author: DOWNEY, Judge.

text:
    Jack W. GORDON, Sr., Individually, and on behalf of Grade P. Gordon, his wife, and as Administrator of the Estate of the Deceased, Jack W. Gordon, Jr., Appellants, v. CITY OF WEST PALM BEACH, a Municipal Corporation in the State of Florida, et al., Appellees.
    No. 74-9.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Not. 18, 1975.
    Richard W. Slawson, Thompson, Tucker & Slawson, West Palm Beach, for appellants.
    Marjorie D. Gadarian, Jones, Paine & Foster, West Palm Beach, for appellees.
   DOWNEY, Judge.

Jack Gordon, Jr., was killed when his motorcycle collided with an automobile at the intersection of Spencer Drive and an alleyway behind a shopping center in the City of West Palm Beach. As a result thereof Jack Gordon, Sr., et al., brought a wrongful death and survival action against appellees City of West Palm Beach and Ronald W. Schutta, the City Traffic Engineer, and Liberty Mutual Insurance Company. From a judgment dismissing the Gordon amended complaint this appeal was perfected.

The amended complaint alleged that the City constructed, owned, and maintained both Spencer Drive and -the alleyway in question. The City had a duty to properly design and construct intersections and roadways under its ownership, control, and maintenance so as not to cause an unreasonable risk of harm to users thereof; But the City negligently designed and constructed Spencer Drive and the alleyway so that a person travelling west on the alleyway was prevented from seeing the existence of Spencer Drive and traffic proceeding thereon. The design and construction created an illusion that the alleyway was a continuous, non-intersected roadway and constituted a trap and an unreasonable threat of harm to the public invited to use said streets. In addition, the complaint further alleges that as the creator, owner, and maintainer of said intersection, the City breached its duty to warn persons using said intersection of the known trap and hazardous condition in that the City failed to furnish any warning device to notify the public of the alleged condition.

The amended complaint also alleged that appellee Ronald W. Schutta was the Traffic Engineer of the City of West Palm Beach. It charged him with negligence in failing to erect stop signs or other traffic control devices at the intersection in question although there had been three prior accidents at this intersection, and as a result of one such accident the investigating officer recommended to appellee Schutta that stop signs be erected there.

In dismissing the complaint the trial court cited a number of cases, all of which essentially held the cities involved had, under the circumstances, no liability because of governmental immunity.

In briefing the appellate question appellants contend that the cause of action alleged arises out of the City’s negligence in designing, constructing, and maintaining its streets and the failure to warn of known defects and dangerous conditions existing in its streets. As to such a cause of action, appellants argue, the City is not immune from liability. Appellees on the other hand take the position that the trial court was correct because the claim upon which appellants attempt to obtain recovery is based on the regulation of traffic, a governmental activity precluding municipal liability in tort unless the municipality owed appellants’ decedent a special duty differing from that owed to the public generally.

We are frank to admit that the current status of municipal tort liability is not at all clear since the advent of Hargrove v. Town of Cocoa Beach, Fla.1957, 96 So.2d 130; Modlin v. City of Miami Beach, Fla. 1967, 201 So.2d 70, and subsequent cases attempting to interpret the breadth and scope of those two cases. Because of this uncertainty, and because of the dichotomy between the parties to this appeal, it would appear appropriate for us to state our view of that status as it pertains to this case.

For years Florida has held that the construction, maintenance, and repair of streets in a municipality is a corporate or proprietary function as opposed to a governmental function. Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916); Bryan v. City of West Palm Beach, 75 Fla. 19, 77 So. 627 (1918); City of Tampa v. Easton, 145 Fla. 188, 198 So. 753 (1940); Woods v. City of Palatka, Fla.1953, 63 So.2d 636. Thus, a municipality has a duty to construct, maintain, and repair its streets in a reasonable manner, and the failure to do so renders it liable to one injured by such negligence. In our judgment that established principle of municipal tort liability (for negligence in the exercise of proprietary functions) was in no way affected by the decision in Hargrove v. Town of Cocoa Beach, supra. The question before the Court in Hargrove was “whether a municipal corporation should continue to enjoy immunity from liability for the wrongful acts of police officers.” 96 So.2d at 131 (emphasis added). In deciding that under appropriate circumstances municipal immunity theretofore arising from the governmental function aspect of policemen’s activities should not continue, the Court recognized that it was creating a new area of municipal liability and adding it to already existing areas of municipal liability such as “negligence in the maintenance of streets and bridges.” 96 So.2d at 132. Nor did Modlin v. City of Miami Beach, supra, reduce the area of previously existing municipal liability in proprietary functions. That case held only that in order for a municipality, under the Hargrove rule, to be liable for the tort of a municipal officer, arising from the performance of a governmental function, that officer himself would have to be liable to the person claiming damages, and he would be so liable only if he owed to the claimant a duty that was different from the duty he owed to any other member of the public. While it decided that the City was not liable because the officer did not meet the criterion for liability, the Court also specified that “the tort liability of municipal corporations may now be equated with that of private corporations.” 201 So.2d at 73. This is a further recognition that the Supreme Court did not abolish the pre-Har-grove liability of municipalities for torts resulting from their proprietary functions.

Thus we conclude that the current status of municipal tort liability is this:

1) as to those municipal activities which fall in the category of proprietary functions a municipality has the same tort liability as a private corporation;
2) as to those activities which fall in the category of governmental functions “ . . . a municipality is liable in tort, under the doctrine of respondent superior, only when such tort is committed against one with whom the agent or employee is in privity, or with whom he is dealing or is otherwise in contact in a direct transaction or confrontation City of Tampa v. Davis, Fla.App. 1969, 226 So.2d 450 ;
3)as to those activities which fall in the category of judicial, quasi judicial, legislative, and quasi legislative functions, a municipality remains immune. Hargrove v. Town of Cocoa Beach, supra; Modlin v. City of Miami Beach, supra.

In the case at bar we believe the allegations of the amended complaint state a good cause of action against the City of West Palm Beach for its alleged negligence in the design, construction, and maintenance of the streets in question and for its failure to warn of a known hazardous condition, since road maintenance, etc., is a proprietary function for the negligent exercise of which Florida municipalities have been liable historically. On the other hand, the amended complaint states no cause of action against the City or Ronald W. Schutta for negligence in failing to place traffic control devices such as stop signs at the intersection in question. The installation and maintenance of traffic control devices such as stop signs, automatic traffic lights, etc., is a governmental function in the exercise of which the municipality is not liable. Avey v. City of West Palm Beach, 152 Fla. 717, 12 So.2d 881 (1943); Holton v. City of Bartow, Fla.1953, 68 So.2d 385; Raven v. Coates, Fla.App.1961, 125 So.2d 770. For reasons of harmony, the foregoing cases must be distinguished from the sort of case which demonstrates the existence of that privity or direct relationship between a plaintiff and a city officer which precludes application of the governmental immunity doctrine. Compare Hewitt v. Venable, Fla. App.1959, 109 So.2d 185, with Modlin v. City of Miami Beach, supra.

It would appear that our decision here conflicts with the decision of the First District Court of Appeal in Nobles v. City of Jacksonville, Fla.App.1975, 316 So.2d 565. The District Court held as a matter of law the City of Jacksonville was not liable for negligence in maintaining a bridge with steel grating in the roadbed which when wet constituted a dangerous, hazardous public nuisance to the travelling public utilizing the bridge for vehicular traffic in that it was dangerously slippery causing drivers to lose control of their vehicles. The rationale of that case seems to be that as a result of the Hargrove and Modlin cases there is no longer any municipal tort liability unless there is a direct relationship between the negligent city agent and the person injured. This view of Hargrove in the perspective of Modlin means that Har-grove restricted the overall exposure of municipalities to tort liability. However, as we indicated above, we understand Har-grove to have expanded the municipality’s possible exposure to such liability. Our understanding of the Hargrove case is in accord with that of the Second District Court of Appeal in City of Tampa v. Davis, supra. It also appears that the result we reach accords with the result in Panama City v. Eytchison, 134 Fla. 833, 184 So. 490 (1938), while the result reached in Nobles v. City of Jacksonville, supra, does not.

Although we do not agree with the decision of our sister court, we share its discontent with the present state of the law in the area of municipal tort liability. While we have tried to articulate and apply what we conceive to be the law in the area of municipal tort liability, we are concerned that the substantive rights of individuals should turn upon such artificial distinctions as whether maintenance of a traffic control device is governmental or proprietary, or whether a warning sign or light is a traffic control device. It would seem far more realistic and workable for such rights to turn on the question whether the governmental entity’s act or failure to act proximately caused the harm claimed. However, the prerogative to make such changes in the law lies exclusively in the Supreme Court of Florida. Hoffman v. Jones, Fla.1973, 280 So.2d 431.

For the reasons set forth above, we reverse the judgment in favor of the City of West Palm Beach, affirm the judgment in favor of Ronald W. Schutta, and remand the cause for further proceedings as to the defendant appellee City of West Palm Beach.

Affirmed in part, reversed in part, and remanded.

CROSS, J., and LEE, THOMAS E., Associate Judge, concur.

      . The duty to warn of a known dangerous condition is part of the duty to maintain and repair. 19 McQuillan, Municipal Corporations, § 54.90(a) (3rd. Ed.).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles W. CRUMITY, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 75-650.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Charles W. Crumity, Jr., in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    ASSOCIATED MORTGAGE INVESTORS et al., Appellants, v. BOYNTON BEACH MALL, INC., Appellee.
    No. 75-793.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Marshall, Keshen & Stiles, Miami, for appellants.
    Richard & Richard, Miami Beach, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Morgan v. Eaton, 1910, 59 Fla. 562, 52 So. 305, 306; McMullen v. McMullen, Fla.App.1960, 122 So.2d 626; Baum v. Corn, Fla.App.1964, 167 So.2d 740, 743; Singer v. Tobin, Fla.App.1967, 201 So.2d 799, 801.


text:
    Hyman GRABER, a/k/a Philip Graber and Lillian Graber, his wife, Appellants, v. Jack L. GASSMAN and Shirley Gassman, his wife, Appellees.
    Nos. 75-743, 75-744.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    M. Mark Margulies and George Bolton, North Miami Beach, for appellants.
    Litman & Muchnick and Jeffrey P. Wasserman, Hollywood, for appellees.

      Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

The appellants, defendants in the trial court, by these consolidated interlocutory appeals seek reversal of two orders of the trial court; one of the orders struck defendants’ pleading, entered default against them and set the cause for trial on damages. The other order appealed denied defendants’ motion for rehearing.

The cause was an issue on the complaint and answer and counterclaim. It was duly set for trial on the non-jury calendar. Counsel for defendants orally moved the court for a continuance about three days before trial, stating to the court that his clients who lived in New York were ill and unable to travel to Miami for the trial as scheduled. The court indicated to counsel that the continuance would be granted if counsel would furnish the court with an affidavit from a doctor verifying their illness and inability to be present at trial. Such affidavit was not furnished within the time specified by the court. Whereupon the trial judge ordered the pleadings of the defendants stricken and entered a judgment as to liability against the defendants.

The appellants contend that the ■ court erred in entering such order and in denying their motion for a rehearing. We agree and reverse.

We know of no statute or rule of court authorizing or empowering a trial court to strike a defendant’s answer for failure to appear at a trial of this nature under such circumstances.

The case could have properly proceeded to trial as scheduled. If plaintiffs had elected to prove up their case and the defendants had failed to offer evidence or reasons sufficient to defeat plaintiffs’ right to recover then plaintiffs would have been entitled to their judgment. Ortiz v. Nicolaides, Fla.App. 1967, 196 So.2d 186; Byron Holding Corp. v. Cohen, Fla.App.1973, 284 So.2d 412.

The orders appealed are reversed and the cause remanded for trial.

Reversed and remanded.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Nancy RAFFA, Appellant, v. The DANIA BANK and Bruce Fletcher, Appellees.
    No. 73-1394.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.

      Harry G. Carratt, of Morgan, Carratt & O’Connor, Ft. Lauderdale, for appellant.
    Theodore R. Hainline of Fleming, O’Bryan & Fleming, Ft. Lauderdale, for appellees.
   SCHWARTZ, ALAN R., Associate Judge.

On September 27, 1972, Nancy Raffa and her husband were entertaining friends at their home in Lighthouse Point. Mrs. Raffa’s 1970 Cadillac Eldorado was parked, unlocked with the keys in the ignition, in the driveway of the home, half under the roof of the open, attached carport, half not. Unfortunately, Mrs. Raffa was, at that time and as she knew, over a month behind on the 16th of 36 monthly installments she owed on the car to the Dania Bank under a standard Retail Installment Contract which had been assigned to it. Because of this admitted fact, an officer of the bank authorized a private investigator named Bruce Fletcher, whom it rather euphemistically designated its “collection agent” for that purpose, to repossess it. Although Mrs. Raffa said the bank had given her no notice at all of its intention to do so, that’s just what Fletcher and an employee of his, Joseph Kopel, immediately did. Fletcher and Kopel went to the Raf-ias’ residence. Kopel walked onto their premises and up the driveway, got into the car (without having to go into the carport), turned on the keys and drove it away. When Mrs. Raffa and her guests came out of the house, it was gone and she was, she said, embarrassed about it.

After having resecured the car by paying off the remainder of the loan, Mrs. Raffa sued the Bank and Fletcher for compensatory and punitive damages based on a claim of the car’s conversion. The claim was based on two theories of the defendants’ alleged wrongdoing: (a) that they had committed an “unlawful trespass” in the course of repossessing the car; and (b) that they had improperly done so without having first given specific notice of the overdue debt or of their intention to retake the car because of it. The trial judge entered summary judgment for the defendants, thus holding that the record conclusively demonstrated the nonviability of either theory. We affirm his determination as to the first of the plaintiff’s assertions and reverse it as to the second.

Our determination of the claim of impropriety in the manner in which the Bank asserted its contractual and statutory right under the U.C.C. to retake possession of the property which secured its loan is necessarily based upon an interpretation of the Supreme Court decision which specifically upheld the right to the use of self-help in order to repossess, Northside Motors of Florida, Inc. v. Brinkley, Fla. 1973, 282 So.2d 617. In Brinkley, the Court, relying both upon the specific terms of the statutory provision in question, F.S. § 679.503, and of the pre-U.C.C. law which the statute merely codified, held that a secured creditor may retake its security if this may be done, as the statute says, “without breach of the peace . . .” The plaintiff essentially contends that the mere fact that the defendants went onto her property amounted to such a breach of the peace. We cannot accept this contention.

The Brinkley case makes specific reference to the problem in its adoption, at 282 So.2d 625, of the rule stated in Percifield v. State, 93 Fla. 247, 111 So. 519 (1927), to the effect that a creditor may repossess property only

“without committing an unlawful trespass or other breach of the peace.” [emphasis supplied]

In itself, the use of the word “unlawful” as a modification of the term “trespass” demonstrates that there need be something more than merely entering the real property of the debtor. And it is plain that the “trespass” involved here was not “unlawful it was authorized and thus consented to in the provisions of the sales agreement by which the plaintiff was bound. The agreement provides that, upon default,

. . Seller may, without notice or demand for performance or legal process, lawfully enter any premises where motor vehicle may be found and take possession of it . . .”

Courts in other jurisdictions, applying similar contractual and statutory provisions to situations such as this one, have uniformly held that no “unlawful” or “unauthorized” entry or trespass and thus that no “breach of the peace” was involved when, as here, there was no entry into a home or other closed building on the premises. Dearman v. Williams, 235 Miss. 360, 109 So.2d 316 (1959) so holds on facts virtually identical to these. Accord, Gill v. Mercantile Trust Co., Mo.App.1961, 347 S.W.2d 420; Rea v. Universal C. I. T. Credit Corp, 257 N.C. 639, 127 S.E.2d 225, 227 (1962); Kroeger v. Ogsden, Okla.1967, 429 P.2d 781 (airplane taken from open hangar) ; Gregory v. First National Bank, 241 Or. 397, 406 P.2d 156 (1965); see also C. I. T. Corp. v. Short, 273 Ky. 190, 115 S.W.2d 899 (1938) (car taken from open garage); Pioneer Finance & Thrift Co. v. Adams, Tex.Civ.App.1968, 426 S.W.2d 317; Morrison v. Galyon Motor Co., 16 Tenn. App. 394, 64 S.W.2d 851 (1932); Annot, What conduct by repossessing mortgagee or vendor entails tort liability, 99 A.L.R.2d 358, 385-386; 1 Restatement, Torts 2d, § 182 (1966); White and Summers, Uniform Commercial Code, 626-6, pp. 968-969 (1972), quoted with approval in Brinkley, supra, at 282 So.2d 624 — 625. In agreement with these authorities, and since it is undisputed that no door, not even one to a garage, on the Raffa premises was opened, much less broken, we conclude that the way in which the repossession was effected was conclusively shown to have been non-actionable. Cf. also, McDowell v. James Talcott, Inc., Fla.App.1966, 183 So.2d 592; Westchester National Bank v. Corey, Fla.App.1974, 293 So.2d 796.

Mrs. Raffa also claims, however, that, under the circumstances of this case, and despite the provisions of the agreement to the contrary, she was entitled to notice from the Bank before the repossession took place. In Ford Motor Credit Co. v. Waters, Fla.App.1973, 273 So.2d 96, 99-100, the Court, following Commercial Credit Co. v. Willis, 126 Fla. 444, 171 So. 304 (1936), held that past acceptances of late payments without repossession might give rise to a right by the purchaser to rely upon that course of conduct and a concomitant duty by the creditor to notify the buyer prior to his changing the pattern by retaking the property. In this record there are indications that Mrs. Raffa had in fact been allowed in the past to make up late payments and that the Bank had accordingly not repossessed her automobile. At the very least, the defendants did not discharge their affirmative duty, on motion for summary judgment, of conclusively establishing the absence of a genuine issue of material fact as to this contention. Holl v. Talcott, Fla.1966, 191 So.2d 40. Accordingly, the cause is remanded for appropriate determination below of the claim that, under these circumstances, notice or demand was required prior to the retaking of Mrs. Raffa’s car.

Affirmed in part, reversed in part, and remanded.

OWEN and DOWNEY, JJ., concur.

      . The 1970 Eldorado had a very long hood.


text:
    Mary S. KUBALSKI, Administratrix of the Estate of Leonard Kubalski, Deceased, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, et al., Appellees.
    No. 74-785.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
    Charles A. Tabscott, of Troutman & Parrish, Winter Park, for appellant.
    John W. Bussey, III, and Richard E. Trapp, of Sands, Smalbein, Eubank, Johnson, Rosier & Bussey, Orlando, for appel-lees-City of Orlando, Florida and Aetna Insurance Company.
   PER CURIAM.

Affirmed. See, Holton v. City of Bartow, 68 So.2d 385 (Fla.1953); Avcy v. City of West Palm Beach, 152 Fla. 717, 12 So.2d 881 (1943); Gordon v. City of West Palm Beach, 4th DCA Fla., 321 So.2d 78, opinion filed October 10, 1975; Clifton v. City of Ft. Pierce, 4th DCA Fla., 319 So.2d 195, opinion filed September 12, 1975; City of Tampa v. Davis, 226 So.2d 450 (2nd DCA Fla.1969); Raven v. Coates, 125 So.2d 770 (3rd DCA Fla.1961).

WALDEN, C. J., and CROSS and OWEN, JJ., concur.


author: BOARDMAN, Judge.

text:
    William Joel KEEL, Appellant, v. STATE of Florida, Appellee.
    No. 75-674.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.

      James A, Gardner, Public Defender, Sarasota; and Harold H. Moore, Asst. Public Defender, Bradenton, and Karl W. Pilger, Student Asst., Washington, D. C., for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee; and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

William Keel entered a plea of guilty to the charge of robbery pursuant to plea negotiations. The negotiations provided that he would receive a ten year sentence which would run consecutive to any sentence which’ he was then serving in Georgia. After determining that the plea was voluntarily entered the court accepted the plea and sentenced appellant to “ten (10) years to run consecutively with any sentence from the State of Georgia.”

Appellant contends that the sentence was vague as to date of commencement. We find this claim is meritorious. While the intent of the trial court may have been to have appellant’s sentence commence at the expiration of a specific Georgia sentence, as imposed the sentence is vague and uncertain. For example, if appellant were subsequently tried and convicted of another crime in Georgia, the commencement of the robbery sentence would be delayed. This indefinite commencement of the sentence is improper. Wallace v. State, Fla. 1899, 41 Fla. 547, 26 So. 713; Bush v. State, Fla.App.2d 1975, 319 So.2d 126; Dyer v. State, Fla.App.3d 1974, 296 So.2d 524.

We have considered appellant’s other point on appeal and find it to be without merit.

The judgment is affirmed and the case remanded to the trial court for entry of a corrective sentence.

HOBSON, A. C. J., and SCHEB, J., concur.


author: McCORD, Judge. SMITH, Judge

text:
    Richard L. K. FAIRCLOTH, Appellant, v. Barbara Hall FAIRCLOTH, Appellee.
    No. W-506.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1975.

      John S. Winnie, Winnie & Winnie, Gainesville, for appellant.
    Peter Enwall, Gainesville, for appellee.
   McCORD, Judge.

This is an appeal from a judgment holding appellant in contempt of court and sentencing him to five months and 29 days but withholding commitment for 10 days to give appellant an opportunity to purge himself of contempt by paying $4,300 in arrearages incurred under the final judgment of dissolution of marriage between appellant and appellee. The contempt judgment further provides that appellant may purge himself of the contempt at any time,, by paying the aforesaid amount.

The final judgment ordered that appellant pay monthly child support of $200; one-half of the mortgage payments, taxes and assessments on the marital home, and provide for the maintenance thereof; that he pay lump sum alimony in the amount of $2,070.79 over an 18 month period together with attorney’s fee of $1,500 to be paid in 12 monthly installments. The final judgment was appealed to this court and affirmed [Faircloth v. Faircloth, Fla.App. (1st), 289 So.2d 799 (1974)]. The evidence at the contempt hearing held 22 and one-half months after the entry of the final judgment showed that none of the lump sum alimony had been paid nor had appellant made any contribution toward the mortgage, taxes, assessments and maintenance of the marital home. In addition, he was $930 in arrears in child support payments and had paid nothing on the attorney’s fee. Further, the evidence showed that in November, 1973, appellant conveyed his undivided one-half interest in the marital home to a third party, thereby putting that asset beyond reach for satisfying any of his obligations under the final judgment. The record here is silent as to any attempt by appellant to secure modification of the final judgment. He appears to have taken it upon himself not to obey it.

Appellant contends that the contempt involved here was a criminal contempt proceeding rather than civil contempt and that his constitutional rights were violated in that (1) he was not informed of the right of an indigent to be provided counsel, and (2) the court made no determination of indigency .for the purpose of appointment of counsel. This contention is without merit. In Demetree v. State, Fla. 89 So.2d 498, the Supreme Court explained the difference between civil and criminal contempt as follows:

“In its broadest aspects a civil contempt order is sought by a party to the cause and entered by the court for the private benefit of the offended party. While imprisonment may be adjudged in a civil contempt proceeding, it is coercive rather than punitive in nature. Customarily when imprisonment is ordered for a civil contempt its continuance is made contingent upon compliance with the order of the court and when the contemnor has so complied he is released from prison. The sentence is usually therefore indefinite and not for a fixed term. It is for this reason that in civil contempt it has been said that the contemnor ‘ “carries the key of his prison in his own pocket.”’ In re Nevitt, 8 Cir., 117 F. 448, 451, 461, 54 C.C.A. 662. He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.
“In a civil contempt proceeding an offended party to the cause is primarily seeking relief, personal and private to himself, as distinguished from punishment for conduct offensive to the public or disrespectful to the court and its authority. On the other hand, a contempt proceeding criminal in nature is instituted solely and simply to vindicate the authority of the court or otherwise punish for conduct offensive to the public in violation of an order of the court. Customarily when imprisonment is ordered it is generally for a fixed term and is administered as punishment for an act committed rather than as coercion to compel the contemnor to do something which he had theretofore failed and refused to do.”

See also State v. Anderson, Fla.App.(1st), 168 So.2d 554. In defining civil contempt, 17 G.J.S. Contempt § 6, states as follows:

“Civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein, and is, therefore, an offense against the party in whose behalf the violated order is made. If, however, the contempt consists in doing a forbidden act, injurious to the opposite party, the contempt may be considered criminal.”

It is obvious that a contempt commitment issued as the result of a party’s failure to comply with the requirements of a final judgment of dissolution of marriage is a civil contempt rather than a criminal contempt (unless such failure consists in doing a forbidden act injurious to the opposite party in which event it may be a criminal contempt). The object of the contempt proceeding is primarily to secure compliance with the court’s judgment or order for the benefit of the opposing party rather than solely to vindicate the authority of the court or otherwise punish for conduct offensive to the public in violation of an order of the court. While there may be some elements of punishment involved in a civil contempt, the primary purpose is to secure compliance with the court’s order for the benefit of the opposing party. On the other hand, as stated by the Supreme Court in Demetree, supra, “a contempt proceeding criminal in nature is instituted solely and simply to vindicate the authority of the court or otherwise punish for conduct offensive to the public in violation of an order of the court.” (Emphasis supplied.) To summarize, the purpose of civil contempt may be a mixed purpose — to both secure compliance with the court’s order for the benefit of the opposing party and to punish, but compliance is the primary purpose. Punishment may also be necessary in civil contempt in order to get the offender’s attention and thereby obtain future compliance after release. The purpose of criminal contempt, on the other hand, is solely to vindicate the authority of the court or otherwise punish for conduct offensive to the public in violation of an order of the court.

Appellant has cited no authority and we know of none requiring appointment of counsel for an indigent charged with civil contempt. We do not infer from this ruling that an indigent contemnor is or is not entitled to appointment of counsel on a criminal contempt charge. That issue is not present here.

Appellant next contends that a contempt commitment for failure to obey a court order must reveal on its face an affirmative finding that the contemnor had the ability to obey the order or that his inability was brought upon himself due to his own fault. He states that the court made no eviden-tiary finding regarding his ability to pay, ignored his assertions that he had no money or assets, and ignored his offer to bring in financial records. Appellee contends that once she established the arrearage, it then became appellant’s burden to prove that he was unable to pay through circumstances beyond his control (citing Naster v. Naster, Fla., 163 So.2d 264); that appellant’s bare assertions that he was unable to pay were insufficient; that while appellant offered to produce financial records, he did not bring any to the hearing and produced no evidence to substantiate his claims. We agree.

In a somewhat similar case Orr v. Orr, 14 Fla. 112, 192 So. 466 (1939), the Supreme Court said:

“The appellee offered some testimony tending to show that he is at present unable to pay the award. This is not a necessarily proper defense to the application for the citation. Inability to pay is a valid defense at the time the decree was rendered, Phelan v. Phelan, 12 Fla. 449; Haddon v. Haddon, 36 Fla. 413, 18 So. 779; Arendall v. Arendall, 61 Fla. 496, 54 So. 957, Ann.Cas. 1913A, 662; but where no appeal has been taken from the order, it will stand inviolate, .
****** “The burden of proving inability is on the defendant, and as the final decree is an adjudication of his ability to pay, the only available defense for nonperformance is a showing that he is unable to comply with the terms of the decree due to factors beyond his control. 17 Am.Jur. 510; 19 C.J. 304, and cases therein cited.
“This rule was properly stated in the case of Hembree v. Hembree, 208 Ky. 658, 271 S.W. 1100, text 1101, ‘To have purged himself of contempt for his failure to comply with the court’s orders he must have made it clearly appear, not only that he was unable to comply therewith, but also that his inability was not caused by his own neglect or misconduct.’ This rule was reiterated in the later case of Roper v. Roper, 242 Ky. 658, 47 S.W. 2d 517.”

In the case sub judice, although the record may not show that appellant has the present ability to immediately pay the full amount of the arrearage, the final judgment, which was appealed and affirmed, stands inviolate that he had the ability to comply with its requirements at the time it was entered. In addition, he has made no evidentiary showing of a subsequent inability to comply with it nor has he shown that any inability which he may have had was not caused by his own neglect or misconduct. To the contrary, the record shows otherwise' — that he disposed of his i/¿ interest in the marital home. In this connection the Supreme Court in Naster v. Naster, supra, said:

“ . . . In a contempt proceeding when the failure to pay has been established the husband has the burden of proving that his failure has not been willful. In exercising his judicial discretion in the contempt proceeding the chancellor may take into consideration the husband’s inability to pay, together with other elements such as his failure to apply to the Court for relief when the inability arises, as well as the fact that the husband has intentionally brought about his financial incapacity. Yandell v. Yandell, 160 Fla. 164, 33 So.2d 869; Satterfield v. Satterfield, Fla., 39 So.2d 72.”

We find that the evidence fully supports the contempt commitment entered by the trial judge and we now turn to State ex rel Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936), which appellant cites in support of his contention that the contempt commitment must reveal on its face an affirmative finding that the con-temnor had the ability to obey the final judgment or that his inability was brought upon himself due to his own fault. There the Supreme Court said:

“Under the most respectable authority on contempt that we have been able to find, a 'process’ contempt commitment for refusing to obey an order of court must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such finding must be made to appear on the face of the order of commitment, else it is void. Ex parte Cohen, 6 Cal. 318; Repalje on Contempt, par. 129. The order here involved is not an order of that nature.”

The Supreme Court’s above quoted ruling in Trezevant must be considered in the light of the facts of that case. We do not believe it was intended that such an affirmative finding must be made on the face of all orders of commitment of a contemnor for failure to abide by the process of the court. Such was necessary in Trezevant because there the term of imprisonment was for an indefinite time. There the circuit court had found the contemnor guilty of refusal to abide by an order of Circuit Court requiring him to pay alimony and ordered him to be committed to jail for his contempt “until he complies with the order of the court, or until the further order of the court." The Supreme Court stated the question was “whether or not the order can be enforced, in view of its indefiniteness as to the terms of imprisonment for which the condemned is to be committed.” The Supreme Court pointed out that the contempt order appeared to be “predicated solely on a finding of past noncompliance with the court’s order, and not on any present failure to comply therewith, although able so to do.” The court then stated, “therefore the contempt being in its nature a punishment for what the defendant has heretofore done, is void because it specified no definite term of imprisonment.” The Supreme Court in that opinion simply said in substance that where a contemnor is sentenced to imprisonment to there remain until he complies with the court’s order (an indefinite term) the trial judge in his order of commitment must make an affirmative finding that it is within the power of the defendant to obey the order. We do not believe the Supreme Court intended to go beyond that ruling predicated upon the facts then before it. We do not believe it intended to require such affirmative finding where a contemnor is sentenced to a definite term such as was done in the case sub judice. This is further substantiated by an examination of the case [ex parte Cohen, 6 Cal. 318 (1856)] cited by the Supreme Court in support of its ruling in Trezevant. In that early case, the Supreme ¿ourt of California said:

“By the affidavit of Cohen, which is not contradicted, it appears that the disbursements charged, were made by him in the course of his receivership, and that the money claimed by him as compensation had been used about his own business, and that he had not so much money in his hands, and was, therefore, unable to comply with the order of the Court.
“Under our statutes, the power of a Court to punish for a contempt is limited to a fine of five hundred dollars and imprisonment for five days, except when the contempt consists in the omission to perform an act which is yet in the power of a person to perform, in which case he may be imprisoned till he have performed it. §§ 488 and 489 Prac.Act.
“In this case, the Court does not find that it was in the power of Cohen to comply with the order; and his affidavit, which was not contradicted, shows that it was not.”

Cohen, like Trezevant, dealt with a contempt in which the contemnor was sentenced to imprisonment for an indefinite term — until he complied with the court’s order. As we have previously stated, the imprisonment in the case sub judice was for a definite term, and, in addition, the contemnor was given the option of paying the arrearages at any time and thereby secure his release. On the face of the order in the case sub judice, the trial court found appellant in “willful contempt.” We consider that a finding that appellant either had the ability to comply with the final judgment or that any lack of ability was the result of his own neglect or misconduct was implicit in the trial court’s finding that he was in willful contempt. Such is fully substantiated by the record. To remand this case for the sole purpose of requiring the trial court to vacate its previous order of commitment and enter a new order making such finding would be a waste of judicial time and effort. This would not be the case, however, if the trial judge had committed appellant to imprisonment until he paid the arrearage without making an affirmative finding that he had the ability to pay it. Such would then violate the Supreme Court’s ruling in Trezevant.

We have considered Ratner v. Ratner, Fla.App.(3d), 297 So.2d 344, cited by appellant in support of his contention. There the court could have reversed on the ground that there was no evidence to support the contempt order, since no eviden-tiary hearing was held, but instead it predicated reversal upon the failure of the trial judge to make a specific finding that the contemnor had the financial ability to pay, citing State ex rel Trezevant v. McLeod, supra. Insofar as our opinion here conflicts with the ruling there, we disagree with the ruling in Ratner.

Affirmed.

RAWLS, Acting C. J., concurs.

SMITH, J., dissents.

SMITH, Judge

(dissenting) :

The mandate of State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936) seems to me to be clear enough: that an order of commitment for civil contempt, arising from a party’s willful refusal to obey an order entered to coerce his action for the benefit of another, must be based on an affirmative finding that the party has power to obey, “else it is void.” The District Court of Appeal, Third District, has honored that, rule. Ratner v. Ratner, 297 So.2d 344 (Fla.App.3rd, 1974).

Trezevant cannot be distinguished by the majority’s analysis that the term of commitment there was for an indefinite term and the commitment here is for a definite term. Given the historic distinction between civil and criminal contempts [e. g., Ex parte Earman, 85 Fla. 297, 314—15, 95 So. 755, 760 (1923)] which the majority here properly invokes in rejecting appellant’s claims to the right of free appointed counsel, the Supreme Court might have regarded the Trezevant commitment as a coercive civil order void for lack of a finding that the defendant had power to obey or as a putative criminal contempt order void for lack of a definite term of imprisonment. The Court chose the latter course. But to say that the order before us specifies a definite term of imprisonment and thus satisfies a standard which the order in Trezevant did not is to convert this case from one of civil coercion to one involving asserted criminal contempt, which plainly it is not. Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla.1956); State ex rel. Byrd v. Anderson, 168 So.2d 554 (Fla.App. 1st, 1964).

The order before us in fact specifies an indefinite term of commitment. While Faircloth was committed to a maximum term of five months and twenty-nine days, the order contains provisions permitting Faircloth to purge himself of his contempt and thereby terminate his imprisonment by paying the specified arrearages. That provision of the order is characteristic of coercive civil contempt citations, and it is essential. Newton v. Newton, 287 So.2d 410 (Fla.App.2nd, 1974); Williams v. Williams, 277 So.2d 542 (Fla.App.2nd, 1973).

A finding that he upon whom the order operates must have present power to obey is required by the historic nature of the contempt process. We do not imprison for debt. Art. I, § 11, Fla.Const. Therefore, a finding that the debtor ordered to pay is able to pay and willfully refuses to do so is the touchstone of the proceeding: the essential fact, found to be a fact, which validates the process. Without that finding, aberrant judicial power might soon punish for debt alone, and that without the benefit of specific criminal charges, the assistance of counsel, trial by jury or other benefits of due process in a criminal case. The absence of such a finding, therefore, should not be easily tolerated. That there was evidence in the record on which the chancellor might have predicated such a finding does not supply the finding itself. If we are to abstain from appellate trials in deference to the chancellor’s superior ability to find the facts, we must insist, at least in these cases, that his findings be made explicit.

This is not to say that it was the chancellor’s responsibility, or Ms. Faircloth’s, to cast about for evidence that the defaulting Mr. Faircloth secretly has funds which he on oath declares he does not have. The burden is upon the party in default to prove not only that he is unable to comply with the court’s present order to pay but also that his present inability is due not to his fault or neglect but rather to circumstances beyond his control which intervened since the final decree ordering him to pay. Yandell v. Yandell, 33 So.2d 869 (Fla.1948); Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939); Naster v. Naster, 151 So.2d 313 (Fla.App.2nd, 1963), cert. disch., 163 So.2d 264 (Fla.1964). This burden of proof is cast upon him not by mere presumption of law, which vanishes upon the introduction of any evidence to the contrary [Locke v. Stuart, 113 So.2d 402 (Fla.App.1st, 1959); Leonetti v. Boone, 74 So.2d 551 (Fla.1954)], but by the court’s decree which created the obligation to pay. That decree, long since final and therefore invulnerable', is itself a finding that, as of the moment of its entry, Mr. Faircloth had the ability to make the required payments. Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939). As against such a decree, he will not be heard to say that he could not comply when the decree was entered.

Upon the affected party’s failure to discharge his burden of proving that he is disabled to pay by reason of intervening factors not due to his own neglect or fault, the chancellor may find as a fact that he continues to be able to pay, as was originally decreed, or that any disability was self-induced. And on that finding the chancellor may order the defaulting party to pay or be imprisoned for his contemptuous refusal to do so.

In the absence of essential findings by the chancellor, I dissent from the decision to affirm the order of commitment.


author: PER CURIAM. OWEN, Judge

text:
    Willie Lee ELAM, Appellant, v. STATE of Florida, Appellee.
    No. 75-46.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
    Richard L. Jorandby, Public Defender, Elliot R. Brooks and Craig S. Barnard, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon consideration of the briefs and oral argument and after examination of the record on appeal it is our opinion that no reversible error has been made to clearly appear. Accordingly, the judgment and sentence is affirmed.

Affirmed.

CROSS and MAGER, J J., concur.

OWEN, J., dissents with opinion.

OWEN, Judge

(dissenting).

Appellant, charged with breaking and entering a dwelling with intent to commit a misdemeanor, was convicted of attempted breaking and entering with intent to commit a misdemeanor. In my judgment appellant is entitled to a new trial.

Over appellant’s objection the court refused to instruct the jury to the effect that at the time of the entry the defendant had to have a fully formed, conscious intent to commit a misdemeanor. Instead, and apparently because the information charged only that the breaking and entering was with intent to commit a misdemeanor (without otherwise specifying a particular misdemeanor), the court charged the jury as follows:

“If the evidence establishes that the defendant did enter the dwelling house of Shirley Scott at any time, stealthily and without the consent of the owner or occupant, you may, and unless there are inconsistent facts or circumstances, you should infer the entry was with the intent to commit a misdemeanor.”

Appellant complains, and I think correctly so, that the quoted instruction fails to adequately cure the omission. It is an instruction in aid of proof and simply informs the jury that it may (and under some sets of facts should) infer that the entry was with the intent to commit a misdemeanor. The instruction does not inform the jury that in order to convict of the particular offense it must find that defendant had a fully formed conscious intent to commit a misdemeanor at the time of entry. The very gist of the crime is the intent entertained by the wrongdoer at the time of the breaking and entering. Vawter v. State, 63 So.2d 255 (Fla.1953). If the jury does not know this, telling it that it may or should infer intent from certain facts or circumstances leaves the jury free to assume that whether it draws such inference or not is of no significance. Giving the so-called “presumption charge” was perfectly proper, but it simply failed to cure the omission of an essential element of the offense.

Appellee contends that any error in this respect was rendered moot inasmuch as appellant was found guilty of the lesser included offense of attempted breaking and entering with intent to commit a misdemeanor upon which the court correctly instructed the jury. While it is true that the court instructed the jury that an attempt to commit a crime consists of the formation of an intention to commit that particular crime at that particular time and place, and the doing of some physical act toward and which was intended to accomplish the commission of the crime, this instruction did not cure the defect. The jury must first know the elements of the crime before it can determine that there was an intention to commit the crime.

Appellee also contends that since the information did not specify the particular misdemeanor appellant intended to commit at the time he unlawfully broke and entered into the residence, the matter of intent at the time of breaking and entering becomes totally inapplicable. That argument is patently without merit.


author: OWEN, Judge.

text:
    FLORIDA DEPARTMENT OF REVENUE, Appellant, v. W. O. NORVILLE et al., Appellees.
    No. 75-1185.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellant.
    Gary L. Vonhof of Johnson, Ackerman & Bakst, West Palm Beach, for appellees-Relocation and Development Systems, Inc. and James A. Carpinello.
   OWEN, Judge.

The State of Florida, Department of Revenue, a part of the executive branch of the government, was named as a defendant in a suit to cancel a Sheriff’s Deed to certain real property in Palm Beach County, the property having been ostensibly sold at a Sheriff’s sale for allegedly delinquent state sales tax. Other defendants included the purchaser of the property, who filed a cross-claim against the Department of Revenue alleging that the cross-defendant had slandered the title to the property. The State’s motion to dismiss the cross-claim on the grounds of sovereign immunity was denied and the State brings this interlocutory appeal from that order.

Appellant’s sole contention here is that the State had sovereign immunity and, therefore, the court lacked jurisdiction of the subject matter. See, Kirk v. Kennedy, 231 So.2d 246 (Fla.App. 2nd 1970). If the cross-claimant has a cause of action, an issue which we do not decide, it arose out of conduct of the State occurring on or about September 13, 1974. This was subsequent to the date that Fla.Stat. § 768.28 (Supp. 1974), which waived the State’s sovereign immunity for tort liability, became effective as to the executive branch of government. Thus, the issue before us must be decided adversely to appellant’s contention.

Affirmed.

WALDEN, C. J., and CROSS, J., concur.


text:
    G. A. HILBURN, Appellant, v. CRAWFORD AND COMPANY, a Foreign Corporation authorized to transact business within the State of Florida, Appellee.
    No. X-231.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1975.
    James S. Quincey, Clayton, Duncan, Johnston, Clayton, Quincey, Ireland & Fel-der, Gainesville, for appellant.
    W. C. O’Neal and John H. Haswell, Chandler, O’Neil, Avera, Gray, Lang & Stripling, Gainesville, for appellee.
   PER CURIAM.

We have studied the briefs, examined the record and heard oral argument. There was substantial competent evidence supporting the findings and decision of the trial court. The judgment is

Affirmed.

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


text:
    Jack COHEN, Appellant, v. Helen C. COHEN, Appellee.
    No. 75-1280.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
    Michael Sigman, Orlando, for appellant.
    H. Lee Bauman, Ellis Rubin Law Offices, Miami, for appellee.
   PER CURIAM.

Appellant, Jack Cohen, appeals an order entered by the trial court transferring venue of an action for dissolution of marriage to Dade County, Florida.

Appellant has failed to favor us with an appendix containing all pleadings and other parts of the record needed to determine this interlocutory appeal as required by Rule 4.2 F.A.R. 1973. Because of this deficiency we are precluded from reviewing the cause before us. We therefore must assume that the trial court ruled correctly in entering its order transferring venue to Dade County, Florida.

Affirmed.

WALDEN, C. J., and CROSS and OWEN, J J., concur.


text:
    David H. WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 75-605.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.

      Joe M. Mitchell, Jr., P. A., Melbourne, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Marie Bernard and Frank B. Kessler, Asst. Attys., Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant was convicted of a violation of the Drug Abuse Law and on this appeal assigns as error the denial of his motion to suppress certain tangible evidence seized as a result of a warrantless search of his automobile.

From our review of the record, examination of the briefs and consideration of the oral argument, we conclude that it was error to deny the motion to suppress. The information which the confidential informant furnished to the officer making the search was legally insufficient to be a basis for probable cause. See, Andersen v. State, 274 So.2d 228 (Fla.1973), cert. denied, 414 U.S. 879, 94 S.Ct. 150, 38 L.Ed.2d 124 (1973); Byrd v. State, 80 So.2d 694 (Fla.1955); Collins v. State, 65 So.2d 61 (Fla.1953).

The judgment is reversed and this cause is remanded with directions that appellant be accorded the opportunity to withdraw his plea of nolo contendere. See, State v. Ashby, 245 So.2d 225 (Fla.1971).

Reversed and remanded.

WALDEN, C. J., and REASBECK, JAMES, Associate Judge, concur.


author: SMITH, Judge.

text:
    Lawrence KELLY, Appellant, v. STATE of Florida, Appellee.
    No. Y-101.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1975.
    Gary R. Dunham, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   SMITH, Judge.

On this appeal from a judgment of conviction for possession of a controlled substance, we have considered appellant’s assertion that the traffic arrest to which the search was incident was a pretext for the search, in the sense described and condemned in State v. Holmes, 256 So.2d 32 (Fla.App.2nd, 1972), cert. disch., 273 So.2d 753 (Fla.1973), and consequently that the search of appellant s person and the seizure of the controlled substance were unreasonable by constitutional standards. We find that appellant’s custodial arrest for driving without a license was lawful and without pretext. The search was therefore proper. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).

Affirmed.

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


text:
    BOARD OF REGENTS of the State of Florida, a body corporate, for and on behalf of Florida Technological University, of the Department of Education, Division of Universities, Petitioner, v. Thomas H. MAHLER and Career Services Commission of the State of Florida, Department of Personnel, Respondents.
    No. X-386.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1975.
    Itehearing Denied Nov. 4, 1975.
    John D. Mahaffey, Jr., Orlando, for petitioner.
    Marc L. Lubet, of Levine & Cohen, Orlando, Robert L. Shevin, Atty. Gen., and Charles R. Ranson, Asst. Atty. Gen., for respondents.
   PER CURIAM.

Thomas H. Mahler, an employee of Florida Technological University, appealed his dismissal to the Career Service Commission which reversed. The University then petitioned this Court by writ of cer-tiorari asking review of the order of the Career Service Commission. We denied the writ.

Florida Statute 110.061(3) which, as amended, became effective June 25, 1974, provides as follows:

“The Career Service Commission may order the reinstatement of an employee, with or without back pay, which order shall be conclusive on the agency or officer concerned. The order may include an amount, to be determined by the commission and paid by the agency, for reasonable attorney’s fees, witness fees, and other out-of-pocket expenses incurred during the prosecution of an appeal against an agency in which the commission sustains the employee. The action of the commission shall be in writing and shall be served on the parties to such appeal either in person or by mail.”

Pursuant to the above quoted statute the Career Service Commission, upon sustaining the position of the employee, fixed and awarded attorney’s fees and costs to the employee, Mahler. Upon this Court denying the petition for writ of certiorari sought by the employing agency, the respondent employee, Mahler, filed a petition in this Court for attorney’s fees in accordance with the above quoted statute. While that petition was pending the University filed a petition for rehearing which was denied, whereupon the respondent employee filed a second petition in this Court seeking attorney’s fees incident to his successful resistance of the petition for rehearing.

It is settled law that attorney’s fees under such circumstances may not be awarded unless provided by statute or contract. The issue, therefore, to be by us resolved is whether F.S. 110.061(3) authorizes the award of attorney’s fees incurred during the prosecution of a proceeding in this Court or whether same only authorizes such fees incident to procedures before the Career Service Commission. Our reading of the above quoted statute leads us to the inescapable conclusion that the statute by its very terms relates only to proceedings before the Career Service Commission. Proceedings subsequent to the disposition of a cause by the Career Service Commission are neither mentioned nor alluded to. There is no language in the statute which we find may be construed to be applicable to post-commission proceedings.

Accordingly, respondent’s petitions for attorney’s fees are denied.

BOYER, C. J., MILLS, J., and TENCH, BENJAMIN M., Associate Judge, concur.


text:
    Jerry Ellsworth WARREN and Lumbermen’s Mutual Casualty Company, authorized to do business in the State of Florida, Petitioners, v. Bruce BURNS, a minor, by and through his mother and next friend, Betty Burns, and Betty Burns, Individually, Respondents.
    No. 75-543.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1975.
    W. Robert Mann, of Mann, Fay & Price, Bradenton, for petitioners.
    George K. Brown, Jr. of the Law Office of Robert H. Schultz, Bradenton, for respondents.
   PER CURIAM.

The petition for writ of certiorari is granted on authority of King v. Tyree’s of Tampa, Inc., Fla.App.2d, 1975, 315 So.2d 538, without prejudice to respondents’ right to file a motion under RCP 1.540.

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


author: PER CURIAM. SMITH, Judge

text:
    FLORIDA DEPARTMENT OF REVENUE, an agency of the State of Florida, Appellant, v. Joseph A. DeMARIA, Appellee.
    No. Y-104.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1975.
    Robert L. Shevin, Atty. Gen., James D. Whisenand and Joseph C. Millichamp, III, Asst. Attys. Gen., for appellant.
    Shalle Stephen Fine, Miami, for appel-lee.
   PER CURIAM.

The Order of the learned trial judge is adopted as the opinion of this Court, viz:

“Decision of this case turns upon the answer to this question:
‘Does a deed by which a corporation transfers real estate to its sole stockholder, subject to an outstanding mortgage which the stockholder does not “assume,” but which he pays, require a Florida documentary stamp tax ?’
“The answer is ‘No.’
“This question was squarely presented to the Supreme Court in the case of State ex rel. Palmer-Florida Corporation v. Green, Fla., 88 So.2d 493, and that Court held that such a deed does not require documentary stamps.
“The Department of Revenue seeks to distinguish that case by-pointing out that the deed there considered was not made subject to a mortgage which the grantee paid. It points out that the Court then observed that with respect to a deed from a corporation to its stockholders of unencumbered land, the stockholders did not pay a ‘reasonable determinable consideration’ for the conveyance as contemplated by Sec. 201.02, Florida Statutes. It also cites Kendall House Apartments, Inc. v. Department of Revenue, [Fla.], 245 So.2d 221, Resberry [Rasberry] v. Dickinson [Fla.App.], 243 So.2d 236, and River Park Joint Venture 315076 v. Dickinson, Leon County # 72-1699.
“These cases distinguish Palmer-Florida Corporation v. Green, supra, to the extent that the decision in that case turned upon a lack of consideration.
“However, Palmer-Florida Corporation v. Green also holds that under the circumstances of that case (identical with the cases at bar except for the mortgage) ‘the deed in question did not require documentary stamps because the grantees were not purchasers * * *.’ The Court also said ‘We find no legal support for the theory that the documentary stamp tax should be measured by the market value of the land transferred. It was a mere book transaction and was in no sense a sale to a “purchaser” as contemplated by Section 201.02, Florida Statutes, F.S.A.’
“These quotations lead to the conclusion that it was the nature of the transaction, rather than the difficulty in measuring the tax that rendered the deed exempt from documentary stamps.”

Affirmed.

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

SMITH, J., dissents.

SMITH, Judge

(dissenting):

The court today holds that § 201.02, F.S. 1973, imposes no tax on the deed of a closely held corporation conveying land to its stockholder subject to an outstanding mortgage debt but otherwise without consideration.

The statute imposes a tax only when there is consideration for the “execution, assignment, transfer or conveyance” and in an amount determined by the amount of consideration. While I therefore agree that the State has no taxable interest in transactions such as that dealt with in State ex rel. Palmer-Florida Corp. v. Green, 88 So.2d 493 (Fla.1956), there being in that case no payment by the grantee or shifting of an economic burden from the grantor, I would not extend that immunity to this case. Here DeMaria and his wholly owned corporation, grantee and grantor of a conveyance of land subject to a $60,000 mortgage in favor of a third party, plainly have agreed between themselves —we will imagine the fiction of separate identity which DeMaria sought by incorporating — to shift the burden of paying out the mortgage note from the corporation to DeMaria. DeMaria has made all mortgage payments since the conveyance in January 1973, the corporation has made none and there is no evidence that any other arrangement was intended. Whatever remedies the mortgagee may have against the corporation in the event DeMaria defaults in payment, it seems clear to me that, as between DeMaria and the corporation, there was consideration for the conveyance in the shifting to him of the burden of the mortgage debt. I would hold the deed taxable under the statute to the extent of the outstanding balance of the mortgage at the time of the transaction. Kendall House Apartments, Inc. v. Department of Revenue, 245 So.2d 221 (Fla.1971).


author: BOARDMAN, Acting Chief Judge.

text:
    A. G. SPANOS ENTERPRISES, INC., Appellant, v. AMERICAN STRUCTURES, INC., Appellee.
    No. 75-445.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1975.
    Robert C. Burke, Jr., Associate of George A. Routh, Clearwater, for appellant.
    Allen P. Allweiss of Allweiss & Anderson, St. Petersburg, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant timely appeals from an adverse final judgment in favor of appellee in an action for breach of contract. The parties had entered into a written construction contract wherein appellee had agreed to furnish all necessary labor, equipment and materials for the concrete and block work, including pouring of the lintels of the buildings being constructed for appellant. During the progress of the work, the appellee complained that the periodic draw payments were not being paid to it in accordance with the provisions of the contract. Appellee, being unable to reach a satisfactory solution of this dispute, discontinued further work and left the job site. The appellee filed suit for damages against appellant.

Upon reviewing the briefs, record and oral argument, we affirm the judgment of the trial court as hereinafter modified.

The final judgment entered against the appellant was in the sum of $56,331.29, plus interest in the sum of $5,633.13. Apparently the figure of $56,331.29 was arrived at by the trial court after deducting-several unpaid claims of subcontractors paid by appellant on behalf of appellee, which included a payment to Clearwater Concrete, one of the subcontractors, in the sum of $74,918. We have been unable to find any evidence in the record to support payment of this amount. However, we do find in the record sufficient evidence showing that the sum of $84,019.80 was paid to Clearwater Concrete by appellant on behalf of appellee.

In all fairness, when discussing the fact that a payment of $84,019.80 had been made to Clearwater Concrete, the trial court was told by counsel for the appellee that “ . . . we’ve stipulated on a different amount, I think, . . . ” The record, however, does not disclose any stipulation on this subject.

For the above-stated reason, the final judgment in favor of appellee is hereby modified to $47,229.49 plus interest in the sum of $4,722.95.

Accordingly, the final judgment is

Affirmed as modified.

GRIMES and SCHEB, JJ., concur.


text:
    Paris G. SINGER, Appellant, v. Jane E. SINGER, Appellee.
    Nos. 73-671 and 73-1254.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 17, 1975.

      Harry G. Carratt, Morgan, Carratt, & O’Conner, P.A., Ft. Lauderdale, for appellant.
    Ray H. Pearson and Sherryll M. Dunaj, Frates, Floyd, Pearson, Stewart, Proenza & Richman, P.A., Miami, for appellee.
   ON APPELLEE’S PETITION FOR REHEARING GRANTED

OWEN, Judge.

On July 18, 1975 we filed an opinion and decision of this court modifying in two respects the final judgment of dissolution of marriage which had been appealed. Appellant and appellee each filed a petition for rehearing. We denied the appellant’s but granted the appellee’s and allowed oral argument thereon.

Upon reconsideration of the briefs, oral argument and the record, we have concluded that the final judgment as entered by the trial court properly construed and gave effect to the parties’ antenuptial agreement executed by them on the eve of their marriage eight years prior to the filing of this suit. Accordingly, by separate order entered today we have withdrawn the opinion and decision of this court filed July 18, 1975 and substitute therefor this opinion and decision in which we hold that no error has been demonstrated and the final judgment should be and is hereby affirmed.

Affirmed.

WALDEN, C. J., and MAGER, J., concur.

Ordered upon appellee’s petition for rehearing filed August 4, 1975 and oral argument granted thereon that the opinion and decision of this court filed July 18, 1975 is hereby withdrawn and vacated and the opinion and decision of this court filed this date, wherein the final judgment appealed is affirmed without change or modification, is substituted therefor, and further,

Ordered that appellant’s August 22, 1975 Motion for Leave to File Response to Ap-•pellee’s Petition for Rehearing was granted, and said response filed September 16, 1975 has been noted.


author: WALDEN, Chief Judge.

text:
    Hyman R. LASH, Appellant, v. Dale NOLAND, doing business as Noland Golf Cart Service, et al., Appellees.
    No. 74-714.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Nov. 18, 1975.

      Cecil C. Martin and Nolan Carter, Carter, Anstine, Martin & Barnett, Orlando, for appellant.
    John W. Bussey, III, and Richard E. Trapp, Sands, Smalbein, Eubank, Johnson, Rosier & Bussey, Orlando, for appellees-James A. Noland and Noland Golf Cart Service.
    Ronnie H. Walker, Howell, Kirby, Montgomery, D’Aiuto & Dean, Orlando, for appellee-Club Car, Inc.
   WALDEN, Chief Judge.

This is an appeal from a directed verdict in favor of defendants in a personal injury action. We affirm.

Plaintiff went to play golf at a country club in New Smyrna Beach. He drove to the first tee in a golf cart obtained from the club, and parked the cart on an incline. He set the brake and exited the cart to speak to friends. Thereafter, the cart rolled backward, pinning plaintiff against an automobile parked nearby, causing him injury. Plaintiff sued the manufacturer, Club Car, Inc., Noland Golf Cart Service, and Dale Noland, individually, for negligence.

The only testimony presented by plaintiff was that of the club golf professional who testified that he checked the cart after the accident:

“I found the brakes on that particular cart, only one time in several tests, released itself, being depressed only a third of the way.”

and

“When the brake was in the fully depressed position, then it would hold adequately.”

Plaintiff in his appeal relies heavily upon the golf professional's testimony that he had had complaints about the brakes before. Plaintiff presented no expert testimony, and defendant’s expert testified that the braking system design was far superior to that used in other golf carts.

In essence, there was no allegation, nor any proof, of negligence, see City Cab v. Green, 308 So.2d 540 (4th DCA Fla.1975), sufficient to entitle a plaintiff to have the case submitted to a jury. That the accident happened is not sufficient, Stolmaker v. Bowerman, 100 So.2d 659 (3d DCA Fla. 1958):

“It is well settled that the mere occurrence of an accident is not enough to establish the negligence of anyone. . . . A careful reading of the record in this case reveals that there was an accident and that someone may have been negligent. . . . When negligence is not established it is the duty of the trial court to direct a verdict against the party having the burden of such proof.” Id. at 660.

Conroy v. Briley, 191 So.2d 601 (1st DCA Fla.1966). There was no evidence presented to even support an inference that the brake portion of the cart was faulty, and it has been held that a defect must be proven to hold a manufacturer liable in negligence or warranty, Cromaty v. Ford Motor Co., 308 So.2d 159 (1st DCA Fla.1975); Mattes v. Coca Cola Bottling Co. of Miami, 311 So.2d 417 (4th DCA Fla.1974); Royal v. Black & Decker Mfg. Co., 205 So.2d 307 (3d DCA Fla.1967). But see, McCarthy v. Fla. Ladder Co., 295 So.2d 707 (2d DCA Fla.1974), and Armor Elevator Co. v. Wood, 312 So.2d 514 (3d DCA Fla.1975).

Affirmed.

CROSS and DOWNEY, JJ., concur.

      . “In Ford Motor Company v. Cochran [Fla.App.1967, 205 So.2d 551], we held that it was not necessary for the plaintiff to prove a specific defect in the product which injured him. In the proper case a defect can be inferred from the fact that a new product performs in such a manner as to preclude any other reasonable inference wMch would suggest that the product was not defective." 295 So.2d at 709-710.

      . “We hold no reversible error has been shown. The court correctly denied defendants’ motions for directed verdict. There was competent substantial evidence upon which the jury could, and no doubt did find the warranty was breached where the [elevator] locking device or machinery failed when called upon to perform its purpose or function, and thereby was defective in design, construction or other inherent capacity. The plaintiff was not under a duty to pinpoint any exact mechanical deficiency for or by reason of which the device proved defective and failed, and a jury charge to the contrary requested by the defendants was properly refused.” 312 So.2d at 515.
      We note these cases depart from the point of law as stated in this opinion. It is of use then to mention that in this case there was no evidence presented “to preclude any other reasonable inference which would suggest the product was not defective.” Mr. Lash may simply have neglected to properly depress the brake, a balancing factor not present in the ladder or elevator cases. We, therefore, do not discuss the issue of the apparent conflict in Florida case law as to the necessity of proving defects in products liability suits.


author: MILLS, Judge. BOYER, Chief Judge

text:
    Raymond C. PARKER, Sr., and Patricia A. Parker, his wife, Appellants (Plaintiffs), v. MAULE INDUSTRIES, INC., a Florida Corporation, Appellee (Defendant).
    No. V-274.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1975.
    Anthony I. Provitola and Michael Mc-Dermott, of Provitola & McDermott, De-land, for appellants.
    Alfred A. Green, Jr., of Green, Strasser & Hammond, Daytona Beach, for appellee.
   MILLS, Judge.

Plaintiffs seek review of an adverse final judgment entered in a negligence action following a jury trial.

The issue here is whether the trial court erred in giving the jury Florida Standard Jury Instruction 3.8 which charged the jury that assumption of the risk was a complete bar to plaintiffs’ recovery. The trial court erred.

Plaintiffs’ complaint alleges that defendant negligently operated a truck so as to cause plaintiff Parker to fall from it and suffer injuries. Defendant’s answer denies negligence and affirmatively charges Parker with contributory negligence and assumption of the risk.

In our opinion, the defense of assumption of the risk is no longer a complete bar to a plaintiff’s recovery. Assumption of the risk should be treated as a special form of and merged with contributory negligence. If the legal cause of injury to a plaintiff is a combination of the defendant’s negligence and the plaintiff’s assumption of the risk, the amount of the recovery would be in proportion to the degree of the negligence of both parties. Hoffman v. Jones, 280 So.2d 431 (Fla.1973), and Rea v. Leadership Housing, Inc., 312 So.2d 818 (Fla.App. 4th, 1975).

We are aware that the Third District took a contrary position in Dorta v. Blackburn, 302 So.2d 450 (Fla.App. 3d, 1974), however, we adopt the position taken by the Fourth District in Rea, supra, as it is consistent with the rationale of Hoffman, supra, adopting comparative negligence.

Reversed and remanded for a new trial consistent herewith.

McCORD, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I must respectfully dissent. The Supreme Court of Florida carefully and clearly declined to rule on the point here involved in its landmark decision in Hoffman v. Jones (Sup.Ct.Fla.1973, 280 So.2d 431). Many, if not most, of the other jurisdictions which have adopted the doctrine of comparative negligence still recognize the doctrine of assumption of the risk as a valid defense and a bar (upon proof) to a plaintiff’s recovery. (See Dorta v. Blackburn, Fla.App. 3rd 1974, 302 So.2d 450 and cases therein cited) There is, in my view, a distinction between contributory negligence and assumption of risk. (See Byers v. Gunn, Sup.Ct.Fla. 1955, 81 So.2d 723 and Rea v. Leadership Housing, Inc., Fla.App. 4th 1975, 312 So.2d 818) The fact that the difference is sometimes difficult to distinguish is no novelty to the law. We are faced with such “gray areas” virtually daily-

In my view, assumption of risk is, and ought to be, when properly defined and proven, a complete defense and bar in an action based on negligence. (I conceive a distinction between an action based upon negligence and an action based upon an intentional tort.) The point can best be demonstrated by a not so absurd example:

Assume Mr. Persistent requests his friend and neighbor, Mr. Goodhearted to drive him (Mr. Persistent) home from a party. Goodhearted explains to Persistent that he would very much like to accommodate him, but for various reasons feels that he should not do so. Persistent persists and becomes beligerent. Finally, Goodhearted, a lawyer, says:

“All right, I have explained to you that my vision is poor and my glasses are broken. I am slightly intoxicated and my reflexes have become impaired. The tires on my car are slick and my brakes defective. The weather is inclement and the traffic heavy. Since you insist and since I am your friend I will drive you home, exercising my very best ability, but I tell you now that if there is an accident you have assumed the risk and I will not be responsible for any damages sustained by you.”

Persistent accepts the requested ride and sure enough there is an accident in which Persistent is seriously injured. Except for the simple act of voluntarily getting into Goodhearted’s automobile, following the conversation above mentioned, there is no other evidence of any negligence on the part of Persistent. Under such circumstances, unless the accident resulted from a tort intentionally committed by Goodhearted, I cannot conceive under any system of justice how Persistent could be permitted to recover. If the defense under such circumstances is not to be referred to as “assumption of the risk” what other terminology might be employed ?

As above stated, I am of the view that assumption of risk not only is but ought to be a viable valid complete defense in an action based on negligence. As of this date, the Supreme Court of Florida has not ruled on the point. There is a conflict among the other District Courts of Appeal. Until such time as the Supreme Court of Florida specifically rules to the contrary or until such time as the legislature speaks on the subject, I would honor the doctrine.


author: McCORD, Judge.

text:
    Cameron MITCHELL, a/k/a Evander Adams, Appellant, v. STATE of Florida, Appellee.
    No. W-485.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1975.

      Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant was charged with murder in the second degree and was convicted of manslaughter. This appeal is from the judgment and sentence.

Appellant first contends that the trial court erred in refusing his request for jury instructions on (1) assault with intent to commit murder in the first degree, (2) assault with intent to commit murder in the second degree, (3) assault with intent to commit manslaughter, (4) aggravated assault, (5) assault and battery, and (6) bare assault. Instructions were given on the offense charged as well as the lesser degrees of that offense — third degree murder and manslaughter.

In Anderson v. State, Fla.App. (1st), 235 So.2d 738 (1970), this court held that the trial court did not commit error in refusing to give a requested instruction on aggravated assault where the appellant was tried and convicted of murder in the second degree by killing the victim with a shotgun. There, this court said:

“It is our view that the trial court correctly refused to instruct the jury on the offense of aggravated assault as requested by appellant. Such a crime is not a lesser offense included within the greater offense of murder. This question was raised before the Second District Court of Appeal in the case of Sadler v. State, and decided adversely to appellant’s contention. We agree to the decision in the Sadler case and hold that it controls the question presented here for review.”

Prior to Anderson, the Supreme Court in Brown v. State, Fla., 206 So.2d 377 (1968), set up four categories of situations in which charges upon lesser included offenses may or may not be required depending upon various circumstances discussed in the opinion. The four categories were:

1. Crimes divisible into degrees;
2. Attempts;
3. Necessarily included lesser offenses; and
4. Offenses which may necessarily be included depending upon the accusatory pleading and the evidence.

In the case sub judice we are concerned only with categories 3 and 4. Appellant contends that the omitted charges fall into category 3; that they are all necessarily included offenses of murder in the second degree and, therefore, charges upon them were mandatory. Such a ruling would be contrary to our ruling in Anderson, supra, in Martin v. State, Fla.App. (1st), 310 So. 2d 747 (1975), and contrary to the ruling of the Second District Court of Appeal in Sadler v. State, Fla.App. (2d), 222 So.2d 797 (1969); and contrary to the Supreme Court’s ruling in a later Brown case, Brown v. State, Fla., 245 So.2d 68 (1971), but would be compatible with the opinion of the Fourth District Court of Appeal in Appell v. State, Fla.App. (4th), 250 So.2d 318 (1971), cert. den. Fla., 257 So.2d 257. After the second Brown case, above, the waters were clouded on this subject by the Supreme Court’s denial of certiorari in Appell and its subsequent opinion in State v. Anderson, Fla., 270 So.2d 353 (1972), in which it appeared to place its stamp of approval upon Appell (State v. Anderson is an entirely different case from Anderson v. State, supra).

Fortunately for our decision in this case, the Supreme Court in its recent opinion in Gilford v. State, Fla., 313 So.2d 729 (1975) has clarified its ruling in the first Brown case in relation to the question with which we are here confronted. Gilford rules that before a charge is required under either category 3 or category 4 offenses (listed in the original Brown decision) it is essential that the proof of the lesser included offense be present stating:

“If there is no evidence to support a lesser included offense, then it is mockery to tell the jury that they can convict on such a lesser included charge, just as it would be wrong to do so if such a charge were not within the ‘accusatory pleading.’ ”

In the case sub judice there is no evidence other than the deceased was killed by the accused, the defense being self-defense. The denied charges would only be applicable to nonhomicide cases, or to factual situations such as that found in Turner v. State, Fla.App. (1st), 314 So.2d 183, opinion filed June 16, 1975 (as brought out in the special concurring opinion).

Appellant in his reply brief cites this court’s opinion in Spigner v. State, Fla.App. (1st), 304 So.2d 496. In that opinion, this court stated that it was error (though there held to be harmless) for the trial judge in that first degree murder trial not to have instructed upon requested charges for attempt and assault with intent to commit the crime charged. In the case sub judice, appellant requested the various “assault with intent” charges previously mentioned but did not request an attempt charge. There was no error in the trial judge not giving the attempt instruction as it was not requested. See Brown v. State, Fla., 206 So.2d 377, and Brown v. State, Fla., 124 So.2d 481. Although appellant requested the “assault with intent” instructions, in the light of Gilford, supra, it was not error for the trial judge not to give them as there was no evidence to support them. We find appellant’s first point to be without merit.

Turning now to appellant’s second point, the state in its cross-examination of appellant asked why he carried a loaded gun to the Thomas home (where the victim was shot). Appellant answered that he had had it in his pocket ever since there was a run-in with the deceased and he attempted to then quote a remark allegedly made to him previously by a sister of the deceased’s (and the appellant’s former) girlfriend. The state objected to the statement as hearsay. Appellant’s counsel then contended that the statement would show appellant’s state of mind as to “why he might be harmed.” Appellant made no proffer of the statement. While threats previously made by the deceased are admissible under some circumstances, no proffer of the witness’ disallowed testimony having been made by appellant, we cannot speculate as to what it would have been in determining whether or not it was error not to allow it. As stated by the Third District Court of Appeal in Powers v. State, Fla.App. (3d), 224 So.2d 411 (1969):

“An appellate court is not justified in finding error on an evidentiary ruling by a trial judge when no proffer of the evidence is preserved for review.” (citations omitted)

Appellant’s last point contends the trial court erred in allowing the state to question appellant on cross-examination as to his use of two names. On direct examination, appellant testified that he was known by two names, Cameron Mitchell and Evander Adams. During cross-examination, appellant was asked under what conditions he was known as Cameron Mitchell. Appellant objected to the question and the objection was overruled. After a discussion with the court out of the presence of the jury, the state reframed its question (but with the continuing objection of appellant). The questions and answers were then as follows:

“Q Your correct legal name is Cameron Mitchell?
A Yes, it is.
Q That’s the name you’re presently going under?
A Yes, sir, it is.
Q Would you please tell me why you enlisted in the United States Marines under the name of Evander Adams instead of your correct legal name ?
A Because in 1965 I enlisted in the Army. I went to Vietnam and came home from Vietnam a junkie. I got out of the Army in 1968 a junkie.
I hobbled around and scrounged a living as a junkie for so long that I decided- — -well, you know, it was just getting to me, and I wanted to prove to myself that I could, you know, be a credit as a human being. So, I chose the Marine Corps and enlisted under the name — a fraud name and did this — I couldn’t get back into the Army.
Q Have you ever been convicted of a crime ?
A No.”

Appellant having voluntarily brought out on direct examination that he had used two different names, the above questions by the state were legitimate cross-examination. When a defendant is sworn as a witness his reputation for truth and veracity is made an issue. His testimony admitting that he used two entirely different names opened the door to cross-examination by the state as to why he falsified his name when he enlisted in the Marines. Such was relevant to his credibility as a witness. He could be cross-examined like any other witness. Ivey v. State, 132 Fla. 36, 180 So. 368 (1938).

Affirmed.

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


text:
    James E. POOLE, Appellant, v. Paul Morrison GISE and Pauline S. Gise, his wife, et al., Appellees.
    No. X-439.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
    Richard A. Krause, Ormond Beach, for appellant.
    S. C. Van Voorhees, and Monroe E. McDonald, Sanders, McEwan, Mims & McDonald, Orlando, for appellees.
   PER CURIAM.

Affirmed. Wells v. Van Arnam, 271 So. 2d 186 (Fla.App. 1st, 1973), cert. den., 275 So.2d 256 (Fla.1973); Castle v. Struhl, 293 So.2d 798 (Fla.App. 3rd, 1974); and Bakewell v. Shepard, 310 So.2d 765 (Fla.App. 2nd, 1975).

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


text:
    Florus F. NORMAN, Appellant, v. BANK OF HAWTHORNE, a Florida banking Corporation, Appellee.
    No. X-298.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1975.
    Selig I. Goldin, Goldin & Turner and William D. Reynolds, Gainesville, for appellant.
    William C. Andrews, Andrews & De-Laney, Gainesville, for appellee.
   PER CURIAM.

Appellant here appeals a summary final judgment entered by the trial court in favor of appellee. The crux of the holding of the learned trial judge was that there was no genuine issue as to any material fact and that a certain certificate of deposit in the names of appellant and her husband, the names being joined by the word “or”, was not held as tenants by the entireties. Appellant’s affidavit, which was before the trial court, stated, inter alia, that “At the time the plaintiff and her husband obtained the certificate of deposit it was the desire and intent of plaintiff and her husband that the certificate of deposit be a tenancy by the entirety and at all times pertinent the plaintiff and her husband treated the certificate of deposit as a tenancy by the entirety.”

The Supreme Court of Florida has held that the conjunction employed is not determinative. (Hagerty v. Hagerty, Sup. Ct.Fla.1951, 52 So.2d 432, First National Bank of Leesburg v. Hector Supply Co., Sup.Ct.Fla.1971, 254 So.2d 777)

A trial court, in ruling on a motion for summary judgment, may not resolve controverted issues of fact. The principles of law applicable to summary judgment have been heretofore thoroughly discussed by this Court (Connell v. Sledge, Fla.App. 1st 1975, 306 So.2d 194, Forrest v. Carter, Fla.App. 1st 1975, 308 So.2d 141 and Burlingham v. Allen, Fla.App. 1st 1975, 317 So.2d 781, opinion filed August 13, 1975) and nothing will be added to the jurisprudence of this State by again reciting those principles here.

We here express no view as to what the true facts are, as such is not our prerogative. Neither do we speculate as to the proper disposition of the case following the adducing of evidence at trial. (We note that the record before us does not reveal a demand for jury trial.) We here only hold that sub judice “the pleadings * * * together with the affidavits * * show that there is” a genuine issue as to a material fact, thus prohibiting entry of summary judgment. (Rule 1.510(c) RCP)

Reversed and remanded.

BOYER, C. J., RAWLS, J., and SACK, MARTIN, Associate Judge, concur.


text:
    William F. COX, Appellant (Petitioner), v. Eleanor Louise Messer COX, Appellee (Respondent).
    No. Y-51.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
    Felix A. Johnston, Jr., Woods & Johnston, Tallahassee, for appellant.
    Robert J. Angerer, Tallahassee, for ap-pellee.
   PER CURIAM.

Upon considering the briefs, record and oral arguments, we find no reversible error. Accordingly, the final judgment is

Affirmed.

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


text:
    Roger W. FOOTE, Appellant (Respondent), v. Dianne F. FOOTE, Appellee (Petitioner).
    No. Y-77.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
    Harry Lewis Michaels, Michaels & Patterson, Tallahassee, and Roger W. Foote, in pro. per., for appellant.
    Thomas F. Tompkins, Kelley, Tompkins, Frazier & Kelley, Fort Lauderdale, and J. Eugene Kelley, Jr., Cotton, Shivers, Gwynn & Daniel, Tallahassee, for appellee.
   PER CURIAM.

Upon considering the briefs, record and oral arguments, we find no reversible error. Accordingly, the final judgment is

Affirmed.

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


author: BOYER, Chief Judge.

text:
    Sonny MARSHALL and Silvia P. Hanson, Appellants, v. STATE of Florida, Appellee.
    No. Y-153.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellants, defendants below, were charged, tried, and found guilty by a jury of an unlawful sale of cocaine. Both defendants now appeal, alleging that the trial court erred in refusing to allow their attorney to see notes relied on by a prosecution witness in refreshing his memory. Appellant Marshall also asserts that, as to him, the trial court erred in failing to grant his motion for judgment of acquittal made at the close of the state’s case.

The narcotics transaction which is the subject of this case occurred on October 21, 1974, when law enforcement trainee James Moss, an undercover agent working for the Jacksonville Sheriff’s Office, ventured into a specified area and began asking individuals if they were holding drugs. One of these individuals was appellant Marshall who answered Agent Moss affirmatively. Agent Moss was instructed to come by appellant Marshall’s home later which he did. He was admitted into the home by appellant Hanson. According to Moss at trial, appellant Marshall remained on the floor, cleaning a heater, the entire time that Moss was in the house. When asked if he had any cocaine, appellant Marshall stated that appellant Hanson would get it. Appellant Hanson left the room and returned a few seconds later with a bag of cocaine. She handed the bag to Moss who gave her $25 in return. Moss then left the house.

During cross-examination, Moss admitted that he had referred to certain notes in order to refresh his memory. He did not have these notes present with him at trial but apparently had referred to them before trial began. Defense Counsel’s motion to see the notes was denied by the trial court. At the conclusion of the presentation of the state’s case, the defense moved for a directed verdict of acquittal. Instead of ruling on the motion immediately, the trial court noted that it would take the motion under advisement until the defense rested its case. When the defense did rest, counsel renewed the motion for directed verdict which was denied.

Appellants assert that, on the basis of State v. Johnson, Sup.Ct.Fla.1973, 284 So.2d 198, they are entitled to a new trial at which the trial court should be instructed to conduct an in camera review of the notes of witness Moss. The Supreme Court in the Johnson case held that the production and use of police statements for impeachment purposes by way of cross-examination is to be allowed in accordance with the sound discretion of the trial court. After carefully scrutinizing the record in this case, we conclude that the learned trial judge did not abuse her discretion. Our holding in this regard is buttressed by the fact that the witness did not utilize the notes in question in the courtroom for the purpose of refreshing his memory while he was testifying. Normally, a witness will not be compelled to produce such notes where they are used solely out of court, unless the trial court in its discretion orders otherwise. (See Kimbrough v. State, Fla.App. 1st 1969, 219 So.2d 122)

One other point remains for our consideration. Appellant Marshall argues that, at best, the evidence adduced by the state at trial established him as a mere broker in the drug transaction which is insufficient to support a conviction for sale of a controlled substance under the holding of this Court in Dent v. State, Fla.App. 1st 1974, 301 So.2d 475. The Dent case involved two separate drug transactions which the defendant arranged. Although the defendant received money as a result of the narcotics purchases, it was clear that he was being compensated not for the sale itself but for his services in arranging the sale. Because the defendant was functioning as a mere broker in the transactions, this Court reversed his conviction for sale of illegal drugs while affirming his conviction for possession. The factual situation in the case sub judice is slightly, yet crucially, different. Here, appellant Marshall told agent Moss that he had some cocaine for sale. Acting under appellant Marshall’s express direction, appellant Hanson proceeded to obtain the illegal substance from another room. Under these circumstances, it cannot be said that appellant Marshall was merely acting as a broker.

In any event, the issue has now been resolved adversely to appellants by the Supreme Court of Florida in State v. Dent, Sup.Ct.Fla. 1975, 322 So.2d 543, wherein the Supreme Court held that the conviction of a person for a crime which he did not commit will nevertheless be sustained if the proof reveals that he aided, abetted, or procured its commission. (See also State v. Roby, Sup.Ct.Fla.1971, 246 So.2d 566)

We note briefly a final point raised by appellant Marshall. He urges that it was error for the trial court to take under advisement his initial motion for a judgment of acquittal made at the conclusion of the state s case instead of immediately ruling thereon. While normally it is the better procedure to rule immediately on such a motion, it is not reversible error to proceed as the learned trial judge did sub ju-dice. When no objection is made, the defendant treats the motion as denied. (Smith v. State, Fla.App. 1st 1972, 265 So. 2d 538, 539; quashed on other grounds, Sup.Ct.Fla.1973, 279 So.2d 27) Here, no objection was raised, and no motion was made to require the court to rule on the motion of acquittal.

Having found that the able and learned trial judge committed no reversible error, we affirm.

Affirmed.

RAWLS and McCORD, TT-, concur.