author: BOYD, Justice.

text:
    DIVISION OF BOND FINANCE, etc., et al., Petitioners, v. Honorable Bruce SMATHERS, etc., et al., Respondents.
    No. 49937.
    Supreme Court of Florida.
    Sept. 17, 1976.

      Robert L. Shevin, Atty. Gen., Larry Levy, Asst. Atty. Gen., and Arnold L. Greenfield, Gen. Counsel, Tallahassee, for petitioners.
    Jack Shreve, Gen. Counsel, David E. Cardwell, Asst. Gen. Counsel, Jack W. Pierce and S. Sherman Weiss, Tallahassee, for respondents.
    Donald M. Middlebrooks, Orlando, for Reubin O’D. Askew, as Governor of the State of Florida, intervening petitioner.
   BOYD, Justice.

We have before us an original proceeding in mandamus brought by the Division of Bond Finance of the Department of General Services, the Governor, as the Chairman of the Governing Board of the Division of Bond Finance and the State Treasurer, as Treasurer of the Governing Board of the Division of Bond Finance, against the Secretary of State, the Executive Director of the Department of Natural Resources, and the Department of Natural Resources, questioning the constitutional validity of the following proviso which appears after Item 853 in Section 1 of the General Appropriations Act, Chapter 76-285, Laws of Florida:

“Provided that any future sales of general obligation bonds for environmentally endangered lands shall have as the first priority the repayment of monies expended for debt service from the Land Acquisition Trust Fund.”

On June 30, 1976, the Governor vetoed the above proviso because he had been advised through a “Letter of Intent” from the Senate Ways and Means Committee and the House Appropriations Committee that it had been mistakenly included in the General Appropriations Act as the result of a drafting error and because he questioned the constitutional validity of the proviso. Article III, Section 8(a) of the Florida Constitution gives the Governor veto power over specific appropriations in general appropriations bills, but prohibits him from vetoing any qualification or restriction without vetoing the specific appropriation to which it relates. Fearing that the proviso could be construed as a “qualification” or “restriction” which would raise an issue of the validity of the veto, in turn casting doubt over the legality of the Act’s appropriations for debt service to which the proviso relates and concerned that such doubt would adversely affect the Environmentally Endangered Lands Bond Program and agreements with the federal government for cooperative acquisition of environmentally endangered lands, the Governor and Cabinet authorized the Division of Bond Finance to initiate proceedings to challenge the constitutionality of the proviso or to declare valid the Governor’s veto. Because a proceeding in circuit court followed by appellate litigation might entail harmful delay, the Division brought an original action for mandamus in this Court.

The petition for mandamus requests this Court to command the Secretary of State to expunge the proviso from the “official acts of the legislative department” because it is invalid under the Florida Constitution, or, in the alternative, to determine that the Governor’s veto of the proviso is constitutionally effective, under either alternative, thereby preventing the Department of Natural Resources and its Director from applying proceeds of State bonds in the manner of the proviso.

Ordinarily the initial challenge to the constitutionality of a statute should be made before a trial court. However, the remedy of mandamus has been awarded by this Court in original actions before in order to expunge unconstitutional language from a General Appropriations Act. Dickinson v. Stone, 251 So.2d 268 (Fla.1971). Dickinson provides that the standard for such an award is where the functions of government will be adversely affected without an immediate determination. On its face the assertion by the Governor and the Division that the State Bond Program and Environmentally Endangered Lands Bond Program are jeopardized by the questionable constitutionality of the proviso and the doubt over the effectiveness of the Governor’s veto meets the Dickinson standard. Respondents do not challenge the assertion. Indeed, they concede this Court’s jurisdiction to entertain the action. We exercise our discretion to entertain it because we perceive that an immediate determination is necessary to protect governmental functions.

We need not consider the issue of the constitutional validity of the Governor’s veto because we hold the proviso to be unconstitutional. The Division presents the argument that the proviso is unconstitutional under six sections of the Florida Constitution. We need look no farther than the first of these six sections to resolve the matter. Article VII, Section 11(a) of the Florida Constitution provides:

“§ 11. State bonds — revenue bonds (a) State bonds pledging the full faith and credit of the state may be issued only to finance or refinance the cost of state capital projects upon approval by a vote of the electors; provided state bonds issued pursuant to this subsection (a) may be refunded without a vote of the electors at a lower net average interest cost rate. The total outstanding principal of state bonds issued pursuant to this subsection (a) shall never exceed fifty per cent of the total tax revenues of the state for the two preceding fiscal years.”

The proviso requires that the proceeds of general obligation bonds for environmentally endangered lands be expended for purposes other than the financing or refinancing of the cost of State capital projects. It is violative of Article VII, Section 11(a) on its face.

Accordingly, a peremptory writ of mandamus shall issue commanding the Secretary of State to expunge from Section 1, Chapter 76-285, Laws of Florida, the following language:

“Provided that any future sales of general obligation bonds for environmentally endangered lands shall have as the first priority the repayment of monies expended for debt service from the Land Acquisition Trust Fund.”

and further commanding the Department of Natural Resources and its Director to take no action inconsistent with this opinion.

It is so ordered.

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

      . All parties to this litigation concede that the legislative attempt to condition Item 853 in the appropriation bill has caused, and on a daily basis continues to cause the State to be in arrears on a previously executed contract with the government of the United States for the purchase of environmentally endangered lands in the State, and that it is only by grace of a federal extensiofi of time that a default has not been declared. The parties’ representations to the Court persuade us that the functions of State government will indeed be directly and immediately affected in an adverse way if we do not act promptly. We would hesitate long before accepting jurisdiction in different circumstances.


source: Caselaw Access Project

author: WALDEN, Chief Judge.

license: Public Domain

text:
    ROGER KLEIN, LTD., Appellant, v. Cecilia A. TUTTLE, Appellee.
    No. 75-1197.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Kee Weissenborn, of Weissenborn, Burr & Hyman, Miami, for appellant.
    Perry W. Hodges, Jr., of Law Offices of Borden R. Hallowes, Fort Lauderdale, for appellee.
   WALDEN, Chief Judge.

This is an interlocutory appeal from the Circuit Court in an action for damages.

Defendant made a motion to dismiss on the grounds of insufficiency of process and lack of jurisdiction. Defendant specifically challenged the constitutionality of Fla. Stat. § 48.193(1)(f)(2) (1973). The trial court entered the appealed order which denied the motion and specifically and necessarily ruled upon the constitutionality question. The appeal centers solely upon the constitutionality of the statute.

It is our view that our jurisdiction has been improvidently invoked and that the appeal must be transferred to the Supreme Court of Florida, Art. V, Section 3(b) (1), Florida Constitution.

We have studied the case of Burnsed v. Seaboard Coastline Railroad Company, 290 So.2d 13 (Fla.1974), which upon first reading would indicate that only final orders passing upon the validity of a state statute are appealable to the Supreme Court. However, we believe, upon further consideration, that an important distinction exists which points to an exception here.

It is to be noted that this defendant has an absolute right to an interlocutory appeal under F.A.R. Rule 4.2, because it is an interlocutory order relating/to jurisdiction. This was not the case in Burnsed and there only certiorari relief was available provided the court chose to exercise its discretion in that direction, as was done.

In our broad overview of the constitutional provisions regarding court jurisdictions, we feel that District Courts of Appeal are not empowered to secondarily treat constitutional questions. If the constitutional issue is made and ruled upon in the trial court and preserved and presented upon appeal, the matter is cognizable only in the Supreme Court. We are specifically impelled in this direction by the provision in Art. V, Section 3(b)(1), which gives the Supreme Court jurisdiction to hear appeals from “decisions of district courts of appeal initially and directly passing on the validity of a state statute.” Should we pass upon the constitutional question in this appeal our decision would not be initial, it would be secondary in the sense that we would be reviewing the trial court decision. And we wonder if we did accept jurisdiction, what further appellate rights the parties would have. It would seem from the foregoing quote that they would have no right to appeal to the Supreme Court inasmuch as our decision would not meet the criteria of initially passing upon the statute’s validity. This surely can not be the case, as in our judgment the framers clearly intended and provided that the Supreme Court would be the ultimate arbiter of constitutional questions.

Except for the fact that defendant has a right to a F.A.R. 4.2 appeal, the defendant, upon final judgment, could challenge the constitutionality of the statute and that ap-' peal would then lie in the Supreme Court without question. We recognize of course that discretionary certiorari might be sought of this interlocutory order but this ignores the fact that defendant is entitled, without court discretion, to an appeal and a decision as we have mentioned.

All circumstances considered, the Clerk will please transfer this appeal to the Supreme. Court of Florida per F.A.R. 2.1a. (5)(d).

It is so ordered.

CROSS and DOWNEY, JJ., concur.


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

text:
    Ted HOWELL, Appellant, v. STATE of Florida, Appellee.
    No. AA-153.
    District Court of Appeal of Florida, First District.
    June 18, 1976.
    On Rehearing Sept. 1, 1976.

      Tom Osteen, Perry, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant, defendant in the trial court, was charged in a two-count information with possession of more than five grams of cannabis (Count I) and with unlawful possession of cannabis with intent to sell same. (Count II). A motion -to quash search warrants and suppress evidence was denied and a jury convicted appellant as charged. The trial judge adjudicated him guilty of the crime charged in Count II and imposed a sentence of four years imprisonment, from which judgment and sentence this appeal is taken.

Appellant first urges that the affidavit in support of issuance of the search warrant was insufficient to present probable cause and that the affiant’s “plain view” of the contraband was not conducted from a place where the officer had a legal right to be. The affidavit recites that the affiant (Officer Von Whiddon) was informed by a confidential informant that marijuana was located at appellant’s residence and that the officer had personally observed a quantity of marijuana on appellant’s premises. At a hearing on the motion to suppress, Officer Whiddon testified that he first observed the marijuana on appellant’s property from a vantage point located on adjacent property which belonged to a neighbor of defendant. He further testified at the trial that in making a search of appellant’s property pursuant to the challenged warrant, he found two bags of marijuana, several marijuana plants inside the house and several plants growing in defendant’s backyard.

We determine that appellant’s first point is without merit and that the learned trial judge was eminently correct in denying appellant’s motion to quash the search warrant and to suppress the evidence. (Boim v. State, Fla.App. 3d 1967, 194 So.2d 313; State v. Smith, Sup.Ct.Fla.1970, 233 So.2d 396 and Findlay v. State, Sup.Ct.Fla.1975, 316 So.2d 33)

We also find to- be without merit appellant’s contention that there was insufficient evidence from whence the jury could legally find that the defendant knew of the presence of the marijuana on premises occupied jointly by him and his wife.

However, we find no evidence to support the charge that appellant possessed the contraband with the intent to sell same. The quantity was not of such a magnitude as to have necessarily required such a conclusion and there was no testimony, expert or otherwise, that the amount of which appellant was in possession was of such a quantity as not to have been reasonably anticipated to have been consumed by him individually. We must therefore, as to the charge of which appellant was adjudged guilty and sentenced, possession with intent to sell, reverse. As to that count, appellant is entitled to be discharged.

Another point, so often erroneously raised as to demand our attention, is presented by the appellee’s contention that in the absence of a complete transcript of the trial proceedings and all tangible evidence there adduced, it must be presumed that the evidence supports the judgment appealed and that affirmance is therefore mandatory. Such a position is so often taken by appellees in proceedings before us that we feel compelled, for the future guidance of the appellate bar, to clarify what appears to be a general misunderstanding of the applicable Florida Appellate Rules.

Rule 3.6 b. FAR clearly places the primary responsibility upon the appellant to see that the record-on-appeal is properly prepared. (See American Baseball Cap, Inc. v. Duzinski, Fla.App. 1st 1975, 308 So.2d 639) Section d of the same rule places upon the appellant the initial burden of designating the portions of the record to be transmitted to the appellate court. However, that rule also specifically provides that the appellee shall “file his directions designating any additional portions of the record, proceedings, or evidence he deems essential to be included in the record-on-appeal”. The word “essential” as used in that rule obviously refers to those portions of the record, proceedings or evidence which were before the lower court and not designated by the appellant to be necessary for the appellate court to consider incident to the assignments of error. (In Hamlin v. State, Fla.App. 1st 1975, 298 So.2d 561, this Court recognized the impropriety of including in the record-on-appeal matters not within the scope of the assignments of error. See also Moore v. State, Fla.App. 1st 1974, 298 So.2d 561) It will be further noted that Rule 3.6 d(2) FAR requires that each party, within the time there provided, designate to the reporter the parts of the lower court proceedings which are deemed necessary for the appeal “or an affirmative statement that he does not deem any part of such proceedings necessary”. A strict interpretation of that rule would appear to estop an appellee from asserting on appeal, unless he timely designated the portion relied upon, that there were proceedings before the trial court which do not appear in the record-on-appeal.

Often overlooked is Rule 3.6 l. FAR which provides that unless the record shows to the contrary, it shall be presumed, that the record transmitted to the appellate court contains all proceedings in the lower court material to the points presented for decision. The presumption provided for in that rule places a burden upon the party relying upon deficiencies in the record to demonstrate that portions of the proceedings in the lower court were omitted from the record-on-appeal and to demonstrate the materiality of such omitted portions. Further, in order to avoid the presumption, the alleged omission must be timely raised. To hold otherwise would be contrary to the obvious intent of the rest of Rule 3.6 l. which provides for the method of correcting such an omission. (See Largo v. Imperial Homes Corporation, Fla.App. 2d 1974, 300 So.2d 311)

We have not overlooked our holdings in Merritt v. Williams, Fla.App. 1st 1974, 295 So.2d 310 and White v. White, Fla.App. 1st 1975, 306 So.2d 608, wherein we held that an appellate court may not consider a case unless the record reveals all evidence and proceedings which were before the trial court which are material to a resolution of the points on appeal. Those holdings were correct under the circumstances of those cases and we do not intend to here recede therefrom. (See also Pierson v. Sharpe, Fla.App. 4th 1973, 283 So.2d 880, Dade County Board of Public Instruction v. Foster, Fla.App. 3d 1975, 307 So.2d 502, Chipola Nurseries, Inc. v. Division of Administration, etc., Fla.App. 1st 1974, 294 So.2d 357 and Largo v. Imperial Homes Corporation, supra)

We here simply hold that, in accordance with the Florida Appellate Rules, the appellant has the burden of bringing before the appellate court a record adequate to permit the court to consider appellant’s assignments of error, and arguments relating thereto, in the light of all of the relevant and material portions of the record in the trial court; and that failure of the appellant to demonstrate in the record-on-appeal support of the points by him raised precludes appellate review. Said another way, it is incumbent upon the appellant to bring to the appellate court a record sufficient . to demonstrate error. However, in the absence of a showing to the contrary, the appellate court will presume that record-on-appeal contains all proceedings of the lower court material to the points presented for decision, and an appel-lee will not be heard to urge that an appeal should fail simply because there were proceedings or evidence before the trial court which has not been made a part of the record-on-appeal, unless the appellee in so urging demonstrates the materiality of the omitted matter and also demonstrates that the appellee has discharged his duty by compliance with the above mentioned rule. (See Lithgow Funeral Centers v. Loftin, Sup.Ct.Fla.1952, 60 So.2d 745)

Bluntly stated, an appellee may not play cat and mouse with the appellant and the court by urging mandatory affirmance because of failure of appellant to bring to this Court the entire trial court record, without alleging or demonstrating materiality of the omitted portions.

Nothing here said should be construed as an abrogation of the inherent power of an appellate court to sua sponte strike a record-on-appeal, or dismiss an appeal, or to affirm the order or judgment appealed, in those cases wherein the unequivocal mandate of the Florida Appellate Rules have been flagrantly ignored. (See Smith v. Smith, Fla.App. 1st 1975, 309 So.2d 615) Nor is anything here said intended to be construed as being contrary to the principle that in the absence of a sufficient record demonstrating error (or an abuse of discretion) on the part of the trial court an appellate court will afford to the orders and judgments of the trial court a presumption of correctness, necessitating af-firmance. (See Pryor v. Pryor, Fla.App. 1st 1973, 274 So.2d 242, Merritt v. Williams, supra, and White v. White, supra, and Dinkel v. Dinkel, Sup.Ct.Fla. 1975, 322 So.2d 22)

AFFIRMED IN PART AND REVERSED IN PART.

McCORD and MILLS, JJ., concur.

ON PETITION FOR REHEARING

McCORD, Judge.

By our previous opinion in this appeal, we reversed appellant’s conviction and sentence for possession of cannabis with intent to sell same, holding that we found no evidence to support the charge that appellant’s possession was with intent to' sell. We then indulged in a discussion of the respective duties of an appellant and an ap-pellee in relation to bringing before this court a record sufficient for our review of the alleged errors in the court below.

Appellee’s petition for rehearing calls our attention to the fact that appellant initially, by assignment of error, only contested the trial court’s upholding the validity of the search and permitting introduction into evidence of the seized contraband. Directions to the Clerk on this assignment of error were filed on the same date and did not include directions for preparation of the trial testimony. Appellant then, on the next day, filed an amended assignment of error stating that the trial court “erred in denying defendant’s Motion for Directed Verdict at the close of all evidence on the grounds of insufficiency of evidence to convict defendant of the crimes charged.” Appellant then did not file any additional instructions to the Clerk, and we do not have a complete transcript of the trial testimony.

The Supreme Court in the early case, Albritton v. State, 54 Fla. 6, 44 So. 745 (1907), said:

“It must be presumed that the judgment of a circuit court is supported by evidence adduced at the trial, and, where a judgment is assailed on the ground that the verdict upon which the judgment was rendered is not sustained by the evidence, the entire evidence must be brought to the appellate court in the manner prescribed by law and the rules of court. Otherwise errors assigned on the insufficiency of the evidence to sustain the verdict will not be considered by the appellate court.”

We have been unable to find that there has been any change in the law as stated in Albritton. Where appellant contends that the evidence at the close of the case is insufficient to support his conviction and that his motion for directed verdict should have been granted, he must bring all of the evidence to the appellate court. We cannot determine insufficiency of the evidence to support the conviction without considering the transcript of testimony and such exhibits as are material to the question. We suggest to counsel, however, that in order to minimize the size and cost of such a record, they stipulate that certain parts which they can agree are immaterial to the determination not be included.

Appellant not having presented to us a record sufficient for us to determine that the evidence was insufficient to support his conviction, we recede from our previous reversal of appellant’s conviction for unlawful possession of cannabis with intent to sell same. Appellant’s convictions on both counts of the two count information are AFFIRMED.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I would adhere to our original opinion. Albritton v. State, supra, was decided in 1907, long before the adoption of the Florida Appellate Rules. I am yet of the view that Rule 3.6, subd. b., FAR and Rule 3.6, subd. 1., FAR requires a presumption that the record-on-appeal contains all proceedings material to the points presented and that an appellee should not be heard to urge that an appeal should fail because of an inadequate record, unless the appellee in so urging demonstrates the materiality of the omitted matter and also demonstrates that the appellee has discharged his duty by compliance with said rules.


author: PER CURIAM.

text:
    J. W. GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. AA-273.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1976.
    Rehearing Denied Oct. 19, 1976.

      David P. Hopstetter, of Huey & Camper, and M. Howard Williams, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

RAWLS, Acting C. J., SMITH, J., and RUDD, JOHN, Associate Judge, concur.


author: RAWLS, Acting Chief Judge.

text:
    Charles HARELIK, Appellant, v. Lila H. TESHONEY, Appellee.
    No. AA-304.
    District Court of Appeal of Florida, First District.
    Sept. 16, 1976.
    Rehearing Denied Oct. 19, 1976.
    Charles Tindell of Elliott, Tindell & Geh-ris, Daytona Beach, for appellant.
    Nicholas A. Caputo, Holly Hill, for appel-lee.
   RAWLS, Acting Chief Judge.

On the 27th day of March, 1969, Esther M. Lawrence conveyed a parcel of land in Volusia County to Charles Harelik (appellant-plaintiff), a single person, and Stella Harelik, his mother, a widow and single woman, as joint tenants with full rights of survivorship in each, and not as tenants in common. Stella, on October 31, 1972, conveyed the same property to Lila H. Tesho-ney (appellee-defendant), reserving unto herself a life estate. Charles did not join in the latter conveyance. On April 16, 1975, Stella died. Charles filed the instant suit claiming fee simple title by reason of his survivorship. Thus, we are confronted with the following issue: May one joint tenant under a warranty deed establishing a joint tenancy with the right of survivorship unilaterally terminate the right of survivor-ship?

By its summary final judgment in favor of the defendant holding, inter alia, “that the parties hereto own the subject property as tenants in common”, the trial court answered in the affirmative. We agree and affirm.

The controlling case is Kozacik v. Kozacik. There, Mr. Justice Sebring, speaking for the Florida Supreme Court, stated:

“The court decisions and text authorities make it plain that four coexisting unities are necessary and requisite to the creation and continuance of a joint tenancy; namely, unity of interest, unity of title, unity of time, and unity of possession. Any act of a joint tenant which destroys either of these unities operates as a severance of the joint tenancy and extinguishes the right of survivorship. See 4 Thompson on Real Property, Perm.Ed., Sec. 1776, 1778, 1780; Tiffany on Real Property, 2d Ed., Sec. 191, pp. 625-635; 33 C.J. pp. 903, 907, 908, Joint Tenancy, Secs. 4, 9, 10. Stated differently, the authorities are in agreement that a joint tenancy may be terminated by any act which destroys one or more of its unities, provided the act of the joint tenant who severs his interest is such as to preclude him from claiming by survivorship any interest in the subject matter of the joint tenancy. See In re Wilks, [1891], 3 Ch. 59; 33 C.J. 908, Joint Tenancy, Sec. 10. Accordingly, it is settled that a joint tenancy will be terminated by the alienation or conveyance by a joint tenant of his interest in the realty to a stranger, for by such act the unity of title is destroyed and the unity of possession is gone.”

The judgment appealed is AFFIRMED.

MILLS and SMITH, JJ., concur.

      . Kozacik v. Kozacik, 157 Fla. 597, 26 So.2d 659 (1946). See also D. A. D., Inc. v. Moring, 218 So.2d 451 (4 Fla.App.1969); and LaPierre v. Kalergis, 257 So.2d 33 (Fla.1972).


text:
    Lawrence W. OSTEEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1837.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1976.
    Jack O. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment of guilt is affirmed. The maximum sentence for the crime of second degree murder is life imprisonment. Appellant was sentenced to life imprisonment plus ninety-nine years. Therefore, the case is remanded with directions for the sentence to be reduced to life imprisonment, without the necessity of appellant being present when the sentence is reduced.

HOBSON, A. C. J., and GRIMES and SCHEB, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Mary JOHNS, Appellant, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellee.
    No. 75-235.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1976.
    Rehearing Denied Oct. 20, 1976.
    Charles W. Pittman, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Charles S. Carrere, of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

Appellant seeks reversal of a summary final judgment in favor of appellee in a declaratory judgment action against appel-lee regarding appellant’s entitlement to uninsured motorist benefits under the uninsured motorist provision of a policy issued to her by appellee.

On November 26, 1968, appellant was injured in a collision with a vehicle owned by the City of St. Petersburg and operated by an uninsured city employee. At the time of-the accident appellant’s vehicle was insured by an automobile liability insurance policy issued by appellee which provided uninsured motorist coverage pursuant to § 627.-0851 F.S.1967 [now § 627.727 F.S.] The policy provided that the term “uninsured highway vehicle” shall not include:

“(2) a highway vehicle owned or operated by a self-insurer within the meaning of any motor vehicle financial responsibility law, motor carrier law or any similar law, or
“(3) a highway vehicle owned by any Federal, State, Territorial, Provincial or Municipal government, or a political subdivision, department or agency of any of them;”

The trial court entered a final summary judgment for appellee, finding that the City of St. Petersburg was not an uninsured motorist.

The first question for our determination is whether a provision in an automobile liability policy excluding from uninsured motorist coverage a government-owned highway vehicle is valid. We hold that such a provision is legally impermissible.

This precise question has not been ruled on in this state. However, in numerous cases the courts of this state have taken the position that the uninsured motorist statute was enacted to provide relief to innocent persons who are injuréd through the negligence of an uninsured motorist, and such liability is not to be “whittled away” by exclusions and exceptions. First National Insurance Co. of America v. Devine, Fla.App.2d 1968, 211 So.2d 587; Mullis v. State Farm Mutual Automobile Insurance Co., Fla.1971, 252 So.2d 229; Salas v. Liberty Mutual Fire Insurance Company, Fla.1973, 272 So.2d 1.

Turning now to other jurisdictions, we find that several of our sister states have held that provisions in automobile liability policies that uninsured motorist coverage did not apply to government-owned vehicles are more restrictive than the Uninsured Motorist Act and are therefore invalid. Higgins v. Nationwide Mutual Insurance Co., 1973, 291 Ala. 462, 282 So.2d 301; Franey v. State Farm Mutual Automobile Ins. Co., 1972, 5 Ill.App.3d 1040, 285 N.E.2d 151; State Farm Mutual Automobile Ins. Co. v. Carlson, 1973, 130 Ga.App. 27, 202 S.E.2d 213. See also Vaught v. State Farm Fire & Casualty Company, 8th Cir. 1969, 413 F.2d 539, which was cited generally with approval by our Supreme Court in Mullis v. State Farm Mutual Automobile Insurance Co., supra, though not precisely for the point presently before us in the instant case.

Section 324.051 F.S.1967, exempted governmental agencies from the financial responsibility provisions but there was no such exemption in the Uninsured Motorist Act. There is no reason to read the exclusion of government-owned vehicles in the Financial Responsibility Law in pari mate-ria with the Uninsured Motorist Statute. If the legislature had intended to exclude vehicles owned by the government from the Uninsured Motorist Act it could have explicitly done so. Higgins, Franey, Carlson, and Vaught, supra. It must be remembered that when the Uninsured Motorist Act was first passed as well as when this accident occurred, the doctrine of sovereign immunity prevailed in the State of Florida. Governmental agencies, while authorized, were not required to carry liability insurance on their vehicles. § 455.06 F.S. Thus, we cannot say that the legislature simply overlooked the possibility that a governmental vehicle might be considered an uninsured vehicle for purposes of uninsured motorist coverage.

The next question for this court to decide is whether the City of St. Petersburg is a “self-insurer” up to $25,000 so as to bring into application sub-paragraph 2 of the policy excluding coverage for “a highway vehicle owned or operated by a self-insurer within the meaning of any motor vehicle financial responsibility law.” .

Section 324.031 F.S. 1967 provided that an operator or owner of a vehicle may prove his financial responsibility by furnishing a certificate of self-insurance issued by the commissioner in accordance with § 324.-171 F.S. Appellee admits that the City of St. Petersburg did not apply for or obtain a certificate of self-insurance from, the Commissioner of Insurance. Appellee filed an affidavit of the Chief of the Financial Responsibility Bureau of the Department of Insurance to the effect that since § 324.051 exempted municipalities from having their operator’s licenses and owners’ registrations suspended within thirty days following notice of an accident, the Bureau concluded that municipalities are exempt from the requirements of § 324.171.

Exemption from the financial responsibility law does not make the municipality a self-insurer. Nothing in the statute equates exemption with a self-insurance certificate,, nor does the statute define a “self-insured” as a person exempt from the statute. The City of St. Petersburg did not hold a certificate of self-insurance issued in accordance with § 324.171 F.S. 1967, and was therefore not a self-insurer within the meaning of the Florida Financial Responsibility Law.

Having determined that the City of St. Petersburg was not a self-insurer, it is unnecessary to determine the validity of the provision in the automobile liability policy excluding from uninsured motorist coverage a highway vehicle owned or operated by a self-insurer.

The final summary judgment entered by the lower court is reversed and the cause is remanded for further proceedings.

GRIMES and SCHEB, JJ., concur.


author: McCORD, Judge. BOYER, Chief Judge

text:
    Nicholas ELLIOTT, Appellant, v. Marie Elliott WEYMAN, Appellee.
    No. AA-116.
    District Court of Appeal of Florida, First District.
    Sept. 28, 1976.

      Richard Kane of Kane & Kaufman, Day-tona Beach, for appellant.
    Patrick G. Kennedy, of Van Wert, Heeb-ner & Kennedy, Daytona Beach, for appel-lee.
   McCORD, Judge.

A final judgment dissolving the marriage of the parties was entered by the Circuit Court of Broward County in 1973. It granted custody of one minor child of the marriage to appellant (the husband) and custody of thé remaining two minor children to the wife (appellee). In the summer of 1974, the two minor children in appellee’s custody visited appellant in Mississippi. Appellant did not return them but sought a change of custody in a Mississippi court. That court dismissed the action for lack of jurisdiction and directed appellant to file in the appropriate Florida court and granted appellant temporary custody pending the outcome of the Florida litigation. Appellant thereupon filed a petition to modify custody and child support in the Circuit Court of Volusia County where appellee resides. He filed a three count amended petition. Count 1 sought modification of child support; Count 2 sought a social investigation of appellee’s home; and Count 3 sought a change in custody. The court below dismissed the amended petition with prejudice finding that jurisdiction was vested in the Circuit Court of Broward County. Appellant appeals the order of dismissal.

The dismissal of Count 3 was correct. Sole jurisdiction to change custody of the children remained in the Circuit Court of Broward County. Jones v. State ex rel. Greathouse, 241 So.2d 432 (Fla. 1 DCA 1970); Ward v. Wells, 298 So.2d 493 (Fla. 1 DCA 1974); Wells, In and For Walton County v. Ward, 314 So.2d 138 (Fla.1975). The court below did not err in dismissing Count 2. Section 61.20, Florida Statutes (1975), provide's in part:

“In any action where the custody of a minor child is in issue, the court may request the [Department of Health and Rehabilitative Services] to make an investigation and social study concerning all pertinent details relating to the child and each parent . . . ”

Whether or not the court determines to request an investigation and social study is within the court’s discretion. Certainly there was no abuse of discretion in the trial court’s denial of appellant’s request. The court had no jurisdiction to consider custody.

As to dismissal of Count 1, since appellee is a resident of Volusia County, the circuit court of that county under § 61.14, Fla.Stat. (1975), “has jurisdiction to make orders as equity requires with due regard to the changed circumstances and the financial ability of the [parties, or the child or children,] decreasing or increasing, or confirming the amount of . support . provided for in the ... order,” (emphasis supplied) of the Broward County Circuit Court. Under the circumstances of this case, appellant being in violation of the custody order of the Circuit Court of Broward County, equity does not require that the Circuit Court of Volusia County consider modification of his child support payments. Since the Circuit Court of Broward County is the only court having jurisdiction of the custody question which appellant has raised, this entire controversy should be determined by that court. It is illogical that one circuit court determine modification of child support while another, at the same time, determines child custody. The determination of the child custody question by the Broward County Circuit Court could render moot any action the Volusia County Circuit Court takes as to support. Such would create a multiplicity of actions resulting in unnecessary judicial labor and expense for the litigants.

AFFIRMED.

MILLS, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(concurring specially).

As to count one I concur with the majority under the peculiar facts of this case and for the reasons set forth in the majority opinion.

As to count two I concur that the learned trial judge was eminently correct in that whether or not he determined to request an investigation and social study was within his sound discretion.

As to count three I am of the view that the majority opinion is in conflict with Danson v. Danson, 76 Fla. 449, 80 So. 62 (1918) (see special concurring opinion in Wells in and for Walton County v. Ward, Sup.Ct.Fla. 1975, 314 So.2d 138). However, inasmuch as the majority in the case last above cited found no conflict and affirmed this court’s opinion in Ward v. Wells, Fla.App. 1st 1974, 298 So.2d 493, in the interest of stare decisis I concur in affirmance as I did in Ward v. Wells, supra. In so doing, I again observe the oft-repeated confusion between jurisdiction and venue. (Please see sixth paragraph of Wells in and for Walton County v. Ward, supra, wherein the court, in the same paragraph appears to have used the terms jurisdiction and venue interchangeably.)


author: HOBSON, Judge.

text:
    Murlene S. YOUNGBLOOD, etc., Appellant, v. COMBINED INSURANCE COMPANY OF AMERICA, Appellee.
    No. 76-84.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1976.
    R. Justin Marshall, Palmetto, for appellant.
    Clyde C: Goebel, of Grimes, Goebel, Parry, Blue & Boylston, Bradenton, for appel-lee.
   HOBSON, Judge.

Appellant brings to us for review a final summary judgment entered in favor of ap-pellee. Appellant, wife of deceased, was named as the sole beneficiary under a policy issued to the decedent in the amount of $1,500 if the decedent were fatally injured if struck “on a public highway, by any moving vehicle.”

The decedent was struck by a moving vehicle and fatally injured while standing on a public sidewalk a few feet from a public highway. The highway and sidewalk were not separated by any curb but merged on the same level.

In National Casualty Co. v. Zmijewski, 1940, 143 Fla. 285, 196 So. 587, the factual situation was strikingly similar to that in the instant case. The decedent therein was actually standing on private property when fatally injured. In that case it was held that it was a question of fact as to whether or not the location where the decedent was fatally injured was used by the public as part of the highway. The record in the instant case shows that a genuine issue of material fact exists in the light of the National Casualty case. Therefore, the summary judgment appealed is

REVERSED and the cause REMANDED.

McNULTY, C. J., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: GRIMES, Judge.

text:
    John W. CARTEY, Appellant, v. STATE of Florida, Appellee.
    No. 76-227.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1976.
    Robert E. Jagger, Public Defender, and John Thor White, Asst. Public Defender, St. Petersburg, Jack 0. Johnson, Public Defender, and John Robert Howes, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was convicted of breaking and entering a building other than a dwelling house with intent to commit a misdemean- or. His appeal poses the question of whether a burglary is committed by the breaking of an interior portion of a building but not its exterior. The information charged that appellant:

“did break and enter a storage area located in a portion of a building designed for use as a dwelling house but not then and there occupied as such. . . . ”

Appellant’s motion to dismiss was denied. He then entered a plea of nolo contendere reserving the right to appeal the denial of his motion.

Fla.Stat. § 810.05 (1973), under which appellant was charged, reads as follows:

“(1) Whoever breaks and enters, or enters without breaking, any dwelling, storehouse, building, ship, vessel, aircraft, or railroad car with intent to commit a misdemeanor shall be guilty of a felony of the third degree . . . .”

Appellant argues that the information does not conform to statutory requirements because it only alleges that he broke into a storage area in a building rather than into the building itself.

This is a case of first impression in Florida. However, other jurisdictions with similar statutes have held that a breaking of an inner portion of the building constitutes the requisite element for burglary.

In Bowie v. State, Tex.Cr.App.1966, 401 S.W.2d 829, the defendant was charged with breaking and entering a building used for the manufacture and shipping of dresses. Even though the outer door was open, the defendant was found guilty because he had broken into an interior shipping and storage area by pushing open a sliding door. In rejecting the argument that no breaking had been proven, the Texas appellate court said:

“ . . . Entry through an open exteri- or door does not preclude a verdict of guilty where the evidence shows that an inner room or compartment of the building is broken into. . . . ”

The following instruction given in State v. Edell, Del.Gen.Sess.1935, 7 W.W.Harr. 404, 183 A. 630, aptly stated how a breaking may occur in the interior of a building:

“Breaking and entering does not mean that the door or window must actually be broken, but the lifting of a latch, the turning of a knob, constitutes a breaking and entering of a door as to which a person is not entitled to enter. I may say also that it is not necessary that the door broken or entered shall be an outside door. If a thief enters a house through a door inadvertently left opened or entered through an open window, yet later turns a key or lifts a latch or turns a knob and opens an inner door with intent to commit some felony in that inner room, then the offense of breaking and entering with intent to commit robbery is complete.”

See also State v. Burke, Mo.1971, 462 S.W.2d 701 (comprehensive discussion of case law on the subject); People v. Davis, 1959, 175 Cal.App.2d 365, 346 P.2d 248; Hunter v. State, 1942, 68 Ga.App. 739, 23 S.E.2d 871; Page v. State, 1936, 170 Tenn. 586, 98 S.W.2d 98; Davidson v. State, 1919, 86 Tex.Cr.R. 243, 216 S.W. 624; State v. Ferguson, 1910, 149 Iowa 476, 128 N.W. 840; Lockhart v. State, 1908, 3 Ga.App. 480, 60 S.E. 215.

In discussing the nature of the breaking necessary to convict for burglary, Perkins on Criminal Law, Ch. 3, Sec. 1 (1957), states:

“The breaking is not limited to an outside door or window. If the outside door is open but the felonious design requires entrance into a part of the building which is closed, the making of an opening into that part of the house is a breaking. The opening of a gate in a wall which surrounds the house, however high the wall may be, is not enough, although an occasional reference has confused breaking into the curtilage of a house with the ancient crime of breaking into a walled city. Nor will the opening of a trunk, box or piece of furniture within the building meet the requirement. Some part of the building itself must be opened. The opening of a cupboard door or drawer has been a useful testing point for the law in this regard. If the cupboard is an article of furniture within the building the opening of the door or drawer is not a breaking within the burglary meaning, but it is otherwise if the cupboard is a built-in part of the very building itself. The fact that an article of furniture is fastened to the wall, or the floor, will not necessarily make it a ‘part of the building.’ This will depend upon the facts of the particular case.”

See also 13 Am.Jur.2d, Burglary, § 21, page 332; 12 C.J.S. Burglary § 6, page 671.

In view of these authorities, we hold that the breaking of an inner door or structure within an open building constitutes a breaking for purposes of the burglary statute. While the information filed in this case was not as clear as it might have been, it did not wholly fail to charge a crime. Consequently, the court could properly find him guilty upon his plea of no contest. Hand v. State, Fla.1976, 334 So.2d 601.

AFFIRMED.

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

      . In Catanese v. State, Fla.App.4th, 1971, 251 So.2d 572, an information charging the defendant with breaking and entering a telephone booth under Fla.Stat. § 810.05 was held legally insufficient because it did not describe the telephone booth as a building. The case is not in point because that information totally failed to allege that a building or any portion of a building was broken.


author: BOARDMAN, Acting Chief Judge.

text:
    Patricia Carol LAHR, Appellant, v. Larry O. LAHR, Appellee.
    No. 76-425.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1976.

      Jonathan H. Hancock of Hancock & Abies, Sebring, for appellant.
    Marie Alice Crano, Lake Wales, for appel-lee.
   BOARDMAN, Acting Chief Judge.

Appellee/petitioner brought suit against appellant/respondent seeking a dissolution of marriage, custody of the two minor children, and a distribution of real and personal property. According to the parties’ briefs, process was served on the nonresident appellant by publication. A default was entered by the clerk of the circuit court against appellant for her failure to serve or file responsive pleadings. After the entry of the default, appellant filed a motion to dismiss the petition on the ground that ap-pellee had not been a resident of Florida for six months prior to filing his petition.

The motion to dismiss was returned to appellant pursuant to RCP 1.500(c). However, a hearing was subsequently held on said motion which, according to the parties’ briefs, was treated by the court as a motion to set aside the default. The motion was denied. Following a hearing on the petition for dissolution the circuit court entered a final judgment which dissolved the marriage, granted custody of the two minor children of the parties to appellee, and awarded the marital home, furnishings and an automobile to appellee. Appellant filed this timely appeal from that judgment.

Appellant contended that the circuit court erred in denying the motion to dismiss. The record on appeal in this case does not contain the transcript of the hearing on the motion to dismiss. It is a basic principle of appellate review that appellant has the burden of showing error in the trial court proceedings. We, therefore, presume that the trial court’s denial of the motion was correct and hold that no error was committed.

Appellant further contended that the trial court erred in awarding the real and personal property to appellee. We agree and hold that while the court did have jurisdiction to dissolve the marriage and to award custody of the children, it did not have jurisdiction over the property. The dissolution proceedings are in the nature of a quasi in rem action. The court did not have personal jurisdiction over appellant because she was a nonresident served by constructive process and did not have jurisdiction over the property because neither the notice of the action nor the complaint contained a description of the property. Section 49.08(4) of the Florida Statutes requires that the notice of publication describe the realty which is the subject matter of the action. Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation District, Fla.1973, 274 So.2d 522; Torchiana v. Torchiana, Fla.App.2d 1959, 111 So.2d 103.

This court held in Griffin v. Zinn, Fla.App.2d 1975, 318 So.2d 151, that the requirement for a description of the property which is to be affected by the judgment is of constitutional dimension. To satisfy the notice element of due process the complaint must set forth that the action is directed against the property itself and include a specific description of that property. Griffin, supra. See also Shannon v. Great Southern Equipment Co., Fla.App.2d 1976, 326 So.2d 19. In the case before us the petition simply alleged that “[t]he parties own real and personal property to be distributed by this Court” and prayed “[t]hat this Court award the properties to Husband.” The said allegations do not satisfy the requirements of Griffin. Therefore, the trial court did not have jurisdiction over either the realty or the personalty.

Accordingly, that part of the final judgment granting dissolution of the marriage and awarding custody of the children is affirmed. That part of the judgment awarding the realty and personalty to ap-pellee is reversed.

AFFIRMED in part; REVERSED in part.

GRIMES and SCHEB, JJ., concur.

      . No service of process is contained in the record on appeal.

      . No transcript of the hearing is included in the record on appeal.


author: SMITH, Judge.

text:
    Madelyn Dixon GUILBEAU, Appellant, v. Claude Maurice DUBBERLY, Appellee.
    No. T-63.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1976.

      Samuel S. 'Jacobson of Datz, Jacobson & Dusek, Jacksonville, for appellant.
    James E. Miller, Jacksonville, for appel-lee.
   SMITH, Judge.

Appellant Ms. Guilbeau was divorced from appellee Mr. Dubberly in 1965. In the divorce decree the Duval County circuit court ordered him to assign to her his undivided interest in a note and second mortgage which they previously held by the entireties. Custody of the children, then ages 13,10 and 7, was awarded to the wife, who was ordered

“ . . .to use all payments made to her on account of said note for the benefit and support of the said minor children of the parties and is prohibited from using the proceeds of said note for any other purpose. Plaintiff may not sell, transfer, or negotiate said mortgage or note, without first applying for, and receiving the permission of this Court.”

The decree also directed Mr. Dubberly, who had been ill and was of doubtful earning ability, to pay appellant $25 per week to support the three children. She sought no alimony. Mr. Dubberly discontinued making the support payments almost immediately, although he purchased items for the children and made advances to them occasionally.

In 1972, although he was several thousand dollars in arrears in child support payments, Mr. Dubberly complained to the trial court that Ms. Guilbeau “has been incredibly parsimonious with regard to caring for and supplying the modest material and personal needs of the said children,” and that she had deprived the children “of their property rights and assets,” i. e., the mortgage and the proceeds of it. In the intervening seven years, Ms. Guilbeau had been obliged to protect the second mortgage by buying the defaulted first mortgage at a cost of $3,775, paid from her individual savings; both mortgages were then paid off, giving her $24,400 in cash; she spent approximately $4,400 of the fund for the direct or indirect benefit of the children; the elder child became self-supporting and another, now 18, was working part time; and Ms. Guilbeau came to regard the balance of the $20,000 fund as her own, subject to educational and other needs of the two younger children.

Upon consideration of the matter, the trial court held at the instance of Mr. Dub-berly that Ms. Guilbeau should immediately pay $5,500 of the fund to the 20-year old married son of the parties and place the balance in trust for the two daughters — one of whom was 18, working and living away, the other 15 and living with her mother-— until distribution should be made to them at age 23. Also, the trial court gave Mr. Dub-berly credit against his arrearages for some $6,000 in gifts made and expenses incurred by him in connection with the children since 1965, and ordered him to pay support ar-rearages of $3,370 to Ms. Guilbeau in monthly $200 payments.

The 1965 divorce decree purported to charge the wife’s half-interest in the note and mortgage with support of the children. At least to the extent that the husband was able to support the children by paying $25 per week support and assigning his share of the mortgage receipts, in 1965 it was improper to place a formal obligation on the wife or on her independent property for the support of the children. Fekany v. Fekany, 118 Fla. 698, 160 So. 192 (1935); Berger v. Berger, 182 So.2d 279 (Fla.App. 4th, 1966). Contrast ch. 71-241, § 15, Fla. Laws, § 61.13(1), F.S.1975; Siegel v. Zimmerman, 319 So.2d 187 (Fla.App.3d, 1975). Ms. Guilbeau did not appeal that error, but simply went to work to produce an income sufficient to support the household without direct financial assistance from Mr. Dub-berly.

Then, seven years later, Ms. Guil-beau was ordered to turn over to her children the $20,000 fund which survived as a result of her employment, her savings, her protection of the second mortgage and, perhaps, her asserted parsimony in dealing with the teenagers’ declared financial needs. Whether she erred in neglecting the children’s educational aspirations and in skimping on clothes or automobiles, we cannot say. But if she erred in that, the proper remedy was for Mr. Dubberly to pay support money and for the court to more closely order its spending. It was not a proper remedy to divest Ms. Guilbeau of her own property and to vest it, either as a judicially enforced gift or as recompense for suffering a parsimonious mother, in the children.

In determining whether in 1972 any part of the remaining fund held by Ms. Guilbeau was traceable to Mr. Dubberly’s former interest and was thus expendable only for the children, we consider that the portion of the fund attributable to his former interest should have been entirely charged with the children’s support since 1965 before considering that Ms. Guilbeau spent any of her money for that purpose. With that view, and taking into consideration both the prospective needs of the 15-year old daughter in 1972 and the $8,370 payment the court then required of Mr. Dubberly, we conclude that Ms. Guilbeau was not then the debtor of either her former husband or her children and that, except insofar as the 1972 decree orders him to pay her $3,370 in ar-rearages, the decree is in error and should be reversed.

AFFIRMED IN PART AND REVERSED IN PART.

MILLS, Acting Chief Judge, and MELVIN, WOODROW, Associate Judge, concur.


author: SMITH, Judge. BOYER, Chief Judge

text:
    DILLARD SMITH CONSTRUCTION CO., a corporation, Appellant, v. C. Ray GREENE, Jr., Appellee.
    No. AA-173.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1976.

      Edward S. Parrish, Jr., of Fischette, Parrish, Owen & Held, Jacksonville, for appellant.
    Charles Cook Howell, III, and Henry H. Graham, Jr., of Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, for ap-pellee.
   SMITH, Judge.

The trial court held that appellant’s second amended complaint fails to state a cause of action and dismissed appellant’s malpractice claim against its former attorney.

Having a construction contract with the Jacksonville Electric Authority (JEA), appellant subcontracted the pile driving to another, who further subcontracted it to still another, who performed it. A claim for extra pile driving came back up the chain to appellant. When JEA had not paid for extra pile driving at the conclusion of the job, appellant became concerned whether it might apply for “final payment” of the contract price and still preserve its claim against JEA for the cost of extra pile driving. The contract between JEA and appellant provided that “[t]he making and acceptance of final payment shall constitute . [a] waiver of all claims by the Contractor against the Owner other than those previously made in writing and still unsettled.” Appellant engaged appellee, a lawyer, for advice.

The second amended complaint alleges that appellee advised appellant to submit a final billing and execute the required release, so to receive the balance of the contract price, without making reference to the claim for extra pile driving. Acting on that advice, appellant obtained final payment from JEA, which later interposed appellant’s release and the quoted terms of the contract in bar of appellant’s action against JEA for the sum found owing by appellant to the subcontractor and by it to the pile driver. After trial, judgment was rendered for appellant and against JEA. On JEA’s appeal, appellant argued that its claim on account of extra pile driving had been properly preserved because “the correspondence between the parties [appellant and JEA] evidenced a claim in writing which satisfied the terms and conditions of the contract. . ” Jacksonville Elect. Auth. v. Dillard Smith Constr. Co., 299 So.2d 639, 640 (Fla.App. 1st, 1974), cert. den. 304 So.2d 131 (Fla.1974). This Court, however, found that appellant had not preserved its claim against JEA to the extent of $21,875.

By the present action appellant alleges that appellee, its lawyer, negligently advised appellant in submitting appellant’s claim on JEA for final payment. The allegations of negligence are (a) that the lawyer negligently failed to advise plaintiff that its acceptance of final payment would bar further claims against JEA, “even though the simple reading of the contract and release recited same”; (b) that the lawyer negligently interpreted the “plain wording” of the contract and release “or negligently failed to read said contract and release before wrongfully advising Plaintiff to accept final payment and execute a re lease;” (c) that the lawyer negligently failed to advise appellant “of the progression of the litigation and the options”; and (d) that the lawyer negligently failed to appeal the trial court’s adjudication of appellant’s liability to the subcontractor, and so let stand a judgment which was erroneous if JEA was not liable to appellant.

The trial court correctly held that specification (a) and the unitalicized portion of specification (b) of the complaint, summarized above, are insufficient. A lawyer does not guarantee the efficacy of his advice. His contractual interpretations, rendered in the exercise of judgment, in' good faith and with the degree of knowledge and skill ordinarily possessed by other lawyers similarly situated, do not become actionable simply because a court later rules against his client. Appellant’s lawyer espoused a substantial position, endorsed by the trial court’s judgment in the JEA litigation, that the correspondence between appellant and JEA constituted a written claim within the meaning of the contract requirement. In these circumstances, it is not sufficient that appellant alleges by way of conclusion that his lawyer negligently misconstrued the contract’s “simple” meaning and “plain wording.” Kartikes v. Demos, 214 So.2d 86 (Fla.App.3d, 1968). See Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144, 45 A.L.R.2d 1 (1954).

The trial court was correct also in holding insufficient the complaint’s general allegations, in specification (c) above, concerning the lawyer’s neglect to keep appellant informed. Without more, those allegations lack specificity as well as causative relation to appellant’s loss. Similarly, the allegation of negligence in specification (d), that the lawyer failed to appeal the judgment rendered for the subcontractor against appellant, is without causative effect. There is no basis for contending the subcontractor’s judgment would have been vacated on appeal because appellant’s judgment against JEA was reversed. Appellant’s failure to present an adequate written claim to JEA prior to final payment could not bar the subcontractor’s claim against appellant. See Suritz v. Kelner, 155 So.2d 831, 834 (Fla.App.3d, 1963), cert. den. 165 So.2d 178 (Fla.1964); Martin v. Hall, 20 Cal.App.3d 414, 97 Cal.Rptr. 730, 53 A.L.R.3d 719, 723-24 (1971).

In one respect the second amended complaint adequately states a cause of action for professional negligence. While the alleged but problematic “simple reading” of “the plain wording” of the contract and release would not necessarily have led any reasonably careful lawyer to but one recommendation to appellant — to present a more specific written claim and postpone “final payment” — there is an alternative allegation that the lawyer

“. . . negligently failed to read said contract and release before wrongfully advising Plaintiff to accept final payment and execute a release.”

In alleging that appellee negligently failed to read the contract before advising plaintiff to accept final payment, the second amended complaint sufficiently states a cause of action. A lawyer’s negligent failure even to read a contract submitted for interpretation may be actionable notwithstanding that some reasonably careful lawyers, after reading the contract, might have given the same advice. In a matter requiring the exercise of judgment, a lawyer who thus is abfe to render passable advice blindfolded is liable if, because he did so, the client is deprived of superior advice that would have resulted from an informed use of the lawyer’s judgment. Gleason v. Title Guarantee Co., 300 F.2d 813 (5th Cir. 1962), reh. den. 317 F.2d 56 (1963); Kozy Books, Inc. v. Stillman, 19 A.D.2d 802, 243 N.Y.S.2d 266 (1963). See Miriam Mascheck, Inc. v. Mausner, 264 So.2d 859 (Fla.App.3d, 1972); Prosser, Torts § 32 at 161 (4th ed. 1971). The allegation is not made less sufficient by its conjunction with insufficient alternative allegations. Rule 1.110(g), R.C.P.; Beymer-Mann Co., Inc. v. Cross-Country Truck Serv., Inc., 245 So.2d 281 (Fla.App.2d, 1971).

Obviously, we are here concerned only with the sufficiency of appellant’s pleading, not with its proof. On remand, the insuffi-dent, immaterial allegations of negligence should be stricken. Rule 1.140(f), R.C.P. An answer should then be required and any resulting issues appropriately disposed of.

REVERSED.

McCORD, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

As recognized and stated in the foregoing opinion: “A lawyer does not guarantee the efficacy of his advice. His contractual interpretations, rendered in the exercise of judgment, in good faith and with the degree of knowledge and skill ordinarily possessed by other lawyers similarly situated, do not become actionable simply because a court later rules against his client. Appellant’s lawyer espoused a substantial position, endorsed by the trial court’s judgment in the JEA litigation, that the correspondence between appellant and JEA constituted a written claim within the meaning of the contract requirement.”

That portion of the complaint relied upon by the majority for reversal alleges:

“Defendant either negligently read said contract and release thereafter, ignoring the plain wording thereof or negligently failed to read said contract and release before wrongfully advising Plaintiff to accept final payment and execute a release.”

In my view, applying the legal principles announced in the majority opinion, the quoted portion of the complaint above quoted, as phrased, does not state a cause of action.


text:
    CITY OF TAMPA and Melvin B. Smith, as Treasurer pro tem. of the City of Tampa, Appellants, v. G. T. E. AUTOMATIC ELECTRIC INCORPORATED, a Foreign Corporation, Appellee.
    No. 75-1217.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1976.
    Henry E. Williams, Jr., City Atty., and Thomas K. Morrison, Asst. City Atty., Tampa, for appellants.
    Marvin E. Barkin of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for ap-pellee.
   PER CURIAM.

Appellee corporation brought this action on July 30,1973 to recover a refund of 1970 and 1971 license taxes paid under protest. The taxes were payable pursuant to an ordinance of appellant city which, in 1972, was declared unconstitutional by the supreme court in City of Tampa v. Birdsong Motors, Inc., to which appellee corporation was not a party.

The trial court rejected appellants’ contention that Birdsong, supra, by its own terms, was prospective in effect only and he entered final summary judgment in favor of appellee. We think he erred.

The language in Birdsong is clear and unmistakable. The court expressly held:

“This decision is prospective only, is not retroactive and affords no remedy for taxes previously paid by persons not making a judicial attack on the ordinance.”

That the court is empowered to make a decision prospective in effect only cannot be denied. It did so here; and appellee’s argument, agreed to by the trial court, that the aforequoted language was intended only to cut out those taxpayers who do not by a judicial proceeding seek a refund within the statute of limitations is untenable. That result would necessarily follow if the court said nothing about prospectivity. Obviously, we can’t ascribe a useless purpose to the court’s expression. Appellee’s action is barred.

In view whereof, the final summary judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for the entry of a final judgment in favor of appellants.

McNULTY, C. J., GRIMES, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . (Fla. 1972), 261 So.2d 1.

      . Id. at p. 7.

      . See The Deltona Corporation v. Bailey (Fla.1976), 336 So.2d 1163.


text:
    Melvin Edward CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 76-233.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1976.

      Jack 0. Johnson, Public Defender, and Thomas A. Pobjecky, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This is an appeal from a summary denial, without a hearing, of appellant’s motion filed pursuant to Rule 3.850, R.Cr.P., in which he claims ineffective assistance of counsel.

The principal grounds relied upon the motion are that on May 20, 1974 appellant, charged with four felonies in a four-count information, appeared without counsel for trial thereon. Appellant had previously been represented by two different private attorneys each of whom had extracted a fee and then filed withdrawals. On that day, upon a showing of indigency, the public defender was appointed and immediately announced he was ready for trial. Trial indeed commenced the following day, May 21, 1974, resulting in appellant’s conviction.

Clearly, of course, there may well be facts and circumstances which would support the conclusion that the public defender was in fact prepared for trial, as he said, and that his representation was at least reasonably effective; but the record does not, as required by the rule, “conclusively show” that this was so and the fact that the public defender’s participation was only for a period of twenty four hours before trial tends to negate it. Under these circumstances we think it was error summarily to deny the motion herein without a hearing.

In view whereof the order appealed from should be, and it is hereby, reversed and the cause is remanded for a hearing on the issue of whether appellant was denied his right to reasonably effective counsel.

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

      . It now seems clear that the “farce and mockery” standard in these cases has been abandoned, at least as to court-appointed counsel. It is sufficient for post conviction relief that an aggrieved defendant show only that court appointed counsel was not reasonably effective. Herring v. Estelle, 5th Cir. 1974, 491 F.2d 125.


text:
    Leroy WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 76-244.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1976.
    Rehearing Denied Oct. 20, 1976.

      Leonard Holton, of Hoffer & Sheffey, P. A., Zephyrhills, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant appeals his conviction for escape on the ground that he was unconstitutionally denied his right to defend himself at the trial.

Following the filing of the information, the court appointed private counsel to defend appellant because a co-defendant was involved. On the date of the trial but prior to its commencement, appellant’s attorney asked leave to withdraw because the appellant wanted to represent himself. The motion was denied. When the case was called to trial, the attorney renewed his motion to withdraw, and it was again denied. Thereafter, a motion for mistrial was made by appellant’s attorneys on the same ground with the same result.

In State v. Cappetta, Fla.1968, 216 So.2d 749, our Supreme Court approved the rule that in the absence of unusual circumstances, an accused who is mentally competent and sui juris has the right to conduct his own defense without counsel. Accord, McCain v. State, Fla.App.2d, 1973, 275 So.2d 596. More recently, the United States Supreme Court in Faretta v. California, 1975, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, held that a defendant in a state criminal trial had a constitutional right to proceed without counsel when he voluntarily and intelligently elected to do so.

The foregoing authorities make it clear that when appellant’s counsel advised that appellant wished to defend himself, the court should have conducted an inquiry to see if appellant was making an intelligent and voluntary decision. Upon the determination that appellant had made a voluntary and intelligent election to defend himself, the court should have permitted him to do so. There was no such inquiry made in this case, though to the extent that appellant was permitted to speak, it does appear that he was seeking to represent himself. While better practice would have dictated the filing of a motion to withdraw as counsel at an earlier date, the record reflects that appellant’s attorney had not seen appellant for about three months because he had been incarcerated in the state prison system for conviction of another crime and had only been returned for trial just before it was scheduled to begin. Therefore, the late request could not justify the refusal to permit appellant to defend himself, though it may well have been a good reason to deny him a continuance for the purpose of preparation.

The judgment is reversed and the case remanded for a new trial.

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


text:
    Robert B. DeLAUGHTER, Appellant, v. STATE of Florida, Appellee.
    No. 76-357.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1976.
    Jack 0. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was found guilty of possession of L.S.D. Two resultant periods of probation, the second an extension of the first after the first had been violated, entailed a total of eighteen months jail time as conditions of probation. A final revocation of the probation resulted in the instant sentence of two years in the state penitentiary. It undisputedly appears that he was not given credit for the aforementioned eighteen months served as conditions of probation. He should have been given it. Ivey v. State (Fla.1976), 327 So.2d 219.

In view thereof, the cause is remanded with directions that the sentence herein be recorded to reflect credit for time served as conditions of the previous two periods of probation. While it is, of course, not necessary that appellant be present for such purpose, in view of the fact that the two-year sentence will about be terminated on the giving of such credit most prompt notice of the amended sentence ought be given to the Division of Corrections as well as to appellant.

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


text:
    BABSON BROS. CO., An Illinois Corporation, Appellant, v. Virgil ALLISON d/b/a Allison Distributing Co., Appellee.
    No. Z-59.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1976.

      John A. DeVault, III, of Bedell, Bedell, Ditmarr & Zehmer, Jacksonville, for appellant.
    David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Issac, Jacksonville, for appel-lee.
   McCORD, Judge.

This is an appeal from final judgment entered upon a jury verdict against appellant for $20,000 compensatory damages and $65,000 punitive damages upon appellee’s complaint charging that appellant, Babson Bros. Co., an Illinois corporation (hereinafter referred to as the Illinois corporation) maliciously interfered with a contract between appellee Virgil Allison, d/b/a Allison Distributing Company (hereinafter referred to as Allison) and Babson Bros. Co. of Georgia (hereinafter referred to as the Georgia corporation). This is the second appearance of this case before this court, the first being Babson Bros. Co. v. Allison, 298 So.2d 450 (Fla. 1 DCA 1974).

The Illinois corporation manufactures and sells milking machines and other dairy farm equipment using the tradename “Surge.” It is a closely held family corporation, its stockholders all being members of two Babson families. Distribution companies with shareholders of the same two families as the Illinois corporation and with common officers and directors with the Illinois corporation were formed in various parts of the country as warehouse operations to distribute the products manufactured by the Illinois corporation. The Georgia corporation is one of these distribution companies, and its officers and directors are all officers and directors of the Illinois corporation. The warehouse operation of the Georgia corporation sometime prior to 1971 was transferred to the central warehouse located at the corporate headquarters of the corporations in Illinois. Allison became the Surge dairy farm equipment dealer for the northeast Florida area in 1959. He operated under contract with the Georgia corporation which by its terms was terminable at will on notice by either party and expired by its terms one year after entry. Ken Harrington was appointed Assistant General Sales Manager in charge of the Illinois corporation’s sales and marketing for all areas east of Chicago in 1968 and was delegated the authority for determining whether dealership agreements would be renewed, terminated or cancelled. It is unre-futed that such authority was delegated to a Mr. Skulborstad by officers of the Illinois corporation who were also officers of the Georgia corporation and by him in turn delegated to his subordinate, Harrington. Because of alleged dissatisfaction with Allison as a dealer, Harrington directed his division manager for Florida to notify Allison 30 days before expiration of the contract that they did not choose to renew it. Such was done by the division manager delivering to Allison a “dealer cancellation notice.” Since Harrington was an employee of the Illinois corporation rather than the Georgia corporation, and Allison’s contract was with the Georgia corporation, such termination or lack of renewal of the dealership contract formed the predicate for this suit against the Illinois corporation.

Allison acknowledged that Harrington was the representative with whom it dealt when it had “customer complaints, a shipping problem or anything” and that after receiving the termination notice it was Harrington that it contacted for assurance that the notice was valid. From the testimony of Harrington, it is apparent that he did not know anything about the organization of the Georgia corporation. He did not know who its officers or stockholders were or where its offices were located. It is not necessary, however, that one be an employee of a corporation in order to be its agent. Economic Research Analysts, Inc. v. Brennan, 232 So.2d 219 (Fla. 4 DCA 1970). Since Harrington had authority to terminate or not renew the contract on behalf of the Georgia corporation, his employer cannot be held liable for interference with the contract between the Georgia corporation and Allison. Said v. Butt, (Eng. 1920), 3 K.B. 497, 11 B.R.C. 317; Greyhound Corp. v. Commercial Casualty Ins. Co., 259 App.Div. 317, 19 N.Y.S.2d 239 (1940); Rhine v. Sanders, 100 Ga.App. 68, 110 S.E.2d 128 (1959).

This case must be reversed for another reason. The Illinois corporation correctly contends that it was privileged to interfere with the contract between Allison and the Georgia corporation because it has a financial interest in the business of the Georgia corporation. The most recent draft of the Restatement of the Law of Torts states as follows:

“769 Privilege of One Having Financial Interest in Business of Person Induced. One who has a financial interest in the business of another is privileged purposely to cause him not to perform a contract with a third person, or not to enter into or continue a contractual relation with him, in the course of that business, if the actor
(a) does not employ improper means, and
(b) acts to protect his interest from being prejudiced by the contract or relation.” Restatement (2d) of Torts § 769 (Tent. Draft No. 14 approved by the Institute 5/21/69).

The financial interest which one must have to come within the privilege varies. In this regard, we find the following statement in Prosser, Law of Tort § 129, pages 944-45 (4th Ed. 1971):

“a. Financial interest. The financial interest in another’s business requisite for the privilege stated in this Section is an interest in the nature of an investment. A part owner of the business, as for example, a partner or stockholder, has at least such an interest.” Comment a, Restatement of Torts § 769 (1939).
“Where the defendant acts to further his own advantage, other distinctions have been made. If he has a present, existing economic interest to protect, such as the ownership or condition of property, or a prior contract of his own, or a financial interest in the affairs of the person persuaded, he is privileged to prevent performance of the contract of another which threatens it . .”

It is clear that a controlling stockholder of a corporation falls within the privilege when he interferes with a contract between the corporation and a third person. See Covert v. Terri Aviation, Inc., 197 So.2d 12 (Fla. 3 DCA 1967), and Felsen v. Sol Cafe Mfg. Corp., 24 N.Y.2d 682, 301 N.Y.S.2d 610, 249 N.E.2d 459 (1969). While in the case sub judice the Illinois corporation did not own the stock of the Georgia corporation, its stockholders did — all of the stock of the two corporations was held by tv/o families. This is a distinction without a material difference.

In addition to the common stock ownership of the two corporations, the Illinois corporation had a clear financial interest in its distributors’ contracts with Surge dealers selling and servicing the Illinois corporation’s products. Such is an interest which will invoke the privilege. See Pierce Ford Sales, Inc. v. Ford Motor Company, 299 F.2d 425 (2 Cir. 1962); Zoby v. American Fidelity Company, 242 F.2d 76 (4 Cir. 1957); and International Expositions, Inc. v. City of Miami Beach, 274 So.2d 29 (Fla. 3 DCA 1973).

Reversed.

SCHLEGEL, LEW E., Associate Judge, concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. The evidence and reasonable inferences to be drawn therefrom created conflicts which in my view were properly to be resolved by the trier of fact. The jury performed its function which was not disturbed by the learned trial judge. I would affirm.


author: PER CURIAM. RAWLS, Acting Chief Judge

text:
    Timothy Lester ERVIN, Appellant, v. STATE of Florida, Appellee.
    No. AA-256.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1976.
    Richard W. Ervin, III, Public Defender and Douglas C. Kearney, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS and SMITH, JJ., concur.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

As I view the issues, appellant Ervin’s conviction of grand larceny should be reversed and set aside. This is so because the jury returned a verdict of guilty as to Count I of the information, and the evidence just does not support the verdict. Meanwhile, the jury returned a verdict of not guilty as to Count II, and as to that count, the evidence was sufficient to have supported a guilty verdict.

Around the first of June, 1974, Mrs. Deborah (Debbie) Witt, the principal prosecuting witness, began living with and supporting Ervin. She filed suit for divorce from her estranged husband on July 1,1974. She and Ervin planned to marry when her divorce was granted. On the night of September 11, 1974, Debbie and Ervin journeyed to Tallahassee and visited Debbie’s sister, Karen, primarily, for the purpose of borrowing $6,300.00 from Karen to buy a van. Karen, who had known Ervin since the last of May, testified that Debbie and Ervin were planning on getting married as soon as her divorce was final and going out to Colorado. For this venture, they decided that they needed a van and the fastest way to get the money was from Karen. It was agreed between the three that Debbie would arrange to get $3,900.00 from her grandmother’s trust and that Ervin would supply the difference, repayment to be made in a few days. On the following day, Karen withdrew the sum of $6,300.00 and loaned it to Debbie, and “they agreed that as soon as her money came in that she would bring it up to me and he would go to the bank and get his and bring his over, too.” In answer to the question on cross examination, “Now, to whom did you make the loan?”, Karen said, “To my sister.”

Ervin and Debbie departed Tallahassee with the $6,300.00 loan and went to Tampa. Debbie testified:

“• • • [W]e bought the vehicle, the van, and we waited until mine [money] came. We got mine and we [went] up to pay her [Karen] back.
“Well, he was supposed to pay part of it, too, because I didn’t have enough. I had $3,900 and he was going to pay the rest of it. We got up there and he was going to go to the bank and to the K-Mart to pay off his boss because he owed him some money, too, he said. “. . .He took off . . and he just left and I had not seen him since until today.”

The sum and substance of the evidence is that Ervin took off with the van and Debbie’s $3,900.00, and the next time she saw him was at the instant trial.

Count I of the information charged Ervin as follows:

“. . . did then and there take, steal, and carry away from the lawful possession of the owner thereof, Karen Henry, certain personal property, to-wit: Good and lawful currency of the United States of America, of the value of more than $100.00 . .

The evidence wholly failed to support the charge. The uncontradicted facts are that Debbie borrowed from her sister, Karen, the sum of $6,300.00. That Ervin participated and was involved in the loan transaction is without dispute; however, the $6,300.00 was borrowed, not stolen, and the money was expended for the purpose for which it was borrowed.

As stated at the outset, sufficient evidence was presented by the state as to Ervin’s stealing more than $100.00 from Debbie which was the charge framed in Count II of the information. However, the jury’s verdict of not guilty exonerated Er-vin as to this count.

The trial judge erred in denying Ervin’s motion for directed verdict as to Count I on the grounds that the evidence was uncon-troverted that the $6,300.00 transaction was a loan from Karen. I would reverse with directions that appellant Ervin be discharged as to any sentence imposed in this cause.

      . Karen testified, “I agreed to loan her [Debbie] the money.” Debbie testified, “So, we went to Tallahassee and I borrowed it from my sister with all intentions of paying her back in a few days when my money came.”

      . Title to the van was placed in the names of Timothy L. Ervin and Deborah Ervin.


author: McCORD, Judge.

text:
    Paul Valdell HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. AA-445.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1976.

      Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals his conviction of robbery by the trial court, jury trial having been waived and also appeals his 40 year sentence. He contends that the court erred in permitting the state to cross-examine as to the number and type of crimes of which he had previously been convicted, the state not having placed in evidence the record of his previous convictions.

On cross-examination, the prosecutor asked appellant if he had ever been convicted of a crime, and he replied in the affirmative. He was then asked how many times, and he replied, “Twice.” He was then asked if he could have been convicted more than two times, and he answered, “Yes.” He was then asked how many times he had been convicted of a crime, and he replied, “Oh, about six or seven times.” He was then asked, “Could it be more than six or seven?” He responded, “Yes, it could be more.” The prosecutor then asked, “Do you have another more accurate number than six or seven?” to which he replied, “No.” The prosecutor then proceeded to question him as to specific crimes to refresh his memory as to the number of crimes he had committed, and he admitted to as many as seven convictions for the specific crimes of forgery, uttering, grand larceny, petit larceny and carrying a concealed weapon. No more than seven convictions were established from the questioning as to specifically named crimes and the prosecutor then dropped the questioning and did not subsequently put in evidence the record of any previous convictions.

While the prosecutor had the right to cross-examine appellant as to specific crimes in an attempt to refresh his memory as to more than seven convictions, appellant having no clear recollection as to the number of convictions [Cross v. State, 96 Fla. 768, 119 So. 380 (1928)], upon failing to obtain admissions to more than the seven, it was the prosecutor’s obligation to then put in evidence the records of more than seven convictions. There was no legal basis for the prosecutor to question appellant as to specific crimes unless he could produce the record of more than seven convictions should appellant not admit to more than seven. The cross-examination was, therefore, improper and in violation of § 90.08, Florida Statutes (1975). When we consider, however, the weight of the evidence as to appellant’s guilt, together with the fact that the trial was before a judge without a jury, it is apparent that the foregoing error did not injuriously affect the substantial rights of appellant and was harmless error. See § 59.041 and 924.33, Florida Statutes (1975), and Cunningham v. State, 239 So.2d 21 (Fla. 1 DCA 1970).

We have also considered appellant’s remaining point and find it to be without merit. See Castle v. State, 330 So.2d 10 (Fla.1976).

AFFIRMED.

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