author: McNULTY, Chief Judge.

text:
    Charles Edward COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 73-928.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.

      Thomas J. Hanlon, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Chief Judge.

Appellant was convicted of attempted grand larceny. The charge was brought under the omnibus larceny statute, and the accusatory writ was framed in terms of attempted common law larceny as permitted by the statute. But the theory of the state’s case was “larceny by trick” which, properly, may be brought under that statute. We .think, however, that the state failed to make out its case and accordingly we must reverse.

The undisputed operative facts are these. Appellant, holding himself out to be a supplier of lawn services, approached the alleged victim, Mrs. Mary Gunderson, at her home and offered to sell her lawn fertilizer at $1.85 per bucket. In response to Mrs. Gunderson’s question as to the number of buckets needed, appellant said, “I don’t know. I don’t imagine too many.” Mrs. Gunderson testified that, “I was of the same opinion that it wouldn’t be too many.” In any case, she accepted the offer and directed appellant to fertilize her lawn.

Appellant departed and returned shortly thereafter with two men and a load of fertilizer. After the three men had begun spreading the fertilizer, Mrs. Gunderson inquired as to the character of the substance being used. Appellant said that it was “good fertilizer” and that it had a “lot of 6-6-6 in it.” Mrs. Gunderson testified that although the “6-6-6” characterization sounded familiar, she was ignorant of the quality of different fertilizers and their components.

After completing the job, appellant presented Mrs. Gunderson with a bill for $450.50. Mrs. Gunderson, while objecting to the price as being exorbitant, nevertheless gave two checks in payment. She had second thoughts about the matter, however, and shortly thereafter contacted her niece and the sheriff about the propriety of the transaction. Acting on their advice she stopped payment on the two checks. Apparently, appellant never having actually received the monies, this was the basis for the attempted grand larceny charge being made herein rather than the grand larceny itself.

In addition to the foregoing, the state presented expert testimony tending to establish that the fertilizer was a “bottom line” product, was “not a good fertilizer” and that an excellent job could have been done for about $100. In addition, a chemical analysis of the soil sample showed that it was not commercial fertilizer consistent with 6-6-6 quality.

As noted, the theory of the state’s case was larceny by trick which, as also noted, may be brought under § 811.-021, supra. Under such a charge one may be guilty thereof when he gets possession of the property of another by means of fraud or trickery and ha.s a preconceived purpose to appropriate such property to his own use or to deprive the owner of its use. This supports the “larceny” aspect of the charge on the theory that the trickery vitiates consent of the owner who is held to retain constructive possession up to the time of conversion by the taker. But the gravamen of the charge in the first instance is “trick”; and there can be no operative “trick” if the victim is not tricked or swindled into reliance or is not induced by the “trick” into parting with his property. The only “trick” or inducement established by the state’s evidence prior to the agreement between the parties, i. e., the acceptance by Mrs. Gunderson of appellant’s offer to fertilize her lawn, related to the amount of buckets of fertilizer needed. Appellant made no representation as to a given number of buckets needed and, indeed, Mrs. Gunderson’s own testimony was that she agreed with appellant that not “too many” buckets appeared necessary. So in the first instance there was no reliance on any representation of appellant. Moreover, the fact that each may after-wards have had a different view as to what constituted “too many” certainly cannot be a predicate for an essential element of larceny by trick, to wit: deception in the inducement. Accordingly, there was no showing whatever of inducement by, nor reliance upon, any “trick.”

It is true that appellant represented the fertilizer to be “good fertilizer” and that he alluded to ' its “6-6-6” quality. Even conceding that it was neither good quality nor of 6-6-6 quality, however, these latter representations were made after the deal was made and, again, were not the predicate for Mrs. Gunderson’s reliance or acceptance. Furthermore, as to the representation of good quality, this is mere “dealer puffing” and is not condemned by the criminal law.

We conclude, therefore, that however reprehensible appellant’s business practices may be in the eyes of the Better Business Bureau, and however amenable he may be to revocation of whatever local business licenses he may have, his actions herein do not constitute a crime or an attempt to commit a crime under the laws of this state. Mrs. Gunderson has already availed herself of one civil remedy she had by stopping payment on her checks. Still other civil remedies or defenses may be available to her either in an action which she may be advised to bring herself or in defense of any action appellant may be advised to bring. The civil side of the court, however, is the proper forum from here on in.

In view whereof, the judgment appealed from should be, and it is hereby, reversed and the cause is remanded with directions that appellant be discharged.

SCHEB, J., concurs.

BOARDMAN, J., dissents.

      . F.S. § 811.021.

      . See Williams v. State (Fla.App.4th, 1970), 239 So.2d 127.

      . Id.

      . See Mehr v. State (Fla.1952), 59 So.2d 259.

        . See Criner v. State (1926), 92 Fla. 483, 109 So. 417; 14 Fla.Jur. False Pretenses § 5 (1957).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles Ray MOORE, Appellant, v. STATE of Florida, Appellee.
    No. Y-264.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.
    Richard W. Ervin, III, Public Defender, and Ronald A. Mowrey, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed on authority of Mancini v. State, Sup.Ct.Fla.1973, 273 So.2d 371.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: SCHEB, Judge.

text:
    George D. LEWIS, Appellant, v. Clara Coleman LEWIS, Appellee.
    No. 74-1506.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.

      Roland J. Hoffer, Hoffer & Sheffey, Zephyrhills, for appellant.
    Charles D. Waller, ■ Larkin, Larkin & Waller, Dade City, for appellee.
   SCHEB, Judge.

Appellant seeks reversal of the trial court’s order striking his “Second Petition to Set Aside or Modify” addressed to a judgment entered on December 23, 1971, dissolving his marriage to appellee and awarding her custody of the children and certain real property as lump sum alimony.

On October 12, 1973, appellant first sought relief against the judgment which he claimed was based upon constructive service fraudulently obtained against him. Subsequently he filed an amended petition seeking to affirm the dissolution of marriage, but to set aside that judgment insofar as it relates to custody and property matters. While the amended petition was pending, the trial court, on June 11, 1974, after personal service was obtained on appellant, definitized certain matters concerning support and certain medical expenses and awarded attorney’s fees to appellee. Also, in that order the court acknowledged appellant had announced a voluntary dismissal of his petition, whereupon the court dismissed, without prejudice, appellant’s amended petition to modify.

On June 12, 1974, appellant filed his “Second Petition to Set Aside or Modify Judgment.” But two days thereafter a voluntary dismissal by appellant was placed in the court file. Then, on October 17, 1974, the appellant filed a motion alleging that although the voluntary dismissal was stamped as filed by the clerk of the court on June 14, 1974, that this filing date was, in fact, an error. Appellant contended the voluntary dismissal, as filed, related to his first amended petition only.

The trial judge entered an order on November 15, 1974, striking the appellant’s “Second Petition to Set Aside or Modify Judgment,” and awarded the appellee’s attorneys their fee for representation of ap-pellee in the dissolution and subsequent proceedings. This order was entered mmc pro tunc as of July 12, 1974; hence being effectively entered on a date prior to appellant’s motion of October 17, 1974, it appears not to represent any adjudication of appellant’s motion to correct the alleged clerical error.

Other points raised by appellant concerning denial of a motion for continuance and award of attorney’s fees are without merit; therefore, this cause is affirmed on these matters. The cause is remanded with directions for the trial court to determine whether a clerical error resulted in dismissal of appellant’s second petition to set aside or modify the judgment entered December 23, 1971.

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


text:
    Ronald Albert BOSWELL, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-289.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1975.
    Louis O. Frost, Jr., Public Defender, and Glenn K. Allen, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

At the sentencing proceeding, the trial court sentenced Boswell to five years in prison to run concurrently with a five-year sentence imposed on him in another case (74 — 2867). The judgment and sentence reflect the trial court sentenced Boswell to consecutive five-year terms. Counsel for the parties agree this was a clerical error which should be corrected to show that the sentences were to run concurrently. This case is remanded for the purpose of correcting the judgment and sentence.

Upon considering the briefs and the record on all other points raised, we find no reversible error. Accordingly, the conviction is affirmed, but this case is remanded for a correction of the judgment and sentence.

McCORD, Acting Chief Judge and MILLS and SMITH, JJ., concur.


author: MARKO, PAUL, Associate Judge.

text:
    INSURANCE COMPANY OF NORTH AMERICA, a Foreign Corporation, et al., Defendants-Appellants, v. James H. TWITTY, Plaintiff-Appellee.
    No. 74-1210.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1975.
    Rehearing Denied Oct. 24, 1975.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto and Dean, West Palm Beach, for defendants-appellants.
    Richard W. Bates, Orlando, and Sten-strom, Davis & McIntosh, Sanford, for plaintiff-appellee.
   MARKO, PAUL, Associate Judge.

This is an appeal from an order entered after a jury verdict against the defendant for damages in a personal injury action.

The defendant made an offer of judgment pursuant to F.R.C.P. 1.442 for “the total amount of $4,000. including plaintiff’s taxable costs accrued to the date hereof, as well as any outstanding liens.” The phrase “any outstanding liens” referred to the personal injury protection benefits carrier’s claim against the plaintiff.

The offer of judgment was not accepted and the jury returned a verdict of $2,500. in favor of the plaintiff. The plaintiff, thereafter, filed his motion to tax costs as follows:

1. Clerk of Circuit Court, fee for filing Complaint $ 20.00
2. State Insurance Commissioner, fee for service of process on Insurance Company of North America 5.00
3. Secretary of State, fee for attempted nonresident service of process on defendants, Mayfield and Worthen 10.00
4. Postage for registered, return receipt requested, deliver to addressee only, mailing of copies of Summons, Complaint and' Notice of Suit and Service of Process to defendants, Mayfield and Worthen 3.20
5. Mary Moore M. Ritchie, per diem, original and copy of deposition of James Moore, M.D. 86.35
6. Rebecca D. Dickerson, per diem, original and copy of deposition of George Debnam, M.D. 82.60
7. James Moore, M.D., expert witness fee for deposition 60.00
8. George Starke, M.D., witness fee and mileage for trial 12.52
9. Mary Moore M. Ritchie, per diem, originals and copies of depositions of Dr. Moore and Dr. Debnam 130.75
$ 410.42

The first four items of these costs, which amount to $38.20, were incurred by the plaintiff prior to the offer for judgment.

The plaintiff argues that the prevailing party is entitled to costs and cites F.S. 57.-041:

“57.041 Costs: recovery from losing party
“(1). The party recovering judgment shall recover all his legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.
Costs may be collected by execution on the judgment or order assessing costs.”

The defendant then filed its motion to tax costs against the plaintiff as follows:

"U Cost of copy of deposition of Dr. Moore $ 15.09
2) Cost of copy of deposition of Dr. Debnam 16.80
3) Attorneys' fee for covering depositions in North Carolina 287.50
4) Court Reporter's expense for attendance at trial 135.00
Balance forwarded $ 454,39
5) Costs of copies of depositions of Dr. Moore and Dr. Debnam (second time) 21.60
6) Attorney's fee subsequent to Offer of Judgment 1,300.00
Total $ 1,775.99"

The defendant argues that these costs were incurred by them after its offer of judgment for $4,000. which was refused and prior to jury verdict of $2,500. in favor of the plaintiff. Defendant relies on F.R.C.P. 1.442.

“Rule 1.442. Offer of Judgment
At any time more than ten days before the trial begins a party defending against a claim may serve an offer on the adverse party to allow judgment to be taken against him for the money or property or to the effect specified in his offer with costs then accrued. If the adverse party serves written notice that offer is accepted within ten days after service of it, either party may then file the offer and notice of acceptance with proof of service and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence of it is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment that shall have the same effect as an offer made before trial if it is served within a reasonable time, not less than ten days, before beginning of the hearing or trial to determine the amount or extent of liability.
Added effective Jan. 1, 1973 (265 So.2d 21.)” (Emphasis supplied)

The trial court granted the plaintiff’s motion to tax cost against the defendant in the full amount of $410.42. The defendants’ motion to tax costs against the plaintiff was denied.

The plaintiff contends that he was not bound by Rule 1.442 because the offer of judgment was conditional; this argument is not well founded. The offer was for $4,000., the total amount and nothing more. The mere fact that the plaintiff could not compute its liability with the personal injury protection benefit carrier was of no concern to the defendants; the defendants’ offer was not conditional.

Therefore, the plaintiff is not entitled to costs incurred after refusing the offer when the judgment finally obtained by the plaintiff is not more favorable than the offer. (F.C.R.P. 1.442) The plaintiff is therefore entitled to only $38.20 in taxable costs.

The trial judge denied the defendants’ motion for costs. The taxation of costs in a civil action is a matter which lies within the broad discretion of the trial court.

We agree with the trial judge’s denial of $1,300. in attorney fees as these are not taxable costs under F.C.R.P. 1.442.

However, the Court, in its discretion, could allow the cost of depositions if they served a useful purpose. Cohn v. Florida National Bank at Orlando, Fla.App., 1969, 223 So.2d 767. In addition, the trial judge could allow item number 3 in the amount of $287.50 for attorney fee for covering deposition in North Carolina, Bill Kelley Chevrolet, Inc. v. Kerr (Fla.App.1972), 258 So.2d 280, and item number 4 in the amount of $135.00 for cost of court reporter’s expenses for attendance at trial, F.S. 57.071. In the event the trial judge, in his discretion, should grant these taxable items, his final order shall off-set the above costs taxable against the plaintiff, 49 C.J.S. Judgments § 566a and b and 49 C.J.S. Judgments § 568d.

Therefore, we affirm in part and reverse in part and remand to the trial court for further proceedings not inconsistent with this opinion.

CROSS and MAGER, JJ., concur.


text:
    Benjamin MONTGOMERY, Jr., Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-415.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.
    H. Clay Mitchell, Jr., Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Upon considering the briefs, record and oral argument, we find no reversible error.

Accordingly, the final judgment is affirmed.

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


author: PER CURIAM. MAGER, Judge

text:
    Vincent ENGDALL, Appellant, v. STATE of Florida, Appellee.
    No. 75-72.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
    Rehearing Denied Oct. 24, 1975.
    Warner S. Olds, Public Defender, and Robert S. Horowitz, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and DOWNEY, JJ., concur.

MAGER, J., dissents with opinion.

MAGER, Judge

(dissenting) :

In my opinion, the per curiam affirmance by the majority effectively ignores several significant general principles of law as well as decisional law dealing with the application of the Williams rule and the circumstantial evidence rule. I must therefore respectfully dissent for the reasons hereinafter set forth.

This case involves an appeal from a judgment of conviction and sentence for breaking and entering a dwelling house with intent to commit a felony, to wit, grand larceny.

The record reflects that on July 16, 1974, an unidentified individual was observed entering a condominium apartment in Coral Springs during the daylight hours. When the occupants of the apartment returned they found that it had been burglarized and various household goods missing including a set of car keys.

An examination of the apartment revealed the existence of a butter knife and copy of a Coral Springs newspaper several days old, neither of which belonged to the occupants. The newspaper, which was in a rolled up position and opened to the classified want ad section, contained a latent fingerprint (which was later identified as belonging to the defendant). Although other places and objects were dusted for fingerprints including the butter knife no other identifiable fingerprints were found except the one taken from the newspaper.

The record further reflects that on July 31, 1974, the police authorities, in response to a complaint from the same occupants of the burglarized apartment that someone was tampering with their car, arrived at the parking lot area of the condominum at approximately two-thirty in the morning and observed a car occupied by the defendant’s brother parked in a slot with the front of the vehicle facing out into the parking area. The defendant was found some several hundred feet away standing in a public phone booth with the phone in his hand. The explanation given by the defendant to the police authorities was that he and his brother had gotten lost on their way home from Pompano to Hollywood and were attempting to make a phone call at a phone booth located in a shopping center several hundred feet from the parking lot of the condominium. (All of the foregoing, which was elicited from the testimony of the state’s witnesses and alluded to in the opening remarks of the prosecutor, was objected to by the defendant at trial.)

The defendant was subsequently arrested for prowling and later charged with breaking and entering an auto. The automobile belonging to the occupants of the apartment was examined but was unable to yield any fingerprints. The testimony in the record reflects that the charges of prowling and breaking and entering an auto were subsequently dropped. Apparently, because of the proximity of the complainants’ car to their apartment and the arrest of the defendant in the vicinity, fingerprints taken at the time of the defendant’s arrest were compared with the fingerprint lifted off the newspaper and found to be those of the defendant. However, the state’s fingerprint expert was unable to establish the time the print was placed on the newspaper.

It is the defendant’s contention that the conviction based upon the fingerprint evidence was error because of the state’s failure to prove that the fingerprint was made at the time the crime was committed; and, furthermore, that the evidence of defendant’s presence in the vicinity of the prior burglary and accompanying arrest was inadmissible as not being relevant. Defendant has assigned several other errors which we find to be without merit and which will not be discussed herein.

In considering the defendant’s contention regarding the “collateral crime” evidence we are again faced with the interpretation and application of the vexatious “Williams rule”. In Marion v. State, Fla.App.1974, 287 So.2d 419, 421, this court restated the observation of the late Mr. Justice Thornal regarding the purpose of this rule:

“ ‘In Williams v. State, supra, we undertook to examine in depth the rules governing the admissibility of similar fact evidence as proof of a fact in issue in a criminal case. We there held that similar fact evidence is admissible if relevant, except to prove bad character or criminal propensities. Such evidence is not objectionable merely because it points to the commission of another crime. The objective to be accomplished by allowing such evidence is not proof of a collateral crime outside of the indictment. Its purpose is to prove a fact in issue in the case before the Court. Its relevancy will not be destroyed merely because it would also be relevant to the proof of a separate crime. .’” (Emphasis added.)

It was additionally pointed out in Marion that there must be a, correlation between the crime charged and the “collateral crime” sought to be utilized. In this regard we observed, in part:

“. . . (J)f identity is in issue, the mere fact that a defendant was identified as being involved in another crime does not render such collateral evidence admissible without some similarity in the operation and scheme of both crimes; there is clearly an interrelationship between method of operation, common scheme or design and identity. . . .” (Emphasis added.) (287 So.2d at 422).

See also Whitehead v. State, Fla.App.1973, 279 So.2d 99. Simply stated, there must be some common denominator between the crime charged and the “collateral crime”; there must be a plateau of sameness or commonality between the separate offenses to justify admissibility. Franklin v. State, Fla.App.1969, 229 So.2d 892; Drayton v. State, Fla.App.1974, 292 So.2d 395.

Manifestly, the intended use of the “collateral crime” evidence must be relevant to the crime charged. See Duncan v. State, Fla.App.1974, 291 So.2d 241. Introduction of “collateral crime” evidence is not for the purpose of showing that the accused has committed another crime but, rather, for the purpose of proving an essential or material issue framed within the charge being tried. Duncan v. State, supra. For example, if similar crimes reflect a similarity (or even uniqueness) between the plan or scheme utilized in both circumstances coupled with the defendant’s positive connection with the collateral crime, such “collateral crime” evidence can be utilized at the trial of the crime charged to establish identity of a defendant if identity is a material fact issue in such case. However, absent commonality and relevancy the resulting and logical effect of the collateral crime evidence is to show the propensity of the defendant to commit other crimes or prove the defendant’s bad character; clearly such use of effect is prohibited. Williams v. State, Fla.1959, 110 So.2d 654.

When measured by the foregoing standard, it is my opinion that the “collateral crime” episodes occurring on July 31 in the parking lot area adjacent to the burglarized condominium are totally lacking in commonality with the crime of breaking and entering of a dwelling committed on July 16 as to be inadmissible. The events of July 31 resulting in an arrest for prowling and a later dropped charge of auto breaking and entering were dissimilar in every respect from the July 16 crime of breaking and entering a dwelling with intent to commit a felony, to wit, grand larceny. The introduction of this evidence was highly prejudicial and under these circumstances it had the obvious effect of leaving the jury with the impression of defendant’s propensity to commit crimes or his bad character.

The dissimilarity in the instant case, between the “collateral crime” and the crime charged is not the only basis for rendering the “collateral crime” evidence inadmissible. As heretofore stated, the “collateral crime” evidence must be relevant — it must be introduced to prove a fact in issue in the case before the court. Marion v. State, supra; State v. Norris, Fla.1964, 168 So.2d 541. Since the “collateral crime” episodes were dissimilar in all respects from the crime charged, evidence of the former could not be characterized as relevant to a common plan, scheme, design or modus op-erandi. Its arguable relevancy would therefore seem to have been the establishment of identity.

However, from a review of the evidence in the record of the circumstances surrounding the July 31 incident there is no evidence to connect the defendant with the purported auto breaking and entering so as to establish identity in that offense. It has been held that in order for evidence of collateral crimes to be admissible there must be clear and convincing proof of a connection between the defendant and the collateral occurrences. State v. Norris, supra; Parnell v. State, Fla.App.1969, 218 So.2d 535. As the Supreme Court observed in State v. Norris, supra,” ... In this respect mere suspicion is insufficient. The proof should be clear and convincing.” While the evidence in the instant case reflects that a crime may have been committed in the parking lot, the evidence is not clear and convincing that such “crimes” were committed by the defendant. See also Norris v. State, Fla.App.1963, 158 So.2d 803.

The unusual facts in this case suggests one additional comment regarding the utilization of the “collateral crime” evidence. The relevancy of any “collateral crime” evidence is dubious, indeed, where it is shown that the charges giving rise to such collateral crimes have been dropped. Recent decisions of the first and third districts have recognized that an acquittal of collateral crime charges does not render evidence of such crimes inadmissible; however, the able dissents in those decisions present persuasive argument to the contrary. Blackburn v. State, Fla.App.1968, 208 So.2d 625; Wingate v. State, Fla.App.1970, 232 So.2d 44; Johnson v. State, Fla.App.1973, 285 So.2d 436; see, in particular, State v. Little, 87 Ariz. 295, 350 P.2d 756 (Ariz.1960). Moreover, there is an obvious difference between the effect of an acquittal and the circumstance where criminal charges no longer exist. The fundamental notion of justice and fair play is somehow offended by the prospect of introducing evidence of collateral acts that cannot be raised to the level of a criminal charge. It is as efficacious as gossip or rumor which certainly have no place within the framework of our criminal justice system.

Excising the inadmissible evidence of the episodes of July 31, the only remaining evidence is the defendant’s fingerprint on a newspaper found in the burglarized apartment. Where fingerprint evidence is sought to be utilized to establish identity the circumstances must be such that the fingerprint could have been made only at the time the crime was committed. Bryant v. State, Fla.1970, 235 So.2d 721; Ivey v. State, Fla.App.1965, 176 So.2d 611; Tirko v. State, Fla.App.1962, 138 So.2d 388; see also Williams v. State, Fla.App.1975, 308 So.2d 595; A.V.P. v. State, Fla.App.1975, 307 So.2d 468. The testimony in the record clearly demonstrates the state’s inability to establish, to any reasonable degree, when the fingerprint was placed on the newspaper.

The newspaper bore a date several days prior to the date of the burglary; and although the evidence clearly demonstrated that the newspaper was not in the apartment prior to the time of the burglary, nevertheless there was no evidence to show when the fingerprint was placed on the newspaper. The fingerprint could have been placed on the newspaper either at the time the crime was committed or at some prior time; the newspaper could have been left in the burglarized apartment by the defendant or by some other person who picked up such newspaper. The most the fingerprint evidence shows is that the defendant touched the newspaper; but it tells us nothing about when. See A.V.P. v. State, supra; see also Williams v. State, Fla.1971, 247 So.2d 425; compare with Roberts v. State, Fla.App.1972, 268 So.2d 578.

It is axiomatic that to sustain a conviction in circumstantial evidence cases the evidence must not only be consistent with the guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. Duran v. State, Fla.App.1974, 301 So.2d 486; Williams v. State, Fla.App.1968, 206 So.2d 446; Amato v. State, Fla.App.1974, 296 So.2d 609. In Harrison v. State, Fla.App.1958, 104 So.2d 391, 394-5, the court aptly observed:

“When circumstantial evidence is relied upon for conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense. If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent as to which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be. It is the actual exclusion of each other reasonable hypothesis which clothes mere circumstances with the force of proof. Circumstantial evidence which leaves nothing more than a suspicion that the accused committed a crime is not sufficient to sustain a conviction.” (Emphasis added.)

See also Terzado v. State, Fla.App.1970, 232 So.2d 232. In particular, it is pointed out in Amato v. State, at 610, 611:

“Bearing in mind that with circumstantial evidence, such as we have in the case at bar, the test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or the appellate court, the evidence fails to exclude every reasonable hypothesis but that of guilt but, rather, whether the jury might reasonably so conclude. Vick v. United States, 216 F.2d 228 (Sth Cir. 1954). The jury is the pivotal point at which the evidence is aimed, not the courts.
* *****
“Assuming arguendo, the jury had only the fingerprint evidence before it with nothing else, the testimony would have been insufficient and a judgment of acquittal should have been granted.

The particular fact situation reflects the existence of evidence which was not legally sufficient to have been submitted to a jury because the jury could not have found guilt beyond and to the exclusion of every reasonable doubt. See also Brown v. State, Fla.App.1974, 294 So.2d 128.

This is not to suggest that fingerprint evidence, alone, found either in a public or a private place is insufficient upon which to predicate a conviction; had fingerprints been found on some other object or location within the burglarized premises or found in a place accessible only by application of force or on objects with which the defendant could not have had legitimate contact, the result might have been otherwise. However, here the prints were discovered on objects which were readily movable and in common usage, i. e. a newspaper. In this regard, the case presents a factual circumstance of first impression in this state.

In United States v. Corso, 4 Cir. 1971, 439 F.2d 956, a case involving fingerprints found on a book of safety matches used to jam a lock at the scene of a burglary, it was pointed out:

“The most damaging evidence was the defendant’s fingerprints found on the matchbook cover. His fingerprints were not discovered elsewhere on the premises, on the damaged safes, desks or other articles in the Credit Union office which had been burglarized although some ten other fingerprints of unidentified persons were there obtained. The Government’s fingerprint expert testified that it was impossible to determine how long defendant’s fingerprints had been on the matchbook cover and admitted they could have been placed there months before the burglary. Thus, there was no direct evidence to show that defendant’s fingerprints were impressed upon the cover at the time of the burglary. The probative value of an accused’s fingerprints upon a readily movable object is highly questionable, unless it can be shown that such prints could have been impressed only during the commission of the crime. . . . ” (Emphasis supplied.)

See also United States v. Cotton, 6 Cir. 1970, 426 F.2d 939. It was also pointed out in Commonwealth v. Cichy, 227 Pa.Super. 480, 323 A.2d 817, 819:

“ . . . (I)f the prints are discovered on an object that is readily movable and in common usage, the possibility of innocent contact is too great to sustain a conviction on that evidence alone.

The fingerprint evidence in the instant case created a strong suspicion consistent with defendant’s guilt; but it did not exclude nor was it inconsistent with a reasonable hypothesis of the defendant’s inno-cense. See Mayo v. State, Fla.1954, 71 So.2d 899. The presence of defendant’s fingerprint on a readily movable object such as a newspaper in common usage coupled with the absence of proof as to when the fingerprints were placed on the object can only be construed as creating a doubt in a reasonable mind. The evidence was not legally sufficient to permit the jury to arrive at any conclusion other than not guilty; therefore a motion for directed verdict of acquittal should have been granted. Brown v. State, supra; Amato v. State, supra.

In order to obviate any characterization that the conclusion reached herein is predicated upon “another legal technicality” I would simply state that a conviction cannot and should not be sustained unless there is proof of guilt beyond a reasonable doubt. No principle is more substantively and firmly ingrained in our system of jurisprudence. However displeasing the process of seemingly releasing an individual who might otherwise be considered “guilty”, safeguarding the constitutional rights of all persons is, has been and must continue to be an essential function of the courts.

Accordingly, it is my opinion that the judgment of conviction and sentence must be reversed with directions that defendant be discharged.

      . The missing car keys were found by a gard-ner working around the shrubbery next to the condominium about a month after the burglary and roughly approximately two weeks after the episode in the parking lot.

      . Defendant testified on his own behalf and sought to explain the presence of his fingerprint on the newspaper. He claimed that he was in the area several days prior to the burglary looking for a job and that he had found a local paper in a phone booth and browsed through the classified ad section and that the newspaper in question was probably the newspaper he had been handling. It might be well to point out that we have no way of knowing whether the defendant would have testified on his own behalf regarding the presence of his fingerprint on a newspaper had it not been for the necessity to explain his presence at the parking lot condominium a week after the burglary.


text:
    Robert S. GIBSON, as Administrator of the Estate of Robert Glen Gibson, Deceased, and Allstate Insurance Company, a Foreign Corporation, Appellants, v. Gerald Isbun CURRY and Dee Curry, husband and wife, Appellees.
    No. 75-816.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
    Daniel A. Carlton and G. Hunter Gibbons, Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellants.
    Jack McGill, Hazen, Berg & McGill, Venice, for appellees.
   PER CURIAM.

Appellants attempted interlocutory appeal from an order striking their third affirmative defense in an action on the law side of the court. This court does not have jurisdiction to consider an appeal from such an order under Rule 4.2 F.A.R., and neither was the order of such nature as to be reviewable by common law certio-rari.

The appeal is therefore dismissed ex mero motu.

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


author: GRIMES, Judge.

text:
    Alfred Lee ROSHER, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1195, 74-1196.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1975.
    Rehearing Denied Oct. 6, 1975.
    Joseph F. McDermott, of McDermott & Ohle, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was found guilty of second degree murder by a jury. On appeal, he claims that certain statements made by him should not have been admitted into evidence.

At trial the testimony of Detective Crawford was proffered out of the presence of the jury. Crawford stated that while appellant was at the booking desk subsequent to his arrest, Arthur Copeland, a co-defendant, was brought from his cell to the booking area. Crawford stated that Copeland pointed to appellant and said, “That’s the man that killed the old man,” and that appellant replied, “Arthur, why did you say that? Why did you tell them that?” Crawford testified that he was aware that Copeland knew appellant personally, but stated that the only purpose for the confrontation was to have Copeland positively identify appellant:

“It was for identification purposes only. I mean, to make sure that I had the right A1 Rosher involved.”

Prior to the confrontation, appellant had been advised of his constitutional rights, had expressed a desire to remain silent, and had requested that an attorney be appointed for him. Thereafter, questioning of appellant had ceased.

Appellant’s motion to suppress his statements was denied by the trial court, stating:

“However I believe that the defendant Rosher had been adequately and properly advised of his constitutional rights prior to this event occurring and that this was a spontaneous statement made on his part to his co-defendant that perhaps should not have been made.”

Upon the return of the jury, Detective Crawford repeated his testimony before it.

Appellant contends that his statements were taken in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution. He claims that his statements were the result of “custodial interrogation” after the exercise of his right to remain silent in violation of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Further, appellant claims that his statements were made under circumstances similar to those in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

Escobedo, supra, is not on point. There, petitioner testified that during the course of the investigation he repeatedly asked to speak to his lawyer and that the police informed him that his lawyer “didn’t want to see” him. The testimony of the police officers involved confirmed this fact. In reality, petitioner’s counsel was present and had repeatedly expressed a desire to see his client. A police officer testified that during the interrogation of petitioner, the following occurred:

“I informed him of what DiGerlando told me and when I did, he told me that DiGerlando was [lying] and I said, ‘Would you care to tell DiGerlando that?’ and he said, ‘Yes, I will.’ So, I brought * * * Escobedo in and he confronted DiGerlando and he told him that he was lying and said, T didn’t shoot Manuel, you did it.’ ”

Thereafter, petitioner made additional statements further implicating himself in the murder plot. At no time prior to making any of these statements was petitioner advised of his constitutional right to remain silent.

While the statements complained of in Escobedo and in the case sub judice arose out of a confrontation between codefend-ants, Escobedo turns upon the denial of petitioner’s request to see his counsel and does not control here.

The holding in Escobedo v. Illinois, supra, was:

“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution . . . and that no statement elicited by, the police during the interrogation may be used against him at a criminal trial.” (Emphasis added.)

At no time was appellant herein denied access to counsel. The trial court found that he had been adequately and properly advised of his constitutional rights and that his statement was “spontaneous.” Spontaneous statements are admissible in evidence even though an accused is in custody when he makes them. Spontaneous statements are those which are not the product of interrogation. See Ashley v. State, Fla.1972, 265 So.2d 685, and Sikes v. State, Fla.App.2d, 1975, 313 So.2d 436.

We are constrained to point out that it would have been better practice to accomplish the identification in a manner whereby appellant was not aware that Copeland was observing him. Should it ever appear that a confrontation between co-defendants has been staged for the purpose of eliciting a response from one of them, we will not hesitate to hold such a ploy the equivalent of impermissible “custodial interrogation” as proscribed by Miranda. Horton v. State, Fla.App.2d, 1973, 285 So.2d 418. Here, however, there is ample support in the record for the trial court’s conclusion that appellant’s statements were spontaneous and not the product of interrogation.

We have reviewed the other points on appeal and find them to be without merit.

Affirmed.

BOARDMAN, A. C. J., and SCHEB, J., concur.


text:
    Julia Ft. BIONDINO, Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 74-1429.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.

      David A. Maney, of Gordon & Maney, Tampa, for appellant.
    Edward M. Waller, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellee.
   SCHEB, Judge.

Appellant, Julia R. Biondino, sued the appellee insuror for damages for loss of consortium because of injuries received by her husband, sustained as a result of an automobile accident with an uninsured motorist. Appellant was the insured under a policy issued by appellee which afforded uninsured motorist protection of $10,000 for each person; $20,000 per accident. Appellant’s husband carried like coverage. In each instance the spouse of the named insured was an additional insured. Appel-lee previously paid the appellant’s husband $20,000 ($10,000 from uninsured motorist coverage under her own policy and another $10,000 from the same coverage under her husband’s policy) and contended such payment exhausted their policy limits. Summary judgment was granted in favor of the appellee insuror; appellant appeals. We affirm.

The Uninsured Motorist Endorsement in the insuring agreement provides:

[T]he company agrees . . . :
To pay all sums ... the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury’’ sustained by the insured, caused by accident and arising out of the ownership maintenance or use of such uninsured automobile; . . . (Emphasis supplied)

Appellant correctly points out that in Mobley v. Allstate Ins. Co., Fla.App.2d 1973, 276 So.2d 495, this court interpreted similar language in the insuring clause of an uninsured motorist endorsement to include loss of consortium as an element of damage recoverable by an insured.

Appellant further argues that her claim for loss of consortium must be satisfied beyond the amounts already paid to her husband, because the policy contains no language intended to limit the amounts recoverable for such loss.

However, under “Conditions” the company’s limits of liability are stated as follows :

4(b) The limit of liability as applicable to “each person” is the limit of the Company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provisions respecting each person, the limit of liability as applicable to “each accident” is the total limit of the Company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as a result of any one accident. (Emphasis supplied)

In New Amsterdam Casualty Co. v. Hart, 1943, 153 Fla. 840, 16 So.2d 118, a husband claimed damages for loss of consortium as a result of his wife having been injured by the negligent operation of an automobile owned by Pearl R. Held. There, the insuror paid its limits of liability on behalf of its insured. After paying the $5,000 policy limits for “each person” to Mrs. Hart, the insuror took the position it had no further liability to Mr. Hart, who as husband claimed damages for expenses incurred in treating his wife and for loss of consortium. In New Amsterdam, supra, the “Limits of Liability” clause stipulated:

2. Limits of Liability. (Coverage A) The limit of bodily injury liability stated in the declarations as applicable to "each person” is the limit of the company’s liability for all damages, including damages for care and loss of service, arising out of bodily injury, including death at any time resulting therefrom, sustained by one person in any one accident; .

There the court held that since the bodily injury was sustained by only one person in one accident, the limit of the company’s liability under its policy was $5,000 for all damages, whether direct or consequential, arising as a result of that bodily injury.

The only material difference between New Amsterdam and the case sub judice is that here we are dealing with uninsured motorist coverage, the basic purpose of which is to allow recovery by the company’s insured to the same extent she would have had it recovered against a motorist who carried liability insurance. Salas v. Liberty Mutual Fire Ins. Co., Fla.1972, 272 So.2d 1.

Paragraph 4(b) of the policy issued by the appellee is plain and unambiguous. Its clearly intended purpose was to place a “cap” on the insuror’s liability. The contract was formulated and, we presume, the policy premium calculated on basis of that maximum underwriting risk. The appellee, having paid its maximum policy limits under each policy in which the appellant is an insured, has discharged its responsibility to appellant under the uninsured motorist provision in the two policies.

Accordingly, the summary judgment in favor of appellee is affirmed.

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

      . To this commonly accepted principle this court in Leatherby Insurace Co. v. Willoughby, Fla.App.2d 1975, 315 So.2d 553, in an opinion by Chief Judge McNulty, recently articulated one exception: an innocent insured under an uninsured motorist provision of a liability policy may recover from his own carrier because of injuries resulting from an intentional injury of an uninsured motorist.


author: BOARDMAN, Judge.

text:
    Klenge M. NELSON, II, Appellant, v. STATE of Florida, Appellee.
    No. 73-1079.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.

      Robert E. Jagger, Public Defender, and V. John Brook, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant, a high school student, was observed smoking (a violation of school rules) with another boy, on the school grounds during school hours by the Dean of Boys and a teacher. They had been looking for another student, but became suspicious when they saw the boys by the tractor shed. When asked what they were doing, the boys answered smoking. An odor of marijuana was detected by one of the two school officials. Both boys were taken to the Dean’s office. Appellant was informed that if he failed to remove all articles from his pockets, school security would be summoned in accordance with established school procedures in such cases. Thereupon appellant complied with the request and removed all articles from his pockets. A pack of marijuana and a corncob pipe were among the articles. Subsequently, an information was filed by the state charging appellant with violation of the Florida Comprehensive Drug Abuse Law, to wit: possession of paraphernalia.

Appellant filed a motion to suppress. The state filed a pretrial motion to exclude the testimony of appellant’s expert witnesses. The trial court, after hearing, granted the motion to exclude and denied the motion to suppress. Whereupon, appellant entered a plea of nolo contendere and reserved his right to appeal both of the said rulings. Appellant was placed on probation under supervision for a term of three years. This timely appeal followed.

Appellant has raised two points on appeal. The first being, in essence, whether the warrantless search and seizure conducted by school officials and the subsequent turning over of the said contraband to the state was unreasonable and constituted a violation of appellant’s Fourth Amendment rights. We have been unable to find a Florida case decisive of this point.

Appellant’s position is based upon the premise that reasonable suspicion was not shown to exist to justify the search and seizure. We do not agree. We have given considerable attention to appellant’s contention that school officials are government officers for purposes of the Fourth Amendment, However, we have no difficulty in determining that school officials in the State of Florida have the responsibility and duty for the safety and welfare of students while they are on school grounds, and we agree with the state’s contention that school officials, at least to a limited degree, stand in loco parentis to students under their supervision and charge. See 79 C.J.S. Schools and School Districts § 493. The standard for a search and seizure grounded on reasonable suspicion may be found in People v. Jackson, N.Y.App.1971, 65 Misc.2d 909, 319 N.Y.S.2d 731, where the court held :

The in loco parentis doctrine is so compelling in light of public necessity and as a social concept antedating the Fourth Amendment, that any action, including a search, taken thereunder upon reasonable suspicion should be accepted as necessary and reasonable.

We are of the view that this standard of reasonable suspicion adequately protects the student from unlawful and arbitrary search and seizure. See State v. Baccino, Del.1971, 282 A.2d 869. Many jurisdictions have adopted the in loco paren-tis doctrine in allowing school personnel, acting on reasonable suspicion, to search students. See People v. Jackson, supra; State v. Baccino, supra; and, In re State in the Interest of G. C., 1972, 121 N.J.Super. 108, 296 A.2d 102, and cases cited therein. As we interpret the facts in the record, we conclude that the seizure of appellant’s property, consisting of contraband, was justified on the basis of reasonable suspicion as found by the trial court. The denial of appellant’s motion to suppress by the trial court was correct.

Appellant’s second point attacks the propriety of the ruling of the trial court granting the state’s pretrial motion to exclude the testimony of appellant’s expert witnesses attempting to establish that Cannabis Sativa L, as defined in Chapter 404, Florida Statutes, (now Section 893.02, Florida Statutes) is not inclusive of all types or forms of the plant, Cannabis, namely Cannabis Indica and Cannabis Ruderalis. We hold to the contrary, as did the trial court after a very lengthy hearing. The identical question has been raised in several federal cases and decided adversely to appellant’s contention. See United States v. Rothberg, E.D.N.Y.1972, 351 F.Supp. 1115, aff., United States v. Rothberg, 2d Cir. 1973, 480 F.2d 534; United States v. Henley, 5th Cir. 1974, 502 F.2d 585; and United States v. Gaines, 5th Cir. 1974, 489 F.2d 690. Accordingly, we

Affirm.

GRIMES, concurs.

McNULTY, Acting C. J., concurs in conclusion only.


author: DOWNEY, Judge.

text:
    James Lucius BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 74-1313.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Kenneth R. Mikos, of Friedrich, Ker-sten, Blackwell & Mikos, Fort Lauder-dale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

In September 1973, appellant was brought to trial before a jury upon a charge of unlawfully aiding or assisting in the setting up, promoting or conducting a lottery in violation of § 849.09(1) (d), F.S. 1973. During the course of appellant’s trial his counsel called the court reporter as a witness for the purpose of impeaching the testimony of one of the state’s witnesses. It appears that the state witness had previously testified at an earlier proceeding which the court reporter had attended. However the testimony had not been transcribed. Defense counsel sought to have the court reporter testify from his stenographic notes. The state objected to the reporter testifying in the absence of a transcript. The trial judge then indicated he would continue the trial for a few days to allow a transcript to be prepared. With that the state “moved for an interlocutory appeal and to have [the case] continued until the appeal [was] heard. . . .” After the court granted said motion, the state voiced concern about the status of the trial jury. Thereafter on the state’s motion that it declare “a court mistrial,” the court declared a mistrial and discharged the jury.

No appeal was filed by the state, perhaps for obvious reasons.

Before appellant was brought to trial again in September 1974, he moved for discharge on the ground, among others, of prior jeopardy. Said motion was denied. Appellant was thereafter tried, convicted, and sentenced to three years imprisonment.

Although appellant raises several questions in his brief, we need not treat them all since we are persuaded that his motion for discharge on the ground of prior jeopardy was well founded.

“A person is placed in jeopardy when he is put upon trial under an indictment or information sufficient in form and substance to sustain a conviction before a court of competent jurisdiction and a jury has been impaneled and sworn to try the case and charged with his deliverance. Allen v. State, 52 Fla. 1, 41 So. 593.” State ex rel. Williams v. Grayson, Fla.1956, 90 So.2d 710, 713. Once jeopardy has attached the trial judge should discharge the jury before verdict only in cases of manifest urgency or necessity. Discharge of the jury for legally insufficient reasons, without the defendant’s consent, is equivalent to an acquittal and^precludes a subsequent trial for that offense. State ex rel. Williams v. Grayson, supra.

We find no justification in the record for the discharge of the jury in appellant’s first trial. The appellant’s proposed impeachment of a witness via the court reporter and his stenographic notes would have been proper. In any event, the entry of an order continuing the trial for several days so the reporter might prepare a transcript was within the trial court’s discretion. The state’s suggestion that it was going to take an interlocutory appeal in the middle of the trial had no foundation in the statutes, rules, or case law of this state. And such a suggestion did not constitute a sufficient legal reason, or show any manifest urgency or necessity for the court to declare a mistrial; thus the declaration thereof by the court at the first trial amounted to an acquittal of appellant precluding his subsequent trial and conviction.

Accordingly, the judgment and sentence appealed from are reversed and the cause is remanded with directions to discharge the appellant.

Reversed and remanded.

WALDEN, C. J., and OWEN, J., concur.


author: HAVERFIELD, Judge.

text:
    Irving SOMERSTEIN et al., Appellants, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellant, v. Irving SOMERSTEIN et al., Appellees.
    Nos. 74-1133, 74-1365 and 74-1524.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Oct. 15, 1975.

      Horton, Perse & Ginsberg, Miami, Stein-berg & Neustein, Miami Beach, for Somer-stein and others.
    Joseph Wanick, City Atty., Lionel Bar-net, Sibley, Giblin, Levenson & Ward, Miami Beach, for City of Miami Beach.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

In these consolidated appeals we are asked to review two orders of contempt entered against defendant-appellants for their alleged violations of the terms of an injunction. The salient facts are as follows:

Since 1967 Irving Somerstein, Sidney Hechtman and Somerstein Caterers of Florida, Inc., defendants in the trial court and appellants herein, have been engaged in the business of providing a kosher catering service within the premises of Temple Emmanu-El located on Miami Beach, Florida. It appears that this kosher catering service is a necessity in that Jewish law dictates that the Bar Mitzvah or wedding ceremony must be accompanied by a kosher feast, the Feast of Merit, at which various blessings are said over the Feast itself. Appellee, City of Miami Beach, plaintiff in the trial court, for several years permitted the defendants to conduct their catering service within the premises of the Temple.

However, on March 13, 1973 the City of Miami Beach filed a complaint praying for injunctive relief against the defendants upon the allegations that defendants were operating a commercial catering business upon the premises of Temple Emmanu-El in the City of Miami Beach in a high density, multi-residential zone, an area not zoned for such commercial business activity. In response thereto, defendants filed an answer, affirmative defenses and a counterclaim. The cause came on for trial before the Honorable David Popper who found that defendants were not in violation of the City’s zoning ordinance when catering affairs on the premises of Temple Em-manu-El initiated by and solely for bona fide affiliated organizations of the Temple or the Temple itself. Thereupon, Judge Popper entered the following judgment:

******
“ORDERED AND ADJUDGED as follows :
“1. The Defendants are permanently enjoined from operating a catering business or commercial enterprise at 1701 Washington Avenue in the CITY OF MIAMI BEACH, Florida. The Defendants will be permitted, however, to perform catering services on the Temple premises solely for and only when actually initiated by Temple Emanuel or bona fide affiliated organizations thereof, such as the Temple’s sisterhood, men’s club or young organization of the Temple.
“2. That the Defendants-Counterclaim-ants take nothing by their counterclaims and that the Plaintiff-Counterde-fendant go hence without day and the said counterclaims be and they are dismissed with prejudice.”
******
On June 28, 1974 Judge Popper held an additional hearing at which he attempted to clarify the terms of the above injunction as follows:
******
“THE COURT: All right. I made these findings and I want you all to hear them and if I change anything and you are all here to hear them.
“I made findings that the Somerstein Caterers could not operate as a business from the Temple.
“I said they were an ancillary function of the temple and they could operate for temple purposes.
“I gave as examples Bar Mitzvah’s, marriages and things of that nature and that is all they can do, and they.cannot cater to anybody else from the temple premises.
******
“They are ancillary for purposes such as Sisterhood, men’s organizations, youth organizations and for the temple itself, and the temple in its functions and that the Rabbi is performing in behalf of the temple which could be a marriage or a Bar Mitzvah or something like that and if the Court deems it to be a temple function.
“I think I have concluded this hearing, gentlemen.
“MR. SHAPIRO: Your Honor, what about the term on the bottom of the line where it says, ‘Actually initiated by ?’
“THE COURT: I don’t care.
“I made specific statements as to the people not mentioned of the temple who could not come to the caterers and ask for a function to be performed by the caterers and if they make arrangements through the Rabbi for the marriage and the Rabbi himself contacts them then it is a temple function and if they contact him it is a temple function.”

Approximately two weeks later, on July 10, 1974 the City filed a motion for rule to show cause and alleged that defendants had violated the terms of the final judgment and injunction by catering on the Temple’s premises several parties, to wit (1) the Kaplan Bar Mitzvah on the afternoon of June 29, 1974, (2) the Katz Bar Mitzvah that evening, (3) the Reichwald-Hirschhorn wedding later that same day. Judge Popper issued a rule to show cause and a hearing was set for October 10, 1974.

On August 13, 1974 the City filed a motion seeking the court’s sanctions against defendants and again alleged a violation of the June 19 injunction in that defendants catered on the premises of Temple Em-manu-EI the Vasserstein-Bialkowicz wedding on August 10, 1974 and the Genet Bar Mitzvah on August 11.

A hearing was held the following day (August 14) before the Honorable Rhea Pincus Grossman who found that the defendants had violated the provisions of the permanent injunction by catering the Vas-serstein-Bialkowicz wedding upon the premises of Temple Emmanu-El and thereupon (1) held the defendants in contempt of court, (2) fined defendants Somerstein and Hechtman $1,000 each, and (3) sentenced them to a term of 30 days in the county jail commencing September 1, 1974. Upon proper motion, Judge Grossman held a rehearing on August 28, 1974 at which time Rabbi Irving Lehrman, the spiritual leader of Temple Emmanu-El, testified that Jewish law speaks of a Simcha Shel Mitzvah which is the celebration (in the form of eating dinner and so on) of the mitzvah of a religious event and, therefore, the August 10 wedding dinner was in accord with the dictates of Jewish law and tradition and a function of Temple Em-manu-El carried out under the Temple’s auspices. Nevertheless, Judge Grossman found that this use of the sanctuary of Temple Emmanu-El by defendants in providing a catering service to private persons was a subterfuge and an obvious attempt to circumvent the prohibition for the conduct and operation of a commercial catering business as set forth in the June 19 court decree. The judge then ordered defendants Somerstein and Hechtman to pay the $1,000 fines previously assessed against them and to serve a 30 day jail sentence to commence September IS, 1974. Defendants filed their appeal from this contempt order of September 3,1974.

Thereafter, hearings on September 4 and 10, 1974 were conducted before Judge Popper concerning a motion filed by the City styled “Further Motion for Contempt” and upon defendants’ motion for stay and su-persedeas of the contempt order of September 3, 1974 and motion for relief therefrom. Judge Popper denied all these motions but did enter an order eliminating the jail sentences from the September 3 contempt order.

Finally, on October 10; 1974 a hearing was had before Judge Popper in regard to the rule to show cause issued on July 12, 1974 and on October 29, 1974 the judge entered a judgment of contempt which reads in part as follows:

******
“The Court finds and determines, that the Defendants are permitted to provide catering services where those services are directly related to a religious service, performed upon the Temple Emmanuel premises, and officiated by a Rabbi employed by the Temple, whether or not the persons for whom the services have been provided are members of Temple Emmanuel, as this constitutes a ‘Temple-initiated function’, under the provisions of the Final Judgment and Permanent Injunction, heretofore entered by the Court in this Cause, on June 19, 1974.
“Therefore, the catering services provided by the Defendants in connection with the ‘Kaplan Bar Mitzvah’, on June 29, 1974, and for the ‘Mermelstein-Davis’ and ‘Reichwald-Hirschhorn’ weddings, on June 30, 1974, were not violative of the provisions of the aforesaid Final Judgment.
“However, the Bar Mitzvah party in honor of the son of Mr. and Mrs. Arnold Katz, on June 29, 1974, and wherein the actual religious ceremony was not performed at Temple Emmanuel, was in violation of the aforesaid Injunction. Therefore, it is,
“ORDERED AND ADJUDGED, that the Defendants are in Contempt of this Court, for having violated the provisions of the Final Judgment and Permanent Injunction, by having provided a catering service, at Temple Emmanuel, on June 29, 1974, said service being in the nature of a commercial catering service, not ancillary to a Temple or religious function, and as a sentence therefore, the Defendant, SOMERSTEIN CATERERS OF FLORIDA, INC., shall forthwith pay a fine, into the Registry of the Court, in the sum of ONE HUNDRED ($100.00) DOLLARS.”
* * * ‡ * ‘ ‡

Defendants appealed from this contempt judgment and the City of Miami Beach also appealed.

We first turned our attention to the argument of appellants that Judge Grossman in her ruling of September 3, 1974 erred as a matter of law and fact in adjudging them in contempt of court for violating the terms of the June 19 final judgment and order. We agree.

The September 3, 1974 order finding the defendants in contempt was based upon the catering by the defendants of the Vasserstein-Bialkowicz wedding on August 10, 1974. Judge Popper in his order of October 29, 1974 determined that defendants are permitted to provide catering services where those services are directly related to a religious service performed upon the premises of Temple Emmanu-El and officiated by a rabbi employed by Temple Emmanu-El, whether or not the persons for whom the services have been provided are members of Temple Emmanu-El, as this constitutes a “Temple-initiated function.” The August 10 Vasserstein-Bialkowicz wedding service and reception took place at Temple Emmanu-El and a rabbi approved by the Temple officiated. Thus, the catering service rendered by the defendants at this wedding was permissible under the June 19 final judgment as clarified by Judge Popper, and Judge Grossman was in error in adjudging the defendants in contempt. Accordingly, the contempt order of September 3, 1974 is reversed, vacated and held null and void.

We next considered the contention of appellants that the trial court erred in its order of October 29, 1974 as a matter of law and fact in adjudging the appellants in contempt of court and imposing sanctions where the permanent injunction had not been particularized adequately, especially where some activities were permissible and some not. We find this point has merit.

This contempt order was based upon defendants’ catering the Katz Bar Mitzvah party on June 29, 1974 on the premises of Temple Emmanu-El. However, the actual religious ceremony was conducted at a private residence.

Intention is one of the elements of contempt. Florida Ventilated Awning Co., Inc., et al. v. Dickson, et al., Fla.1953, 67 So.2d 218. Further, the. rule is that in an injunction proceeding the acts or things enjoined should be specified in the decree with such reasonable definiteness and certainty, considering their nature and character, that a defendant bound by the decree readily may know what he must refrain from doing without the matter being left to speculation and conjecture. Moore, et al. v. City Dry Cleaners & Laundry, Inc., Fla.1949, 41 So.2d 865.

As appellants contend, the injunctive order is somewhat unclear as to the catering services which are permissible and those services which are not permissible under the terms thereof, and the correctness of this position is illustrated by the inconsistent decisions rendered by the trial court on September 3 and October 29 based on essentially the same facts.

Appellants sought a clarification of the terms of the injunction at the hearing of June 28, 1974 which was held at their request. Based upon Judge Popper’s explanation of his order (set out herein-above) at this hearing, they believed that they were in compliance therewith in confining their catering services to the premises of Temple Emmanu-El .and discontinuing their practice of catering at other locations. Hence, it cannot be said that the appellants by catering the Katz Bar Mitz-vah party on the premises of the Temple intended to disobey the injunction which lacked the requisite degree of definiteness and certainty.

Hence, the contempt order of October 29, 1974 hereby is reversed and vacated.

We also have an additional reason for voiding the October contempt judgment. This reason relates to the issue of what is a “Temple-initiated function.”

The undisputed testimony gleaned from the record reflects that Temple Emmanu-El offers all of its services and facilities to its members and non-members alike. According to Jewish law and tradition, it is incumbent upon the celebrants to have a celebration in the form of a kosher dinner, the Feast of Merit or a Simcha Shel Mitz-vah, following a religious service or event.

Temple Emmanu-El contracted with the appellant kosher caterers so that it might be able to provide its members and members of the Jewish community at large with the opportunity to comply with Jewish law and tradition in having a Feast of Merit following a religious service or event such as a Bar Mitzvah or marriage ceremony. It therefore follows that the kosher dinners catered on the premises of Temple Emmanu-El are in essence religious functions in themselves carried out under the auspices of Temple Emmanu-El and initiated by the Temple.

We conclude that on the Temple premises catering by the appellants of the June 29, 1974 Katz Bar Mitzvah Feast or Sim-cha Shel Mitzvah (wherein the actual Bar Mitzvah ceremony was not performed at Temple Emmanu-El) was a “Temple-initiated function,” and, therefore, not violative of the provisions of the June 19 injunction. In other words, it is proper for appellants to provide catering services on the premises of Temple Emmanu-El to both members and non-members following a religious ceremony or event, whether or not such ceremony or event is held at Temple Emmanu-El, as this celebration in the form of eating is a “Temple-initiated function.” Of course, appellants also are permitted to provide catering services where those services directly are related to a religious service which is performed upon the Temple Emmanu-El premises and at which a rabbi employed or approved by the Temple officiates, whether or not the persons for whom the services have been furnished are members of Temple Emmanu-El, as this constitutes a “Temple-initiated function.”

In light of our disposition of appellants’ two points on appeal, we find the appeal of plaintiff, City of Miami Beach, from the October 29, 1974 judgment of contempt to be moot and lacking in merit.

For the reasons stated and upon the authorities cited, the contempt order of September 3, 1974 and the judgment of contempt of October 29, 1974 are reversed and vacated.

It is so ordered.


text:
    Herbert BUCHWALD, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and Travelers Indemnity Company, both foreign companies authorized to do business in the State of Florida, Appellees.
    Nos. 74-1663, 74-1664.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1975.
    Rehearing Denied Oct. 15, 1975.
    Pelzner & Schwedock, Miami, for appellant.
    Walton, Lantaff, Schroeder, Carson & Wahl, and George W. Chesrow, Miami, for Hartford.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for Travelers, appellees.
    Before PEARSON and HENDRY, JJ., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

These appeals are by the plaintiff, Herbert Buchwald, who brought a declaratory action against two insurance companies claiming that each owed him a duty to defend a suit which had been filed against ljim. Separate judgments denying Buchwald’s claim were entered against him in favor of the two insurance companies, Hartford Accident and Indemnity Company and Travelers Indemnity Company. The plaintiff filed an appeal from each judgment and the appeals were consolidated for all appellate purposes.

The judgments were entered upon defendants’ motions for summary judgment, the trial judge holding that each suit was barred by the rule stated in Consolidated Mutual Insurance Company v. Ivy Liquors, Inc., Fla.App.1966, 185 So.2d 187.

Appellant’s principal argument is that the cited case is not applicable. We hold that it is. See also Tennessee Corporation v. Lamb Brothers Construction Company, Fla.App.1972, 265 So.2d 533 and C. A. Fielland, Inc. v. Fidelity & Casualty Company of New York, Fla.App.1974, 297 So.2d 122. But see St. Paul Fire and Marine Insurance Company v. Icard, Merrill, Cullis and Timm, Fla.App.1967, 196 So.2d 219. There being no allegation in the declaratory suit that the original plaintiff in the damage suit ever claimed damages for anything other than willful assault and battery, we conclude that the trial judge correctly determined that there was no issue to be tried and decided the cause according to the governing law.

Affirmed.

HENDRY, J., dissents.

      . * * *
      “2. The court finds that on the authority of Consolidated Mutual Insurance Co. v. Ivy Liquors, Inc., 185 So.2d 187 (Fla.App., 3d, 1966), the Defendant, TRAVELERS INDEMNITY CO. is entitled to a summary judgment as a matter of law on the undisputed facts.
      “3. The court finds that the original suit of Samuels v. Buchwald was for the intentional tort of assault and battery, and the policy issued by the Defendant, TRAVELERS INDEMNITY CO. to Herbert Buchwald did not provide coverage for intentional torts. That being the case, TRAVELERS INDEMNITY CO. was not required to defend the action nor to pay any claim resulting therefrom.”


text:
    Elizabeth Greube RIES, Appellant, v. Albert K. RIES, Appellee.
    No. 74-1640.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
    Rehearing Denied Oct. 21, 1975.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellant.
    Charles G. Brackins of Rogers, Morris & Ziegler, Fort Lauderdale, for appellee.
   PER CURIAM.

Upon consideration of the briefs and oral argument and after a review of the record on appeal we are of the opinion that the record supports petitioner’s entitlement to permanent alimony in the amount of $250.00 per month rather than rehabilitative alimony. See Patterson v. Patterson, 315 So.2d 104, Fla., Fourth District Court of Appeal, opinion filed June 6, 1975. In all other respects the final judgment is affirmed.

Affirmed, in part; reversed, in part.

OWEN and MAGER, JJ., and DIA-MANTTS, GEORGE N., Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    Jerry GILLMAN et al., Appellants, v. Cora GILLMAN, Appellee.
    No. X-410.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1975.
    Rehearing Denied Oct. 6, 1975.

      Robert J. Mayes, Levin, Warfield, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellants.
    Robert P. Gaines, Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellee.
   BOYER, Chief Judge.

The only issue to be here resolved relates to the definition of “permanent disfigurement” as that term is used in the Florida Automobile Reparations Reform Act, specifically F.S. 627.737. That statute provides that any person who suffers an injury in an automobile accident which results in a permanent disfigurement “may recover damages in tort for pain, suffering, mental anguish and inconvenience” resulting from the injury. Sub judice the appellant, plaintiff in the trial court, resisting a motion for summary judgment filed by the defendant, appellee here, filed an affidavit by a physician reciting the finding on the plaintiff’s head of “a 4.5 centimeter trap-door scar of the right forehead extending through the medial end of the right eyebrow and onto the right upper eyelid” which affidavit further recited that the “scar was somewhat widened and was very apparent at conversational distance.” The physician opined in the affidavit that “Jerry Gillman will have a permanent, visible scar of his right forehead, brow and eyelid that will be very apparent at conversational distance, and that this scar will be there for the rest of his life.” There was also filed in the record a stipuation of the parties to which was attached a color photograph of the plaintiff which photograph reveals the scar referred to in the physician’s affidavit. That stipulation recites that the photograph is an accurate reproduction of the appearance of the plaintiff, that the medical expenses necessarily incurred in the treatment of the plaintiff as a result of the accident amounted to $502.-75, that if plastic surgery is performed in the future to alter the appearance of any scars that might be visible the reasonable expense of such plastic surgery will exceed $1,000 and that the plaintiff has no other permanent injury except the scar which can be seen on the above mentioned photograph. The learned trial judge, apparently holding that the scar does not constitute a “permanent disfigurement” entered a summary final judgment in favor of the defendant, reciting that the plaintiff’s claims are barred by the provisions of F.S. 627.-737.

The Florida Automobile Reparations Reform Act does not define the word “disfigurement”. However, other jurisdictions have defined that term as being “that which impairs or injures the beauty, symmetry or appearance of a person or thing; or that renders unsightly, misshapen, or imperfect, or deformed in some manner.” (Bethlehem-Sparrows Point Shipyard v. Damasiewicz, 187 Md. 474, 50 A.2d 799) In Branham v. Denny Roll and Paint Company, 223 N.C. 233, 25 S.E.2d 865, the court defined “disfigurement” as a “blemish, a blot, a scar or a mutilation that is external and observable, marring the appearance.”

We hold that a permanent scar may be a permanent disfigurement within the contemplation of F.S. 627.737. We do not imply that every scar is a disfigurement but when the existence of the scar is established, whether or not it is a disfigurement is a matter of fact to be determined by the trier of fact and may not be resolved, when properly placed in issue, by summary judgment.

_ , . , , , , Reversed and remanded for further proceedings consistent herewith.

RAWLS and McCORD, JJ., concur.


text:
    William CROSS, Appellant, v. STATE of Florida, Appellee.
    No. Y-3.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1975.
    Rehearing Denied Oct. 22, 1975.
    Leo A. Thomas of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

We have carefully examined the record-on-appeal and the briefs filed by able counsel. The evidence is not conflicting. The briefs of the parties reveal that each point here presented has been heretofore determined by decisions of this Court and of the Supreme Court of Florida. Nothing would be added to the jurisprudence of this State by again discussing those points here.

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

Affirmed.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


text:
    Errol B. RESNICK, Appellant, v. STATE of Florida, Appellee. David HICKS, Appellant, v. STATE of Florida, Appellee.
    Nos. T-91, T-92.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1975.
    Rehearing Denied Oct. 22, 1975.

      John Paul Howard, Jacksonville, Hubert I. Sears, Jr., and David R. Best, Best & Sears, Orlando, for appellant in No. T-91.
    David R. Best, Best & Sears, Orlando, for appellant in No. T-92.
    Robert L. Shevin, Atty. Gen., Andrew W. Lindsey, Asst. Atty. Gen., for appellee in Nos. T-91 and T-92.
   MELVIN, WOODROW M., SR., Associate Judge.

The above appeals challenge the validity of the verdicts and judgments entered and life sentences imposed against Resnick and Hicks for the crime of murder in the first degree.

The parties will be referred to as they were designated in the trial court.

Resnick and Hicks, along with others to whom immunity was granted in exchange for evidence, entered into a plan to murder Horace M. Hartwig, a commercial pilot, who was a potential witness against Res-nick in a federal prosecution for alleged unlawful drug smuggling.

In accord with the plans of Resnick, Hicks and others, the details of which we need not here explore, Hartwig was murdered with a pistol, face and hands bathed in acid, and buried in a shallow grave.

The defendants do not challenge the legal sufficiency of the evidence to establish beyond and to the exclusion of every reasonable doubt, that they and their cohorts had violated the sacred constitutional rights of Hartwig to his life, his liberty and his right to pursue happiness. The jury found that they unlawfully destroyed those rights by killing him. The defendants do, however, contend that the verdicts, judgments and sentences must be set aside, and a new trial ordered for alleged procedural errors, to which the defendants address some one hundred assignments.

An assignment is addressed to the admission in evidence of testimony concerning the skull of the deceased, and also concerning a book of matches found under the body of the deceased. The skull, with the remainder of the body, had been buried in another state. Therefore, the trial court had no jurisdiction to order the authorities of a sister state to exhume the skull for examination. As to the book of paper matches, the testimony before the court was to the effect that the deteriorated condition of the body and its proximity to the matches, made it impossible to preserve the matchbook beyond the original clearing and examination effort.

There is no evidence that the State deliberately suppressed or withheld the exhibits from the defendants. See Resnick v. State, 287 So.2d 24 (Fla.1974), text page 28.

Another assignment alleges that excessive security measures prevailed in the courtroom and corridors during the progress of the trial to the prejudice of the defendants. We glean from the record here that the trial judge had been advised by reliable federal and state officials of their understanding that a plot existed to bring about an armed invasion of the courtroom, the assassination of one of the defendants and the escape of the other. In this atmosphere, it is charged that the judge and security officials brought excessive security measures into being. We hold that when a judge is so advised of pending potential violence, he has the inherent authority and the duty to invoke such security as under existing circumstances appears to be reasonably necessary for the protection, not. only of the judge, but of all lawfully before the Court.

In Florida v. Young, 283 So.2d 58 (Fla.App.1973), text page 60, this Court held:

“In any prosecution there are, of course, two parties involved; the State of Florida as the plaintiff and the person accused of crime as the defendant. They each stand before the Bar of Justice upon level ground. The defendant is entitled to a fair and an impartial trial. By the same token, the State of Florida, representing its citizenry, is likewise entitled to a fair and impartial trial. Neither the State of Florida nor any defendant may, within reason, expect to receive a perfect trial in any tribunal in which mortals preside. In nearly every adversary proceeding, some technical error may be found. Unless error reaches to and affects in a prejudicial manner the rights of a party to a fair and impartial trial, such error is harmless and does not infect the validity of the proceedings.
“One of the stated purposes of those who put together the fabric of the Constitution of the United States was to ‘establish justice’ and insure ‘domestic tranquility’. (Emphasis supplied.) Such no-bel purposes were not reserved just to those accused of crime. They spread as a mantle of protection for the citizenry in general.”

It is easier to be critical than it is to be correct. We have considered all of the assignments of error presented by the defendants and find no reversible error.

The judgments appealed are affirmed.

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


text:
    L. K. K’UNG, Appellant, v. R. Ray GOODE, etc., et al., Appellees.
    No. 74-1285.
    District Court of Appeal of Florida, Third District.
    Aug. 19, 1975.
    Rehearing Denied Oct. 15, 1975.
    Korner & Sampson, Coral Gables, for appellant.
    Stuart Simon, County Atty., and Jon I. Gordon and Robert Krawcheck, Asst. County Attys., for appellees.
    Before BARKDULL, C. J., PEARSON, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Odham v. Foremost Dairies, Inc., Fla.1961, 128 So.2d 586; Pushkin v. Lombard, Fla.App.1973, 279 So.2d 79; and Dade County v. Transportes Aereos Nacionales, Fla.App.1974, 298 So.2d 570.

DREW, E. HARRIS (Ret.), Associate Judge, dissents.


author: WILLIS, BEN C., Associate Judge. SPEAR, MERCER P., Associate Judge

text:
    Gladys CLARK, Individually and as Executrix of the Estate of Cecil Woodrow Clark, Appellant, v. Charles Thomas ENGLISH and Brenda English, husband and wife, Appellees.
    No. W-91.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1975.
    Rehearing Denied Oct. 20, 1975.
    Barne J. Morain, and Robert L. Erwin, III, of Morain & Roddenberry, Pensacola, for appellant.
    Calvin W. Wilson, Pensacola, for appel-lees.
   WILLIS, BEN C., Associate Judge.

This case was previously before this Court, in English, et ux v. Clark, et al, 1st DCA Fla.App.1974, 289 So.2d 33, in which a final judgment, as supplemented, which dismissed with prejudice a complaint for specific performance of an agreement for the sale of real property, was reversed and remanded for further proceedings. Upon remand, the trial court conducted a further hearing, took testimony, and rendered the judgment which is the subject of the instant appeal.

This case originated as a suit for specific performance brought by the purchasers against the sellers all of whom had been parties to a layman-drafted written agreement for the sale of certain real property, part of which belonged to Cecil Woodrow Clark, now deceased, individually, and part by Mr. Clark and his wife, Gladys Clark, as tenants by the entirety.

The entire contract is as follows:

“ October 1st, 1969
We, C. W. Clark and Gladys Clark, have this day received $1,000.00 (One-Thousand-Dollars) as an official binder on the property now used as a Service Station located at 6605 North Davis Highway, Pensacola, Florida, front of the lot not to exceed 135 feet and the back of the lot not to exceed 55 feet.
Total Price $25,000.00
Binder 1,000.00
Balance 24,000.00
Payments of $200.00 due on 1st of each month, beginning November 1st, 1969 and $8000.00 due in six months (April 1st 1970) at 5% (Five Percent) intrest (sic) on $24,000.00, intrest (sic) to be added every 6 Mo. (Six months) beginning October 1st, 1969.
(signed)
C. W. Clark
(signed)
Gladys Clark
We, Charles Thomas English and Brenda English, do agree to the above contract,
(signed)
Charles Thomas English
(signed)
Brenda English
Lovey B. Messick (signed)
WITNESS
Jack Messick (signed)
WITNESS
(Notary Seal of Jack Messick, with expiration date stated as August 16, 1970)”

The trial court initially found that the parties had entered into and intended to be bound by this contract, and that such contract was a contract for a deed but that it could not be specifically enforced because of a variation in views between the parties as to what was agreed upon. This Court, in the first appeal, made note of the above findings and rulings and further observed the factual circumstances to include the payment of the “binder payment”, that valuable improvements had been made on the property by the Englishes, who also conducted their business there and made the required monthly payments until negotiations as to the form of conveyance broke down. It was also stated:

“The decedent and his attorney eventually agreed to the form of closing which appellants devised, but he died before the sale was consummated. There was no evidence that appellee Gladys Clark ever agreed to the arrangement which her husband had verbally agreed to. In fact, after her husband’s death, appellee [Gladys Clark] desired to terminate the original agreement of sale.” p. 35.

In reversing the dismissal of the complaint, this Court recognized that the decedent husband had agreed to a method of conveyance upon which the Englishes had also agreed, and that if his individually owned portion is ascertainable, specific performance could be granted as to that portion “with an appropriate reduction in the purchase price”.

With regard to the “variation in views between them as to what was agreed upon”, this Court ruled that the contract deary prqvided “for the sale to appellants [Englishes] of the subject property”, p. 35, and that the variation in views was not what was agreed upon but how the transaction was to be completed.

A dispute had arisen as to the description of the property to be conveyed, but this Court ruled that any defenses on this issue had been waived as was evident from the pre-trial order appearing in the record. This court further recognized that the primary issue was whether or not the Englishes had complied with the original contract or have breached it so as not to be entitled to any specific enforcement. It was said: “We have been unable to find in this record any evidence, nor any findings by the trial court, relating to a breach of the contract by [Englishes]. Nor does such evidence appear in the resume of- facts submitted by the trial court. In fact, if any breach of contract occurred at all, it appears to us that the breach lies on the part of . . . [Gladys Clark] when she, as set forth in the resume of facts, 'elected to terminate the agreement of October 1, 1969’ after her husband’s death. In short, there is no evidence in the record before this Court as to whether . [Englishes] breached the original contract, without waiver by [Gladys Clark], so as to justify a rescission of said contract”, p. 35.

The case was remanded “for the further taking of testimony on the issues mentioned in this opinion”, p. 36.

The Clarks were the owners of property which was located at an intersection of a public street and a highway. On the corner was located a grocery store which the Clarks operated. The subject property is a parcel, on which was located a service station building which lies north of the grocery store area. On the west of the grocery store area was a building leased to a rental business being conducted there. The contract deals with the portion on which the service station was situate. After signing the contract, the $1000 was paid, the Englishes went into possession and thereafter made eleven monthly payments. None of the parties were represented by attorneys until sometime prior to April 1970 when the Englishes employed counsel to look into the matter and advise as to closing out the transaction. The transaction was complicated by the fact that the lease intended for the rental business erroneously described the subject property, and the entire area including the service station, grocery store, and rental business was subj ect to a blanket mortgage. Furthermore, the lease was pledged to secure a bank loan. The attorney for the Englishes conferred with Mr. Clark with the view of correcting the lease description and thus clearing the subject property and also obtaining a release of subject property from the blanket mortgage. Apparently the mechanics were worked out with Mr. Clark, but before they could be implemented he died. Subsequently, negotiations continued with Mrs. Clark but ultimately they broke down with Mrs. Clark contending the contract was terminated by failure of the Englishes to pay the $8000 payment due April 1, 1970 and the monthly installments subsequent to September 1970. The Englishes contended they were ready, able and willing to pay what was obligated but Mrs. Clark refused to accept same. Thus, the suit for specific performance was instituted with the results above mentioned.

On the trial after remand it was shown that the mortgage is now paid off and the lease error has been corrected. It further appears that it is impractical to consider separately the property which Mr. Clark owned individually from that which had been held by the entireties as the line would go through a building on the property. Also, since Mrs. Clark now owns the property which had been held by the entireties prior to Mr. Clark’s death and she is the executrix of his estate, all interests are before the Court.

It is well to observe here that the law of the case has been settled by the prior opinion and judgment of this Court, except as to the issues remanded for further consideration. The judgment of the trial court under review here recited that “the contract dated October 1, 1969, together with the later acts of the parties, constitutes a valid and binding contract for deed of real estate specifically enforceable by this action.” It also found that there is presently due (as of May 10, 1974, the date of the judgment) monthly payments of $200.-00 each beginning October 1, 1970 to and including May 1, 1974 and also the $8000.-00 payment due April 1, 1970, all with interest as provided by the contract. Dealing with the issue of whether or not there had been a breach by the Englishes, the following was stated:

“. . . the attempt of Gladys Clark to terminate the agreement was of no legal effect. While, the Englishes, upon advise (sic) of their attorney, made no payments after September 1, 1970, negotiations actively continued between the parties relating to the method of closing the transaction. Not until after a tender of $8,-967.10 on February 1, 1971 did Mrs. Clark give notice to the plaintiffs she no longer considered herself bound. If there was a technical breach by the Englishes, such was waived by continuing negotiations. The conduct of Mrs. Clark constitutes the breach for which defendants are held accountable. In such a posture, the negotiations having been terminated by Mrs. Clark and she having renounced the contract, it therefore was unnecessary for a futile tender to be made by the plaintiffs. The law does not require a useless act.”

It appears that the trial court correctly proceeded to resolve the issues remaining to be decided after this Court had rendered its judgment and remanded the case for further proceedings. Though the evidence was conflicting in many particulars and different inferences might have been drawn from the evidence by reasonable men, we deem that there is competent substantial evidence to sustain the findings of fact of the trial court and to support the application of legal conclusions expressed. The Court was not dealing with the enforcement of a new contract but only on the details of how the transaction was to be completed within the terms of the agreements embodied in the contract of the parties. The issue was principally whether or not the Englishes had breached the agreement and thus would be precluded from specific performance of the contract. This was decided and no error is found in the decision.

The trial court retained jurisdiction for the entry of further orders as may be necessary or appropriate including taxation of costs. Thus, there is the power in the trial court to render such supplemental judgment as may be necessary to give effect to the adjudications made and hereby affirmed.

Affirmed.

McCORD, J., concurs and SPEAR, MERCER P., Associate Judge, dissents.

SPEAR, MERCER P., Associate Judge

(dissents).

I would reverse. The buyers failed to comply with the terms of the original contract, and therefore are not entitled to specific performance.