text:
    THE FLORIDA BAR In Re Louis C. ROSETTI, Jr.
    No. 50076.
    Supreme Court of Florida.
    Oct. 21, 1976.
    Philip J. Padovano, St. Petersburg, Bar Counsel, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for the Florida Bar, complainant.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

The Complaint filed by The Florida Bar pursuant to Article XI of the Integration Rule of The Florida Bar alleges as follows:

“COUNT I
1. The Respondent, Louis C. Rosetti, Jr., is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule have been fulfilled.
3. The Respondent was retained by the executrix, Dorothy Jean Flinn, to represent the estate of her deceased husband, Carl N. Flinn, who died on February 13, 1971.
4. Probate of the estate was begun on July 15, 1971.
'5. The Last Will and Testament of the decedent established a trust for the benefit of decedent’s mother, Mrs. Lola Le-bowsky.
6. Since the Ohio Citizens Trust Company of Toledo, Ohio, named in the will as trustee, had declined on June 19, 1975, to act as such, a petition for substitute trustee and accounting was filed on June 30, 1975, by Mr. Alfred Winn, attorney for the guardian of the beneficiary of the trust.
7. A responsive pleading by the Respondent, as attorney for the estate, was required, but no such pleading was ever filed by Respondent.
8. Furthermore, when Respondent delivered his file to new counsel, he failed to include a copy of the petition for substitute trustee, and he failed to notify new counsel of the pendency of the petition.
COUNT II
9. Complainant realleges the allegations contained in Paragraphs 1-4 of Count I.
10. Respondent failed to file federal estate tax returns for the estate of Carl N. Flinn as required by law.
11. The estate will be penalized due to Respondent’s failure to file the necessary federal estate tax returns.
COUNT III
12. Complainant realleges the allegations contained in Counts I and II.
13. After he was dismissed by the executrix on or about January 1, 1975, Respondent received repeated requests for the ease file from the estate’s present attorney, Mr. W. K. Zewadski.
14. Respondent failed to act upon these requests for approximately seven or eight months.
15. Under the foregoing allegations contained in Counts I, II and III, Respondent has been delinquent in the administration and the handling of this estate, has caused damage to the estate, and therefore, has violated Disciplinary Rules 7-101(A)(2), 7-101(A)(3), and 6-101(A)(3).”

Thereafter, Respondent tendered his Conditional Guilty Plea pursuant to Article XI, Rule 11.13(6) of the Integration Rule of The Florida Bar in exchange for disciplinary measures which are hereby approved as follows:

“1. The Respondent shall be suspended from the practice of law for a period of thirty (30) days, effective December 1, 1976;
2.Thereafter, the Respondent shall be placed on probation for a period of three (3) years. During the period of probation, the Respondent shall file with the Clerk of the Supreme Court, copies of which shall be provided Staff Counsel for the Florida Bar, a quarterly case load report outlining the current status of cases which Respondent has agreed to undertake on behalf of clients. This report should include information as to cases disposed of during the quarter. Such reports will be confidential in nature and Respondent may include therein such additional information as he deems relevant to an evaluation by the Court of his prompt and diligent prosecution of his case load;
3. That Respondent shall repay to Dorothy Jean Flinn the sum of Two Thousand Eight Hundred Forty-Eight and 67/iooths ($2,848.67) Dollars representing a portion of the fee previously paid Respondent by Mrs. Flinn;
4. Respondent shall agree to reimburse Mrs. Dorothy Jean Flinn for any costs, penalties, or interest, that she may incur as a result of Respondent’s failure to timely file the Federal Estate Tax Return in the Estate of Carl N. Flinn, deceased.”

Costs in the amount of One Hundred Ninety-One Dollars and Thirty Cénts ($191.30) are hereby taxed against Respondent, said sum to be paid within thirty (30) days from this date.

It is so ordered.

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


source: Caselaw Access Project

author: DOWNEY, Judge. WALDEN, Judge

license: Public Domain

text:
    HI-ACRES GROVES, INC., et al., Appellants. v. E. Pope BASSETT, Trustee, et al., Appellees.
    No. 75-475.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1976.
    David J. Fuller, George T. Eidson, Jr., Akerman, Senterfitt, Eidson & Wharton, and William B. Mesmer, Mesmer & Robbin-son, Orlando, for appellants.
    Charles R. Fawsett and Patrick A. Thompson, Johnson, Motsinger, Trismen & Sharp, P. A., Orlando, for appellees.
   DOWNEY, Judge.

We have for review a final judgment granting specific performance of a contract to sell real property in Seminole County, Florida. After a lengthy hearing, the trial judge entered an exhaustive comprehensive final judgment in which he set forth his analysis of the testimony and documentary evidence and his findings and conclusions of law. The final judgment states:

“WHEREFORE, at long last, and after considering all the matters and issues framed by the pleadings and urged and argued by counsel, the court finds that the plaintiff has sustained the material allegations of his complaint by the greater weight of the evidence and that the greater weight of the evidence fails to sustain any legally sufficient defense asserted in the defendant’s answer and that the equities of the cause are with the plaintiff and against the defendants and the plaintiff is entitled to specific performance of the contract in question.”

The rule in Florida is well established that in a suit for specific performance of a contract for the sale of realty the plaintiff must do more than prove his case by a preponderance of the evidence; he must prove his case by competent and satisfactory proof which must be clear, definite, and certain. Miller v. Murray, 68 So.2d 594 (Fla.1953); 29A Fla.Jur., Specific Performance, § 151. As the court stated in Humphrys v. Jarrell, 104 So.2d 404, 410 (Fla.2d DCA 1958):

“. . . the granting of a final decree in a specific performance suit requires that the proof be clear, competent, and satisfactory. This test imposes a greater degree of proof than that required under the preponderance of evidence rule.”

Thus it appears that the trial judge utilized the wrong quantum of proof in determining whether appellee should recover.

We could appropriately reverse the judgment on that basis and remand the case for a new trial. However, during the trial of this case (which trial began November 25, 1974, and ended December 4, 1974) the contentions of the parties were adequately explored in the evidence adduced. It would appear from the thorough treatment in the 20 page final judgment that the trial judge would be in a position to determine whether or not the proof was sufficient to meet the required burden of proof.

Accordingly, we temporarily relinquish jurisdiction of the cause to the trial court for a period of thirty days with the directions that the court reconsider the evidence and determine whether the appellee has sustained the material allegations of his complaint by competent and satisfactory proof which is clear, definite, and certain. Upon making that determination the trial court is requested to advise this court of his finding in a written order.

Remanded with directions.

SCHULZ, GEORGE E., Associate Judge, concurs.

WALDEN, J., concurs in part, dissents in part, with opinion.

WALDEN, Judge

(concurring in part; dissenting in part):

I concur in the majority decision that the trial court employed the wrong measure of proof in deciding the issue.

I dissent from the majority decision to temporarily relinquish jurisdiction to the trial court to have the old evidence assayed in light of the correct rule which this court now announces.

In my opinion the judgment must be reversed and the cause remanded for a new trial.

The cases are uncountable in the Reporter System where the trial court commits a fundamental harmful error causing a new trial. While expediency is a desirable goal, I think it most harmful precedent, regardless, to simply send the case back and give the trial court a fresh and successive bite at the apple, based on the same record. Is it possible for the trial court to recall all the criteria and circumstances existent when the evidence was freshly presented and now assay it from the printed record using a different measure? I don’t think so.

If the majority method is correct, then there never need be a new trial, at least in non-jury cases. An appellate court simply directs the trial court to reconsider in light of the appellate advice and see if the trial court result would still be the same. While at first blush this may seem reasonable, a deeper consideration would, I feel, reveal that such procedure would afford a lesser degree of justice.

Repeating, I would reverse and remand for a new trial.


author: DOWNEY, Judge.

text:
    HI-ACRES GROVES, INC., et al., Appellants, v. E. Pope BASSETT, Trustee, et al., Appellees.
    No. 75-475.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1976.
    David J. Fuller, George T. Eidson, of Akerman, Senterfitt, Eidson & Wharton, and William B. Mesmer, of Mesmer & Rob-binson, Orlando, for appellants.
    Charles R. Fawsett and Patrick A. Thompson, of Johnson, Motsinger, Trismen & Sharp, P. A., Orlando, for appellees.
   DOWNEY, Judge.

On August 31,1976, this court temporarily relinquished jurisdiction of this cause to the trial court with directions that the trial court reconsider the evidence and determine whether the appellee sustained the material allegations of his complaint by competent and satisfactory proof which is clear, definite and certain as is required to warrant specific performance.

The trial judge has now advised this court by written order dated September 23, 1976, that upon reconsideration of the evidence he finds that the material allegations of the complaint were proven by competent and satisfactory evidence which is clear, definite, and certain.

Our consideration of the record demonstrates adequate support therein for such a finding. Accordingly, the judgment appealed from awarding specific performance to appellee is in all respects affirmed.

ALDERMAN, J., and SCHULZ, GEORGE E., Associate Judge, concur.


author: SCHLEGEL, LEW E., Associate Judge.

text:
    MONTGOMERY ENTERPRISES, INC., et al., Appellants, v. The ATLANTIC NATIONAL BANK OF JACKSONVILLE, a corporation, Appellee.
    No. Y-499.
    District Court of Appeal of Florida, First District.
    Sept. 3, 1976.
    Rehearing Denied Nov. 22, 1976.

      Stephen D. Rees of Icard, Merrill, Gullis, Timm & Furen, Sarasota, for appellants.
    J. Kennedy Hutcheson, Jacksonville, for appellee.
   SCHLEGEL, LEW E., Associate Judge.

On March 30, 1973, appellant, Montgomery Enterprises, Inc., executed a written lease to lease three (3) new Mack dump trucks for four (4) years, with appellee, the Atlantic National Bank of Jacksonville. The lease provided, among other things, that rental payments were due the first of each month in forty-eight (48) consecutive monthly installments of $2,209.87 and that Montgomery was to carry physical damage, collision and liability insurance on the trucks. Appellants, Montgomery Hauling Company, Inc., and S. E. Montgomery, Jr., and Peggy Montgomery, his wife, each guaranteed the lease.

After considerable communication between the parties concerning Montgomery’s late payments and the alleged failure to properly insure the trucks, on November 7, 1973, Atlantic notified Montgomery that it was in default of Sections 11 (failure to properly insure) and 16 (non-payment within ten (10) days after due date) of the lease and that Atlantic had elected to accelerate the unpaid balance due ($88,040.36).

The trucks were subsequently repossessed and sold for $55,500.00. Atlantic filed its Complaint, alleging that Montgomery failed to make payments timely and provide proper insurance coverage. In the Final Judgment, the trial court found that “. defendant Montgomery Enterprises, Inc., breached the lease . . .,” without specifying that defendant had breached one or both of the provisions alleged, and adjudged the defendants indebted to Atlantic in the sum of $52,184.38.

On the question of failure to make timely payments, the evidence shows that the first payment (April) was received by Atlantic on April 3; the May payment was received on May 14, 1973; the June payment was received June 20, 1973; the July payment was received July 11, 1973; the August payment was received August 21,1973; and the September payment was received October 9, 1973. A check for the October and November payments plus late charge thereon was sent November 8, immediately following a telephone conference on the same date between Montgomery and Atlantic representatives, during which Atlantic’s representative advised that a payment of $4,628.61 (two (2) payments plus interest and penalty) would be accepted and would bring the rental payments current. Atlantic received Montgomery’s check in the stated amount on November 9, promptly rejected the tender and returned same to Montgomery. When Montgomery sent the check it was not aware that Atlantic had sent a letter terminating the lease and accelerating the balance due on November 7.

In its first two points on appeal, Montgomery argues that the trial court committed reversible error by:

1. Not finding Atlantic is estopped to declare a default, with acceleration of the rental balance due, because it refused to accept Montgomery’s tender of the October and November payments in the amount orally requested by Atlantic.
2. Not finding Atlantic had waived payment by Montgomery of rent on the first of each month and had therefore waived Atlantic’s contractual right to declare a default and accelerate the remaining rental balance due.

The case law of this state is clear that a creditor may conduct itself in such a manner that it either waives its right to declare a contract in default or is estopped to do so without first giving the debtor notice of its intent to declare a default. Commercial Credit Co., Inc. v. Willis (1936), 126 Fla. 444, 171 So. 304; Thomas N. Carlton Estate, Inc. v. Keller et al. (Fla.1951), 52 So.2d 131; Enfinger v. Order of United Commercial Travelers (Fla.App.1963), 156 So.2d 38; Fonact Corp. v. Superior Apartments, Inc. (Fla.App.1971), 251 So.2d 537; Ford Motor Credit Company v. Waters (Fla. App.1973), 273 So.2d 96; New England Mutual Life Insurance Company v. Luxury Home Builders, Inc. (Fla.App.1975), 311 So.2d 160, and Raffa v. Dania Bank (Fla. App.1975), 321 So.2d 83.

The parties, in the case at bar, agree that none of the seven (7) payments made by Montgomery and accepted by Atlantic were made on time and six (6) were accepted after the ten (10) day grace period.

In Ford Motor Credit Company v. Waters, supra, the seller had, over a period of eighteen (18) months, consistently accepted late payments from the buyer and had sent at least two (2) late payment notices, but repossessed the automobile without notice when the buyer fell two months in arrears. The appellate court, reversing the trial court which has incorrectly struck the buyer’s claim for wrongful repossession, said:

“The facts before us adequately set up a pattern of conduct that would lead the appellee to believe that late payments would be accepted by the appellant and that he would be allowed to catch up in his payment arrears. Notification of a change in this pattern should have been given to appellee by appellant prior to the repossession of the automobile.” (273 So.2d at page 100)

While the Ford Motor Company case deals with repossession, it also deals with the necessity to giving notice and an opportunity to “catch up in his payment arrears,” rather than be required to pay the full balance due. It’s difficult to imagine a case in which the facts would more clearly show a pattern of conduct that would lead a lessee to believe his late payments would be accepted. Montgomery was entitled to notice that Atlantic intended to change its pattern and an opportunity to pay its arrears prior to the lease being declared in default and the full balance accelerated.

Atlantic argues that Montgomery is contractually barred from arguing waiver because of paragraph 26 of the lease. But the contract in the Ford Motor Credit Company case contained a similar provision, and the Court pointed out its decision was not bottomed on waiver:

“But waiver is not the issue before us. The issue is the right of the buyer to rely upon the prior dealings that had taken place and the buyer’s right to be notified of a modification of such conduct on the part of the appellant.” (273 So.2d at page 100)

Also see Raffa v. Dania Bank (Fla.App. 1975), 321 So.2d 83.

In this case Montgomery tendered all arrearage prior to any notice, actual or constructive, of the lease being declared in default; and where a notice of default and acceleration and the late payment cross in the mail, the lessor is estopped to accelerate. Pearson v. Arthur (Fla.App.1971), 248 So.2d 227. Also see River Holding Co. v. Nickel (Fla.1952), 62 So.2d 702 and Clay v. Girdner (1931), 103 Fla. 135, 138 So. 490.

The next question is whether or not Montgomery breached section 11 (failure to properly insure) of the lease. Although the trial judge did not indicate which of the provisions of the contract were breached, the judge did say at the conclusion of the case:

“I think the insurance question on the plaintiff’s side is questionable. I don’t say that it is lacking in probative value or insufficient evidence at this point, but I think it’s rather weak.”

We agree. We have reviewed the record and find the evidence insufficient to sustain a finding that Montgomery breached section 11 of the lease.

REVERSED.

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

      . “No covenant or condition of this Lease can be waived except by the written consent of the Lessor. Forbearance or indulgence by Lessor in any regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by Lessee to which same may apply, and, until complete performance by Lessee of such covenant or condition, Lessor shall be entitled to invoke any remedy available to Lessor under this Lease or by law or in equity despite such forbearance or indulgence.

      . . waiver by seller of any default shall not be deemed a waiver of any other default.
      “10. This contract constitutes the entire agreement between buyer and seller and no modification of any of the terms and conditions herein shall be valid in any event, and buyer expressly waives the right to rely thereon, unless made in writing duly executed by seller.”


author: BASKIN, NATALIE, Associate Judge. DOWNEY, Judge

text:
    IMPERIAL TOWERS CONDOMINIUM, INC., etc., et al., Appellants, v. Samuel T. BROWN et al., Appellees.
    Nos. 75-352, 75-962.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1976.
    Rehearing and Suggestion for Certification Denied Nov. 29, 1976.

      Henry M. Schmerer and Barry A. Man-delkorn of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, and Kates & Ress, P.A., North Miami, for appellants.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   BASKIN, NATALIE, Associate Judge.

These are consolidated appeals from two orders entered in the same cause in an action brought by four individual unit owners and a condominium association, Imperial Towers Condominium, Inc., against the developer. All Plaintiffs-Appellants sued individually and on behalf of all other members, unit owners and purchasers. The first interlocutory appeal is from an order finding the cause not to be maintainable as a class action. The second order dismissed an amendment to the pending complaint and had the effect of precluding the Association from maintaining the action as a class action. Plaintiffs’ claims are for breach of contract, breach of implied warranty, declaratory judgment as to lease and pledge agreements, equitable relief from unconscionable documents and misrepresentations under the Florida securities law. All claims pertain to the common elements. Only the class action claims have been dismissed; the claims by the parties in their individual capacities are still pending.

Imperial Towers Condominium is a 281 unit residential condominium consisting of two high rise buildings, surrounding land, parking areas and recreational facilities. The condominium was developed, built and sold by the Defendants-Appellees. The Defendants retained ownership to a portion of the condominium property used primarily for recreational purposes and rented that portion to Imperial Towers Condominium, Inc., the Association, for a period of ninety-nine years. All but 28 purchasers pledged their apartments as security for the payment of the lease rentals. The individual Plaintiffs were all purchasers of condominium units from the Defendants and are unit owners and members of the Association. Forty-eight of the 281 units were resold by the original purchasers prior to the filing of this lawsuit. Many of the 281 units are held in more than one name.

Defendants contend the cause could not be maintained as a class action because of lack of identity among the alleged representatives and absent class members; lack of standing of class representatives; disparate defenses and absence of a single decisive fact or facts.

Defendants urge that the trial court’s ruling decided a question of fact and should not be disturbed absent an abuse of discretion. In addition, they contend that the record considered by the trial court regarding discrepancies among class members was not included on appeal.

The trial court held a hearing at an early stage of the proceedings in accordance with the procedure authorized in Federated Department Stores, Inc. v. Pasco, 275 So.2d 46 (Fla.App.1973) which states:

“Where a plaintiff asserts the right to litigate on behalf of a class of persons not joined with him in the action, the trial court is obliged to make a determination at an early stage of the trial as to whether the suit can properly proceed as a class action. ... In determining whether a class action may proceed, the trial court must not only confirm that the parties named actually represent the class, but must clearly demonstrate that the class encompasses the necessary community of interest.”

See also Costin v. Hargraves, 283 So.2d 375 (Fla.App.1973).

The trial court then held the cause was not maintainable as a class action and later dismissed the class action of the Association. (See Footnote 1, supra).

We reverse both decisions of the trial court for the reasons set forth below.

Florida Statute 711.12(2) states:
“The association, whether or not incorporated, shall be an entity which shall act through its officers and shall have the capability of contracting, bringing suit, and being sued with respect to the exercise or nonexercise of its powers. For these purposes, the powers of the association shall include, but not be limited to, the maintenance, management and operation of the condominium property. When the board of administration is not controlled by the developer, the association shall have authority and the power to maintain a class action and to settle a cause of action on behalf of unit owners of a condominium with reference to matters of common interest, including, but not limited to, the common elements, the roof and structural components of a building or other improvement, and mechanical, electrical, and plumbing elements serving an improvement or a building, as distinguished from mechanical elements serving only a unit.”

Prior to the amendment to Florida Statute 711.12, class actions brought by an association were dismissed on the ground that the association lacked standing since it was not a real party in interest. Hendler v. Rogers House Condominium, Inc., 234 So.2d 128 (Fla.App.1970); Rubenstein v. Burleigh House, Inc., 305 So.2d 311 (Fla.App.1974). The amendment removed that bar. Since this cause consists of claims relating only to the common elements, the statute, as amended in 1974, permits the association to represent the class. Wittington Condominium Apartments, Inc. v. Braemar Corp., 313 So.2d 463 (Fla.App.1975). Defendants contend that the statutory authorization applies only to standing and that a factual compliance with the standards set forth in Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.App.1963) as approved in Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291 (Fla.1973) must be met. Those standards are that a complaint in a class action must:

“(1) show the necessity for bringing the action as a class suit;
(2) show the plaintiff’s right to represent the class;
(3) allege that plaintiff brought suit on behalf of himself and all others similarly situated;
(4) allege the existence of a class, described with some degree of certainty;
(5) allege that the members of the class were so numerous as to make it impracticable to bring them all before the court;
(6) make it clear that plaintiff adequately represents the class; and
(7) show that the interests of the plaintiff were coextensive with the interests of the other members of the class.” (Emphasis by the Court).

A class may also be defined in terms of the result sought, however.

“A class suit is maintainable where the subject of the action presents a question of common or general interest, and where all members of the class have a similar interest in obtaining the relief sought. The common or general interest must be in the object of the action, in the result sought to be accomplished in the proceedings, or in the question involved in the action. There must be a common right of recovery based on the same essential facts.” Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.App.1963). (Emphasis added).

These standards are incorporated in Florida Statute 711.12.

Florida Statute 711.12 provides the Association with more than mere standing to maintain a class action; it effectively unites common goals in obtaining relief by declaring Association members to be a class insofar as the common elements are concerned. The class members are described in the statute with some degree of certainty and their interests are coextensive as a result of the cooperative nature of condominium ownership of the common elements. The class is defined as a matter of law.

For that reason it is not necessary for this court to review the exhibits on which the trial court relied in determining as a question of fact Plaintiffs’ membership within the class.

All unit owners are members of the Association. The class action is now recognized by statute, as well as by Florida Rule of Civil Procedure 1.220, which states:

“When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.”

is the most expeditious manner for the presentation of their claims.

Defendants argue that the unit owners occupy diverse positions since some owners purchased their units directly from the developer, some purchased from prior owners, some purchased after the filing of this action, some failed to sign pledges and some engaged counsel. These differences may permit subclasses to be designated for the purpose of determining damages.

Because the class action is authorized by statute, any member of the class similarly situated may pursue the class action. For this reason, it was error for the court to rule out the class action concerning common elements brought by the four individual unit owners who are also members of the Association. However, the class will be adequately represented by the Association and additional representation of the class by those individual unit owners filing claims is unnecessary.

The trial court apparently considered only facts pertaining to the status of each unit purchaser without recognizing that the cause was maintainable as a class action as a matter of law under Florida Statute 711.-12 because the unit owners have a common interest in the common elements. The trial court abused its discretion in so doing.

The orders of the trial court are reversed.

MAGER, C. J., concurs.

DOWNEY, J., concurs in part and dissents in part, with opinion.

DOWNEY, Judge

(concurring in part and dissenting in part).

These consolidated appeals involve the validity of a complaint strewn throughout a fifteen hundred page record. Generally it appears that a condominium association and four unit owners have joined together in an action for damages and equitable relief against the original developers.

The basic complaint involved is plaintiffs’ third amended complaint. Count I thereof is brought by the condominium association against the developers for damages for defects in the construction of the common elements. Count II is brought by the association for breach of a fiduciary duty because the defendant-developers while acting as the directors of the condominium association, dealt with themselves in negotiating the 99 year lease of the recreation area, all to the detriment of the subsequent unit purchasers. These two counts and Count V of the complaint are not involved in these appeals. Counts III through IX are brought by the association, and the four individual unit owners, individually and as a class. Count III is for breach of contract arising out of the defects sued upon in Count I. Count IV is for breach of warranty arising out of the defects sued upon in Count I. Count V is for misrepresentations involved in procuring the individual unit owners to enter into contracts to purchase the individual units (this count is no longer maintained as a class action).

Appellants’ amendment to the third amended complaint contained Counts VI, VII, VIII, and IX brought by both the association and the four individual plaintiffs. Count VI sought a declaration of plaintiffs’ rights under the 99 year recreation lease. Count VII sought a declaration of plaintiffs’ rights arising out of a pledge agreement executed by some of the unit owners. Count VIII seeks equitable relief from the unconscionable 99 year lease, the pledge agreements, the declaration of condominium, and parts of the by-laws. Count IX alleges the documents in Exhibit D to the complaint were securities under Florida Statutes and defendants were in violation of the Florida Sale of Securities Law.

Plaintiffs’ amended third amendment to the third amended complaint simply added an additional ground for the breach alleged in Count I and additional allegations under Count VI.

The amended fourth amendment to the third amended complaint seeks to amend Counts III, IV, VI, VII, VIII, and IX by invoking the right of the association to maintain a class action on authority of Section 711.12(2), Florida Statutes (1975), as to all of said counts.

Thus it is apparent that the basic complaint and the plethora of amendments is not involved solely with the common elements of the condominium.

The interlocutory order in 75-352 holds that none of the counts may be maintained as a class suit. This order was entered after a pretrial hearing, as is most appropriate, to determine whether or not the case could proceed as a class action. Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So.2d 463 (Fla.4th DCA 1975); Federated Dept. Stores, Inc. v. Pasco, 275 So.2d 46 (Fla.3d DCA 1973). In entering the order the trial court must exercise the widest discretion, since it must consider many factual matters contained in the record. City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295 (2d Cir. 1969); Shumate & Co., Inc. v. National Association of Security Dealers, Inc., 509 F.2d 147 (5th Cir. 1975).

In my view the trial court exercised its wide discretion properly. Apparently the trial court’s inquiry led it to conclude there was too great a diversity of interests, defenses, and claims with regard to the two hundred and eighty-one present unit owners to support a class action. This conclusion finds legal support in Costin v. Hargraves, 283 So.2d 375 (Fla.lst DCA 1973), wherein the court said:

“In determining whether a class action may proceed, it must appear that the parties named actually represent the class and that the class encompasses the necessary community of interest. It must further appear that the claims, issues and defenses are common to all the members of the class. The interests of the plaintiffs must be coextensive with the interests of the other members of the class with a common right of recovery based on the same essential facts.”

Under these circumstances the only basis upon which we could reverse the order precluding the maintenance of this suit as a class action would be to hold that Section 711.12(2) creates a new type of class action for condominiums enabling the association to bring a class action for all of the unit owners based simply upon their “general interest” in the subject matter. It is my conclusion that Section 711.12(2) was passed only to give condominium associations standing to sue in a class action, and that all the other requirements necessary for maintaining class actions pertain to condominium associations as to other parties. I would therefore affirm the interlocutory order involved in 75-352.

The second order under review in 75-962 dated May 13, 1975, refers to the third and fourth amendments to the third amended complaint. I would reverse that part of the order dismissing the part of the amended third amendment to the third amended complaint which seeks to add an additional ground for the breach of contract alleged in paragraph 8 of Count I and affirm the order in question as it concerns the remainder of the amended third amendment. Finally, I would affirm that part of the order of May 13, 1975 which dismisses the amended fourth amendment to the third amended complaint.

In all events the first order of business on remand should be to require appellants to file another complaint with all its parts contained in one workable document.

Accordingly, I concur in part and dissent in part.

      . Appeal 75-352 pertains to order of January 31,1975 declaring the cause not to be maintainable as a class action. Appeal 75-962 pertains to order of May 13, 1975 dismissing Plaintiffs’ amended Fourth Amendment to Third Amended Complaint.

      . The individual Plaintiffs were appointed conservators to operate and manage the condominium in a prior lawsuit. Plaintiffs do not dispute Defendants’ allegations that that representative capacity was terminated when the Association’s officers were elected and the conservators were discharged by the court.

      .Count III is for breach of contract; Count IV is for breach of implied warranty; Count VI is for declaratory judgment as to ninety-nine year lease; Count VII is for declaratory judgment as to pledge agreements under ninety-nine year lease; Count VIII is for equitable relief from unconscionable documents, i. e., ninety-nine year lease; and Count IX is for misrepresentations under the Florida securities law.

      . The motion challenging the class action contained the following grounds:
      (1) The lack of identity, similarity or commonality of causes, issues and right to recovery among the alleged representatives and absent class members;
      (2) The lack of standing of the alleged class representatives to maintain this action on behalf of the absent class members;
      (3) The existence of disparate, divergent and conflicting circumstances, issues and defenses between defendants collectively as to the plaintiffs collectively and among the defendants severally and the plaintiffs severally; and
      (4) The absence of a single fact, or any single set of facts which would be decisive of any of the several claims of all the parties named herein.
      The court held:
      “From a consideration of said motion, the pleadings, interrogatories and other matters of record in this cause, the depositions, exhibits thereto, and the other documentary evidence in this cause as well as from the presentations of counsel before the Court, the Court finds that the grounds and bases for the relief sought as set forth in said motion are well taken.
      IT IS, THEREUPON, ORDERED AND ADJUDGED that this cause, nor any of the Counts thereof, is not maintainable as a class action.”

      . In Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186, 94 S.Ct. 2140, 40 L.Ed.2d 732, separate opinion of Mr. Justice Douglas, dissenting in part, the following language appears:
      “The class action is one of the few legal remedies the small claimant has against those who command the status quo. I would strengthen his hand with the view of creating a system of law that dispenses justice to the lowly as well as to those liberally endowed with power and wealth.”
      That philosophy applies equally in the case at bar.

      . See Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.2d DCA 1963).


text:
    William B. DAWSON et al., Appellants, v. Julia L. MATHEWS, Appellee.
    No. Y-523.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1976.
    Rehearing Denied Nov. 22, 1976.

      Carl D. Dawson of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellants.
    Frank T. Cannon and Robert 0. Mickler, Jacksonville, for appellee.
   MELVIN, WOODROW M., Sr., Associate Judge.

Appellants sought to quiet title to certain lands in Duval County, and deraigned their title from a Spanish grant to John McQueen in the year 1792, known locally as “Greenfield”. The grant designated the East boundary thereof as being the “marshes and Pablo Creek”. When the grant was prepared by representatives of Spain, the system of land measurements of Section, Township and Range was not then employed. Florida, by the Treaty of Amity Settlement and Limits of 1819 with Spain, acquired title to all swamps and overflow lands in Florida, and these lands were subsequently conveyed to the State of Florida.

The State of Florida conveyed to appel-lee’s predecessors in title the following described land:

“The North two thousand (2000) feet of the unsurveyed or marsh part of Section Twelve (12), Township Two (2) South, Range Twenty Eight (28) East . containing 50 acres more or less”.

The only official United States survey of the lands in question reveals that the surveyor designated the John McQueen grant as being located in Section 37, Township 2 South, Range 28 East. Section Twelve is designated as being adjacent to and East of Section 37, so that the East line of Section 37 is the West line of Section 12.

The official plat referred to reveals that Pablo Creek meanders briefly back and forth across the East line of Section 37 and into Section 12. Evidentiary documents and supporting testimony were thoroughly considered in the trial proceedings, from which the trial court concluded in a detailed final judgment, finding all of Appellants’ property to be located in Section 37; that the Appellants had failed, by the required measure of proof, to establish their title to any lands in Section 12; that Appellee prevailed over Appellants as to color of title and adverse possession as to any properties in Section 12.

We have thoroughly considered the record and find that the same fails to sustain the trial court as to Appellee’s color of title and adverse possession concerning the land hereinnow designated.

We hold as a matter of law that the protrusions of Pablo Creek eastward and across the East line of Section 37 into Section 12 are a portion of the John McQueen grant and such land so located in Section 12 was and is the property of the Appellants. The location of the East boundary of Section 37 cannot serve to restrict the full effect of the original grant as being to the “marshes and Pablo Creek on the East”. Delineated boundaries of the Spanish Grant speak for themselves.

Reversed with direction to enter judgment consistent with the view herein expressed.

RAWLS, Acting C. J., and BARKDULL, THOMAS H., Jr., Associate Judge, concur.


author: SMITH, Judge.

text:
    Dwyne CRITTENDON, Appellant, v. STATE of Florida, Appellee.
    No. Y-274.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1976.
    Rehearing Denied Nov. 23, 1976.

      Ernest D. Jackson, Sr. of Jackson & Micks, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace Allbritton, Asst. Atty. Gen., for appel-lee.
   SMITH, Judge.

The Duval County circuit court convicted Crittendon of murder in the second degree and sentenced him to 199 years’ imprisonment for his part in the brutal murder of Stephen Anthony Orlando. The only substantial point raised on Crittendon’s appeal is that venue was improperly laid in Duval County.

On June 16, 1974, Crittendon and three confederates, all black males, armed themselves and set out in an automobile to “catch a white devil and kill him.” In Duval County one of the group wrote a note, declaring vengeance on society by “the Black Revolutionary Army,” which they agreed would be secured to the victim’s body by the stab of a knife. After a predatory search in Duval County they picked up the hitchhiking victim at Jacksonville Beach in Duval County. They then drove just over the boundary of St. Johns County and, in a deserted area, shot Orlando dead with a pistol. They left the note as planned and returned to Duval County, where they threatened whites in the community in tape-recorded messages.

The Duval County grand jury indicted Crittendon and the others for murder in the first degree, committed by killing the victim from a premeditated design to effect his death “in the County of Duval and the County of St. Johns, State of Florida.” The indictment was not attacked for any asserted irregularity in its allegation of venue. There was no motion for change of venue.

The Constitution of the society which Crittendon so grievously insulted assures the accused in a criminal case “a speedy and public trial by impartial jury in the county where the crime was committed.” Art. I, § 16, Florida Constitution. Except in circumstances not here pertinent, the Duval County grand jury had power to indict only for an offense “triable within the county.” Secs. 905.16, .21, F.S.1975. The grand jury charged unambiguously that Crittendon’s offense was committed in the counties of Duval and St. Johns, and did not invoke its power to indict for a murder committed in a county unknown, but either in Duval or St. Johns:

“If the county [where the crime was committed] is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties he will be tried.” Art. I, § 16, Fla.Const.; § 910.03, F.S.1975.

The State, pointing to evidence that the murder party assembled, prepared themselves and picked up their victim in Duval County, claims the benefit of § 910.05, F.S. 1975, which provides:

“If the acts constituting one offense are committed in two or more counties, the offender may be tried in any county in which any of the acts occurred.”

Were any of the “acts constituting” this murder committed in Duval County? The meaning of § 910.05’s critical phrase is illumined by its provisions before 1970, when legislation changed only its “style of expression.” We are entitled to the benefit of that illumination in interpreting the present law. State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529, 531 (Fla.1974); Tampa & J. Ry. Co. v. Catts, 79 Fla. 235, 243, 85 So. 364, 366 (1920). Section 910.05, F.S.1969, provided:

“Where several acts are requisite to the commission of an offense, the trial may be in any county in which any of such acts occurs.”

The legislature regarded “acts constituting” an offense as substantially equivalent to “acts . . . requisite to the commission of an offense”; so, therefore, do we.

There are no Florida decisions answering the central question in this case. In considering judicial interpretations of similar venue statutes in other states, we must distinguish those of California and other states where statutes permit prosecution anywhere “the acts or effects thereof constituting or requisite to the consummation of the offense occur . . ." E. g., People v. Powell, 67 Cal.2d 32, 59 Cal.Rptr. 817, 835, 429 P.2d 137, 155 (1967) (emphasis added); State v. Parker, 235 Or. 366, 384 P.2d 986 (1963); People v. Tullo, 41 A.D.2d 957, 343 N.Y.S.2d 984 (1973), aff’d 34 N.Y.2d 712, 356 N.Y.S.2d 861, 313 N.E.2d 340 (1974); People v. Thorn, 21 Misc.Rep. 130, 47 N.Y.S. 46 (Gen.Sess. N.Y.Co. 1897); Annot., 30 A.L.R.2d 1265, 1285 (1953). The Kansas Supreme Court, in State v. Pyle, 216 Kan. 423, 434-35, 532 P.2d 1309, 1318 (1975), regarded a Kansas statute like Florida’s pre-1970 § 910.05 as sufficiently “similar” to California’s to be given identical effect. We disagree. Many acts of preparation may be requisite to “consummation” of a particular homicide, but preparation is not one of the elemental acts “constituting” or “requisite to the commission” of premeditated first degree murder.

Venue statutes are typically construed coextensively with the law of criminal attempts: if the criminal object was so far effectuated by acts in the county of the forum that a prosecution for the attempted offense could there be laid, had the offense failed of completion, the same acts may be regarded as among those “constituting” or “requisite to the commission” of the offense culminated in another county. Thus, the Ohio Court of Appeals held in State v. Domer, 1 Ohio App.2d 155, 159-60, 204 N.E.2d 69, 74 (1965):

“The act performed purposely to kill another must [in order to fix venue where the antecedent act occurred] proceed to a point beyond mere preparation where it can be said that the act committed tends directly toward accomplishing such specific criminal purpose. There must be the performance of an act in furtherance of or carrying out at least, in part, one of the necessary physical elements by which the murder is to be accomplished and of such a character that unless interrupted by an unknown intermediate and independent force, the crime will be consummated.”

To determine proper venue in Domer, the Ohio court invoked the rule of a New York decision acquitting of attempted robbery defendants who “were driving around, looking for the payroll employee . . . , intending to rob him.” 1 Ohio App.2d at 160, 204 N.E.2d at 74. The Ohio court held, concerning a venue statute similar to Florida’s § 910.09, F.S.1975 (supra, n. 1):

“Driving around, intending to kill a passenger in the automobile driven by the defendant, looking for a place to commit the act or going to a predetermined place to commit the proposed unlawful act, at most, is preparation which could not be punished in the trial of one charged with murder in the first degree committed after arrival at the place ultimately or previously determined.” 1 Ohio App.2d at 160, 204 N.E.2d at 74.

The Arizona Court of Appeals, in State v. Cox, 25 Ariz.App. 828, 543 P.2d 449 (1976), construed an Arizona venue statute which, like § 910.05, F.S.1969, permitted prosecution wherever any act “requisite to the commission of an offense” was committed. That court refused to adopt the relaxed venue criterion prevailing in California, doubting that it would “pass constitutional muster” in Arizona; and held, consistently with Arizona law of criminal attempts, that there must have been an act in the county of the forum, from which “the situation becomes unequivocal and it appears the design will be carried into effect if not interrupted . . . .” Cox, 543 P.2d at 453. By that standard the court held that venue could not be laid for attempted murder in Pima county, where “[n]o act which composed the corpus delicti of the crime occurred”:

“It was not until the money was paid [to an ostensible hired killer] in Pinal County that the situation became unequivocal and it appeared that the design would be carried into effect if not interrupted.” 543 P.2d at 453.

In the peculiar circumstances of this case, the acts committed by Crittendon and his cohorts in Duval County would have been sufficient to constitute an attempt to murder Stephen Anthony Orlando had Orlando been prescient enough to step out of the car before it entered St. Johns County en route to the place of execution. In Duval County the four assassins gathered, conceived their plan, put on appropriate clothing, obtained weapons, prepared the death note, selected the victim, took him into the car and drove the car purposefully toward its destination. The murder strategy was fully, elaborately and, the jury could have found, irrevocably set in motion. Momentum, absent in Domer, was here enforced by the combination of four separate wills. As the car approached the county line, Crittendon and the others were attempting to commit murder. The time of preparation had passed and the acts of the four had “reach[ed] far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.” Groneau v. State, 201 So.2d 599, 603 (Fla.App. 4th, 1967), aff'd 207 So.2d 452 (Fla.1967); 1 Wharton’s Criminal Law and Procedure § 74 (Anderson ed. 1957); Annot., 54 A.L.R.3d 612 (1973). For those reasons, Crittendon’s offense was committed, as the indictment charged, in both Du-val and St. Johns. Venue was properly laid in Duval. Sec. 910.05, F.S.1975.

There is another reason why Crit-tendon was properly charged and tried in Duval County. Crittendon’s conviction does not rest on proof that he himself shot the fatal bullet into Orlando’s head. Critten-don was an aider of the other three, including the one who fired the shot. As an aider Crittendon was properly charged and convicted as a principal in the first degree, § 777.011, F.S.1975, and he was properly charged and tried in Duval County, where much of his aid was given. Sec. 910.04, F.S.1975:

“If a person in one county aids, abets, or procures the commission of an offense in another county, he may be tried in either county.”

AFFIRMED.

MILLS, Acting C. J., and MELVIN, WOODROW, Associate Judge, concur.

      . Crittendon’s argument that venue could properly be laid only in the county where the victim was shot and where he died is not compromised by his failure before trial to attack the indictment as containing venue allegations insufficient as a matter of law. He was not obliged to anticipate proof that Orlando was shot and killed in the same place, St. Johns County. Consistent with Crittendon’s position, the indictment might properly have been regarded as intending to invoke § 910.09, F.S. 1975:
      “If the cause of death is inflicted in one county and death occurs in another county, the offender may be tried in either county.”

      . Ch. 70-339, § 77, Fla.Laws.

      . “[I]f Goldie was removed from her home [in Kiowa County] and killed in another county, the removal was an act ‘requisite’ to the commission of the murder; venue would still be proper in Kiowa county.” Pyle, 216 Kan. at 435, 532 P.2d at 1318. This decision is perhaps explicable by the fact that the victim’s body was never found and the place of her death and of the force causing it could not be proved.

      . Arizona’s constitution, like Florida’s but unlike California’s, assures the accused of a trial by a jury “of the county in which the offense is alleged to have been committed . . Art. 2, § 24, Ariz.Const., quoted in Cox, 543 P.2d at 451.

      . “A conspirator who has committed himself to support his associates may be less likely to violate this commitment than he would be to revise a purely private decision. Moreover, the encouragement and moral support of the group strengthens the perseverance of each member.” Developments in The Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 924 (1959).


author: PER CURIAM. HAVERFIELD, Judge

text:
    LAVENTHOL, KREKSTEIN, HORWATH & HORWATH, Appellant, v. INVESTORS TAX SHELTERED REAL ESTATE, LTD., Appellee.
    No. 76-71.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Rehearing Denied Nov. 5, 1976.
    Fowler, White, Burnett, Hurley, Banick & Knight and Thomas E. Ashe, Miami, for appellant.
    Guy B. Bailey, Jr., Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendant-appellant Laventhol, Krek-stein, Horwath & Horwath, a national accounting firm, seeks reversal of the denial of its motion to dismiss plaintiff’s complaint upon the ground of lack of jurisdiction over the defendant in this action for damages for the negligent preparation of a financial statement.

Plaintiff-appellee, Investors Tax Sheltered Real Estate, Ltd., instituted this action against the defendant for its alleged negligent preparation of a certified financial statement, which was prepared for Hallmark Group Companies, was delivered to the plaintiff in Florida, and relied upon by plaintiff to its detriment when, subsequent to entering into a leaseback agreement with Hallmark, the latter defaulted upon its obligation. With reference to the accounting services performed by the defendant in this state, the amended complaint alleged:

“8. In connection with the said transaction, LKH&H prepared a certified financial statement for Hallmark and, directly or indirectly and with actual or constructive knowledge, caused the said certified financial statement of Hallmark to be delivered and published to ITSREL in the State of Florida, where ITSREL received it and relied upon it in its decision to enter into the said sale leaseback arrangement with Hallmark; . .

Defendant moved to dismiss the complaint on the grounds that it is not subject to suit in Florida except with respect to public accounting work performed in this state by defendant or its agent, a Florida practitioner pursuant to Fla.Stat. § 473.241. The motion was denied and defendant perfected this interlocutory appeal.

The question thus becomes whether a resident partner in a national accounting firm may be properly served in a cause of action wherein it is not alleged that the accounting work was done in this state, but, rather that the result of that work was furnished to the plaintiff in this state. Section 473.241, which provides for national accounting firms to have a Florida practitioner as a resident partner obviously has as its purpose the recognition of the fact that a great deal of present-day accounting is for national corporations having holdings in many states. It follows that the statute recognizes that the accounting work will be done in many states and it provides that the resident partner may be served in any cause of action arising out of “public accounting services performed in this state by the other [partners].” We hold that the reasonable interpretation of this statute allows service on the resident partner even though it cannot be established that the “accounting work” as distinguished from “accounting services” was performed in this state.

In order for the statute to be constitutionally applied, it is necessary only that a defendant have “minimum contacts” with the State of Florida. See Lake Erie Chemical Company v. Stinson, Fla.App. 1965, 181 So.2d 587, and cases cited therein. In Rebozo v. Washington Post Company, 515 F.2d 1208 (5th Cir.1975), the court held that a libel which was published in Florida satisfied minimum contacts in Florida. It is, therefore, reasonable to hold that the dissemination of information compiled in another state and supplied in this state is public accounting services performed in this state. As a matter of public policy, any partnership having a resident partner in this state ought to be liable to the citizens of this state for actions arising out of the partnership activities in this state. We, therefore, hold that where accounting services are performed for national corporations and material is gathered from many sources and delivered in the State of Florida, such activity becomes public accounting services as defined by Fla.Stat. § 473.011(5).

Accordingly, the order appealed is affirmed.

Affirmed.

HAVERFIELD, Judge

(dissenting).

I am constrained to dissent.

Section 473.011(5), Florida Statutes (1975) with unmistakable clarity defines public accounting to mean those services involving the use of accounting skills. The simple act of causing directly or indirectly a certified financial statement to be published and delivered to the plaintiff in Florida simply does not constitute a public accounting service as defined by the above statute.

In addition, for responsibility to attach under Section 473.241(2), Florida Statutes (1975), the public accounting services performed in Florida must be performed either by a Florida practitioner or an out-of-state practitioner pursuant to a special permit. See Section 473.241(1), Florida Statutes (1975).

Plaintiff’s complaint contains no allegation to the effect that the accounting services complained of were performed by a Florida practitioner or by the defendant pursuant to a special permit.

Therefore, I would grant the motion to dismiss.

      . This interlocutory appeal on jurisdictional grounds raises no other question.

      . “(5) Whenever the term ‘public accounting’ is used in this chapter, it shall be deemed and construed to mean:
      “(a) All services offered to or performed for the public by a Florida practitioner or an out of state practitioner involving the use of accounting skills, specifically including, but not limited to, management services, and

      . . All public accounting services performed in the state must be performed by such Florida practitioner, except that an out-of-state practitioner may perform public accounting services in the state under the provisions of § 473.131.”


author: PER CURIAM.

text:
    Christopher James CALL, Appellant, v. STATE of Florida, Appellee.
    No. Y-127.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1976.
    Charles R. Mayer, Lakeland, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

In his brief appellant raises six points, the first five of which we find to be without merit. The sixth point relates to the length of sentence imposed. Among the offenses for which appellant was charged was resisting an officer with violence. The jury, however, found him guilty of the lesser included offense of resisting an officer without violence, which is a misdemeanor of the first degree punishable by imprisonment in the county jail for a period not exceeding one year. For that offense, the learned trial judge imposed a sentence of one year and one day. Appellant contends, and appellee agrees, that such sentence is excessive by one day. We are of the same view.

Accordingly, we remand for imposition of a proper sentence. It shall not be necessary for appellant to be present at the proceedings incident to such resentencing.

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

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


text:
    James Perry ABLES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Z-16.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1976.
    Rehearing Denied Nov. 24, 1976.

      Burke D. Chester, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Abies appeals from his conviction of murder in the first degree and a sentence of life imprisonment. The most substantial question presented is whether the trial court committed reversible error in charging the jury that it might convict the accused of premeditated murder under an indictment which charged that appellant killed the victim in perpetration of kidnapping.

The grand jury charged that Abies, “while engaged in the perpetration of or in the attempt to perpetrate the unlawful and felonious kidnapping of the person of FREDERICK C. WEST, [did] unlawfully kill and murder the said FREDERICK C. WEST by shooting him with a pistol.” That of course was sufficient to charge murder in the first degree. Sec. 782-04(l)(a), F.S.1975. No charge was made that the unlawful killing was “perpetrated from a premeditated design to effect the death” of the victim, which is proscribed by the same statute.

There was abundant evidence that the accused premeditatedly shot and killed the victim who was resisting kidnapping. Over objection, the trial court charged the jury on the various ways in which first degree murder might be committed under § 782.04(l)(a), stating that “the question of premeditated design is a question of fact to be determined by the Jury from the evidence.” The court defined at length the term premeditated design and generally gave the jury to understand that it might convict the accused of first degree murder if it found the accused killed the victim from a premeditated design or in perpetrating kidnapping. The court’s charge thus potentially exposed appellant to a jury determination of his guilt on a charge not made by the indictment. That was error, for an accused is entitled to have the charge proved substantially as laid; he cannot be charged with one offense and convicted of another, even though the offenses are of the same character and carry the same penalty. See Perkins v. Mayo, 92 So.2d 641 (Fla.1957); Penny v. State, 140 Fla. 155, 191 So. 190 (1939); Art. I, § 16, Florida Constitution.

When an indictment charges that the accused killed another from a premeditated design to effect his death, it is entirely proper to instruct the jury that the charge may be proved by evidence that the accused killed the other while perpetrating one of the designated felonies. Sloan v. State, 70 Fla. 163, 69 So. 871 (1915); Knight v. State, 338 So.2d 201 (Fla.1976). It is urged by the State that the converse is also true, i. e., that on an indictment such as this the jury need not find the accused was perpetrating or attempting to perpetrate kidnapping if it is able to find the accused killed the victim with a premeditated design to effect his death. But such shuffling of offenses is not justified by the ancient principle that premeditation to murder may be implied in fact or presumed by law from the accused’s perpetration of a violent felony. In such a case, the offense remains premeditated murder; only an element of it is deemed proven by evidence of the accused’s felonious conduct. See 1 Russell on Crime 476 et seq. (12th ed. 1964); 1 Warren on Homicide § 74 at 324, et seq. (perm. ed. 1938); 1 Wharton’s Criminal Law and Procedure § 251 (Anderson ed. 1957); Leiby v. State, 50 So.2d 529, 531-32 (Fla.1951).' The same cannot be said for the converse proposition here urged by the State: that premeditation supplies an otherwise missing ingredient of the offense of murder committed while perpetrating kidnapping.

The State urges also that charging on premeditated murder is required by Brown v. State, 206 So.2d 377 (Fla.1968), construing § 919.14, F.S.1965, now Rule 3.490, R.Cr.P. The Rule provides that when the indictment or information charges an offense “divided into degrees, without specifying the degree,” the jury may convict the accused of any degree of the offense charged; and, when the charge is of an offense in a particular degree, the jury may “find the defendant guilty of the degree charged or of any lesser degree.” The Rule requires jury instructions “as to the degrees of the offense.” Of that requirement in the former statute, the Court in Brown held:

“The court must instruct on the lesser degrees simply because § 919.14 clearly requires it, and not because such degrees are necessarily included lesser offenses. In many cases the elements of the lesser degrees are totally distinct from the offense charged.” Brown, 206 So.2d at 381.

See also State v. Washington, 268 So.2d 901 (Fla.1972).

Nothing in Rule 3.490 or in Brown purports to authorize a conviction, under an indictment for a particular offense, on proof of another offense of the same generic name and in the same degree. While the Rule and Brown here required instructions concerning homicide in “lesser degrees” than first degree murder, which were given, they did not authorize a conviction of premeditated murder. Regardless of the evidence, the jury could not have convicted Abies of a killing committed in the perpetration of rape or aircraft piracy, and it was no less improper to submit for their consideration the question of premeditated murder. If as the State insists a charge on premeditation was necessary to exclude that factor in the definition of second degree murder, such a charge might have been given without authorizing the jury to convict of premeditated murder.

While giving the extraneous charge was erroneous, we have concluded, upon consideration of the entire record, that the error did not adversely affect appellant’s substantial rights. Evidence of his guilt of kidnap-murder was overwhelming, and any premeditation to murder arose in the course of the kidnapping. In these circumstances the erroneous charge could not have seriously misled the jury from its sworn duty to try the accused on the charges made by the indictment. See § 924.33, F.S.1975; Sullivan v. State, 303 So.2d 632, 637 (Fla.1974).

We have considered appellant’s other points on appeal and find them unavailing.

AFFIRMED.

MILLS, Acting C. J., concurs.

MELVIN, WOODROW, Associate Judge, concurs in judgment.

      . “The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person 18 years of age or older when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree . .


text:
    In re ESTATE of Victoria FRANK, Deceased.
    No. 75-1618.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.
    Rehearing Denied Nov. 22, 1976.
    Magill & Sevier, Steen & Kaplan, Jeanne Heyward, Miami, for appellants.
    Lester W. Jennings, Eric C. Van Enter and George Knight, Miami, for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

This as an appeal by the brother and sister of the deceased, Victoria Frank, from an order admitting the decedent’s will to probate. The appellants contend that the trial court erred in its findings that (1) the decedent had the requisite mental capacity to execute the challenged will and (2) the decedent was not subject to undue influence in executing the will.

While there was extensive medical and lay testimony in this case concerning the decedent’s mental state, the evidence was contradictory as to whether she understood the nature and extent of her actions in a general way when she executed the will in February of 1973. After weighing the evidence, the trial court ruled that the decedent was mentally competent at the time that her will was executed. Since these findings are supported by substantial competent evidence, we must affirm. In re Wilmott’s Estate, 66 So.2d 465 (Fla.1953).

Further, the record does not support the appellants’ claim that the will was procured by undue influence. The sole beneficiary was not present when the will was executed; in fact, it does not appear that he had anything whatsoever to do with the execution of the will or that he even knew of its existence. The trial court so found, and it therefore properly ruled that the sole beneficiary had not actively procured the will and that the decedent had not been subjected to undue influence. In re Estate of Carpenter, 253 So.2d 697 (Fla.1971).

The trial court’s order is therefore affirmed.

Affirmed.


text:
    William GUNDLACH, etc., et al., Appellants, v. MARINE TOWER CONDOMINIUM, INC., etc., Appellee.
    Nos. 75-354, 75-384.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1976.
    Rehearing Denied Nov. 29, 1976.
    Donald H. Norman of Ross, Norman & Cory, P. A., Fort Lauderdale, for appellants.
    0. Edgar Williams, Jr., of Berryhill, Avery, Schwenke, Williams & Scott, P. A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellee sued appellants to determine its rights under a condominium land lease and to obtain damages. The trial court entered a comprehensive partial final judgment construing the lease in favor of the appellee and another final judgment awarding damages to appellee. Those judgments are the subject of these appeals.

Appellants were the developers of a 153 unit condominium apartment building in the City of Fort Lauderdale known as Marine Tower Condominium. Appellee is a condominium association created pursuant to Chapter 711, Florida Statutes 1969. Appellants leased to the condominium association for 99 years a certain parcel of property surrounding the condominium apartment building. Said property contained a two-story parking garage, additional uncovered parking, a swimming pool, and other recreational facilities. Part of the two-story parking garage extended into the first two floors of the condominium building. At the completion of construction of the apartment building and the parking garage there existed 153 covered parking spaces which were assigned to the 153 apartment unit owners. Twenty-nine of those assigned spaces were in the part of the two-story parking garage that extended into the first two floors of the condominium building. In addition, there were 68 other parking spaces, 19 of which were covered and 49 uncovered.

The condominium documents, which were delivered to each apartment unit purchaser, contained, among other things, a copy of the aforementioned lease. The Declaration of Condominium provided that each unit owner must execute an agreement acknowledging the agency of the condominium association for such owner and agreeing to be bound by the terms and conditions of the lease and to pay his designated portion of the lease rental.

The property conveyed under the lease is land surrounding the condominium apartment building; no part of the description includes the condominium apartment building or the land upon which the building is situated. Article III of the lease pertains strictly to the rent to be paid for the property conveyed thereunder. Among other things, that article provides:

“The final annual ground rental figure (i. e., the collective rental) will be determined at the time of the completion of the building and shall be based on the number of parking spaces provided and the number of individual condominium units in the condominium building. Each apartment unit will have one covered parking space permanently assigned to it. Said total annual rental will be arrived at by adding the sum of the individual apartment and assigned parking space rentals, (i. e., Type ‘A’ apartments $45.00 per month; Type ‘B’ apartments $55.00 per month; Type ‘C’ apartments $65.00 per month; Type ‘D’ apartments $65.00 per month; Type ‘E’ apartments $65.00 per month; Type ‘F’ apartments $65.00 per month; Type ‘G’ apartments $65.00 per month) to the extra and unassigned parking spaces (a maximum of sixty-eight spaces, both covered and uncovered, at $180.00 per year covered and $100.00 per year uncovered). It is estimated that of the 68 unassigned parking spaces, 19 will be covered and 49 will be uncovered. The result shall be the rental figure which will hereafter remain constant except where expressly adjusted or change by the terms of the lease.”

In the trial court appellee contended that the 29 spaces included in the part of the garage that extended into the first two floors of the condominium building were common elements and thus appellants could not lease said spaces to the association and collect rent therefor. Appellants on the other hand argued that the lease in question did not purport to lease the 29 spaces, nor could it do so since concededly those spaces were part of the common elements. Appellants further argued that the rental for the land leased was arrived at by a formula which used the number of individual condominium units and the number of parking spaces the developers furnished as a basis for computing the amount of rent to be paid. The trial court concluded that appellee’s position was correct and entered, judgments that (a) declared the 29 spaces were improperly included in determining the rent to be paid and that no further rent could be charged for said spaces, and (b) awarded appellee damages for rent paid in the past for said 29 parking spaces.

Our study of the briefs and record convinces us that both appellee and the trial court misconstrued the effect of the lease.

First of all, it cannot be seriously contended that the lease in question purports to convey the 29 spaces in the first two floors of the condominium building. The property conveyed in the lease is described by metes and bounds description and is nothing more than the land around the condominium building and improvements thereon. No part of the building is described.

Secondly, it should be remembered that the lease was prepared and executed prior to completion of construction of the condominium building. According to its terms there were to be 153 assigned covered spaces, one for each apartment unit, and a maximum of 68 other unassigned spaces. In order to determine a fair rental value for the property leased, the developer seized upon a formula which used the number of parking spaces as a determinant to arrive at the total rental to be paid for the land leased. The lease states that the rental “shall be based on the number of parking spaces provided and the number of individual condominium units in the condominium building.” It then provides that the dollar amount shall be arrived at by adding the sum of (1) the individual apartment and assigned parking space rentals and (2) the extra and unassigned parking spaces. Category (1) involves the 153 assigned parking spaces, including the 29 spaces in the condominium building. The amount specified to be attributable to each of these spaces depends upon the type of apartment to which it is assigned. For example, Type A apartments are to pay $45.00 per month, Type B apartments $55.00 per month, and so on. The second category includes all other unassigned spaces at a rate of $180 per year for covered spaces and $100 per year for uncovered spaces.

The parties to the lease are the developers and the condominium association. The formula contained in the lease for determining the rent was devised so as to enable the association to make a charge against each unit owner for parking space used, so as to provide income to the association to enable it to pay the ground rent due under the lease.

At first blush, appellee’s argument that appellants are collecting rent for part of the common elements which they could not convey sounds valid. But when subjected to closer scrutiny it misses the mark. The lease could just as well have provided that the rental for the land leased should be based upon $55.00 per month for each of the 153 apartment units (all of which were assigned one covered parking space), and in addition $180 per year for any unassigned covered parking space, and $100 per year for any unassigned uncovered parking space. Or the lease could have stated a flat rental figure without stating any formula upon which the ultimate figure is based. Then, of course, the association would have had the problem of determining how to obtain the funds to pay the ground rental for the parking facilities and the swimming pool and other recreational facilities.

The original lease was amended by the parties in October 1971, and a great deal of time and effort was expended in the trial court with reference to that amendment. However, appellee has contended throughout this case that the amendment had no effect on the validity of the rent formula vis-a-vis the 29 spaces in the first two floors of the condominium building. Therefore, the amendment is not material to our decision.

In view of the foregoing, it is not necessary for us to comment upon the other numerous points raised by appellants, except the contention that appellants were entitled to attorney’s fees and costs in the trial court pursuant to the provisions of the lease. Since appellants are now the prevailing parties, the lease entitles them to have the trial court award them reasonable attorney’s fees plus costs on remand. It also follows that appellee’s point on cross appeal (that the damages the court awarded were inadequate) is without merit.

Accordingly, we reverse the judgments appealed from and remand the cause with directions to enter a judgment for appellants consistent with this opinion.

CROSS, J., and SCHULZ, GEORGE E., Associate Judge, concur.


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    Joseph C. AIELLO, Appellant, v. STATE of Florida, Appellee.
    No. 75-1862.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1976.

      Ronald E. Lee, Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   GREEN, OLIVER L., Jr., Associate Judge.

The appellant, Joseph C. Aiello, appeals an order of contempt sentencing him to serve 120 days in the Broward County Jail for refusal to reply to questions propounded by an Assistant State Attorney, pursuant to subpoena and in the course of an investigation regarding a pending criminal trial. The order from which this appeal arises does not contain purge provisions; however the transcript on appeal establishes that the appellant was advised he would be permitted to purge himself by testifying at the subject trial which was later presided over by a different judge.

The appellant was incarcerated upon entry of the order being appealed. He was still in custody when the trial began. During the course of the trial appellant was brought before the trial judge. He offered to testify on behalf of the State at that time and thereby purge himself of his contempt. There was some discussion on the record by the prosecuting attorney as to the wisdom of the appellant’s being called as a witness by the State. The end result was that the State declined to call the appellant as a witness. The appellant was thereby denied his opportunity to purge.

There was an exchange between counsel for the appellant and the judge presiding over the subject trial, which establishes to our satisfaction that the opportunity to purge was effectively denied the appellant. We hold that the order of contempt herein appealed from is to be considered in light of the instructions by the judge below to the appellant that he would be permitted to purge himself of said order by his testimony. We further hold that the appellant should be discharged from execution of the sentence provided in the order of contempt by reason of his inability to comply through no fault of his own.

We pause to mention that the original petition was not in compliance with Fla.R.Crim.P. 3.840, as the same failed to contain an affidavit by a “person having knowledge of the facts.” Ex parte Crews, 127 Fla. 381, 173 So. 275 (1937); Phillips v. State, 147 So.2d 163 (Fla.3d DCA 1962).

We hold that this failure to proceed in accordance with the Rule does not constitute a fatal defect inasmuch as the transcript reflects an exchange between the appellant and the judge below wherein the appellant stated in no uncertain terms that he would not reply to questions asked by the State Attorney in the attempted investigation. The judge then became personally involved in the conduct of the appellant and, of course, was thereby authorized to proceed “on his own motion.” Rule 3.840, supra. Additionally, we have considered Fla.R.Crim.P. 3.080 and find the same to be inapplicable to proceedings under Rule 3.840, supra. Rule 3.080, supra, provides, in pertinent part, as follows:

“ . . . Except when otherwise specifically provided by these rules, pleadings as such need not be verified or accompanied by affidavit. . . .”

For the reasons herein stated, the cause is remanded for further proceedings in accordance with our directions that the appellant be deemed to have satisfied the purge requirements of the order of contempt.

REVERSED AND REMANDED with directions that the appellant be discharged from the order of contempt.

MAGER, C. J., and ALDERMAN, J., concur.


author: ALDERMAN, Judge.

text:
    Vincent J. RAGUSA, Appellant, v. STATE of Florida, Appellee.
    No. 75-1885.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1976.

      Robert T. Adams, Jr., Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Appellant, the defendant below, appeals his conviction on two counts of grand larceny by fraudulent representation, in violation of Section 811.021(l)(a), Florida Statutes (1973).

Appellant first contends that the State’s evidence failed to establish that he made .any fraudulent representations as to past or existing facts and therefore the trial court erred in refusing to grant his motions for judgment of acquittal. From our examination of the record on appeal we conclude that the State presented sufficient evidence to establish a prima facie case. The trial court properly denied appellant’s motions for judgment of acquittal.

Appellant’s second point has merit. Reversible error was committed by the prosecuting attorney during his cross-examination of the defendant when he asked questions with regard to criminal accusations against the defendant which had no substantial connection with the charges for which the defendant was on trial. We refer specifically to the following:

“Q. Isn’t it a fact, Mr. Ragusa, that you were a middle man in a conspiracy to commit bribery and you are now a State’s witness in that case?” (Trial Transcript, p. 317.)
“Q. That thousand and seventy dollars that you were talking to Rose about, that was to fix a cosmetology exam, wasn’t it?” (Trial Transcript, p. 324.)

Appellant had previously testified on cross-examination, “. . . I’m not in the habit of breaking the law.” The trial judge overruled defense counsel’s objections to the questions on the basis that this statement by appellant opened the door and allowed cross-examination concerning other criminal accusations because it went to appellant’s credibility as a witness. We respectfully disagree. Appellant was not asked if he had ever been convicted of a crime, which would have been a proper question. McArthur v. Cook, 99 So.2d 565 (Fla.1957); Goodman v. State, 336 So.2d 1264 (Fla. 4th DCA, Filed September 3, 1976). An accusation of criminal conduct was made and appellant called upon to either admit or deny the accusation. In our opinion this was not proper impeachment. The verdicts might reasonably have been affected by this improper discrediting of the appellant’s testimony. Therefore we cannot say that the error was harmless. Fulton v. State, 335 So.2d 280 (Fla.1976).

REVERSED AND REMANDED for a new trial.

DOWNEY, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


author: SMITH, Judge. BOYER, Chief Judge

text:
    CITY OF JACKSONVILLE, Appellant, v BRENTWOOD GOLF COURSE, INC., a corporation, Appellee.
    No. DD-47.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 22, 1976.
    Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, Asst. Gen. Counsel, Jacksonville, for appellant.
    C. Ray Greene, Jr. of Greene & Greene, Jacksonville, for appellee.
   SMITH, Judge.

In March 1975 the circuit court entered final judgment declaring void a deed restriction on the use of certain lands conveyed by the City to Brentwood. The City appealed and we affirmed. City of Jacksonville v. Brentwood Golf Course, Inc., 330 So.2d 23 (Fla.App. 1st 1976). Upon receipt of our mandate, the circuit court entertained Brentwood’s “motion for damages due to delay” and, after hearing evidence of the rental value of the property for its restricted use and for its highest and best use, awarded Brentwood money damages in the amount of $121,376.60 “for delay and depreciation of the property” during the City’s appeal. The City now presents this interlocutory appeal from that award entered after judgment. See Rule 4.2a, F.A.R.

When the City appealed from the circuit court’s final judgment setting aside the deed restriction, it posted no supersedeas bond but relied on Rule 5.12(1), F.A.R., providing:

“[T]he filing of the notice of appeal [by a city or other public body] . . . shall perfect the same and stay the execution or performance of the judgment, decree or order being reviewed and no superse-deas bond need be given unless expressly required by the court.”

Although Rule 5.12(2), F.A.R., authorized the trial court or this Court, on Brentwood’s application, to require “a supersedeas bond or other security,” no bond was required or applied for.

It was error to enter judgment against the City on account of “damages for delay and depreciation.” An unsuccessful appellant has no duty, independent of that voluntarily undertaken by posting a bond to avoid execution, to pay the successful appellee damages incurred by stay of execution during appellate delay.

Until abrogated first by statute and later by court rule, the common law automatically stayed execution of a trial court’s judgment, without security, on issuance of a writ of error. It was to remedy damage caused by such gratuitous stays that Parliament required the first supersedeas bond on appeal. 1 C. Crandall, Florida Common Law Practice § 508, at 781-82 (1928); Omaha Hotel Co. v. Kountze, 107 U.S. 378, 2 S.Ct. 911, 27 L.Ed. 609 (1883).

It is commonly understood that the extent of a surety’s liability on the supersedeas bond of an unsuccessful appellant depends entirely on the conditions of the bond. Seven-Up Bottling Co. of Miami, Inc. v. George Constr. Corp., 156 So.2d 167 (Fla.App. 3d 1963); Lawson v. County Board of Pub. Instr., 114 Fla. 153, 154 So. 170 (1934). Even when the successful ap-pellee has been positively benefited by su-persedeas and the passage of time on appeal, those benefits are disregarded in calculating “damages for delay” unless the bond requires that such benefits be taken into account. Fidelity & Deposit Co. of Md. v. Atlantic Nat’l Bank of Jacksonville, 234 So.2d 736 (Fla.App. 3d 1970), cert. den. 238 So.2d 111 (Fla.1970).

So also, the obligation of an appellant, as principal, is founded wholly on the bond itself. He signs the bond, not as a redundant confirmation of some independent obligation imposed as an incident of the appeal, but to bind himself and his heirs and assigns to pay according to its terms, and thereby to obtain supersedeas. When as here a bond was not required for super-sedeas, there is consequently no obligation. For the appeal itself the law exacts no price or penalty. Statutory interest is of course incurred on unsatisfied money judgments regardless of whether execution is stayed. Sec. 55.03, F.S.1975.

Had the court required the City to file a supersedeas bond conditioned to pay Brentwood’s damages for delay, by virtue of Rule 5.12(2), F.A.R., and had the City declined to post that bond, Brentwood might have had execution of its judgment notwithstanding the City’s appeal. State ex rel. Bd. of Trustees v. District Court of Appeal, Second District, 261 So.2d 818 (Fla. 1972). Thus in proper cases the appellate rules extend to the adversary of a public body, as to all others, the security of a bond or the right to execution. The rules do not, however, create a cause of action independent of a bond for delay damages.

The decisions relied on by the circuit court and by appellant, Daubmyre v. Hunter, 106 Fla. 858, 144 So. 408 (1932), Hickman v. Hickman, 177 So.2d 844 (Fla.App. 3d 1965), and Price v. Rome, 237 So.2d 835 (Fla.App. 3d 1970), enforced the obligations of supersedeas bonds according to their terms and did not enforce liability independent of the bonds.

REVERSED.

MILLS, J., concurs.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(concurs specially).

Prior to this decision, the issue here considered appears to have never been squarely presented and resolved. The learned trial judge relied on the only precedents available to him. Recognizing that by this decision we fill a void in the law, I fully concur with the opinion and reasoning thereof: However, I think it important to emphasize that the principles here established are applicable to all parties similarly situated, not just municipalities and other public bodies. The law applicable to recovery of damages incident to delay occasioned by an appeal is not affected nor modified by Rule 5.12, FAR.


text:
    Glenn BATTLE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1357.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 23, 1976.

      Phillip A. Hubbart, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant appeals a judgment finding him guilty of robbery, assault with intent to commit rape and aggravated battery. He was sentenced to 150 years in the state prison on the robbery count. The adjudication was based upon a jury verdict.

On the night of the incident in question, the victim (a young woman) and her boyfriend were in the Miami Greyhound Bus Station. While sitting in the waiting room, the victim decided to go upstairs to the ladies room to change into warmer clothes in preparation for her bus trip north. As she was entering the ladies room, she was confronted by the defendant, who pushed her inside, hit her with his fists, pulled her into a shower stall, kicked her repeatedly and pulled down her brassiere and pants. While this was taking place, two police officers and a security guard entered the ladies room in search of persons involved in a completely separate matter. At this point, the defendant came out of the shower stall and was apprehended by the police officers.

We are presented with three questions, the first of which concerns the trial court’s denial of defendant’s motion to suppress statements made soon after the incident, allegedly in violation of defendant’s Miranda rights. A review of the record shows that two of the three statements sought to be suppressed were made at the scene of the crime and the third statement made shortly thereafter at the police station. Defendant’s position alleging error in the denial of his motion to suppress rests on the significance of the lack of affirmative responses to each of the Miranda warnings given to him. We note, however, that defendant did respond at the conclusion of the warnings, indicating that he understood them. The fact that the defendant once asked for the presence of an attorney and, thereafter, was permitted to provide police with inculpatory statements is also emphasized on this appeal as a ground for error in the trial court’s denial of defendant’s motion to suppress.

We cannot agree with the defendant. It plainly appears that the questioned statements were not coerced and were voluntarily made by the defendant at or near the scene of the crime. As stated in U.S. v. Anthony, 474 F.2d 770 (5th Cir. 1973):

“ * * * [W]e disagree with Appellant’s appraisal of the effect of the dialogue between him and the arresting officer at the time of the arrest. There is no evidence that the FBI agent persisted in the interrogation after [appellant] invoked his right to counsel * * * Nor is there evidence that [appellant] manifested inconsistent conduct because of confusion * * * The Judge could conclude that [appellant] himself initiated further conversation with the officer.”

See also United States v. Hodge, 487 F.2d 945 (5th Cir. 1973), United States v. Grady, 423 F.2d 1091 (5th Cir. 1970).

“A defendant has as much right to waive his right to be silent as he has to insist on the right. The validity of the waiver depends upon it being voluntarily, knowingly, and intelligently made. Nunez v. State, 227 So.2d 324. (Fla.App. 4th, 1969).”
* * * Franklin v. State, 324 So.2d 187 (Fla. 1st DCA 1975)

See also Jordan v. State, 334 So.2d 589 (Fla.1976).

We find that a voluntary, knowing and intelligent waiver was made by the defendant in the present case. The record shows that the defendant requested an attorney in response to the Miranda warnings given to him at the police station, and that following that request, he approached police investigator James Carpenter who was doing some paper work on the case and told Carpenter that . . he wanted to talk about what happened.” Carpenter told him that because he wished to have an attorney present and did not wish to make a statement without an attorney present, that he, Carpenter, could not talk to him. Then Carpenter explained that in order to change his mind about talking to the police, the defendant would have to place his initials at designated places on the constitutional rights form indicating the waiver of his prior request for the presence of an attorney. This was agreeable to the appellant, who placed his initials on the form. The form was then initialed by Officer Frank Thomas, who was present at the time. The appellant then made his statement. We hold, therefore, that a valid waiver was made by the defendant and that he may not complain on appeal of the trial court’s actions.

We must also reject defendant’s argument that the trial court erred in imposing a sentence in excess of the statutory maximum. See Harper v. State, 306 So.2d 141 (Fla. 4th DCA 1975); Holley v. State, 306 So.2d 561 (Fla. 4th DCA 1975).

Finally, we find without basis defendant’s contention that a term of imprisonment was improperly imposed below where there was allegedly overwhelming evidence that he was in need of psychiatric treatment which the Florida prison system could not provide and the lack of which could result in permanent schizophrenia, thereby violating his right to treatment and to be free from cruel and unusual punishment. We believe it is significant to point out that the trial judge, upon considerable evidence, determined the defendant to be sane. Further, the appellant has not presented us with any authority supporting the view that a valid term of imprisonment can constitute cruel and unusual punishment upon a criminal defendant.

Affirmed.