author: BOOKOUT, Judge.

text:
    Richard A. SLINKER v. STATE.
    8 Div. 882.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.

      Earl E. Cloud, for Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: fifteen years imprisonment. This appeal arises from a gun fight which occurred in Huntsville in the early morning hours of September 24, 1975. On that occasion, the appellant shot two men, James Moss, Sr., and Steve Kirkland. Moss was killed and Kirkland was wounded. The appellant was convicted of second degree murder for killing Moss. This Court’s opinion (by Harris, J.) affirming the murder conviction sets out in great detail the facts surrounding the shooting. See: Slinker v. State, Ala.Cr.App., 342 So.2d 44 (1977). We, therefore, pretermit another discussion of the evidence as presented in the instant trial of the appellant for shooting Kirkland, as the facts are the same in both cases.

I

The appellant contends that the trial court erred in failing to require the District Attorney to produce any information in his possession pertaining to any jur- or whose name appeared in the venire for the trial of the ease. We find no authority for such a contention. There is, however, ample authority for the proposition that, subject to a few narrow exceptions, a prosecutor’s work product is not subject to discovery by a defendant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976). “There is no general constitutional right to discovery in a criminal case . . . .” Weatherford v. Bursley (February 22, 1977) - U.S. -, 97 S.Ct. 837, 51 L.Ed.2d 30.

II

The appellant argues that the attorneys for the State twice made prejudicial statements in their closing argument. The colloquy surrounding the first statement is as follows:

“MR. LOFTIN: If I said at any time that a pistol was in Mr. Steve Kirkland’s pocket, then I made a mistake, because going through the trial twice there has never been but two pistols—
“MR. CLOUD: Now, we object to that, if the Court please as not being a correct statement and we object to that.
“THE COURT: Well, I sustain.
“MR. CLOUD: And we move for a mistrial.
“THE COURT: Denied.
“MR. CLOUD: We except.”

Appellant assigned no specific ground for objection, only that such was “not a correct statement.” The trial court, nevertheless, sustained the objection. Appellant then moved for a mistrial without assigning any ground at all. The trial court will not be put in error for overruling objections or motions where no specific or proper legal grounds are stated. Generally, specific objections are necessary before the ruling of the trial judge is subject to review. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973). That is, unless the ground is so obvious that the trial court’s failure to act constitutes prejudicial error. Stennett v. State, Ala.Cr.App., 340 So.2d 60, reversed and remanded, Ala., 340 So.2d 65 on remandment, Ala.Cr.App., 340 So.2d 67, cert. denied, Ala., 340 So.2d 68 (1976).

We distinguish the circumstances of the instant case from those in Stennett. In that case, there was a clear reference to another crime and another indictment. In the instant case, the reference to two trials was ambiguous and its prejudicial effect was not such that mandate a mistrial. In our opinion, if any error resulted, it would fall within Rule 45, Alabama Rules of Appellate Procedure, as being harmless error. It should likewise be noted that in Stennett, supra, there was a motion for a mistrial setting out specific and detailed grounds, unlike the instant ease.

Ill

The second colloquy containing alleged improper remarks by the prosecutor is as follows:

“MR. SIMPSON: That file right there is public record about this murder and this shooting and he can get it any time he wants to and to come up here and try to—
“MR. CLOUD: If the Court please, we object to that. He has argued that is his work product and has argued it several times.
“THE COURT: Well, I overrule.
“MR. CLOUD: We except.”

The appellant now contends that the State’s attorney deliberately injected a reference to the prior murder trial into the case. However, a reading of the above colloquy reveals that this was not appellant’s objection at trial. Specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not assigned. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). We find no error on the part of the trial judge in overruling the appellant’s specific objection. The appellant had been attempting to obtain materials from the District Attorney relative to his case, discussed supra, however the District Attorney had argued that such was his work product and not subject to discovery. It appears to us that appellant’s instant objection is to the effect that the prosecution had refused him access to their files, but now contends that the files are public record and were open to him at any time. That is the only interpretation that we can place upon the objection due to its ambiguity and lack of specificity. The trial court ruled upon the objection as made during the course of the trial, and the appellant cannot now change the ground for his objection on appeal.

IV

Judge S. A. Watson, Jr., who tried the present case, is the same judge who tried the appellant for the murder of Moss. The appellant apparently after his conviction for second degree murder, requested that Judge Watson recuse himself from the present case. The request was made on March 11, 1976. A hearing was held at which' the appellant then requested that Judge Watson not recuse himself. Apparently during this period of time, an article appeared in a Huntsville newspaper which alleged that appellant was involved in a conspiracy to kill not only the trial judge, but also several of the State’s witnesses to the gun fight. The appellant, on May 3, 1976, requested Judge Watson by letter not to recuse himself despite the publicity. Then, on May 26, 1976, the appellant requested Judge Watson again to recuse himself because of his failure to answer the appellant’s letter of May 3, 1976.

The Canons of Judicial Ethics, adopted by the Alabama Supreme Court effective February 1, 1976, in pertinent part are as follows:

“CANON 3
“A JUDGE SHOULD PERFORM THE DUTIES OF HIS OFFICE IMPARTIALLY AND DILIGENTLY
* * * * * *
“C. DISQUALIFICATION.
“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
“(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.” (Emphasis added.)

The motion to recuse must be addressed to the judge challenged, and his decision will not be reviewed on appeal in the absence of clear evidence of bias. Ex parte White, 53 Ala.App. 377, 300 So.2d 420 (1974) cert. denied 293 Ala. 778, 300 So.2d 439; Ex parte Thompson, 23 Ala.App. 46, 121 So. 429 (1929).

The appellant must present evidence to prove the personal bias of a judge, or else his motion cannot prevail. Johnson v. State, Ala.Cr.App., 335 So.2d 663, at 675 (1976). The failure of a judge to answer a letter sent by a defendant is, of course, no ground whatsoever for recusal. A judge should “ . . . neither initiate nor consider ex parte communications concerning a pending or impending proceeding.” Canon 3, A(5), Alabama Canons of Judicial Ethics.

V

The record on appeal contains the appellant’s letter of May 3, 1976, to Judge Watson. The appellant contends for the first time on appeal that the court committed reversible error in submitting the letter to the jury.

The record does not reflect that the letter was ever introduced into evidence during the trial on the merits or that it was ever submitted to the jury. From aught that appears in the record, the letter was included in the record as an exhibit in the hearing on the motion to recuse, which took place prior to the trial on the merits of the case. Absent an objection to the introduction or submission of the letter and a ruling thereon by the trial court, we have nothing to review. Review on appeal is limited to matters on which rulings are invoked in the trial court. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974).

VI

During the voir dire examination of the jury venire, the appellant’s counsel attempted to ask the following question:

“Do each of you understand the witnesses for the Defendant are not permitted to be called at the request of the Defendant to testify before the Grand Jury?”
On objection by the State, the court then stated:
“If you will clarify your question Mr. Cloud, I may allow it. At this point I will sustain the objection.”

Whereupon, counsel for appellant excepted, but then restated the question as follows:

“Do each of you understand that only the witnesses called by the State of Alabama testify in the Grand Jury?”

The State’s objection to that question was then overruled by the trial court, however, for reasons not apparent in the record, defense counsel excepted to that ruling which was favorable to his client.

We certainly find no prejudicial error in the ruling by the trial court in this regard. It may be that counsel for appellant mistakenly thought that the trial court had ruled in favor of the State, however, the record clearly shows the ruling to be in favor of the appellant.

On further voir dire, counsel for appellant asked the following question:

“Do you understand and accept that several people may inform you by their testimony that a particular event occurred in this case, however, unless those individuals can persuade you by the weight of the evidence that those events occurred in the manner and method in which the prosecution has stated they occurred, then you must acquit the defendant?”

The State objected on the ground that such was not a correct statement of the law, and the trial court sustained the objection.

It appears that counsel for appellant was attempting to instruct the jury on the law at this point of the trial which is clearly the prerogative of the trial judge in giving his oral charge to the jury and written requested charges. We will not put the trial court in error for sustaining such an objection. The scope of voir dire examination is within the sound discretion of the trial court. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied 293 Ala. 746, 309 So.2d 850 (1974); Title 30, § 52, Code of Alabama 1940.

During voir dire examination by the prosecution, the following occurred:

“MR. LOFTIN: All right. Have any of you ever been a witness against the State of Alabama or a witness for a Defendant, in other words, in a criminal case.
“MR. CLOUD: If the Court please, we object to that form of the question-witness against the State of Alabama.’
“THE COURT: As it was rephrased I will overrule the objection.”

Almost the identical question was asked and objection made in the prior trial for the murder of Moss. This Court found no error in the ruling of the trial judge in that instance, and neither do we in this instance. See: Slinker, supra.

VII

The appellant requested the following written jury charge which the trial court refused to give:

“The Court charges the jury that the jury may look to the fact, if it be a fact, that Steve Kirkland used abusive or insulting language to Richard Slinker at or near the time of the difficulty and such language may be taken in mitigation or justification of the offense as the jury may determine.”

The above was fully, adequately, and substantially covered in the trial court’s oral charge which was in pertinent part as follows:

“ . . .On the trial of any person for an assault or an assault and battery he may give in evidence any opprobrious words or abusive language used by the person assaulted or beaten at or near the time of the assault and such evidence shall be good in extenuation or justification as the jury may determine. As I said, that has only to do with assault or assault and battery. That is Title 14, Section 37, Code of Alabama 1940, Recompiled 1958.”

Therefore, the trial court did not err in refusing the above requested charge. Title 7, § 273, Code of Alabama 1940.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SIMMONS, Retired Circuit Judge.

license: Public Domain

text:
    Wendell Lee LOVELL v. STATE.
    8 Div. 892.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.

      Finis Royal, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant, an indigent with temporary residence in the penitentiary, filed a pro se instrument in the circuit court which he and his appointed counsel, on inquiry by the court, asserted to the court that it was a petition for a writ of habeas corpus and asked that it be so treated. The court acted according to the request and treated it as a habeas corpus proceeding. We, of course, follow the court’s ruling.

It appears from the record that defendant was convicted on three different indictments: (a) forgery of a deed; (b) false pretense; and (c) another charge of false pretense. He entered pleas of guilty.

Defendant’s petition was denied by the court and this appeal follows the judgment.

Comes the State by motion and moves this court to strike the court reporter’s transcript of the evidence because it does not contain a certificate or statement by the judge who heard the petition that the transcript of the evidence is correct.

The State also moves this court to dismiss the appeal and-as grounds therefor asserts the same grounds as stated to strike the transcript of evidence.

Both motions have merit.

Section 369, Title 15, Code of Alabama, 1940, as amended, (d) contains a mandatory provision that the transcript of the evidence shall be certified to be correct by the judge or the officer hearing the petition. No such certificate was appended.

Failure to comply with this mandatory provision, supra, requires that the motions of the State be granted and that the transcript of the evidence be stricken and the appeal dismissed. It is so ordered. Robertson v. State, 263 Ala. 309, 82 So.2d 403; Prestidge v. State, 46 Ala.App. 627, 247 So.2d 383.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

MOTIONS GRANTED; RECORD STRICKEN; APPEAL DISMISSED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Earl Jr. WHITE v. STATE.
    4 Div. 360.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
   BOWEN, Judge.

The appellant was indicted and convicted for burglary in the second degree. The trial court entered judgment and sentenced the appellant to five years in the penitentiary. Youthful offender treatment was denied and the appellant is represented by the same court appointed counsel at trial and on appeal.

The state has filed a motion to strike the transcript of the testimony because it was not filed within the time required by law. This court remanded the cause with directions to the trial court to determine whether the appellant was at fault in causing the untimely delay in filing the transcript. Upon remand, the record reveals a stipulation between the state and counsel for the defense that the fault in the delay in filing the transcript was not with the appellant, but that it lies with the court reporter. The record reflects that the court reporter was employed by the Department of Court Management and was sent to Houston County to relieve the regular official court reporter of the 20th Judicial Circuit of Houston County. The record also reflects that the reason for the late filing of the transcript was the fact that the court reporter was constantly being sent to other circuits around the State of Alabama by the Department of Court Management and that after this case was tried, the court reporter suffered an extended illness. The trial court, on remand, found neither the court reporter nor the appellant to be at fault. For this reason, we therefore overrule the motion of the state to strike the transcript of the testimony in this case. Ex parte State (In re Pope v. State) Ala., 345 So.2d 1385. (1976, opinion extended September 10, 1976).

On the appeal of the merits of this case, the appellant asserts two issues: (1) The insufficiency of the evidence, and (2) the introduction of hearsay testimony.

Although a motion to exclude the state’s evidence has placed the sufficiency of that evidence in issue, a detailed summary of the testimony and facts is not necessary. The evidence produced by the state tended to show that the appellant was seen either in the driveway of the home that was burglarized or at the house next door at the time the crime was being committed; that the appellant was sitting in the car of an admitted accomplice and that one of the accomplices put a radio into the back seat of this car; that the appellant drove away from the scene of the crime after the two accomplices had gotten in the car; and that a stereo speaker which was taken in the burglary was found in the appellant’s own car after he was arrested. This made out a strong case of circumstantial evidence despite the fact that the appellant was never actually seen at the home that was burglarized.

The defense was alibi. The appellant’s two accomplices, who had already pled guilty to the crime for which the appellant was charged, testified that the appellant knew nothing about the burglary and had absolutely nothing to do with it. One of the accomplices testified that the appellant saw him carry the stereo from the back of the burglarized house and place it in the back seat of his automobile. The appellant then drove the accomplice’s automobile to a pawn shop and pawned the radio. Both accomplices testified that the appellant did not know that the radio was stolen. They did not tell him so because they wanted all the money for themselves.

The legal principles involved are simple. Tanner v. State, 291 Ala. 70, 277 So.2d 885 (1973). A conviction may be had on evidence which is entirely circumstantial, so long as that evidence is so strong and cogent as to show defendant’s guilt to a moral certainty. Hollenquest v. State, 290 Ala. 146, 274 So.2d 613 (1973); James v. State, 22 Ala.App. 183, 113 So. 648 (1927). If circumstantial evidence fairly permits an inference consistent with innocence, it will not support a conviction. Carr v. State, 28 Ala.App. 466, 187 So. 252 (1939); Byrd v. State, 37 Ala.App. 121, 73 So.2d 376, cert. denied, 261 Ala. 697, 73 So.2d 378 (1954).

We think the circumstantial evidence presented in the state’s case alone was sufficient to support the conviction. The facts and circumstances recited above would allow the jury to find the appellant guilty beyond a moral certainty.

The second allegation of error concerns the admission of hearsay testimony by the state. The relevant testimony is set forth in its entirety.

On direct examination of Sergeant Larry Linn of the Dothan Police Department, the District Attorney asked the following questions:

“Q. Did you interview any witnesses out there?
“A. I talked to Bobby Rousseauw.
“Q. All right. Anyone else?
“A. Yes, sir. Georgia and Johnny Krafts and Jeanette Hall.”

On cross examination of Sergeant Linn the following transpired:

“Q. Did you get a statement from him. You said that you got a statement from two or three other people the day that you investigated this. Did one of those statements come from Winston Knox and a boy named McNeely (the two accomplices of the appellant)?
“A. Yes, sir.
“Q. Did either of those two statements implicate in any way Earl Jr. White as participating in the burglary ?
“A. No, sir.”
* * * * * *
“Q. Fifteen or twenty minutes. And when you went over to talk to Mr. Shell-house (the victim), did you talk with anybody other than these three parties that you named there in the neighborhood— that is Knox, McNeely and Jeanette Hall?
“A. Yes, sir, I talked to the people that I just told you about.
“Q. That’s Bobby Rosseauw and Georgia and Johnny Krafts?
“A. Yes, sir.
“Q. And no other people lived there in the neighborhood?
“A. Yes, sir.
“Q. Who?
“A. Well, I don’t recall the names. Just people that I saw on the street, and I asked them if they had seen anything.
“Q. Did any of them implicate Earl Jr. White ?
“A. Any of who ?
“Q. These other people or neighbors that you haven’t called their names?
“A. No, sir, I didn’t take their names unless they were witness to some part of it.
REDIRECT EXAMINATION
“Q. (BY MR. SORRELLS:) You talked to Jeanette Hall?
“A. Yes, sir.
“Q. And what did she say?
“MR. BYRD: Now, I object, your Hon- or.
“MR. SORRELLS: He opened it up your Honor.
“THE COURT: Just a minute, gentlemen. Wait a minute.
“MR. BYRD: Your Honor—
“THE COURT: Wait just a minute.
“A. Jeanette Hall had just gotten out of the hospital and was not available.
“MR. SORRELLS: Your Honor, he opened it up.
“THE COURT: You did open it up.
“MR. SORRELLS: And I think that we are entitled to rebut any hearsay.
“THE COURT: I am going to allow it since the defense went into it.
“Q. Did Jeanette Hall say anything to implicate him ?
“A. Yes, sir.”

The state did not adduce any further testimony on this point.

Here, the testimony elicited by defense counsel on cross examination that neither the statements of Knox or McNeely implicated the appellant was hearsay and inadmissible. Brinks v. State, 44 Ala.App. 601, 217 So.2d 813, cert. denied, 283 Ala. 712, 217 So.2d 820 (1968); Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967).

On direct examination Sergeant Linn testified that he had interviewed several people at the scene of the burglary. Where defense counsel, on cross examination brought out the fact that some of those interviewed did not implicate the appellant, the state, on redirect examination, was properly permitted to show that one of those interviewed did implicate the appellant in the charged crime. This is but common fairness and an application of the rule permitting the admission of evidence by reason of the admission of similar evidence of the adverse party. Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927); Ivey v. State, 37 Ala.App. 105, 63 So.2d 729 (1953); Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976); 6 Alabama Digest, Criminal Law, &wkey;396.

Having reviewed the entire transcript as required by Title 15, § 389, Code of Alabama 1940, and finding no error prejudicial to the rights of the appellant, we are of the opinion that this cause is due to be and is hereby

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    In re CERTIFICATE OF JUDICIAL MANPOWER as REQUIRED BY SECTION 9, ARTICLE V, CONSTITUTION OF FLORIDA, as REVISED MARCH 14, 1972, FOR CIRCUIT AND COUNTY COURTS.
    No. 51368A.
    Supreme Court of Florida.
    April 4, 1977.
   PER CURIAM.

The actual judicial functions of the Circuit and County Courts differ from those of the District Courts of Appeal making the requirements for the respective courts different, and we are therefore certifying separately to the Legislature the needs of the trial courts.

Since the adoption of Article V in 1972 considerable statistical information has been collected but because of the disparity in procedure for tabulating cases in the individual circuits for statistical purposes, it is difficult to relate one circuit to another.

To ensure accurate and credible statistical information, this Court, with the assistance of the chief judges, court clerks, prosecutors, and public defenders, established a uniform means and method to report court cases in accordance with an administrative order entered by the Chief Justice on January 13, 1977. Once uniform statistical information is available, this Court will be able to adopt a rule establishing uniform criteria for the determination of need for additional judges. Because that information is not currently available, we must certify from the statistical data now available as verified through the administrative staff of the office of the State Courts Administrator, together with information concerning needs of the respective circuits as presented by the chief judges.

From the present information available to the Court, it appears there is no significant increase in the trial court case load in 1976 in comparison with 1975, although it must be recognized there was a substantial increase at the trial court level for the four-year period from 1972 through 1975. Added to the case load burden but not reflected in the 1976 statistics is the impact of final consolidation of municipal courts into the state court system, effective January 1, 1977.

Most of the trial courts’ needs were met by the 1976 certification. There is, however, an immediate need for three county court judges and two circuit court judges.

COUNTY COURTS

In 1976 we certified a need for 26 county judges, predicated on the need for consolidating the remaining municipal courts into the state court system. Our certification was substantially less than the 62 deemed necessary by the Select House Committee for municipal courts. The 1976 Legislature approved all county court positions with the exception of three county court judge positions for Broward County. Broward County presently has 10 county judges. This is clearly inadequate for a county with a population of 959,500 and 29 municipalities. Broward County presently has only one county judge per 95,950 population, which exceeds by approximately 30,000 the judges per capita in all other counties. We deem it imperative that the three county judges we certified in 1976 be provided for Broward County so that the courts in Broward County may properly carry out their judicial responsibilities.

CIRCUIT COURTS

In our opinion, we can only presently justify a statistical need for additional circuit judges in the First Circuit [Escambia, Okaloosa, Santa Rosa, and Walton Counties], and the Thirteenth Circuit [Hillsbor-ough County]. Each of these circuits has in excess of 1400 filings per judge for the year 1976.

We recognize that there are presently substantial delays of civil trials in the Fifteenth Circuit, Palm Beach County, and the Seventeenth Circuit, Broward County. However, we have been unable to justify statistically additional judges for these circuits either by case load per judge or judge per capita.

Further, it must be clearly understood that this certification does not take into account any increased judicial work load which might result from either additional responsibilities in malpractice actions, the abolishment of plea bargaining, or Chief Justice Burger’s request to Congress to return the diversity jurisdiction now in the federal court system to the state courts.

CERTIFICATION

We therefore, in accordance with Section 9, Article V, Constitution of Florida, as revised March 14, 1972, hereby certify the need for three additional county court judges in Broward County, one additional circuit judge in the First Circuit, and one additional circuit judge in the Thirteenth Circuit, for a total of five additional trial court judicial positions.

This Court certifies the aforementioned judicial officers as necessary and recommends that they be made permanent by law and funded by this State.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


text:
    In re CERTIFICATE OF JUDICIAL MANPOWER as REQUIRED BY SECTION 9, ARTICLE V, CONSTITUTION OF FLORIDA, as REVISED MARCH 14, 1972, FOR DISTRICT COURTS OF APPEAL.
    No. 51368B.
    Supreme Court of Florida.
    April 4, 1977.
   PER CURIAM.

The actual judicial functions of the District Courts of Appeal differ from those of the Circuit and County Courts making the requirements for the respective courts different, and we are therefore certifying separately to the Legislature the needs of the appellate courts from the trial courts.

We have determined, as we did last year at this time, that there is an absolute and immediate need for three additional District Court of Appeal judge positions, one each for the First, Second, and Third District Courts of Appeal.

In 1965 when the Fourth District Court of Appeal was added to our appellate court structure, the total District Court case load was twenty-seven hundred cases. The case load since that time has more than tripled. In the short period from 1972 to 1976 there has been a one hundred percent increase in case load. To cope with this “law explosion,” the Judicial Council and a Special Appellate Court Review Committee recommended in 1975 that each of the District Courts of Appeal be increased by two judges so that each District Court would have a total complement of seven judges.

This Court in 1975 certified a need for two additional judges for the First, Second, and Fourth District Courts of Appeal. It delayed for one year a certification for two additional judges for the Third District both because new court facilities were under construction and experienced retired appellate judges were available for service during that period. No additional District Court judge positions were created by the 1975 Legislature.

In 1976 we certified the need for eight additional District Court of Appeal judges, consisting of the six certified in 1975 and two for the Third District Court of Appeal. The Legislature created five of those positions but failed to provide a seventh judge for the First, Second, or Third District Courts of Appeal. Based on all available data, the need in 1977 is greater than it was in 1976.

In addition to providing these three additional judges, we believe it is imperative that the additional staff requested by the respective District Courts in their appropriations request be provided. Merely increasing the number of judges does not in and of itself take care of the increased case load. Our courts have appreciably less staff than similar courts in other jurisdictions and proportionately less than executive and legislative positions of similar authority.

We therefore, in accordance with Section 9, Article V, Constitution of Florida, as revised March 14, 1972, hereby certify the immediate need for three additional District Court of Appeal judges as set forth herein. A graph of statistical case load information for each District Court is attached. This Court certifies the aforementioned judicial officers as necessary and recommends that they and the necessary staff to operate these courts be made permanent by law and funded by this State.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


text:
    James McCASKILL, Jr., Appellant, v. STATE of Florida, Appellee. Otis T. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 45009, 45010.
    Supreme Court of Florida.
    April 7, 1977.

      Emmett A. Moran, Altamonte Springs, for appellants.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This is a direct appeal from appellants’ convictions of felony murder in the first degree. Death sentences were imposed by the trial court following jury advisory sentence recommendations of life imprisonment. We have jurisdiction.

The facts are as follows. The appellants, McCaskill and Williams, were charged with attempted robbery, robbery, and first degree murder, all charges resulting from robbery of a liquor store and its patrons occurring on August 29,1973. The trial testimony established that three men entered the liquor store and lounge armed with various weapons. The appellant-McCaskill was identified as having a semi-automatic pistol, appellant-Williams a handgun, and the third unnamed accomplice a shotgun. The cash registers in the premises were emptied and the patrons were required to put their valuables on the bar and stand facing against the wall. One patron named Hardy recognized the appellant, Williams, from prior time they had spent together in the county jail. He initially was threatened, and then the three offenders left the premises. Moments latter appellant-Williams returned and shot Hardy twice in the neck with a handgun at close range. Hardy recovered and identified the appellants at trial. After the shooting, appellant-Williams left the store, followed shortly by two other patrons, Cooper and Ellison. They ran toward the car where Williams had joined the two other robbers, Ellison carrying a chair. A shotgun blast from inside the car killed Ellison. There is no evidence as to who fired the fatal shot. Possession of the shotgun during the robbery was established in the third unnamed accomplice, not the appellants, McCaskill and Williams. Each appellant was tried by a jury and found guilty of attempted robbery, robbery, and the first degree murder of Ellison.

The jury in its advisory sentence to the trial judge recommended a life sentence for each appellant, voting 11 to 1 for McCaskill aifd 7 to 5 for Williams. The trial judge overruled the jury’s recommendation and imposed the death penalty for both, expressing great regard for two elements. First, the appellants knowingly created a great risk of death to 35 to 40 people in the liquor store and lounge. Second, the killing was wanton and unnecessary, occurring after the commission of a robbery, with no need to shoot the man chasing them armed only with a chair. The trial judge noted the difference in the jury votes recommending life imprisonment, concluding the reason for favoring McCaskill was “there was no testimony showing that Mr. McCaskill did any shooting whatever.” The trial judge concluded “the act of one was the act of all” and imposed the death sentence upon both appellants.

Appellants contend: (1) the death penalty statute is unconstitutional; (2) the trial court committed fundamental error by failing to instruct the jury on lesser included offenses of attempt, and by rereading certain portions of the instructions; (3) the trial court erred by failing to grant a change of venue; and (4) the trial court erred by failing to provide written instructions to the jury.

The contention that the imposition of the death penalty is unconstitutional has been rejected both by this Court, State v. Dixon, 283 So.2d 1 (Fla.1973), and by the United States Supreme Court, Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

The second contention that the trial judge failed to instruct the jury properly is without merit. Considering the instructions as a whole, there was no fundamental error and the jury was properly advised of the applicable law. We note that there were no objections to the instructions either at the instruction conference or after they were presented to the jury. See Florida Rule of Criminal Procedure 3.390(d); Williams v. State, 285 So.2d 13 (Fla.1973).

Appellant’s third point attacks the trial court’s failure to grant a change of venue. Trial counsel for the appellants filed a pretrial motion for change of venue, but neither asked for it to be heard nor raised the issue during voir dire or at any time thereafter until this appeal. Appellants accepted the jury panel in this cause after using eight of twenty peremptory challenges. We adopt the test stated in Kelley v. State, 212 So.2d 27, 28 (Fla. 2d DCA 1968):

“Knowledge of the incident because of its notoriety is not, in and of itself, grounds for a change of venue. The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the ease solely upon the evidence presented in the courtroom. Singer v. State, (Fla.1959) 109 So.2d 7; Collins v. State, (Fla.App.1967) 197 So.2d 574 and cases cited therein.”

The United States Supreme Court affirmed this principle in Murphy v. State of Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), holding that jury exposure to news accounts of the crime with which a defendant is charged does not presumptively deprive the defendant of due process. Further, it held the defendant must show inherent prejudice in the trial setting or facts which permit an inference of actual prejudice from the jury selection process in order to merit a change of venue. No such prejudice appears in this record.

Appellants’ final point concerns the failure of the trial judge to provide written instructions to the jury in violation of Rule of Criminal Procedure 3.390(b). Appellants’ trial counsel neither requested the charges be reduced to writing nor objected to the failure of the trial judge to do so. The failure of the trial judge to comply with Rule of Criminal Procedure 3.390(b) under the circumstances of this cause was not prejudicial error. See Matire v. State, 232 So.2d 209 (Fla. 4th DCA 1970); Coggins v. State, 101 So.2d 400 (Fla. 3d DCA 1958).

In accordance with our approval of the death penalty statute in State v. Dixon, supra, our final responsibility in this cause is to “review [the] case in light of the other decisions and determine whether or not the punishment is too great.” State v. Dixon, supra, at 10. We there rejected the argument that our capital felony statute was unconstitutional because it allowed the discretionary imposition of death penalties. We said in Dixon:

“Discretion and judgment are essential to the judicial process .
“Thus, if the judicial discretion possible and necessary under Fla.Stat. § 921.141, F.S.A., can be shown to be reasonable and controlled, rather than capricious and discriminatory, the test of Furman v. Georgia, supra, [408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)] has been met. ...” 283 So.2d at 6, 7.

In explaining how this reasonable and controlled discretion should be applied in the sentencing process, we said:

“It must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present. Review by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great. Thus, the discretion charged in Furman v. Georgia, supra, can be controlled and channeled until the sentencing process becomes a matter of reasoned judgment rather than an exercise in discretion at all.” 283 So.2d at 10.

In Alvord v. State, 322 So.2d 533, 540 (Fla.1975), we said:

“It is our responsibility to review the sentence in the light of the facts presented in the evidence as well as other decisions, and determine whether or not the punishment is too great. .
* * * * * *
“The statute contemplates that the trial jury, the trial judge and this Court will exercise reasoned judgment as to what factual situations require the imposition of death and which factual situations can be satisfied by life imprisonment in light of the totality of the circumstances present in the evidence. . .

In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the United States Supreme Court upheld our death penalty statute and stressed the importance of this Court’s role, stating:

“The Florida capital-sentencing procedures thus seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner. Moreover, to the extent that any risk to the contrary exists, it is minimized by Florida’s appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida ‘to determine independently whether the imposition of the ultimate penalty is warranted.’ Songer v. State, 322 So.2d 481, 484 (Fla.1975). See also Sullivan v. State, 303 So.2d 632, 637 (Fla.1974). The Supreme Court of Florida, like that of Georgia, has not hesitated to vacate a death sentence when it has determined that the sentence should not have been imposed. .
“Under Florida’s capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is ‘ “no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases where it is not.”’ Gregg v. Georgia, 428 U.S. 153, p. 188, 96 S.Ct. 2909, p. 2932, 49 L.Ed.2d 859, quoting Furman v. Georgia, 408 U.S. 238, at 313, 92 S.Ct. 2726, at 2764, 33 L.Ed.2d 346 (White, J., concurring). On its face the Florida system thus satisfies the constitutional deficiencies identified in Furman.” Id. at 252, 96 S.Ct. at 2967. (Emphasis supplied)

We have reviewed other first degree felony murder convictions involving robbery. Juries, under our new death penalty statute, have been reluctant to recommend the imposition of the death penalty in all but the most aggravated cases despite general knowledge and concern of the citizenry over the substantial increase in crime. Two recent robbery-murder cases similarly involved defendants who were principals and the trigger man either was not identified or was not before the court. In each of these cases the jury recommended and the trial judge imposed life sentences. In Slater v. State, 316 So.2d 539 (Fla.1975), this Court found it necessary to reduce the death sentence of an accomplice because the jury recommended life imprisonment and the trigger man, who was identified, had received a life sentence in a negotiated plea. We have, however, imposed the death penalty in the remotely similar case of Sawyer v. State, 313 So.2d 680 (Fla.1975). Its aggravating circumstances, however, are distinguishable from those here.

The imposition of life sentences in similar cases is not absolutely controlling. Were they to be ignored, however, our death penalty statute, Section 921.141, Florida Statutes, could not be upheld under the requirements of Proffitt v. Florida, supra, and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

We also cannot ignore the recommendation of the jury. This Court, in reviewing the propriety of the death sentence, must weigh heavily the advisory opinion of the sentencing jury. Lamadline v. State, 303 So.2d 17 (Fla.1974). Juries are the conscience of our communities. In the recent decision of Tedder v. State, 322 So.2d 908 (Fla.1975), we held that to sustain a sentence of death following a jury recommendation of life, the facts justifying a sentence of death must be clear and convincing. These recent decisions and the facts and circumstances of recent cases were unavailable to the trial judge at the time he made his difficult sentencing decision.

On the facts and circumstances of the instant cases, considered with the action of the jury in these cases and the action by other juries and judges in similar cases, we find the sentence of death inappropriate for either of the appellants.

The appellants’ convictions are affirmed. The death sentences imposed on the defendants for first degree murder are reduced to life imprisonment.

It is so ordered.

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

ADKINS and ROBERTS (Retired), JJ., concur but dissent from reduction of sentence.

SUNDBERG, J., concurs on McCaskill but dissents on Williams’ reduction of sentence.

      . Article V, Section 3(b)(1), Florida Constitution.

      . Trowell v. State, 300 So.2d 342 (Fla. 4th DCA 1974); Lee v. State, 316 So.2d 87 (Fla. 4th DCA 1975).


text:
    THE FLORIDA BAR, Complainant, v. William Huger TURNER, III, Respondent.
    No. 50708.
    Supreme Court of Florida.
    April 7, 1977.

      Melvin C. Alldredge, Bar Counsel, Miami, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    William Huger Turner, III, in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against William Huger. Turner, III, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

Having considered the pleadings and evidence, the referee found as follows:

“1. The allegations of Count I have been established by the evidence and exhibits taken before me.
“2. Respondent is and was a member of The Florida Bar.
“3. The Respondent was charged with a violation of Title 26, United States Code, Section 7203, which constitutes a misdemeanor and constitutes a crime of failing to file an Income Tax Return.
“4. The Respondent pled guilty and was adjudged guilty for failing to file an Income Tax Return for the calendar year 1970 and was sentenced and served six (6) months imprisonment to be followed by two years of probation, which terminated September 8, 1976. (Transcript pages 18-20, 31-33, 37). (Answer to Request for Admissions 2D, 2E).
“5. By reason of the foregoing, the Respondent has violated Rule 11.02(3)(a) and (b) of the Integration Rule of The Florida Bar and DR 1-102(A)(4) of the Code of Professional Responsibility.
“6. The allegations of Count II have been established by the evidence and exhibits taken before me.
“7. Respondent pled guilty and was adjudged guilty of violating Title 26, United States Code, Section 7203 by failing to file an Employer’s Income Tax Return for the period April 1, 1971 to June 30, 1971, which constitutes a misdemeanor and a crime. Respondent was sentenced to six (6) months imprisonment which was followed by two years of probation, which expired September 8, 1976 and which ran concurrently with his sentence referred to in Count I. (Transcript pages supra and Answer To Request for Admissions 2H, 2I and 2L).
“8. By reason of the foregoing, the Respondent has violated Rule 11.02(3)(a) and (b) of the Integration Rule of The Florida Bar and DR 1-102(A)(4) of the Code of Professional Responsibility.”

The referee recommends that respondent be found guilty of violation of Rule 11.-02(3)(a) and (b) of the Integration Rule of The Florida Bar and DR 1-102(A)(4) of the Code of Professional Responsibility and recommends that respondent receive a public reprimand.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, William Huger Turner, III, is hereby publicly reprimanded, and the publication of this order and judgment shall constitute a public reprimand.

Execution is hereby directed to issue against respondent for costs in the amount of $338.50.

It is so ordered.

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


author: KARL, Justice.

text:
    Joseph P. PENZA, Petitioner, v. Theodore NECKLES, etc., Respondent.
    No. 50875.
    Supreme Court of Florida.
    April 7, 1977.
    Steve E. Moody of Moody & Jones, Fort Lauderdale, for petitioner.
    Michael J. Padula of Allsworth, Doumar, Schuler, Padula & Laystrom, Fort Lauder-dale, for respondent.
   KARL, Justice.

We have for review, on petition for cer-tiorari granted, a question of great public interest certified to us by the District Court of Appeal, Fourth District, which ruled upon the question in the decision of Penza v. Neckles et al., reported at 340 So.2d 1210. Jurisdiction vests pursuant to Article V, Section 3(b)(3), Florida Constitution.

In a suit brought by petitioner Joseph P. Penza against respondents Theodore Neck-les and Daniel Resnick to recover money loaned, expenses incurred and compensation for services, final judgment was entered against Neckles and Resnick, jointly and severally, for $29,392.42. After the entry of the final judgment, the petitioner executed and delivered a document to Resnick wherein, for the sum of $2,500, he released Resnick from any obligation on the judgment. The post final judgment instrument is a standard general release form which was modified to provide specifically that the other obligor, respondent Neckles, was not released in any manner. On motion to vacate final judgment, and following an evidentiary hearing, the trial court ruled that the document operated to discharge Neckles, as well as Resnick, from liability to petitioner on the final judgment.

Appeal was taken, and the District Court of Appeal, Fourth District, confronted with the question as to whether the trial court’s conclusion that the subject instrument satisfied, released and/or discharged Neckles from final judgment of December 31, 1974, was proper, concurred that the release Penza gave Resniek discharged Neckles from liability because, under the law in Florida, the common law rule still prevails and a release of one joint and several obligor releases all others. The District Court considered treating the release in question as a covenant not to sue but rejected this approach because such course of action was condemned by this court in Louisville & N. R. Co. v. Allen, 67 Fla. 257, 65 So. 8 (1914). The District Court certified the following question as one of great public interest:

“Does the written release of one joint and several obligor release all other joint and several obligors on the same obligation when the release expressly states that is not the intention of the obligee to release any other joint and several obli-gor and when the release expressly reserves the right in the obligee to sue any and all other joint and several obligors?”

We find that the District Court correctly answered the certified question in the affirmative. The post judgment general release given by petitioner to Resnick also discharged Neckles from the obligation since the common law which still prevails in Florida is to the effect that a release of one joint and several obligor releases all others. Moreover, the District Court was correct in refusing to treat the post judgment release as a covenant not to sue.

Section 768.041, Florida Statutes, which provides that a release or covenant not to sue as to one tortfeasor shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death, extends only to the full limits of causes of action in tort. Cf. Sun First National Bank of Melbourne v. Batchelor, 321 So.2d 73 (Fla.1975). However, this is the outer limit of application of this statute. It does not extend in any way to releases involving joint and several obli-gors.

Furthermore, we find that Continental Can Co., Inc. v. Lee Co., Inc., 40 So.2d 783 (Fla.1949), does not constitute precedent for receding from the common law. Therein, this court was confronted with the question of whether, when a husband and wife sign a written guaranty of account for purchases to be made by a third party corporation on open account, the resulting debt is a debt of the husband, for which the wife’s separate property cannot be taken, except by an instrument in writing as required by Section 1, Article XI, Florida Constitution (1885). This court answered the question in the negative and determined that the contract of guaranty was executed long after the Married Woman’s Emancipation Act took effect and that this act enabled the wife to execute the contract of guaranty by which she became liable for the debt of the corporation and not that of her husband. The excerpt therefrom, cited to us by petitioner for the proposition that release of one joint and several obligor does not release all, was merely obiter dicta and not in any way necessary to the disposition of that cause.

Accordingly, having determined that the District Court properly answered the certified question in the affirmative, the writ heretofore issued is hereby discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and HATCHETT, JJ., concur.


text:
    SAFECO INSURANCE COMPANY OF AMERICA, a corporation, and John H. Fowler, Appellants, v. Martha T. HAWKINS, Individually, and as next friend and parent of Joe Frank Hawkins, III, a minor, Appellee.
    No. 76-528.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1976.
    A. Douglas Grace, Jr. and E. G. Couse, of Grace, Falbey & Couse, Fort Myers, for appellants.
    John B. Cechman of Goldberg, Rubinstein & Buckley, Fort Myers, for appellee.
   PER CURIAM.

Affirmed.

BOARDMAN, Acting C. J., and GRIMES and SCHEB, JJ., concur.


author: WEAVER, SIDNEY M., Associate Judge.

text:
    GENERAL ELECTRIC CREDIT CORPORATION, Appellant, v. The FIDELITY & CASUALTY COMPANY OF NEW YORK et al., Appellees.
    No. 76-1136.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Frederick D. Goosen and Reginald M. Hayden, Jr., Miami, for appellant.
    Richard F. Ralph, Miami, for appellee Fidelity & Cas. Co. of New York.
   WEAVER, SIDNEY M., Associate Judge.

Appellant filed this timely appeal from an order denying attorney’s fees.

This action was commenced by Spiral Enterprises, Inc. as the insured under a marine hull policy of insurance for the theft and loss of a yacht. Appellant, the “loss payee” under the said policy, thereafter entered the case as a party plaintiff and final judgment was entered in favor of the plaintiffs. Attorney’s fees and costs were awarded to Spiral but denied as to the appellant.

Appellant seeks the comfort of Section 627.428(1), Florida Statutes (1975), in his quest for attorney’s fees. The said Statute provides as follows:

“Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.”

A careful reading of the Statute indicates that the appellant does not come within the provisions thereof. A “loss payee” is not an insured or a beneficiary under our construction of the Statute but rather a designated payee-derivative from rights asserted by the named insured, Spiral Enterprises, Inc.

AFFIRMED.

MAGER, C. J., and DAUKSCH, J., concur.


text:
    Philip R. CONSOLO et al., Appellants, v. A.M.K. CORPORATION, Appellee.
    No. 76-182.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Rehearing Denied May 11, 1977.
    Sibley, Giblin, Levenson & Ward, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Harold L. Ward, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Appellants, plaintiffs below, appeal a partial summary judgment entered in favor of appellee, defendant below, on appellants’ count for breach of contract. The other count, based upon fraud and deceit, remains pending in the trial court.

The facts of this case are both complex and lengthy, as evidenced by a record of over two thousand pages, of which approximately fifteen hundred pages are discovery depositions. In its simplest form, the facts reveal that in 1958, an antitrust suit was instituted by the United States of America against United Fruit Company, now, after merger, appellee. A consent decree was entered requiring appellee to divest itself of a portion of its banana-producing properties located in Central and South America, in order to eliminate the monopolistic trend it had over the banana market. Under the terms of said decree, there were certain conditions outlined that had to be complied with, and appellee was given a period of ten years to comply therewith.

Thereafter, negotiations were entered into between appellee and appellants for the sale of certain banana properties owned by appellee. The detailed negotiations for the multi-million dollar sale included offers, counter-offers and various conditions precedent. The final sale, however, never developed and suit was filed by appellants for both fraud and deceit and breach of contract. The trial judge, apparently of the opinion that a final contract between the parties never materialized, granted partial summary judgment for appellee on the breach of contract count. This appeal follows.

After carefully reviewing the record on appeal, we note the existence of genuine issues of material fact left unresolved by the proceedings below, precluding the entrance of summary judgment. National Car Rental System, Inc. v. Sonesta International Hotels Corp., 313 So.2d 108 (Fla. 3d DCA 1975); Bowling v. Stark, 268 So.2d 201 (Fla. 1st DCA 1972).

The paramount question requiring resolution is whether or not a contract existed between the parties — a question of intent. Another question remaining, closely associated with the above, is whether the various conditions precedent attached to the negotiations were to be fulfilled as a prerequisite to the existence of the contract, itself, or were only to be fulfilled as a prerequisite to the performance of the contract.

The above questions are only a few of the issues left unresolved and are by no means exhaustive of the matters put into controversy by the parties.

Accordingly, in that there remained genuine issues of material fact, the trial judge erred in granting partial summary judgment and the order appealed is therefore reversed and the cause remanded.

Reversed and remanded for further proceedings not inconsistent herewith.


author: RAWLS, Acting Chief Judge.

text:
    Ernest BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AA-138.
    District Court of Appeal of Florida, First District.
    April 6, 1977.

      Donald G. Nichols, Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

On June 30,1975, Brown was charged by a two-count information with breaking and entering and grand larceny. This information was amended on September 8,1975, by adding a third count charging Brown with receiving or concealing stolen property. Arraignment of Brown on the added count was held at approximately 9:30 a. m. on September 15, 1975, the day of trial, at which time Brown’s counsel sought additional time because “this case has been prepared on the basis of two counts in the first information and this information has just come into our hands.” In answer to the state’s argument of no prejudice, the court observed, “Isn’t this an additional five years if convicted?”, to which the state answered, “Yes, it is.” Nonetheless, the trial court announced that a jury would be picked at 11:00 a. m. During the ensuing hour and a half prior to empaneling a jury, Brown consulted with counsel, telephoned some friends, and again consulted with counsel. At this point in time, Brown’s trial counsel advised him that she had talked with the trial judge who advised her that Brown could be tried on all three counts, and if he was convicted the trial judge would impose the maximum sentence of 20 years as opposed to five years for receiving or concealing stolen property. It was upon the foregoing predicate that Brown’s counsel advised him “if he wanted to go to trial we would go to trial and this decision would have to be his.” Brown appeared with his counsel before the trial court and changed his plea of not guilty to guilty of receiving or concealing stolen property. Subsequently Brown moved to withdraw his plea of guilty prior to sentencing, which motion was denied by the trial court; hence this appeal.

A full review of the proceedings in this cause discloses a general pattern on the trial court’s part to pressure the defendant to enter a plea of guilty. Defense counsel did not receive a copy of the amended information until one and a half hours prior to jury selection, which information introduced new issues requiring counsel to hurriedly evaluate same. It is well settled that elements of receiving or concealing stolen property are entirely different than those which must be proved in a proceeding charging grand larceny or breaking and entering. Defense counsel having one and a half hours to evaluate the propriety of the state to amend its information and putting her client on trial upon the inconsistent counts of breaking and entering with intent to commit a felony, to-wit: grand larceny; and receiving or concealing stolen property, which counts arose out of the identical transaction, together with the announced decision of the trial judge that if convicted defendant would be sentenced to a term of 20 years (an impermissible sentence) present a case where it is, in the least, evident that the ends of justice will best be served by permitting a plea of guilty to be withdrawn upon timely motion of defendant prior to sentencing. Lopez v. State, 227 So.2d 694 (Fla. 3rd DCA 1969); Keesee v. State, 204 So.2d 925 (Fla. 4th DCA 1967), and Dixon v. State, 287 So.2d 698 (Fla. 1st DCA 1973). We conclude that the trial court abused its discretion in refusing to allow defendant to withdraw his guilty plea.

The judgment of conviction is reversed and the cause remanded for further proceedings consistent with the holding expressed herein.

McCORD, J., and McDONALD, PARKER LEE, Associate Judge, concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Glen E. SMITH, as trustee, Appellant, v. The TOWN OF BITHLO, Florida, a Municipal Corporation organized and existing under the laws of the State of Florida, et al., Appellees.
    No. 76-808.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Rehearing Denied May 17, 1977.
    Byrd V. Duke, Jr., North Miami, for appellant.
    Johnie A. McLeod, Apopka, for appellees.
   PER CURIAM.

This matter was previously before the court in Smith v. Bithlo, 314 So.2d 212 (Fla. 4th DCA 1975). The case was then remanded for a new trial. After retrial, a final judgment was entered in favor of the individual defendants and the action was abated as to the Town of Bithlo. This appeal followed.

As stated in our first opinion, the facts in this case are so unique and complicated as to be without precedential value. We therefore omit their recital.

The trial court found that the Town of Bithlo owed the entire amount of plaintiff’s judgment and had a legal duty to plaintiff to levy and collect the necessary taxes to pay the judgment. However, the trial court further held that the individual defendants had proven the affirmative defense of laches.

The law is clear that lapse of time alone is insufficient to support a finding of laches. The test in determining whether laches exists is whether the delay has resulted in injury, embarrassment, or disadvantage to any person, and particularly to the person against whom the relief is sought. Furthermore, laches is an affirmative defense. As such, the burden of proving it is on those who assert it, and it must be proved by very clear and positive evidence. Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956); Bethea v. Langford, 45 So.2d 496 (Fla.1949).

Although the lapse of time between the original judgment and the filing of the present suit is sufficient for laches, the defendants have failed to prove by clear and positive evidence that the delay resulted in injury, embarrassment, or disadvantage to them. The evidence is insufficient to support the trial court’s conclusion that the doctrine of laches applies.

Alternatively, the trial court held, that even if laches had not been proven, relief could not be granted to the plaintiff because there were no qualified persons in the Town of Bithlo who were willing to perform any governmental function whatever connected with the municipality. Apparently for this reason the action against the Town of Bithlo was abated. At oral argument, plaintiff’s counsel informed us that there are now persons willing to serve. Upon remand the trial court may determine the qualifications of these persons and make the necessary appointments.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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

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

ANSTEAD, Judge,

concurring in part and dissenting in part:

The only issue raised in regard to the individual appellees, B. C. Dodd, H. F. Dietrich, and Florence Dietrich, his wife, was the effect of a previous judgment of ouster excluding their lands from the town of Bithlo. The trial court properly recognized that the ouster did not affect the rights of the appellant in accordance with this court’s previous decision in this case. There being no other issues tried between these parties, I would reverse any provisions of the final judgment deciding any other issues, including the issue with reference to laches.

The trial court abated any action against the town of Bithlo on the grounds that there were no persons available to serve as town officials who in turn could be compelled to levy taxes to raise the funds to pay off the appellant’s judgment against the town. It is apparent that the town of Bithlo is an inactive municipality as contemplated by Section 165.052, Florida Statutes (1975). Section 165.052(3) provides for a method of levying taxes to pay the debts of inactive municipalities. However, before such taxes can be levied the Secretary of State must declare the town to be an inactive municipality; and certain notices must be published. I would reverse the judgment of the trial court with directions that the action be abated against the town of Bithlo until such time as the appellant can make a proper showing that he is entitled to relief under Section 165.052.


author: PER CURIAM. PEARSON, Judge

text:
    FOREMOST INSURANCE COMPANY, a Michigan Corporation, Appellant, v. PEOPLES TRUST OF NEW JERSEY, a New Jersey Corporation, Appellee.
    No. 76-425.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.
    Rehearing Denied May 11, 1977.

      James V. Dolan & Associates, Ft. Lauder-dale, for appellant.
    Hoffman & Jaski, Miami, for appellee.
    Before HENDRY, .C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

This appeal questions the correctness of a summary final judgment rendered in favor of appellee in an action for breach of an aircraft insurance contract.

The sole question presented in this appeal is whether the trial court erred in granting appellee’s motion for summary judgment and ruling as a matter of law that appellant insurance company’s notice of cancellation was ineffectual to cancel the insured risk.

From our examination of the record on appeal, we are convinced that it conclusively establishes the absence of any genuine triable issue of material fact and that appellee was entitled to judgment as a matter of law. Therefore the judgment appealed is affirmed. Graves v. Iowa Mutual Insurance Company, 132 So.2d 393 (Fla.1961).

Affirmed.

PEARSON, Judge

(dissenting).

I agree that the language of Graves v. Iowa Mutual Insurance Company, 132 So.2d 393 (Fla.1961), appears to be controlling, however, the factual situation there, in one important respect, is different from the present case.

In Graves, the insured was depending upon continued coverage and, therefore, the notice of cancellation was necessary in order to enable the insured the opportunity to obtain insurance elsewhere before being subjected to risk without protection. In the present case, however, such necessity did not arise. The loss that occurred was well in excess of thirty days after the notice that the insurance would be terminated, and the termination itself was due entirely to the insured’s own delinquency in premiums. Therefore, we are presented here with a case distinguishable from the Graves case, where the insured did nothing to contribute to the termination of coverage.

Accordingly, I would hold that the Graves case is not controlling here.


text:
    METROPOLITAN DADE COUNTY TRANSIT AUTHORITY and Robert Hamlett, Appellants, v. Rafael ESPINOSA and Nona Espinosa, his wife, Appellees.
    No. 76-613.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.
    Rehearing Denied May 11, 1977.

      Wicker, Smith, Blomqvist, Davant, McMath & O’Hara and Richard A. Sherman, Miami, for appellants.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appellees.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Since 1964 (in Florida) a jury has had a right to find that a driver who rear-ends a vehicle is free from negligence. Stark v. Vasquez, 168 So.2d 140 (Fla.1964). This was true when our courts operated under the doctrine of contributory negligence and a plaintiff’s negligence was a complete defense. It is likewise true today, when cases are tried on issues of comparative negligence. City of St. Petersburg v. Naden, 284 So.2d 15 (Fla. 2nd D.C.A. 1973); Thompson v. Jacobs, 314 So.2d 797 (Fla. 1st D.C.A. 1975); Petroleum Carrier Corporation v. Gates, 330 So.2d 751 (Fla. 1st D.C.A. 1976).

Finding evidence in the record to support the jury’s verdict, no error has been made to appear. Vanzant v. Davies, 215 So.2d 504 (Fla. 1st D.C.A. 1968); Community Cabs, Inc. v. Grissett, 284 So.2d 707 (Fla. 1st D.C.A. 1973); Thompson v. Jacobs, supra. The final judgment is therefore affirmed.

Affirmed.


text:
    Harold C. FISHER, Appellant, v. Carole R. FISHER, Appellee.
    No. 77-327.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.
    Rehearing Denied May 11, 1977.
    Horton, Perse & Ginsberg, for appellant.
    Law Offices of Onett-Colodny, North Miami, by Joel S. Fass, for appellee.
    Before HENDRY, C. J. and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The trial court found that an oral stipulation placed in the record by the attorneys for the parties in the absence of their clients which anticipated that the parties would sign a full settlement contract could not be enforced against a client who testified that she had not authorized the settlement. The finding of fact that the client had not authorized or agreed to the settlement is supported by sufficient evidence in this record to call for an affirmance in this court. See Town of Medley v. McCahill, 164 So.2d 541 (Fla. 3d DCA 1964); and Heath v. First National Bank in Milton, 213 So.2d 883 (Fla. 1st DCA 1968).

Affirmed.


text:
    FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, v. FLORIDA CAREER SERVICE COMMISSION et al., Respondents.
    No. CC-88.
    District Court of Appeal of Florida, First District.
    April 13, 1977.
    Rehearing Denied May 18, 1977.
    James R. Brindell and William P. White, Jr., Tallahassee, for petitioner.
    Carol L. Reilly, Ben R. Patterson and Jerry G. Traynham, Tallahassee, for respondents.
   RAWLS, Acting Chief Judge.

The primary issue posed by this petition for review is directed to the Career Service Commission entertaining jurisdiction, and in so doing, determining that respondent Sherman was not a probationary employee but, to the contrary, was a career service employee at the time of his discharge. By so determining, the ultimate question that must be answered is: On what date was Sherman’s employment terminated?

On January 27, 1975, Sherman was employed by the Department of Environmental Regulation (Department) as an Environmental Specialist III in a probationary status. The Career Service Commission found that Sherman’s probationary status was transformed by operation of law into that of a career service employee on Sunday, July 27,1975. Likewise, the Career Service Commission found that on Friday, July 25, 1975, Sherman was terminated by the Department and the Department appeared to take this action in order to avoid terminating Sherman after he was vested with permanent status as a career service employee. The order further found that Sherman was on properly requested and authorized sick leave on Friday, July 25, 1975, returned to work on July 29, 1975, and did not receive notice of his termination until he returned to work. After reviewing the foregoing facts, the Commission reached the conclusion that:

“. . .3. The termination of a probationary employee does not necessarily occur at the point of time when the notice of termination is reduced to writing, especially when the employee does not receive said written notice until five days after the time the termination is scheduled to occur or become effective, with no other attempt being made to inform the employee of his termination while he is on approved sick leave. . . . ”

We disagree.

The Department vigorously contends that the Commission lacked jurisdiction to entertain Sherman’s appeal since he was a probationary employee. The Department’s position is well taken if the employee was employed in a probationary status. However, it is not the prerogative of an agency to unilaterally determine, as apparently the Department asserts, the status of an employee. To perform its statutory responsibility, the Career Service Commission must, at the outset, determine if the complainant is vested with the status of a career service employee and, if so, it has jurisdiction; if not, (i. e., probationary employee, exempt officers and employees, Sec. 110.051, Fla. Stat.) it is without jurisdiction. The question of jurisdiction has historically been one that is immediately reviewable by extraordinary writ or interlocutory review.

We revert back to the main question as to what date Sherman was discharged. The Commission gratuitously observed in the instant order reviewed: “. .A probationary period of employment exists solely to test the quality of the employee and is not for the purpose of filling a position for a short period of time.” Being without jurisdiction of probationary employees, the Commission’s arrogation of the right to express its views as to the purpose of probationary status is held to be in excess of its jurisdiction, and thus for naught. The specific finding by the Commission that: “. . .An employee achieves permanent status in the Career Service system at the end of six months of continuous satisfactory employment in the same position.”, is germane to the issue being reviewed. The Commission found that on Friday, July 25,1975 (two days short of the magic six-month period), Sherman’s employer, the Department of Environmental Regulation, terminated his employment, and the Department appeared to have taken this action “in order to avoid terminat-mg [Sherman] . . . after he was vested with permanent status as a Career Service employee.” Such findings necessarily support the Department’s assertion that Sherman did not achieve permanent status in the Career Service system and thus could be terminated without the right to appeal to the Career Service Commission. The fact that Sherman was absent from work on authorized sick leave on the date of discharge does not affect or alter the ultimate fact that on said date his employer discharged him.

Accordingly, the order of the Career Service Commission of the State of Florida is quashed.

McCORD and SMITH, JJ., concur.

      . Secs. 110.061(1) and (2)(a), Fla.Stat., provide:
      “(1) Any employee who has permanent status in the career service may only be terminated for cause by the agency or officer by whom he is employed.
      (2)(a) The department [Department of Administration] shall establish rules and procedures for the suspension, reduction in pay, transfer, layoff, demotion and dismissal of employees in the career service for cause and for the investigation and hearing of appeals by the career service commission on such actions.”
      Sec. 22A-7.03(d), Fla.Admin.Code, states:
      “A new employee who does not have permanent status in any class in the Career Service may be terminated at any time without the right to appeal such action to the Career Service Commission when serving with probationary . . . status.”
      Sec. 22A-7.10(C), Fla.Admin.Code, provides:
      “Termination During Probationary Period — An employee who is terminated in accordance with Section 22A-7.03(D) shall not have the right of appeal to the Career Service Commission.”

      . On July 25, 1975, the Department, by certified mail, sent notice of termination to Sherman which was received by him on July 30, 1975.

      . Sec. 120.68(1), Fla.Stat., provides, in part:
      “. .A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.” Cf. Fla.App. Rule 4.2.a. which provides, in part: “. . . Appeals [interlocutory] may be prosecuted in accordance with this rule from interlocutory orders relating to venue or jurisdiction . (emphasis supplied)

      . 53 Am.Jur.2d, Master and Servant § 43 at 117,118: . an employer may lawfully discharge an employee whenever and for whatever cause he chooses, without incurring liability.”
      Id., n. 9 at 118:
      “. . .No employed person has an inherent or natural right (that is, a right apart from statute, regulation, or contract) to any sort of process in respect to removal from his particular job. Cafeteria & Restaurant Workers Union v. McElroy, 109 [U.S.] AppDD [D.C.] 39, 284 F2d 173, affd 367 US 886, 6 LEd2d 1230, 81 SCt 1734 [1743], reh den 368 US 869, 7 LEd2d 70, 82 SCt 22.”


author: PEARSON, Judge.

text:
    Dallas Lee JORDAN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-781.
    District Court of Appeal of Florida, Third District.
    April 15, 1977.
    Arnold I. Levy, Miami, for appellant. Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PEARSON, Judge.

This is an appeal by defendant from a conviction for the crime of possession of cannabis in the amount of five grams or less (marijuana). The contraband was discovered in a search of the defendant’s apartment, where he resided with a female roommate. Defendant argues that his conviction should be overturned because the State failed to show that he had knowledge of the presence of the narcotics or had control over them, as evidenced by the fact that he was not in exclusive possession of the premises.

We find that the conviction must be reversed on authority of Smith v. State, 279 So.2d 27 (Fla.1973), where, in a similar fact pattern, the Florida Supreme Court held that a ruling that the required knowledge of the presence of contraband can be inferred to the husband as “head of the household” is not a good policy as it “. could well render unduly harsh results against a husband in altogether innocent circumstances.” The Supreme Court also noted that “[a] couple living together without benefit of clergy under the same situation would apparently enjoy the advantage of a different result, requiring direct evidence of knowledge; such a rule would penalize those who follow the legal requirements of marriage.” See also Silva v. State, 344 So.2d 559 (Fla.1977).

Reversed with directions to discharge the defendant.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    In the Interest of I. S. H., a child.
    No. 76-651.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Rehearing Denied May 17, 1977.
    Richard L. Jorandby, Public Defender, and George B. Barrs, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

The appellant-juvenile was adjudicated a delinquent below based upon a finding that he committed a robbery while carrying a weapon. The trial judge, over defense counsel’s objection, permitted the state on cross-examination to impeach the testimony he had offered on his own behalf by demonstrating that he had previously been adjudicated a delinquent. This was reversible error.

Pursuant to Section 90.08, Florida Statutes (1975), any witness may be impeached upon a showing of his “conviction of any crime.” Section 39.10(5), Florida Statutes (1975), however, specifically provides that:

“An adjudication by a court that a child is a . . . delinquent child shall not be deemed a conviction, nor shall the child be deemed to have been found guilty or to be a criminal by reason of that adjudication . . .”

Applying the clear terms of identical or equivalent statutes, the courts have consistently held that a witness, and particularly a defendant, may not be impeached by a showing of prior juvenile adjudications. E. g., State v. Reynolds, 41 N.J. 163, 195 A.2d 449 (1963), cert. den., 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050 (1964); People v. Peele, 12 N.Y.2d 890, 237 N.Y.S.2d 999, 188 N.E.2d 265 (1963); State v. Burr, 18 Or.App. 494, 525 P.2d 1067 (1974); 81 Am.Jur.2d, Witnesses, § 575, pp. 580-581; see Jackson v. State, 336 So.2d 633, 635 (Fla. 4th DCA 1976). We agree with these decisions. On this record, moreover, we cannot say that the error was harmless. The judgment below is therefore reversed and the cause remanded for a new trial.

REVERSED and REMANDED.

CROSS and DOWNEY, JJ., concur.

      . The state showed further that a prior adjudication was for armed robbery. Even if (as, we hold, is not the case) any impeachment based on the earlier delinquency proceeding was correct, it was plainly im proper to go further than to show the existence and the number of “convictions;” the “crime” involved in a prior “conviction” may plainly not be established. Jackson v. State, 336 So.2d 633, 635-636 (Fla. 4th DCA 1976); Irvin v. State, 324 So.2d 684 (Fla. 4th DCA 1975); Jones v. State, 305 So.2d 827 (Fla. 4th DCA 1975).


author: HENDRY, Chief Judge. NATHAN, Judge,

text:
    FLORIDA ROCK & SAND COMPANY, et al., Appellants, v. Teresa COX and Roberto Lariosa, Appellees.
    No. 76-49.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.

      Thornton, Doughtery & Conroy and John Edward Herndon, Jr., Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Chief Judge.

Plaintiffs-appellees, Cox and Lariosa, were injured in an automobile accident when the car in which Lariosa was driving and Cox was a passenger struck a median strip. Each filed separate suits against the defendant Ron-Lee, Inc., alleging that Ron-Lee, as the contractor in charge of repairing and improving the highway, negligently failed to provide warning signs, lights and other proper safety devices to inform travelers of the hazardous road construction. The lawsuits were consolidated and subsequently, Ron-Lee filed a third party complaint in indemnity against its various subcontractors, one of which was appellant, Florida Rock & Sand Company.

The third party defendant, Florida Rock & Sand Company, thereupon filed a complaint against the original plaintiffs (appel-lees), alleging that, as to each plaintiff, appellant was entitled to indemnity and/or contribution in that both Cox and/or Lario-sa were guilty of active negligence in the operation and/or control of the vehicle. The complaint was later amended to two counts, one in indemnity and the other for contribution. Both appellees moved to dismiss the complaint. Dismissal was granted and this appeal follows.

Initially, appellant contends that a cause of action in indemnity lies against both appellees. We disagree, based upon the following.

In order for appellant, as a subcontractor, to have been held liable to the contractor-defendant for indemnification, pursuant to the third party complaint, a jury would have to find appellant actively negligent and the defendant-contractor passively negligent. Stuart v. Hertz Corporation, 302 So.2d 187 (Fla.4th DCA 1974). As an actively negligent tortfeasor then, appellant could not pursue a cause of action in indemnity against appellees, see Dura Corporation v. Wallace, 297 So.2d 619 (Fla.3d DCA 1974), notwithstanding the admitted absence of either an express or implied contract between appellant and appellees. Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla.2d DCA 1969).

As for the count based upon contribution, we have a somewhat different result. Appellant contends that if the claim for contribution is not allowed to stand, then it might be shouldered with the burden of paying more than its pro-rata share of the damages. We find merit in this contention.

The pleadings reveal that certain allegations were made by the various parties claiming that appellees were joint venturers. As such the trial judge reasoned, and correctly so, that pursuant to Hoffman v. Jones, 280 So.2d 431 (FIa.1973), the doctrine of comparative negligence would obviate the necessity of a claim based upon contribution. This is so because the negligence of one joint venturer is imputed to the other in an action based upon the tor-tious conduct of the joint venturer committed while within the scope of the joint venture. Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536 (Fla.3d DCA 1974). Therefore, should appellee-Lariosa, as driver of the vehicle involved in the accident, be found to be comparatively negligent, then his negligence would be imputed to Cox and only a proportionate recovery could be had by either party against the ultimate wrongdoer, either the defendant-contractor or appellant, as the active tortfeasor.

However, the existence of a joint venture is a question to be determined by the trier of facts. Navarro v. Espino, 316 So.2d 646 (Fla.3d DCA 1975). We note that appellees have continually denied the existence of a joint venture in their pleadings. Should no joint venture be found to exist between appellees, a problem arises, left unanswered and unaided by the doctrine of comparative negligence. The following example will demonstrate the predicament.

Assume Lariosa, as the driver of the vehicle is found to be forty (40%) per cent negligent, Ron-Lee, Inc., is found to be passively negligent or not negligent at all and Florida Rock & Sand Company is held to be sixty (60%) per cent at fault. Lariosa could only recover sixty (60%) per cent of his damages from Florida Rock & Sand Company. Cox, however, as a non-negligent passenger of the vehicle (with no imputed negligence) would be entitled to proceed against appellant for the total damages, notwithstanding the fact that appellant was only liable for a percentage of the damages; i. e., comparative negligence.

Logic and reason dictate that appellant be permitted to file a claim against Lariosa, as a joint tortfeasor, pursuant to Section 768.31, Florida Statute (1975). We note that Rule 1.180, Fla.R.Civ.P. provides for the assertion of a claim by a third party defendant against a plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third party plaintiff.

Sub judice, allowing appellant to file a claim against appellee-Lariosa for contribution, would bring the alleged joint-tort-feasor before the court in that capacity and would insure a proper distribution of liability. Of course, appellant Cox, being a mere passenger, could not be classified as a tort-feasor and therefore, any claim against Cox for contribution was properly dismissed.

Accordingly, we are of the opinion that appellant should be entitled to file a claim based upon contribution among joint tort-feasors against Lariosa, as the alleged negligent driver of the vehicle, and therefore, that portion of the order appealed from is reversed. In that the pleadings do not reveal any allegations of specific negligence attributable to the passenger Cox, we believe the judge was correct in dismissing the,count based upon contribution as to her and, as previously mentioned, was likewise correct in dismissing the count based upon indemnity as to both appellees.

The order of dismissal is therefore affirmed in part and reversed and remanded in part with directions to reinstate appellants’ claim for contribution against appel-lee-Lariosa.

Affirmed in part; reversed and remanded in part.

NATHAN, Judge,

concurring in part and dissenting in part.

I concur with the majority opinion in all respects except that I respectfully disagree with the dismissal of Cox from the third party complaint of appellant Florida Rock and Sand.

Admittedly, the existence of a joint venture as alleged by appellant is a question to be determined by the trier of fact. However, using the other side of the coin of the predicament noted in the majority opinion, i. e., should a joint venture be found to exist between the appellees, Cox as a passenger with imputed negligence would only be entitled to recover from the appellant the total amount of the damages sustained by her reduced by the per cent of the negligence of Lariosa, the joint venturer tort-feasor (according to the doctrine of comparative negligence). Therefore, to permit Cox to be dismissed from the appellant’s third party complaint would place appellant in the posture of being responsible to Cox for the entire amount of her damages without reduction for the percentage of negligence of Lariosa, the joint venturer tort-feasor.


text:
    Dezetta GAINES, Appellant, v. INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellee.
    No. 76-653.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Alfred D. Bieley, Miami, for appellant.
    Greene & Cooper, Goodhart & Rosner, Miami, for appellee.
    Before HENDRY, C. J„ and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant questions the correctness of the final judgment awarding her certain personal injury protection benefits provided for by appellee, Industrial Fire & Casualty Insurance Company. She further complains of the trial court’s inadequate award to her of attorney’s fees.

We have carefully considered both points in the light of the record on appeal, briefs and arguments of counsel and have concluded that appellant has failed to demonstrate reversible error. Therefore, the judgment and order appealed is affirmed.

Affirmed.


author: PER CURIAM. HUBBART, Judge

text:
    STATE of Florida, Appellant, v. William Harvey BUSBEE et al., Appellees.
    No. 76-2383.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Richard E. Gerstein, State’s Atty. and George Volsky, Asst. State’s Atty., for appellant.
    Angus M. Stephens, Jr., Coral Gables, Leonard R. McMillen, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.

HUBBART, Judge

(concurring).

I concur in affirming the trial court’s order herein which suppressed the fruits of a search of private premises pursuant to a search warrant on the ground that the warrant was executed in violation of Section 933.09, Florida Statutes (1975).

By its decision, this court has held that Section 933.09, Florida Statutes (1975), requires that a police officer executing a search warrant must announce his authority and purpose at an outer screen door of a house and be refused admittance before he may break open such outer door to execute the search warrant on the premises, absent the exceptions thereto stated in Benefield v. State, 160 So.2d 706 (Fla.1964), and State v. Kelly, 287 So.2d 13 (Fla.1974). The State had contended that a police officer need not announce his authority and purpose at an outer screen door to a house, but may break it open, enter onto a hallway on the premises and thereafter announce his authority and purpose at an inner wooden door approximately fifteen feet inside the premises at the end of the hallway. The court has quite rightly rejected this contention as contrary to the plain wording of the statute.

Since the police forcibly entered the defendant’s dwelling without properly announcing their authority and purpose under circumstances which do not excuse such announcement, the trial court was eminently correct in suppressing the evidence seized in the dwelling. Benefield v. State, 160 So.2d 706 (Fla.1964); State v. Prickett, 305 So.2d 222 (Fla. 3d DCA 1974); State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972); McLendon v. State, 176 So.2d 568 (Fla. 3d DCA 1965).


author: McNULTY, Judge.

text:
    John T. BOWLING and Anna M. Bowling, husband and wife, Appellants, v. ROCKET WHEELS INDUSTRIES, INC., a corporation, d/b/a Rocket Racing Products, Inc., a corporation, Appellee.
    No. 76-1154.
    District Court of Appeal of Florida, Second District.
    April 20, 1977.

      Harry A. Blair, P. A., Fort Myers, for appellants.
    John M. Hodges and Arthur D. Vandroff, Bernstein, Sherr, Hodges, Lancer & Brand, Sarasota, for appellee.
   McNULTY, Judge.

This appeal arises from post-judgment garnishment proceedings in which appellants were garnishees.

Appellee, Rocket Wheels, sued Donald and Susan Lafferty and a final judgment for approximately $7,000 was entered in its favor. Personal service had previously been made on the Laffertys.

The judgment was not satisfied and ap-pellee commenced the instant garnishment proceedings. A writ of garnishment was personally served on appellants and they answered admitting a matured purchase money mortgage indebtedness to the Laf-fertys in the sum of $1,000 plus interest. A judgment in garnishment was entered in favor of Rocket Wheels and against appellants in the amount of their admitted indebtedness to the Laffertys. The judgment in garnishment further provided that the mortgage securing the indebtedness be deemed satisfied.

Appellants now assail the judgment in garnishment, not because it requires payment to Rocket Wheels of their indebtedness to the Laffertys, but solely because they fear double exposure in that they contend the court was without authority to declare the aforesaid mortgage satisfied. This is so, they say, because service of the writ of garnishment, or at least notice thereof, was not made on the Laffertys; which is the fact, as the record reveals. We must affirm but allay their fears.

At the outset, however, we point out that Section 77.07(2), Florida Statutes (1974), does provide that:

“On Motion by defendant served within 20 days after service of the writ stating that any allegation in plaintiffs motion for the writ is untrue, this issue shall be tried, and if the allegation in plaintiff’s motion which is denied is not proved to be true, the garnishment shall be dissolved.” (Italics ours.)

and it may be conceded arguendo that if the Laffertys, as judgment debtors, were aggrieved by a lack of service of notice of the writ upon them, they could void the judgment in garnishment. But appellants were brought into the proceedings by proper service and were thereby chargeable with notice of any potential irregularities in the proceeding. If they were fearful that service of notice of the writ on the Laffer-tys was necessary, there was nothing to prevent them from, on their part, causing notice to be served on the Laffertys even if the court erroneously may have determined such notice to be unnecessary, a question we need not now decide. They cannot complain here, therefore, of lack of service of such notice and the judgment in garnishment, as to them, is valid.

On the other hand, we seriously question the authority of the court, sitting at law in garnishment, to satisfy a mortgage of record even if the Laffertys had indeed been served with notice of the writ. True it is that, had they been served, the Laffertys may well have been estopped by judgment or by record from enforcing the mortgage at least up to the extent of any judgment in garnishment, or from defending to the same extent against a quiet title or cancellation suit brought by appellants. But there is still nothing to prevent appellants if they be in doubt from now seeking to quiet the title or to cancel the mortgage by a proper suit in chancery, a posture they would have been in any way even if the judgment herein had not mentioned the mortgage. The debt itself was still amenable to garnishment. Surely a court of equity will resolve the equities between the parties; so appellants’ fears of double exposure are more imagined than real.

In view whereof, the judgment appealed from should be, and it is hereby, affirmed.

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

      . Certainly, if it were a post-garnishment proceeding in the county court (which is without equity powers), the court couldn’t do it.