author: McCORD, Chief Judge.

text:
    Patrick DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. EE-497.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1977.
    Rehearing Denied Sept. 12, 1977.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

This is an appeal from a judgment adjudicating appellant guilty of robbery and sentence therefor (imposed on January 10, 1977), to a term of five years imprisonment to run concurrently with two consecutive sentences imposed upon appellant on December 3, 1975. Appeals involving this same incident were previously before this Court in two consolidated cases — State v. Douglas (and Collins), Case No. AA-247 and Douglas (and Collins) v. State, Case Nos. AA-354 and AA-355, 337 So.2d 407 (Fla. 1 DCA 1976).

Appellant and co-defendant Collins were charged in a three-count information with robbery of Neil Sieracki in Count I, assault with intent to commit first-degree murder of Neil Sieracki in Count II and assault with intent to commit first-degree murder of Darrell Thompson in Count III. Our previous opinion summarizes the facts, and we will not repeat them here. The trial court dismissed Count I. The jury found, appellant and the codefendant guilty of assault with intent to commit murder in the second degree under Count II and aggravated battery under Count III. By our previous opinion we affirmed the convictions under Counts II and III but reversed the trial court’s dismissal of Count I. Upon remand, appellant, as a result of plea bargaining, pled guilty to the robbery (Count I), was adjudged guilty and sentenced to five years imprisonment to run concurrently with the sentences he had received previously on Counts II and III. Appellant’s counsel has filed a brief in this appeal from his robbery conviction pursuant to the procedure set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he is unable to assign or assert any arguable point of reversible error. No assignments of error were filed. Appellant was accorded the right to and has filed a pro se brief in which he contends that the trial court erred in giving him three separate sentences in that the offenses were facets of the same transaction. This question was not raised as to Counts II and III on appellant’s previous appeal, and thus it cannot now be raised in this subsequent appeal from appellant’s conviction on Count I of the information. In spite of this, however, we will comment that the sentences under Counts II and III of the information do not violate the single transaction rule because each was a crime against a different person. Robinson v. State, 323 So.2d 62 (Fla. 1 DCA 1975), and Booth v. State, 332 So.2d 157 (Fla. 1 DCA 1976).

We turn now to the present appeal in which appellant in proper person contends that his sentence under the robbery conviction violates the single transaction rule in that such offense was a part and parcel of the criminal episodes under Counts II and III. Although no assignment of error covering this point was filed by appellant’s attorney under Anders v. California, supra, the United States Supreme Court directed in Anders that when a so-called “Anders brief” is filed by an indigent appellant’s attorney, the appellant shall be allowed to raise any points that he chooses.

It is apparent from the record that the robbery of Sieracki under the charge in Count I was a part and parcel of the assault upon Sieracki in Count II. Under the facts of this case, as related in our opinion in the previous appeal of this case, the two offenses were one single criminal transaction inflicted upon Sieracki. Thus, it was error to sentence appellant for both offenses. Compare Pate v. State, 338 So.2d 1331 (Fla. 1 DCA 1976). Ordinarily, the sentence should be upon the higher of the two offenses, but here at the time of the sentence of appellant on Count II (assault with intent to commit second degree murder) the trial court had dismissed the robbery count. He was sentenced on Count II to 20 years. Upon our reversal of the dismissal of Count I (robbery), the trial court then gave appellant a five-year concurrent sentence on it. Because of this circumstance, the sentence for robbery should be vacated, it being the lesser of the two sentences.

Reversed and remanded with directions to vacate the robbery sentence.

RAWLS and SMITH, JJ., concur.


source: Caselaw Access Project

author: HUBBART, Judge.

license: Public Domain

text:
    STATE of Florida ex rel. Teodula Paz SALOMON and Ramon Salomon, Petitioners, v. Jack O. SANDSTROM, Director of the Dade County Department of Offender Rehabilitation, Respondent.
    No. 77-1570.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1977.
    Max P. Engel, Fort Myers, .David B. Jav-its, Miami, for petitioners.
    Richard E. Gerstein, State Atty., and Paul Rashkind, Asst. State Atty., Robert L. Shevin, Atty. Gen., for respondent,
    Before PEARSON, BARKDULL and HUBBART, JJ.
   HUBBART, Judge.

This is an original petition for a writ of habeas corpus in which the petitioners [Teodula Paz Salomon and Ramon. Salomon] challenge the lawfulness of their present incarceration at the Dade County Jail in the custody of the respondent [Jack O. Sandstrom, Director of the Dade County Department of Offender Rehabilitation]. We issued a rule to show cause why the writ of habeas corpus should not issue against the respondent. The respondent has filed a return and the court has held a hearing on the petition and return. Chapter 79, Florida Statutes (1975).

The issue presented for review is whether a trial court has jurisdiction to modify a probation order entered in a criminal case while the judgment of conviction and probation order is on appeal before an appellate court of competent jurisdiction. We hold that the trial court lacks such jurisdiction and grant the petition for writ of habe-as corpus.

It appears without dispute that on June 24, 1976, the petitioners were charged with certain lottery violations before the Circuit Court of the Eleventh Judicial Circuit of Florida. On May 26, 1977, the jury found the petitioners guilty as charged after a full trial. Whereupon the trial court adjudicated the petitioners guilty and committed them to the custody of the respondent without bail pending sentencing.

On May 31, 1977, the petitioners were heard by the trial court on a petition for release from custody on their prior trial appearance bonds pending sentencing. The trial court took testimony, heard argument and thereafter placed the petitioners on five years probation subject to terms and conditions to be set forth by further order of the court. On June 23, 1977, the petitioners filed a timely notice of appeal to review the above judgment of conviction and probation order.

On July 19, 1977, the trial court, over objection by petitioners’ counsel, modified the original order of probation by imposing special probationary conditions which required the petitioners to serve a total of four years in the state prison and sixty days in the county jail. This order was entered at a time when the judgment of conviction and probation order was before this court on appeal.

The law is clear that “the filing of a notice of appeal . . . vests in the appellate court complete and exclusive jurisdiction of the subject matter and of the parties to the appeal.” State of Florida ex rel. Faireloth v. District Court of Appeal, 187 So.2d 890, 891 (Fla. 1966). After an appeal has been perfected in a criminal case and during the pendency of such appeal, a trial court has no jurisdiction to grant a motion for new trial, State ex rel. Hall v. Lewis, 88 Fla. 146, 101 So. 199 (1924), or to modify a finding of guilt, McCormick v. State, 153 Fla. 838, 16 So.2d 49 (1943), or to revoke or alter a sentence such as an order of probation. See State ex rel. Brenner v. Dubitsky, 347 So.2d 777 (Fla.3d DCA 1977).

The circuit court had no jurisdiction in the instant case to modify the original five year probation order because a notice of appeal from the judgment of conviction and sentence had been perfected and was presently pending before this court. This result is unchanged by the respondent’s contention that the petitioners’ appeal is subject to dismissal. The petitioners’ appeal remains pending before this court until dismissed or decided on the merits; while so pending, the trial court lacks jurisdiction to modify or revoke the original probation order under review. Accordingly, petitioners’ current detention in the custody of the respondent pursuant to the modification of probation is illegal from which the petitioners are entitled to immediate release. Thereafter, the petitioners shall be subject to the original five year probation order during the pendency of their appeal before this court. The habeas corpus petition is granted and the writ of habeas corpus shall issue forthwith releasing the petitioners from the custody of the respondent. It is so ordered.


author: LETTS, Judge.

text:
    Stanley Bruce MERIT, Appellant, v. STATE of Florida, Appellee.
    No. 75-1390.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1977.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The judgment is affirmed.

However, the split sentence of six months in jail to be followed by three years probation is reversed. Appellant was convicted of an attempt to possess marijuana punishable by no more than one year of imprisonment. Accordingly, the sentence was excessive. Holmes v. State, 343 So.2d 632 (Fla.4th DCA 1977).

Reversed and remanded for sentencing consistent herewith.

ALDERMAN, C. J., and CROSS, J., concur.

      . § 893.13(1)(e); § 777.04(4)(d); § 775.082(4)(a) Florida Statutes (1975).


author: ALDERMAN, Chief Judge.

text:
    Joyce M. JOHNSON, Appellant, v. Charles H. JOHNSON, Appellee.
    No. 76-1270.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1977.
    George L. Moxon, the Law Offices of George L. Moxon, Fort Lauderdale, for appellant.
    Lawrence J. Meyer, Meyer, Leben, Fixel & Cantor, Hollywood, for appellee.
   ALDERMAN, Chief Judge.

The wife who brings this appeal from certain provisions of a final judgment of dissolution of marriage raises only one point which presents a valid challenge to the trial court’s rulings.

During the Johnsons’ marriage the couple acquired, as tenants by the entireties, a lot on which they constructed a large residence which they called The Harborage. The Johnson family never lived in The Harbor-age; instead, they decided to put it up for sale. Before Mrs. Johnson left the United States on a vacation trip she executed a quitclaim deed conveying her interest in The Harborage to her husband. Both Mr. and Mrs. Johnson agree that the purpose of the quitclaim deed was to make possible the sale of the property if a buyer should be found while Mrs. Johnson was out of the country. The property was never sold, and the title remained in Mr. Johnson’s name. When the marriage was dissolved, the trial court decreed, despite the wife’s claim of an interest in The Harborage, “That the Husband’s right, title and interest in and to . . . THE HARBORAGE, being the sole title therein, is hereby ratified and confirmed.”

We reverse because of that provision of the final judgment. When Mrs. Johnson conveyed her interest in the tenancy by the entireties it was not with the intention of relinquishing all of her beneficial interest in the property and vesting it in her husband, but rather it was done purely as a matter of convenience so that the property might be sold for the benefit of both husband and wife. Had the wife not executed the quitclaim deed the property would presumably have been held as a tenancy by the entire-ties until the dissolution of the marriage, at which time the wife would have become, by operation of law, the owner of a one-half interest in The Harborage as a tenant in common.

In the light of these circumstances, it would be inequitable and contrary to the original intent of the parties for the husband to retain full title to The Harbor-age. When Mrs. Johnson conveyed her interest in The Harborage to her husband, she became the beneficiary under a constructive trust and he became the trustee. Compare: LeCain v. Becker, 58 So.2d 527 (Fla.1952). Where one party conveys an interest in real property, without consideration, in order that the grantee may sell that interest on behalf of the grantor, the grantee gains only a naked legal title, while beneficial ownership remains in the grant- or. See, for example, Craft v. Craft, 74 Fla. 262, 76 So. 772 (1917).

A beneficiary under a constructive trust is entitled to have his original interest restored, and to be re-established in his title. Allen v. Tatham, 56 So.2d 337 (Fla. 1952). As constructive trustee, the appellee must convey to the appellant a one-half interest in The Harborage property; the marriage having been dissolved, the wife will now hold her interest as a tenant in common with her former husband.

Our holding upsets the balance between the parties as established by the trial court’s final judgment. We reverse and remand with directions that the trial court reassess the various allowances made to the wife, in view of the fact that she now owns half of The Harborage property.

Reversed and remanded for further proceedings consistent with this opinion.

CROSS and DAUKSCH, JJ., concur.


author: PER CURIAM.

text:
    ALPHA ELECTRIC SUPPLY, INC., a Florida Corporation, Appellant, v. JEWEL BUILDERS, INC., a Delaware Corporation qualified to do business in the State of Florida, Appellee.
    No. 76-1448.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1977.
    Rehearing Denied Sept. 27, 1977.

      Charles L. Steinberg, Orlando, for appellant.
    Charles M. Harris, Crofton, Holland, Starling, Harris & Severs, P. A., Titusville, for appellee.
   PER CURIAM.

Appellant, Alpha Electric Supply, Inc., who was plaintiff in the trial court, brought suit for the foreclosure of a mechanic’s lien. The case went to trial before the judge without a jury. At the conclusion of the plaintiff’s presentation of evidence appel-lees moved for an involuntary dismissal which was granted. We reverse.

A motion for an involuntary dismissal is in the nature of a motion for directed verdict. The same law is applicable. If sufficient evidence has been adduced, though conflicting, which, when considered in the light most favorable to the non-moving party would establish a prima facie case in favor of that party, then the motion should not be granted. A trial judge may not weigh evidence when ruling on such a motion. See Tillman v. Baskin, 260 So.2d 509 (Fla.1972) and Realty Marts, Inc. v. Barlow, 312 So.2d 544 (Fla. 1st DCA 1975). We simply hold that the record reveals sufficient evidence, which, when considered together with all the reasonable inferences deducible therefrom, established a prima facie case.

Reversed and remanded for a new trial.

CROSS, ANSTEAD, and DAUKSCH, JJ., concur.


author: DAUKSCH, Judge.

text:
    Herbert A. KAPLAN, Appellant, v. Ben CIAVARELLA and Frank Ciavarella, Appellees.
    No. 76-1460.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1977.

      Larry Klein, West Palm Beach, and Brennan, McAliley, Albury & Hayskar, West Palm Beach, for appellant.
    B. F. Paty, Jr., Paty, Downey, Lewis, Eaton, Fick & Martin, Palm Beach, for ap-pellees.
   DAUKSCH, Judge.

Appealed is an Order for new trial after jury verdict which the court determined was not lawfully reached. The trial court held “. . . under no theory advanced either by the Plaintiffs or by the Defendant could the jury have lawfully reached its verdict of $19,075.00. This award is below the lowest amount which could possibly be reached under the evidence.”

The Appellant has demonstrated and we find in the record a theory upon which the jury could have lawfully reached its verdict. Therefore the Order for new trial is reversed and the cause remanded for judgment on the verdict. Heymann v. Fusco, 132 So.2d 216 (Fla. 3d DCA 1961).

REVERSED and REMANDED.

CROSS and ALDERMAN, JJ., concur.


text:
    The BARTH CORPORATION, Appellant, v. CLEVETRUST REALTY INVESTORS et al., Appellees.
    No. 76-1658.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1977.
    Steven R. Reininger, of Tew, Tew & Murray, Miami, for appellant.
    Maurice M. Garcia, of Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for appellees.
   PER CURIAM.

We have considered the appellate points presented in the briefs and find that appellant has failed to demonstrate reversible error.

Although the order appealed from provides that “the second amended counterclaim is dismissed with prejudice” counsel have agreed the order was intended to dismiss only Count III of the counterclaim and strike only the affirmative defense asserting usury.

Accordingly, the order appealed from is treated as dismissing only Count III of the counterclaim and striking the affirmative defense of usury and, as so treated, said order is affirmed.

AFFIRMED and remanded for further proceedings.

DOWNEY and ANSTEAD, JJ., and DEAN, ROY E., Associate Judge, concur.


text:
    In the Interest of M. L., a child.

    No. 76-1764.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, Asst. Public Defender, West Palm Beach, for appellees.

       Consolidated with:
      V. D. C., 76-1765; D. E. P., 76-1805; D. K., 76-1806; G. H., 76-1807; H. N., 76-1808; R. S., 76-1809; R. R., 76-1810; D. J. S., 76-1811; T. C., 76-1812; K. J., 76-1813; G. B., 76-1814; C. W. C., 76-1815; R. D., 76-1816; H. R., 76-1817; S. M., 76-1878; and W. A. S., 76-1914.

   PER CURIAM.

AFFIRMED. The Order dismissing the Petitions herein is affirmed on the authority of In the Interest of S. L. M., a child, 336 So.2d 391 (Fla.4th DCA 1976).

CROSS, DAUKSCH and LETTS, JJ., concur.


author: ANSTEAD, Judge.

text:
    F. Malcolm CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 76-2136.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1977.

      William C. Owen, Jr., Cone, Owen, Nu-gent, Johnson & McKeown, Tequesta, and T. J. Cunningham, Cunningham & Cunningham, West Palm Beach, for appellant.
    Robert H. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
    Harold Long, Jr., Miami, and Sonja P. Mathews, Perrine, the Florida Chapter of the National Bar Association, as amicus curiae.
   ANSTEAD, Judge.

This is the second appearance of this case in this court, the first resulting in the af-firmance of the conviction of the appellant, F. Malcolm Cunningham, a lawyer, for indirect criminal contempt. This is an appeal from the sentence imposed for that conviction.

On May 5, 1975, Cunningham was tried and found guilty by the court without a jury. The trial court deferred pronouncement of sentence and ordered a presentence investigation. A written judgment of conviction was entered on May 8, and a motion for rehearing was denied on May 20, 1975. Thereafter, Cunningham appealed the conviction.

The trial court acknowledged receipt of the presentence investigation on September 20, 1975, although the record reflects that the confidential portion of the report was not mailed to the court until November 20, 1975. On June 18,1976, this court affirmed the conviction. Sentencing was scheduled for September 29, 1976, at which time a sentence was imposed of 90 days in jail and a fine of $1,000.00. Between the time of his conviction and the sentencing hearing, Cunningham remained free on his own recognizance.

Cunningham now claims that the trial court lost jurisdiction to sentence him after conviction, upon the expiration of the maximum period, one day less than six months, that he could have been sentenced for criminal contempt. To support this position he relies on three Florida Supreme Court decisions.

In all three cases relied on the trial courts had deferred sentencing “from day to day and term to term” and then imposed sentence much later. An excerpt from one of the opinions sets out the Supreme Court ruling:

It is plain, then, from the language in Helton v. State, supra, that the power of trial judges to hold in abeyance the passage of sentences and to impose them any time in the future, regardless of probation, is disapproved. For procedural reasons such as the determination of “motions and other matters arising between verdict and judgment, [or for the purpose of] gaining information necessary to the imposition of a just sentence, or during the pendency of other charges, or for other good and valid reasons,” to quote from Bateh v. State, supra, the language copied in Helton v. State, supra, there may be justifiable delay, and when convicts are put on probation the sentences, of course, may be deferred conditioned on obedience to the terms of probation. But it was plainly the view of the district court, and it is now the view of this court, that one convicted of an offense is entitled to know just when in his life, he meanwhile being at liberty, he is no longer subject to the power of the court to translate his liberty to imprisonment. It will be recalled that in the Helton case the convict was brought into court and sentenced after being at large for 12 years.

In each of the three cases the court pointed out the restrictions involved if a court did postpone sentencing to an indefinite time in the future:

. when a trial court puts off the imposition of sentence his actions with regard to it are confined to the period beginning with the judgment of guilt and ending with the last day of the extreme period for which sentence could have been inflicted at the time of the adjudication. In other words, the judge has the power to act within that time and impose a sentence which would not extend beyond it.

It is upon this statement of restrictions that Cunningham predicates his claim here. He first claims that upon a literal application of this rule, the trial court lost jurisdiction to sentence him six months after adjudication since the maximum sentence was one day short of six months. Secondly, he claims that even if the rule is not applied literally and there was a justifiable delay in imposing sentence, the delay could not extend past a reasonable time after the pre-sentence investigation was completed.

We believe the rule set out in the cases cited was intended to discourage and limit the practice of postponing sentencing “from day to day and term to term” but was not intended to prohibit a justifiable delay in sentencing. We are further of the view that any sentence within the lawful maximum may be imposed after a period of justifiable delay and that the lawful maximum is not to be reduced by any period of justifiable delay prior to sentencing. Therefore, we reject the first argument advanced that jurisdiction to sentence automatically expired six months after adjudication of guilt.

Cunningham’s second argument presents a more difficult question. While recognizing that justifiable delay to secure a presen-tence investigation is rather clear, we must face the question of whether there are circumstances to justify the additional delay from November 1975 to September 1976.

In an order denying bail pending the present appeal the trial court set out his reasons for delaying sentencing:

This court did not, as it customarily does, proceed to immediately impose sentence following the judgment because (1) a pre-sentence investigation was ordered (it. was received 20 September, 1975); (2) the undersigned endeavored long (October 1, 1975, through June 30, 1976) but unsuccessfully to have The Florida Bar take over the matter and conclude it as a disciplinary matter under Article XI of the Integration Rule; (3) the judgment was appealed and because of the nature of the cause and the defendant’s professional status it was reasonable (for the undersigned and for the appellate court) to assume that any sentence imposed during the period of appeal would have only resulted in forcing the defendant to seek supersedeas, as he is doing now; (4) the appellate opinion affirming the judgment of conviction is dated June 18, 1976, and the appellate denial of the defendant’s Petition for Rehearing July 22, 1976; the undersigned is informed that certiorari to the Florida Supreme Court was taken, from the Fourth District Court’s decision and as of now the mandate has not come down to the trial court from the Fourth District Court. There is no good faith question of law about the defendant’s guilt because that matter has been decided and affirmed on appeal.

In addition to the delay for the presen-tence investigation the trial court , cites two other reasons for the delay: continuing efforts to have the Florida Bar take over the punishment of Cunningham; and the pending appeal of Cunningham’s conviction.

The trial court requested that the Florida Bar take over the responsibility for the punishment of Cunningham on the grounds that the Bar would be in a better position, by way of experience, to determine an appropriate punishment for a lawyer. The Bar rejected these requests, properly citing the different jurisdictions and responsibilities involved. Bar disciplinary proceedings and judicial proceedings cannot be merged. And despite the good intentions of the trial court, we do not believe his negotiations with the Florida Bar constituted justifiable delay.

As to the appeal, the trial court stated that the appellate affirmance of Cunningham’s conviction eliminated any “good faith question of law about the defendant’s guilt”; and further, that sentencing during appeal would have “resulted in forcing the defendant to seek supersedeas” anyway.

As was noted previously, Cunningham immediately appealed his conviction of criminal contempt. A defendant may appeal from a conviction or from a sentence after conviction, or both, as is illustrated by this ’case. It is not necessary to appeal the order of conviction to later have it reviewed upon appeal after sentencing. While the trial court is generally divested of jurisdiction on appeal for most purposes, we do not believe jurisdiction is divested for purposes of. sentencing by virtue of an appeal of the conviction. Neither party herein has claimed the trial court was divested of authority to sentence by virtue of the appeal from the conviction.

However, we are without preceden-tial authority on the issue of whether the pendency of an appeal may constitute justifiable delay. The underlying principle involved here is that “one convicted of an offense is entitled to know just when in his life, he meanwhile being at liberty, he is no longer subject to the power of the court to translate his liberty to imprisonment.” Any delay which violates this principle cannot be “justifiable delay.”

It is difficult for us to see a violation of this principle under the circumstances here. Cunningham himself made the decision to appeal from the adjudication, rather than wait for sentencing and then appeal both the judgment and sentence. During the appeal he remained free on his own recognizance. And while we do not know that he would have sought bail pending appeal, or chosen to serve any sentence imposed, the record does not reflect any effort by him to have sentence imposed during appeal. In short, Cunningham has shown no prejudice by the delay. Nor was he faced with not knowing just when in his life sentence would be imposed. By his appeal he rightfully made every reasonable effort to overturn his conviction and to avoid the imposition of sentence. But he could not be deemed to have been unaware that he would be sentenced if his appellate efforts were unsuccessful.

While we are not faced with a situation where sentence was imposed and the execution thereof delayed, the rule in those cases is helpful:

The general rule, as we understand it, is that there is no statute of limitations or estoppel against the enforcement of an otherwise valid and unsatisfied judgment imposing a sentence, nor can the delay in execution on such judgment waive the state’s right or work estoppel against it. See 24B C.J.S. Criminal Law § 1999, pp. 687-688. However, an exception to the general rule appears to be that although mere delay in the infliction of punishment may not be sufficient reason for releasing one convicted of a crime from the consequences of the judgment against him, when the delay has been so great that society could derive no good from its enforcement and when such delay has occurred without the fault of the convict, even though with his consent, there should be no hesitancy in refusing to enforce the judgment.

Clearly, Cunningham would not be entitled to relief under this standard.

We believe that Rule 3.720 of the Florida Rules of Criminal Procedure should be followed upon a defendant’s conviction:

As soon as practicable after the determination of guilt and after the examination of any presentence reports the sentencing court shall order a sentencing hearing.

But we must take the facts of a particular case as we find them. Here, the trial court did not defer sentence “from day to day or term to term” or defer sentence pending appeal; rather, he deferred sentence pending a presentence investigation. However, when the presentence investigation was completed, the case was on appeal. Under these circumstances, absent an objection or some showing of prejudice, we cannot say that it was unreasonable for the trial court to await the outcome of the appeal before sentencing. We therefore hold that the circumstances of this case justified the delay in the imposition of sentence and the trial court did have jurisdiction to impose sentence.

As an additional ground for reversal Cunningham cites the failure of the trial court to apprise him of any factual matters contained in the confidential portion of the presentence investigation a reasonable time prior to sentencing. The record supports his position in this regard since the trial court acknowledged the existence of such factual matters at the sentencing hearing. There should be no factual matters considered by the trial court of which the defendant is not apprised a reasonable time prior to sentencing.

Accordingly, the sentence is hereby reversed with directions that a new sentencing hearing be scheduled in accordance with this opinion and that the appellant, F. Malcolm Cunningham, be apprised of any factual matters contained in the confidential portion of the presentence report a reasonable time prior to sentencing.

ALDERMAN, C. J., and DAUKSCH, J., concur.

      . Cunningham v. State, 337 So.2d 993 (Fla. 4th DCA 1976).

      . If a defendant is not afforded the right to a trial by jury, the maximum sentence of imprisonment that may be imposed for criminal contempt is one day less than six months. Aaron v. State, 284 So.2d 673 (Fla. 1973); Barr v. State, 334 So.2d 636 (Fla. 2d DCA 1976).

      . Rodriguez v. State, 119 So.2d 681 (Fla.1960); State v. Bateh, 110 So.2d 7 (Fla.1959); and Helton v. State, 106 So.2d 79 (Fla.1958). Also see State v. Stallworth, 251 So.2d 847 (Fla. 1971); Slay v. State, 347 So.2d 730, opinion filed June 17, 1977 (Fla. 1st DCA 1977); Smith v. State, 259 So.2d 498 (Fla. 1st DCA 1972); McCloud v. State, 237 So.2d 818 (Fla. 1st DCA 1970); Drayton v. State, 177 So.2d 250 (Fla. 3d DCA 1965).

        .State v. Bateh, supra, at 9-10.

      . Rodriguez v. State, supra, at 682.

      . State v. Sweetman, 302 So.2d 164 (Fla. 4th DCA 1974).

      .Cunningham was granted bail pending appeal by this court.

      . Florida Appellate Rule 6.2.

      . State v. Bateh, supra, at 10.

      . State v. Buchanan, 149 So.2d 574, 575 (Fla. 3d DCA 1963).

      . Campbell v. State, 342 So.2d 1010 (Fla. 4th DCA 1977).


text:
    STATE of Florida, Appellant, v. Kent A. MURRAY, Jr., Appellee.
    No. 76-2485.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1977.

      David H. Bludworth, State’s Atty. for Palm Beach County, and William B. King, Asst. State’s Atty., West Palm Beach, for appellant.
    Michael A. Nugent and David Roth, Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Murray is charged under Section 918.-14(3)(a)1, Florida Statutes (1975), with having caused a witness to be placed in fear. The court dismissed the information because it did not allege the defendant knew that a trial, proceeding or investigation was pending as mentioned in Section 918.14(1), Florida Statutes (1975).

We agree the information is defective and should be dismissed but not because it fails to allege the matters mentioned in paragraph (1) of the Statute. That paragraph does not apply to paragraphs 3(a)1, 2 and 3 because the Statute is meant to proscribe the tampering with or retaliation against a witness; and a trial, proceeding or investigation may be completed when retaliation is sought or assault is made. In fact, retaliation probably does not occur until after testimony is given and there is something against which to retaliate.

This Statute is different from other assault or battery or threat Statutes in that it requires the alleged victim to be or have been a witness. But many people are witnesses to many things so it must be alleged that the defendant knew the alleged victim was a witness. Some connection between the actions of the defendant and the fact the alleged victim was a witness must also be alleged in order to allege a violation of this Statute which is in effect an enhanced penalty Statute.

The Order of the trial court dismissing the information is affirmed without prejudice to the State to refile a proper information.

ALDERMAN, C. J., and CROSS, J., concur.

      .“918.14 Tampering with witnesses.—
      (1) It is unlawful for any person, knowing that a criminal trial, an official proceeding, or an investigation by a duly constituted prosecuting authority, a law enforcement agency, a grand jury or legislative committee, or the Judicial Qualifications Commission of this state is pending, or knowing that such is about to be instituted, to endeavor or attempt to induce or otherwise cause a witness to:
      (a) Testify or inform falsely; or
      (b) Withhold any testimony, information, document, or thing.
      (2) If any person violates the provisions of this section by the use of force, deception, threat, or offer of pecuniary benefit to induce any conduct described in subsection (1), the violation shall constitute a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In all other cases, a violation shall constitute a misdemeanor of the first degree, punishable as provided in s. 775.-082 or s. 775.083.
      (3)(a) It is unlawful for any person:
      1. To cause a witness to be placed in fear by force or threats of force;
      2. To make an assault upon any witness or informant; or
      3. To harm a witness by any unlawful act in retaliation against the said witness for anything lawfully done in the capacity of witness or informant.
      (b) Any person violating the provisions of this subsection shall be guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.”


author: SMITH, Judge.

text:
    Edward CONNER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. FF-115.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1977.
    Michael M. Corin and Margaret Good, Asst. Public Defenders, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky and Michael H. Davidson, Asst. At-tys. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Conner appeals from a probationary sentence following the trial court’s acceptance of his plea of nolo contendere to a charge of possession of marijuana, reserving Conner’s right on appeal to complain of the court’s order denying his motion to suppress as evidence the marijuana seized on his person.

Conner attracted the attention of the arresting officer while walking one morning, apparently aimlessly, through an alley of a commercial area. His manner aroused the officer’s suspicion. Then the officer observed him “lift his hat and take something out of it and bend down and put it in his shoe and then walk off.” The officer testified that “the only thing I could think of he’d be putting down there was a weapon” and said “I don’t really know that it was a knife or gun or ax or what.” The officer approached, commanded Conner to remove his shoe, and arrested him for possession of the marijuana that was revealed.

The record is barren of evidence that there was probable cause to believe Conner was “armed with a dangerous weapon which offers a threat to the safety of the officer or any other person . . . Baker v. State, 316 So.2d 657, 658 (Fla. 1st DCA 1975); Perry v. State, 296 So.2d 505 (Fla. 3d DCA 1974). There was no probable cause to believe Conner was about to commit a crime. Even giving full credit to the genuineness of the officer’s suspicion, suspicion is an insufficient predicate for the search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The sentence is VACATED and Conner is DISCHARGED.

McCORD, C. J., and MILLS, J., concur.


author: RAWLS, Acting Chief Judge.

text:
    COMMERCIAL BANK OF OKEECHOBEE, a Florida Banking Corporation, Appellant, v. Kenneth E. PROCTOR, Appellee. STATE ex rel. COMMERCIAL BANK OF OKEECHOBEE, a Florida Corporation, Relator, v. Honorable William T. SWIGERT, as Judge in the Circuit Court in and for Marion County, Respondent, Kenneth E. Proctor, Intervenor.
    Nos. GG-123 and GG-200.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1977.
    Rehearing Denied Sept. 13, 1977.
    Hubert C. Childress, Jr., Adams, Best & Sears, Orlando, for appellant/relator.
    Robert L. Shevin, Atty. Gen., and Thomas A. Beenck, Asst. Atty. Gen., for respondent.
    Charles R. Forman, Musleh, Leak, Bond & Arnett, Ocala, for appellee/intervenor.
   RAWLS, Acting Chief Judge.

The controversy between the primary parties, Commercial Bank of Okeechobee (Bank) and Proctor, must ultimately be resolved in determining which circuit court has jurisdiction to determine the ownership of fifty head of cattle.

On January 21,1977, the Bank procured a judgment against one Richard C. Heyward in the sum of $7,784.64, which judgment was rendered by the Circuit Court of the Nineteenth Circuit in and for Okeechobee County. Pursuant to a writ of execution issued by the Clerk of the Circuit Court of Okeechobee County, fifty head of cattle were levied upon by the Sheriff of Marion County, Florida, on February 16,1977. An order was entered by the Circuit Court of Okeechobee County on February 17, 1977, reciting that an affidavit had been filed reflecting that the cattle levied upon were in extremely poor condition, therefore subject to decay, and pursuant to Section 56.21, Florida Statutes, ordered the Sheriff of Marion County, after publishing a notice of sale two times, to sell the subject cattle at public auction on February 25, 1977.

The second chapter in this episode began on February 24, 1977, by Kenneth E. Proctor filing a complaint against the Sheriff of Marion County in the Fifth Judicial Circuit, wherein he alleged that the above mentioned writ of execution had been issued by the Clerk of the Circuit Court of the Nineteenth Judicial Circuit of Okeechobee County; the subject cattle are the sole property of Proctor; and that Proctor had no adequate remedy at law. Pursuant to the prayer in this complaint, Circuit Judge Swi-gert of the Marion County Circuit Court, without notice, entered his order enjoining the sale that was scheduled for the next day conditioned upon Proctor posting a bond in the sum of $8,000.00, which bond Proctor posted. The Marion County Sheriff’s return filed February 28, 1977, reflects: “Sheriff’s levy dissolved, as per order signed by Judge Swigert, dated February 28, 1977. Writ returned unsatisfied . ..” Pursuant to motion, the Bank was permitted to intervene in this proceeding, and upon denial of its motion to to dissolve the injunction, it filed a notice of interlocutory appeal in this court.

The subject matter of the third chapter in this episode is a suggestion for writ of prohibition filed by the Bank in this Court on June 10, 1977, against Judge Swigert, as the respondent. By its suggestion, the Bank, after basically alleging the facts recited above, concluded that Section 56.16, Florida Statutes, provides a sole and exclusive remedy for third parties claiming ownership in property levied upon pursuant to that statute. This court issued its rule nisi, granted Proctor’s motion to intervene and denied Proctor’s motion to quash rule nisi. Timely returns having been filed by respondent and Proctor in the prohibition action, and the interlocutory appeal being at issue, the court consolidated the two cases and argument was heard at a special hearing.

The Prohibition Action

By its suggestion, the Bank contends that Judge Swigert was without jurisdiction to initially enter the temporary injunction and to retain jurisdiction to determine ownership of the cattle. Supportive of the Bank’s assertion of absence of jurisdiction in the Marion County Circuit Court is the recent opinion of our sister court in Budget Landscape Nursery, Inc. v. McMillin Investors New York Corp., wherein that court, in considering an analogous factual situation, categorically stated: . . the Circuit Court of Indian River County was without jurisdiction [emphasis supplied] to restrain by injunction an execution sale of certain personal property levied upon pursuant to a writ of execution issued out of the Circuit Court of Brevard County ..” We are not in accord with this broad brush statement. In reaching its decision in McMillin, the court relied primarily upon Adams v. Burns, wherein the Supreme Court of Florida found that although there is some contrary authority, the better rule seems to be that where the property of one who was not named in the writ has been levied upon under a writ valid on its face, such party cannot maintain an action of replevin or detinue to recover that property while it remains in custodia legis. Since those actions are founded upon common law principles, the rule set forth is sound. However, we are not willing to cast into concrete a rule of law that would, in all conceivable circumstances, divest a circuit court of its historical equitable jurisdiction in cases involving a levy upon property physically located within its jurisdiction. A fundamental basis of equity jurisdiction is to afford complete justice where the courts of law have no power to adapt their judgments to special circumstances.

In the instant case, the pleadings allege and it is not disputed that Judge Swigert is a Circuit Judge of Marion County; that the cattle were located in Marion County; and that the Sheriff of Marion County was in the process of selling said cattle at public auction in Marion County. Judge Swigert had jurisdiction of the cattle, he had jurisdiction of the sheriff, and as a circuit judge of this state, he was empowered to enter a temporary injunction.

The office of prohibition is not limited to the absence of jurisdiction; the writ may lie to restrain an excess of jurisdiction. The common law writ of prohibition is not a writ of right, but it is an extraordinary judicial writ that in proper cases may be issued to restrain the unlawful exercise of judicial functions.

So, we come to grips with the basic question: Did Judge Swigert, under the admitted facts of this case in entering the temporary injunction, act in excess of his jurisdiction? The answer is yes. We are not here concerned solely with the ministerial act of the Clerk of the Okeechobee Circuit Court issuing a writ of execution. After the writ was issued, the Okeechobee Circuit Court continued its jurisdiction by entertaining proceedings involving the cattle located in Marion County and by specifically ordering the Marion County Sheriff to sell same on a date certain. The action of Judge Swigert, by entering the temporary injunction, in effect purported to set aside the order of a circuit court of equal authority. The Marion County Circuit Court does not have appellate jurisdiction of the Okeechobee Circuit Court. In entering the temporary injunction, the Marion Court acted in such excess of its jurisdiction as to warrant the entertainment of relator’s suggestion and granting an absolute writ of prohibition. The respondent is directed to vacate the order granting the temporary injunction on February 25,1977, and to desist from asserting any further jurisdiction as to the subject matter of these causes.

Interlocutory Appeal

Having reached the conclusion that prohibition is the proper remedy, the matters raised by interlocutory appeal are moot. The decision of this court is without prejudice to appellee, Kenneth E. Proctor, to assert any remedies that may be available to him in the Circuit Court of Okeechobee County.

The interlocutory appeal is dismissed.

SMITH and ERVIN, JJ., concur.

      . Situated in the Fifth Judicial Circuit.

      . Situated in the Nineteenth Judicial Circuit.

      . Sec. 56.21, Fla.Stat, provides, in part: “. . the time of such notice [30 days] may be shortened in the discretion of the court from which the execution issued . . ..”

      . Sec. 56.16, Fla.Stat., provides, in pertinent part:
      ", . . If any person other than the defendant in execution claims any property levied on, he may obtain possession of the property by filing with the officer having the execution an affidavit by himself, his agent or attorney, that the property claimed by him belongs to him and by furnishing the officer a bond with surety to be approved by the officer in favor of plaintiff in double the value of the goods claimed as the value is fixed by the officer and conditioned to deliver said property on demand of said officer if it is adjudged to be the property of the defendant in execution and to pay plaintiff all damages found against him if it appears that the claim was interposed for the purpose of delay.”

      . Budget Landscape Nursery, Inc. v. McMillin Investors New York Corp., 343 So.2d 640 (Fla. 4th DCA 1977).

      . Adams v. Bums, 126 Fla. 685, 172 So. 75 (1936).

      . 1 Crandall, Florida Common Law Practice, Prohibition § 473 (1928).

      . State v. Hutchins, 101 Fla. 773, 135 So. 298 (1931).

      . Time Financial Services v. Hilliard Mobile Homes, Inc., 329 So.2d 362 (Fla. 1st DCA 1976).


author: GRIMES, Judge.

text:
    David Russell DEGEER, Appellant, v. STATE of Florida, Appellee.
    No. 77-184.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 1977.
    Rehearing Denied Sept. 12, 1977.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

In this appeal from a conviction for uttering a forged instrument, the only point worthy of discussion pertains to certain communications between the jury and the bailiff during the trial. After the jury verdict had been published and the jury polled, the following transpired:

“MR. BRINKMEYER: Your Honor, before the jury leaves, there’s one matter that I wish to bring to the Court’s attention. The bailiff has informed me that there was a conversation between himself and members of the jury regarding evidence that was not admitted, exhibits which were not admitted into evidence, and I wish to move for a mistrial at this time. And I would request that the Court poll the jury as to the nature of the conversation between the bailiff and the jurors.
THE COURT: What bailiff was that?
MR. BRINKMEYER: Mr. Wilson.
THE COURT: And what was the conversation, Mr. Wilson?
MR. WILSON: They asked me if the photograph that the F.B.I. had was in evidence, and I came out and I asked Mr. Holmes [Assistant State Attorney] if it was in evidence, he said no, and I came in and I told the jurors it was not in evidence.
THE COURT: Was the conversation any different Mr.
MR. HAMMAC [Jury Foreman]: That’s correct.
THE COURT: The Court will deny your motion and would excuse you. Thank you.”

Appellant contends that this colloquy constituted a violation of Fla.R.Crim.P. 3.410 (requiring additional instructions to the jury to be given in open court) and Section 918.07, Florida Statutes (1975) (prohibiting the officer in charge of the jury from communicating with jurors on any subject connected with the trial).

Our Supreme Court has recently held that a violation of Fla.R.Crim.P. 3.410 is prejudicial error regardless of whether the judge’s instruction is legally correct. Ivory v. State, 351 So.2d 26 (Fla.1977) (Opinion filed July 14,1977). Whether a violation of Section 918.07, Florida Statutes (1975), is automatically prejudicial, at least where the contents of the communication are clearly known and apparently harmless, is not quite so clear. Compare Ennis v. State, 300 So.2d 325 (Fla. 1st DCA 1974) with Randolph v. State, 336 So.2d 673 (Fla. 2d DCA 1976); cf. Ivory v. State, supra.

In any event, we believe there was neither a violation of the rule nor a departure from the statute in the instant case. Referring to the record, it is obvious that the jury was interested in seeing a photograph that an F.B.I. fingerprint expert had exhibited to the jury but which was never admitted into evidence. One of the bailiff’s responsibilities is to see that the jury is furnished with all exhibits which are introduced into evidence. Therefore, the bailiff’s response to the jury’s inquiry really amounted to nothing more than the fulfillment of his obligation only to permit the jury to receive those exhibits which had been properly admitted. This did not constitute an instruction on the law or a prohibited communication with the jurors on a subject connected with the trial.

AFFIRMED.

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


text:
    Billie Ann FILLINGER, Appellant, v. STATE of Florida, Appellee.
    No. 77-230.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 1977.
    Rehearing Denied Sept. 13, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, Sidney L. Matthew, Stephen Lindsey Gorman, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant pled nolo contendere to grand larceny reserving her right to appeal the denial of her motion to suppress her confession.

The police officer who elicited her confession was the sole witness at the hearing on the motion. According to the witness, the appellant, who was confined to a wheelchair, was initially arrested for petit larceny. She was advised of her constitutional rights, signed a waiver, and readily admitted her involvement in that crime.

During this period of time the interviewing officer was informed by a fellow officer that the appellant fit the description of a suspect in an earlier grand larceny case. He then questioned the appellant concerning that crime. At first, the appellant denied any involvement with or knowledge of the crime.

The officer told the appellant that he had enough information at that time to go to the state attorney in order to procure a warrant for her arrest. She asked him to explain the procedure for issuing and serving a warrant. The officer indicated that he would go to the state attorney and that if a warrant were issued, she could be arrested at a later time even in another city or state. In response to the question of what may have influenced appellant to change her mind and confess, the officer candidly stated:

“ . . .1 got the impression that she admitted this offense because she didn’t wish to take a chance on being arrested at a later date.”

The officer was then asked whether he had made any promises in return for her cooperation, to which he replied:

“The only thing I did stipulate that we would use in consideration her cooperation in this case, and I would advise the State Attorney of her cooperation, or not of her cooperation in the case.”

The officer added that he told her he would take her cooperation into consideration in seeking to establish the amount of her bond. The normal bond for grand larceny in that county is $5,000, but her bond was ultimately set at $2,500.

As early as 1897, the U.S. Supreme Court observed in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897):

“ ‘. . . A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner . . .

Many years later the same court stated in Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960):

“ . . . [T]his Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. . . . ”

In order for a confession to be admissible, the state has the burden of showing that it was freely and voluntarily given. State v. Chorpenning, 294 So.2d 54 (Fla. 2d DCA 1974). It cannot have been obtained by any direct or implied promise, however slight. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963). An accused from whom a confession is sought should be free from the influence of either hope or fear, and a confession must be excluded if the totality of the surrounding circumstances were calculated to delude the accused or to exert undue influence over him. M.D.B. v. State, 311 So.2d 399 (Fla. 4th DCA 1975); Jarriel v. State, 317 So.2d 141 (Fla. 4th DCA 1975). If the interrogator induces the accused to confess by using language which amounts to a threat or promise of benefit, then the confession may be untrustworthy and should be excluded. Frazier v. State, 107 So.2d 16 (Fla. 1958); State v. Chorpenning, supra.

Applying the established law to the circumstances surrounding appellant’s confession, the uncontradicted evidence indicates that the confession was induced by promises of leniency. Thus, the state failed to carry its burden of proof that the confession was freely and voluntarily made.

REVERSED.

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


author: PER CURIAM. BOYER, Acting Chief Judge,

text:
    William R. MULDROW, Appellant, v. Henry LAWRENCE, Appellee.
    No. CC-395.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1977.
    James C. Massie, Tallahassee, for appellant.
    Thomas Pelham and Kenneth R. Hart of Brown, McDonnell & Hart, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS and ERVIN, JJ., concur.

BOYER, Acting C. J., dissents.

BOYER, Acting Chief Judge,

dissenting.

I respectfully dissent. The record reveals issues of material fact which, in my view, prevented proper entry of summary judgment. I would therefore reverse.


text:
    Appeal of Mary D. MATHEWS and Hurtis E. Mathews. In re ADOPTION OF Julie MILLER, minor.
    No. EE-333.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1977.
    Brooks Taylor, Crestview, for appellants.
    C. LeDon Anchors of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellee.-
   PER CURIAM.

AFFIRMED.

MILLS and ERVIN, JJ., concur.

BOYER, Acting C. J., concurs specially.

BOYER, Acting Chief Judge,

concurring specially.

I concur only because of the presumption of correctness with which the order of a trial court reaches this court. I am not of the view that the ages of appellants are or should have been a controlling factor and had I been the trial judge I would have granted the petition for adoption. However, District Courts of Appeal have been repeatedly admonished by the Supreme Court of Florida against substituting their opinions for those of a trial judge. I therefore reluctantly join with my brethren in affirmance.


author: ERVIN, Judge. SMITH, Judge,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Guy A. O’KELLEY, Jr., Appellee.
    No. FF-210.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1977.
    Rehearing Denied Sept. 13, 1977.
    Marion R. Shepard, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellant.
    David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appel-lee.
   ERVIN, Judge.

The only question before us is whether a two-wheeled vehicle described as a mini-motorbike is a motorcycle within the meaning of the Florida Automobile Reparations Reform Act, thereby excluding its occupant from coverage. The court below held it was not and we agree.

O’Kelley’s seven year old son, who resided with him, was injured while riding an unlicensed minibike on the sidewalk in front of his home where he collided with a motor vehicle parked across the sidewalk. O’Kelley claimed personal injury protection benefits from his insurer, State Farm. State Farm denied such benefits were available on the ground the child was an occupant of a motorcycle and thus was precluded by Section 627.736, Florida statutes (Supp. 1976), from coverage. Following the denial of State Farm’s motion to dismiss O’Kelley’s complaint for damages, the case was tried non jury and the court entered judgment for O’Kelley in the sum of $7,240.50, including interest, costs and attorney’s fees.

At trial a Harley-Davidson motorcycle dealer differentiated the minibike involved in the accident from a motorcycle in that the latter has larger wheels and a transmission. He also stated the bike had less than five brake horsepower and was not equipped with headlights, taillights, stoplights or a horn.

Mr. O’Kelley, whose brother owned the minibike, testified that it had a maximum of 3V2 horsepower. Contained in the record is a photograph of Mr. O’Kelley standing, holding in his hands the minibike involved in the accident. The photograph shows the handlebars of the bike protruding slightly above his head with its wheels approximately even with Mr. O’Kelley’s waist.

We cannot accept State Farm’s argument that such a vehicle is a motorcycle and that Mr. O’Kelley is thereby excluded from PIP benefits under his policy. To do so would result in a departure from the common understanding of what the word contemplates. The No Fault Act contains no definition of the words “motorcycle” or “minibike”. It is therefore necessary to look elsewhere for appropriate definitions. Motorcycle is defined by Webster’s Third New International Dictionary (1967) as “a 2-wheeled tandem automotive vehicle having 1 or 2 riding saddles and sometimes having a third wheel for the support of a sidecar.” Minibike is defined in Webster’s New Collegiate Dictionary (1976) as “a small one-passenger motorcycle having a low frame and elevated handlebars.”

Section 316.003(22), Florida Statutes (1975), of the Florida Uniform Traffic Control Law, was amended by Ch. 76-286, § 1, Laws of Florida, effective July 1, 1976, to provide:

“(22) Motorcycle. — Any motor vehicle with a motor in excess of a rating of IV2 brake horsepower having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor.” (Emphasis in original.)

If literally applied, the above definition would seem to fit the vehicle involved in the accident since it was not a tractor, had no more than two wheels and had a motor rated in excess of IV2 horsepower. However immediately following the above definition, subsection (23) states:

“(23) Motor-driven cycles. — Every motorcycle and every motor scooter with a motor which produces not to exceed five-brake horsepower, including every bicycle propelled by a helper motor rated in excess of IV2 brake horsepower.” (Emphasis in original.)

Thus a distinction is made between motorcycles in subsection (22), and motorcycles under subsection (23), the latter being included within the term “motor-driven cycles.” The primary distinction is that the latter vehicles have a motor which does not exceed five-brake horsepower. The unre-futed testimony in the case below was that the vehicle involved in the accident did not exceed five horsepower. The only certain conclusion which may be drawn from the above definitions is that it is uncertain whether a two-wheeled motorbike having no more than five-brake horsepower is a motorcycle.

While courts are not at liberty to resort to rules of statutory interpretation where the language of the statute is plain and unambiguous, Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918), where the words are ambiguous the cardinal rule of construction is to interpret the statute in such a way that effect be given to the intention of the legislature. Tyson v. Lanier, 156 So.2d 833 (Fla.1963).

Concerning the legislative intent in excluding motorcycles from coverage under the No-Fault Act, we believe the following language from State Farm Mut. Auto. Ins. Co. v. Nicholson, 337 So.2d 860, 862 (Fla. 2nd DCA 1976) is instructive:

“We think the better view and the intent of the legislature in enacting the no-fault act was to exclude from coverage the normal meaning attributed to the word ‘motorcycle,’ given the applicable law and modern definitions. That definition is normally associated with a two-wheel tandem vehicle which the operator straddles without benefit of any enclosure and which must be balanced in operation to maintain equilibrium. The legislature, because of these features, undoubtedly sought to exclude these types of vehicles since the propensity for accidental injury during operation is so much higher.” (Emphasis supplied.)

The propensity for accidental injury during the operation of an unlicensed minibike can hardly be said to be that which we have traditionally associated with motorcycles. However the definition provided in Nicholson for motorcycle could as easily be applied to bicycles. Compare the definition for the latter as set forth in Section 316.003(2), Florida Statutes (Supp.1976):

“(2) Bicycle. — Any device propelled by human power, or any ‘moped’ propelled by a pedal activated helper motor with a manufacturer’s certified maximum rating of IV2 brake horsepower, upon which any person may ride, having 2 tandem wheels, either of which is 20 inches or more in diameter, and including any device generally recognized as a bicycle though equipped with 2 front or 2 rear wheels.”

Thus we are faced with another ambiguity. If a “moped”, as defined under subsection (2), is equipped with a motor not exceeding IV2 brake horsepower, it is a bicycle. If, however, a bicycle, under subsection (23), has a motor rated between F/2 to five-brake horsepower, it is a “motor-driven cycle.” Presumably, if in excess of five-brake horsepower, it would qualify as a motorcycle under subsection (22). These overlapping ambiguities are all too apparent.

We simply do not believe, given the nature of the vehicle involved, a small, unlicensed low horsepower motorbike, that the legislature intended to exclude the occupants of such vehicles from PIP benefits when not operated on the public highways. We should not construe a statute in such a manner as to reach an illogical or ineffective conclusion when another construction is possible. Grade v. Deming, 213 So.2d 294 (Fla. 2nd DCA 1968). To construe the statute in the manner argued by State Farm would be illogical, unreasonable and a departure from common sense.

Accordingly we feel the only logical interpretation which can be accorded to the word “motorcycle” is that the motor minibike involved in the accident is a motor-driven cycle as defined under Section 316.-003(23), and is not a motorcycle as contemplated by Section 627.736.

AFFIRMED.

RAWLS, Acting C. J., concurs.

SMITH, J., dissenting.

SMITH, Judge,

dissenting:

I conceive that this vehicle is a motorcycle as properly defined in State Farm Mut. Auto. Ins. Co. v. Nicholson, 337 So.2d 860, 862 (Fla.2d DCA 1976):

“We think the better view and the intent of the legislature in enacting the no-fault act was to exclude from coverage the normal meaning attributed to the word ‘motorcycle,’ given the applicable law and modern definitions. That definition is normally associated with a two-wheel tandem vehicle which the operator straddles without benefit of any enclosure and which must be balanced in operation to maintain equilibrium. The legislature, because of these features, undoubtedly sought to exclude these types of vehicles since the propensity for accidental injury during operation is so much higher.”

It appears that the majority decision here is influenced by two features which I consider irrelevant: the facts that this minibike was not being operated on the public highways when the accident occurred and that, not being intended for such operation, it was unlicensed. Those distinguishing features would apply as well to any motorcycle operated and intended to be operated exclusively on trails through private property. I believe the legislature intended that all such motorcycle riders should be separately classified for purposes of the Automobile Reparations Reform Act, . assuming of course that the motor exceeds IV2 brake horsepower.

I would therefore reverse the judgment of the circuit court.


author: PER CURIAM. McCORD, Chief Judge,

text:
    George H. HARRISON and James M. Harrison, a partnership, d/b/a Big Bend Truck Plaza, Petitioners, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Respondent.
    No. DD-290.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1977.
    Rehearing Denied Sept. 19, 1977.
    Fred W. Baggett of LaFace & Baggett, Tallahassee, for petitioners.
    Alan E. Deserio, Tallahassee, for respondent.
   PER CURIAM.

Petitioners, feeling aggrieved by final agency action, filed this Petition for Review, claiming that respondent’s order was not supported by competent, substantial evidence and that respondent, in promulgating the challenged order, relied upon an invalid rule. The subject matter of the dispute is an outdoor sign which respondent has found is within 660 feet of the nearest edge of the right-of-way of Interstate 10, in violation of Section 479.11, Florida Statutes (1975).

Petitioner relies upon Section 479.16(1), Florida Statutes (1975) which excepts those signs from the above-noted provision of Section 479.11 which were “constructed by the owner or lessee of a place of business or residence on land belonging to said owner or lessee and not more than one hundred feet from such place of business or residence . . . ” The central question raised by the petition for review is whether petitioners’ sign is located on his “place of business”, a term not defined by either statute or agency rule.

Petitioners are partners in certain business operations under the auspices of a franchise agreement with Mid-Continent, Inc. Part of the project, a truck stop known as Big Bend Truck Plaza, is completed and open for business, while other parts of the business venture, including a motel and camp site, are in various stages of development. All of the improvements are taking place on one contiguous piece of property located in the vicinity of Lloyd, Florida. The sign in question, 12 feet in height, merely reads “Mid-Continent” and is located at the top of a 70 foot metal pole. The sign is not within 100 feet of any part of the completed truck stop, but is within 100 feet of certain of the land which has been cleared for other parts of the total project. Petitioners showed at the hearing that a contract had been signed for the installation of a sewage treatment plant at the site, and that land had been partially cleared for construction of camp sites and a motel. The sign in question was constructed without a permit, but respondent indicated upon consideration of petitioners’ application that no such permit would be forthcoming.

The central thrust of petitioners’ argument is that both respondent and the hearing officer misconstrued the term “place of business” as it is used in Section 479.16(1). One of respondent’s officials, in referring to what he euphemistically described as an “on-premises sign”, stated that generally speaking, such a sign had to be located some 100 feet from a structure wherein the applicant’s cash register could be found. The hearing officer appeared to agree with respondent’s position, remarking at several points during the hearing that the present structure (i. e. the truck stop) was the place of business and that plans for future construction were not germane to the issue of what constituted a place of business. Finally, a memorandum prepared by respondent’s general counsel was introduced into evidence at the hearing and indicated that “place of business” would mean the building where the principal activity of the business is demonstratively carried on.

It is our function to determine which of the competing definitions of the term “place of business” is proper, the respondent having failed to define the term either in its final order or by agency rule. We conclude that respondent’s definition is, under the facts of this case, unduly restrictive.

The evidence is clear that petitioners are developing their land to include a multi-fac-eted enterprise. Although respondent implied that various parts of the project existed only in the imagination of petitioners, the uncontroverted testimony presented at the hearing demonstrated that the truck stop was in operation, a contract for the construction of a sewage treatment center had been signed, petitioners had signed a franchise agreement with Mid-Continent, Inc. for the building of a motel, and the clearing of land had commenced with a view toward the completion of a campground area. In short, respondent’s conclusion that petitioners’ sign was not located within 100 feet of their place of business is not supported by competent substantial evidence. There is no provision in the statute nor elsewhere that the location of the cash register or telephone be construed as the exclusive place of business.

Because of our resolution of the ease as above recited, we find it unnecessary to consider the other points raised by petitioners.

Accordingly, the Petition for Review is granted, the final order of respondent is quashed and respondent is directed to issue the permit requested by petitioners.

IT IS SO ORDERED.

RAWLS and BOYER, JJ., concur.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

The sign in question is not within 100 feet of any existing building of petitioners’ and is not even within 100 feet of petitioners’ waste water treatment facilities. It is on vacant land which the record shows that petitioners planned future development. It is uncertain whether this future development will become a reality. In my view it cannot be said at this time that the sign is within 100 feet of petitioners’ place of business. I, therefore, dissent.


author: DOWNEY, Judge.

text:
    Adelle L. MILTON, Appellant, v. Irvin W. LANDERS and Amica Mutual Insurance Company, etc., Appellees.

    No. 76-1072.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.
    Rehearing Denied Nov. 21, 1977.
    Malcolm Anderson, North Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellees.

        Editor’s Note: The opinion of the District Court of Appeal of Florida, Fourth District in Clayton v. City of Cape Canaveral, published in the advance sheets at this citation (349 So.2d 722), was withdrawn from the volume at the request of the court.

   DOWNEY, Judge.

On October 1,1975, appellant filed a complaint against appellees for damages arising out of an automobile accident which occurred in Lake Worth, Florida, on October 3, 1970. After appellant filed an amended complaint, appellees filed an answer which included an affirmative defense of the statute of limitations. Appellees then filed a motion for summary judgment, without filing any proof in support of the motion. Appellant filed opposing affidavits containing, for the most part, incompetent statements. The trial judge granted summary judgment for appellees and appellant perfected this appeal.

We are unable to find adequate support in the record to demonstrate that there is no genuine issue of material fact involved in this case. Specifically, the record does not adequately show whether or not the defendant-appellee Landers was a resident of Florida. Landers’s residential status is crucial to the outcome of appellees’ motion for summary judgment, for if at the time of the accident Landers was not a resident of Florida, or he became a nonresident after the accident, or he has been concealing his whereabouts since the accident, then he would have been subject to substituted service of process under Section 48.171, Florida Statutes (1969); and the statutory period for appellant’s filing of a complaint may well have expired. On the other hand, if Landers was a resident of Florida throughout the period between the date of the accident and the filing of the original complaint, and he has not been concealing his whereabouts, the periods of his absence from the state would have tolled the running of the statute of limitations and the statutory period may well not have expired. Section 95.07, Florida Statutes (1969). Since Landers’s residential status was in doubt, appellees, as the movants for summary judgment, failed to adequately demonstrate the nonexistence of all genuine issues of material fact.

Appellees contend that the filing of a complaint tolls the running of statutes of limitation, and since appellant could have filed suit at any time during the four year period in accordance with Section 95.11(4), Florida Statutes (1969), appellant’s failure to file a complaint within four years of the accident bars appellant from maintaining her action. We disagree. While Dibble v. Jensen, 129 So.2d 162 (Fla. 3d DCA 1961), seems to support appellees’ position, we cannot, for the reasons set forth in Friday v. Newman, 183 So.2d 25 (Fla. 2d DCA 1966), accept that position. As the Friday court pointed out, a defendant’s absence from the state of Florida tolls the applicable statute of limitations only if the defendant is not amenable to the service of process. In the present case, appellees did not demonstrate that Landers was not amenable to the service of process during the interval between the accident and the filing of appellant’s original complaint. As indicated above, this failure required denial of appellees’ motion for summary judgment.

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED and REMANDED.

CROSS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Edward Lee DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-1856.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    , Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon consideration of the record and briefs of the respective parties, we determine the trial court erred in failing to recite in the order of contempt facts constituting the contempt upon which appellant was found and adjudicated guilty. Fla.R. Crim.P. 3.830. We find no merit to appellant’s remaining contention. Accordingly, the order of contempt is vacated and set aside and the cause remanded for entry of a proper order of contempt consistent with the views herein expressed.

Order vacated and set aside and remanded with direction.

ALDERMAN, C. J., and CROSS and DOWNEY, JJ., concur.


text:
    Manning SMITH, Individually and as parent and natural guardian of Stephen A. Smith, a minor, Appellant, v. James REEVES, Allstate Insurance Company, and the National Cash Register Company, a Foreign Corporation, Appellees.
    No. 76-1922.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.
    Rehearing Denied Sept. 27, 1977.

      Richard D. Heller and Mark R. Boyd of Gerald M. Walsh & Associates, Fort Laud-erdale, for appellant.
    Samuel Tyler Hill of Hinckley & Shores, Fort Lauderdale, for appellees.
   ALDERMAN, Chief Judge.

Plaintiffs appeal a final order dismissing counts three and four of their amended complaint against the defendant, National Cash Register Company.

A brief history of this lawsuit will aid in understanding its present status. A minor was injured when the motorcycle on which he was a passenger collided with an automobile. The boy and his father sued James Reeves, the driver of the automobile, and also National Cash Register Company, Mr. Reeves’ employer. Counts one and two are against both defendants and allege that Reeves was negligent and that National was vicariously liable as his employer and co-owner of the automobile. Counts three and four, on the other hand, are against National alone and allege causes of action that are distinct from the first two counts. The trial court initially dismissed counts three and four; on appeal we reversed, holding that while these counts assert a somewhat novel theory of liability they do state causes of action. Smith v. Reeves, 320 So.2d 432 (Fla. 4th DCA 1975).

While the first appeal was in progress, National obtained a summary final judgment in its favor as to counts one and two. The plaintiffs did not appeal the summary judgment. While their first appeal was still pending, the plaintiffs proceeded to trial against Reeves and obtained judgment against him on counts one and two. After our reinstatement of counts three and four, National again moved to dismiss these counts, this time on the grounds that the plaintiffs were estopped by their failure to appeal the summary judgment and that any cause of action arising out of this accident is now res judicata as to National. The trial court granted the motion, again dismissing counts three and four, thereby precipitating this second appeal.

We reverse. In the first appeal we determined that counts three and four were distinct from the rest of the complaint. We now hold that neither the summary judgment in favor of National on the first two counts, nor the trial on these counts, which determined Reeves’ liability, settled the other distinct causes of action alleged against National. Accordingly, the order dismissing counts three and four is reversed with directions to reinstate these counts.

REVERSED with directions.

DOWNEY and ANSTEAD, JJ., concur.


author: MOUNTS, MARVIN U.,

text:
    Samuel Paul DEUTSCH, Appellant, v. Elaine Simpson DEUTSCH, Appellee.
    No. 76-1973.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.

      William Berger of the Law Offices of Guy B. Bailey, Jr., Miami, for appellant.
    No appearance for appellee.
   MOUNTS, MARVIN U.,

Associate Judge.

The appellant, former husband of the petitioner, appeals an order committing him for contempt for the failure to pay his former wife an alimony arrearage.

The trial court announced during the hearing, almost in the same breath that it found him in contempt, that the court would also have to reduce his alimony payments on a temporary basis:

“THE COURT: I will give him 30 days to make the $2,400 back alimony payments. And in the event he does not do so, he will serve a term of 30 days in jail.
MR. PATTERSON: I will draw up the order.
THE COURT: As to the reduction, I am going to have to take into consideration the testimony, which is not refuted, that he can’t make payments at this time because of his problems; and I will have to reduce his alimony on a temporary basis.”

The trial court made no finding, now clearly required by the law, that the appellant presently had the ability to comply with the order and was willfully refusing to do so or that the petitioner previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.

Accordingly, the order of the trial court is quashed and the cause remanded with directions to make the required finding, if supported by the record, or otherwise vacate the order of contempt. Garó v. Garo, 347 So.2d 418 (Fla. 1977), Faircloth v. Fair-cloth, 339 So.2d 650 (Fla. 1976).

QUASHED and REMANDED with directions.

ALDERMAN, C. J., and LETTS, J., concur.


text:
    Tony Jerome HELMS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2068.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.

      Stanley S. Zinner and Raymond M. Windsor of Fenster & Windsor, Plantation, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The defendant appeals his conviction and sentence on three counts of possession of over five grams of marijuana with intent to sell and one count of accessory after the fact of grand larceny. The defendant received concurrent five year sentences on each of the possession charges, plus an additional two year consecutive sentence on the accessory charge. A number of issues are raised, but only one has merit: the evidence is not sufficient to sustain defendant’s conviction as an accessory after the fact.

The defendant was charged with violation of Section 777.03, Florida Statutes (1975), which provides:

Whoever, not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that he had committed a felony or been accessory thereto before the fact, with intent that he shall avoid or escape detection, arrest, trial or punishment, shall be deemed an accessory after the fact .

The facts are not in dispute. A quantity of marijuana, seized by law enforcement officers and being held as evidence, was stolen from the Martin County Jail. The thieves contacted the defendant; a deal was made and the defendant purchased the stolen marijuana.

The State proved that the defendant had no family relationship to the thieves and that he had assisted them by helping to dispose of the marijuana. It was also established that the defendant knew that the marijuana was stolen. However, there was no proof that the defendant intended to aid the thieves to “avoid or escape detection, arrest, trial or punishment”. This is an essential element which must be proved before there can be a conviction under Section 777.03.

The other points raised have been considered and found to be without merit. The defendant’s convictions for possession of marijuana are affirmed. His conviction as an accessory after the fact under Section 777.03 is reversed.

AFFIRMED in part, REVERSED in part.

DOWNEY and ANSTEAD, JJ., concur.


text:
    In the Interest of F. G., a child.
    No. 76-2507.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellant State of Fla.
    Louis R. Bowen, Jr., Public Defender, and Lydia S. Castle, Asst. Public Defender, Orlando, for appellee F. G.
   PER CURIAM.

The only issue presented here is whether Section 944.40 of the Florida Statutes includes escapes from a juvenile detention center. Section 944.40 provides:

Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

In addition Section 416.06 of the Florida Statutes provides that “a detention home shall not be deemed to be, nor treated as a penal institution, but a home.” Based on the clear and unambiguous language of the statutes involved, the trial court dismissed a petition which attempted to allege a crime for escape from a juvenile home under Section 944.40. That order of dismissal is hereby affirmed.

ALDERMAN, C. J., and DOWNEY and ANSTEAD, JJ., concur.


author: ALDERMAN, Judge.

text:
    CINCINNATI INSURANCE COMPANY and Robert Zielke, as Personal Representative of the Estate of Judith Louise Zielke, Deceased, Appellants, v. Paul J. SCHNEIDER, Jr., as Personal Representative of the Estate of Irma R. Schneider, Deceased, Appellee.
    No. 77-419.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.

      Nancy Little Hoffmann of Druck, Grim-mett, Norman, Weaver & Scherer, Fort Lauderdale, for appellants.
    Carey M. Fischer of Ferrero, Middle-brooks & Houston, Fort Lauderdale, for appellee.
   ALDERMAN, Judge.

This is an interlocutory appeal by the defendants in a wrongful death action, seeking review of a partial summary judgment in favor of the plaintiff on the issue of liability. The defendants raised the affirmative defenses of contributory negligence and assumption of the risk, which, since Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), and Blackburn v. Dorta, 348 So.2d 287 (Fla., opinion filed May 5, 1977), no longer completely bar recovery, but may prevent a plaintiff from recovering that proportion of his damages for which he is responsible. In entering the partial summary judgment, the trial court left only the amount of damages for the determination of the jury. We reverse.

Factually it appears that Mrs. Schneider and Mrs. Zielke were killed in an automobile accident while riding together. Mrs. Schneider was the passenger and Mrs. Zielke was the driver. Mrs. Schneider’s husband owned the car; he instituted the suit for wrongful death against Mrs. Zielke’s estate. The two women had attended a luncheon fashion show at a restaurant and had remained there until late afternoon. There is evidence that both ladies drank alcoholic beverages while they were at the restaurant. The parking attendant felt that Mrs. Schneider was in no condition to drive and refused to turn her car over to her. She asked Mrs. Zielke to drive for her, which Mrs. Zielke did. The car left the road near the foot of a bridge, plunged into water, and both women died.

The law does not favor summary judgments in negligence cases, particularly where defenses of contributory negligence or assumption of the risk are involved, and any doubt should be resolved in favor of a jury trial. Bess v. 17545 Collins Avenue, Inc., 98 So.2d 490 (Fla.1957). It is for a jury to determine not only “what happened” in a particular case, but also to choose among the different inferences which may be drawn from the same set of facts, and to decide whether the precise circumstances fit certain legal definitions, which in turn give rise to certain legal consequences. Reasonable men might differ as to the inferences which may be drawn from the facts now before us, and they might disagree as to whether those facts and inferences fit the legal definitions of assumption of the risk and contributory negligence. Accordingly, we reverse the order granting partial summary judgment on the issue of liability and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DOWNEY and DAUKSCH, JJ., concur.


text:
    Dale STRAUB, Petitioner, v. Harry F. JONES, M.D., Broward Medical Center, et al., Respondents.
    No. 77-497.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.
    Edward A. Perse of Horton, Perse & Ginsberg, and Brumer, Moss, Cohen & Rodgers, Miami, for petitioner.
    Mark Hicks of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for respondent Harry F. Jones, M.D.
   PER CURIAM.

The Petition for Writ of Certiorari is granted and the order of February 19, 1977 and the corrected order of March 15, 1977 are quashed upon authority of Perkins v. Pare, -So.2d- (Fla. 4th DCA Opinion filed August 12, 1977).

ALDERMAN, C. J., and CROSS and DOWNEY, JJ., concur.


text:
    Resa A. ROLLE, Appellant, v. Ivan George ROLLE, Appellee.
    No. 77-1467.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.
    James A. Week of Week & Stone, P.A., Pompano Beach, for appellant.
    Nicholas J. Ziegler, Deerfield Beach, for appellee.
   PER CURIAM.

ON MOTION TO DISMISS

The appellee having confessed error by virtue- of her motion to dismiss, the order appealed from dated June 13,1977 is hereby reversed and this cause is remanded to the trial court for further proceedings.

The appellant’s motion for attorneys’ fees and the motion to tax costs are granted and the determination- of attorneys’ fees and costs shall be determined by the trial court upon proper motion and hearing.

GRANTED.

ALDERMAN, C. J., and DOWNEY and ANSTEAD, JJ., concur.


text:
    Roger Lee ELLISON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1195.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1977.
    Rehearing Denied Sept. 23, 1977.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Roger Lee Ellison was charged by information with assault with intent to commit murder and with shooting into an occupied dwelling. He was tried by jury, found guilty of shooting into an occupied dwelling, convicted and sentenced to 10 years imprisonment, with one year to be served in the county jail and 9 years probation. He was acquitted of the charge of assault with intent to commit murder. As one of his points on appeal, Ellison contends that the trial court erred in permitting the prosecutor to cross-examine him about his failure to offer exculpatory statements, and to comment thereon during closing argument.

The record reflects that the prosecutor did not introduce any direct testimony to the effect that Ellison exercised his right to remain silent while in custody. In fact, the prosecutor avoided any inquiry into this area during his direct examination of the arresting officer. Rather, it was defense counsel who first opened the door to this line of questioning. The defendant testified in his own behalf, and during his direct examination, defense counsel asked:

Q: All right, now, when you called the police, did you indicate that your shotgun had gone off at that time?
A: No, I didn’t. I didn’t.
Q: And could you tell us why you didn’t?
A: Well, first of all, I didn’t really see any reason why I should tell them then. Mainly, I think I was concerned with talking to the officer and making the report like on the telephone. I figured later if they asked me, I would have told them later about the details about what had happened.

The defendant then testified concerning his cooperation with the police, stating that he called the police and voluntarily showed his weapons to the officer.

Then, on cross-examination, the prosecutor continued the line of inquiry opened by defense counsel, by asking whether the defendant said anything to the officer about the shotgun discharging accidentally, and during closing argument he commented upon the defendant’s failure to mention this fact to the police. In our opinion, the prosecutor’s questions were not improper in light of the fact that it was defense counsel who first opened the door to the line of questioning.

Florida courts follow the “invited error” rule, which stands for the proposition that an appellant may not take advantage of an error which he has induced. Arsenault v. Thomas, 104 So.2d 120 (Fla.3d DCA 1958); City of Coral Gables v. Levlson, 220 So.2d 430 (Fla.3d DCA 1969); Sullivan v. State, 303 So.2d 632 (Fla.1974); Castle v. State, 305 So.2d 794 (Fla.4th DCA 1974).

Constitutional rights may be waived just as other rights may be waived; a criminal defendant may, by his conduct, make otherwise constitutionally inadmissible evidence admissible for certain purposes. Harris v. New York, 401 U.S. 222,91 S.Ct. 643, 28 L.Ed.2d 1 (1971). In the instant case, it was the defendant who chose to testify concerning the fact that he did not tell the police that his gun accidentally discharged. He chose to tell the jury exactly what he did and did not say to the police. Having opened the door to this line of questioning by his own direct testimony, Ellison cannot now be heard to complain that the State marched through the door so opened. See Miller v. State, 343 So.2d 1292 (Fla.3d DCA 1977).

The other point raised on appeal is without merit.

Affirmed.


text:
    Michael A. PELLE and Linda Pelle, his wife, Appellant, v. Morris GLANTZ, Appellee. Morris GLANTZ and Rebecca Glantz, Appellants, v. COMPUTER STUDIES, INC., a New York Corporation, et al., Appellees.
    Nos. 76-1505 and 76-1690.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1977.

      Burnett Roth, Miami Beach, for Glantz.
    Ginsberg & Goldman, North Miami Beach, for Pelle.
    Hal W. Spaet, Miami, for Computer Studies, Inc.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

In interlocutory appeal # 76-1505, Michael A. Pelle and Linda Pelle, who were defendants in the trial court, appeal from an interlocutory order denying their petition to set aside a partial judgment of foreclosure. Subsequent to the entry of the partial judgment, a final judgment was entered which found the mortgage sought to be foreclosed to be invalid and foreclosure of the mortgage was denied. Therefore, the interlocutory appeal became moot and is, by this judgment dismissed.

In appeal # 76-1690, Morris Glantz and Rebecca Glantz, who had cross-claimed for the foreclosure of their mortgage, appeal from the final judgment which found as follows:

“14. The Defendants MICHAEL A. PELLE and LINDA PELLE acknowledged execution of the mortgage but deny sums owing.
“15. The Court recognizes that a debt secured by a mortgage is the primary obligation between the parties, the mortgage being incidental to the indebtedness on the obligation, thus, the lien of a mortgage is no greater than the actual debt secured and is a nullity if the secured obligation fails.
“16. The Court recognizes the fact that lenders of money are less under the pressure of circumstances controlling the perfect and free exercise of judgment than the borrowers, and that an effort is frequently made by the lenders to avail themselves of the advantage of this superiority, in order to obtain an equitable advantage.
“17. The mortgage is not valid and binding unless founded on a bona fide and sufficient consideration.
“18. That pursuant to the final judgment entered December 12, 1975, the Defendant, MICHAEL A. PELLE filed an affidavit in opposition to the amount of money due and owing under said mortgage on November 20, 1970 and affirmatively stated that the $20,000.00 principle amount on the face of the mortgage and note was not received.
“19. That the Court recognizes that this is a mortgage under seal and the Defendants, MICHAEL A. PELLE and LINDA PELLE have the burden of proving by the preponderance of the evidence that good and valid consideration was not given for the execution of the mortgage and note.
“20. Having heard testimony of the mortgagor and the testimony of the mortgagee and witnesses, there is a complete discrepancy as to the consideration given for the execution of this note and mortgage, the amount paid back and validity of the debt owed to MORRIS and REBECCA GLANTZ from MICHAEL A. PELLE and LINDA PELLE.
“21. The Court finds that the note and mortgage were executed by the Defendants PELLE to satisfy an unknown obligation to MORRIS GLANTZ in an amount of money in excess of that which was loaned to Mr. Pelle from Mr. Glantz and for which interest payments were made and not properly credited to the reduction of the principle prior to and subsequent to the execution of the note and mortgage.
“22. That based upon the scheme entered into by the Defendant PELLE and the mortgagor GLANTZ, the Court finds that the equities in this matter would prohibit the enforcing of said mortgage. (Chaykin vs. Kant [Fla.App.], 327 So.2d 793.)”

Thereupon, the court declined to enforce the Glantz mortgage.

On this appeal, appellants’ contention is that the trial judge erred in finding the mortgage unenforceable because the mortgagor failed to sustain by a “preponderance of the evidence” that the mortgage was without consideration or had been paid. It is also urged that the judgment of the trial court was based on an erroneous conception of the law.

We have examined the record in the light of appellants’ contentions and find that there is substantial evidence to support the findings of the trial judge, and ample law to support her actions in refusing to enforce a mortgage which she found upon competent evidence to have been brought to the court with unclean hands. See Wasman v. Rubinson, 341 So.2d 802 (Fla.3d DCA 1977); and VAC Development Corp. v. Castillo, 346 So.2d 116 (Fla.3d DCA 1977). See also the discussion in Dale v. Jennings, 90 Fla. 234, 107 So. 175, 180 (1926).

Affirmed.