text:
    James E. SEGAL, Appellant, v. Bernice SEGAL, Appellee.
    No. 76-2170.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Truett & Watkins and Joseph H. Ganz, Miami, for appellant.
    Edward P. Swan and Charnelle H. Summers, Jr., Miami, for appellee.

      Before HENDRY, C. J., and HAVER-FIELD, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   HAVERFIELD, Judge.

Respondent James Segal, appeals those provisions of a dissolution of marriage judgment awarding his former wife (1) exclusive possession of their marital residence, (2)permanent alimony of $275 per month and Blue Cross insurance at a cost of $25 per month, (3) one-half of the proceeds of the cash value of his life insurance, and (4) $1,000 for attorney’s fees.

James first contends that the chancellor erred in awarding his former wife, Bernice, the exclusive possession of the marital residence and denying his prayer for partition and sale of the subject property. We find the point well taken.

The parties became tenants in common upon the entry of the final judgment. See Section 689.15, Florida Statutes (1975). As a general rule tenants in common are entitled to partition as a matter of right. Condrey v. Condrey, 92 So.2d 423 (Fla.1957). However, one of the parties under the terms of a final dissolution of marriage judgment may be awarded exclusive possession of the marital residence (formerly held as tenants by the entireties) if the award takes the form of lump sum alimony or the possession is awarded to the party who has custody of the minor children so as to enforce the other party’s obligation to support and maintain them; or there is a valid agreement with respect to exclusive possession between the parties; or there is a finding of a special equity. See Saviteer v. McAdoo, 310 So.2d 28 (Fla.2d DCA 1975); Watson v. Watson, 324 So.2d 126 (Fla.3d DCA 1975); Church v. Church, 338 So.2d 544 (Fla.3d DCA 1976).

In the instant case there are no minor children, there is no finding of a special equity, there is no agreement and the possession award did not take the form of lump sum alimony.

We next considered the argument that the provision requiring James to cash in his life insurance policies and awarding Bernice V2 the proceeds constitutes reversible error. We agree.

Again, there is no finding of a special equity on the part of Bernice to these policies. Further, such an award is inequitable because of James’ advanced age and ill health and because, in all probability, he would be unable to obtain another life insurance policy. Last, this award had the effect of imposing a partial property settlement upon the parties. The trial court under the circumstances was without authority to effect such a settlement. See Friedman v. Friedman, 320 So.2d 414 (Fla.4th DCA 1975).

We also agree with James that the award of an attorney’s fee was erroneous.

The well established law is that a chancellor may not make an award of attorney’s fees without the introduction of expert testimony or evidence and it is undisputed that no evidence or testimony with regards to the issue of a reasonable attorney’s fee was presented in this case. Ortiz v. Ortiz, 211 So.2d 243 (Fla.3d DCA 1968); Reek v. Reek, 303 So .2d 677 (Fla.4th DCA 1974); Lamar v. Lamar, 323 So.2d 43 (Fla.4th DCA 1975).

Finally, we reviewed James’ contention that Bernice was not entitled to permanent alimony and that the chancellor committed error in requiring him to maintain Bernice’s Blue Cross insurance policy and conclude there has been no abuse of discretion taking into consideration the age of the parties, their state of health, their monthly income and the duration of their marriage. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Those provisions of the final judgment awarding Bernice Segal exclusive possession of the marital residence, $1,000 as a reasonable attorney’s fee, and one-half of the proceeds of the cash value of James Segal’s life insurance policies are hereby reversed. The cause is remanded to the trial court to enter an order granting James Segal’s prayer for partition and sale of the marital residence and to conduct an eviden-tiary hearing on the matter of reasonable attorneys’ fees. In all other respects the judgment is affirmed.

Affirmed in part, reversed in part and remanded with directions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harvey GOODMAN, d/b/a Plaza West Apartments and d/b/a Ebbars Realty Company, Appellant, v. Caroline JARDINE, as Personal Representative of the Estate of Rose Wallach, Deceased, Appellee.
    No. 77-481.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 23, 1978.
    Charles F. Atwood, III, Miami, for appellant.
    Militana, Militana & Militana, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Plaintiff lessor appeals an adverse summary judgment relieving the decedent’s estate from liability for rent payments from the date of decedent’s death.

Plaintiff-appellant, Harvey Goodman, is the owner of the Plaza West Apartments on Miami Beach and the deceased, Rose Wal-lach, entered into a one-year apartment lease agreement commencing November 1, 1975. Wallach died on December 29 and defendant, Caroline Jardine, was appointed personal representative of the estate. No rental payments were made from January-November, 1976 and Goodman filed suit against the estate to recover these payments. Thereafter, he moved for summary judgment in that the only question to be determined was whether or not the subject lease agreement was a personal contract and obligation of Rose Wallach, which obligation became null and void upon her demise. After hearing argument of counsel, the judge determined that the lease was personal and entered summary judgment for Jardine. We affirm.

“The line of demarcation between contracts that are purely personal in nature . and contracts which the personal representative could complete as well as the deceased could have done, on the other hand, is not clearly defined and can only be determined in many instances by an inspection of the facts and circumstances in the particular case.” Frissell v. Nichols, 94 Fla. 403, 410, 114 So. 431, 434 (1927).

After reviewing the facts and circumstances the trial judge determined the lease to be personal in nature and appellant has failed to demonstrate that this determination is erroneous or against the manifest weight of the evidence.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Johnny KITCHEN, Appellee.
    No. 77-636.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 26, 1978.
    Richard E. Gerstein, State’s Atty., and George Volsky, Asst. State’s Atty., and Howard Blumberg, Legal Intern, for appellant.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, the State of Florida, appeals from an order of the trial court dismissing an information filed by the state against appellee, defendant below.

One Felton Green, charged by information with, inter alia armed robbery, supplied the state with the name of appellee as a possible alibi witness, pursuant to Fla.R. Crim.P. 3.200. The state thereupon subpoenaed and deposed appellee concerning the Green alibi. At the time of the deposition, appellee was not a suspect and was only questioned as to the whereabouts of Green on the date of the alleged robbery.

Some time after appellee’s deposition had been taken, the Assistant State Attorney checked into Green’s past and discovered that in a prior case in which Green was charged with robbery, the defense had likewise relied upon the defense of alibi utilizing appellee as an alibi witness. This coincidence raised certain suspicions about ap-pellee and his photograph was subsequently shown to the victim of the robbery in the Green case. The victim identified appellee as the other man who robbed him, along with Green.

On November 17, 1976, an information was filed charging appellee with armed robbery. Appellee moved to dismiss the information claiming transactional immunity pursuant to Section 914.04, Florida Statute (1975). The trial court found that appellee was entitled to transactional immunity and dismissed the information. This appeal follows.

While a number of issues are raised on appeal, we need only consider one, to-wit: whether the trial court erred in granting appellee’s motion to dismiss the information based upon transactional immunity under Section 914.04, Florida Statutes (1975). We hold that it did so err, and reverse.

In order for a witness’ testimony to result in transactional immunity, the witness must be compelled to testify. State v. Newsome, 349 So.2d 771 (Fla. 2d DCA 1977). Sub judlce, the record reveals that appellee voluntarily and without objection testified as to the whereabouts of Green on the night in question. While the subpoena compelled appellee’s presence at the offices of the State Attorney, it did not compel his testimony. Orosz v. State, 334 So.2d 26 (Fla. 1st DCA 1976).

Even assuming that appellee’s mere compulsory appearance was sufficient to meet the compulsion requirement of Section 914.-04, appellee would still not be entitled to transactional immunity in that the testimony he gave at his deposition was not incriminating and in no way constituted a link in the chain of evidence needed to prosecute appellee for the offense for which he was subsequently charged. State ex rel. Mitchell v. Kelly, 71 So.2d 887 (Fla.1954); see also Woodsmall v. State, 334 So.2d 320 (Fla. 1st DCA 1976).

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

Reversed and remanded.

PEARSON, J., dissents.


author: KEHOE, Judge.

text:
    GIBRALTAR FINANCIAL & LEASING, INC., f/k/a G. C. A. Leasing, Inc., Appellant, v. Silvia GONZALEZ, Appellee.
    No. 77-1056.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 26, 1978.
    Friedman & Britton, Miami, and J. T. Haley, Miami, for appellant.

      Phillips & Phillips, Henry W. Ciar, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and KEHOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, appeals from a final judgment entered in its favor contending that the trial court erred by failing to assess damages in accordance with the damage clause of a written lease agreement covering certain dental equipment. We have concluded that the damage clause of the lease agreement is valid and that the court’s refusal to enforce the clause was error.

Appellee was a co-lessee along with her husband on an equipment lease of personal property. The leased property consisted of dental equipment used by her husband in the practice of dentistry. Upon the death of her husband, appellee attempted to sell the doctor’s dental practice or sublease the equipment; these efforts were unsuccessful. Consequently, appellee stopped making payments under the lease and requested appellant to remove the equipment. Appellant recovered possession of and sold the equipment to establish its damages in accordance with the lease agreement.

The lease provided in part as follows: “If LESSOR shall repossess said property, it may lease said property to any other person upon such terms and conditions as the LESSOR shall determine, and it may credit LESSEE to the extent of such rentals so received. In the event the LESSOR shall elect to rerent the property for the account of the LESSEE, it shall notify the LESSEE of such election. If LESSOR elects to take absolute possession of said property for its own account, then it may sell, lease or otherwise dispose of said property to any person or persons upon such terms and conditions as LESSOR shall determine. In either of such events, there shall be due from LESSEE and LESSEE will immediately pay to the LESSOR the difference between the total of rentals to be received from any third person or the purchase price at sale as the case may be and the total unpaid rental provided to be paid herein, plus all costs and expenses of LESSOR in repossessing, releasing, transporting, repairing, selling or otherwise handling said property.”

The trial court entered final judgment for appellant and awarded it $4,131.25 for past due rental payments and $891.56 for personal property taxes due as of the date of the repossession of the equipment. The court also assessed interest in the amount of $263.71. However, the trial court specifically held that appellant was not entitled to damages for prospective rentals due under the lease.

Appellee has not favored us with a brief, but the record indicates that she relied upon Cutler Gate Bldg. Corp. v. United Leasing Corp., 165 So.2d 207 (Fla.3d DCA 1964) and Monsalvatge Co. of Miami, Inc. v. Ryder Leasing, Inc., 151 So.2d 453 (Fla.3d DCA 1963), in urging the trial court to limit appellant’s recovery to the accrued rent due at the time the property was repossessed.

Appellant contends that the case of Chandler Leas. Div., etc. v. Florida-Vanderbilt Dev. Corp., 464 F.2d 267 (5th Cir. 1972), interpreting a similar contract provision, should control.

We agree with appellant’s contention, and have concluded that it should have received damages in the amount of $17,794.22 for appellee’s breach of the contract. This amount consists of $4,131.25 for damages up to the time of the repossession and $13,-843.47 for damages subsequent to the breach of the contract in accordance with its provisions. Therefore, the final judgment appealed is affirmed, but the amount of the damages awarded is modified as set forth above.

Affirmed as modified.


text:
    STATE of Florida, Appellant, v. Calzena WHITEHEAD, Appellee.
    No. 77-1559.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Richard E. Gerstein, State’s Atty. and George Volsky, Asst. State’s Atty., for appellant.
    Michael P. Gale, Miami, for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Calzena Whitehead was charged by information with manslaughter. She filed a sworn motion to dismiss under Fla.R. Crim.P. 3.190(c)(4), alleging that there were no material disputed facts and that the undisputed facts did not establish a prima facie case of guilt against her. The State, under Fla.R.Crim.P. 3.190(d), filed a sworn traverse and demurrer in which it specifically denied material allegations contained in the motion to dismiss. The trial court heard argument on defendant’s motion to dismiss and the State’s traverse and demurrer and granted the motion to dismiss, whereupon the State took this appeal challenging the trial court’s order of dismissal.

Generally, upon the filing of a traverse or demurrer to a motion to dismiss, Fla.R.Crim.P. 3.190(d) is controlling:

“(d) Traverse or Demurrer. The State may traverse or demur to a motion to dismiss which alleges factual matters. . A motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which denies under oath a material fact alleged in the motion to dismiss.” (emphasis added)

We hold that the trial court committed reversible error in granting the defendant’s sworn motion to dismiss in the face of the State’s traverse which specifically denied material facts alleged by defendant. Accordingly, the cause is

Reversed and remanded with directions to reinstate the information.


author: CARROLL, CHARLES (Ret.) Associate Judge. —, NATHAN, Judge,

text:
    Dennis KELLERMAN a/k/a Natividad Barron, Appellant, v. The STATE of Florida, Appellee.
    No. 77-436.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CARROLL, CHARLES (Ret.) Associate Judge. —,

This appeal is by the defendant from conviction of involuntary sexual battery by threatening to use force of violence likely to cause serious personal injury.

Citing and relying on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976), appellant contends his conviction should be reversed because of the attempt of the prosecutor to impeach his exculpatory story, related in his testimony at trial, on cross-examination by questioning him as to whether he had related that story to the police officers after arrest and being warned of his Miranda rights. In this case there was no objection thereto, as there was in Doyle, also it was disclosed that the defendant had talked to the officers after arrest, relating other matters. In the circumstances of this case the decisions relied on by the appellant are not such as to prompt reversal. See: Clark v. State, 336 So.2d 468 (Fla. 2nd DCA 1976).

Judgment affirmed.

PEARSON, J., dissents.

NATHAN, Judge,

concurring' specially.

I agree that the judgment below should be affirmed, but wish to add that, in my opinion, the primary basis for affirmance is that this case simply does not present an issue of deprivation of fifth and fourteenth amendment rights. The defendant in this case did not invoke his right to remain silent. He freely conversed with the police officer who brought him to the area in which the victim was waiting for identification. This fact was brought out by the defense in cross examination of the officer.

When the prosecution cross examined defendant, the objective was to show that the story defendant told at trial was different from his earlier statements. The effect of this cross examination was not to deprive defendant of any constitutional right. Cf. Morgan v. State, Fla. 3d DCA, opinion filed December 6, 1977. (The crucial aspect of the challenged testimony was that it was not elicited to show defendant’s assertion of her right to remain silent.)


author: ANSTEAD, Judge.

text:
    Mary Jane RATHBURN, Appellant, v. STATE of Florida, Appellee.
    No. 76-2199.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Richard L. Jorandby, Public Defender, Marc R. Goldstein, Asst. Public Defender, and Frank B. Kessler, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from an order revoking appellant’s probation. The only violation charged was that appellant had missed one of a series of scheduled meetings in a rehabilitation program in which appellant participated at the direction of her probation supervisor. We reverse.

The appellant was assigned to a program which required her attendance each day from noon until early evening and some nights. The director of the program testified that appellant attended the program on a Monday afternoon until close to 6:00 p. m., at which time he instructed her to return at 6:30 p. m. for another meeting. The appellant testified that she was told to return at 6:30 p. m., -but that in written materials given her it was stated that the Monday evening meeting was a parents’ meeting. Accordingly, shortly after 6:00 p. m., she telephoned her parents who advised her that they could not attend the meeting. Appellant then called the director’s office and left a message with the answering service that neither she or her parents would be at the meeting. She then went home and spent the evening watching television with her parents.

Both her mother and the director confirmed the appellant’s testimony about the phone calls she made. The director also confirmed the fact that a parents’ meeting was scheduled for Monday evening, but he stated that the parents’ meeting was at 7:30 p. m. and he had made it clear to appellant that she was to return at 6:30 p. m. The next day appellant returned for the daytime session of the program and when confronted with her absence from the the 6:30 p. m. meeting explained that she had misunderstood the instructions and that she thought that since her parents could not attend that she did not have to attend. The director advised her that he thought she had simply used her parents’ absence as an excuse but that “maybe somehow or another there was a misunderstanding.” He also testified that he certainly would not terminate her from the program because of the incident and he explained:

We do not terminate because there are misunderstandings or even because there are occasionally games. That is part of the rehabilitative process.

At the conclusion of the hearing the prosecution joined with the appellant’s counsel in urging the trial court not to revoke appellant’s probation. The trial court revoked the appellant’s probation and sentenced her to two (2) years in prison.

A probation revocation hearing is not a criminal trial. At such a hearing the trial judge is not required to follow the strict rules of evidence. The trial court may resolve issues of fact at such a hearing by the greater weight of the evidence. However, a violation of probation, to support revocation, must be of a substantial nature in considering all of the terms of probation imposed. Wheeler v. State, 344 So.2d 630 (Fla. 2d DCA 1977); Bienz v. State, 343 So.2d 913 (Fla. 4th DCA 1977); Freeman v. State, 329 So.2d 413 (Fla. 4th DCA 1976); Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974). The record here does not reveal a substantial violation of probation. There was no criminal conduct involved. The program director conceded that the incident may have resulted from a misunderstanding and the appellant continued in the program. Most importantly, the director indicated that appellant should continue in the program and that the incident, whether intentional or negligent, was a normal part of the rehabilitative process facilitated by the program. There is some indication in the record of the appellant’s past record of absenteeism in another program. However, that conduct was not charged as a violation here; and we cannot consider whether such conduct coupled with the incident involved here would constitute a substantial violation. The judgment of the trial court is hereby reversed with directions that the appellant’s probation be reinstated.

LETTS, J., and DAKAN, STEPHEN LEE, Associate Judge, concur.


author: LETTS, Judge.

text:
    William F. FAHEY, Appellant, v. Leo Francis RAFTERY, Jr., Metalloy Foundry Company, a Foreign Corporation, and Detroit Automobile Inter-Insurance Exchange, Appellees.
    No. 76-2239.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.

      Ronald E. Kay, Fort Lauderdale, for appellant.
    M. Jerome Elmore and Robert D. McIntosh of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees, Metalloy Foundry Company and Detroit Inter-Insurance Exchange.
   LETTS, Judge.

This is an appeal from a summary judgment denying liability under the “Dangerous Instrumentality” doctrine. We affirm.

The appellant is an employee of the valet parking lot concession at the Mai Kai Restaurant in Fort Lauderdale. The appellee is the owner of the automobile given into the charge of a co-employee at the front door thereof. While on the way to park the auto, said co-worker managed to strike and injure his fellow employee who now seeks recompense for his injuries from the owner who permitted his car to be driven away, rather than park it himself.

In Fry v. Robinson Printers, Inc., 155 So.2d 645 (Fla. 2 DCA 1963), it was held that an employee of a gas station could not recover from the owner of a car which struck him while being driven by another employee on the premises. Explaining this holding, the court stated:

. we find nothing in the decisions applying the “dangerous instrumentality doctrine” to justify a holding that where an owner leaves his automobile at a service station for repairs or servicing he is liable solely by reason of ownership for the negligent operation thereof by one employee resulting in injury to another employee of the service station, both being engaged in performing duties in connection with servicing or repairing the automobile at the time of the injury. Id. at 646. (Emphasis supplied).

The Florida Supreme Court appeared to agree in rendering its decision in Florida Power and Light Company v. Price, 170 So.2d 293 (Fla.1964). True, the circumstances presented in Price differed somewhat, but the court analogizing, pointed out that:

An owner of an automobile who entrusts it to his “independent contractor” is not liable as a matter of law to the contractor or to the latter’s employee for injuries received by either of them arising from the negligent operation of the automobile by either of them . . . . Id. at 298.

The appellant argues that when an owner leaves his car for service, he gives no concomitant permission to drive it whereas in the instant case he specifically consented to it being driven, which consent precluded the granting of a summary judgment. We do not accept the distinction. First of all, we take judicial notice of the fact that any car left at a service station, or automobile dealership, will be normally and expectedly driven on or about the premises. Moreover, although not essential to this decision, we recognize that such entrusting of one’s car for service or repair, presupposes that it will also be road tested and we are of the opinion that such road testing should not normally result in liability to the owner simply because he is the owner. We recognize that this latter comment on road testing may be thought to conflict with Jordan v. Kelson, 299 So.2d 109 (Fla. 4 DCA 1974). However, in Kelson, the service station operator was gratuitously returning the auto to the owner with the latter’s consent and his operation thereof, on the public highway, was no part of the independent service contracted for.

By contrast, the parking of the car in the instant case was indeed the independent service contracted for, nor did this accident occur on the public highway. In conclusion, we can do no better than repeat the language of Patrick v. Faircloth Buick, 185 So.2d 522, 524, (Fla. 2 DCA 1966):

The dangerous instrumentality doctrine as applied to automobiles in Florida has always been grounded exclusively upon respondeat superior.. Weber v. Porco, Fla.1958,100 So.2d 146. The complaint in the present instance affirmatively shows that the automobile was not being operated by an agent or servant of the defendant, owner, but on the contrary that it was being operated by a person under the direction and control of the (valet parking lot concession). We hold therefore that the complaint failed to state a cause of action against the owner.

AFFIRMED.

ANSTEAD, J., and STEPHEN LEE DAK AN, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    David GILMAN and Gail Gilman, Appellants, v. CHALFONTE CONDOMINIUM APARTMENT ASSOCIATION, INC., etc., and Chalfonte Development Corporation, et al., Appellees.
    Nos. 76-2409, 76-2668.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.

      Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellants.
    Jeffrey E. Streitfeld and Mark B. Schorr, of Becker, Poliakoff & Sachs, P. A., Fort Lauderdale, for appellee-Chalfonte Condominium Apartment Ass’n.
   DOWNEY, Judge.

Chalfonte Condominium Apartment Association filed its complaint as a class action against Chalfonte Development Corporation, the developer of the condominium property, David D. Gilman and Gail E. Gil-man, as lessors of the property subject to a recreational lease, Sidney T. Bogardus, Thomas P. Coogan, George H. Brown, Jr., Clement H. Darby and George G. Loveless, as Trustees of Builders Investment Group, the holder of a mortgage on the recreational lease property, and Emile Van Den Bosch, a judgment creditor. The complaint (a) seeks damages against the developer for various breaches of contract, and (b) seeks declaratory injunctive and reformative relief regarding the recreational lease. Upon the filing of the complaint, the condominium association obtained an ex parte order dated October 13, 1976, authorizing it to deposit the sum of $71,190.00 into the registry of the court, subject to the right of the defendants in the case to move for withdrawal of said sums as prescribed by law. The Gilmans moved to set aside the October 13th order on the grounds, among others, that (a) the appellants had not been served with process, (b) that the order was entered ex parte and (c) that the statute relied upon (Section 711.63(4), Florida Statutes (1975)) is unconstitutional. The trial court denied said motion by order dated November 18, 1976, but specifically provided therein that it had not passed upon the constitutionality of Section 711.63(4). Additionally, the appellants’ motion was denied “without prejudice to their raising constitutional claims at an appropriate time in this litigation.”

Appellants timely perfected interlocutory appeals from the two mentioned orders, which appeals, have been consolidated.

Appellants first complain that the order of October 13th was entered ex parte and thus was error. However, we fail to find any error demonstrated with regard to the entry of said order, albeit ex parte, since Section 711.63(4), Florida Statutes (1975), requires unit owners initiating action of the type involved here to pay into the registry of the court any rent which has or may accrue during the pendency of the litigation. The penalty for failure to do so is a waiver of the unit owner’s defenses. It would appear that the only reason for an order is that the Clerk of the Circuit Court will not accept money in the registry of the court without a court order.

With regard to the order of November 18th, the trial court refused to vacate the prior order authorizing payment into the registry of the court; we find no error demonstrated in that regard. The trial court specifically stated in the order of November 18th that it was not ruling upon the constitutional question raised by appellants’ motion, but that it would do so at an appropriate time. Accordingly, the points raised by appellants (all of which are based on the unconstitutionality of Section 711.63(4), Florida Statutes (1975)) are directed to questions which are presently pending before the trial court but upon which the trial court has not yet ruled.

In view of the foregoing, we find the orders appealed from should be affirmed. However, on remand the trial court should proceed, as soon as possible, to a determination of the questions raised by appellants’ attack on the constitutionality of Section 711.63(4), Florida Statutes (1975). In addition, of course, if appellants choose to move for a disbursement of all or any part of the funds in the registry of the court, then, pursuant to Section 711.63(4), the trial court should hold an evidentiary hearing on such a motion.

AFFIRMED.

ANSTEAD and LETTS, JJ., concur.


text:
    Fred S. SCHMUNK, Jr., Municipal Court Judge, and City of Oakland Park, Florida, Appellants, v. STATE of Florida ex rel. Ray SANDSTROM, Appellee.
    No. 76-2415.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Lewis D. Haines, II, City Atty. for Oakland Park, Fort Lauderdale, and Edward J. Williams, Asst. City Atty., for appellants.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   PER CURIAM.

The points on appeal can be consolidated into a single argument that the trial court erred in considering a petition for habeas corpus and in issuing the writ. We agree.

Appellee in this case was fined for careless driving. At no time was he detained by the trial judge or any other governmental authority. For this reason, review by habeas corpus was improper because neither the pre, nor post, judgment proceedings, or directions, detained the appellee. Pennekamp v. Circuit Court of the Eleventh Judicial Circuit In and For Dade County, 155 Fla. 589, 21 So.2d 41 (1945). Moreover, where a person is not in custody, the court does not have jurisdiction to entertain a petition for writ of habeas corpus. Sandstrom v. Kolski, 305 So.2d 75 (Fla. 3 DCA 1974). Accordingly, the final order and judgment in habeas corpus is reversed and this cause remanded to the trial court for proper proceeding.

REVERSED AND REMANDED.

ANSTEAD and LETTS, JJ., and STEPHEN LEE DAKAN, Associate Judge, concur.


text:
    FAIRVILLA TWIN CINEMA II, Pat Hall, William J. Murphy, Appellants, v. STATE of Florida ex rel. Robert EAGAN, State Attorney for the Ninth Judicial Circuit of Florida, Appellee.
    No. 76-2439.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Bruce L. Randall, Fort Lauderdale, Edward J. Hanlon, Jr., Orlando, and Robert E. Smith, Atlanta, Ga., for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

The State Attorney for the Ninth Judicial Circuit filed a sworn Complaint for Injunction and Temporary Restraining Order against Appellants, alleging that appellants were exhibiting three obscene films entitled, “Deep Throat,” “Devil in Miss Jones” and “Glady’s [sic] and Her All Girl Band,” in violation of Section 847.011, Florida Statutes (1975). The complaint further alleged that all three films depicted numerous patently offensive sexual acts between male and female which the complaint describes in explicit detail.

Based upon the State’s complaint, on October 27, 1976, the trial court entered a temporary restraining order pursuant to Section 847.011(8)(b), Florida Statutes (1975), enjoining appellants from showing the described films until further order of the court. The restraining order also provided for a hearing before the issuing Judge the following day, October 28, 1976, at 10:00 a. m. The restraining order and a subpoena duces tecum ordering appellants to produce the three films in question and a projector at the hearing the following day were served upon appellants on October 27, 1976. However, appellants did not appear at the hearing held October 28,1976. After the October 28,1976, hearing the trial court issued a capias for the seizure of the three films and projector.

Appellants contend the trial court committed error in issuing the restraining order of October 27, 1976, and the capias of October 28, 1976, because a) the complaint for injunction had insufficient allegations to warrant the issuance of a temporary injunction without notice and b) the issuance of the temporary injunction and the capias, both without notice and without prior viewing by the trial judge, constituted impermissible prior restraint in violation of the First Amendment to the Constitution of the United States.

It appears to be appellant’s contention that no injunction can issue to restrain the exhibition of allegedly obscene material without a prior view-hearing by the judicial officer issuing the injunction. However, this contention was rejected by this court in South Florida Theaters, Inc. v. State ex rel. Mounts, 224 So.2d 706 (Fla. 4th DCA 1969). It is necessary only that the sworn complaint describing the alleged obscenity personally observed by the affiant provide a sufficient basis upon which the judicial officer issuing the restraining order can make an independent determination that the material is obscene. Furthermore, the South Florida case points out that the statutory provision requiring a prompt adversary trial (within one day after issue is joined and a decision within two days of trial) adequately protect a defendant’s rights.

With regard to the issuance of the capias and seizure of the films it should be noted that the capias issued after the scheduled hearing before the trial judge on October 28, 1976. Appellants, though notified, did not attend that hearing. But whether appellants were there or not, that hearing satisfies the constitutional requirement that a judicial officer make a judicial determination of obscenity before any seizure of the alleged obscene material takes place. Ellwest Sterro Theaters, Inc. v. Nichols, 403 F.Supp. 857 (M.D.Fla.1975). In Ellwest a three judge panel held that Section 847.011, Florida Statutes, is not unconstitutional because it allows seizure of materials alleged to be obscene without an adversary hearing prior to seizure and without a judicial inspection of the materials. The cases upon which appellants rely in their attack upon the issuance of the capias generally has some summary procedure lacking judicial determination prior to the issuance of the capias.

Finally, appellants contend that the trial court was without jurisdiction to hold the hearing of October 28, 1976, and issue the capias because appellants had removed the case to the Federal Court. However, there is no support for that contention contained in this record.

Accordingly, the orders appealed, from are affirmed.

AFFIRMED.

ANSTEAD and LETTS, JJ., concur.


text:
    LUV THEATRE et al., Appellants, v. STATE of Florida ex rel. Robert EAGAN, Appellee.
    Nos. 76-2436 to 76-2438.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.

      Bruce L. Randall, Port Lauderdale, Edward J. Hanlon, Jr., Orlando, and Robert E. Smith, Atlanta, Ga., for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Affirmed upon authority of Fairvilla Cinema v. State, 353 So.2d 908, Opinion filed December 28, 1977.

DOWNEY, ANSTEAD and LETTS, JJ., concur.


text:
    NORTHERN ASSURANCE COMPANY OF NORTH AMERICA, Appellant, v. WILLIAM D. ADEIMY, INC., of West Palm Beach and D. R. Mead & Company, Appellees.
    No. 77-138.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellant.
    Thomas J. Yeager, of Nason, Gildan & Yeager, West Palm Beach, for appellee, William D. Adeimy, Inc.
    Mark R. Boyd of Gerald M. Walsh & Associates, Fort Lauderdale, for appellee, D. R. Mead & Co.
   PER CURIAM.

Upon consideration of the record and briefs of the respective parties, we determine a genuine issue as to a material fact exists as to whether or not the loss to the insured came within the terms of coverage of the binder for insurance. Accordingly, the summary final judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.

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


text:
    Floyd E. STAGE, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, and the Industrial Relations Commission, Respondents.
    No. 77-741.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Leon B. Cheek, III, Altamonte Springs, for petitioner.
    Kenneth H. Hart, Jr., Gen. Counsel, Tallahassee, and James R. Parks, Miami, for respondents Florida Dept, of Commerce.
   PER CURIAM.

Petition denied.

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


author: SCHEB, Judge.

text:
    Willie L. COOK, Jr., Appellant, v. STATE of Florida, Appellee. James Clinton PETTIS, Appellant, v. STATE of Florida, Appellee. Timothy BLACK, Appellant, v. STATE of Florida, Appellee. Tweelyn Ray BROWN, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-706, 75-668, 75-704 and 75-705.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Morris W. Milton, of Williams & Milton, St. Petersburg, for appellant Cook.

      Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellants Pettis, Black and Brown.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellants Pettis, Black, Brown, and Cook were indicted for conspiracy to commit sexual battery and sexual battery. After a joint trial a jury found all appellants guilty on both counts. The trial court sentenced each to fifteen years imprisonment on the conspiracy charge. Pettis, Black, and Cook were each sentenced to thirty years on the sexual battery conviction, to run concurrently with their conspiracy sentences. Brown was sentenced to ninety-nine years for his conviction of sexual battery, to run consecutively to his conspiracy sentence. After their motions for new trial were denied, these appeals ensued and have been consolidated for argument before this court.

We focus on appellants’ contention that they were denied their sixth amendment right to confront their accusers when incriminating statements of three of the code-fendants were introduced at their joint trial where no appellant testified. We hold that if such an error did occur it was harmless beyond a reasonable doubt, because there was overwhelming evidence of each appellant’s guilt.

As previously mentioned, appellants did not testify or present any evidence at their trial. The state called the victim, a 23 year-old white female, who testified that on the night of December 3,1974, she had gone driving with her estranged husband so that they might talk over their marital problems. After riding around for several hours, she and her husband had sexual intercourse in the car. At the victim’s request, her husband dropped her off at a Lakeland shopping center some distance from her home at approximately 10:30 p. m.

As she was walking home through downtown about midnight, a car with five black males stopped and offered her a ride. She refused and asked them to leave her alone. They continued to follow her, so she ran and attempted to hide from them. This proved unsuccessful, as one of the men exited the car and captured her. She was then forced into the car where she was abused and threatened by her captors, who drove her to a secluded, wooded area. There she was sexually assaulted by four of the five men. Later she was released in the area of her home after being warned that her life would be in danger should she divulge the incident. As soon as she arrived home she told her family what happened. Her stepfather notified the Polk County Sheriff’s Department. Appellants were subsequently apprehended.

After their arrests, appellants Brown, Black, and Pettis each gave incriminating statements to the police. Before trial defense counsel for each appellant moved for severance because they apprehended the prejudicial effect of these statements against their clients. Rather than allow the cases to be severed, the state chose to delete any reference to the other appellants from each of the codefendants’ statements. See Pla.R.Crim.P. 3.152(b)(2).

In edited form the statements were introduced at trial over defense counsel’s objection. In Black’s statement he claimed the victim had accepted a ride, and thereafter consented to the acts of sexual intercourse. Brown, on the other hand, claimed in his statement that he had parted company with the others prior to the episode. Pettis admitted by his statement that he had been with the others and that he had sexual intercourse with the victim; however, he claimed he had nothing to do with abducting her initially, and had not caused her any injury. Later in the statement, Pettis acknowledged that the victim had been sexually assaulted and was in fear of her life on the night of the episode.

Before being read to the jury, each of these conflicting statements was edited extensively through a cooperative effort of the trial judge, the state attorney, and reluctantly by defense counsel in an effort to delete any direct references to the code-fendants. As each statement was introduced, the trial judge cautioned the jury that the particular statement was to be received in evidence only against the appellant who had given the statement.

While all direct references to the other appellants were excised, the statement by Pettis made references to “you and these four subjects,” the “four of us,” “they,” “the group,” “them,” etc. Black, Brown, and Cook contend that even though the trial court in good faith attempted to eliminate all references to them from the Pettis statement, this attempt was unsuccessful. Black and Cook argue that Pettis’ statement refuted their defense of consent. Brown argues that his defense of not being present when the offense occurred was also refuted by the Pettis statement. Finally, Pettis claims the trial court edited his statement too extensively, i. e., by removing all prejudicial references to the remaining co-defendants the jury was not in a position to evaluate the full context of his statement. This, Pettis says, resulted from the necessity to transcribe his tape-recorded statement which thereby eliminated his voice demean- or.

While it is true that the Pettis statement was read from a copy transcribed from his original tape recording, omitting references to others, no contention is made that his admissions were misrepresented. Nor do Black’s statement to the effect that the victim consented to acts of sexual intercourse and Brown’s statement that he left the group prior to the alleged offense prejudice Pettis, as these statements do not conflict with Pettis’ statement; therefore, appellant Pettis has no valid complaint against the admission of his own statement.

The challenges by appellants Black, Brown, and Cook pose more serious problems. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the United States Supreme Court held that a defendant’s right to confront his accusers is violated when a codefendant’s confession, which incriminates the defendant, is admitted and the codefendant chooses not to testify. Bruton further held that a jury instruction to the effect that the codefend-ant’s confession must be disregarded in determining the defendant’s guilt or innocence is ineffective and cannot overcome the prejudicial effect of the incriminating statement on the jury.

Florida R.Crim.P. 3.152 was promulgated to cope with the Bruton problem. The rule gives the state three options when the trial court determines that a defendant’s statement is not admissible against a codefend-ant. The entire procedure is set out in subsection (b)(2) of the rule:

(b) Severance of defendants.
* * * * * *
(2) If a defendant moves for a severance of defendants on the ground that an oral or written statement of a co-defendant makes reference to him but is not admissible against him, the court shall determine whether the State will offer evidence of the statement at the trial. If the State intends to offer the statement in evidence, the court shall order the State to submit its evidence of such statement for consideration by the court and counsel for defendants and if the court determines that such statement is not admissible against the moving defendant, it shall require the State to elect one of the following courses:
(i) a joint trial at which evidence of the statement will not be admitted;
(ii) a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of such evidence with deletions will not prejudice the moving defendant; or
(iii) severance of the moving defendant.

As previously mentioned, the state here proceeded under (ii). When this method is utilized, questions sometimes arise as to whether the expurgation was sufficient to remove the prejudicial taint condemned in Bruton.

Under the circumstances similar to those in this case, the Supreme Court of Arizona found a Bruton violation and reversed a defendant’s conviction of rape. State v. Williams, 27 Ariz.App. 279, 554 P.2d 646 (1976). There the defendant had made a statement to the police that the victim had willingly had intercourse with him and nine other men. The codefendant also made a statement to the effect that the victim had consented to having intercourse with him, but was forced by the others. Both statements were introduced at their joint trial. The court, in reversing, said: “So long as the jury is highly likely to infer that the defendant is a nameless individual incriminated by the statement, the defendant’s rights are nevertheless violated.” 554 P.2d at 654 (citations omitted).

Several federal circuits, however, have not found a Bruton violation under analogous circumstances. In United States v. Wingate, 520 F.2d 309 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976), the defendant and code-fendant were convicted of conspiracy to distribute heroin. The defendant appealed, arguing that even though the codefendant’s statement did not mention him directly, it was obvious from other testimony that the “man” referred to in the statement was him. The court said: “[A] defendant’s statement is admissible at a joint trial, with cautionary instructions, even though other evidence in the case indicates that an unmentioned co-defendant was also involved in the activities described in the statement.” 520 F.2d at 314 (citations omitted). See also United States ex rel. Nelson v. Follette, 430 F.2d 1055 (2d Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 899, 27 L.Ed.2d 818 (1971), and United States v. Blassick, 422 F.2d 652 (7th Cir. 1970), where similar reasoning was utilized.

We see some inconsistency in the reasoning used by the various courts in analyzing Bruton problems. The Supreme Court of Arizona found a Bruton violation even though the defendant was incriminated only by his codefendant’s statement when viewed in conjunction with the other testimony at their trial. On the other hand, the Second Circuit opined that the code-fendant’s statement must incriminate the defendant directly, and that it is not a Bruton violation where the codefendant’s statement incriminates the defendant only when considered in light of the testimony of other witnesses. We feel the proper standard is the one espoused in Williams; i. e., if the jury was “highly likely” to determine from a codefendant’s statement that the defendant was the nameless individual incriminated by the statement, a Bruton violation has occurred, even if the inference drawn from the codefendant's statement is incriminating only when considered in light of other evidence offered at trial. Assuming, therefore, that a Bruton violation did occur in this case, we do not find it necessary to reverse the convictions because of the overwhelming evidence against each appellant.

A year after the Supreme Court decided Bruton, the Court in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), was faced with a situation where confessions by codefendants had inculpated the appellant. Appellant, a white man, was on trial with three black men, and the black codefendants’ incriminating statements mentioning a “white guy” were introduced at trial. The court assumed this to be a Bruton violation. Even so, the conviction was affirmed because the error was harmless. Justice Douglas, speaking for the majority, held that the harmless error doctrine could apply to a Bruton situation if the admission of the inculpatory statement was harmless beyond a reasonable doubt. In order to determine if the error was harmless, Justice Douglas said, “Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the two confessions on the minds of an average jury.” 395 U.S. at 254, 89 S.Ct. at 1728.

In Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), the Supreme Court once more applied the harmless error doctrine to a Bruton violation. Schneble and his codefendant were jointly tried and convicted of murder in Florida. Our supreme court upheld Schneble’s conviction, and the United States Supreme Court granted certiorari. The majority, speaking through Justice Rehnquist, was of the opinion that a Bruton violation had probably occurred when the codefendant’s confession had been admitted. The court concluded, however, the error was harmless beyond a reasonable doubt in view of the overwhelming evidence of guilt as manifested by the defendant’s own confession, which completely comported with the objective evidence, and the comparatively insignificant effect of the codefendant’s admission. A strong dissent by Justice Marshall argued that the evidence of guilt was far from overwhelming in that Schneble’s confession, upon which the majority depended, was given under circumstances that cast doubt upon its voluntariness.

This court has also applied the harmless error doctrine to uphold a conviction in a case where there had been a Bruton violation. In Horton v. State, 285 So.2d 418 (Fla. 2d DCA 1973), on rehearing the court re-examined its earlier reversal of a defendant’s rape conviction, and in light of the harmless error doctrine of Harrington affirmed the conviction. See also Singleton v. State, 303 So.2d 420 (Fla. 2d DCA 1974); Thompson v. State, 300 So.2d 301 (Fla. 2d DCA 1974). We have, however, only recently reversed a criminal conviction because of a Bruton violation. Russell v. State, 349 So.2d 1224 (Fla. 2d DCA 1977).

Since we believe the harmless error doctrine is applicable here, it is, we feel, incumbent upon us to explicate the evidentiary basis of appellants’ convictions. As we have noted, the victim stated that on the night of the incident she was walking through downtown Lakeland when the black Eldorado Cadillac in which the four appellants and a fifth black male were riding first approached her. She said that they offered her a ride but she asked to be left alone. The car pulled away promptly but soon came upon her again. When she noticed this, she removed her shoes and ran, but was unable to elude the car. She claimed that as the vehicle drew near, appellant Brown exited and ran her down. While being dragged into the vehicle she dropped one of her shoes which was later recovered from the area. She testified that after being forced into the car she attempted to open the door as the vehicle slowed to round the corner, but the driver sped up and frustrated her attempts to escape. She further stated that Brown slapped and choked her, forced her to drink some wine, and at one point picked up a closed pocket knife and asked the others in the car if it would be necessary for • him to cut her tongue out. Brown then ripped open her jacket and blouse, tearing off some buttons, whereupon the men began to grope over her body. When the car arrived at a secluded rural area the victim was ordered out. As she exited the vehicle she took the keys from the ignition and threw them away while the men were not looking.

The victim testified that four of the five men forced her to submit to sexual intercourse. While Pettis was having relations with her, she managed to extract his wallet from his trousers and to hide it in the grass. At one point she was able to get up and run, but she fell into a ditch and was recaptured by one of the men.

The victim also testified that when the men discovered that she had thrown the car keys away, they became quite perturbed. Brown threatened to “bust open” her head with their wine bottle. It was then decided that Brown and Cook would go for assistance while the others would stay there with her. While Brown and Cook were away Pettis and Black had intercourse with her a second time. Sometime during these events the victim hid her underpants under the car seat of the Eldorado. Appellants Brown and Cook later returned in a Chevrolet Nova, accompanied by a truck with a towing device.

The victim testified that the four appellants drove her to the vicinity of her home in the Nova. They released her there at approximately 4:00 a. m., after warning her that they would come back and get her should she tell anyone what had happened. On arriving home she reported the incident to her parents who took her directly to the emergency room at Lakeland General Hospital where a physician confirmed her bruises, abrasions, and the presence of spermatozoa in her vaginal secretions. Her stepfather then contacted the Polk County Sheriff’s office.

Later that morning the victim took her stepfather and two law enforcement officers to the scene of the incident. There the officers recovered Pettis’ wallet and the wine bottle apparently used to threaten the victim. While the scene was being inspected a Nova, like the one the victim claimed she had been taken home in, came by. The officers chased the vehicle, but it got away.

The victim’s stepfather also testified. He said that on the night of the incident his stepdaughter came home and told him that she had “been raped and beaten by five Negroes.” He also confirmed that Pettis’ billfold and the wine bottle were found at the scene the next morning, and that he had seen the Nova vehicle driving nearby.

A female friend of appellants testified and was able to place the four appellants and a fifth black male in the Eldorado Cadillac shortly before midnight riding in the area just as testified to by the victim. This witness identified the vehicle and appellant Cook as its owner.

Deputy Lang, an experienced officer of the Polk County Sheriff’s Department, testified that he found a wine bottle at the scene of the incident similar to the one the victim claimed Brown had threatened her with. Even more incriminating was his testimony as to discovery of Pettis’ wallet just where the victim had told him beforehand it would be. This officer also confirmed that he had seen the Nova and pursued it. Further, he verified that Cook and his father were owners of the Eldorado and that a consensual search of it had produced the victim’s underpants, belt, blouse buttons, and hairs, as well as a bottle cap matching the wine bottle found at the scene.

Deputy Markham testified that he had seen the blue Nova shortly after it had eluded Deputy Lang. Markham followed it to a house. The two occupants got out of the car and entered the house. As he and another officer approached the house, the two men fled out the back door. The officers captured one of the men, appellant Cook.

An F.B.I. fingerprint expert identified both Cook and Brown’s fingerprints on the Eldorado vehicle. A firearms and tool marks identification expert identified the bottle cap found in the car as having been originally joined to a wine bottle of the same type as that found at the scene. A crime laboratory chemist testified that the buttons remaining on the victim’s jacket appeared to be the same as the buttons found in the Eldorado. The chemist also opined that the hairs found in the car were similar in all respects to the victim’s hair.

The owner of the truck used to tow the Eldorado also testified. He said that late one night in December appellant Brown came and asked him to tow a car. The man agreed to help because Brown had done him a favor in the past. He followed a blue Nova in which Brown and his companion were riding to where the Eldorado was located. He then towed the Eldorado away as he was directed, and did not remember seeing the victim.

Despite rigorous cross-examination the victim’s highly detailed testimony remained consistent about the events on the night of the incident. Her descriptions, identifications, and testimony about the events were corroborated by other witness’ testimony and by tangible evidence. There was overwhelming evidence of each appellant’s guilt.

Brown was positively identified by the victim, and his fingerprints were found in the Eldorado. The man who towed the Eldorado testified that Brown had come to his house and . asked him to tow a car. Brown admitted in his own statement that he was with the other appellants on the night of the incident, though he claimed that he parted company with them before they picked up the victim.

Cook w'as also positively identified by the victim. He was the owner of the Eldorado, and his fingerprints were found in it. He was seen in the blue Nova and was apprehended when he attempted to flee.

Black admitted in his statement that he had sexual intercourse with the victim, though he claimed it was consensual. He was apprehended along with appellant Brown in Ft. Pierce, Florida approximately a week after the incident.

As mentioned previously Pettis has no standing to contest his own statement, and he was not prejudiced by the two other statements.

From our careful review of the record we conclude that the introduction of the challenged statements of Brown, Black, and Pettis was harmless beyond a reasonable doubt. True, there was an intimation to the jury that appellants as a group acted together. Yet, the victim’s detailed and unimpeached testimony was corroborated by testimonial and tangible evidence so as to provide overwhelming evidence of guilt of each appellant. If, therefore, the court committed error in failing to grant the severance as requested or in admitting statements of the appellants at their joint trial, it was harmless.

We find no merit in appellants’ argument that the trial judge erred in failing to direct a verdict of not guilty on the conspiracy and sexual battery charges. Likewise, we find no error in any of the other points raised by appellants. Accordingly, the judgment and sentence of each appellant is hereby affirmed.

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

      . Defense counsel also moved for a change of venue from Polk County which was granted.

      . See also Serio v. United States, 131 U.S.App. D.C. 38, 401 F.2d 989 (1968), in which a code-fendant’s statement contained incriminating references to “another man.” As it was obvious from the circumstances that this “other man” was the defendant, his conviction for altering postal money orders was reversed.

      . We can readily conceive of some nonidentify-ing references being made in a codefendant’s statement that would not be a Bruton violation. For example, where the court admits a statement of a codefendant which merely makes casual or isolated references to others being involved without detailing their actions, it would be improbable that such innocuous references would be “highly likely” to incriminate another codefendant.

      . It appears that the fifth man involved did not have intercourse with the victim. In any event, he was not tried with the four appellants.


author: RYDER, Judge.

text:
    Clyde Pete JONES and Irma Jean Jones, his wife, Appellants, v. AUBURN MACHINE WORKS CO., INC., a Foreign Corporation doing business in the State of Florida, Appellee.
    No. 77-168.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Rehearing Denied Jan. 31, 1978.

      Robert Orseck of Podhurst, Orseck & Parks, P. A., Miami, for appellants.
    Donald L. Gattis, Jr. and Jacqueline R. Griffin of Wells, Gattis & Hallowes, P. A., Orlando, for appellee.
   RYDER, Judge.

Appellants, plaintiffs below, appeal a final summary judgment in favor of defendant/appellee, the manufacturer of a trench-digging apparatus, in an action for personal injury and loss of consortium.

Appellant Clyde Pete Jones sustained serious injuries requiring the eventual amputation of his left leg below the knee when his foot became entangled in the trenching device manufactured by appellee Auburn Machine Works Co., Inc. [hereinafter referred to as “Auburn”]. At the time of the accident, Jones was sixteen years of age and possessed a tenth grade education. He was employed by the C. C. Connell Construction Company [hereinafter referred to as “Connell”] for approximately four and one-half months. He worked as part of a crew laying underground telephone cable wherein trenching machines were used by Connell to make an excavation into which the cable was subsequently placed. Jones’ specific job was to guide the cable into the trench as it was dug. On the day of the accident, because of the unusual size of the particular cable the company was laying at the time, Jones’ supervisor instructed him to climb into the trench behind the trencher in order to place the cable flat at the bottom of the trench and to “mash” the cable into the ground by stepping on it with his feet. The trench was only wide enough for a person to get in sideways, which Jones did. He was working “a couple of feet” behind the trencher and he acknowledged that he was not normally required to work in the trench. Jones was aware there was no guard on the trencher and knew not to allow his legs to be caught in the device.

Immediately before the accident, another employee was handing the cable down to appellant and Jones was patting it into the ground. He was working in very soft sand into which his feet easily sank. During the procedure, the side of the trench folded over and Jones had the trencher stopped while he dug it out. When the trenching operation was resumed Jones attempted to crawl out of the trench. At that point, the side of the trench caved in, Jones lost his balance and as a result thereof his left foot became entangled in the exposed chain of the machine whereupon he sustained the injuries alluded to above which required eventual amputation of the left leg below the knee.

The trenching device, as manufactured and designed by appellee, contained no shield or guard. Jones’ employer, Connell, on its own had designed a removable cable guide or chute for safety purposes so that the workmen could stand away from the chain and feed the cable through the chute. A local company made the chutes and Con-nell installed them. However, because of the large size of the cable being laid on this particular job, Jones' superior had removed the chute.

The trencher was specifically designed to be hooked up behind the tractor, which pulled it. The driver of the tractor operated the trencher. All the driver’s controls were to the front and alongside him. The tractor had no rear-view mirror.

By an amended complaint, appellants sued Auburn as manufacturer setting forth separate claims of negligence, breach of implied warranty and strict liability in tort because of alleged defects in the manufacture and design of the trencher involved in the accident. The amended complaint alleged negligent design and manufacture for failure to provide reasonable safety guards on moving, exposed and dangerous parts of the machine, such as the chain. The amended complaint further alleged negligent design for failure to provide the driver of the tractor which pulled the trencher with an adequate view of the trencher’s dangerous moving parts, such as the chain; and alleged negligent failure to provide sufficient instructions for the use of the trencher. Proximate cause was duly pleaded on all counts.

Appellants also filed for the record an affidavit of an expert engineer, stating in his opinion, based upon the discovery in the record, the design of the trencher constituted a “departure from reasonably safe and sound engineering practice at the time of its manufacture” because of the absence of the rear-view mirror on the tractor and because “the trenching boom was not guarded or shielded leaving an exposed chain.” The affidavit further stated that, at the time the unit was manufactured, a guard was available to Auburn.

After hearing, a final summary judgment was entered in favor of Auburn. In its order the court below did not set forth the basis upon which it granted the motion for summary judgment, save its opinion there were no material issues of fact. From this order this appeal ensues.

Appellee asks this court to affirm the decision of the trial court below drawing our attention to Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950) and to the Florida case of Farmhand, Inc. v. Brandies, 327 So.2d 76 (Fla. 1st DCA 1976). Farmhand adopted the obvious and patent rule espoused by the New York court in Campo, that is, “. . . the manufacturer is under no duty to render a machine or other article ‘more’ safe — as long as the danger to be avoided is obvious and patent to all.” (95 N.E.2d at 804).

Appellants, however, are quick to point out that Campo was overruled by the New York Court of Appeals in Micallef v. Miehle Company, 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976). Further, appellants urge upon us the opinion in West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976), where the Florida Supreme Court adopted the doctrine of strict liability as stated by the ALI Restatement (Second) of Torts Section 402A.

We are also aware of our decision in Watson v. Lucerne Machinery and Equipment, Inc., 347 So.2d 459 (Fla.2d DCA 1977). There this court sustained a summary judgment. We pointed out that there was some language in West that could be construed as reducing the obvious and patent danger doctrine from an absolute defense to a factor to be considered in apportioning the damages, and despite the adoption of the strict liability doctrine in tort, the court must still look for the existence of proximate causation between the alleged defect and the death of appellant Watson. The record showed Watson’s demise was caused solely by his own actions and was not contributed to by any defect in the machinery in that case.

Such is not obvious in the case sub judice. There are material issues of fact herein including the question of proximate cause of Jones’ injuries which should have been allowed to have been submitted to a jury. Of course, the jury will necessarily consider the question of patency of the danger to this sixteen year old boy in making its determination of proximate cause.

It thus cannot be said that appellee, as movant, met its “. . burden of showing conclusively that genuine issues of material fact do not exist.” Holl v. Talcott, 191 So.2d 40, 47 (Fla.1966); Tamiami Builders, Inc. v. Smith, 305 So.2d 58 (Fla.2d DCA 1974).

The order granting summary judgment is therefore reversed and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN/C. J., and SCHEB, J., concur.

      . The amended complaint also named Connell, Jones’ employer, as a defendant. A summary judgment in favor of Connell was ultimately ■ entered on the ground that Connell, as the employer, was immune from suit here pursuant to Chapter 440, Fla.Stat. (1975), “Workmen’s Compensation Law.”


text:
    STATE of Florida, Appellant, v. Eddie HUMPHRIES, Appellee.
    Nos. 77-842 and 77-843.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1977.
    Rehearing Denied Jan. 26, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Richard W. Carr, St. Petersburg, for ap-pellee.
   PER CURIAM.

Reversed on the authority of State v. Church, 353 So.2d 219 (Fla.2d DCA 1977), and remanded for further proceedings consistent herewith.

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


text:
    Willie B. HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 76-1161.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.
    Richard L. Jorandby, Public Defender, and James L. Eisenberg, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant seeks review of his judgment of his conviction and sentence for burglary. The judicial error assigned is the action of the trial court in denying appellant’s motion to suppress evidence. However, after the court refused to suppress the evidence in question the appellant entered a plea of nolo contendere without a reservation of the right to appeal the order denying his motion to suppress. Having failed to reserve the right to appeal, appellant is not entitled to the review he seeks. Hand v. State, 334 So.2d 601 (Fla.1976); Eisenman V. State, 320 So.2d 34 (Fla. 4th DCA 1975); Jackson v. State, 294 So.2d 114 (Fla. 4th DCA 1974).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

CROSS, DOWNEY and LETTS, JJ., concur.


author: LETTS, Judge. DOWNEY, Judge,

text:
    Thelma JENNINGS, Appellant, v. J. C. JENNINGS, Appellee.
    No. 76-1417.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.
    Wallis E. Schulle of Simpson, Brodbeck & Schulle, West Palm Beach, for appellant.
    Charles C. Chillingworth, Palm Beach, for appellee.
   LETTS, Judge.

In this case the husband petitioned the court for a modification of alimony “by reducing the amount . . required to be paid.” The court’s order, now appealed from, cancelled the alimony altogether.

We reverse.

The petition, on its face, clearly did not seek a cancellation but only a reduction in alimony payments. As a consequence it was error for the trial judge to so rule. Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974).

We would comment that to us the distinction between reduction and cancellation is important. True, the trial judge could perhaps have reduced the alimony to one dollar per year and not have violated the rule of Herbert, supra; however, an award of one dollar would leave open the question of further modification at a later date should changed circumstances justify it. Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973).

By contrast, a cancellation of alimony, unappealed from, would not be susceptible to revival later and accordingly we hold that cancellation must be pled in order that the opposing spouse be given adequate notice.

As to the cross-appeal complaining that the trial judge should have granted an accounting, we cannot address it due to the absence of a record. Hall v. Bass, 309 So.2d 250 (Fla. 4th DCA 1975). Nor can we perceive it to be an abuse of discretion for the trial judge to refuse to award attorneys fees to the husband.

Accordingly, the order is affirmed in all respects except as to the cancellation of alimony. This cause is remanded for further proceedings in that regard consistent herewith, including, if the husband desires it, an amendment of the petition.

ALDERMAN, C. J., concurs.

DOWNEY, J., concurs specially.

DOWNEY, Judge,

specially concurring:

In my judgment, when a party moves to modify a final judgment by reducing the payments required thereunder the other party is on notice that the reduction may be to zero depending upon the evidence adduced. Thus, if the evidence justifies entirely eliminating the required payments I believe a petition which prays simply for a reduction constitutes a sufficient pleading basis for the court to do so. To reverse a trial court order eliminating required payments which is supported by adequate proof merely because the motion prayed for a reduction rather than for total elimination thereof is unreasonable and a waste of judicial labor which the system can ill afford. There is no lack of notice. The issue is adequately framed by a pleading requesting the payments be reduced. If it appears that there is a possibility the original recipient of the award may need further support in the future the court can retain jurisdiction to consider an application therefor.

Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974) holds to the contrary so in the name of consistency we must follow that precedent or recede therefrom. Since the majority chooses to follow Herbert it controls the disposition of this case. Accordingly, I reluctantly concur in the decision to reverse the order appealed from.


text:
    COBB’S AUTO SALES, INC., Appellant, v. MELVIN COLEMAN, as Sheriff of and for Orange County, Florida, the Sentinel Star Company, the Outlet Company d/b/a WDBO Channel 6, Central Nine Corporation, Florida Heartland Television, Inc., all Florida Corporations operating as a joint venture known as, Channel Nine of Orlando, Cowles Florida Broadcasting, Inc. d/b/a WESH-TV, NBC Channel 2, and the City of Orlando, a Municipal Corporation, Appellees.
    No. 76-2655.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.

      J. Russell Hornsby, Law Offices of J. Russell Hornsby, P. A., Orlando, for appellant.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellee Melvin Coleman.
   ANSTEAD, Judge.

This is an appeal from the dismissal of a defamation action brought by the appellant, Cobb’s Auto Sales, Inc., against the appel-lee, Melvin Coleman. The issue is whether Florida Statute 768.28 relating to the waiver of sovereign immunity in tort cases affects the defense of privilege successfully asserted by the sheriff in the trial court.

As an executive officer the sheriff enjoys an absolute privilege as to any statements he makes incidental to his official duties. Hauser v. Urchisin, 231 So.2d 6 (Fla.1970); McNayr v. Kelly, 184 So.2d 428 (Fla.1966); Knight v. Starr, 275 So.2d 37 (Fla. 4th DCA 1973). The defense of privilege is a separate and distinct concept from sovereign immunity, the abrogation of which appellant relies on here to avoid the defense of privilege. The doctrine of sovereign immunity was a rule laid down by the ruling authority that he, because he was the ruler, could do no wrong and therefore was immune from any charges that he had done wrong. The legislature, by enacting Section 768.28, decided this common law doctrine should be removed from the law of Florida.

On the other hand the defense of absolute privilege is based on consideration of the public interest:

The public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged. Under our democratic system the stewardship of public officials is daily observed by the public. It is necessary that free and open explanations of their actions be made.

There is nothing in Section 768.28 to indicate that the legislature intended to take away the defense of absolute privilege. In fact, sheriffs were less affected than others by the passage of the statute because they had no sovereign immunity. Holland v. Mayes, 155 Fla. 129, 19 So.2d 709 (1944).

Accordingly, the judgment of the trial court is AFFIRMED.

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

      . Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.1970).


text:
    Bruce Arthur BARNHILL, Appellant, v. Rosemary Cooper BARNHILL, Appellee.
    No. 77-321.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.

      Robert G. Petree of Bornstein, Petree & Shader, P. A., Orlando, for appellant.
    Charles R. Colbrunn, Orange County Legal Aid Society, Orlando, for appellee.
   ANSTEAD, Judge.

The appellant, Bruce Arthur Barnhill, seeks reversal of the trial judge’s order denying his petition for modification by which he sought to obtain custody of the parties’ two children. The trial court left the children in the custody of their mother, Rosemary Cooper Barnhill. We affirm.

The parties were divorced on December 15, 1975. At that time, by agreement, custody of the children, Kevin, age 16, and Laura, age 11, was granted to the mother. In August of 1976, during the children’s two week vacation visit with him, the father filed his petition for modification seeking a change of custody and refused to return the children to their mother until ordered to do so by the trial court. After a final hearing, which resulted in several hundred pages of testimony, the trial judge denied the father’s petition for modification.

The father, in addition to his own testimony, presented an impressive array of witnesses which included medical experts, counselors and the children. The mother’s case consisted largely of her own testimony and that of family friends. No doubt, if these matters were to- be decided like a football or baseball game, the father would have prevailed simply because of the list of witnesses presented. But the trial judge is more than a scorekeeper in child custody cases. As the trier of fact, he must resolve any issues of fact. Using the basic guideline of the welfare and best interests of the children, the trial judge is charged with the heavy responsibility of deciding which parent shall have custody. His conclusions come to us with a presumption of correctness. Because the custody issue primarily involves the evaluation of human relationships, the judgment of the trial court, in resolving that issue, must be afforded even greater respect than a judgment involving issues which are capable of resolution based on purely objective considerations.

Although the lineup of witnesses for the father was impressive, the gist of their testimony was not decidedly-favorable or unfavorable toward either party. The circumstances revealed to the trial court were not unlike those found in the aftermath of most divorces when the emotions of the parties control their actions. There were two children involved, and all of the evidence indicated that the children should be kept together. Originally the mother had been granted custody by agreement of the parties. The emotional reaction of the mother to the divorce was apparently stronger than that of the father, and the children had suffered some of the consequences of this reaction. However, the evidence showed that the mother’s conduct had improved and that neither parent was in any way unfit to have custody. In brief, the father’s case for custody was not one in which he sought, or did, show that the mother was unfit for custody. Rather, he sought to show that he was better qualified to have custody of the children. Had the court placed the children in the father’s custody we would also have had difficulty in disturbing the result.

This court, unless the decision below is clearly against the manifest weight of the evidence, cannot disturb the decision of the trial court. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Where the decision is clearly erroneous we have a duty to reverse, but absent such a situation we cannot substitute our opinion for that of the person charged with the responsibility to make such decisions.

And we must also bear in mind that this is a modification proceeding. As explained in this court’s opinion in Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967):

The importance of this distinction lies in what plaintiff must show to obtain a chánge in custody. In order to modify an existing custodial order plaintiff must allege and prove a substantial change in circumstances or conditions since the time the decree was entered. [Cites omitted] (Id. at 313)

When parents separate, a child is entitled to a continuing relationship with both parents. That relationship is not dissolved when the parents divorce, but it is seldom left unimpaired. Unfortunately, the only orderly way for that relationship to continue in most eases is to place primary custody of the child with one parent while the other parent enjoys visitation rights. Even when the issue of custody is resolved by agreement of the parties, enormous problems result in the relationship between parent and child.

When the parents themselves, for whatever reasons, cannot agree, this most difficult of human problems is then thrust upon the shoulders of the judge, who must decide what’s right for the children. His decision at best is a calculated risk and at worst a guess. Who among us has the wisdom to know, except in the clearest of cases, what decision will be in the best interests of the children? Someone must decide. In many cases, once that issue has been decided and all appeals have been exhausted, the parties alone can promote the best interests of the children by making the custody arrangement work. The parents can do this by making every effort to see that the best relationship possible, given the circumstances of separation, is encouraged between the parents and the children. Many divorced parents do this with great success. On the other hand, many, through selfishness or other causes, contribute to an opposite result. Of course, there are cases where a mistake is made, and hopefully by appeal or later consideration the decision is corrected. We do not find any such mistake here; and accordingly, the judgment of the trial court is AFFIRMED.

ALDERMAN, C. J., concurs.

CROSS, J., concurs only in conclusion.


text:
    Fred ROEHNER, Soll Roehner, Melvin T. Goldberger, Dean Moses and Earl Worsham d/b/a Regency Highland Associates, Petitioners, v. ATLANTIC COAST DEVELOPMENT CORPORATION, Respondent.
    No. 77-682.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.

      Dana C. Ferrell of Byrd & Ferrell, P. A., Fort Lauderdale, for petitioners.
    No appearance for respondent.
   PER CURIAM.

This is an appeal from an order denying a motion to dismiss an action to foreclose an equitable lien. Review in this case should have been initiated by interlocutory appeal rather than application for a writ of certiorari. However, we will treat the petition as an interlocutory appeal and proceed to the merits.

The respondent filed an action to foreclose an equitable lien and for legal damages. The petitioners filed a motion to dismiss the equitable lien action alleging that the complaint on its face showed that the lien action was barred by the statute of limitations. A defense based on the statute of limitations can be asserted in a motion to dismiss if the facts constituting the defense appear on the face of the complaint. Poulos v. Vordermeier, 327 So.2d 245 (Fla. 4th DCA 1976). Here such facts do appear on the face of the complaint, and the motion to dismiss should have been granted as to the equitable lien with the action for damages remaining as a separate cause of action. Accordingly, the order of the trial court denying the motion to dismiss the equitable lien action is hereby reversed with directions that an order be entered in accordance with this opinion.

REVERSED WITH DIRECTIONS.

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


author: DAUKSCH, Judge.

text:
    MY RAK PAINT & BODY SHOP, INC., Appellant, v. Andrew Robert COLLIER, Appellee.
    No. 77-1216.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.
    My Rak Paint & Body Shop, Inc., pro se.
    Andrew Robert Collier, pro se.
   DAUKSCH, Judge.

This matter comes to us as an appeal from an Order dismissing an appeal in the Circuit Court. That appeal was from a Judgment in the County Court. We take this as a Petition for Writ of Certiorari and deny the same.

DENIED.

CROSS and LETTS, JJ., concur.


text:
    The NORTHSIDE BANK OF TAMPA, Appellant, v. ELECTRICAL ENTERPRISES, INC., and Keene Mechanical, Inc., Appellees.
    Nos. 76-1398 and 76-1399.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1978.
    Maynard Ramsey of Bueklew & Ramsey, Tampa, and Raymond A. Alley, Jr., of Trin-kle, Redman, Clawson, Alley, Swanson & Moody, P. A., Brandon, for appellant.
    Robert R. Tench, Clearwater, for appel-lees.
   PER CURIAM.

This is an appeal from a judgment against appellant (Bank) in favor of Electrical Enterprises, Inc. (Electrical) for $3,275.64 and for Keene Mechanical, Inc. (Keene) in the sum of $2,560.

Virginia Construction, Inc. (Virginia), a company engaged in the general contracting business, had a checking account at Bank. This was a general operating account into which deposits from various sources were made and from which Virginia paid its overhead and operating expenses as well as its subcontractors. A substantial part of Virginia’s work was in the construction of Winn-Dixie Stores, but Virginia also did general contracting work for other parties. Electrical and Keene were the subcontractors on two of Virginia’s Winn-Dixie jobs. On May 4, 1973, Virginia issued its check drawn on Bank to Electrical for $3,275.64 and obtained an executed waiver of lien in exchange for the check. On May 9, 1973, Virginia issued its check to Keene drawn on Bank for $2,560 and obtained a waiver of lien. On May 9, 1973, Bank exercised its right of setoff against funds on deposit in Virginia’s account because of Virginia’s default in obligations owed by Virginia to the Bank. Subsequent to May 9, 1973, the foregoing checks were presented for payment but they were not paid because by this time there were no more funds in the account.

Electrical and Keene brought suit against Bank for the monies represented by their checks. The suits were consolidated for trial. The court held that by virtue of Section 713.34(3), Florida Statutes (1973), the monies deposited by Virginia were impressed with a trust for the benefit of subcontractors, materialmen, and laborers and that Bank knew or had sufficient knowledge of facts to charge it with notice that the money taken by it pursuant to its right of setoff was impressed with this trust. The court concluded that both Electrical and Keene qualified as subcontractors for whom the funds were being held in trust and entered judgment in their favor against Bank.

Section 713.34(3) is a criminal statute which reads as follows:

“(3) Any person, firm, corporation or agent, officer or employee thereof who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property, for any other purpose than to pay for labor or services performed on or materials furnished for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid shall be guilty of embezzlement and shall be prosecuted and, upon conviction, punished in accordance with the provisions of the laws of this state; provided, however, that failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds shall constitute prima facie evidence of intent to defraud.”

Assuming without deciding that this statute has civil application in the sense that a person receiving such funds holds them in a trust capacity, we nevertheless conclude that upon this record, judgment should have been entered in favor of Bank.

At the outset, we note a paucity in the proof that the monies Virginia received for the jobs upon which Electrical and Keene were working ever went into the bank account in question. The most that can be gleaned is that Virginia’s bookkeeper testified he thought that all of the payments for Winn-Dixie jobs were deposited into this account. In any event, even if it could be said that the funds from the proper jobs had been traced into this account, there was insufficient evidence upon which the Bank could be charged with the knowledge that these funds were impressed with a trust for the benefit of subcontractors such as Keene and Electrical.

The general law on the subject of bank setoffs is well stated in Aetna Casualty and Surety Company v. Atlantic National Bank of West Palm Beach, 430 F.2d 574 (5th Cir. 1970), when the court said:

“. ■ [A] bank has a right in Florida to set-off against deposits made in the ordinary course of business; but . this is not so if the bank had actual knowledge that the funds deposited with it belonged to a party other than a depositor, or where the bank has knowledge of sufficient facts to charge it with notice of an existing interest of a third party in and to the deposited funds. .

There is an excellent annotation on this subject at 8 A.L.R.3d 235 (1966). Part IV of this annotation entitled “What constitutes knowledge or notice of third person’s interest” lists five categories of notice. The last of these refers to actual notice, but since neither Keene nor Electrical asserts that the Bank had actual notice that the money was being held in trust, this category need not be considered. The remaining four categories which correspond to the section numbers of the annotation are set forth below and shall be discussed with reference to the facts of this case.

1. Section 9 — Special designation of accounts in which funds are deposited. For example, had the account in this case been designated “Virginia Construction, Inc., Trustee,” such a designation would have constituted notice to the Bank. Cf. Emile v. Bright, 203 So.2d 328 (Fla. 4th DCA 1967), affirmed sub nom. Home Federal Savings and Loan Association of Hollywood v. Emile, 216 So.2d 443 (Fla.1968).

2. Section 10 — Special designation coupled with other facts. Since there was no special designation of the account, this section is inapplicable to our discussion.

3. Section 11 — Words on deposited check or note indicating third persons’ interest. There were four deposits into the Virginia checking account in May of 1973. Three of the deposits were checks from Winn-Dixie. The deposit slips accompanying these checks contained only some numbers and a reference to Winn-Dixie Stores, Inc. The other deposit was a $25,000 check from an unrelated party. Since the checks written by Virginia to Electrical and Keene did not reach the Bank for payment until the day following the Bank’s exercise of its right to setoff, any wording on these checks could not have been notice to the Bank.

4. Section 12 — Knowledge of nature of depositor’s business. There is no doubt that Bank knew that Virginia used its account to deposit monies received for jobs from which it paid its subcontractors because Bank had previously loaned money to Virginia based on work in progress and requests to the owners for payments'. However, the opening paragraph of this section states:

“In a number of cases it has been held that a bank’s knowledge of the nature of the business of a person having an account with it, coupled with the common knowledge that a person in such a business customarily handles funds of others, is not sufficient to charge the bank with knowledge or notice that funds deposited in that account may belong to others.” (Emphasis added.)

In American Lumberman’s Mutual Casualty Company of Illinois v. Bradley Construction Co., 129 N.J.Eq. 278, 19 A.2d 242 (1941), a general building contractor engaged in building a public school deposited payments on the school contract from time to time into a checking account along with other funds received by the contractor for performance of private contract work. The bank exercised its right of setoff against the account. The receiver for the insolvent contractor claimed that because of a New Jersey statute, the monies received by the contractor on account of the school contract were trust funds for the benefit of laborers, contractors, and materialmen. The court upheld the setoff and stated:

“The Vice Chancellor in construing the Statute held that these public monies in the hands of the contractor were trust funds but when deposited with third parties who had no notice thereof, these monies were free of the trust once they were deposited with other monies in the general bank account of the contractor. We think that the determination of the learned Vice Chancellor, in construing the Statute, was entirely correct.”

The Second Circuit Court of Appeals reached a similar result in Western Assur. Co. v. Genesee Valley Trust Co., 171 F.2d 664 (2d Cir. 1948), involving an insurance agency which maintained a checking account in its own name. The agency deposited in this account premiums collected for various insurance companies as well as rent from office space which the agency leased to several insurance companies. The agency drew checks on the account to pay premiums due the insurance companies and to pay the general expenses of business including salaries and rent. The bank exercised its right of setoff against the account when a loan that the bank had made to the agency became in default.

An insurance company sued to void the setoff claiming that by virtue of a New York statute the premiums collected by the agency were trust funds for its benefit, and that the bank should have known that the account was a trust fund because the bank’s officers knew the depositor was an insurance agency and should have realized that its principal resources came from premiums. While nothing on the deposited checks showed that they were premium payments, the plaintiff contended that by virtue of the fact that large checks payable to the plaintiff were regularly drawn on the account, the only purpose for which the agency would have transmitted such sums to the plaintiff was for the payment of premiums.

In affirming the refusal to void the set-off, the court stated:

“Assuming that a trust existed, nevertheless the defendant bank had a right to appropriate the trust funds to the payment of the Agency’s personal debt if the bank had no actual or constructive knowledge of the trust character of the deposit. . . .
“. . . Knowledge that premiums due plaintiff were being paid out of the account might have led to the conclusion that premium collections — trust funds— were being deposited in the account; but it might also have meant that premium collections were deposited in another account and the Agency was merely making remittances from this account. The statute did not prohibit the Age.iey from paying the amount due plaintiff out of this account and then using the premium collections for its own purposes. Albany Insurance Co. v. McAllister, 57 Hun. 594, 11 N.Y.S. 295.
“If the defendant bank had been alert, then, to check all the facts which its various employees knew, it would have had some indication that trust funds were in this account. Suspicious circumstances, however, are not enough. Defendant had no duty to be vigilant to protect plaintiff. Plaintiff must prove more than that defendant should have been aware of the possibility that the deposit was a trust fund. . . .”

(171 F.2d at 666)

The judgment entered below must be

REVERSED.

BOARDMAN, C. J., and GRIMES and DANAHY, JJ., concur.

      . Capital contributions of stockholders were deposited into this account along with payments received on various jobs.

      . Virginia had other accounts. Bank’s vice president testified that Virginia also had a payroll account and a trust account where federal tax monies were deposited. Virginia’s former bookkeeper did not recall the existence of the other two accounts, though he conceded the possibility that there may have been one. He did state that Virginia also had an account at another bank.

      . Cf. Houdaille-Duval-Wright Co. v. Congdon, 237 So.2d 305 (Fla. 2d DCA 1970).

      . The case of Century lndem. Co. v. Bank of Gowanda, Sup., 35 N.Y.S.2d 396 (1941), affirmed 263 App.Div. 1068, 35 N.Y.S.2d 463, app den 264 App.Div. 834, 36 N.Y.S.2d 417, rearg den 264 App.Div. 986, 37 N.Y.S.2d 493, and 265 App.Div. 907, 38 N.Y.S.2d 318, which might otherwise be a strong case in support of the judgment entered below turned on the question of actual notice.


text:
    Frank BARTKE, Lillias Bartke and Causeway Properties, Inc., Appellants, v. FLAGSHIP BANK OF TAMPA, Raymond M. Norville, Atlantic Bank of Springfield and Julian H. Lifsey, Jr., Appellees.
    No. 77-878.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1978.
    Rehearing Denied Jan. 31, 1978.
    Brooks P. Hoyt of Stichter, Stagg, Hoyt, Riedel & Fogarty, P. A., Tampa, for appellants.
    Ralph C. Dell and Robert A. Mora of Allen, Dell, Frank & Trinkle, Tampa, for appellees.
   PER CURIAM.

Predicated upon our construction of the ruling below that the option is still viable and the total purchase price for both tracts remains unchanged, the summary judgment is affirmed.

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