text:
    The SCHOOL BOARD OF PALM BEACH COUNTY, Appellant, v. ROOF STRUCTURES OF FLORIDA, INC., Wadsworth Construction Corporation and Sabrice Corporation, Appellees.
    No. 77-933.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.
    Richard L. Oftedal of Jackson & Jackson, Palm Beach, for appellant.
    William C. Owen, Jr., and Shelton Clyatt, Jr. of Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellees.
   PER CURIAM.

After oral argument and upon review of the briefs and the record on appeal, we find the trial court erred in confirming an arbitration award during the pendency of appellant’s motion to vacate the award. See Section 682.12 et seq., Florida Statutes (1975). Accordingly, the order confirming the arbitration award is REVERSED.

REVERSED and REMANDED.

CROSS, MOORE and BERANEK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elizabeth HIRSCHBERG, Personal Representative of the Estate of Alex Hirschberg, Deceased, Appellant, v. Nathan HIRSCHBERG, Nicole Hirschberg, Naomi Gruskin, First Federal Savings and Loan Assoc. of Broward County and Southern Federal Savings and Loan Assoc. of Broward County, Appellees.
    No. 77-949.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.
    Warner S. Olds of Olds & Titone, P.A., Fort Lauderdale, for appellant.
    Jeffrey P. Wasserman of Litman, Mu-chnick & Wasserman, Hollywood, for appel-lees Nathan Hirschberg, Nicole Hirschberg and Naomi Gruskin.
   PER CURIAM.

This is an appeal from an order dissolving a temporary injunction. In the order the trial court stated that the basis for his ruling was his conclusion that the appellees had shown that certain certificates of deposit were not assets of the estate of Alex Hirschberg. That conclusion is supported by the record. However, the status of the certificates as an estate asset is also the sole issue in controversy in the case, and the appellees contend that the trial court’s order dissolving the temporary injunction fully and finally determined that issue, and no further trial of the issue is necessary. We disagree. The preliminary determination of the status of the certificates on the motion to dissolve a temporary injunction does not operate to deprive the appellant , of a trial on the merits of her petition to have the certificates declared to be assets of the estate. Since the order dissolving the temporary injunction is fully supported by the record and this opinion has resolved any issue as to the effect of the order, we see no reason to reverse the trial court’s decision. Accordingly, the order is affirmed.

AFFIRMED.

DOWNEY, C. J., ANSTEAD, J., and SIL-VERTOOTH, LYNN N., Associate Judge, concur.


author: MOORE, Judge.

text:
    Jessie James COVINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1103.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.
    Richard L. Jorandby, Public Defender, Joseph R. Atterbury, Legal Intern, and Frank B. Kessler, Chief, Appellate Division, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from a judgment and sentence for the crime of burglary wherein the defendant was alleged to have committed a burglary at the Middle Six School located at Gifford in Indian River County, Florida. The information alleged that the school was the property of Indian River County. At trial, the vice-principal of the school testified that the school was “run” by the Board of Public Instruction of Indian River County.

In burglary prosecutions, it has been repeatedly held that the allegation of ownership of a building alleged to have been burglarized must be proved as alleged. Smith v. State, 96 Fla. 30, 117 So. 377 (1928); Salerno v. State, 347 So.2d 659, 662 (Fla. 4th DCA 1977). Proof of ownership is an essential element of the offense of burglary.

In the instant case, the proof of ownership of the property was insufficient to sustain the conviction. While the Board of Public Institution “ran” the school, this does not indicate that Indian River County “owned” the school. Thus, the probata does not sustain the allegata and the state failed to produce any evidence of the actual ownership of the school property.

Appellant’s conviction for burglary must be, and is, REVERSED and REMANDED for a new trial. Salerno, supra; Mitchell v. State, 317 So.2d 465 (Fla. 4th DCA 1975). See also, State v. Ward, 354 So.2d 125 (Fla. 3d DCA 1978).

DOWNEY, C. J., and LETTS, J., concur.


text:
    FARBOIL COMPANY, a unit of Beatrice Chemical, a division of Beatrice Foods, Inc., Petitioner, v. DELRAY POOLS, INC., a Florida Corporation, Tru Pools, Inc., a Florida Corporation and Timscott Distributors, Inc., a Florida Corporation, Respondents.
    No. 78-689.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.

      Reed A. Bryan of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, for petitioner.
    Ryan, Ryan & Fitzgerald and Malcolm Anderson, North Palm Beach, for respondents.
   PER CURIAM.

Certiorari denied.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.


author: DAUKSCH, Judge. MOORE, Judge, LETTS, Judge,

text:
    STATE of Florida, Petitioner, v. Hon. James M. REASBECK, Judge of the Circuit Court, Seventeenth Judicial Circuit and/or any other judges sitting in the case of State of Florida v. Sam Jackson, Circuit Court Case No. 77-3579 CF, Respondent.
    No. 78-749.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.
    Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for petitioner.
    James M. Reasbeck, in pro. per.
   DAUKSCH, Judge.

The State petitions this court for a Writ of Prohibition which we grant. At issue is Fla.R.Crim.P. 3.170(g) and Fla.R.Crim.P. 3.172(f) as they are applied to the facts as set out below.

Sam Jackson was indicted for murder in the first degree and the respondent was assigned to be his trial judge. Before trial, plea negotiations were begun between the prosecution and defense counsel. They agreed the defendant could plead to murder in the second degree depending upon the sentence. The respondent then indicated that if the defendant pleaded guilty, a pre-sentence investigation would be ordered and the sentence would depend upon the result of that investigation but the defendant would be given no more than fifteen years in prison.

The defendant evidently also agreed to plead to murder two but before he entered his plea he wanted to discuss it with his sister or other members of his family. At this point there was an agreement among everyone but the accused that he would plead guilty to murder in the second degree and the maximum sentence would be fifteen years in the penitentiary. The accused’s agreement was conditioned upon his first discussing the matter with his family. That is not of great significance, however, since a defendant may withdraw his tendered plea of guilty anytime before it is finally accepted in open court. Fla.R.Crim.P. 3.172(f).

After these negotiations were concluded but before the plea was tendered in court, the assistant state attorney was told by the state attorney that the plea was not an acceptable agreement. The assistant state attorney then informed the defense attorney and the judge that the offer was withdrawn and a different arrangement must be made before the State would agree to a murder two plea. With understandable chagrin, the judge said the State had agreed to the lesser plea with a fifteen year cap and it could not withdraw its agreement. The judge stated his intention to accept the agreement and the plea and sentence the defendant in accordance with the agreement. The State seeks our writ of prohibition to keep the judge from going through with his intention.

The judge called it a unilateral contract which could not be broken. Without belaboring the contract law we should call it an illusory contract because it was unenforceable and ineffective as to at least one party, the defendant, until all the requirements of Fla.R.Crim.P. 3.172 were complied with. Moreover, Fla.R.Crim.P. 3.172(f) clearly says either party may withdraw its offer up until the formal acceptance of the plea. The rule also provides the offer may be withdrawn without any necessary justification. Therefore, the State was within its right to withdraw the offered plea and the judge should have recognized the withdrawal. We have considered Butler v. State, 228 So.2d 421 (Fla. 4 DCA 1969) which involved Willie James Butler, who was charged with rape and after he was charged it was agreed he would take a lie detector test about the alleged crime. If he failed the lie detector test, the results would be introduced into evidence; if he passed, the charge would be dismissed. He passed the test and the prosecutor entered his nolle prosequi. Later the prosecutor recharged Butler and the case was moved to St. Lucie County and he was convicted. This case is obviously not on point. There was a full-fledged agreement which was relied upon by the defendant to his detriment and upon which the State reneged. Our court properly reversed the conviction. Here the defendant had done nothing to his legal detriment in reliance upon a mere offer of the State. There was no contract and, under the cited rules, the State properly withdrew the offer.

Writ of prohibition is granted and the matter is remanded for further proceedings.

LETTS and MOORE, JJ., concur specially with opinions.

MOORE, Judge,

concurring specially:

I agree with the conclusion reached; but I must respectfully disagree with the factual determinations upon which the conclusion is based.

On an indictment for murder in the first degree, an assistant state attorney offered to allow the defendant to enter an “open” plea to murder in the second degree. This offer was made to defense counsel who stated that he thought his client would accept the offer, but only after they could receive an indication from the trial judge as to the length of sentence which would be imposed. The defendant and counsel for both parties then appeared before the trial judge who indicated he would accept the plea, and sentence the defendant to a 15-year term of incarceration. Thereupon, and in response to the court’s inquiry, defense counsel announced that his client would probably accept the plea but that he first wanted to discuss it with his sister. He never unconditionally accepted the state’s offer; and, thus, there was no contract.

Within a matter of days, the state withdrew its offer because the state attorney felt that a 15-year sentence was extremely lenient on an indictment for murder in the first degree. Had there been an unequivocal acceptance of the plea bargain, the principles announced in Butler v. State, 228 So.2d 421 (Fla. 4th DCA 1969) may have come into play; however, Fla.R.Crim.P. 3.172(f) clearly allows either party to withdraw an offer prior to its formal acceptance.

At the defendant’s request, the matter was set for hearing before the trial judge for a change of plea. At that time, the trial judge stated:

“ . . . I accepted the plea; and I feel I am bound with it, whether you are bound with it or not, whether you feel you are bound with it or not .... I committed myself to the defense that I would accept the plea to second degree murder. If they want to plead to second degree, I would sentence the defendant to 15 years in the state penitentiary. I feel bound by it, and if they are willing to accept it, I am going to do it.”

In my opinion, this violates the separation of powers under our tripartite system of government. It is the execútive branch of government, not the judicial branch, which is charged with the responsibility of determining and presenting accusations of criminal conduct. In the case sub judice, the state attorney presented a factual situation to the grand jury which indicted the defendant for the crime of murder in the first degree. It was the state attorney, and he alone, who could agree to reducing that charge. Absent a binding agreement, the judicial branch of government is powerless to require such a reduction.

It is my opinion that there never existed a binding agreement by way of an offer and an unequivocal' acceptance; that there was never a formal acceptance of a plea to murder in the second degree; and the state properly withdrew its offer pursuant to the terms of Fla.R.Crim.P. 3.172(f).

LETTS, Judge,

also concurring specially:

I agree with the conclusion reached and also with all that Judge Moore has said, but would like to comment on Judge Dauksch’s statement that the judge’s chagrin was understandable. By this, although the opinion later says otherwise, he appears to me to imply that while the state may not have been legally bound, what it did was somehow reprehensible. We need no citations to support the proposition that an offer can be withdrawn prior to acceptance. That is exactly what happened here. Would the judge have been entitled to understandable chagrin if the defendant had returned and said he wanted to go to trial? Of course not, because there never was a contract.

      . Fla.R.Crim.P. 3.170(g): Plea of Guilty to Lesser Included Offense or Lesser Degree.

      “The defendant, with the consent of the court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged which is included in the offense charged in the indictment or information or to any lesser degree of the offense charged.”

      . Fla.R.Crim.P. 3.172(f): Acceptance of Guilty or Nolo Contendere Plea.

      “No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements and determinations required by this Rule. Until that time, it may be withdrawn by either party without any necessary justification.”


author: PER CURIAM. SCHEB, Judge,

text:
    STATE of Florida, Petitioner, v. Silas Edward WILLS, Respondent.
    No. 76-1934.
    District Court of Appeal of Florida, Second District.
    June 7, 1978.

      James E. Slater, Asst. State Atty., Sarasota, for petitioner.
    Dennis J. Plews, Bradenton, for respondent.
   PER CURIAM.

The state petitions for a writ of certiorari to review the trial court’s order excluding from evidence the results of a breathalyzer test performed upon respondent Wills. The trial court based its conclusion on its finding that access to the equipment was not limited to authorized technicians as required by administrative rules adopted pursuant to statutory authority. Because there is competent substantial evidence to support the finding, we deny the writ.

Respondent was charged with manslaughter by motor vehicle while intoxicated. He moved to suppress the results of the breathalyzer test administered to him on the ground that at the time the test was performed, the Sarasota City Police Department was not in compliance with the applicable administrative rules concerning accessibility of the breathalyzer equipment. The trial judge treated the motion to suppress as a motion to exclude evidence and granted it, thereby ruling the breathalyzer test results inadmissible.

Section 322.262(3), Florida Statutes (1975) provides:

Chemical analyses of the person’s blood or breath, in order to be considered valid under the provisions of this section, must have been performed according to methods approved by the Department of Health and Rehabilitative Services and by an individual possessing a valid permit issued by the department for this purpose. The Department ... is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, . . . (Emphasis added.)

Pursuant to this statute, HRS has promulgated rules governing the licensing of technicians, the maintenance of equipment, and the administration of the tests. Fla.Admin.Code Rule 10D-42.07 provides in pertinent part:

Chemical test instruments used in the breath method must be kept in a suitable location which shall only be accessible to an authorized technician for administering a chemical test or preventative maintenance check. . . . Chemical test, instruments test kits must be stored in a clean, dry location which is only accessible to an authorized technician for the purpose of actually administering a chemical test or preventative maintenance check. . (Emphasis added.)

The evidence at the hearing disclosed that the breathalyzer test was administered to respondent by a licensed technician, Officer Jack Merritt. Officer Merritt testified that the breathalyzer equipment was kept in the booking room, which was admittedly used by many persons who were not breathalyzer technicians licensed by HRS. The officer further testified that the booking room was divided by a partition, and that the breathalyzer equipment was kept in a locked drawer on one side of the partition. On the other side there were gun lockers where off-duty policemen stored their guns. Though these gun lockers were outfitted with locks, the general practice of the policemen was to leave the keys in the locks so they could be readily opened. Officer Merritt had discovered that a key to one of the gun lockers would also open the drawer containing the breathalyzer equipment. Therefore, he would often use the gun-locker key to open the breathalyzer drawer, as he did when respondent was tested, rather than going to the front desk of the police station where the key to the breathalyzer equipment was kept.

Other jurisdictions having statutes conditioning validity of test results on compliance with approved methods and techniques have uniformly held that test results in violation of these approved methods will render the test results inadmissible. See State v. Wallin, 195 N.W.2d 95 (Iowa 1972); Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961); State v. Miracle, 33 Ohio App.2d 289, 294 N.E.2d 903 (1973); State v. Gallant, 108 N.H. 72, 227 A.2d 597 (1967); State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969); Jones v. Forrest City, 239 Ark. 211, 388 S.W.2d 386 (1965); State v. Sinclair, 474 S.W.2d 865 (Mo.App.1971). In some of these cases test results have been held inadmissible for noncompliance with the regulations even where there was no showing of any impropriety in the administration of the test itself. E. g., Otte v. State, supra (defendant’s blood was drawn by a registered nurse who was not acting under the direction of a physician as required; test results held inadmissible despite fact that there was no indication that the drawing of blood was improperly performed or the sample improperly handled); State v. Fogle, supra (although there was no indication that the equipment was faulty or that the test was improperly performed, results held inadmissible because certain required routine inspections of the equipment had not been made).

A contrary result was reached in People v. Adams, 59 Cal.App.3d 559, 131 Cal.Rptr. 190 (1976), but that opinion draws a distinction between the California statute and statutes like Florida’s which expressly condition the validity of test results on compliance with health department regulations. In view of the plain wording of the statute, we hold that chemical analyses of blood or breath performed in violation of the HRS rules are inadmissible.

The order entered below stated:

From the evidence in this case, it is clear that the equipment used to test the alcoholic content of the defendant’s breath was not kept in a location which was only accessible to an authorized technician. Any officer or employee of the police department, the majority of whom are not authorized technicians, could either secure the key to the equipment by opening the gun locker (the key to which was always in the lock) or, more importantly, simply use the key to the gun locker to unlock the equipment. The Court finds this ease of accessibility a violation of Rule 10D-42.07.

Thus, it appears that the trial judge was of the mistaken impression that the official key to the breathalyzer drawer was kept inside the gun locker rather than at the front desk. If this were the only basis for the order, we would be compelled to reverse because we cannot read the rule so strictly as to mean that it must be impossible for anyone other than authorized personnel to obtain the key. Where, as here, the police department had a policy of only permitting licensed persons to use the equipment and the key was presumably under the control of supervisory personnel by virtue of being kept at the front desk, there has been reasonable compliance with the rule.

The problem in this case is that Officer Merritt had found that he could open the drawer containing the breathalyzer equipment with the gun locker key which was usually kept in the lock of one of the nearby gun lockers. While there was no evidence that others had seen him use the key, this may be inferred from the fact that he had done so before and the booking room is a very busy room. In fact, an unlicensed officer was present when Officer Merritt employed the equipment to test the respondent. We cannot say that the court erred in concluding that the recurring use of the gun locker key to unlock the equipment violated the rule of nonaccessibility.

The petition for writ of certiorari is denied.

HOBSON, Acting C. J., and GRIMES, J., concur.

SCHEB, J., dissents with opinion.

SCHEB, Judge,

dissenting.

I respectfully dissent.

In the final analysis this case devolves into a judicial interpretation of the word “accessible” in Fla.Admin.Code Rule 10D-42.07. The case is close and the majority has carefully articulated what it believes to be a working definition of the word in this context. However, I feel the majority’s interpretation is too narrow.

From our own statutes and the cases from other jurisdictions cited by the majority, I perceive that the purposes of administrative rules governing the chemical analy-ses of blood or breath are to ensure the accuracy of the testing procedures and to protect the health of those being tested. I think these objectives were served by the procedures used by the police department in this case. The test here was administered by a licensed technician in compliance with the police department’s policy that only technicians licensed by HRS could use the breathalyzer equipment. There was no evidence before the trial court indicating that unlicensed personnel had ever taken the key or used the equipment. Nor was there any evidence that the test results were inaccurate in any way. Under these circumstances I would hold that the equipment was accessible to only authorized technicians within the meaning of the Rule. Accordingly, I disagree with the majority and would not hold the results of the breathalyzer test inadmissible.

      . Since slightly modified and renumbered as Fla.Admin.Code Rule 10D-42.24. See also Fla.Admin.Code Rule 15B-3.03, which provides essentially the same thing.


author: BOYER, Judge.

text:
    James Michael FEENEY, Appellant, v. STATE of Florida, Appellee.
    No. II-73.
    District Court of Appeal of Florida, First District.
    June 9, 1978.

      David Cohen, Liberty, N.Y., for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   BOYER, Judge.

Arguing four points for reversal, appellant seeks review of a judgment of guilt and resulting sentences on two counts of robbery with the use of a firearm of which a jury found him guilty. We find only one point to merit this opinion, and that only because of its novelty. Only those facts which are relevant to our discussion here will be recited.

An armed robbery occurred in Alachua County, which resulted in the arrest of four men. One pled guilty to attempted robbery and testified against the others. Another was tried separately and acquitted. The trial of appellant Feeney and one Samuel Smith, who were tried together, ended in a hung jury and a resulting new trial. They were thereafter retried “in an experimental manner”, the same trial judge conducting two separate trials simultaneously in the same courtroom but before two separate juries, one of which was removed when evidence was offered which was admissible only against the other defendant. The evidence relevant to both defendants was adduced only once in the presence of both juries. The Smith jury found him not guilty of either of the two charges for which he was tried but the Feeney jury found him guilty of both.

The state now urges that the appellant should not be heard to complain of the simultaneous trial procedure because of failure to state an objection on the record. The state’s position in that regard is untenable in view of the following statement of the trial judge which does appear of record:

“Let me put on the record what I conveyed to counsel prior to the beginning of this trial. I discussed the proposed two jury procedure with both counsel, gave them opportunity to object to it. They put no objections on the record. It was certainly understood by myself, and I believe by counsel that it would be an assignable error and certainly let the record show the purposes of reserving the right to object to it that both the defendant Smith and the defendant Feeney reserve the right to raise an objection on appeal to the simultaneous trial of these cases before two juries as we are doing. Likewise, the state of Florida reserves the right and in the event of an appeal can cross-assign that as error.”

Although neither party has cited us to any authority for the simultaneous trial procedure employed by the trial judge, neither does the record reflect prejudice. In his brief appellant concedes that “[t]he overwhelming majority of the State’s evidence was admissible against both” defendants. The law is, and must be, dynamic and not static. Procedural law is no exception. Experience comes about as a result of experiment. A trial judge has very broad discretion in the procedural conduct of trials. In the absence of demonstrated prejudice we are loathe to disapprove the novel procedure employed sub judice.

The other points raised by appellant we find, too, to be without merit.

AFFIRMED.

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


author: HOBSON, Acting Chief Judge.

text:
    BARNETT BANK OF CLEARWATER, N. A., a National Banking Association, Appellant, v. Nickolas J. ROMPON, June P. Rompon, J. Maurice Langelier and Jacques A. Corbeil, Appellees.
    No. 77-580.
    District Court of Appeal of Florida, Second District.
    June 9, 1978.
    Thomas M. Baumer and Michael A. Walters of Mahoney, Hadlow & Adams, Jacksonville, for appellant.
    John W. Puffer, III, of Shackleford, Far-rior, Stallings & Evans, Tampa, for appel-lees Langelier and Corbeil.
   HOBSON, Acting Chief Judge.

In this appeal we reverse the final judgment of the trial court because, contrary to the ruling of that court, mortgagee Bank was not estopped by a judgment rendered in a prior action against the Rompons (Mortgagors).

Pursuant to a purchase money loan agreement, Bank became a chattel mortgagee of a double-wide mobile home bought by Mortgagors. The mobile home was affixed to real property by hurricane anchors, an air conditioning system, and utility connections. Mr. Langelier and Mr. Corbeil (Purchasers) successfully bid for the real property at a sheriff’s sale. When Mortgagors refused to comply with Purchasers’ demand for possession of mobile homes situated on the land, Purchasers filed an action for unlawful detainer. Purchasers prevailed in the trial court and on appeal to this court. The sole issue on appeal was whether the mobile homes were fixtures to the land. We held that the trial court in that action was not shown to have abused its discretion in finding that the mobile homes were fixtures. However, this court expressly did not consider or determine the priority of claims made on the mobile homes by chattel mortgagees. Rompon Properties, Inc. v. Langelier, 341 So.2d 1068, 1069 (Fla. 2d DCA 1977). This latter issue was raised when Bank filed suit to foreclose on its interest in one of the mobile homes. The trial court in the foreclosure action held that Purchasers’ interest was superior to Bank’s interest because Bank failed to properly perfect its interest in the fixture. This ruling was based upon the trial court’s finding that Bank was estopped by the judgment in the earlier action against the Mortgagors, from whom Bank acquired its interest. Bank was not permitted to reliti-gate the issue of whether the mobile home was a fixture.

“Estoppel by judgment, simply stated, is a principle of law which recognizes within the concept of res judicata that once ’ an identical, relevant issue as between the same parties has been decided by a prior valid judgment that issue can never again be retried between them.” Zurich Insurance Co. v. Bartlett, 352 So.2d 921, 922 (Fla. 2d DCA 1977). Here, the previously decided issue sought to be relied upon was whether the mobile home was a fixture. That issue, however, was only decided as between Purchasers and Mortgagors — not as between Purchasers and Bank. Unless Bank was in proper “privity” with Mortgagors, for the purpose of applying estoppel by judgment, the identity of parties essential to application of estoppel by judgment was not present. Zurich Insurance Co. v. Bartlett, supra; Seaboard Coast Line Railroad Company v. Cox, 338 So.2d 190 (Fla.1976).

Bank was not in “privity” with Mortgagors for the purpose of applying es-toppel by judgment. It is true that one who acquires an interest in the subject matter of the suit after rendition of judgment is a “privy” in such sense that he is bound by the judgment. However, it is also true that one whose interest arises prior to that judgment is not bound by the judgment unless made a party to the action. Allstate Insurance Company v. Warren, 125 So.2d 886 (Fla. 3d DCA 1961). This principle has long had specific application to the acquisition of interests by mortgagees. See for example Logan v. Stieff, 36 Fla. 473, 18 So. 762 (1895), involving the mortgage of real property later involved in a sheriff’s sale.

In the case at bar, not only did Bank’s interest arise prior to the judgment obtained by Purchasers in the earlier action, but also it arose prior to Purchasers’ acquisition of an interest in the land upon which the mobile home rests. Bank was not bound by the earlier judgment. The trial court erred in denying Bank an opportunity to litigate its claim that the mobile home was not a fixture requiring perfection of a security interest in a manner different than that attempted by Bank.

Since the final judgment of the trial court was predicated on that court’s erroneous ruling that Bank could not contest the status of the mobile home as a fixture for the purposes of Bank’s interest, the final judgment must be, and is hereby,

REVERSED and the case is REMANDED.

GRIMES and OTT, JJ., concur.


author: GRIMES, Judge.

text:
    INSURANCE MANAGEMENT CORPORATION, Appellant, v. CABLE SERVICES OF FLORIDA, INC., ITT Industrial Credit Co., and United States Fidelity & Guaranty Company, Appellees.
    No. 77-1657.
    District Court of Appeal of Florida, Second District.
    June 9, 1978.

      James H. Seals of Moorey, Seals & Gar-vin, Fort Myers, for appellant.
    Howard S. Rhoads of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P. A., Fort Myers, for appellee ITT Industrial Credit Co.
    J. Jeffrey Rice of Goldberg, Rubinstein & Buckley, P. A., Fort Myers, for interve-nor/appellee/cross-appellant Flagship Bank of Fort Myers.
   GRIMES, Judge.

The primary question in this appeal is whether proceeds payable under an insurance policy for the loss due to theft of collateral which is the subject of a security agreement covering proceeds of the collateral are “proceeds” within the meaning of Section 679.306(1), Florida Statutes (1975).

Cable Services of Florida, Inc. (Cable) purchased a tractor with a backhoe attachment (tractor) and financed the purchase of it through a security agreement with ITT Industrial Credit Co. (ITT). By the terms of the security agreement with ITT, Cable was required to obtain insurance on the tractor. Cable later requested the applicable insurance from Insurance Management Corporation (IMC), which handled most of Cable’s insurance accounts. Pursuant to IMC’s request an appropriate rider was issued by United States Fidelity & Guaranty Co. (USF&G) to an existing policy which named ITT as an additional loss payee.

In the meantime, Cable borrowed some money from Flagship Bank of Fort Myers (Flagship) and as part of the collateral for the loan gave Flagship a security interest in the tractor which was subordinate to the perfected security interest of ITT. Flagship’s security interest in the collateral was also properly perfected. However, the security agreement did not require the collateral to be insured, and Flagship was not named as a loss payee under the USF&G policy.

IMC and Cable had a working relationship whereby IMC would advance the premiums for all of Cable’s insurance policies and credit them to an open account with Cable. Eventually, Cable went bankrupt and left a debt for premiums to IMC. In the meantime, ITT repossessed the tractor from Cable. Later, the tractor was stolen from the property of ITT. As a consequence, Cable and ITT together filed a claim for benefits under the insurance policy. USF&G honored the claim and issued a check for $10,623 payable to Cable and ITT. USF&G transmitted the check to IMC with instructions to deliver it to the loss payees.

Upon receipt of the check, IMC filed a complaint in circuit court alleging that Cable owed to IMC the monies which IMC had advanced to it for premiums, including the premium for the policy rider covering the stolen tractor. Asserting that it held a lien on the check, IMC refused to deliver the check to ITT or to Cable. ITT counterclaimed for declaratory judgment alleging first priority to the insurance proceeds as a named loss payee under the policy. IMC’s response asserted that the counterclaim was moot because the check had recently become void and had now been returned to the insurer. Because Cable’s note to Flagship was in default, Flagship was permitted to intervene in order to make a claim against the remainder of the insurance proceeds after satisfaction of Cable’s obligation to ITT.

IMC obtained a default judgment against Cable in the amount of $16,818. IMC then moved for a writ of garnishment against USF&G alleging that USF&G owed to Cable the sum of $10,623 and that IMC, now a judgment creditor of Cable, was entitled to that sum. In answer to the writ of garnishment, USF&G admitted its debt to Cable but asserted that it could not pay the proceeds of the check to IMC because ITT had a joint interest in them as a loss payee under the policy.

On these admitted facts, ITT, Flagship and IMC each moved for summary judgment. The court entered summary final judgment in which it initially determined that ITT had the first claim to the insurance monies because of its status as an undisputed loss payee with a security agreement and awarded ITT the $3,225.68 owed to it by Cable. Since the security agreement between ITT and Cable called for the payment of attorneys’ fees against Cable, the court also allowed ITT to recover $1,500 attorneys’ fees from the insurance proceeds. Next, the court concluded that the insurance monies were proceeds of Flagship’s collateral interest thereby making Flagship’s claim based upon its security agreement superior to IMC’s claim. Thus, Flagship received the balance of the insurance proceeds because its claim against Cable exceeded this amount. The court denied Flagship’s claim for attorneys’ fees. Finally, the court found that IMC would have had a claim against the insurance proceeds, had there been any left, and directed ITT to reimburse IMC for the $135 premium it had advanced to Cable for the insurance rider covering the stolen tractor.

In this appeal IMC claims a right superior to Flagship’s in the insurance proceeds and contests the award of attorneys’ fees to ITT. Flagship cross-appeals from the denial of its claim for attorneys’ fees.

Flagship’s security agreement and financing statement provided that its security interest extended to proceeds of the collateral under the security agreement. Thus, Flagship’s recovery was predicated upon the conclusion that the insurance monies paid for the loss of the collateral were proceeds within the meaning of Section 679.306, Florida Statutes (1975). The pertinent part of this statute reads as follows:

(1) “Proceeds” includes whatever is received when collateral or proceeds is sold, exchanged, collected or otherwise disposed of. The term also includes the account arising when the right to payment is earned under a contract right. Money, checks and the like are “cash proceeds”. All other proceeds are “non-cash proceeds”.
(2) Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.

These sections first became effective as part of the Uniform Commercial Code in 1967. Under these sections the identifiable proceeds from the disposition of secured collateral become subject to the security agreement. However, Florida has not passed on the question of whether insurance proceeds resulting from the loss of the collateral fall into this category.

There are only a few courts in the nation which have addressed this issue. The first case on the subject was Universal C. I. T. Credit Corp. v. Prudential Investment Corp., 101 R.I. 287, 222 A.2d 571 (1966). In that case, even though the financing statement provided that the proceeds of the collateral were covered by the security agreement, the court held that insurance monies paid for the loss of the collateral did not constitute proceeds under the identical section of the Uniform Commercial Code. The court said:

“Proceeds” by definition under the code arises from either a sale, exchange, collection or other disposition of either the collateral or proceeds. Insurance moneys or proceeds, however, arise and are paid as the result of a contract. An insurance contract or policy, so called, pertains to the persons to the contract and not to the item insured. It is a personal contract which does not attach to or run with the property insured. Universal C. I. T. Credit Corp., supra, at 574.

The court in Quigley v. Caron, 247 A.2d 94 (Me.1968), relied substantially on Universal C. I. T. Credit Corp. to reach the same result. The court reasoned that the words “sold, exchanged, collected or otherwise disposed of” implied a voluntary disposal by the owner rather than a change resulting from an involuntary calamity.

On the other hand, several courts have recently reached the opposite result. PPG Industries, Inc. v. Hartford Fire Insurance Company, 531 F.2d 58 (2d Cir. 1976); Firemen’s Fund American Insurance Company v. Ken-Lori Knits, Inc., 399 F.Supp. 286 (E.D.N.Y.1975); First Nat. Bank v. Merchant’s Mut. Ins. Co., 89 Misc.2d 771, 392 N.Y.S.2d 836 (Sup.Ct.1977); Northside Properties, Inc. v. Ko-Ko Mart, Inc., 28 N.C.App. 532, 222 S.E.2d 267 (1976), cert. denied 289 N.C. 615, 223 S.E.2d 392 (1976); In Re Hunter, 9 UCC Rptr. 928 (S.D.Ohio 1971).

In PPG, the security agreement called for the owner to obtain insurance on the collateral and to assign the right to receive the proceeds of the insurance to the creditor. Despite the fact that the insurance policy did not contain a loss payee clause, the court construed the subject code section to include insurance within the scope of the term “proceeds.” In affirming the trial judge, the court of appeals observed:

The district court below, despite the absence of a similar loss-payee clause, specifically rejected the reasoning of the Quigley and Universal C. I. T. Credit Corp. decisions, and decided that in this case any construction of § 9-306(1) which does not include insurance within the scope of the term “proceeds” would contravene the express intent of the parties. Furthermore, the Court pointed out that in 1972 the Commissioners on Uniform State Laws amended 9-306(1) to provide that “insurance payable by reason of loss or damage to the collateral is proceeds . ” As the reporter’s commentary to this amendment indicates, the “new . . . sentence ... is intended to overrule various cases to the effect that proceeds of insurance on collateral are not proceeds of the collateral.” Although this amendment has not yet been adopted in New York, it is a persuasive indication of the effect which § 9-306 was originally intended to have. Since no New York court has ruled on this question, the fact that the state legislature had not yet enacted this amendment does not preclude a federal court from rendering a decision which is consistent with the original intention underlying § 9-306. For this reason, the district court was correct in holding that PPG had a security interest in the proceeds of the insurance policy. PPG Industries, supra, at 61.

Florida, like New York, has not amended Section 9-306(1). This lays the foundation for arguments which cut both ways. Contrary to the rationale of PPG, it could be argued that the proposed amendment constitutes a substantive change which Florida has not seen fit to adopt. Nevertheless, we conclude that the term “proceeds” in Section 679.306(1) contemplates the identifiable insurance monies which are paid upon the loss of the collateral.

When there is a voluntary disposition of collateral, the perfected security interest follows the collateral into the hands of a third party and also covers the proceeds obtained therefrom. Where there has been an involuntary disposition of the collateral by way of theft or destruction, it would be anomalous if the creditor had no claim against the insurance monies paid to the owner for the loss of the collateral. In essence, the insurance proceeds represent the dollar equivalent of the collateral. Since the owner has pledged the collateral as security, why should not this dollar equivalent be subject to the security agreement? See 65 Mich.L.Rev. 1514. Where, as here, the debtor has become insolvent, the creditor would otherwise be totally without recourse. By the same token, a solvent debtor should be in no position to complain because the insurance proceeds will be applied toward the payment of the obligation for which he pledged the collateral in the first place.

It would be unwarranted to limit the words “sold, exchanged, collected or otherwise disposed of” to a voluntary disposition. As stated in In Re Hunter, 9 UCC Rptr. 928, 930 (S.D.Ohio 1971):

To read a question of intent, fault, or voluntariness into the statute for the purpose of defeating a security interest would serve only to rely on concepts or legal fictions that do violence to both ordinary semantics and practices in the market place. If one looks at the intent, then a debtor who deliberately wrecked his car would not defeat the secured party’s interest, but one who suffered an accident beyond his control would. In either event, the collateral has been “disposed of.”

We are not persuaded that our holding does violence to the rule that ordinarily a mortgagee has no right to the benefits of a policy of insurance effected by the mortgagor on mortgaged premises for his own benefit in the absence of either an assignment of the policy to the mortgagee or an agreement requiring the mortgagor to insure for the benefit of the mortgagee. 55 Am.Jur.2d Mortgages § 276; cf. Atwell v. Western Fire Ins. Co., 120 Fla. 694, 163 So. 27 (1935). Here, the mortgagor has already manifested an intent to secure the proceeds of the collateral, and by our decision we are simply construing the definition of “proceeds” to include insurance monies which are paid by reason of the loss of the collateral. Our conclusion is supported by Section 679.203(1)(b), Florida Statutes (1975), dealing with enforceability of security interests, which states:

In describing collateral, the word “proceeds” is sufficient without further description to cover proceeds of any character. (Emphasis supplied.)

IMC further argues in its brief that even if insurance proceeds were covered by Flagship’s security agreement, only the backhoe attachment rather than the entire tractor was within the description of the collateral for Flagship’s loan. Thus, IMC suggests that the most Flagship is entitled to recover is that portion of the insurance proceeds equivalent to the insured value of the backhoe attachment. This is a sound position if IMC is correct in its factual premise. Flagship fails to address the point in its brief, and the court below does not seem to have considered the question. While there are some references to this subject in the record, the differences in terminology employed by the parties make it difficult for us to verify the accuracy of IMC’s contention. This is a matter which should be explored and determined when the court holds its further hearing on attorneys’ fees as hereinafter directed.

For its last point on appeal, IMC argues that ITT should not have been awarded attorneys’ fees because ITT made its claim against the insurance proceeds rather than against Cable. This is a technical argument which fails to stand up under scrutiny. The insurance proceeds were payable to ITT and Cable, as their interest may appear. If IMC had delivered the check to the payees rather than bringing this suit, it would have been unnecessary for ITT to employ attorneys to collect Cable’s obligation. ITT’s security agreement authorized the payment of attorneys’ fees in the event an attorney was retained for collection. Since ITT had to use attorneys to establish its priority in the proceeds, it was entitled to a reasonable attorneys’ fee out of the same fund. A similar result occurs in a mortgage foreclosure when the first mortgagee’s claim for attorneys’ fees takes priority over the interests of subsequent mortgagees and of the property owner.

Through the application of the same principles, once it was determined that Flagship had a claim to the insurance proceeds, we believe that Flagship should also have been awarded from these proceeds reasonable attorneys’ fees incurred in the collection of Cable’s obligation. The attorneys’ fee provision of Flagship’s security agreement was broader than ITT’s in that it specifically provided that the proceeds of any collateral could be applied toward the payment of reasonable attorneys’ fees. Thus, the court erred in denying Flagship’s claim for attorneys’ fees.

The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

HOBSON, Acting C. J„ and SCHEB, J., concur.

      . Flagship’s security interest may only have covered the backhoe attachment on the tractor. This subject will be further addressed in the latter part of this opinion but for purposes of deciding the primary point on appeal, it shall be assumed that Flagship had a security interest in the entire tractor.

      . ITT does not contest the payment of the $135 premium.


text:
    CITY OF JACKSONVILLE BEACH, Florida, Appellant, v. The PUBLIC EMPLOYEES RELATIONS COMMISSION and International Brotherhood of Electrical Workers, Local No. 2358 (AFL-CIO), Appellees.
    No. JJ-418.
    District Court of Appeal of Florida, First District.
    June 12, 1978.
    John F. Dickinson of Coffman & Coleman, Jacksonville, for petitioner.
    H. Wade Gurley, Representative, Rodney W. Smith, William E. Powers, Jr., Tallahassee, for respondent.
   ON MOTION TO STAY

PER CURIAM.

On April 6, 1978, Appellee-Florida Public Employees Relations Commission (PERC) entered an Order verifying the results of an election and certifying Appellee-International Brotherhood of Electrical Workers, Local 2358 (AFL-CIO), as the exclusive collective bargaining representative for employees in the unit described in the order, On April 26, 1978, Appellant-City of Jacksonville Beach filed a timely notice of appeal to review Appellee-PERC’s order. Appellant has also filed a motion seeking a stay of the order during the pendency of this appeal, citing Fla.R.App.P. 9.310(b)(2) as authority therefor.

Fla.R.App.P. 9.310(b)(2) provides as follows:

(2) Public Bodies; Public Officers.
The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the State, any public officer in an official capacity, board, commission or other public body seeks review; provided that on motion the lower tribunal or the court may impose any lawful conditions or vacate the stay.

In its motion for stay, appellant alludes to possible conflict between Rule 9.310 and sections of the Administrative Procedure Act (APA) and the Public Employees Relations Act (PERA) which speak to judicial review of final agency action. Section 120.68(3) of the APA and section 447.504(5) of the PERA both state, in effect, that the filing of a petition for judicial review of final agency action does not, in itself, operate as a stay of the agency decision or order. This court so held in Lewis v. Career Service Commission, 332 So.2d 371 (Fla.1st DCA 1976).

The 1977 Advisory Committee and Court’s Commentary following Fla.R.App.P. 9.310 states, with regard to subsection (b)(2), that the rule supersedes Lewis, supra. To the extent that Rule 9.310(b)(2) is in conflict with the statutory provisions discussed above, the rule must prevail, for any legislative attempt to create rules of practice or procedure would be an intrusion upon the power of the Florida Supreme Court as defined in Article V, Sec. 2(a), Florida Constitution, and, thus, in violation of the doctrine of separation of powers as set forth in Article II, Sec. 3, of that Constitution. See Johnston v. State, 308 So.2d 127 (Fla.1st DCA 1975).

The filing of the notice of appeal by appellant automatically operated as a stay of Appellee-PERC’s order pending review by this court. Fla.R.App.P. 9.310(b)(2). Accordingly, the Motion for Stay filed herein is hereby determined to be moot.

IT IS SO ORDERED.

BOYER, Acting C. J., and SMITH and BOOTH, JJ., concur.


text:
    Sadie E. Bradley JONES, Appellant, v. Alfonso L. JONES, Appellee.
    No. HH-425.
    District Court of Appeal of Florida, First District.
    June 13, 1978.
    Joseph M. Ripley, Jr., Jacksonville, for appellant.
    Joseph F. Duszlak, Jacksonville, for ap-pellee.
   ORDER RELATING TO RECORD ON APPEAL

PER CURIAM.

Appellant’s points on appeal suggest a meritorious cause but consideration thereof require analysis of the testimony presented in the trial court. There was apparently no court reporter present at the hearing. Appellant represents that she has been unsuccessful in attempting to obtain a stipulated statement. She has submitted as a record hand written notes of the trial judge. Although we have authority to dismiss the appeal for lack of a sufficient record or to summarily affirm, we nevertheless are of the view that justice will better be served in this case by affording appellant an opportunity to prepare or have prepared a proper record. There is ample authority for such procedure. See Travelers Insurance Co. v. Agricultural Delivery Service, 262 So.2d 210 (Fla. 2d DCA 1972); Jackson v. Granger Lumber Co., 275 So.2d 555 (Fla. 1st DCA 1973); In re Adoption of A. M. L., 297 So.2d 840 (Fla. 2d DCA 1974). See also Fla.App. Rule 3.6(7) and Fla.R.App.P. 9.200(b)(3) (1977 revision).

Accordingly, appellant is allowed thirty days from date hereof within which to supply this court with an adequate record, failing which the appeal will be dismissed, sua sponte. In the event action of the trial court is required during that period incident to establishing or preparing such record, then jurisdiction is relinquished for that purpose.

BOYER, Acting Chief Judge, and SMITH and BOOTH, JJ., concur.


author: SMITH, Judge.

text:
    VOLKSWAGENWERKE, A. G., Appellant, v. Sandra S. McMILLAN, Appellee.
    No. JJ-194.
    District Court of Appeal of Florida, First District.
    June 13, 1978.
    J. Richard Caldwell, Jr. of Pitts, Eubanks, Ross & Rumberger, P. A., Orlando, for appellant.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Guy N. Perenich of Muscarella, Perenich & Carroll, P. A., Clear-water, for appellee.
   SMITH, Judge.

An interlocutory appeal from an order sustaining jurisdiction of a foreign manufacturer under Section 48.181, Florida Statutes (1975). Plaintiff’s proof on the jurisdictional issues was supplied by an affidavit of one of her attorneys of record. That affidavit, though largely hearsay and otherwise inappropriate, Hubbard v. Hubbard, 233 So.2d 150 (Fla. 4th DCA 1970), apparently was not objected to. We give it, therefore, the probative effect it naturally commands. It is insufficient fti its generality to support the essential jurisdictional findings. The order denying defendant’s motion to dismiss is REVERSED and the case is REMANDED for further proceedings on the motion.

BOYER, Acting C. J., and BOOTH, J., concur.


text:
    Hersh KARP et al., Appellants, v. The MIAMI HERALD PUBLISHING COMPANY, etc., Appellees.
    No. 77-1556.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.

      Retter & Sack, Miami, for appellants.
    Paul & Thomson and Sanford L. Bohrer, Miami, for appellees.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

The appellants, Hersh Karp and Ogenia Karp, brought an action against the appel-lee, The Miami Herald Publishing Company, for damages in libel. After extensive discovery, the trial judge entered a summary final judgment for the defendant newspaper publisher. The trial judge noted that summary judgment is especially appropriate in libel cases where the facts are not essentially in dispute because of the chilling effect of libel suits upon First Amendment freedoms. See Washington Post Company v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966).

The applicable law as set out by the trial judge has been agreed to by the parties in their briefs.

There remains for determination only the question of whether the evidentiary facts before the trial judge on the motion for summary judgment conclusively show: (1) that it appears without genuine issue that the published statements were true, or (2) that it appears without genuine issue that the newspaper was not negligent.

It appears without controversy that the newspaper reporter was called by an officer of the Immigration and Naturalization Service who gave to the reporter information pertaining to the plaintiffs. It further appears that the officer was well known to the reporter and had given the reporter accurate information in the past. The substance of the newspaper article was that the plaintiffs faced deportation after being “charged” by Immigration officials with illegally entering this country. The plaintiffs showed that no charges were actually filed. The immigration official stated in his deposition that the published article accurately reflected the facts that he gave the reporter. The noted discrepancy in the matter of a charge is not material in that the immigration official stated that proceedings for an investigation were under way. The dissemination of the information was pursuant to the policy of the Immigration Service. It also appears without conflict that the reporter made reasonable efforts to contact the plaintiffs for their version of the circumstances prior to publication.

Based upon this state of the record, the trial judge correctly held, under the applicable law, that there was no genuine issue of material fact concerning the absence of negligence.

Affirmed.

      . “1. To recover compensatory or actual damages under the United States Supreme Court holding in Gertz v. Welch, 418 U.S. 323, [94 S.Ct. 2997, 41 L.Ed.2d 789] (1974), Plaintiffs are required to show the alleged defamatory statements were false, and in addition, that Defendant acted with some degree of fault in the writing and publication of the article. In Firestone v. Time, Inc., 305 So.2d 172 (Fla.1974), rev’d, 424 U.S. 448, [96 S.Ct. 958, 47 L.Ed.2d 154] (1976), Order on Mandate, 332 So.2d 68 (Fla.1976), it was held the degree of fault applicable to defamation cases brought by private plaintiffs in negligence.”


text:
    Albert Francis DeVRIES, Appellant, v. Debra Jo DeVRIES, Appellee.
    No. 77-1804.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Markus, Winter & Spitale and Laurie Silvers, Miami, for appellant.
    Allen L. Jacobi, North Miami, for appel- . lee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Nicholson v. Nicholson, 311 So.2d 676 (Fla. 4th DCA 1975).


text:
    Queen Butler ROBINSON, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee.
    No. 77-1912.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Spiegelman & Spiegelman, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Boyd v. United States Fidelity & Guaranty Company, 256 So.2d 1 (Fla.1972).


author: HUBBART, Judge.

text:
    A. L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1931.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

A juvenile A.L. appeals an adjudication of delinquency for the offenses of burglary and petit larceny entered against him in the Circuit Court for the Eleventh Judicial Circuit of Florida. The juvenile contends that the trial court erred in denying his motion to dismiss the delinquency petition made at the close of the state’s case and renewed at the close of all the evidence at trial because the state failed to establish the essential element of “ownership” as to the alleged burglarized structure and the alleged stolen property on the charges of burglary and larceny. We agree and reverse with directions to discharge the juvenile.

The state filed a delinquency petition before the circuit court herein charging the juvenile in count I with the burglary of a certain athletics room, “the property of Dade County Parks and Recreation Department, as owner, tenant or lessee,” and in count II with the larceny of certain athletic clothing which was “in possession and lawful custody of Dade County Parks and Recreation Department.” The juvenile denied the charges and was tried before the court.

The evidence adduced at trial viewed in a light most favorable to the state establishes that on the date alleged in the petition herein the juvenile was observed in the athletic equipment room at a particular park in Dade County, Florida. The room was almost always kept locked and the juvenile had no authority to be there. When observed by a park employee, the juvenile ran from the room carrying with him certain athletic clothing and equipment. Later, the juvenile was apprehended, the property taken was recovered, and a confession was obtained from the juvenile as to the incident.

No evidence was presented to establish, as alleged in the delinquency petition, that the Dade County Parks and Recreation Department had lawful possession, custody or control of either the athletic room or the athletic clothing which was taken therefrom. In fact, no evidence was presented at all to identify the person or entity who had lawful possession, custody or control of the athletic room or the athletic clothing taken therefrom. Such a total failure of proof to establish the essential element of “ownership” (i. e. any possession which is lawful as against the accused) of the alleged burglarized structure and the alleged stolen property on the charges of burglary and larceny, as laid in the delinquency petition, is fatal to the state’s case. The trial court committed reversible error in denying the juvenile’s timely motion to dismiss the charges at trial. Smith v. State, 96 Fla. 30, 117 So. 377 (1928); State v. Ward, 354 So.2d 125 (Fla.3d DCA 1978); Mitchell v. State, 317 So.2d 465 (Fla.4th DCA 1975); Sifford v. State, 202 So.2d 14 (Fla.3d DCA 1967); Haines v. State, 113 So.2d 601 (Fla.2d DCA 1959). See also Anderson v. State, 356 So.2d 382, 384-85 (Fla.3d DCA 1978).

The adjudication of delinquency is reversed and the cause remanded to the trial court with directions to discharge the juvenile from the cause.


author: PER CURIAM..

text:
    Dan Allen FRY, Appellant, v. STATE of Florida, Appellee.
    No. 77-2040.
    District Court of Appeal of Florida, Second District.
    June 14, 1978.
    Jack O. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM..

Appellant pled guilty and was given an enhanced sentence as an habitual felony offender under Section 775.084, Florida Statutes (1977). As the basis for the enhanced sentence, the court made only a generalized reference to appellant’s bad record which was apparently set forth in the PSI.

Admittedly, Section 775.084(3)(c) does not require the contents of the PSI to be proved through testimony in the traditional way. Nevertheless, Section 775.084(3)(d) envisions that the court set forth findings which are the basis for the imposition of the enhanced sentence in order that the sentence may be the subject of appellate review. In this case the court failed to specify the evidence upon which it relied to justify the enhanced sentence. See Grimmett v. State, 357 So.2d 461 (Fla. 2d DCA, filed April 12, 1978).

The judgment is affirmed but the sentence is hereby vacated. The case is remanded for the imposition of a new sentence.

GRIMES, Acting C. J., and OTT and DANAHY, JJ., concur.


text:
    L. B. & D., INC., Appellant, v. Marvin C. HARDEN, d/b/a Harden-Campbell Insurance Agency and Independent Fire Insurance Company, Appellees.
    No. II-2.
    District Court of Appeal of Florida, First District.
    June 23, 1978.
    S. Perry Penland, of Penland, McCranie & Shad, Jacksonville, for appellant.
    Paul M. Harden, of Smith, Davenport, Peek & Bloom, Jacksonville, for appellee Ma.rvin C. Harden.
    Carl K. Staas, of Boyd, Jenerette, Leemis & Staas, P. A., Jacksonville, for appellee Independent Fire Ins. Co.
   ON PETITION FOR REHEARING GRANTED

PER CURIAM.

Appellee Harden points out in its petition for rehearing that the alleged January oral agreement on which we based our opinion reversing the summary judgment was first raised on appeal and was never urged at the trial level. The record reflects that appellant’s second amended complaint does in fact allege that the agreement took place in May, 1975, rather than January, 1975. Appellant has at no time requested leave to amend this complaint to clarify or alter the date of the alleged act. Without such a request, and without any reply to appellee’s contention in an Appellant’s Reply Brief or Answer to Petition for Rehearing, we must withdraw our previous opinion, grant the petition for rehearing, and affirm the summary judgment against appellant.

MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur.