author: KOVACHEVICH, ELIZABETH A., Associate Judge. CROSS, Judge. LETTS, Judge,

text:
    Marvin FRANKLIN and Norman Franklin, Appellants, v. WHITE EGRET CONDOMINIUM, INC., a non-profit Florida Corporation, Appellee.
    No. 76-1535.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Rehearing Denied May 31, 1978.

      James G. Kincaid, Fort Lauderdale, for appellants.
    Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for appellee.
   KOVACHEVICH, ELIZABETH A., Associate Judge.

Appellants-defendants appeal a final judgment entered in favor of the appellee-plaintiff-condominium which set aside the transfer by deed of a certain ownership interest from one defendant-brother to the other defendant-brother on the basis that the same was contrary to the rules of the declaration of condominium which prohibited ownership by more than one family, and ordered the reconveyance by defendant, Norman Franklin of all of his interest in an apartment back to defendant Marvin Franklin. Of the six points raised on appeal, four have merit, and on the same, we reverse.

Defendants are out-of-state residents who desired to purchase a condominium apartment; their plans were contingent upon owning it jointly. Defendants decided to purchase a certain unit which was then owned by a Mr. and Mrs. Murray, who had listed the property for sale with a real estate broker, who represented those sellers. A salesman for that broker brought the ultimate purchaser, defendant Marvin Franklin, together with the owners in negotiations which culminated in the signing of a contract for the purchase of said apartment in the name of “Marvin Franklin or nominee”.

Defendants testified that they wanted this apartment as a joint venture so that their respective families would have a place to stay when they visited Florida; they maintained that this was the sole motivation for their purchase in the first instance. Both defendants applied for approval of ownership and submitted membership applications to the plaintiff. There is a conflict in the testimony as to whether or not the plaintiff failed to give written notice of rejection of either of the applications to the unit owner; defendants contend that under Article XXII of the Declaration of Condominium, failure to give such written notice within ten (10) days was tantamount to consenting to the defendants’ applications. At the closing, defendants’ attorney was informed that defendant Norman Franklin’s application could not be found. Sale of the apartment was made to defendant Marvin Franklin, whose application had been approved, and who then conveyed half his interest to defendant Norman Franklin.

Plaintiff asserted that defendant Norman Franklin’s application had never been accepted because he had a child under age twelve in violation of condominium rules. Despite said rules, defendant Norman Franklin had been informed by the real estate agent for the Murrays that it was permissible for non-Florida residents to have guests under the age of twelve (12) live there, and, defendants were aware of two other non-Florida residents in the condominium with children under twelve (12) years of age. Ten (10) months after the closing, plaintiff brought suit seeking a declaratory judgment that the transfer from defendant Marvin Franklin to himself and his brother vesting an undivided one-half (1/2) interest in said apartment in each of them was void. The lower court denied defendants’ request for a jury trial and subsequently entered a final judgment, as indicated hereinabove.

This point on appeal questions the holding of title jointly by defendants. Ownership by the two defendant blood brothers was permissible; Article X specifically allows joint ownership of condominium apartments: “Membership may be held in the name of more than one owner . . ” In the entire Article there is no mention of any limits upon the amount of owners or the character of the group that might own the apartment; the word “family” is not even mentioned in the provision. It speaks not to the manner of use but specifically to the number of owners. The court should not now aid the plaintiff in reading a new and unstated restriction into the unqualified language of its own condominium document.

The next point questions what a “single family” is. Defendants contend that they were members of a single family and the use to which they put the condominium apartment was that of a single family residence. Article XXIII prohibits use for any other purpose than as a “single family residence.” The word “family” has been used to describe a number of different sets of relationships and there is no consensus as to exactly what a family is. A zoning ordinance in Carroll v. City of Miami Beach, 198 So.2d 643 (Fla. 3rd DCA 1967), defined a family as “one or more persons occupying premises and living as a single housekeeping unit”. The most recent federal expression on the same was an opinion filed on May 31, 1977, by the Supreme Court of the United States in Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531, wherein a municipal housing ordinance sought to limit occupancy of a dwelling unit to members of a single family, but defined “family” in such a way that the appellant’s household did not qualify. In reversing, the majority concluded that the ordinance there deprived the appellant of her liberty in violation of the due process clause of the Fourteenth Amendment; it expressly selected certain categories of relatives who may live together and declared that others may not. The court indicated that the strong constitutional protection of the sanctity of the family established in numerous decisions of the Supreme Court extends to the family choice involved in that case and is not bound within an arbitrary boundary drawn at the limits of the nuclear family, which essentially is a couple and its dependent children. In conclusion, the court said that the history and tradition of this nation compel a larger conception of the family: “. . . the Constitution prevents East Cleveland from standardizing its children — and its adults— by forcing all to live in certain narrowly defined family patterns.” In his concurring opinion, Mr. Justice Stevens finds that the right involved is the right to use one’s own property as one sees fit.

The confusion surrounding the definition of the term “family” must be taken into account when interpreting the restrictions in the instant case, sub judice. As a restriction on the free use of property the single family rule must be “strictly construed in favor of free and unrestricted use of real property”. Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925). “Substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenant.” Moore, supra, at 904. A restrictive covenant must be read in the context of the entire document in which it is contained. Moore, supra. When the “single family residence” restriction is read in conjunction with the context of the joint ownership provision, the two sections are inconsistent, and inherently ambiguous. Even if one were to consider that the defendants constitute two separate families, the use to which they put the apartment was that of a single family dwelling; according to the record herein, each of the defendants alternated their stays on the premises.

Two other points involve the subject of approval, but regarding different conveyances. Article XXII deals with written notice of disapproval to the Murrays, who were then owners of the apartment, and did not require notice to the defendants. The Murrays did not convey to both defendant brothers; they conveyed to defendant Marvin Franklin. From the record on appeal, the Murrays are not parties to this law suit and have made no complaint concerning this procedural matter. Further, the conveyance in dispute, sub judice, is not the conveyance from the Murrays, but rather, is the conveyance from the defendant Marvin Franklin to his brother. Thus, the question is whether or not, under the facts of this case, the conveyance of an undivided one-half interest in the apartment from defendant Marvin Franklin to defendant Norman Franklin required any approval. Article XXII specifically allows transfer of an apartment to a member of the “immediate family”; no approval is needed for such a transfer. Plaintiff concedes that where other requirements and restrictions were satisfied, an owner does not need the approval by the condominium association to convey an outright fee simple interest in the apartment to his brother. Defendant Norman Franklin is a member of the immediate family of Marvin Franklin. Thus, the transfer of part of the interest in the apartment from Marvin Franklin to Marvin Franklin and Norman Franklin was valid.

The final point on appeal that we find has merit relates to a restriction in condominium documents against children under the age of twelve (12) as an unconstitutional restriction and violation of defendant Norman Franklin’s rights to marriage, procreation, and association, and violation of his right to equal protection of the laws.

Article XXIII prohibits children under the age of twelve (12) from residing on the condominium premises. This was the reason given by plaintiff for its disapproval of Norman Franklin’s membership application. The instant case involves a number of rights which the Supreme Court of the United States has labeled “fundamental”: the right to marry, Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1966), and the right to procreate, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and the right to marital privacy, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). This restriction is an unconstitutional violation of this defendant’s rights to marry and procreate. Further, no compelling reason has been shown for refusing to allow children under twelve (12) to reside in the condominium. It seems difficult to comprehend that change that occurs on a child’s twelfth birthday which suddenly renders him fit to live in the condominium, and the plaintiff has offered no explanation regarding the same. Additionally, the plaintiff provides for a designation of children guests and has certain families with children under twelve (12) residing on the premises. Thus, the enforcement of the restriction is not only unsupportable by a compelling interest but is obviously unreasonable, since the plaintiff seeks to selectively and arbitrarily enforce the restriction. Even if the rule were valid, such unequal enforcement would be a violation of equal protection. East Coast Lumber Terminal v. Town of Babylon, 174 F.2d 106 (2d Cir.1949).

We find that the trial court erroneously ordered defendant Norman Franklin to transfer his interest in the apartment to defendant Marvin Franklin, and reverse the lower court and remand for the entry of a final judgment in favor of defendants, Marvin Franklin and Norman Franklin.

However, on the other point raised on appeal, we affirm the trial court. The lower court did not err in refusing to grant the defendants’ motion for a jury trial. In this cause, the question for determination involved title to real property. No claim or counterclaim was made for damages or any other common law issue. Considering the equitable nature of the complaint, any jury trial, if affordable at all, is clearly subject to the discretion of the trial court, and no abuse of discretion is shown. See Commodore Plaza at Century Twenty One Condominium Association, Inc. v. Century Twenty One Commodore Plaza, Inc., 290 So.2d 539 (Fla. 3rd DCA 1964); Davis v. McGahee, 257 So.2d 62 (Fla. 1st DCA 1972).

Accordingly, we affirm, in part, and reverse, in part, and remand, with directions consistent with the views expressed herein.

AFFIRMED, in part; REVERSED, in part, and REMANDED, with .directions.

MAGER and CROSS, JJ., concur.

ON PETITION FOR REHEARING

CROSS, Judge.

By petition for rehearing, appellee, White Egret Condominium, Inc., asks reconsideration of our determination that a restrictive covenant contained in condominium documents forbidding residency by families with children under twelve years of age is unconstitutional and therefore is unenforceable in the courts of this state.

Appellee correctly points out that the constitutional protection envisaged by the Fourteenth Amendment to the Constitution of the United States has been consistently held to inhibit only state action and offers no recourse against merely private conduct, no matter how discriminatory or repugnant to public notions of wrongfulness. So long as the objectives of these types of agreements are effectuated by voluntary adherence to their terms, it is clear that no action by the state would be involved, and therefore no constitutionally protected rights can be said to have been violated.

State action is, however, a broad concept and the actions of state courts and of judicial officers performing in their official capacities have long been regarded as state action. When the appellee as plaintiff below sought to invoke the powers of the trial court to compel a reconveyance of the interest of Norman Franklin in the condominium apartment to his brother, it invoked the sovereign powers of the state to legitimize the restrictive covenant at issue. This court therefore owed a duty to carefully scrutinize that covenant with a view toward forbidding its enforcement should it fail to pass constitutional muster.

In our original opinion rendered in this matter we chose to concern ourselves with an examination of the constitutional rights of appellants as parents rather than to focus on the rights of appellants’ children to be free of discrimination due to their age. The question presented was whether the recognized constitutional right of privacy protects a family from losing its interest in property solely because children under the age of twelve reside with their parents. In view of the unique position of homage which the family unit enjoys in our society and with regard to the panoply of rights associated with family life, we determined that the right of privacy grants to the family protection from unreasonable restrictions on the use of a residence.

We express particular concern for the intrusion which a restrictive covenant such as that at issue has on the decision to beget and bear children. The right to be free of unwarranted interference with the decision to have children has been identified on numerous occasions by the United States Supreme Court as one of the matters protected by the right of privacy. Recent decisions by that court make it clear that the Constitution will not permit any undue burden being placed on the decision to bear a child. There can be little doubt that the restrictive covenant forbidding occupancy of condominium premises by families with young children amounts to a substantial interference with the choice to beget and bear children. The fear of being compelled by the courts of this state through the operation of this covenant to sell or relocate a family domicile merely because a couple may choose to have children is a burden which neither the Constitution nor this court will condone.

We pause to note that other fundamental interests which fall within the penumbra of constitutional protection may also be infringed to varying degrees by the restrictive covenant under consideration; the interest which supports free and open travel among the states; the interest which parents have in being able to supervise their children’s education and enjoy their companionship; the interest concerning family living arrangements. In our society the family unit is swathed in the protection of the Constitution, and any substantial interference directly affecting the family must be supported by a countervailing and superior interest.

Appellee-condominium association offers as its only justification in support of this restriction on residency of apartments by families with children under twelve years of age the fact that young children “are noisy, distracting and frequently an imposition upon our neighbors.” Although peace and quiet in living accommodations is an admirable objective, we do not believe that this interest is sufficiently important to justify divestiture of one’s interest in property.

Appellee argues that, all buyers of condominium apartments have voluntarily consented to the imposition of these limitations upon their rights. We emphasize that we have here a willing seller and a willing buyer, and a contract of sale which was properly consummated. It is clear that but for the intervention of the courts, appellants would be free to occupy the property in question without restraint.

Appellee asks us to review the cases of Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747 (1974), and Coquina Club, Inc. v. Mantz, 342 So.2d 112 (Fla. 2d DCA 1977). In Riley, the Court of Appeals of Arizona upheld against constitutional attack a restriction which limited residency of a portion of a mobile home development to persons twenty-one years of age or older. To the extent that the Arizona Court of Appeals determined that restricting residency by children to reduce distractions and disturbances is reasonable in light of the significant interference with the traditional family, we must disagree. To the extent that peace and quiet in a neighborhood is a legitimate objective, restricting occupancy by families with children imposes a burden on the exercise of constitutionally protected rights which is entirely disproportionate to the slight benefit received.

In Coquina Club, the Court of Appeal for the Second District of Florida discussed the existence of condominium use restrictions based on age. However, the court admitted that the validity of use and occupancy restrictions was only a “subsidiary question” and was not “dispositive of the primary issue.” The court acknowledged that age restrictions in at least one other jurisdiction “have even withstood constitutional attacks,” and cited the Riley case discussed above. The court also noted that “reasonable” restrictions concerning the use and occupancy are permitted by statute. However, the decision in Riley did not address itself to whether such restrictions were reasonable as we have done here today, and therefore it is clear that Coquina Club is not in conflict with the views expressed herein.

Finally, appellee re-asserts that the transfer of ownership to Norman Franklin must be voided because it is in violation of a second restrictive covenant which limits use of condominium apartments to “single family” occupancy. In response, we again refer appellee to the decision of the United States Supreme Court in Moore v. City of East Cleveland, supra n.5, for a constitutionally accepted definition of “single family.”

We are cognizant of the great interest which our former opinion in this action has created. We are also aware that restrictive covenants, such as those at issue today, are commonplace among condominium associations in Florida. We believe that the conflicting interests between those who would live with children and those who desire to live apart from families with children are amenable to resolution. Constitutional rights, even those characterized as fundamental, are not absolute. Occasionally, the exercise of a protected right must give way when the public interest is sufficiently compelling to justify the infringement of personal liberties. Several courts have already recognized that senior members of our society possess significant interests which are deserving of special consideration. The proper balancing of the competing interests highlighted in this case cannot, however, be achieved through court enforcement of the restrictive covenants.

Accordingly, the petition for rehearing is denied.

KOVACHEVICH, ELIZABETH A., Associate Judge, concurs.

LETTS, J., dissents, with opinion.

LETTS, Judge,

dissenting:

I would grant the rehearing.

The majority decision establishes a unique and unfortunate precedent in holding that the Equal Protection Clause of the Fourteenth Amendment applies to age restrictions in an environment created for senior adults.

There are countless examples of apparently valid and enforced age restrictions which run the gamut from the required 3 years of age for Kentucky Derby entrants, all the way to the necessary 35 years that any aspirant to the Presidency must have attained under the Constitution itself. Art. II, § 1, U.S.Const. Judge Kovachevich finds it difficult to comprehend the “ . . . change that occurs on a child’s twelfth birthday which suddenly renders him fit to live in a condominium.” Maybe so, but from whence the magic of a 35th birthday which suddenly renders a person fit to live in the White House, even though one can serve as a U.S. Senator for 5 years before that? (and why 30 years of age for the Senate?) The answer is that, “between night and day, childhood and maturity, or any other extremes ... a line has to be drawn [somewhere]”, Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747, 68 A.L.R.3d 1229 (1974).

The Federal Courts have held repeatedly that age by itself is not a suspect classification even where actual State action results in the mandatory retirement of policemen at age 50 [see Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed. 520 (1976)]. This being so, it has to follow that an age restriction emanating from private contract would be even less suspect — provided it has a rational basis. True, it can be argued that enforcement of an age restriction by the courts, constitutes State action; however, I agree with the Arizona Court of Appeals that such an argument is “unrealistic” here. Riley v. Stoves, supra. In other words, is the line that has been drawn, reasonable?

Adapting this rational basis test to age discrimination, I do not find a restriction barring the RESIDENCY of children under 12 to be unreasonable, for example, in an elderly retirement community or condominium. Nature itself biologically provides that only younger adults can procreate. It is axiomatic that catabolism in the old results in physical and mental frailties which render them not only incapable of reproduction, but also incompetent to withstand the rough, tumble and noise of rampaging youngsters — inevitable accompaniments to the normal rearing of young children. For this very reason, kids are commonly barred from hospitals. Sick people need peace and quiet and so do old people who lose their erstwhile resilience to turmoil and commotion. Indeed, tranquility is a must for the mental health of older people and I would allow them to have it. So would the only other two Florida decisions that have so far touched on the question. This very court in Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975) said, in an opinion written by Judge Downey:

“It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. The Declaration of Condominium involved herein is replete with examples of the curtailment of individual rights usually associated with the private ownership of property. It provides, for example, that no sale may be effectuated without approval; NO MINORS MAY BE PERMANENT RESIDENTS; no pets are allowed.” (emphasis, supplied) at page 181.

Likewise the Second District has suggested that age restrictions are not unreasonable and perhaps even enforceable by Statute under Section 718.104(5), Fla.Stat. (1977). Coquina Club, Inc. v. Mantz, 342 So.2d 112 (Fla. 2d DCA 1977).

The majority opinion believes that age restrictions run afoul of fundamental rights such as marriage and procreation. These are “motherhood and the flag” proclamations and the cases cited in support simply do not relate these unassailable fundamentals to an age restriction. Certainly this particular age restriction does not deny the right of any adult owner to take a bride and continue to live in his condominium apartment. Nor does it deny him the right to procreate; he simply has to move when the child is born. This is comparable, in principle, to a couple with three kids having to move to a bigger house upon the arrival of the fourth, because the existing living quarters are bursting at the seams and the zoning will not permit the addition of another room.

There is a case noted by Judge Cross, which did hold that a zoning ordinance, which had the effect of keeping children out of the municipality, violated the Equal Protection Clause. See Molino v. Mayor and Council of Bor. of Glassboro, 116 N.J. Super. 195, 281 A.2d 401 (1971). However, the facts of that case reveal an acute shortage of any living units in the area where children could be housed. No such shortage is demonstrated in the case at bar. Moreover, the Molino case did involve state action and all can agree that zoning is ever subject to change in the interests of the general public good. This is a far cry from a private restriction in a declaration of condominium.

The foregoing paragraphs say little about Judge Cross’ contribution in defense of the original opinion which defense is much harder to argue with becadse it covers the constitutional waterfront with blue chip citations. To me, his most telling sentence is where he expresses “the fear of being compelled by the courts of this State through the operation of this covenant to sell or relocate a family domicile merely because a couple may choose to have children . . ” In reply, I would say first, that under the facts of this case, the couple had already had the children BEFORE the purchase, so the argument is not pertinent to the case at bar. There remains, however, the on-going problem of a young couple who have no children when they purchase a condominium, but a child later appears. Such a situation requires a much stricter scrutiny, and I am troubled by it. Nonetheless, I believe that this age restriction still passes the test and I fall back on Judge Downey’s language relative to condominium living, already quoted from the Hidden Harbour Estates case, supra. All young couples buying living units can foresee the possibility of children and this restriction has not “snuck” up on them, for they well knew of it prior to purchase or conception. The choice was theirs.

In conclusion, I am also not in agreement with much of the reasoning behind the disposition of the other points on appeal, although estoppel could be a factor in this particular case. However, my dissent is already too wordy and I only agonize this long in the hopes that I facilitate higher appellate review of the majority’s Equal Protection argument.

      . Shelley v. Kreamer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). See also United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883).

      . Shelley v. Kreamer, id.

      . Franklin v. White Egret Condominium, Inc., 358 So.2d 1084 (Fla. 4th DCA Opinion issued August 9, 1977).

      . See, e. g., Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

      . See Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (slip opinion issued April 26, 1977); Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).

      . See Moore v. City of East Cleveland, id.; Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

      . E. g., Griswold v. State of Connecticut, supra n.4; Roe v. Wade, supra n.4.

      . Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

      . Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966).

      . Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Prince v. Commonwealth of Massachusetts, supra n.6; Pierce v. Society of Sisters, supra n.6; see also Meyer v. Nebraska, supra n.6.

      . Stanley v. Illinois, supra n.6; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring).

      . Moore v. City of East Cleveland, supra n.5.

        . Moore v. City of East Cleveland, id.; Roe v. Wade, supra n.4; Taxpayers’ Association of Weymouth Township, Inc. v. Weymouth Township, 71 N.J. 249, 364 A.2d 1016 (1976).

      . See Shepard v. Woodland Tp. Com. & Plan. Bd., 71 N.J. 230, 364 A.2d 1005 (1976); Maldini v. Ambro, 36 N.Y.2d 481, 369 N.Y.S. 385, 330 N.E.2d 403 (1975); Taxpayers’ Association of Weymouth Township, Inc. v. Weymouth Township, supra n.13. But see Molino v. Mayor and Council of Bor. of Glassboro, 116 N.J.Super. 195, 281 A.2d 401 (1971).

      . By the time the petition for rehearing was filed subsequent to the issuance of the original opinion, Judge Mager had resigned from the bench to resume the practice of law. Judge Letts took his place on the panel for the purpose of said petition.

      . Said section of the statute reads in part as follows:
      The declaration may include covenants and restrictions concerning the use, occupancy and transfer of the units permitted by law with reference to real property.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rene DE LA PAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1416.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Weiner, Robbins & Tunkey, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Jose R. Rodriguez and Steven R. Jacob, Asst. Attys. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

The defendant appeals an order revoking probation and a sentence of two concurrent terms of five years. The State accepts appellant’s statement of facts, which reveals the following: The defendant was sentenced on April 20, 1971, to four one year sentences in the Dade County jail to be served concurrently with another one year sentence, and a one year sentence, also in the Dade County jail, to be served at the expiration of the concurrent one year sentences. On September 24, 1971, the court held a hearing on defendant’s motion to mitigate the sentences. At this time, the court also corrected the sentences in light of the holding in State v. Evans, 225 So.2d 548 (Fla. 3d DCA 1969). The court set aside the sentence that was to be served consecutively so that it would be served concurrently with the other sentences. Finally, the court mitigated the four concurrent sentences to a sentence of the time already served, plus seven years probation. (The court denied the motion to mitigate the one year sentence to which the four concurrent one year sentences attached.)

The court was without jurisdiction to mitigate the legal sentences imposed. See Collins v. State, 343 So.2d 680 (Fla. 2d DCA 1977). However, the court did have jurisdiction to correct the illegal sentence. See Fla.R.Crim.P. 3.800(a), and see the principle of law in Perrin v. Enos, 56 So.2d 920 (Fla.1951). Therefore, the only legal sentences were the four concurrent sentences of one year in the Dade County jail to run concurrently with another one year sentence. The order placing the defendant on probation was a nullity. Accordingly, the sentence imposed for violation of the probation is an illegal sentence.

The defendant shall be returned to the trial judge with directions to reinstate the original sentences as corrected, the defendant being given credit for any time served on the original sentence and the sentence that is now vacated. Cf. Solomon v. State, 341 So.2d 537 (Fla. 2d DCA 1977).

Reversed and remanded with directions.

      . Therefore, in summation, defendant was to serve a one year sentence (sentence one) to run concurrently with four other one year sen-fences (sentences two, three, four and five) and then to serve a consecutive one year sentence (sentence six), all in the Dade County jail.


author: BOYER, Judge.

text:
    STATE of Florida, Appellant, v. Tommy Lee WILLIAMS, Appellee.
    No. II-221.
    District Court of Appeal of Florida, First District.
    March 8, 1978.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    Louis G. Carres, Asst. Public Defender, for appellee.
   BOYER, Judge.

The trial court granted the appellee’s (hereafter, defendant) motion to suppress certain inculpatory statements. The State appeals.

The testimony at the hearing on the motion to suppress revealed that prior to any questioning the defendant was fully advised of his constitutional rights and he signed a waiver of those rights. He was then questioned concerning his knowledge of certain forged checks, which allegedly reflected his name as the payee and the endorser. Initially, he denied any involvement with, or knowledge of, the forged checks.

After the police officer advised the defendant to tell the truth in light of the overwhelming existing and potential incriminating evidence, he informed the officer that he was afraid of the consequences of any admission of guilt because he was currently on parole. The officer testified that he then informed the defendant that if contacted by the parole commission, the only thing he could do was tell the truth concerning the defendant’s cooperation or lack of it in the investigation. He denied making any promises to the defendant concerning his parole and denied making any promises concerning any recommendations on behalf of the defendant. The defendant subsequently confessed. The trial court found the officer’s statement constituted an implied promise under Fillinger v. State, 349 So.2d 714 (Fla.2d DCA 1977) and thus the confession was not given freely and voluntarily.

In Fillinger v. State, supra, the officer promised that if the defendant cooperated in the case, he would advise the State Attorney and that her cooperation would be considered in the case. In addition, the officer stated her cooperation would be considered in setting her bond. From those statements, a promise of leniency was inferred. We need not here decide whether, under the same circumstances, we would go so far as did our sister court in the Fillinger case, because the facts sub judice are materially different.

We do not find that the officer’s statement in this case constituted an implied promise of leniency which would vitiate the otherwise voluntary confession. The officer expressly stated he could make no promises to the defendant. A promise of leniency could not be inferred from the officer’s statement that he would advise the parole officer of the defendant’s cooperation if contacted by “the parole people.” (See State v. Mullin, 286 So.2d 36 (Fla.3d DCA 1973).)

Accordingly, the learned trial judge erred when he entered the order of suppression here appealed.

REVERSED and REMANDED for further proceedings consistent herewith.

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


author: PER CURIAM. BOYER, Judge,

text:
    Jackie HARVEY and Marvin Tyre, Appellants, v. B. G. MOORE, Appellee.
    No. JJ-51.
    District Court of Appeal of Florida, First District.
    April 12, 1978.
    Rehearing Denied June 6, 1978.
    John S. Winnie, of Winnie & Winnie, P. A., Gainesville, for appellants.
    Frederick T. Mickler, III, of Brannon, Brown, Norris, Vocelle & Haley, P. A., Lake City, for appellee.
   PER CURIAM.

The interlocutory appeal is DISMISSED. Rule 4.2 c, F.A.R. Treating the appeal papers as a petition for common law certio-rari, certiorari is DENIED.

McCORD, C. J., and SMITH, J., concur.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I would treat this case as a review by common law certiorari, would grant the petition and reverse.

The issue is whether the learned trial judge erred when ordering the plaintiff (petitioner here) to obtain and furnish to the defendant (respondent here) information in response to discovery not in the possession of the plaintiff but available to the defendant via deposition or subpoena duces tecum, or in the alternative to prepare, execute and deliver to the entity having possession (in this instance, a Veteran’s Administration Hospital) an authorization for release of such information to the defendant. In my view Fla.R.Civ.P. 1.350 authorizes the court, upon appropriate proceedings, to require a party to produce for the purposes enumerated in the rule the documents and things enumerated in the rule which are in the possession, custody or control of the responding party and which are not readily available to the requesting party. But when the documents or things sought to be produced are not in the possession or custody of the responding party but are available to the requesting party without the consent or authorization of the responding party, the responding party should not be required to obtain same for the requesting party nor to create new documents, viz: Authorizations or consents which are not necessary in order for the requesting party to obtain such documents or information by the ordinary means of subpoena duces tecum, or other methods of discovery. Obviously, if the documents or information can only be obtained by the responding party or with the consent or authorization of the responding party, then an order in the alternative, requiring either production or execution of authorization or consent would be appropriate. But such are not the facts sub judice.

I would reverse.


author: BOYER, Judge. PER CURIAM:

text:
    DEPARTMENT OF REVENUE of Florida, an agency of the State of Florida, et al., Appellants, v. YOUNG AMERICAN BUILDERS, a Florida Corporation, Appellee.
    No. GG-152.
    District Court of Appeal of Florida, First District.
    April 12, 1978.
    Rehearing Denied June 2, 1978.

      Robert L. Shevin, Atty. Gen., Zollie M. Maynard, Jr., Asst. Atty. Gen., for appellant.
    Leonard E. Ireland, Jr., of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Godd, Gainesville, for appellee.
   BOYER, Judge.

Appellant, Department of Revenue, seeks reversal of a summary final judgment by which the trial court held void and unenforceable Rule 12A-4.13(22), Florida Administrative Code. That rule provides as follows:

“(22) Joint Venture Contracts, Package Deals: Where corporations engaged in business of land development for residential purposes conduct their operations in conjunction with sister corporations (or even same corporation) engaged, in building homes, and one individual is controlling shareholder and principal officer of all corporations tax is required on the deeds based upon the total price that home purchaser pays for house and lot and not limited to portion of consideration attributable to the lot. The tax attaches at the time the deed or other instrument of conveyance is delivered, irrespective of the time the sale is made or the instrument is recorded. The critical factor is the intention of the parties.”

The trial judge held that the rule exceeds the limits established by F.S. 201.02 and 201.021. F.S. 201.02, so far as is material here, provides:

“On deeds, instruments, or writings whereby any lands, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser, or any other person by his direction, on each one hundred dollars of the consideration therefore the tax shall be thirty cents. * * *”
F.S. 201.021 provides in material part: “A documentary surtax, in addition to the tax levied in § 201.02, is levied on those documents taxed by § 201.02 at the rate of fifty-five cents per five hundred dollars of the consideration paid; provided, that when real estate is sold, the consideration, for purposes of this tax, shall not include amounts of existing mortgages on the real estate sold. * *”

In the summary final judgment here appealed the trial judge stated, inter alia:

“3. Florida Statutes, Sections 201.01, 201.02 and 201.021, relating to imposition of a documentary stamp tax, surtax and penalty, are limited to the production of revenue by a tax placed on recordable instruments relating to the conveyance of any lands, tenements, or other realty, or any interest therein.
“4. The amount of the tax properly assessed may be based only on the consideration paid, limited to that consideration paid for the lands, tenements, or other realty, or any interest therein.
“5. This amount includes the consideration paid for the land and any improvements thereon at the time of the conveyance, but does not include improvements which are not a part of the realty at the time of the conveyance.
“6. By Rule 12A-4.13(22), the Department of Revenue purports to require the imposition of a documentary stamp tax and surtax in some real estate transactions, including in the basis upon which the tax is based, the value of the land plus the value of improvements to be constructed thereon at a future date.
“7. Rule 12A-4.13(22) exceeds the limitations stated in Florida Statutes, Sections 201.02 and 201.021, and results in depriving the Plaintiff of its property through imposition of a tax outside the statutory authority for such tax.
“8. Rule 12A-4.13(22) is an abuse of delegated power and is therefore void.
‡ sfc sj« * *
“It is upon consideration thereof ORDERED AND ADJUDGED as follows:
jfc ‡ sjc * ¡‡: sfc
“3. Plaintiff’s Motion for Final Summary Judgment is granted on the grounds that Rule 12A-4.13(22) exceeds the limitations set by Florida Statutes, Sections 201.02 and 201.021 by imposing a tax on instruments effecting the conveyance of real property and including in the amount of consideration therefor the value of improvements to be constructed on the land at a later time. Florida Statutes, Sections 201.02 and 201.021 limit the amount of consideration upon which the tax is based to the consideration for the land and improvements existing at the time of conveyance, and the promulgation of this rule exceeding this statutory limitation constitutes an abuse of the power delegated to the Department of Revenue.
“4. Rule 12A-4.13(22) is void and unenforceable because its provisions impermis-sibly exceed the ¡«.limits established by Florida Statutes, Sections 201.02 and 201.021. * * *”

Appellee, plaintiff in the trial court, is a corporation which is engaged in the business of land sales and construction of residential homes. In some instances it sells lots to a purchaser and then contracts to construct a home on that lot. In other instances it sells the lot and does not construct a home upon it, or agrees to construct a home on a lot that the owner has acquired from a third party. In each instance documentary stamps are affixed to the deed based upon the value or consideration paid for the lot. Oftentimes both the lot and the construction are financed via a single transaction and therefore a single mortgage. Upon discovering the existence of recorded mortgages containing the descriptions of lots, the deed of conveyance of which revealed stamps indicating a lesser consideration than the amount of the note secured by the mortgage, the Department issued proposed notices of assessment; whereupon the corporation filed suit challenging the validity of the subject rule. (Rule 12 A-4.13(22))

The Department relies upon Raccoon Development, Inc. v. United States, 391 F.2d 610, 183 Ct.Cl. 276 (1968) which involved the construction and application of 26 U.S.C.A. Section 4361, a Federal Statute similar to F.S. 201.021. Whether we would be inclined to apply a decision of the United States Court of Claims construing a Federal Taxing Statute to an act passed by the legislature of the State of Florida we need not now determine; but, in any event, the Raccaon case is not authority for imposition of the broad ambit sought by the Department via the challenged rule. The facts of the Raccaon case reveal that the seller of the lots sold only in conjunction with the sale of a pre-fabricated house constructed on the lot. The theme of the development company’s advertising was directed to the sale of a house and a lot for a single total price. All interested home buyers believed that they were making a single purchase consisting of a house and a lot. Although the deed to the lot was executed and recorded simultaneously with the mortgage the deed was returned after recording to the seller and was not delivered to the purchaser until after the improvements were completed on the lot. The parties stipulated in that case that if, after the seller executed a deed, the purchaser decided not to go through with the proposed home purchase, he was obliged to execute a Quit-Claim Deed on the lot involved. Accordingly, it was impossible to acquire any of the lots except in conjunction with the purchase of a completed pre-fabricated house erected on the lot and sold by the seller of the lot or one of its affiliates. It is clear therefore that upon application of Florida real property law to the facts of the Raccaon case title did not pass until after construction on the lot had been completed and that the consideration paid by the purchaser was for the improved lot. Under those circumstances the laws of Florida impose the documentary stamp tax upon the entire consideration paid for the lot and improvements. However, those are not the facts envisioned by the drafters of the challenged rule, as reflected by the clear verbiage thereof.

Simply stated, in seeking to apply the subject rule, the Department contends that if a purchaser undertakes to acquire Blackacre from a seller and simultaneously negotiates a contract for placing improvements on Blackacre by a contractor unrelated to the seller while arranging for financing for the acquisition and construction, the tax due upon completing the transaction, whether that event takes place before or after completion of the improvements, is computed on the consideration for the unimproved Blackacre. On the otherhand, the Department contends, if the seller and contractor are one and the same, or related, then the tax is computed on the consideration for Blackacre and the improvements thereon. Further, the Department contends that if the seller and contractor are related and the sale takes place prior to construction then the tax is computed on the consideration paid for Blackacre plus the consideration anticipated to be paid for the improvements. We can find no authority in the Statute for imposition of a tax based upon an intention or anticipation. Even were the Statutes subject to such an interpretation that construction would be of dubious constitutional validity. Certainly it would be illogical and unfair.

As the Supreme Court of Florida has stated in Maas Brothers, Inc. v. Dickinson, 195 So.2d 193 (Fla.1967):

“In the same vein, it might be added that the marking and branding of the instruments to be taxed is a legislative function. The judicial function is to inspect disputed brands and to separate the taxable from the non-taxable, and if the instruments such as the one we are here concerned with are unbranded mavericks, the taxing authority must look to the legislature to brand them taxable; not this Court.” (195 So.2d at page 197)
* * * * * *
* * * It is a fundamental rule of construction that tax laws are to be construed strongly in favor of the taxpayer and against the government and that all ambiguities or doubts are to be resolved in favor of the taxpayer. This salutary principle is found in the reason that the duty to pay taxes, while necessary to the business of the sovereign, is still a duty of pure statutory creation and taxes may be collected only within the clear definite boundaries recited by statute, State ex rel. Seaboard Air Line R. Co. v. Gay (1948) 160 Fla. 445, 35 So.2d 403; 51 Am.Jur. Taxation Section 650.” (195 So.2d at page 198)

The statute is silent as to when the tax becomes due, viz: What event triggers the imposition. It is apparent, however, that the tax is imposed upon the conveyance. It necessarily follows therefore that the tax is due when the conveyance is completed which is usually when title passes. Ordinarily, title passes when the instrument of conveyance has been sufficiently executed in accordance with law and delivered. (See Fleming v. Fleming, 352 So.2d 895 (Fla.App. 1 1977)) Delivery, then, is the event upon the occurrence of which the tax becomes due.

It has wisely been said that the power to tax is the power to destroy. The Department of Revenue has no power to tax. That power is reposed solely in the legislature. A tax sought to be imposed without legislative authority is a nullity. The rule promulgated by the Department of Revenue and struck down by the Summary Final Judgment from whence this review is sought, is without statutory basis in that it seeks to extend the tax far beyond the parameters of the legislative enactment.

We have considered appellant’s second point and find it too to be without merit.

AFFIRMED.

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

ON PETITION FOR REHEARING AND FOR CLARIFICATION

PER CURIAM:

The Department of Revenue has filed a petition seeking a rehearing or, in the alternative, a clarification of our above opinion.

The first basis urged is that our opinion is in conflict with an opinion of our sister court of the Second District, First Development Corporation of America v. State of Florida Department of Revenue, 286 So.2d 233 (Fla. 2nd DCA 1973). The totality of that opinion is as follows:

“Per Curiam.
“Affirmed. See Raccoon Development, Inc. v. United States, 1968, 391 F.2d 610, 183 Ct.Cl. 276.”

We, of course, have no way of knowing what was intended by that opinion. For aught that we can tell the facts giving rise to that opinion may well have been such as was envisioned by us when we stated in the foregoing opinion “[ujnder those circumstances the laws of Florida impose a documentary stamp tax upon the entire consideration paid for the lot and improvements.” The propriety of citing for authority a “PCA” will not be by us here addressed. Whether we are permitted to take judicial notice of the contents of court files in this court we need not now decide, but certainly we may not take judicial notice of the contents of files in other courts.

The Department further urges that:

“The basic objection of this court is the Department’s application of the rule rather than the wording of the rule itself. Therefore, this court should reconsider its conclusion that the rule itself is invalid and this court’s order should be clarified to limit its decision to the Department’s application of the rule, and not the validity of the rule itself.”

That contention, too, is without merit. The subject rule concludes with the sentence: “The critical factor is the intention of the parties.” Throughout appellant’s brief and reply brief the “intention of the parties” argument is repeated. As we stated in the foregoing opinion: “We can find no authority in the statute for imposition of a tax based upon an intention or anticipation.”

Finally, we address the route by which our review of this case was accomplished: Its first appearance here was via interlocutory appeal (Department of Rev. of Fla. v. Young American Bldrs., 330 So.2d 864 (Fla. 1st DCA 1976)) wherein the department sought review of the circuit court’s order denying their motion to dismiss the action in the trial court whereby the plaintiff (Young American Builders) were seeking an injunction against the application of the subject rule, alleging that it violated the due process clause of the Florida and United States Constitutions. On the interlocutory appeal the department asserted that there was an adequate administrative remedy provided by Chapter 120 of the Florida Statutes, the Administrative Procedure Act, and that consequently the circuit court lacked jurisdiction. Resolving that issue against the department we said:

“ * * * If as Builders contends the Rule is on its face unconstitutional by due process standards, there is no remedy for it in ch. 120, F.S. 1975. The Administrative Procedure Act could not and does not relegate Fourteenth Amendment questions to administrative determination, nor restrict the occasions for judicial consideration of them by reference in § 120.73 to ch. 86, F.S., nor otherwise impair the judicial function to determine constitutional disputes. * * *”

By addressing in the foregoing opinion nonconstitutional issues we do not intend impliedly nor otherwise, to recede from nor create an exception to our prior holding in this case on its prior appearance in this court nor to State ex rel. Dept. of General Serv. v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) and School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977) and their progeny. Indeed, in the words of our sister court of the Third District in Department of Transp. v. Morehouse, 350 So.2d 529 (Fla. 3rd DCA 1977): “We admonish against attempts to evade appropriate review procedures by clothing claims for coercive relief in raiment of dubious constitutional dimensions in order to bootstrap such claims into subjects for declaratory decrees.” (350 So.2d at page 533)

However, the route of review by this court on this appeal was not made an issue by the parties. Appellants presented only two points in their briefs, neither of which related to the method or route of review.

Our above opinion being so clarified, appellants’ petition for rehearing is denied.

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


author: PEARSON, Judge.

text:
    Gerald DENT, a minor by and through his mother and next best friend, Earline Dent, Earline Dent, Individually, and Laurenner Williams, Appellants, v. Anthony CASALE, Allstate Insurance Company and Leatherby Insurance Company, Appellees.
    Nos. 77-77, 77-209.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied June 2, 1978.
    Goodhart & Rosner, Greene & Cooper and Sharon L. Wolfe, Miami, for appellants.

      Talburt, Kubicki & Bradley and Betsy E. Hartley and Robert J. Dickman, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

These appeals are from a final judgment for the defendants, entered pursuant to a directed verdict, and a cost judgment. The defendants moved for a directed verdict at the close of plaintiffs’ case and again at the close of all the evidence. The court reserved ruling on the motions and the jury returned to report that it was deadlocked. Thereupon, the court directed the verdict for the defendants and this appeal followed.

Two questions are presented. First, may the court direct a verdict, pursuant to a reserved ruling on defendants’ motion, after submission of the cause to the jury, following the jury’s announcement of its inability to reach a verdict? Second, does the evidence in this case present a jury issue?

Plaintiffs urge that the trial court was without authority to direct a verdict because of the wording of Fla.R.Civ.P. 1.480(b), which is as follows:

“Reservation of Decision on Motion. When a motion for a directed verdict at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within ten days after the reception of a verdict a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict or if a verdict was not returned, such party may move for judgment in accordance with the motion for a directed verdict within ten days after the jury has been discharged.”

It is argued that because the last clause of the quoted rule provides that “. such party may move for judgment . .,” therefore, the court may not act upon a reserved motion until a motion is filed. This argument is not valid. The rule is permissive. It is written to aid attorneys and is not a limitation on the power of the trial court to act in a proper case. See 6551 Collins Avenue Gorp. v. Millen, 104 So.2d 337 (Fla.1958).

Turning to the factual aspects of this case, the plaintiffs rely, for a jury issue, on the' testimony of Mrs. Williams, the driver of the car in which plaintiff Gerald Dent was a passenger. Of course, plaintiffs have every right to do so because on an appeal from a directed verdict, the party moved against is entitled to have the evidence and all inferences reasonably drawn therefrom viewed in the light most favorable to the non-moving party. It has also been said that a directed verdict is rarely appropriate in an intersectional collision case. See Cunningham v. Romano, 278 So.2d 631 (Fla. 3d DCA 1973).

Mrs. Williams made a left turn from a left turn lane on a divided highway at a green light. She stopped and looked. Defendant Casale was traveling at 35 m. p. h. and saw Mrs. Williams’s car entering the left turn area. The defendant did not pay particular attention to Mrs. Williams’s car because she was taking a proper position. When the defendant was 50 to 75 feet away, Mrs. Williams was in a position to turn. The defendant did not see her car again until she was in front of him. Defendant’s efforts to avoid a collision were" unavailing.

Mrs. Williams’s testimony was that she noticed the defendant’s car when she went to make her turn. He was, in her expression, “way down the road” at that time. The collision occurred when Mrs. Williams’s car was about two-thirds of the way through the intersection. The impact was on the right rear of the Williams car.

On this evidence, the jury deadlocked. At least one member of the jury decided that the defendant was in some way, and to some extent, negligent. This is strong support for the view that reasonable men could find negligence. But we are left with the question of whether Mrs. Williams’s indefinite statement that the defendant was “way down the road” is sufficient to raise a jury question of whether the defendant was negligent by being inattentive.

Under the present state of the case law on directed verdicts, we hold that the case was one for the jury. Cf. Petroleum Carrier Corporation v. Gates, 330 So.2d 751 (Fla. 1st DCA 1976); Cunningham v. Romano, 278 So.2d 631 (Fla. 3d DCA 1973); and WFTL Broadcasting Company v. Newman, 224 So.2d 359 (Fla. 4th DCA 1969).

The judgment and the order awarding costs are reversed.

      . “Q. (By Mr. Kubick) You saw Mr. Ca-sale’s car, didn’t you?
      “A. Way down the road.
      “Q. You saw—
      “A. Way down the road.
      “Q. You saw it before you started your left-hand turn in front of the car, didn’t you?
      “A. The car was right down the road when I saw it.

        “Q. That was Mr. Casale’s car that was the vehicle that you were involved in the accident with?
      “You saw it coming toward the intersection; didn’t you?
      “MR. ROSNER: The witness testified that she saw the car way down the road.
      “THE COURT: Overruled.
      “Q. (By Mr. Kubick) You saw Mr. Ca-sale’s car before this accident occurred; didn’t you?
      “A. Way down the road.
      “Q. I just want a yes or no answer. Did you see it?
      “A. Yes, down the road.
      “Q. Well, actually you saw it about two car lengths from the intersection; didn’t you?
      “A. The car was just, like, moving.
      “Q. Madam, didn’t you see it two car lengths away from the intersection when you saw it?
      “A. Way down the road.
      “Q. Do you remember when you went to the attorney’s office and gave your sworn testimony on July 1, 1975?
      “A. Yes.
      “Q. On page fourteen, at the bottom (reading):
      ‘Question: the two that were already stopped eastbound on State Road Nine?
      ‘Answer: Right. I waited till they passed and I seen it clear and this car — this man that hit me with his truck, he was about at least two car lengths down the road when 1 went to make my turn, and all at once — I don’t know whether it speeded up or what, but just as 1 got in the lane to make by turn, then he struck the back of my car.’
      “Do you remember that question and answer?
      “A. Yes.”


author: MILLS, Acting Chief Judge. SMITH, Judge, ERVIN, Judge,

text:
    ST. PETERSBURG JUNIOR COLLEGE, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Communications Workers of America, Respondent.
    No. HH-62.
    District Court of Appeal of Florida, First District.
    April 25, 1978.
    Rehearing Denied June 13, 1978.

      James M. Blue, of Smith, Young & Blue, Tallahassee, for petitioner.
    I. Jeffrey Pheterson, Tallahassee, Rodney W. Smith and Gene Johnson, of Smith & Johnson, Gainesville, for respondent.
   MILLS, Acting Chief Judge.

St. Petersburg Junior College (SPJC) seeks review of a final order entered by the Public Employees Relations Commission (PERC) finding that SJPC committed an unfair labor practice by refusing to rent a classroom to The Communication Workers of America (CWA) while allowing civic and cultural organizations to rent classrooms. The issue which is determinative of this review is whether SPJC was required to rent a classroom to CWA, who was attempting to reorganize SPJC’s employees, on the same basis that SPJC rented rooms to civic and cultural organizations.

CWA charged SPJC with discriminating against it by refusing to rent a classroom to it for a meeting, although renting classrooms to other community groups. After investigation, PERC filed a complaint against SPJC alleging that SPJC’s refusal to rent a classroom to CWA for the purpose of inducing SPJC’s employees to support CWA’s organizational efforts constituted an unfair labor practice. SPJC denied that its refusal to rent the classroom to CWA was based solely on the fact that CWA was an employee organization and denied that its acts constituted an unfair labor practice. SPJC affirmatively alleged that it was not required to rent rooms to any organization to which it did not desire to rent.

The hearing officer conducted a hearing and submitted a recommended order to PERC. PERC affirmed the hearing officer’s findings of fact but reversed his recommendations and conclusions of law.

In June 1976, CWA was attempting to organize certain employees at SPJC, and inquired about renting a classroom. Initially, it was told there would be no problem, but the next day SPJC advised CWA that it would not rent a classroom to it. On 14 July, CWA submitted a written request for the rental of a room on any weekday between 19 July and 30 July. No written response was ever received.

Most civic and cultural organizations that applied for meeting space were able to rent it. The only exceptions appeared to be a karate group that had previously done some property damage, a gay liberation group and the CWA. SPJC had never rented a room to any labor organization.

We grant SPJC’s petition for review and reverse PERC’s order. Although SPJC had rented classrooms to civic and cultural organizations, it had never rented a classroom to a labor organization. CWA was not in the same category as civic groups; it was not similarly situated. In addition, there is no requirement that SPJC rent its classrooms to anyone. Dade County Classroom Teachers Ass’n., Inc. v. Ryan, 225 So.2d 903 (Fla.1969). It has sole discretion to whom it will rent as long as it treats all applicants of the same class equally. Ryan, supra.

CWA was not deprived of the only reasonable means of communicating with the employees. SPJC did not interfere with CWA talking to employees or distributing literature at the employees’ parking lot.

SJPC was not required to rent a classroom to CWA on the same basis it rented classrooms to civic and cultural organizations. Nor was SPJC guilty of an unfair labor practice.

We grant the petition for review, reverse PERC’s final order and remand to PERC with instructions to enter an order consistent with the views expressed above.

SMITH, J., concurs with separate opinion.

ERVIN, J., concurs in part and dissents in part.

SMITH, Judge,

concurring:

I agree that the unfair labor practice complaint against the College should be dismissed. I cannot agree that a labor union is necessarily, by its very nature, of a different class than other organizations which are permitted to rent College classrooms for meetings. I do not think it necessary to reach that question on this record.

CWA requested use of a classroom between one and four on a weekday afternoon for the purpose of meeting with and organizing College employees whose daily work began or ended during that period. The hearing officer’s recommended order included a factual finding that “meetings held during those times could have interfered with the program of the college.” That finding was approved by PERC, which nevertheless found that there was no rational basis for the College’s refusal to rent to CWA and that the College was motivated by anti-union bias.

In my view CWA as the charging party failed to demonstrate by evidence that it was of the same class as the local symphony organization, the churches, the boys’ club, the Caledonia Society, the Tampa Bay Hygiene Society and the other civic groups which were permitted to rent College facilities for various purposes. The evidence does not show when those groups held their meetings or that their meetings were intended to attract College employees. CWA’s meeting had no other purpose than to attract College employees. CWA did not demonstrate that its stated intention of attracting only off-duty employees could have been assured and made effective, and that the risk of interference with teaching and other College activities was insignificant br imaginary. That is reason alone, in my view, for the College to have treated CWA differently, and for us to vacate PERC’s order and remand the case for dismissal.

ERVIN, Judge,

concurring and dissenting.

I am in substantial disagreement with the views expressed by both my colleagues. I cannot agree with Judge Mills that a union is of a class different from any group to which meeting facilities have been previously rented, and that a union may be denied meeting space provided no union has been rented such space. St. Petersburg Junior College is, as defined by Section 447.203(2), a public employer and a public employer is specifically prohibited by Section 447.501(l)(b) from discouraging membership in any employee organization. As a governmental unit, St. Petersburg Junior College may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. Cox v. Louisiana, 379 U.S. 536, 581, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (Black, J., concurring). Nor may it select which issues are worth discussing or debating in public facilities. “Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.” Police Department v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972) (e. s.).

While both Judge Smith and I are in agreement that a public employer may not deny a union the same privileges it has previously granted to others for the purpose of public communication, I must disagree with Judge Smith’s conclusion that the un-appealed finding stating “the meetings held during those times could have interfered with the program of the college . . . ” compels outright reversal of PERC’s order. To hinge the outcome of this case upon one isolated finding of fact, which was little more than an opinion expressed by the examiner, in my view places too much reliance on the one finding and excludes consideration of any of the remaining facts recited in the order clearly showing frustration of union activity by the public employer. For example, the president of SPJC, prior to the union’s request for rental of the room, had issued a memorandum to managerial employees advising that union activities were being conducted on the campus and they should be on the lookout for such activities. Additionally, a union organizer had been followed by SPJC supervisory personnel each time she came upon the campus, thereby preventing her from having access to college employees. Moreover, at the beginning of the organization drive, notices of union meetings were removed from campus bulletin boards; although the notices later were allowed to be posted. Finally the examiner found that during the drive, SPJC did not cooperate with CWA to facilitate its organizational tasks in that a list of employees was not given to CWA until after a law suit had been filed by the union.

Thus there was conflicting evidence before the hearing examiner from which he could have inferred that no unfair labor practice resulted from SPJC’s refusal to rent because potential disruption of classes might have resulted by the union’s holding organizational meetings during working hours. On the other hand there was ample evidence that an unfair labor practice occurred by SPJC’s refusal, which refusal was simply the culmination of other frustrating tactics employed by SPJC to thwart the union from soliciting its employees from membership in the union. Nevertheless the hearing officer did not enter his recommended order on the basis of these disputed facts, but solely upon the conclusion of law, now rejected by a majority of this court, that SPJC had the discretion to refuse the rental of available classroom space to CWA so long as it refuses to rent available classroom space to all other labor organizations.

Since both Judge Smith and I agree that the union’s intended conduct, i. e., communication for the purpose of soliciting union membership is protected, and that a public employer, once having granted rental privileges to others for the purpose of communication, may not deny the union the same privilege, it was necessary for the examiner to determine whether such protected conduct was the substantial or motivating factor in the decision made by the public employer in denying the rental request. Cf. Pasco County Sch. Bd. v. Fla. Public Employees Relations Commission, 353 So.2d 108 (Fla.1st DCA 1977). The hearing officer’s order never reached that question. Had he determined the decision of the employer was motivated by a non-permissible reason, i. e., anti-union bias, then the burden shifts to the employer to show by a preponderance of the evidence that notwithstanding the existence of factors relating to the union’s protected activity, the decision would have been reached despite the presence of a non-permissible reason. Pasco County Sch. Bd. v. Fla. Public Employees Relations Commission, supra, 120-122. These issues never having been decided, I would vacate the order of PERC and remand the case to the hearing officer to enter a recommended order based solely upon the evidence previously adduced at the hearing.


author: KEHOE, Judge.

text:
    Phillip Brannon COURTNEY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-290.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Rehearing Denied June 15, 1978.
    Alvin E. Entin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A., Associate Judge and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction entered pursuant to a jury verdict finding him guilty of two counts of first degree murder and of two counts of attempted first degree murder (all counts involving different persons). For these crimes, appellant was sentenced to consecutive life terms, without the possibility of parole for 25 years, plus an additional 15 years to run consecutively to the two life terms. For the reasons set forth below, we hold that the judgment of conviction and sentence should be affirmed.

Appellant was jointly indicted, along with Dale James King and James Randolph Jacobs, by the Grand Jury on May 4, 1976. King was tried separately, found guilty of two counts of first degree murder and two counts of attempted first degree murder, and sentenced to life imprisonment for the first degree murder charges and to 15 years imprisonment for the attempted murder charges. This judgment of conviction and sentence were affirmed by this court in King v. State, 355 So.2d 831 (Fla. 3d DCA opinion filed February 21, 1978). Jacobs was tried jointly with appellant herein, Phillip Brannon Courtney. Jacobs was found guilty on two counts of the lesser offense of second degree murder and two counts of the lesser offense of aggravated battery. His appeal, from this judgment of conviction and sentence, is presently pending before this court in Jacobs v. State, 358 So.2d 1110 (Fla. 3d DCA).

The ruthless and savage action which compelled the joint indictment of appellant, Jacobs, and King, was the discharge of a shotgun by one of them, from an automobile in which they were riding, at a group of persons standing adjacent to a street. This barbaric action resulted in the death of two persons and the wounding of two others. The facts of the incident are related in detail in this court’s opinion in King v. State, cited above, authored by the late Justice E. Harris Drew, Retired, as Associate Judge. For the purposes of the instant appeal, it is unnecessary for us to restate those facts in detail.

Appellant raises the following three points on appeal: (1) that the comment of the prosecutor characterizing a statement made by Dale James King, which was not introduced into evidence, as a confession, was so prejudicial as to deprive him of a fair trial; (2) that certain photographs, taken at the scene of the crimes and at the autopsies of the victims, were so gruesome and irrelevant that their introduction into evidence was so prejudicial as to deny him a fair trial; and (3) that the trial court erred in allowing the prosecutor to elicit certain hearsay testimony, allegedly under the co-conspirator exception to the hearsay rule, because the testimony concerned inculpato-ry statements made by the co-defendant which were not made in the furtherance of any conspiracy, thereby, violating his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution.

During the course of the trial, appellee sought to admit an item of documentary evidence. When appellee attempted to have one of its witnesses identify the document, appellant’s counsel immediately asked to be told the nature of the document. In response, appellee replied, “It is the confession of Dale James King.” A side-bar conference was immediately held and appellee informed the trial court that he intended to introduce King’s confession into evidence under the co-conspirator hearsay exception and that, because King had been severed from this trial, he was available for cross-examination. The trial court ruled that the document was inadmissible and then instructed the jury to disregard it, as follows:

“THE COURT: I want to instruct the jury at this time — I believe it was yesterday that I said lawyers are advocates and make statements in court, both as to the law and as to evidence.
I have instructed you that the evidence will come from the witness stand or through the clerk and the instructions will come from me.
Just because somebody labels a document in such a manner, that is not for your consideration. You are to disregard any comment on what the document purports to be.”

Subsequently, King was called as a witness, but he refused to testify on the ground of self-incrimination. Although the trial court ruled that King had waived the privilege by testifying at his own trial, he still refused to testify, and the document in question was never admitted into evidence.

Under these circumstances, the principles espoused in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and relied upon by appellant, are not applicable. Further, we hold that no reversible error resulted from this incident. See, e. g., Thomas v. State, 326 So.2d 413 (Fla.1975); Dunn v. State, 341 So.2d 806 (Fla. 3d DCA 1977); Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976); Bullard v. State, 324 So.2d 652 (Fla. 1st DCA 1975); Gray v. State, 310 So.2d 320 (Fla. 3d DCA 1975); and Wilcox v. State, 299 So.2d 48 (Fla. 3d DCA 1974). Accordingly, appellant’s first point on appeal is without merit.

Appellant, in his second point on appeal, attacks the propriety of the trial court’s admitting into evidence certain photographs taken at the scene of the crime and at the autopsies of the murder victims. The courts of this State have been called on many times to grapple with the problems concerning the admissibility into evidence during trial of photographs, the subject matter of which have often been occasioned by the conduct of criminal defendants. The general principles which have evolved are that the admissibility of photographs into evidence is a matter for the trial court’s determination and that the broad discretion accorded to the trial judge in ruling on such admissibility will not be disturbed, except when it is shown to be clearly abusive or patently erroneous under the circumstances revealed by the record. Generally, the determination of admissibility is predicated upon relevancy. See, e. g., Swan v. State, 322 So.2d 485 (Fla.1975); Bauldree v. State, 284 So.2d 196 (Fla.1973); Cravero v. State, 349 So.2d 649 (Fla. 3d DCA 1977); Allen v. State, 340 So.2d 536 (Fla. 3d DCA 1976); and Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975). In applying these principles to the instant case, it is clear that the relevancy of the photographs admitted into evidence was disclosed. Further, we have concluded that the trial judge did not abuse his discretion or otherwise commit error by allowing the photographs into evidence. Therefore, appellant’s second point on appeal is also without merit.

Appellant, in his third point on appeal, argues that a certain statement made by his co-defendant, James Randolph Jacobs, was improperly admitted into evidence. Appellant asserts that this statement was hearsay, but that, regardless, it was admitted under the co-conspirator exception to the hearsay rule. Appellant contends that such exception is not applicable here and, consequently, the statement was improperly admitted into evidence against him. Our review of the record leads us to the conclusion that appellant’s contentions, in regard to his third point on appeal, are also meritless.’ The record clearly shows that Jacobs’ statement was admitted only against him, and not against appellant. The statement was not prejudicial to appellant; all it did was implicate Jacobs. Accordingly, we have concluded that the admission into evidence of the statement was entirely proper and appellant has failed to show any error in regard to it. See Johnson v. State, 225 So.2d 440 (Fla. 1st DCA 1969); and Zide v. State, 225 So.2d 349 (Fla. 1st DCA 1969).

The record shows that appellant received a full and fair trial, and was ably assisted by competent counsel. By this appeal, no reversible prejudicial error has been made to appear. Therefore, the judgment of conviction and sentence appealed are affirmed.

Affirmed.

BOYD, JOSEPH A., Associate Judge, dissents.


text:
    Jose R. TORNA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-375.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Rehearing Denied June 15, 1978.
    Whitman, Wolfe & Gross and Donald F. Frost, Miami, for appellant.

      Robert L. Shevin, Atty. Gen. and Jose R. Rodriguez and Steven R. Jacob, Asst. Attys. Gen., for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A., Jr., Associate Judge and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See, e. g., State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Jester v. State, 339 So.2d 242 (Fla. 3d DCA 1976); Crawford v. State, 334 So.2d 141 (Fla. 3d DCA 1976); Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975); Rosenwasser v. Smith, 308 So.2d 600 (Fla. 3d DCA 1975); Section 933.09, Florida Statutes (1975); and Fla.R. Crim.P. 3.190.


text:
    James Randolph JACOBS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-649.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Rehearing Denied June 15, 1978.
    Bruce H. Fleisher, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before KEHOE, J., and BOYD, JOSEPH A., Jr., Associate Judge and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, James Randolph Jacobs together with Phillip Brannon Courtney and Dale James King was indicted, charged in two counts with first degree murder (of different persons) and in two other counts with attempted first degree murder of separate named persons.

Jacobs and Courtney were tried together before a jury. On the first two counts, Jacobs was found guilty of the lesser offense of second degree murder. On the third and fourth counts he was found guilty of the lesser offense of aggravated battery. Judgment was entered thereon, and Jacobs was sentenced on the first two counts to life imprisonment terms and on the third and fourth counts was sentenced to fifteen-year terms of imprisonment, with provision for the sentences to be served consecutively. Jacobs has appealed.

Dale James King, tried separately, was convicted. He appealed, and this court affirmed. See: King v. State, 355 So.2d 831 (Fla. 3d DCA 1978).

The action which prompted the indictment was the discharge of a shotgun by one of the above-named persons, from a vehicle which they occupied, at and into a gathering of persons, killing two of such persons and wounding others.

The facts of the incident are related in detail in this court’s opinion in King v. State, supra, authored by the late Justice E. Harris Drew, Retired, as Associate Judge. For the purpose of this appeal, reference is made to the facts as stated in the King case opinion, without undertaking to restate them here.

The appellant, Jacobs, presents four contentions as grounds for reversal. On consideration thereof in light of the record, briefs and argument, we hold no reversible error has been shown.

During the trial, when the prosecutor presented an instrument for which he intended to seek admission, defense counsel requested to know what the document was. The prosecutor responded, saying: “It is the confession of Dale James King”. The prosecutor explained that he was submitting the document because it was intended to present King as a witness who would be subject to cross-examination. The court ruled that the item was not admissible at that time, and then instructed the jury to disregard, as follows:

“THE COURT: I want to instruct the jury at this time — I believe it was yesterday that I said lawyers are advocates and make statements in court, both as to the law and as to the evidence.
“I have instructed you that the evidence will come from the witness stand or through the clerk and the instructions will come from me.
“Just because somebody labels a document in such manner, that is not for your consideration. You are to disregard any comment on what the document purports to be.”

When called as a witness King refused to testify, on the ground of self-incrimination. Although the court ruled King had waived the privilege by testifying at his own trial, King still refused to testify, and the document in question was not admitted in evidence. In the circumstances, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) relied on by the appellant is not applicable. We hold no reversible error resulted from this incident. See: Gray v. State, 310 So.2d 320 (Fla. 3d DCA 1975); Bullard v. State, 324 So.2d 652 (Fla. 1st DCA 1975); Thomas v. State, 326 So.2d 413 (Fla.1975).

The photographs introduced in evidence did not constitute error. Their relevance was disclosed. Objection thereto at trial was lacking. See: Hoyt v. State, 119 So.2d 691 (Fla.1960); Tomlin v. State, 167 So.2d 745 (Fla. 2d DCA 1964); Williams v. State, 228 So.2d 377 (Fla.1969); Pressley v. State, 261 So.2d 522 (Fla. 3d DCA 1972). The motion to dismiss, to which the State filed a traverse, was not sworn to, as required by Fla.R.Crim.P. 3.190(c)(4). The defendant presented a subsequent sworn motion to dismiss alleging the same facts, to which the State did not file a traverse. Appellant contends that absence of a traverse thereof established the facts alleged in the second motion, and that it was error to deny the same, relying on State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971). The State argues that its traverse of such facts, when alleged in the first motion to dismiss, carried over to the second motion, and further that the second motion (which stated no new facts) was considered by the court on its merits and was properly held to be insufficient to require dismissal. The denial of the motion to dismiss was not error. See: State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974); State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976).

The rulings of the trial court in denying severance, and in allowing testimony concerning inculpatory statements made by a codefendant did not constitute reversible error. The ruling relating to severance was one within the sound judicial discretion of the court. No clear abuse of such discretion was shown. See: Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975); Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976). The inculpatory statements which witnesses testified were made to them, were by Jacobs himself or by Courtney in Jacobs’ presence, prior to their arrest. A Bruton situation was not presented, and no reversible error resulted. See: Phillips v. State, 177 So.2d 243 (Fla. 1st DCA 1965); Wakeman v. State, 237 So.2d 61 (Fla. 4th DCA 1970); Tucker v. United States, 279 F.2d 62 (5th Cir. 1960); United States v. Schroeder, 433 F.2d 846 (8th Cir. 1970).

Affirmed.

BOYD, Associate Judge, dissents.


author: SMITH, Acting Chief Judge.

text:
    Robert D. ALLEN and Edda Allen, his wife, Appellants, v. Ronald M. SCOTT, Appellee.
    No. HH-5.
    District Court of Appeal of Florida, First District.
    April 28, 1978.
    Rehearing Denied June 12, 1978.
    Cecil G. Costin, Jr., Port St. Joe, for appellants.
    J. Ben Watkins of Watkins & Watkins, Apalachicola, for appellee.
   SMITH, Acting Chief Judge.

Appellants Allen successfully resisted ap-pellee Scott’s claim for a mechanic’s lien, but the trial court denied the Allens’ post-trial motion for attorney’s fees. That was error. Section 713.29, Florida Statutes (1977) requires an award of reasonable fees to the prevailing party for the services of his or her attorney. Charter Development Corp. v. Eversole, 342 So.2d 143 (Fla. 1st DCA 1977). Appellants’ other point on appeal is without merit.

REVERSED and REMANDED to award appellants a reasonable fee for their attorney’s representation on the mechanic’s lien claim in the trial court. No consideration need be given to appellate services, for which no fee request was presented to this court.

ERVIN and BOOTH, JJ., concur.


author: POULTON, TIMOTHY P., Associate Judge.

text:
    David James WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2349.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    Rehearing Denied June 7, 1978.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., for appellee.
   POULTON, TIMOTHY P., Associate Judge.

In 1958 when the author of this opinion joined the clamor for reform (see 11 U.Fla. L.Rev. 220), an indigent non-capital felony defendant did not have the right to a free attorney. How far we have come in twenty years. The question now is whether we have come far enough.

The sole issue in this case is whether an indigent defendant who has rejected the services of the public defender and chooses to represent himself is entitled to access to law books. The defendant was in jail awaiting trial for a felony. The public defender had been appointed to represent him. The defendant then moved to represent himself. That motion was granted with the public defender ordered to assist on a “standby” basis. The defendant later moved to have the public defender removed altogether. That motion was granted only after the court warned the defendant that he would not have access to law books because the county jail had none. At that hearing, the defendant moved for access to law books, and that motion was denied. He represented himself at trial and was found guilty as charged.

The question presented is but one of a number of similar questions that might be presented: is an incarcerated pro se defendant entitled to be afforded all the resources that might otherwise be available if he would avail himself of the services of a public defender? Is he entitled to the use of an investigator? Is he entitled to view the scene of the crime? Is he entitled to confer with witnesses? Need he be supplied with a secretary and all the office equipment that the public defender has available? Should he have unlimited access to a telephone?

As we see it, the axiom that a defendant is entitled to represent himself is extended too far if we are required to answer the foregoing questions in the affirmative. Perhaps if the state is required to provide a perfect climate for defense for an incarcerated indigent defendant, the state ought to offer the defendant a choice between a public defender and a pro se defense with all the advantages suggested above.

On the narrow question before us — on access to books — extant caselaw does not require the defendant be given his choice. The cases governing post-trial writ prisoners should govern here as well. In both Cruz v. Hauck, 515 F.2d 322 (5th Cir. 1975), and Bound v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the issue was considered. The Cruz court said:

“. . .If all inmates do not have such access, the court should devise a plan ensuring adequate entry to the courts, either by reasonable access to attorneys, or by reasonable access to legal materials, or by any other reasonable means the district court may devise.” (Emphasis ours)

The Bound court said:

“We hold, therefore, that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” (Emphasis ours)

AFFIRMED.

ANSTEAD and LETTS, JJ., concur.


author: LETTS, Judge.

text:
    Dirk-Jan EASTERLING, Appellant, v. Sandra Cardwell EASTERLING, Appellee.
    No. 77-302.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    Rehearing Denied June 5, 1978.
    Harry D. Dennis, Jr., Pompano Beach, for appellant.
    Marie S. Hotaling, Fort Lauderdale, for appellee.
   LETTS, Judge.

This is an appeal by a husband from a Final Judgment of Dissolution, which awarded the wife a one-half interest in a mobile home. We reverse in part.

We are concerned here, with a two year marriage, no children born to the parties and ownership of a mobile home, titled in the name of the husband only and owned by him (subject to mortgage payments) prior to the marriage. The wife has a demonstrated earning capacity, both before and after the marriage, in excess of that enjoyed by the husband and she contributed substantially to the living expenses incurred during coverture, which included payments on the mobile home.

The Final Judgment awarded no periodic alimony, but without any attempt to even depict it as lump sum alimony, placed the ownership of the mobile home “as tenants in common with each of them owning an undivided one-half interest.” This was error. See Storer v. Storer, 353 So.2d 152 (Fla. 3rd DCA 1977); Palmer v. Palmer, 330 So.2d 839 (Fla. 2nd DCA 1976); McCready v. McCready, 301 So.2d 804 (Fla. 4th DCA 1974).

The tenor of all the above cited cases is to the effect that the court “cannot make a property settlement for the parties . [and] has no authority to transfer one spouse’s assets to another.” Palmer, supra, at p. 840.

As to the other point on appeal, we find insufficient evidence to conclude that the trial judge abused his discretion.

Accordingly, that portion of the Final Judgment, awarding a one-half interest in the mobile home is herewith set aside. Title to that mobile home must remain in the husband’s name alone. In all other respects, the Final Judgment is affirmed.

REVERSED IN PART IN ACCORDANCE HEREWITH.

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


text:
    Edward Kelly EAVES, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2201.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 2, 1978.
    Lawrence M. Litus and Joe M. Mitchell, Jr., Melbourne, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, defendant below, appeals his conviction and sentence for involuntary sexual battery. He raises three points on appeal, the following point being meritorious:

Whether the trial court erred in refusing to give appellant’s requested instruction on the lesser included offenses of involuntary sexual battery.

After reviewing carefully the record, briefs and arguments of counsel, it is our opinion that, based upon the facts of this case, the trial judge should have given the lesser included offenses of involuntary sexual battery in his instruction to the jury, i. e., assault, assault with intent to commit involuntary sexual battery, and assault and battery. See State v. Washington, 268 So.2d 901 (Fla.1972); Brown v. State, 206 So.2d 377 (Fla.1968); Wagner v. State, 356 So.2d 867 (Fla. 4th DCA 1978); Allison v. State, 162 So.2d 922 (Fla. 1st DCA 1964).

Accordingly, appellant’s conviction and sentence are reversed and remanded for new trial.

Reversed and remanded for new trial.


text:
    Charles Andrew MATAVA, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-1094.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 9, 1978.
    Flynn & Rubio, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and James H. Greason, Asst. Attys. Gen., Miami, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendant, Charles Andrew Matava, Jr., appeals the judgment of the court finding him guilty of a lewd, lascivious or indecent assault upon a child under fourteen years of age without intent to commit involuntary sexual battery. This offense is set forth in Section 800.04, Florida Statutes (1975).

On this appeal, the defendant presents two points. The first is directed to the denial of a tendered instruction and the second questions the sufficiency of the evidence to support the verdict of the jury. The burden under each of these points is that it was the duty of the State to prove that the assault was committed “without the intent to commit involuntary sexual battery.” Defendant relies upon State v. Sumner, 157 Fla. 371, 26 So.2d 336 (1946); and Bass v. State, 263 So.2d 611 (Fla.4th DCA 1972). Each of these cases construed a prior statute and each held that an information charging the offense must be in the language of the statute and must include the element of absence of intent to commit involuntary sexual battery.

We hold that these cases are not governing and that a defendant may not escape punishment for the offense upon the basis that his mental attitude or intention was actually to commit the higher crime of involuntary sexual battery. The Supreme Court of Florida has given the trial court the initial responsibility in construing the statute in the Standard Jury Instructions. See Instruction 2.07; In re Standard Jury Instructions in Criminal Cases, 327 So.2d 6 (Fla.1976); and In re Standard Jury Instructions in Criminal Cases, 240 So.2d 472 (Fla.1970). Cf. Dorminey v. State, 314 So.2d 134 (Fla.1975); and State v. Bryan, 287 So.2d 73 (Fla.1973). The trial court in this instance met the requirement of this responsibility. This instruction does not require the proof of the negative under the crime for which defendant was convicted and, in this cause, the instruction was given. The judgment and sentence are, thereupon, affirmed.

Affirmed.


text:
    DELAND STATE BANK, a corporation, Appellant, v. BIG MUDDY CORPORATION, a Florida Corporation, Appellee.
    Nos. GG-56 and GG-409.
    District Court of Appeal of Florida, First District.
    May 4, 1978.
    Rehearing Denied June 16, 1978.
    W. C. Hutchison, Jr. of Hutchison & Morris, Sanford, for appellant.
    John L. Graham, Jr. of Graham, Markel & Scott, John R. McDonough of Pitts, Eu-banks, Ross & Rumberger, Orlando, for ap-pellee.
   PER CURIAM.

The judgment of the lower court in Case No. GG-56 is affirmed. The litigation to which the notice of lis pendens referred did not result in a judgment affecting the property described within the notice. DePass v. Chitty, 90 Fla. 77, 105 So. 148 (1925).

As a result of the stipulation agreed to by the parties, in Case No. GG-409, the order denying appellant’s objections to the sale and motion to vacate is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

AFFIRMED in part and REVERSED in part.

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