author: BOYER, Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Fred E. GORDON and Juanita B. Gordon, his wife, Appellees.
    No. X-159.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.

      Richard S. Graham, of Landis, Graham, French, Husfeld, Sherman & Ford, Day-tona Beach, and Dale O. Morgan, Orlando, for appellant.
    Wesley A. Fink, of Fink & Loucks, Day-tona Beach, for appellees.
   BOYER, Chief Judge.

The primary issue presented by this appeal appears to be one of first impression. The briefs of the parties cite no “red cow” precedent nor does our independent research reveal any. That point is whether “equitable distribution” is applicable to a subrogated claim arising as a result of an insurance carrier paying to its insured benefits under the medical pay provision of its. policy of automobile liability insurance.

Appellant, State Farm Mutual Automobile Insurance Company (State Farm) issued a policy of liability insurance insuring an automobile owned by appellees Fred E. Gordon (Mr. Gordon) and Juanita B. Gordon (Mrs. Gordon). While driving the insured automobile, Mr. Gordon was involved in an accident in which he was injured resulting in the incurrence of medical expenses in the sum of $3,425.71. State Farm paid $2,218.32 under the “medical pay” provision of its policy.

In a suit by Mr. and Mrs. Gordon against the other party who was involved in the accident (and that party’s insurance carrier) a judgment was rendered in favor of Mr. Gordon in the amount of $47,000 and in favor of Mrs. Gordon for her derivative damages in the sum of $11,000. Although apparently aware of its pen-dency, State Farm did not participate in any manner in that litigation.

Upon State Farm demanding 100% reimbursement of the amount paid by it under its medical pay coverage the Gor-dons filed a post trial pleading entitled “Motion to Establish Amount of Subrogation Interest of State Farm”. A hearing was held on that motion, following which the trial judge entered an order holding that State Farm “shall be paid the sum of $443.66 in complete satisfaction of its sub-rogation claim for medical benefits paid to plaintiff under the medical pay provisions of its liability insurance policy”, reciting that “it is the finding of the- Court that State Farm Mutual Automobile Insurance Company is entitled to an equitable distribution, and the court having considered the evidence in the light of the guidelines as set forth in Reyes v. Banks, [Fla.App. 4 (1974), 292 So.2d 39] does find that State Farm Mutual Automobile Insurance Company is equitably entitled to be reimbursed 20% of the sum of $2,218.32 heretofore paid as medical benefits”. State Farm here appeals that order.

In White v. Reserve Insurance Company, supra, we recited guidelines to be taken into consideration in determining equitable distribution arising under the Florida “No-fault Act”, holding that in the absence of unusual or unforeseen circumstances equitable distribution is applicable to all cases arising under those statutes.

In White v. Reserve Insurance Company, supra, we, citing and quoting from Reyes v. Banks, supra, acknowledged that we looked for guidance to cases wherein the equitable distribution principle had been applied in cases involving workman’s compensation benefits.

It is appellant’s contention that upon it paying medical pay benefits under its policy of insurance it became subrogated to the extent of such payments and that the trial court erred in failing to distinguish between a subrogation interest and an interest under a statute requiring equitable distribution, and that therefore the trial judge applied erroneous standards in relying upon the guidelines suggested in Reyes v. Banks, supra. Further, appellant urges in the alternative that even should it be determined that equitable distribution princi-pies are applicable to “pure subrogation cases” the trial judge nevertheless erred in awarding to State Farm only 20% of the amount of its subrogation interest.

Although cited and relied upon by both parties, we do not find DeCespedes v. Prudence Mut. Cas. Co. of Chicago, Ill. to be helpful under the facts sub judice. Employing rather broad language the writer of that opinion said:

“Under the doctrine of subrogation, the insurer is substituted, by operation of law, to the rights of the insured. At common law, action was brought in the name of the insured. It is not available to a volunteer, only to one under a duty to pay. Furthermore, it is not available to an extent greater than the amount paid by the insurer, and then only after the insured has been fully indemnified. By contrast, an assignment generally refers to or connotes a voluntary act of transferring an interest. Assignments under certain circumstances are to be discouraged, in that they may encourage the presence of officious meddlers who are anxious to volunteer and stimulate litigation.
“Subrogation serves to limit the chance of double recovery or windfall to the insured, and, when exercised, tends to place the primary liability upon the tort-feasor, where it belongs. See 3 Apple-man, supra, § 1675. So long as subrogation, as applied to this medical pay provision, serves to bar double recovery, it should be upheld.” (Footnotes omitted: 193 So.2d at page 227)

Were we to apply the above quoted language literally it would appear that we would be required to hold that a subrogat-ed insurer is entitled to full reimbursement. However, the same writer also said in the same opinion:

“The concept of subrogation is distinct from that of a mere assignment. Subro-gation is a ‘creature of equity having for its purpose the working out of an equitable adjustment * * * ” (193 So.2d at page 227)

Although the last cited case involved the entitlement of an insured to recover under the medical pay provision of an automobile liability insurance policy, the real question was whether an insured who had already settled his claim against the tort feasor and executed a full release was then entitled to recovery of medical payment benefits from his insurer. The trial court held that he could not and the Court of Appeal affirmed. Upon consideration by the Supreme Court of Florida, that court held that the District Court correctly decided the question before it. However, it is readily apparent that the question presented in the DeCespedes case is materially different from that sub judice.

In Central National Insurance Group v. Hotte, Fla.App. 1st 1975, 312 So.2d 235, this Court held the principle of equitable distribution to be applicable to a subrogation claim arising under the uninsured motorist provisions of an automobile insurance policy in the absence of a statutory guide and in the absence of a valid agreement between the parties relative thereto. In that case, this Court said:

“Appellee contends that reimbursement to appellant should be governed by the general principles of subrogation and quotes the following from 46 C.J.S. Insurance § 1209(b), page 155, as the proper method for reimbursement:
‘If insured obtains satisfaction from the wrongdoer and has previously received payment of the loss from the company, he must account therefor to the company, the general rule being that the company may recover from insured only the excess, which insured has received from the wrongdoer causing the loss, remaining after insured is fully compensated for his loss and the cost and expenses of the recovery thereof.’ ” (312 So.2d at page 237)

In White v. Reserve Insurance Company, supra, our attention was directed to a legislative enactment requiring equitable distribution. In DeCespedes v. Prudence Mutual Casualty Company of Chicago, Illinois, supra, the Court, though considering the medical pay provision of a policy of its automobile insurance, did not have before it an issue relating to equitable distribution. Further, in that case the policy of insurance was in evidence and a part of the record on appeal. In Central National Insurance Group v. Hotte, supra, this Court considered the issue relative to equitable distribution under an uninsured motorist provision of a policy, but not the medical pay provision. In the case sub ju-dice, neither the subject policy of insurance nor the subrogation agreement (if there was one) was introduced into evidence nor do we have the benefit thereof in the record on appeal. We must, therefore, consider this particular case in the same posture as presented to the trial court, and assume that appellant is relying entirely upon payment of medical benefits as entitling it to subrogation. Under that posture and under the circumstances of this particular case, we can see no logical distinction between the relationship of the parties sub judice and those in Central National Insurance Group v. Hotte, supra.

The rule is so well settled as to render citations superfluous that an appellant has the burden of clearly demonstrating error in order to overcome the presumption of correctness of the actions and orders of the trial court. We accordingly find that, in this case, the appellant has failed to demonstrate by the record that the learned trial judge erred in applying the principles of equitable distribution under the state of the evidence presented to him.

Turning now to appellant’s contention that the amount awarded by the order here appealed was insufficient and therefore error, we find ourselves in the same position, viz: without sufficient facts to resolve that issue. Although no criterion has been developed for the application of exact mathematical calculations to equitable distribution situations, it goes without saying that such distribution should have foundation in logic and reason and should be based upon evidence, in the absence of a stipulation between the parties. In the case sub judice, the record is insufficient to either establish such foundation or to establish the absence thereof: We accordingly lend to the order of the learned trial judge the presumption of correctness due.

Affirmed.

McCORD and MILLS, JJ., concur.

      . See White v. Reserve Insurance Company, Fla.App. 1st 1974, 299 So.2d 661 and cases therein cited; certiorari denied, Sup.Ct.Fla.1975, 308 So.2d 113.

      . Although State Farm was not a party to that action the record reveals that it responded to a notice of a hearing on the motion and appeared by counsel at the hearing, participating therein.

      . The procedural propriety of State Farm appealing an order entered in a case affecting it, hut to which it was not a party, has not been raised: We accordingly do not consider the issue, but treat the case for the purpose of this opinion, as though State Farm had in fact been a party to the suit in the lower court.

      . Specifically F.S. 627.736(3) (a) and F.S. 627.736(3) (b).

      . See also State Farm Automobile Insurance Co. v. Hauser, Fla.App. 3rd 1973, 281 So.2d 563; Reyes v. Banks, Fla.App. 4th 1974, 292 So.2d 39; State Farm Mutual Automobile Ins. Co. v. Mance, Fla.App. 3rd 1974, 292 So.2d 52; Catches v. Government Employees Insurance Company, Fla.App. 1st 1974, 295 So.2d 116 and Unigard Insurance Company v. Davis, Fla.App. 1st 1974, 299 So.2d 667.

      . Fla.App. 3rd 1966, 193 So.2d 224.

      . See DeCespedes v. Proudence Mut. Cas. Co. of Chicago Ill., Sup.Ct.Fla.1967, 202 So.2d 561, two justices dissenting.

      .In that case the insured had executed a trust agreement describing the insured as trustee and the insurer as the beneficiary, but the writer of the opinion recited that “We are unable to determine that there was any consideration for the trust agreement.”

      . As were the courts in Reyes v. Banks, supra, and the other cases cited in Footnote 5 above.

      . That is, in the absence of any specific policy provision, assignment, subrogation agreement, trust agreement or other documentation.

      . In the posture of the record in this particular case we are unable to determine the materiality, if any, of the holdings in Morgan v. General Insurance Company of America, Fla.App. 1st 1965, 181 So.2d 175; Blue Cross of Florida, Inc. v. O’Donnell, Fla.App. 3rd 1970, 230 So.2d 706; Forsyth v. Southern Bell Telephone & Telegraph Co., Fla.App. 1st 1964, 162 So.2d 916; Smith v. Ryan, Fla.App. 2nd 1962, 142 So.2d 139; and Ray v. Earl, Fla.App. 2nd 1973, 277 So.2d 73.

      . See Rule 3.6, subd. b F.A.R.

      . See State Farm Mutual Automobile Insurance Co. v. Beach, Fla.App. 1st 1975, 309 So.2d 179.

      . Arex Indemnity Co. v. Radin, Sup.Ct.Fla.1954, 72 So.2d 393, Reyes v. Banks, supra; White v. Reserve Insurance Company, supra and State Farm Mutual Automobile Insurance Company v. Beach, supra.


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    Joe TORCISE et al., Appellants, v. Germinal A. PEREZ et al., Appellees.
    No. 75-225.
    District Court of Appeal of Florida, Third District.
    Sept. 2, 1975.
    Murphy & Cardenas, Coral Gables, for appellants.
    Brian R. Hersh, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HENDRY, Judge.

This is an interlocutory appeal filed by appellants, defendants in the trial court, seeking review of an order entered by the trial court granting injunctive relief to ap-pellees, plaintiffs below, and denying appellants’ motion to dismiss appellee’s emergency complaint.

On December 20, 1974, a lengthy emergency complaint was filed by appellees alleging that, in February and March, 1973, they entered into contracts for deed with Loveland Estates Development, Inc., appellant, for the sale of certain tracts of land, in Dade County, Florida. All of the contracts for deed are substantially the same and were drafted by Loveland Estates Development, Inc. The contracts for deed provide that appellees would make down payments of ten percent and such subsequent monthly payments for the next ten to twelve years until the amount paid was equal to the original selling price and interest. The contracts for deed are silent as to whom has possession of the properties prior to all installments being made.

Subsequent to the execution of the contracts for deed, Loveland Estates Development, Inc., through its agent Carlos Sal-man, co-appellant, entered into a lease with Joe Torcise, co-appellant, for the agricultural use of the same tracts of land which are the subject matter of the contracts for deed executed with appellees.

In their emergency complaint, appellees sought, inter alia, a temporary injunction enjoining appellants from the further use of and trespass on their properties. From an order of the trial court entered on January 13, 1975, denying appellants’ motion to dismiss appellees’ emergency complaint, and the granting of a temporary injunction to appellees enjoining and restraining appellants, inter alia, from leasing, using, possessing, etc., the subject properties, appellant brings this interlocutory appeal.

The basic question raised on appeal is whether or not as a matter of law, under the contracts for deed, appellees, purchasers, are entitled to use and possession of the subject properties prior to making all of the installment payments required under said contracts.

Section 697.01(1), Fla.Stat., F.S.A., provides as follows:

“All conveyances, obligations conditioned or defeasible, bills of sale or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing payment of money, whether such instrument be from debtor to the creditor or from debtor to some third person in trust for the creditor, shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages.”

In our opinion the contracts for deed were clearly intended to secure the payment of money and under § 697.01(1), Fla.Stat., F.S.A, must be deemed and held to be mortgages and subject to the same rules, regulations, etc., as mortgages. Deeming the contracts for deed to be mortgages under this statute, we find that appellants, in the position of mortgagees under the contracts for deed, had no right to the use or possession of the properties sold to appellees.

See H & L Land Company, Inc., v. Warner, Fla.App.1972, 258 So.2d 293, citing Mid-State Investment Corporation v. O’Steen, Fla.App.1961, 133 So.2d 455 (construing § 697.01 Fla.Stat., F.S.A.). Also see § 697.02 Fla.Stat., F.S.A., which provides that “[A] mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.”

Further, this holding comports with the general rules of contract construction that the intention of the parties to a contract will be ascertained from a consideration of the whole agreement. See 7 Fla. Jur. Contracts 377. The contracts for deed in the case sub judice provide, in clause 5, that in the event of default, if the appel-lees have taken possession of the properties, the appellant Loveland Estates Development, Inc., may retake possession of the properties. Although the contracts for deed do not expressly set forth who will have possession of the properties during the term of the contracts, clause 5 of the contracts certainly implies that such possession may be in appellees.

Further, clause 1 of the contracts for deed provides that the purchasers will pay taxes on the properties and in the event of non-payment by the purchasers the default and termination provisions of clause 5 of the contracts for deed shall apply. We feel that this clause 5 is also recognition of the fact that the parties contemplated possession in the appellees.

Additionally, we feel that our decision gives a reasonable construction to the contracts for deed which are expressly silent as to possession. Common sense would dictate that a person who buys property, absent a clear understanding or contractual language to the contrary, expects to enjoy the use and possession of it, even though such property may be subject to a lien or mortgage to secure the payment of the purchase price. See 7 Fla.Jur. Contracts § 84.

With regard to appellants’ contention that the trial court erred in granting in-junctive relief to appellees, from a review of the record as a whole, we feel that such contention is without merit. See Gallagher v. Automated Building Components, Inc., Fla.App.1967, 193 So.2d 445; City of Miami Beach v. Seacoast Towers Miami Beach, Fla.App.1963, 148 So.2d 554; and Albury v. Plumber's Local Union No. 519, A.F. of L.-C.I.O., Fla.App.1958, 100 So.2d 647.

The order appealed from is therefore affirmed.

Affirmed.


author: MOE, LEROY H., Associate Judge.

text:
    Charles VODOPICH, Appellant, v. COLLIER COUNTY DEVELOPERS, INC. and Basil F. Mulley, Appellees.
    No. 74-482.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1975.
    Charles R. Holley and Richard B. Lans-dale, Naples, for appellant.
    G. Holdt Garver, of Hadcock & Thornes, Naples, for appellee Mulley.
   MOE, LEROY H., Associate Judge.

This is an appeal from that part of a jury verdict rendered against the Plaintiff in an action to recover a broker’s commission. Plaintiff, Vodopich, a registered real estate broker, participated in a transaction involving the sale of land from Naples Bay Industries, Inc. to the Defendant/Appellee, Mulley, and others. For his services, he was entitled to a 10% commission amounting to $31,500.00. Vodopich subsequently agreed to forego his rights to that commission in consideration for the exclusive right to resell said properties. This agreement was reached orally between Vodopich and Mulley, plus other persons not parties hereto, who were promoting the creation of a corporation which was to become the Co-Defendant, Collier County Development, Inc. At the time this agreement was reached with Mulley, Vodopich was aware of the nonexistence of the contemplated corporate entity.

The corporation was subsequently formed and held title to the properties in question, consummating several transactions for the resale of said properties. During this time, Vodopich unsuccessfully demanded the properties be listed as per the agreement for exclusive rights of resale reached with Mulley. Vodopich then brought suit for the resale commissions against Mulley personally and Collier County Developers, Inc.

In the trial court, a jury returned verdicts in favor of Vodopich as against Collier in the amount of $70,710.00, which was the total amount claimed by Vodopich. With regard to the claim against the Defendant, Mulley, however, the jury found him not to be personally liable for Vodop-ich’s commission. It is from this latter decision that Vodopich appeals.

Appellant urges that the trial court erred in giving the following instruction to the jury:

“The rule that one who assumes to act as agent for a principal who has no legal status or existence renders himself individually liable on contracts so made does not apply where the third person has knowledge of a nonexistence or incompetency of the principal.”

Appellee contends that this instruction is the law of Florida as stated in Bryce v. Bull, 1932, 106 Fla. 336, 143 So. 409. We disagree. It is true that similar language appears in Bryce as dictum, but the words taken from the factual context of that case have acquired a distorted meaning in the setting of the case at Bar.

We cannot agree with Appellee’s assertion that Bryce stands as concrete authority for the proposition a corporate promoter will not be liable for contracts entered into on behalf of a nonexistent corporation when the party with whom he is contracting knows of the nonexistence of the contemplated corporation, for even in Bryce the Court found the promoter personally liable. In our opinion, before the promoter may escape liability, it must be shown that the parties agreed to bind the corporation alone.

As a general rule, the promoter of a corporation is personally liable on the contracts entered into on behalf of the corporation he is organizing. “ ‘On the other hand, if the contract is on behalf of the corporation and the person with whom the contract is made agrees to look to the corporation alone for responsibility, the promoter incurs no personal liability.’ . This exception applies where a promoter contracts in the name of a corporation which is to be formed later and does not intend to be liable on it, and the other party knows that the corporation has not been formed and that the promoter does not intend to be liable.” 2 Williston § 306 at p. 426 (1959), quoting from Frazier v. Ash, 5th Cir. 1956, 234 F.2d 320, 326-327.

Bryce, in part, bases its authority for the language in question on Codding v. Munson, 1897, 52 Neb. 580, 72 N.W. 846. In Codding, both plaintiff and defendant attended several meetings of the citizens of York for the purposes of securing a location for an institution for orphans for a Missionary Society. Donations were to be made in the form of negotiable notes payable to a trustee. Defendant Codding was later designated by the citizenry as that trustee and he subsequently purchased the land from plaintiff Munson as trustee, conveying it in turn to the Missionary Society. A number of subscription notes were endorsed by Codding to Munson without recourse, but the aggregate amount was $250.00 short of the contracted price for the property. Munson in turn brought suit against Codding personally for the balance. On appeal from a judgment for Munson, the Nebraska Supreme Court stated:

“. . . The presumption referred to is that the parties to a contract contemplate the creation of a legal obligation capable of enforcement, and that, therefore, it is understood that the obligation shall rest on the individuals who actively participate in the making of the contract, because of the difficulty in all cases — the impossibility in many — of fixing it upon the persons taking part in or submitting to the action of the evanescent assemblage. If, however, the person with whom the contract is made expressly agrees to look to another source for the performance of its obligations, or if the circumstances be such as to disclose an intention not to charge the agent, as where the other agrees to accept the proceeds of a particular fund, there is no longer reason to indulge the presumption, and it may be rebutted by proof of such facts. . . . ”

The trial court had instructed the jury in Codding that, if they found Codding to have acted only as the agent and trustee for the Mothers’ Jewels Home (orphanage, not yet established), they should find for the defendant Codding. This was held to be error, since Codding was the agent of the citizens of York rather than the Home. The Court held:

“. . . This principal having no legal status, the instruction should have been that Codding was liable unless the agreement was that Munson was to look solely to the subscriptions. . . . ” (Emphasis added).

The Supreme Court of Florida, one year after the decision in Bryce, heard the case of Hunt v. Adams, 1933, 111 Fla. 164, 149 So. 24. In referring to the personal liability of an agent contracting for unincorporated societies, the Court, relying on the decision from the previous year in Bryce, found the agents not personally liable as a rule “on written contracts made with third persons when executed by them solely in the name of,, and on behalf of, the unincorporated charitable . . . society for which they purport to act, where the nature of the written contract entered into, and the particular manner of its execution, is on its face such as to clearly impute no intention on the part of those who sign on behalf of the unincorporated society, to bind themselves or their associate representatives personally.” (citations omitted) (emphasis added).

Certainly this indicates that the Supreme Court in Bryce v. Bull, supra, did not intend the isolated statement, upon which Defendant relies, to mean that a promoter is relieved of personal liability if the person with whom he contracts merely has knowledge of the nonexistence of the corporate entity for whom the promoter purports to act. Bean v. Harris, Fla.App.3d, 1968, 212 So.2d 368; Brown v. Smith, 2d Cir. 1934, 73 F.2d 524; Restatement of Agency § 326 (1958). If such were true, then, with the corporation’s liability not arising until its adoption of the contract, the corporation would have an ingenious method of speculation sanctioned by the law, whereby it could reap all the speculative advantages of a timely adoption without any of the attendant disadvantages.

We feel that the instruction in question is only a partial statement of the law and, in the context of this case, erroneous. The instruction, set forth in the margin, which was also given by the trial court, is a more appropriate statement of the law with regard to promoter’s liability and is in accord with Bryce v. Bull, supra.

Accordingly, we hold that there are factual issues in this case that can only be resolved by a properly instructed jury, and the remaining points on appeal are moot in light of this decsion.

The Judgment for Mulley and the consequent order taxing costs are hereby reversed. The case is remanded for a new trial on the claims of Vodopich against Mulley.

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

      . “The promotor of a corporation is liable on ins contract, although made on behalf of the corporation to be formed, unless the person with whom he contracts agrees to look to some other fund for payment. The later formation of the corporation and the adoption or ratification of the contract by the corporation may not free the promoter from his liability.”


text:
    Charles SIMON, Appellant, v. Sally SIMON, Appellee.
    No. 74-1017.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1975.
    Angelo P. Demos, Hilton R. Carr, Jr. and James F. Dougherty, II, Miami, for appellant.
    Heller & Kaplan and Lynn Richard Mat-taway, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HENDRY, Judge.

This is an interlocutory appeal from an order, modifying a final judgment dissolving marriage, as amended, requiring appellant, defendant in the trial court, to maintain and keep in full force and effect on his life a $100,000 term life insurance policy for the benefit of his two minor children, ages 17 and 6 respectively. Said order modified a previous order of the trial court requiring defendant to maintain similar insurance for the benefit of his former wife, appellee and plaintiff in the trial court.

Defendant contends that the trial court erred in entering the order because its effect was to guarantee the future payment of child support to his two children, when it was undisputed that he had permanent custody of them.

The record before us shows that the custody of defendant’s two children was awarded to him after lengthy divorce litigation between him and his former wife, resulting in prior appeals to this court. As a final result of this litigation, defendant was granted custody of his two children in 1972, and has the sole obligation to support and care for them. Defendant is remarried and is raising two other children by his wife of a previous marriage in addition to the children in the case stib judice. The record further indicates that defendant is retired, is in good health and does not engage in any type of dangerous occupation.

Section 61.13(3), Fla.Stat., F.S. A., provides that in any proceeding under this chapter [Divorce], the court, at any stage of the proceeding and after final judgment, may make such orders about what security is to be given for the care, custody, and support of the minor children of the marriage as from the circumstances of the parties and the nature of the case is equitable. Although this section has often been interpreted by the courts of this state, we are unable to find any case in which such security has been required when the children involved in the divorce were in the custody of the person obligated for their support, in this case the defendant father. While Section 61.13(3), Fla.Stat., F.S.A., under proper circumstances, may permit a court to require that a father maintain insurance on his life as security for the maintenance and support awarded to his minor children, e.g., Harloff v. Harloff, Fla.App.1973, 279 So.2d 91; Bosem v. Bosem, Fla.App.1973, 279 So.2d 863; Black v. Miller, Fla.App.1969, 219 So.2d 106; in our opinion, under the circumstances of this case, it was not proper to impose such a requirement. Therefore, the order appealed to the extent it requires defendant to maintain insurance on his life for the benefit of his minor children, is reversed. Wilson v. Wilson, Fla.App.1964, 163 So.2d 45; Lindley v. Lindley, Fla.1955, 84 So.2d 17; and see 59 A.L.R.3d 9.

Reversed.


author: BOARDMAN, Judge.

text:
    Joe GLOW, Appellant, v. STATE of Florida, Appellee.
    No. 74-1353.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1975.

      James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant, Joe Glow, was charged in a two-count information with (1) robbery, and (2) using a firearm in the commission of a felony. He issued a subpoena duces tecum requiring the sheriff, or his authorized custodian, to appear, give oral deposition and produce any and all police reports made in connection with the investigation of the charges. The custodian appeared and was willing to disclose the reports ; but, upon advice of the assistant state attorney, did not do so.

Appellant then filed a motion seeking to compel disclosure of the reports and a motion for order to show cause for failure to comply with the subpoena duces tecum. At a hearing the motion to compel was granted, conditioned on the state’s right to apply for an in camera inspection if the reports contained sensitive, or otherwise privileged matters. The motion for a show cause order was denied on the ground that the custodian had appeared to disclose the reports and only refused on instructions from the state.

The state moved for an in camera inspection, on the basis of the judicially recognized concept of confidentiality of police reports. At the same time the state agreed to supply those portions of the reports which constituted substantially verbatim statements of witnesses for the state. Subsequently, a hearing was held on the state’s motion for an in camera inspection and the court entered its order requiring the police reports to be made available to appellant only upon a showing that they were relevant or critical to his defense, or that they tend to exculpate him. Defense counsel announced to the court that he could not make such a showing. Appellant then changed his plea to nolo contendere, reserving his right to appeal the court’s ruling, and stipulated that the state could prove a prima facie case. This appeal ensued.

Appellant has raised several points for our consideration which have been consolidated into two arguments. The first is whether police reports constitute public records under Florida Statutes, Section 119.01.

Appellant relies on the case of Williams v. State, Fla.1973, 285 So.2d 13, and contends that the Supreme Court held police reports to be public records; and, therefore, appellant submits, would be available to public inspection. However, we are unable to adopt appellant’s broad interpretation of the holding in Williams, supra. The document referred to as a public record in that case was not a police report, as such, but a statement of the victim which had been given to the police.

This court in a recent opinion in the case of Wisher v. News-Press Publishing Co., Fla.App.2d, 1975, 310 So.2d 345, held:

It has always been held that right of inspection does not extend to all public records or documents, because public policy requires that some of them be treated as confidential. See 66 Am.Jur.2d, Records and Recording Laws, § 27. In Lee v. Beach Pub. Co., 1937, 127 Fla. 600, 173 So. 440, our Supreme Court said:
“The appellant contends that there are certain records in the police department of a city which must be kept secret and free from common inspection as a matter of public policy. This is true. The rule as stated in 23 R.C. L. 161, is as follows:
‘The right of inspection does not extend to all public records or documents, for public policy demands that some of them, although of a public nature, must be kept secret and free from common inspection, such for example as diplomatic correspondence and letters and despatches (sic) in the detective police service or otherwise relating to the apprehension and prosecution of criminals.’ ”

The Supreme Court of Florida also recognized in State v. Johnson, Fla.1973, 284 So.2d 198, that police reports would not be made readily available to the public when it found:

We must also bear in mind that police reports and documents often include leads to other cases and other suspects. This information must be protected in order to afford fair pursuit of such involvement by others and the solution of other offenses. These important objectives can be destroyed or defeated if police reports are made so readily available; the police would understandably be hesitant to enter freely in reports what might be of help later on if they were not generally protected.

If police reports are held to be public records, there would be nothing to prevent the local representatives of the Mafia from making weekly visits to the police station in order to stay abreast of current efforts being made to investigate and thwart crime. Due to the great public interest in protecting and safeguarding the confidentiality of the police reports, the trial court was correct in holding- that such reports were not open to public inspection.

Insofar as the appellant claims that he was entitled to the police report on a theory of pretrial discovery, we think this contention is adequately disposed of by our opinion in State v. Gillespie, Fla.App.2d 1969, 227 So.2d 550. The prosecution is obliged to supply the appellant with any exculpatory or favorable evidence pursuant to Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, but in the absence of facts or circumstances from which it may be inferred that such evidence is likely to exist, the court is not required to conduct an in camera inspection for the purpose of determining whether any portion of the police report should be made available to the appellant. Cf. State v. Johnson, supra.

Affirmed.

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


author: McNULTY, Chief Judge.

text:
    Clyde ALFONSO, Appellant, v. STATE of Florida, Appellee. Benjamin ALFONSO, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1363, 74-1364.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1975.

      James A. Gardner, Public Defender, Sarasota, and Harold H. Moore, Asst. Public Defender, and Dennis J. Plews, Legal Intern, Bradenton, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Chief Judge.

Clyde and Benjamin Alfonso appeal from an order denying their motion for post-conviction relief filed pursuant to Rule 3.850, RCrP. We reverse.

The basis of the motion is incompetence of trial counsel. The trial court determined that the allegations were sufficient to warrant a hearing on that issue; but only the original trial judge, the prosecutor, and the two allegedly incompetent defense counsel were present at such hearing. Neither of the petitioners nor counsel acting in their behalf were given an opportunity to be present nor did they waive it.

At the conclusion of the hearing the court apparently determined from the testimony that the alleged incompetence of counsel was merely legitimate and reasonable defense tactics or strategy and denied the motion. This appeal ensued.

Although the presence of petitioner or his counsel is not always required at Rule 3.850, supra, hearings, due process demands that where there are questions of fact within the personal knowledge of the peti-toner to be resolved, then at least the petitioner must have the opportunity to testify and cross-examine witnesses against him.

Here, appellants’ allegations present factual issues involving matters about which they had personal knowledge. The allegations concerned the truthfulness of counsel, the content of conversations between attorney and client and the use or nonuse of evidence made known by defendants. Under these circumstances, where petitioners possess personal knowledge necessary to contradict and cross-examine those denying such material allegations, they must be permitted to be present.

We parenthetically point out here, too, that appellants may be entitled to independent counsel at such a hearing, though we do not now decide that this is necessarily so in this case.

In view whereof, the order appealed from should be, and it is hereby reversed, and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN and GRIMES, JJ., concur.

      . See State v. Weeks (Fla.1964), 166 So.2d 892; Bryant v. State (Fla.App.3d, 1967), 204 So.2d 9; Ballard v. State (Fla.App.3d, 1967), 200 So.2d 597.

      . See State v. Reynolds (Fla.1970), 238 So.2d 598; Eby v. State (Fla.App.2d, 1975), 306 So.2d 602.

      . See State v. Weeks, supra, n. 1.


author: MILLS, Judge. BOYER, Chief Judge

text:
    James Stephen WALDEN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. W-227.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1975.
    Richard W. Ervin, III, Public Defender, and Judith J. Dougherty, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

Walden was charged with assault to rob and assault to murder; he was found guilty of both charges by a jury; he was adjudged guilty and sentenced to prison. The point of importance here is whether the trial court erred in refusing to permit Walden to challenge several jurors peremptorily after Walden and the State had accepted the jury, but before the jury was sworn.

The jury was examined and was accepted by both parties on the day before the trial, however, the jury was not sworn. After the jury to try this case was accepted, the jury panel was excused. On the next morning, just before the jury was to enter the box, Walden informed the trial court that he wanted to challenge peremptorily two jurors. The trial court denied Walden’s request to challenge the jurors on the basis that by accepting the jury he waived his right to challenge, and that to permit him to challenge would amount to granting a motion for continuance as there was no panel remaining from whom replacement jurors could be selected. The trial court erred.

Rule 3.310, Florida Rules of Criminal Procedure, provides that a defendant may challenge a prospective juror before the jury is sworn to try the case. Since 1860, the law of our State has been that a defendant has the right to retract his acceptance and object to a juror at any time before the juror is sworn. This Court found no modification of this right since that date in Shelby v. State, 301 So.2d 461 (Fla.App. 1st, 1974).

Reversed and remanded for a new trial.

McCORD, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I would affirm. I agree that the general law is as stated in the majority opinion and that a defendant has the right to challenge a juror at anytime before the jury is sworn. However, that general law was not intended to afford defense counsel nor their clients a vehicle for frittering with the Court. Appellant and his counsel well knew on the day that the venire was examined and the prospective jurors accepted by both parties that the remaining members of the jury venire would be excused and not be available on the following day. Appellant’s attorney examined the several jurors and finally accepted the panel. The next day, when appellant knew that it was impossible to select additional jurors, he sought to peremptorily challenge two of the jurors which had been accepted by him on the preceding day. He did not seek to excuse them for cause nor did he demonstrate that he had discovered any prejudice nor any other basis for challenge not known to him on the preceding day when the jurors were accepted and when the entire venire panel was available had the jurors been peremptorily challenged at that time. I would hold that under such circumstances, viz.: In the absence of a showing of some newly discovered reason or basis for challenge, the acceptance of the jury constituted a waiver of the right to exercise his additional peremptory challenges.

Appellant urges that if the court had intended to transform the accepted group of prospective jurors into a sworn jury then the oath should have been administered immediately upon acceptance and prior to the excusing of the remaining venire. The reasons for not immediately administering the oath are self-evident but in no event have any relationship .to the point here involved. (See Allen v. State, 1906, 52 Fla. 1, 41 So. 593; State ex rel. Williams v. Grayson, 1956, 90 So.2d 710, 63 A.L.R.2d 777; Kennick v. State, Fla.App., 1959, 107 So.2d 59; and State v. Bernard, Fla.App.3d 1971, 254 So.2d 38, writ discharged with opinion Sup.Ct. Fla.1972, 261 So.2d 133) Appellant has made no showing, nor does he even contend that the jurors sworn to try this case were incompetent, biased or otherwise unqualified. (See Nowling v. Williams, Sup.Ct. Fla.1975, 316 So.2d 547).

There is yet another reason why I would affirm. As recited in the majority, appellant was convicted by a jury of the crimes of assault to rob and assault to commit murder. The victim, one Kenneth Hill-man, testified that he was the manager of a Winn-Dixie Store at the time of the commission of the crimes. At about 10 :30 a. m. on the morning that the crimes were committed he was approached by a man who said: “Mr. Hillman, this is a holdup” and was thereupon threatened with a revolver. The man then directed Hillman to go with him to the office where Mr. Hill-man attempted for some 15 to 20 minutes to induce the man not to proceed with his plan. Finally the man demanded that Mr. Hillman open the door accompanying his demand by a threat to shoot the head cashier. While Hillman was attempting to open the door the armed man grabbed the keys from him whereupon Hillman attempted to take the gun away. Hillman was then shot just above the heart. At the trial Mr. Hillman identified appellant as the man who had attempted to rob him and who shot him. Mr. Roy Touchton, a supervisor of the Winn-Dixie Store, also identified appellant as did the assistant manager. In short, appellant’s guilt was overwhelmingly established. Our Supreme Court aptly stated, while discussing another rule, that “It was never intended to furnish a defendant with a procedural device to escape justice.” (See Richardson v. State, Sup.Ct. Fla.1971, 246 So.2d 771, 774) In the same case that Court said:

“We thus have jurisdiction, and now turn to the merits of the cause before us. In so doing we hold that the violation of a rule of procedure prescribed by this Court does not call for reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant. * * * This is particularly true in view of the purpose of the Florida Rules of Criminal Procedure. As stated in Rule 1.020 of the rules themselves: ‘These rules are intended to provide for the first determination of every criminal proceeding. They shall be construed to secure simplicity in procedure and fairness in administration.’ Furthermore, the Rule in question must be considered by an appellate court in pari materia with the provisions of our harmless error statute, viz., F.S. 924.33, F.S.A. which provides that rulings or proceedings in criminal cases that are not prejudicial or harmful do not require reversal. * * * ” (246 So.2d at page 774)

(To like effect are Johnson v. State, Sup.Ct. Fla.1974, 308 So.2d 38; Williams v. State, Sup.Ct. Fla.1975, 316 So.2d 267; State v. Lyles, Sup.Ct. Fla.1975, 316 So.2d 277; and Estes v. State, Sup.Ct. Fla.1975, 316 So.2d 276).

No prejudice nor harm has been demonstrated.

Further, as already above observed, the evidence in the case sub judice was so clear and convincing as to leave no reasonable doubt but that the defendant was guilty of the crimes for which he was convicted. Where the evidence of guilt is overwhelming even a constitutional error may be rendered harmless. (Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). See also Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) and special concurring opinion of Justice Overton in Sullivan v. State, Sup.Ct.Fla.1975, 303 So.2d 632) In the light of the evidence and the last cited decisions I have no difficulty in concluding that the refusal of the trial judge to permit belated peremptory challenges, if error at all, was harmless. .

The appellant was clearly guilty, the jury so found and his conviction should be sustained.


author: PER CURIAM.

text:
    In the Interest of IVEY, Infant (WF) Dob: 8-31-75, and Ivey, Infant (WF) Dob: 8-31-75.
    No. Z-362.
    District Court of Appeal of Florida, First District.
    Sept. 18, 1975.

      Joel M. Cohen, Pensacola, Guardian Ad Litem for the above named infants, appellants.
    Henry Clay Mitchell, Jr., Pensacola, for the parents of the above named infants, appellees.
    Charles S. Williams, Asst. State Atty., for the State of Florida.
    Louis F. Ray, Jr., Pensacola, for Edward R. Westmark, M.D., amicus curiae.
    Lawrence W. Oberhausen and Patrick Emmanuel, of Holsberry, Emmanuel, Sheppard, Mitchell, & Condon, Pensacola, for Sacred Heart Hospital, amicus curiae.
   PER CURIAM.

This is an interlocutory appeal from an order of September 5, 1975, of the Circuit Court of Escambia County, Juvenile Division, brought by Joel M. Cohen, as guardian ad litem for the above infants, to review an order of the court below which ruled that the court did not have authority to order that blood transfusions be given to the two infants by a willing physician. Due to the extreme emergency involving the life or death of the two infants, we held an emergency hearing on the afternoon and evening of September 5, 1975. The attorney for the natural parents of the infants filed an affidavit stating that he, on behalf of the natural parents “has no objection to the immediate appeal, hearing and disposition of this cause by Appellant Joel M. Cohen, as Guardian Ad Litem of said children, and I hereby expressly waive all compliance by the Appellant with the Florida Rules of Appellate Procedure and consent to the conduct of an emergency hearing on the afternoon of September 5, 1975.” Also, the attorney for the State of Florida filed an affidavit to the same effect.

We heard arguments by the guardian ad litem, by the attorney for the Sacred Heart Hospital appearing as amicus curiae and by the attorney for Dr. Edward Westmark, M.D., the infants’ treating physician, as amicus curiae. Both amici curiae were represented by counsel in the proceedings below and Dr. Westmark testified as a witness. The attorneys for the parents of the infants and for the State of Florida did not attend the hearing (oral arguments) before us. Subsequently, on September 5, 1975, we entered an emergency order reversing the ruling of the trial court and ruling that under the circumstances shown by the record the court below had full authority to order Dr. Edward Westmark, M.D., (it appearing from the evidence that he was willing to act in compliance with the court’s order) or any other physician under his direction and control, to administer such blood transfusions to the two infants as he may, in his medical judgment, deem necessary. We further stated that a full opinion would be subsequently issued. This is that opinion.

Following an evidentiary hearing on September 3, 1975, the court below, entered an order in which it found that the children were born on August 31, 1975, in Bay County, Panama City, Florida; that they were born prematurely and for that reason required immediate medical care and were placed in the Sacred Heart Hospital in Es-cambia County, Pensacola, Florida, by their father, where they have remained since that time; that because of the physical condition of the children, the attending physicians recommended blood transfusions to increase their probability of survival; and that their hour-to-hour condition is subject to fluctuation. The trial court determined this to be a life or death situation with a very slim prospect of survival of the children and further found that because of their religious beliefs, the parents of the children had denied authority to the attending physician to administer blood transfusions recommended by the physicians as approved medical procedures in such instances. The court ordered that the children be placed in the temporary care, custody and control of the guardian ad li-tem and that he “in his judgment and upon the recommendation of the attending physicians, shall be and he is hereby authorized to sign and otherwise execute any and all medical consents required by the attending physicians or any physician qualified by any hospital board to perform blood transfusions on infants.” The court further ordered that the attending physician or any licensed physician qualified by any hospital board to perform blood transfusion procedures on infants, willing to do so, was authorized to perform blood transfusion procedures as medically required with the consent of the guardian ad litem of the children. Thereafter, the guardian ad litem filed a motion to amend the foregoing order, contending that under Chapter 75-185(1), Laws of Florida, the court is authorized to order that medical services be rendered. The guardian ad litem requested that the court order the attending physician or any licensed physician to perform the transfusions. The court then entered its order from which this appeal is taken by which it construed Chapter 75-185(1), supra, as not authorizing the court to enter such an order and ruled that the court was not otherwise empowered to enter such an order.

It affirmatively appears from the record and from the oral arguments before this court that the infants’ treating physician declined to administer the blood transfusions, which, in his opinion, were medically necessary, without an order of the court that he do so because of fear of a malpractice suit if he proceeded only on the basis of an authorization of the guardian ad li-tem. Thus, the question presented to this court on this appeal is whether or not the trial court was correct in its ruling that it did not have authority to order the transfusions. We find that the findings of the trial court were correct except for its finding and ruling that it did not have jurisdiction under Chapter 75-185(1), supra, or otherwise to order the transfusions.

Dr. Westmark was fully qualified as an expert witness — a medical doctor specializing in pediatrics and subspecializing in neonatology or the care of the sick newborn. He testified that the infants (twins) were born prematurely and at birth the smallest weighed 703 grams and the larger weighed 951 grams. Translating this into pounds, he testified that each would weigh under two pounds; that both initially had respiratory stress and required oxygen therapy. Without going into the details of Dr. Westmark’s testimony regarding their condition, it is clear from such testimony that they both were in critical condition at the time of the hearing before the trial judge and prior thereto. It had been medically necessary that blood be drawn from the infants for certain tests which are routine in premature births. Such blood withdrawals were made with the consent of the parents. The parents had no objection to the withdrawals, but because of their religious beliefs, they objected to transfusions or replacement of blood. The doctor testified as follows as to the need for blood transfusions:

“As you draw blood to monitor the various parameters in the blood, it depletes the blood supply and although infants are able to manufacture some blood, at this size and age, they are not able to manufacture enough to replenish that which we draw and it is customary practice in all infants of this size that when we have reached a certain amount of blood withdrawn, we need to replace that blood.”

The doctor further testified:

“A We are able from graphs on studies from large numbers of infants of low-birth weight to come up with a predicted mortality figure, and what we do is take these infants’ weight and gestational age and plot them on this graph and it shows us and tells us what their predicted mortality is. Now, if, in the course of caring for these infants you continue to withdraw blood and you are unable to replenish it, then there is going to be a point when you have withdrawn enough blood that the lack of blood is going to be injurious to the infant.
Q So 'injurious as to cause death?
A It certainly could reach that proportion.
Q And prior to any injury causing death, it would cause brain damage or damage of other vital organs ?
A Well, yes, it would cause damage to other vital organs, probably sooner than it would cause brain damage by depleting the red blood cells which carry oxygen to all of the organs, then the infant would get in trouble with the oxygen supply to the heart, lungs, etcetera.”

The doctor testified that “for the smaller of the twins, the predicted mortality or the percentage likelihood of death would be ninety-two per-cent and for the larger of the two, it would be eighty-two per-cent” if blood transfusions were not administered. He .testified that from a medical point of view the infants are in need of transfusions; that transfusions would, in his opinion, increase their chances of survival. Upon inquiry from the court as to how much time it had before a decision must be made, Dr. Westmark testified:

“This is dependent upon several factors and I am sorry that I can’t give you an exact time. For example, if one of the infants develop a hemorrhage, which is common in these low birth-weight babies, the necessity for transfusion would be immediate. If we continue to draw blood for laboratory studies and try to reduce those to the least we can get by with, it may take several days, if nothing intervened that made the babies acutely worse.”

The court then asked, “Would you characterize this as being a life or death situation?” to which the doctor replied, “Potentially yes — it could become so at any point.”

The trial court, and this court on appeal, were thus confronted with the proposition that although these infants might die even with a transfusion, the failure of the court to act to require the transfusions could result in the death of one or both of these infants. The doctor testified that in a similar case where the parents have given consent, it would be a well-established standard of medical practice to give the transfusions. Dr. Reed Bell, a medical doctor specializing in pediatric medicine testified to the same general effect as did Dr. Westmark. The father of the infants, though present at the hearing, did not testify.

Chapter 39, Florida Statutes, deals with juveniles and juvenile treatment. Section 39.08 provides in pertinent part as follows:

“After a petition has been filed, the judge may order the child named in the petition to be examined by a physician, . willing to do so. After a child has been adjudicated to be a dependent or delinquent child . . . , or be-
fore such adjudication with the consent of any parent or legal custodian of the child, the judge may order the child to be treated by a physician, . . . willing to do so. Nothing in this section shall be deemed to eliminate the right of the parents or the child to consent to examination or treatment for the child, except that consent of a parent shall not be required if the physician determines there is a serious injury or illness requiring immediate treatment and the child consents to such treatment or an ex parte court order is obtained authoris-ing said treatment.” (Emphasis supplied.)

Under the evidence presented in this cause, the trial court had full authority to authorize treatment (blood transfusions) for the infants. This the trial court did by authorizing the guardian ad litem to authorize the transfusions, but it ruled that it did not have authority to order such treatment.

Chapter 75-185, Laws of Florida, amends Chapter 827, Florida Statutes, 1974 Supplement, which relates to child abuse and support of dependents. Amended Section 827.07 thereof, which became effective June 30, 1975, casts further light on the trial court’s authority in such a situation as that presented here. Subsection (2) thereof provides that the purpose of the section is to provide for the detection and correction of the abuse or maltreatment of children who are unable to protect themselves. It defines such abuse or maltreatment as including “any willful or negligent acts which result in neglect; . . .or; failure to provide necessary treatment, attention, sustenance, clothing, shelter, or medical services;” (emphasis supplied). It then sets forth the following language which the trial court interpreted as not giving it authority to order the blood transfusions:

. . however, such an exception shall not preclude a court from ordering that medical services or treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well recognized church or religious organization be provided to the child, when his health requires it.” (Emphasis supplied)

The trial court considered the above quoted provision ambiguous and because of the ambiguity it did not authorize the court to order medical services (blood transfusions) to be given a child in a life and death situation such as this. It appears that the trial court construed this provision as only authorizing him to order treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well recognized church or religious organization. Since “medical services” is obviously not treatment by a practitioner who relies solely on spiritual means for healing, such interpretation necessarily ignores the words which authorize the court to order that medical services be provided to the child. The statement is in the disjunctive through use of the word “or” and thus the stated exception does not preclude a court from ordering either that medical services be provided to the child or that treatment by a duly accredited practitioner who relies solely on spiritual means for healing be provided to the child. This is further clarified by the title of the act which states in pertinent part,as follows:

“. . . providing that if in the legitimate practice of religious belief, specified medical treatment is not provided to a child that such action shall not be considered neglect for that reason alone; providing that the legitimate practice of religious beliefs shall not preclude a court from ordering that medical service be provided to a child where his health requires it; . . . ” (Emphasis supplied)

It is clear that the legislature intended to recognize that the court already had authority to order that medical service be provided to a child where his health requires.

While this appears to be a case of first impression in Florida, the overwhelming weight of authority throughout the country supports the view that the state, as parens patriae, may step in and protect the rights of a child threatened with death because its natural parents will not consent to medical treatment because of religious beliefs or otherwise. The courts of equity have historically possessed the power to enter orders in this regard, and this power has been codified into statutes in many states. In State v. Perricone, 37 N.J. 463, 181 A.2d 751 (N.J.1962), the lower court had entered an order appointing a guardian empowered to consent to the administration of blood transfusions to children over the objection of the parents made on religious grounds. (This case is remarkably similar to the case sub judice.) On' appeal, the parents claimed that the court lacked jurisdiction to issue the order under the statutes. The New Jersey Supreme Court found that even absent a statutory provision, “the common law courts could act to protect the interests of the child, take custody from the parents and appoint a guardian when the parents had failed in their duty or were unfit to be entrusted with the care of the child” [citation omitted] and that “the principles regarding the State’s interest in infants were specifically written into the statute . . .” The court noted that a question had arisen as to why the trial court felt it necessary to appoint a special guardian rather than ordering the transfusion directly. The court explained that this was done because the child might need additional transfusions, and, if so, the guardian could order them without instituting another suit — not because the trial court lacked authority to directly order transfusions.

In People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132 (1952), cert. den. 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642 (1952), the Illinois Supreme Court upheld a finding by the lower court that a child whose life was endangered by the refusal of the parents to permit blood transfusions was “neglected” within the meaning of an Illinois statute and it went on to state:

“The jurisdiction which was exercised in this case stems from the responsibility of government, in its character as parens patriae, to care for infants within its jurisdiction and to protect them from neglect, abuse and fraud [citation omitted]. Historically exercised by courts of chancery [citation omitted] it is of ‘ancient origin’. Cowles v. Cowles, 3 Gilman 435. That ancient equitable jurisdiction was codified in our Juvenile Court Act

As stated in 59 Am.Jur.2d “Parent and Child”, § 15 page 98:

“A parent has a legally enforceable duty to provide his child with necessary medical care. It is ordinarily for the parent in the first instance to decide, however, what is actually necessary for the protection and preservation of the life and health of his child, so long as he acts as a reasonable and ordinarily prudent parent would act in a like situation.”

In this connection, however, we find the following statement in § 9, page 92:

“The state, as parens patriae, has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare. The parents, as natural guardians, are responsible to the state for the child’s well-being. The natural rights of a parent to the custody and control of his infant child are subject to the power of the state, and may be restricted and regulated by appropriate legislative or judicial action. This power is based on state’s duty, as parens patriae, to protect those of its citizens who are unable because of infancy to take care of themselves, and on the right of the child, as citizen and ward, to its protection, as well as upon the state’s interest in its own perpetuation. Where the parents, because of their religious beliefs, or for other reasons, fail to provide or refuse to permit medical treatment which the child requires for its health or survival, the state may take custody from the parents in order to provide such treatment . . . ”

In 30 A.L.R.2d 1138, under the heading “Power of Public Authorities to Order Medical Care for a Child Over Objection of Parent or Custodian”, we find the following :

“Although recognizing that parents have a strong natural interest in the custody and control of their children, and that this interest includes the supervision of the children’s physical well being, the courts have agreed that the state has an overriding interest as parens patriae, and in a proper case may interfere to insure that the child is given medical treatment necessary for the protection of its life or limb where the parents have unreasonably refused to supply or allow such treatment, because of religious scruples or otherwise.”

Section 39.08, Florida Statutes, authorizes the court after a child has been adjudicated to be a dependent child, to order the child to be treated by a physician willing to do so when the parents do not consent to such treatment. It specifically provides that the- consent of a parent shall not be required if the physician determines there is a serious illness requiring immediate treatment and authorizes the entry of an ex parte court order authorizing such treatment. We find no material difference between the court entering an order authorizing treatment and, in a life and death case such as that sub judice, ordering the physician, who is willing to act in compliance with the court’s order, to administer such blood transfusions (treatments) as he may in his medical judgment deem necessary, the physician having stated that this involves a question of life and death of the infants and that he is willing to act in compliance with a court order, but that (for his own protection) he is unwilling to act on mere authorization of the guardian ad litem. The left-handed statement contained in Section 827.07, as amended, supra, is unnecessary to this ruling though we consider that it reinforces the court’s authority in the premises.

The trial court expressed some doubt as to whether or not it had authority to enter an order directing action by a physician who was not a party to the proceeding. Here, however, the physician was a witness in the proceeding and was represented by counsel. Further, he appeared as amicus curiae in this court and was represented by counsel. He has testified that he is willing to administer the blood transfusions recommended by him and will comply with the court’s order if he is directed to do so. We find no lack of authority in the trial judge under these circumstances. The physician has voluntarily submitted himself to the jurisdiction of the court.

Reversed and remanded.

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


author: GRIMES, Judge.

text:
    Walter HASTING, Appellant, v. Herman Joseph MARCHAL and Rachel Marchal, Appellees.
    No. 74-1425.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1975.

      John P. Cardillo, Monaco & Cardillo, Naples, for appellant.
    Roger E. O’Halloran, Mellor, Whaley, Moorey & Nuckolls, Fort Myers, for appel-lees.
   GRIMES, Judge.

This is an appeal from an order denying dismissal for lack of prosecution.

A suit for damages was filed on July 6, 1972. There was no answer filed but no default taken. On September S, 1974, a motion, notice and judgment of dismissal were entered, sua sponte, by the court in which it was stated that the suit would stand dismissed for lack of prosecution unless the plaintiffs filed a Showing of Good Cause by September 18, 1974, in which event a hearing would be held on September 23, 1974, for the purpose of deciding the issue. The plaintiffs timely filed a Showing of Good Cause. Following the hearing the court entered an order that the cause should continue and not be dismissed for lack of prosecution.

The Statement of Good Cause and the briefs filed by the parties reflect that the plaintiffs were deliberately refraining from 'prosecuting the case for fear of putting the defendant into bankruptcy. The last communication between counsel was when the plaintiffs’ lawyer wrote the defendant’s lawyer more than sixteen months before the motion for dismissal was filed.

In Whitney v. Whitney, Fla.App.2d, 1970, 241 So.2d 436, this court held that certain non-record activities of counsel were the equivalent of the filing of pleadings such as would toll the time for dismissal for lack of prosecution under Rule 1.-420(e) RCP. However, the non-record activity in that case consisted of the conduct of informal discovery proceedings by counsel for both parties which had the effect of moving the case forward. In Fleming v. Florida Power Corporation, Fla.App.2d, 1971, 254 So.2d 546, this court explained that the non-record activity of counsel in Whitney which met the “or otherwise” test set forth in the rule was activity of which the other counsel had notice and which would appear of record but for their amicable progress in the case.

The Supreme Court in Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So.2d 221, held that defense counsel’s act of mailing to plaintiff’s counsel photographic copies of certain exhibits which were marked for identification during a previous deposition constituted sufficient “action” within the meaning of Rule 1.-420(e). The court reasoned that this was affirmative action moving in a continuous stream toward the disposition of the case. See also, Eddings v. Davidson, Fla.App. 1st, 1974, 302 So.2d 155; Dukes v. Chemicals, Inc., Fla.App.2d, 1973, 277 So.2d 298. Our sister court in St. Anne Airways Corp. v. Larotonda, Fla.App.3d, 1975, 308 So.2d 129, recently defined the proposition of law applicable to these cases as follows:

“That point of law may be stated this way: depending on the facts of each case, where an alleged action taken either by the plaintiff or the defendant during the one-year dormancy period is asserted as basis for precluding dismissal pursuant to Rule 1.420(e), the question to be asked is whether or not the act taken was intended to hasten the suit to judgment.”

A unilateral decision to do nothing in a cause, no matter how well advised, cannot be considered as “action” taken which is intended to hasten a suit to judgment. Under the rule, the suit should have been dismissed.

Reversed.

McNULTY, C. J., and BOARDMAN, J., concur.


text:
    Linette HANNA et al., Appellants, v. Estelle Shivers MEANS et al., Appellees.
    No. 74-504.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 1975.
    John N. Jenkins, Tampa, for appellant Hanna.

      John P. Griffin, Tampa, for appellants McDonald.
    E. C. Watkins, Jr., of Hobbs, de la Parte & Liles, Tampa, for appellees Means.
    Maynard Ramsey of Bucklew, Ramsey, Ott & Gardner, Tampa, for appellees Sev-erson and Newberger.
   McNULTY, Chief Judge.

Appellants Hanna and McDonald appeal from an order declaring an easement of necessity astride the property line dividing their separate lands in favor of appellees Means. The Means cross-appeal a provision of that order requiring that they pay compensation therefor. We affirm in all respects.

The problem is sketched here:

On January 6, 1947, one Powell and wife acquired title to a parcel of land directly south of appellants’ properties. On March 6, 1947, they deeded the northern half of their parcel to the appellees Means. Title to the southern half descended to Severson and Newberger as the Powells’ successors in interest. At- the time of the Means’ conveyance neither parcel had access to any road. In 1973, Severson and Newber-ger acquired title from one O’Connor to a strip of land giving them access to Duque Road on the south. The Means received permission from appellant Hanna to cross the latter’s land to reach DeBuele Road on the north shortly after they purchased their parcel in 1947. Thereafter, they crossed to DeBeule Road over both the Hanna and McDonald properties, roughly at their dividing line, until 1972 when appellants’ lands were fenced denying the Means access.

The Means filed this action shortly thereafter claiming, alternatively, either a common way of necessity or an easement by prescription over appellants’ lands, Severson and Newberger were added as parties later under the initial belief that they may be necessary parties.

After trial, the trial judge issued an order declaring: (1) That the Means acquired no prescriptive right of way across appellants’ lands because their use was not adverse but was with consent; (2) that the Means failed to establish the unity of title from a common grantor entitling them to a common law easement of necessity over said lands; (3) that the only practicable and reasonable means of ingress and egress to and from Means’ land is across the common dividing line between appellants’ properties over which the Means are entitled, if they choose, to a statutory way of necessity pursuant to § 704.01(2), F.S. 1971, upon payment of just compensation therefor as required by § 704.04, F.S.1971 (it seems agreed that a stream and/or marsh land across a substantial portion of the Severson-Newberger parcel renders it less reasonable and practicable than appellant’s lands) ; and (4) that the complaint as against Severson and Newberger be dismissed.

Appellants first contend that the court erred in finding that the Means were not entitled to a common law way of necessity over the Severson-Newberger property to the south. They argue that there was indeed a common law easement of necessity over that land since Powell was their common grantor. Therefore, they say, it was improper for the trial judge to award a statutory way of necessity across their (strangers’) lands notwithstanding that such way may be more reasonable or practical. Their argument falls of its own weight, however, because a common law way of necessity cannot exist across retained land which has no access to a public road; and it is clear here that the Sever-son-Newberger land, i. e., that retained by the Powells at the time of the grant to the Means, had no access to Duque Road until 1973. After-acquired access will not suffice.

If the Means are entitled to any common law way of necessity over the Severson-Newberger lands at all, therefore, a common source other than the Powells must be established. It is true, the record reveals, that at one time Aripeka Saw Mills owned all the subject lands and the lands surrounding them. But the “common source” which forms the basis for a common law way of necessity is not one who originally may have owned all the involved lands. The “common source” within contemplation of the rule must be shown to be he who created the situation which ultimately resulted in the landlocked parcel. Aripeka wasn’t shown to be that source here. This is the precise reason, indeed, why there is no “common source” basis for a common law way over appellants’ lands either.

Appellants’ second point assails the width of the easement granted. Error on this point has not been made clearly to appear.

We consider now appellees’ cross-appeal in which they primarily urge that the court ought to have granted them a prescriptive right of way across appellants’ lands. As noted, the court denied such easement because the evidence showed that there was no adverse claim of right, the appellees having access with the consent of Hanna. Notwithstanding, appellees point to evidence of withdrawal or discontinuation of that consent and urge non-consent. Apart from that issue, however, we can dispose of appellees’ contention (and at the same time resolve the patent hiatus of lack of consent from McDonald), as a matter of law, simply under the well-settled rule that a prescriptive right never accrues in a way of necessity so long as the necessity continues; and necessity being the gravamen of appellees’ action here, they cannot claim prescription.

In view of the foregoing, the order appealed from should be, and the same is hereby, affirmed in all respects.

HOBSON and BOARDMAN, JJ., concur.

      . See Daywalt v. Walker (Cal.App.5th, 1963), 217 Cal.App.2d 669, 31 Cal.Rptr. 899.

      . Cf. Guess v. Azar (Fla.1952), 57 So.2d 443. See also 11 Fla.Jur. Easement and Licenses § 22 (1955).

      . See Stevens v. Sterling (Cir.Ct., 1949), 2 Fla.Supp. 67, aff’d (Fla.1949), 41 So.2d 903; 1 Fla.Jur. Adverse Possession § 51 (1955).


author: GRIMES, Judge. HOBSON, Acting Chief Judge

text:
    Jessie ROSSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-799, 74-800.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
    James A. Gardner, Public Defender, Sarasota, and Durand J. Adams, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahasse, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged by two informa-tions with breaking and entering an automobile with intent to commit petit larceny. She was convicted on the theory that she aided and abetted Charles Johnson in the commission of the crimes.

At about 12:45 a. m. on November 2, 1973, Patrolman Davis was advised by a passing motorist of a break-in of a van which was in progress in the parking lot of the Omega Bar in Largo. Davis arrived on the scene in time to see Johnson leave the van and leap into a red Buick parked beside the van. The Buick sped away with the officer in pursuit. Near a wooded area Johnson stopped the car and fled on foot. He was captured a short time later by another officer. Appellant remained seated on the passenger side of the car and made no attempt to flee. She was arrested and read her rights. In response to the officer’s questions, she said that Johnson was a hitchhiker she picked up. Upon being questioned further she admitted she did not usually allow hitchhikers to drive but had on this occasion. Appellant told the officer that Johnson had told her the van broken into was his. While appellant and Johnson were being booked at the county jail, appellant supplied Johnson’s address when he was unable to remember it.

The police found various stolen items in the car in which appellant was riding. A spotlight, a paint chart, a wallet badge and a pair of sunglasses were on the floor of the front seat on the passenger side. Two radios were on the back seat. The paint chart and one radio had been stolen from the van. The other items were stolen from a Chevrolet automobile which was parked next to the van.

At the close of the state’s case, appellant made a motion for directed verdict which was denied. Neither appellant nor Johnson testified. The jury found appellant guilty of both charges.

Appellant correctly argues that since the evidence of her participation was circumstantial, the proof must not only be consistent with guilt but inconsistent with any other reasonable hypothesis. Williams v. State, Fla.App.4th, 1968, 206 So.2d 446. A conviction of aiding and abetting a crime requires proof of intent to participate in the conduct of the principal. E.g., Owens v. State, Fla.App.2d, 1974, 289 So.2d 472. The proof of appellant’s intent to participate in the burglaries was circumstantial. Nevertheless, we believe the evidence was sufficient to uphold the convictions.

There was direct evidence that appellant had permitted Johnson to drive either her car or one under her control. Appellant’s act of supplying Johnson’s address to the police makes it clear that he was more than a hitchhiker. The car was parked next to the van when Johnson was observed to be bending over into the van. When Johnson ran back to the car, appellant was seen to be sitting on the passenger’s side. Johnson then jumped into the car and drove it away at a high speed and was only brought to a stop by reason of police pursuit. The stolen items were found in the car. Some of the stolen items were bulky and could hardly have been unnoticed. The spotlight from the Chevrolet was on the floorboard on appellant’s side of the car. Appellant’s explanation that Johnson had told her the van belonged to him would not explain why articles were taken from the Chevrolet. While Johnson was not actually seen removing any of the articles in appellant’s presence, it is clear that the van had just been burglarized because its owner said that he hadn’t even had a chance to have a drink when the police came in the bar and asked the customers to check their vehicles to see if anything had been taken. The circumstantial evidence was strong enough to preclude a reasonable hypothesis of innocence.

The cases of Douglas v. State, Fla.App.3rd, 1968, 214 So.2d 653, and Lockett v. State, Fla.App.4th, 1972, 262 So.2d 253, cited by appellant are close, but distinguishable on the facts. In each of these cases the crimes consisted of the taking of articles from inside a house while the defendant remained outside in an automobile. In both cases even though the proof was consistent with guilt it was not inconsistent with any other reasonable hypothesis. In the case sub judice, the crimes involved the taking of articles from two cars which were parked in a line next to the automobile in which the appellant was sitting.

Affirmed.

BOARDMAN, J., concurs.

HOBSON, A. C. J., dissents with opinion.

HOBSON, Acting Chief Judge

(dissenting).

I cannot agree with the majority that the cases of Douglas v. State and Lockett v. State, supra, are distinguishable on the facts from the facts of this case as set out in the majority opinion.

I quote extensively from Lockett to show the closeness of the factual situations involved :

“Eyewitnesses identified appellant as the person who was seated in the driver’s seat of an automobile parked on the street adjacent to the Entwistle residence, while an unidentified youth was seen to walk from the side door of that house to the automobile carrying a portable television set and two shot guns or rifles, and to load the same into the parked car. The eyewitnesses having then left the area to report the matter to the police, did not see the car being driven away and, of course, they did not know who had driven the car to the crime scene. The police broadcast a bolo alert and on the basis of the description an officer located the appellant’s car some 20 minutes later with appellant driving and a male and two female companions in the car. Other evidence established that the Entwistle home had been broken into that day, with the television and guns apparently stolen.
“Despite appellant’s alibi, the evidence was certainly sufficient to establish (1) that it was appellant whom the witnesses saw seated in the car parked by the Entwistle home, and (2) that the unidentified youth seen loading the television set and guns into appellant’s car was guilty of breaking and entering a dwelling house with intent to commit grand larceny. However, upon this evidence, appellant’s guilt (of the crime charged) would necessarily depend upon a showing of aiding and abetting under Section 776.011, F.S., F.S.A., which requires proof of his intent to participate. Williams v. State, Fla.App.1968, 206 So.2d 446; Douglas v. State, Fla.App.1968, 214 So.2d 653.
“Intent may be, and in fact usually is, shown largely by circumstantial evidence, but if the proof of intent rests solely upon circumstantial evidence (as it does here) the proof must be not only consistent with the guilt of the accused, but also inconsistent with any other reasonable hypothesis. Broadnax v. State, Fla.1952, 57 So.2d 651 and Williams v. State, supra. The circumstances of appellant sitting in his car parked outside the Entwistle residence while stolen personal property is being loaded into the car is unquestionably consistent with guilt. Yet, it is not wholly inconsistent with a reasonable hypothesis other than guilt (of the offense charged). For example, such circumstances are not inconsistent with the hypothesis that appellant drove his car to the Entwistle residence at the request of his companion who gave a legitimate purpose as a pretext, and only after the companion emerged from the residence carrying the stolen personal property did appellant become aware of his companion’s real purpose.”

The majority distinguish the facts of the Douglas and Lockett cases from the facts in this case in two ways. First, that the crimes in Douglas and Lockett consisted of taking articles from inside a house instead of from automobiles. Second, that in the case sub judice the articles were taken “from two cars which were parked in a line next to the automobile in which the appellant was sitting.” There is absolutely no proof in this record that the appellant was sitting in the automobile next to the two cars from which the articles were taken at either the time that the articles were taken or at the time the articles were placed in the automobile in which she was sitting.

In both Douglas and Lockett there is direct proof that the defendants were sitting in the car at the time the crimes were being committed. In Lockett the defendant remained seated in the car when the articles were taken from the house and placed into the car.

In my opinion the circumstantial evidence of guilt in the Douglas and Lockett cases was much stronger than in this case. The circumstantial evidence to prove the intent of the appellant to participate in the conduct of the principal in my opinion falls far short of satisfying the circumstantial evidence rule necessary to convict. The proof must not only be consistent with guilt, but inconsistent with any other reasonable hypothesis of innocence. Therefore, I respectfully dissent.


author: SMITH, Judge.

text:
    CALDER RACE COURSE, INC., a Florida Corporation, Petitioner, v. BOARD OF BUSINESS REGULATION, etc., et al., Respondents.
    No. Z-201.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1975.
    Rehearing Denied Sept. 4, 1975.
    Wilbur E. Brewton, of Taylor, Brion, Buker & Greene, Tallahassee, for petitioner.
    Stuart W. Patton, of Patton, Kanner, Nadeau, Segal, Zeller & LaPorte, Miami, and William D, Moore, Tallahassee, for respondents. •
   SMITH, Judge.

Calder Race Course, Inc., holder of a State license to conduct pari-mutuel thoroughbred racing in Dade County, petitions for review of an order entered by the Board of Business Regulation on July 25, 1975, granting the application by West Flagler Associates, Ltd., a pari-mutuel greyhound racetrack operator, for permission to conduct additional matinee races between now and the season end on September 4. The additional matinee dates were granted in order to partially recoup the tax revenue lost as a result of Flagler’s cancellation earlier this summer of 26 performances due to a dispute with greyhound owners. Calder contends that the Board acted improperly by failing to observe the notice, hearing and other procedural requirements of § 120.54, F.S. 1973 (1974 Sup.), pertaining to rulemaking, and in finding that there is “an immediate danger to the public . . . welfare” requiring emergency action necessary to protect the public interest. Sec. 120.54(8) (a), F.S. 1973 (1974 Sup.).

The Supreme Court last month held that the dispute between Flagler and the greyhound owners inflicted grave injury on the interests not only of Flagler but also of the State. Wilson v. Sandstrom, and Florida Greyhound Owners & Breeders Ass’n., Inc. v. West Flagler Assoc., Ltd., 317 So.2d 732 (Fla., 1975):

“. . . the State of Florida, through the loss of an estimated $64,000 a day in revenue, is irreparably harmed in that there is no other source to offset this loss of revenue. Furthermore, the State is losing the confidence of the public in its ability to properly regulate the gambling activities in pari-mutuel wagering . . . .”
“Furthermore, the State of Florida has granted to Flagler specific dates for racing — July 3rd to September 4th. Once these racing dates are lost, they may be lost forever, as another track is scheduled to open on the day Flagler is scheduled to close . . . .”
“In an effort to renegotiate an existing contract by ignoring an injunctive order of the judiciary, the kennel owners have gravely affected the public interest, the revenue of the State of Florida and the revenue of individual counties . . . .”

The effect of the Board’s order is to permit Flagler to conduct matinee races on nine days of its remaining season in addition to the 50 matinees which it was previously granted. These additional matinees will be conducted simultaneously with Calder’s previously authorized thoroughbred racing, and on those nine days the two licensees will compete for the pari-mu-tuel dollar. Calder, finding that its revenues and tax remittances increased substantially during the 26-day period in which Flagler was unable to operate, anticipates revenue losses on the days of additional greyhound matinees.

The Board of Business Regulation, having authority to approve the dates for racing at horse and dog tracks [§ 550.01, F.S. 1973], has adopted a policy of limiting greyhound matinees to 50 days, so to limit the occasions for competition between greyhound matinees and thoroughbred roving. We need not decide whether the Board’s statement of that policy is a rule within the meaning and application of the Administrative Procedure Act, Sec. 120.-52(13), F.S. 1973 (1974 Sup.), and, if so, whether the July 25 order varying that policy was itself a rule. For whether the Board’s action on July 25 was the promulgation of a rule or the mere issuance of an order not having effect as a rule [§ 120.-52(8), F.S. 1973 (1974 Sup.)], the Board had power to act independently of § 120.54, F.S. 1973 (1974 Sup.), to meet an immediate danger to the public welfare requiring emergency action to protect the public interest. Secs. 120.54(8)(a), 120.59(3), F.S. 1973 (1974 Sup.). In this case, after deliberations in which Calder was heard, the Board found that the public welfare is immediately in danger by the prospect of losing, between now and September 4, all opportunity the State has to mitigate its loss of tax revenue resulting from the greyhound owner dispute earlier this season. In the light of the Supreme Court’s decision in that case, the Board’s finding that carefully circumscribed emergency action is necessary to avert injury to the public welfare is supported by substantial competent evidence. The Board did not abuse its discretion or otherwise err in granting Flagler relief.

The petition is denied. Due to the exigencies of time, the period within which a petition for rehearing may be filed is shortened to five days.

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


author: SCHEB, Judge.

text:
    William H. SEARS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1549.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
    James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was adjudged guilty of breaking and entering with intent to commit a misdemeanor and sentenced to a term of from six months to two years with credit for time spent in the county jail. He appeals, contending the trial court erred in failing to grant his motion to suppress. We agree with appellant and reverse.

Appellant was arrested on a charge of “voluntary intoxication” and was fingerprinted by the police after his arrest. Subsequently, the state charged him with breaking and entering with intent to commit a misdemeanor. Appellant pled nolo contendere, reserving the right to appeal the court’s denial of his motion to suppress. See State v. Ashby, Fla.1971, 245 So.2d 225. It was the fingerprints taken after his arrest which linked him to the break-in.

The arrest took place in October, 1974. At the hearing on the motion to suppress, the arresting officer testified the arrest was made for “voluntary intoxication,” since appellant had an odor of alcohol on his breath and was unable to walk without wobbling.

Former Fla.Stat. § 856.01, which prohibited voluntary intoxication, was repealed effective July 1, 1973. Chapter-71-132, §§ 17 and 21, Laws of Florida, 1971.

Appellee now seeks to justify the arrest under Fla.Stat. § 856.011, which provides:

(1) No person in the state shall be intoxicated and endanger the safety of another person or property, and no person in the state shall be intoxicated or drink any alcoholic beverage in a public place or in or upon any public conveyance and cause a public disturbance.
(2) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.

Of course, the fact that the officer did not describe the offense with technical accuracy would not be a basis upon which to invalidate the arrest. Roberts v. State, Fla.App.2d 1975, 318 So.2d 166. However, the record is devoid of evidence that appellant was causing a public disturbance or endangering the safety of another person or property. Since the arrest cannot be justified under Fla.Stat. § 856.011, it was an illegal arrest. Hence, any fingerprints taken as a result thereof must be suppressed. Davis v. Mississippi, 1969, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676; Russo v. State, Fla.App.4th 1972, 270 So.2d 428.

Accordingly, the judgment of the trial court is reversed and the cause remanded for further proceedings consistent herewith.

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


text:
    CRITERION INSURANCE COMPANY, Appellant, v. Brigida GUTIERREZ, Appellee.
    No. 74-1282.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and W. Sam Holland, Miami, for appellant.
    Harris, Albury & Morgan, Key West, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Appellant, defendant in the trial court, appeals an order of the trial court entered August 6, 1974. The order awarded $1,500 to appellee, plaintiff in the trial court, for her attorney’s services in connection with obtaining certain personal injury protection benefits (PIP) and other benefits pursuant to an insurance policy between appellant insurance company and appellee governed by the Florida Automobile Reparations Reform Act (hereinafter referred to as the “Act”).

Appellant’s basic ground on appeal is that the trial court erred in its order awarding attorney’s fees by taking into consideration the time expended by appellee’s attorney prior to his bringing an action for PIP benefits and after an offer of judgment was filed by appellant. Appellant contends that as of March 6, 1974, it had paid PIP benefits of $3,550.76 to appellee prior to and without the necessity of a suit being filed, and that the trial court improperly took these hours into consideration in its award of attorney’s fees to appellee.

With respect to any disputes between the insured and the insurer arising under the Act, § 627.736(8), Fla.Stat., F.S. A., in conjunction with § 627.428, Fla.Stat., F.S.A., provides for the payment of a reasonable sum as attorney’s fees to the successful plaintiff-insured, here the appellee.

After a hearing upon appellee’s sworn motion for attorney’s fees, the circuit judge entered the following order:

“Upon argument by counsel and consideration by the Court of the Sworn Motion For Attorney’s Fees, filed by Plaintiff’s attorney and the Court having examined the entire Court file and the evidence before it including sworn testimony by the Plaintiff’s attorney regarding inter alia, services performed, time and expertise required, novelty of the case, the nature of the suit and the amount in controversy and being otherwise fully advised in the premises,
“It is the finding of this Court that an award of attorney’s fees to the Plaintiff’s attorney in the amount of $1500.00 constitutes a fair and reasonable attorney’s fee in this case, and it is therefore,
“ORDERED and ADJUDGED that the Defendant shall pay to the Plaintiff’s attorney the sum of $1500.00 as and for attorney’s fees, for which let execution issue.
“DONE AND ORDERED at Key West, Monroe County, Florida on August 6, 1974.
(s)-
Circuit Judge”

After a careful review of the record in the instant appeal and in view of § 627.736(8), we are unable to ascertain that the trial judge considered any improper evidence in entering the order of August 6, 1974 awarding an amount of $1500.00 to appellee for attorney’s fees.

We have considered the record, all points in the briefs and arguments of counsel in light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the order appealed is affirmed.

Affirmed.