the jury could have found the defendant guilty.

Even though the Court waived the necessity of a written instruction on the lesser included charge on trespass, the Court should have been informed exactly what instruction the defendant sought, which was not done in this case. Rivers v. State, 307 So.2d 826 (Fla.App.1975).

For the reasons above set forth, the judgment appealed is therefore affirmed.


author: McCORD, Judge. SMITH, Judge

text:
    Bertha Meisler BRENNAN, Appellant, v. Clifton Whitney RYTER, Appellee.
    No. BB-9.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1976.
    Rehearing Denied Dec. 17, 1976.

      Eric E. Wagner, Ocala, for appellant.
    J. Richard Caldwell, Jr., Pitts, Eubanks, Ross & Rumberger, Orlando, for appellee.
   McCORD, Judge.

This is an appeal from an order dismissing an action pursuant to Florida Rule of Civil Procedure 1.420(e) for lack of prosecution. The case was originally tried in 1972, but final judgment was reversed by this court, Ryter v. Brennan, 291 So.2d 55 (Fla. 1 DCA 1974). The Supreme Court denied certiorari on August 12, 1974, 297 So.2d 836. Over one year thereafter, on August 18, 1975, appellee Ryter (defendant in the trial court) filed a motion to dismiss for lack of prosecution. Appellant Brennan (plaintiff in the trial court) filed a response alleging that a settlement offer had been tendered to appellee on November 8, 1974; that the court file was not returned by the appellate court to the clerk of the trial court until January 20, 1975; that appellant had called the clerk to have it returned to the trial court; that appellee died on November 20, 1974, but appellant was not notified. With her response, which was filed on September 9, 1975, appellant included a suggestion of death and a motion for substitution of party defendant and a notice for trial. The court entered the order dismissing the cause for lack of prosecution from which this appeal was taken. Subsequently, appellant filed a motion for rehearing alleging that under Gregory v. Circuit Court in and for St. Johns County, 56 So.2d 529 (Fla.1952), actions are abated upon the death of a party until appointment of an administrator of the estate. Appellant attached the affidavit of her attorney attesting that he had not been able to obtain the return of the court file to the clerk of the trial court until January 24, 1975, and that he had first learned of the defendant’s death in June, 1975. Appellant also attached a letter from appellee’s attorney dated November 8,1974, offering a settlement together with a reply from appellant to her attorney dated December 18, 1974, rejecting the settlement. The record does not show that the rejection was communicated to appellee’s attorney. The trial court denied the petition for rehearing. Appellant contends there was both record and non-record activity in the cause during the one year prior to its dismissal and that the death of appellee tolled the operation of the rule.

We consider first appellant’s contention that her activity set forth above was both record and non-record activity which precluded the dismissal. The case was ready for further proceedings in the trial court immediately upon the Supreme Court’s denial of writ of certiorari on August 12,1974. Our mandate reversing the judgment had previously gone down to the trial court and was not recalled during the Supreme Court proceedings on appellant’s petition for writ of certiorari.

Appellant contends that she could rely on her notice of trial filed prior to the first trial; that after remand, it was the duty of the trial court to set the case for trial without further notice by appellant. We disagree. Without further notice from appellant, the trial court had no way of knowing after remand that appellant was ready to proceed on a second trial. Appellant’s original notice resulted in the first trial and that trial extinguished that notice. Appellant was not justified in waiting for over one year after the disposition of the appeal and until appellee’s motion to dismiss had been filed before she filed a notice for another trial or took other activity to move the case. The mere filing of a notice for trial or a request to docket a case for trial will not bar dismissal for want of prosecution where there has been no action taken by a plaintiff for more than a year thereafter. See Allen v. Gaither, 112 So.2d 855 (Fla. 1 DCA 1959). Even if we assume appellant’s original notice for trial had been extinguished and was revived when the Supreme Court denied certiorari, it died after another year passed. Appellant’s telephone call to have the file returned to the trial court and the transmittal thereof from the appellant court to the clerk of the trial court did not constitute record or non-record activity to satisfy the rule. Compare Morrison v. Chambers, 82 So.2d 594 (Fla.1955). Also, a settlement offer from the defendant to which the plaintiff does not respond is insufficient to toll for plaintiff the running of the one year period under the rule. Compare Atlantic Coastline R.R. v. Hill, 76 So.2d 861 (Fla.1955); Steisel v. Birnholz, 313 So.2d 125 (Fla. 3 DCA 1975); Laug v. Murphy, 205 So.2d 695 (Fla. 4 DCA 1968); and Ft. Walton Lumber and Supply Co. v. Parish, 142 So.2d 346 (Fla. 1 DCA 1962).

Appellant contends that the death of one of the defendants tolled the running of the statute under the Supreme Court’s opinion in Gregory v. Circuit Court in and for St. Johns County, supra. That opinion, however, only stands for the proposition that the action abates on the death of the sole plaintiff and the one year period under the rule (at the time it was a statute) is tolled and does not begin to run again until appointment and qualification of an admin-istratrix of the deceased plaintiff’s estate. We do not consider that the rule of Gregory applies or should apply to the death of a defendant. It was the duty of appellant to expeditiously prosecute the case and move it along to trial and disposition. It, therefore, would have been her duty to suggest the death of the defendant and move to substitute party defendant had she known of the death. Not knowing of the death, why should she be excused for taking no action in the case during the one year period? This is an entirely different situation than is the case when the sole plaintiff, the party who has the obligation to move the case, dies. A dead plaintiff can no longer take action to move the case, but a live plaintiff can move it or attempt to move it after the death of the defendant by a motion for substitution of party defendant. If appellant had taken any action in this case, she undoubtedly would have discovered the defendant’s death, and she could then have moved for substitution of parties. A personal representative of a dead defendant has no obligation to take action to move the case and is not likely to do so against the estate’s interest during the period when the one year rule is running against the plaintiff. To rule otherwise would give the plaintiff (appellant) a completely undeserved reprieve from the consequences of her default under the rule. The defendant’s death had no relation to appellant’s duty to prosecute the case.

AFFIRMED.

RAWLS, Acting C. J., concurs.

SMITH, J., dissents.

SMITH, Judge

(dissenting):

The majority have affirmed the trial court’s dismissal of Brennan’s claim against Ryter for Brennan’s failure to prosecute the case during the year that elapsed after we granted a new trial upon a prior appeal and before August 18, 1975, when counsel for Ryter filed a motion to dismiss for lack of prosecution. Rule 1.420(e), R.C.P.

The record shows that ho action was taken in the cause for one year, but it also shows that defendant Ryter, the ostensible appellee here, died within that year on November 20, 1974. No personal representative was ever appointed for the decedent, so no one with authority to represent Ryter’s estate has been substituted for him in this action. This appeal is defended by counsel for a person deceased.

In Gregory v. Circuit Court in and for St. Johns County, 56 So.2d 529 (Fla.1952), the Supreme Court placed a construction on § 45.19, F.S.1949, which in my view governs our application of similar provisions in Rule 1.420(e), R.C.P. The Court held that the running of a one-year period of nonprosecution is tolled by the death of the plaintiff until the appointment of a personal representative for his estate. The Court stated:

“A suit cannot be prosecuted any more readily than it can be begun in the absence of a person in being who is capable of prosecuting or instituting a suit.” 56 So.2d at 530.

Counsel for decedent Ryter urges that the Gregory decision tolls the running of the period when the plaintiff dies but not when the defendant dies. In my opinion, however, litigation against a person deceased is quite as impossible as litigation by him. See Worley v. Dade County Security Co., 52 Fla. 666, 42 So. 527 (1906). If litigation is continued in the name of a defendant deceased, it is effective not because the law disregards the death but because the personal representative is estopped to deny its efficacy. Davis v. Evans, 132 So.2d 476, 481 (Fla.App.1st, 1961), cert. den. 136 So.2d 348 (Fla.1961). Rule 1.420(e) should not penalize a plaintiff for the absence of pointless activity in a case abated by his adversary’s death. The purpose of the former statute and of the Rule is to relieve courts of the burden of actions which plaintiffs have permitted to become stagnant. Sudduth Realty Co. v. Wright, 55 So.2d 189 (Fla.1951). That purpose was not served by the trial court’s dismissal of Brennan’s action in this case. The court was not burdened by Brennan’s lawsuit following Ryter’s death, because in law it had abated and required action “to breathe life into the action, to revitalize it as an efficient instrumentality of the law.” Davis, supra, 132 So.2d at 481.

The majority are of the view that Brennan “undoubtedly would have discovered” Ryter’s death had Brennan taken any action in the case. I view that as speculation. The majority seem not to recognize that to this day Ryter’s former counsel speaks of his deceased client as though he continues to litigate. But regardless of whether the duty to discover Ryter’s death and substitute his personal representative was Brennan’s duty, in whole or part, I do not conceive his failure to discharge that duty, so to revive the abated litigation, is the kind of inactivity for which the penalty of final dismissal is exacted by Rule 1.420(e).

      . Ryter v. Brennan, 291 So.2d 55 (Fla.App. 1st, 1974), cert. den. 297 So.2d 836 (Fla.1974).


text:
    John Charles PHILLIPS, Appellant, v. Mary ADAMS (Phillips), Appellee.
    No. 75-1972.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1976.
    Rehearing Denied Dec. 14, 1976.
    Warren H. Petersen, Orlando, for appellant.
    O. H. Eaton, Jr., Stenstrom, Davis & McIntosh, Sanford, amicus curiae for appel-lee.
   MASON, ERNEST E., (Retired) Associate Judge:

This is an appeal from an order entered by the Honorable Dominick J. Salfi, Circuit Judge of the Eighteenth Judicial Circuit in and for Seminole County, Florida, upon a Rule Nisi directed to the appellant, respondent below, to show cause why he should not be held in contempt of court for failure to pay arrearages of child support money required in and by the terms of a final judgment of divorce entered by the court under date of January 30, 1968. The Rule Nisi was issued upon the petition of the appellee, petitioner below, alleging the appellant failed to comply with the support provisions of said final judgment in the sum of $11,822.81 at the rate of $60.00 per week. The Rule was returnable on October 17, 1975.

On the date and at the time set forth in said Rule Nisi appellant appeared with his attorney and in response to the Rule proffered defenses. The appellant proposed by said defenses to show that he had been for a period of seven years denied visitation privileges with the minor children of the parties and had been deprived of the right to see said children for said period of time, and that appellee had failed to notify him of her place of residence so that he could exercise his visitation rights. As a second defense appellant proposed to show that appellee had acquiesced in the non-payment of child support for said period of time and that she was guilty of such laches as to bar contempt proceedings against him. A third proposed defense was that the children had been adequately provided for from other sources.

This court finds that the last proffered defense of adequate support provided by others is not a legal defense to a Rule Nisi to show cause for non-payment of child support.

At the time of the hearing on the Rule Nisi the court below refused to permit appellant to offer evidence in support of his defenses of appellee’s refusal of visitation privileges and of her laches in instituting the contempt proceedings. The court in denying appellant’s proffer of evidence to support said defenses stated that such were not proper defenses to the Rule Nisi and that all he was interested in hearing was whether appellant’s failure to pay was willful or not, and secondly, a statement from appellant as to when he would pay up the arrearages. After a long discussion between the court and appellant on the only issues that the court felt to be proper, the court entered an order holding the appellant to be in contempt for failure to pay the child support requirements of the final judgment totaling as of the date of the hearing $11,822.81. The court thereupon divided the arrearage into two parts, entering a general judgment of $6,000.00 against appellant and in favor of appellee, and requiring that the balance of the arrearage be paid at the rate of $40.00 per week together with current payments as they accrue. Punishment was withheld conditioned upon the appellant making the weekly payments on account of such arrearage and current payments.

We hold that the trial judge was in error and that he abused his discretion by refusing appellant the right to present evidence in support of the two affirmative defenses of appellee’s refusal to allow visitation privileges and her laches in instituting the contempt proceeding. This court held in Warrick v. Hender, Fla.App., 198 So.2d 348, that where a father is granted visitation rights with correlative obligations, to make support payments for his children he should not be required to make such payments so long as the mother, having the primary custody of the children, fails or refuses to accord him the visitation privileges so granted. In Denton v. Denton, Fla.App.1962, 147 So.2d 545, 548, the District Court of Appeal for the Second District held it to be improper to order a divorced father to pay arrearages of child support payments which accrued while the mother having primary custody of the children failed or refused to comply with the order granting the father visitation privileges. In Craig v. Craig, 1946, 157 Fla. 710, 26 So.2d 881, the Supreme Court of Florida held that the refusal or failure of the wife to comply with the provisions of a support decree may be urged against her in opposition to a Rule to Show Cause. We hold that it was an abuse of discretion on the part of the trial court to refuse to hear evidence by appellant in support of his claim that the mother had refused him visitation privileges. Of course, after hearing the father’s defense of the mother’s failure to grant him visitation privileges, the court may reasonably conclude that the defense had not been supported by the evidence and that the father was in contempt for failure to make the support payments. But, the father is entitled to his day in court on the issue and the trial court should not summarily deny him the privilege of offering testimony in support of such defense.

The same is true as to the defense of laches. Laches on the part of the mother may justify a refusal by the court to enforce against the father the payment of past due installments of child support. Brown v. Brown, Fla. App., 108 So.2d 492. Such a defense, of course, is predicated upon the father’s showing that the mother’s delay under all of the circumstances resulted in injury or prejudice to him. But, as in the case of the first defense of the mother’s refusal to grant visitation privileges, the father should be permitted to offer evidence on his claim of laches and to deny him that privilege is an abuse of discretion.

We reverse the order on the Rule Nisi herein and remand with the direction to the trial court to permit appellant to present evidence on the issues raised by his affirmative defenses of the refusal of appellee to award him visitation privileges and her alleged laches in instituting the contempt proceedings.

REVERSED AND REMANDED with directions.

CROSS, J., and SMITH, CULVER, Associate Judge, concur.


author: HOBSON, Judge.

text:
    Thomas Ray JOHNSON and Deborah Johnson, Appellants, v. STATE of Florida, Appellee.
    No. 75-112.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1976.
    Rehearing Denied Dec. 15, 1976.

      Earl Cox, Bradenton, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellants challenge the judgments below finding them guilty of felony possession of marijuana and felony possession of narcotics paraphernalia. Specifically, they assert the contraband was seized pursuant to an invalid search warrant. We agree.

On July 10, 1974, Deputy Roy Little of the Manatee County Sheriffs Office received a telephone call from one Jim Jones of the Toledo, Ohio Police Department. Jones informed Little that he had in custody one John Rodgers for possession of marijuana. The caller then related to Little that Rodgers had told him (Jones) that there was a quantity of marijuana (1200 pounds) located in a white van on the premises of one of the defendants, Tom Johnson, in the Bradenton, Florida area. Directions as to the location of these premises were also given.

Little also spoke with the informant Rodgers who stated that the defendant, Tom Johnson, was also in possession of a quantity of cocaine, but that he did not know where it was kept on the premises. Rodgers stated further that he last saw the marijuana within the white van on or about a previous Friday night, July 5.

Little stated he had no knowledge of Jones or Rodgers nor had he ever had any previous or subsequent contact with either of them. Following the termination of this telephone conversation, Little made a search of the Manatee County Sheriff’s records and determined that the defendant, Thomas Johnson, was living at the address described as of April 16,1974. Acting upon the information received, Little and other sheriff’s deputies then placed the defendant’s home under surveillance. No illegal or suspicious activity was observed during the brief two-hour period of surveillance.

After Little’s return to the sheriff’s office in the early morning hours of July 11, he prepared an affidavit and a proposed search warrant for the home of the defendants based solely on the information received in the telephonic tip.

Thereafter at approximately 5:30 A.M. Little went to the home of Roberta P. Knowles, a County Judge in Manatee County, and delivered to her the affidavit and proposed warrant. Judge Knowles acknowledged the affidavit and signed the warrant. The search warrant authorized a search of the premises without specifying the white van. Upon issuance of the warrant, Little and the other officers returned to the home of the defendants. The warrant was then executed and a search of the home and the van produced a certain quantity of narcotics and paraphernalia.

At the ensuing suppression hearing, briefs were filed on the validity of the warrant and affidavit. The trial judge denied the motions to suppress and the defendants were convicted. This appeal followed.

The only issue for our determination is whether the affidavit submitted by Deputy Little was sufficient to support the search warrant as issued. It is axiomatic that an affidavit supporting a search warrant may be based on hearsay information and need not reflect the direct personal observation of the affiant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Middleton, 302 So.2d 144 (Fla. 1st DCA 1974). It is equally well recognized that the use of hearsay statements to support search warrants is subject to the standards of the probable cause test. Aguilar, supra; Andersen v. State, 274 So.2d 228 (Fla.1973). The existence of probable cause herein must be based upon the information which was available to the affiant Little at the time he executed the affidavit. This conclusion is required since no independent observation or knowledge of any criminal activity on the part of the defendants was conveyed to the sheriff’s office on or about the time of the warrant’s execution. Thus this case differs from those situations where the affidavit supporting the warrant is based in part on information received from a confidential informant. Cf. State v. Smith, 233 So.2d 396 (Fla.1970); Findlay v. State, 316 So.2d 33 (Fla.1975). Here the affidavit supporting the warrant is based entirely on the tip received by Little from the purported police officer and his prisoner in Ohio.

We think this case falls short of the standards enunciated in Aguilar and Spinel-li for the testing of hearsay information as it is used to support the issuance of warrants. Florida courts, in approving those criteria, have required corroboration of an informant’s tip sufficient to establish both the reliability of the informant and that the informant had obtained his information in a reliable way. State v. D’Agostino, 305 So.2d 832 (Fla. 4th DCA 1975); State v. Middleton, 302 So.2d 144 (Fla. 1st DCA 1974). In this case Deputy Little unequivocally stated that he did not know and had never seen or even heard of either the Toledo police officer, Jones, or the suspect, Rodgers, from whom Jones had elicited the information. Subsequent investigation by Little, as to whether the defendant Johnson lived at the address given, coupled with the brief surveillance of this residence, where no illegal activity was observed, did not elevate this hearsay to minimum constitutional requirements.

This is exactly the factual situation our Supreme Court condemned in Andersen v. State, supra. Cf. Pesce v. State, 288 So.2d 264 (Fla. 4th DCA 1974). In fact, there was no showing of either Jones’ or Rodgers’ knowledge, personal or hearsay, and if hearsay, good reason for either of them believing it. As stated in Andersen, supra,

“Any conclusion of a crime to be drawn from the affidavit rests upon a hopeless pyramiding of inferences. Agent Bondu-rant may ‘in his opinion’ have had good reason for ‘his’ belief that a search warrant should be issued, but that is not the legal test to be applied where his conclusion is based on hearsay.” 274 So.2d at 230.

Accordingly, for the reasons stated, we conclude that the affidavit was insufficient to reflect probable cause of the existence of narcotics in the defendants’ premises and the evidence seized under the search warrant must be suppressed. Therefore, the judgments and sentences are hereby reversed.

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

      . Defendants assail in their brief the insufficiency in form and execution of the affidavit submitted by Deputy Little. Specifically the defendants assert the affidavit lacks any notary seal, court seal or other indication of authorization of the person before whom it was supposedly sworn. Similarly, they contend the failure of Judge Knowles to affix a seal or the name of her office to the search warrant pursuant to § 933.07, Fla.Stat. (1973) vitiates the warrants validity. We do not agree. This is not the type of error that we have condemned in other instances involving omissions in warrants. Cf. Martin v. State (Fla 2d DCA 1976). Op. filed July 16, 1976. Defendants have also_ attacked the description of the place to be searched as described in the warrant. Since we find no probable cause for issuance of the warrant initially, we need not reach this issue.


author: BOARDMAN, Judge.

text:
    John LEE and Barbara Lee, Individually and as next friends and parents of William Lee, a minor, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellee.
    No. 76-119.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1976.
    Rehearing Denied Dec. 16, 1976.

      John B. Cechman, of Goldberg, Rubinstein & Buckley, Ft. Myers, for appellants.
    Patrick E. Geraghty, of Henderson, Franklin, Starnes & Holt, Ft. Myers, for appellee.
   BOARDMAN, Judge.

Appellants/plaintiffs seek review of an adverse ruling by the trial court in a suit for declaratory judgment that they were not entitled to uninsured motorist benefits under the automobile insurance policy issued by appellee/defendant. Summary judgment was entered in favor of appellee.

Both parties having moved for a summary judgment, the pertinent facts are not in dispute. Appellee issued to appellant John Lee two automobile liability policies covering a 1970 Chevrolet and a 1974 Dodge each including uninsured motorist coverage in the amount of $50,000 each person and $100,000 per accident. On August 4, 1974 appellants’ son William was injured in a one car accident while a passenger in the automobile owned and operated by his brother Steven. The accident was proximately caused by the negligence of the driver Steven. At the time of the accident Steven had liability insurance coverage of $50,000 each person and $100,000 each accident which is more than required by the Florida Financial Responsibility Act. The coverage provided in Steven’s policy was exhausted by payment to the estates of two other passengers in Steven’s vehicle who died as a result of injuries received in the accident. Bodily injury coverage for William under Steven’s policy was denied because of the household exclusion in that policy. Appellee denied uninsured motorist coverage to appellants on behalf of their son William under either of the two policies issued to appellant John Lee.

The policy issued to appellants obligated appellee insurer to

pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle. .

Although Steven carried liability insurance his policy specifically excluded coverage for William, a member of his household. The question presented here is whether in these circumstances Steven is uninsured under appellants’ uninsured motorist insurance. An uninsured motor vehicle was defined by the policy issued to appellants as

a land motor vehicle with respect to the ownership, maintenance or use of which there is in at least the amounts specified by the financial responsibility law of the state in which the described motor vehicle is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization responsible for the use of such vehicle.

We follow and adopt the position of the Massachusetts supreme court that this provision is ambiguous in view of the ordinary meaning of the term “applicable” and should therefore be construed in favor of the insured. Whitney v. American Fidelity Co., 350 Mass. 542, 215 N.E.2d 767 (1966). The Whitney court held that an automobile was uninsured under a provision identical to the one here if there is no insurance “capable of being applied” to the insured. Absent an express statement to the contrary an insured would expect that his uninsured motorist protection would focus on whether he was covered by the negligent party’s liability insurance. The insured paid an additional premium for uninsured motorist coverage and is entitled to its benefits.

The policy provided that the term uninsured motorist vehicle shall not include:

(ii) a land motor vehicle furnished for the regular use of the named insured or any resident of the same household .

and excluded uninsured motorist protection

(b) TO BODILY INJURY TO AN INSURED WHILE OCCUPYING OR THROUGH BEING STRUCK BY A LAND MOTOR VEHICLE OWNED BY THE NAMED INSURED OR ANY RESIDENT OF THE SAME HOUSEHOLD, IF SUCH VEHICLE IS NOT AN OWNED MOTOR VEHICLE.

These exclusions are legally impermissible under the Florida uninsured motorist statute, Section 627.727, Florida Statutes. The purpose of the statute is to provide liability coverage to innocent parties, and a provision in a policy providing exceptions and/or exclusions not authorized by the statute are not enforceable. Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla.1971); First National Ins. Co. of America v. Devine, 211 So.2d 587 (Fla.2d DCA 1968). This and other Florida courts have consistently held that restrictions on uninsured motorist coverage are against public policy and void. See, e. g., Johns v. Liberty Mutual Fire Ins. Co., 337 So.2d 830 (Fla.2d DCA) [opinion rendered September 22, 1976]; Mullís, supra; Devine, supra.

REVERSED and REMANDED with directions to vacate the summary judgment in favor of appellee.

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

      . Appellee also issued Steven’s policy covering the 1965 Dodge involved in the accident.

      . Appellants admit that William and Steven are members of the same family and reside in the same household. Coverage under Steven’s policy is not at issue here.

      . Appellee argues that a vehicle cannot be both insured and uninsured. The Uninsured Motorist Statute indicates that an insured vehicle can be considered uninsured when the liability insurer of that vehicle
      [h]as provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.
      [§ 627.727(2)(b), Fla.Stat. (1975)].


author: BOYER, Chief Judge.

text:
    Joan Elaine SCHEMPP and Margaret M. Schempp, individually and as Trustee of the property of Wilbur Albert Schempp, Appellants, v. Wilbur Albert SCHEMPP, Appellee.
    No. BB-470.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1976.
    Rehearing Denied Dec. 16, 1976.

      Daniel R. Vaughen, DeLand, for appellants.
    Burke D. Chester, Daytona Beach, for appellee.
   BOYER, Chief Judge.

Appellee’s motion to quash raises the issue whether and to what extent the “law of the case” concept applies when an order of the trial court which has been upheld by way of interlocutory appeal is again challenged by way of final appeal. After the trial court entered its order of partial summary judgment in favor of appellee (plaintiff in the trial court), appellants filed their notice of interlocutory appeal. This Court fully considered the arguments of appellants on the merits and dismissed the interlocutory appeal. Schempp v. Schempp, Fla.App. 1st 1976, 327 So.2d 120. Petition for rehearing was denied. Upon receiving this Court’s mandate, the trial court without taking additional evidence or testimony, entered final judgment in favor of appellee from which appellants have brought a full appeal.

Under the “law of the case” doctrine, questions decided on appeal in courts of ultimate resort must govern the case in the same court through subsequent stages of proceedings, McGregor v. Provident Trust Co. of Philadelphia, 1935, 119 Fla. 718, 162 So. 323. It has been long established that the “law of the case” doctrine applies to a question raised in an appeal from a final decree which has been previously decided adversely to an appellant in the appeal of an interlocutory order. (Harvey v. City of St. Petersburg, 1940, 143 Fla. 559, 197 So. 116, cert. den. 311 U.S. 697, 61 S.Ct. 136, 85 L.Ed. 452) An appellate court does, however, have the power to reconsider and correct erroneous rulings notwithstanding that such rulings have become the law of the case. (Strazzulla v. Hendrick, Sup.Ct. Fla.1965, 177 So.2d 1)

Appellee argues that appellants are attempting to obtain reversal of the final judgment by challenging an interlocutory order which has been appealed and upheld previously by this Court. Appellants reply that different issues not raised in the interlocutory appeal are presented in the full appeal, and that, to the extent that the full appeal does reargue the issues raised in the prior interlocutory appeal, this Court should reconsider those issues to prevent manifest injustice. (See Struzzulla v. Hendrick, supra)

Upon full consideration of the record and briefs filed by appellants in both the present and prior appeals, we have concluded that appellee’s motion to quash should be granted. Of the several points raised by appellants in their brief filed in the full appeal, all except one point, challenge the order of partial summary judgment which has been previously upheld by this Court in the prior interlocutory appeal. Our examination of the record has not caused us to conclude that reliance on our decision in the interlocutory appeal as the law of the case will result in manifest injustice. The only new point raised by appellants in the full appeal concerns the failure of the trial court in his order of final summary judgment to allow appellants to amend their pleadings. That point, however, was never presented to the trial court by appellants, and our review of the record reveals that the trial court did not err in entering final judgment without of its own volition permitting appellants to amend their pleadings.

APPEAL DISMISSED.

McCORD and SMITH, JJ., concur.


text:
    Clair KRASNER, Appellant, v. Bernard KRASNER, Appellee.
    No. 74-1346.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.
    Rehearing Denied Dec. 15, 1976.
    Heller & Kaplan, Miami, for appellant.
    Sibley, Giblin, Levenson & Ward, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This appeal by the respondent wife and the cross appeal by the petitioner husband bring before us for review the award of alimony, child support and attorneys fees which were rendered as part of a final judgment of dissolution of marriage between the parties.

The salient portions of the final judgment provided that the husband pay to the wife $50,000 as lump sum alimony, $75.00 a week for the support of a minor child, $1,000 a month as periodic alimony, to be “payable from the estate of the Petitioner should he predecease the Respondent and she be unmarried at that time,” and $48,000 as a combined attorneys’ fee for the legal services provided to the wife by her two successive attorneys.

The wife contends that the award of alimony and child support is inadequate and that the attorneys’ fees awarded are insufficient to compensate for the work done by her last attorney.

The husband contends that the amount of periodic alimony and child support was proper; that the court erred in awarding permanent rather than rehabilitative alimony; that it was error to charge the husband’s estate with the permanent alimony payable after his death absent an agreement by the husband; that the lump sum alimony award was improper and the attorneys’ fees excessive.

A lengthy review of the testimony elicited from the parties and their witnesses would serve no useful purpose. The trial court found that the husband is presently earning $25,000 per year and is capable of earning greater income from his medical practice. While the testimony was conflicting, the husband has assets which are worth between $776,000 and close to $3,000,000.

From our examination of the record, we find substantial competent evidence to support and justify the award of permanent periodic and lump sum alimony. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Goldman v. Goldman, 333 So.2d 120 (Fla. 1st DCA 1976). In Shaw, supra, the Supreme Court explicated that:

“It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence from the record on appeal before it. The test ... is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject ‘inherently incredible and improbable testimony or evidence,’ it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.” (Footnote omitted.)

We next consider the husband’s contention that it was error to extend alimony beyond the death of the husband by making the alimony payable from his estate should he predecease his wife, assuming that she is unmarried at that time. In Rouse v. Rouse, 313 So.2d 458 (Fla. 3rd DCA 1975), this court followed the Florida Supreme Court’s holding that the Florida no-fault divorce law now permits a trial court to provide for alimony payments from the estate of the former husband in certain circumstances, absent an express agreement.

In the instant case, the wife is 47 years of age. She has a partially disabled left arm, causing a 35% disability to the upper left extremity, although she is capable of doing her work as a nurse to some extent. Considering the relative financial condition of the parties and the marriage of some twenty years, we are of the opinion that the trial court did not commit reversible error in making alimony payments chargeable against the estate of the husband upon his decease.

Both parties urge error as to the amount of fees for the wife’s second attorney. The amount of attorney’s fees awarded pursuant to a dissolution of marriage action is a matter largely within the trial judge’s discretion; in the absence of a showing of an abuse of discretion as to the amount awarded, the appellate court will not substitute its judgment for that of the trial court. See Flipse v. Flipse, 305 So.2d 16 (Fla. 3rd DCA 1974). Testimony was taken as to the time and effort expended in the preparation and trial of this case, and expert testimony adduced as to the value thereof ranged from $15,000 to $75,000. Considering the record, we find that there was substantial competent evidence to support the award of attorney’s fees.

Affirmed.

      . First National Bank of St. Petersburg v. Ford, 283 So.2d 342 (Fla.1973).


text:
    VOGUE OPTICAL MANUFACTURING COMPANY, INC., Appellant, v. NATIONAL VAN LINES, INC., Appellee.
    No. 75-1742.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.
    Rehearing Denied Dec. 21, 1976.
    Gars & Dixon and Michael A. Shapiro, Miami, for appellant.
    Marivn I. Moss, North Miami, and Philip S. Vova, Miami Beach, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant, Vogue Optical Manufacturing Company, Inc., appeals from a final order denying its claim for damages due to an alleged negligent bailment of machinery and other equipment by the appellee, National Van Lines, Inc., and granting the appellee’s claim for freight charges. The parties initially brought separate suits to press their respective claims, but they were consolidated since they arose from the same set of facts.

The trial court based its ruling upon a discerned failure on the part of the appellant to satisfy certain conditions precedent to recovery. Specifically, appellant purportedly did not give the appellee a written claim of loss within nine months as was required by the bill of lading, nor did it pay all transportation charges as required by the appellee’s tariff as a condition precedent to any claims.

Appellant contends that the trial court erroneously based its ruling on the failure to satisfy conditions precedent since the appellee carrier did not plead these defenses, and thus they were never in issue. In the alternative, appellant alleges that it did give the appellee sufficient written notice of its claimed loss and that the payment of the shipping charges was not a condition precedent to the damage suit since the claim for unpaid transportation charges was also in issue before the trial court. Since we agree with the appellant’s contention that all conditions precedent to its suit have been met, it will not be necessary to decide whether these questions should actually have served as the basis for the trial court’s ruling.

The shipments involved herein were made during May and June of 1972. The record reflects that certain letters were sent to the appellee during July and September of that year, all of which refer to heavy losses as a result of either missing or damaged equipment. The shipments are identified by invoice number in one of the letters, which also noted that all of the appellant’s machinery^ and equipment had arrived “broken,” and that some items had never arrived at all. Under these circumstances, we believe that the appellee had sufficient written notice of the losses which the appellant intended to claim. See Georgia, Florida, & Alabama Railway Co. v. Blish Milling Co., 241 U.S. 190, 86 S.Ct. 541, 60 L.Ed. 948 (1916).

While Rule 39 of the appellee’s tariff does state that transportation charges are to be paid in full prior to the disposition of any claims against the carrier, the United States Supreme Court has held that this federally mandated requirement is satisfied where transportation charges and damage claims are adjudicated in a single suit. Chicago & Northwestern Railway Co. v. Lindell, 281 U.S. 14, 50 S.Ct. 200, 74 L.Ed. 670 (1930); see also In re Penn Central Transportation Co., 477 F.2d 841 (3rd Cir. 1973), aff’d, 414 U.S. 885, 94 S.Ct. 231, 38 L.Ed.2d 137 (1973).

We therefore find that the trial court erred in denying appellant’s claim based on appellant’s failure to satisfy the subject conditions precedent to suit. Accordingly, this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.