author: McNULTY, Chief Judge.

text:
    STATE of Florida, Appellant, v. Alexander ROBINSON, Appellee.
    No. 75-1506.
    District Court of Appeal of Florida, Second District.
    July 21, 1976.
    Rehearing Denied Sept. 8, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    G. Robert Schultz, St. Petersburg, for appellee.
   McNULTY, Chief Judge.

The state appeals from an order discharging appellee under the 90-day juvenile speedy trial rule and dismissing the first degree murder charge against him herein. We reverse.

Appellee turned 18 on July 29, 1974. Thereafter, he was arrested on April 15, 1975 for a murder allegedly committed on January 28, 1974, when he was 17. No indictment or information had been filed at the time of his arrest.

Now, prior to July 1,1974 the age of majority for purposes of judicial treatment of juveniles was 17. After that date, the dividing age was 18. To facilitate the changeover, the Florida Supreme Court adopted Transition Rule 18 which provides in material part as follows:

“Any person who is under the age of 18 years on July 1, 1974, [which would have included appellee who wasn’t 18 until July 29,1974] and who is under a pending charge as an adult in any court of this State with a violation of law occurring prior to the time that person reached the age of 18 years, and which charge has not yet been disposed of (except those charged under Fla.Stat. § 39.02(5)(c) and § 39.09(2)), shall be transferred to the juvenile division for the circuit in which he was charged and shall thereafter be treated in that case in all respects as a child. . . . ” (Italics supplied.)

The pertinent portions of § 39.02(5)(c), F.S. 1973, referred to in Transition Rule 18, read:

“A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court . unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult. . ” (Italics supplied.)

Initially, and this is critical as will be apparent, we interpose to hold here that when speaking of divestiture of “jurisdiction” of “the court” in this section, the legislature (in the light of the adoption in 1972 of the new Article V of our constitution, which consolidated juvenile courts with circuit courts) must necessarily have meant the jurisdiction of the juvenile division of the circuit court. Prior to the new Article V, the language of the predecessor of this section expressly referred to the jurisdiction of the “juvenile court,” now non-existent; so when considered properly in context with the entire § 39.02, F.S.1973 (relating to “jurisdiction”), there being but one court now, the conclusion is inescapable that the present section creates two separate and mutually exclusive jurisdictions within the circuit court — that vested in the juvenile division as it relates to the authority to handle juveniles, and that vested in the circuit court generally as it is exercised over adults.

One other statutory provision is germane, § 39.06(7), F.S.1973, which provides:

“The jurisdiction of the court shall attach to the child and the case when the summons is served upon the child, a parent, or legal or actual custodian of the child or when the child is taken into custody with or without service of summons and before or after filing of a petition, whichever first occurs, and thereafter the court may control the child and case in accordance with this chapter.” (Italics supplied.)

Returning now to the additional operative facts of this case, appellee was never processed as a juvenile after his arrest herein. From the beginning he was processed as an adult. Some four and a half months after his arrest, an indictment was returned and filed fixing the degree of the murder with which he is charged at first degree, a capital offense.

No motion for discharge under any speedy trial rule was made at any time until the day of trial, 178 days after appel-lee’s arrest, when such a motion as provided for under the juvenile rules was made. Construing the aforequoted Transition Rule 18, the trial judge granted the motion finding that appellee, while over 18, should nevertheless have been processed initially as a juvenile, thus being entitled to the benefits of the applicable 90-day speedy trial rule. The court thereupon concluded that, the 90 days having run prior to the filing of the indictment, appellee was entitled to discharge. We cannot agree.

We do agree that reading Transition Rule 18 in pari materia with the aforequoted statutes compels the conclusion that appel-lee, when arrested, should have been treated as a juvenile until such time as the indictment was returned charging him with the capital felony; and had the juvenile speedy trial rule been invoked the day before the indictment was filed, he may well have been entitled to discharge. But we think the trial judge went astray when he entertained a motion for discharge under the juvenile speedy trial rule when none had been filed prior to the juvenile division having lost jurisdiction. This, under § 39.-02(5)(c), supra, occurred immediately upon the filing of the indictment.

A motion for discharge under a speedy trial-rule must timely be made; that is to say, it must be made some time prior to trial or prior to some other critical point, such as here, at which the court empowered to grant it would lose jurisdiction to do so. Appellee was under the jurisdiction of the adult division of the circuit court at the time he made his motion for discharge. Moreover, and again pursuant to § 39.-02(5)(c), supra, he was to be “handled in every respect as if he were an adult.” (Italics supplied.) This includes, we think, amenability to the adult speedy trial rule, viz., a 180-day period, computable from the date of arrest. Under this rule, appellee was not entitled to discharge at the time he made his motion.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings under the outstanding indictment herein.

GRIMES and SCHEB, JJ., concur.

      . Rule 8.120, R.J.P.

      . Section 39.01(6), F.S.1973.

      . Section 39.01(6), F.S.1975.

      . (Fla.1974), 297 So.2d 5.

      . Section 39.02(6)(c), F.S.1971.

      . See Johnson v. State (Fla.1975), 314 So.2d 573.

      . Cf. Schulkin v. State (Fla.App.3d 1973), 287 So.2d 137; Morris v. State (Fla.App.3d, 1972), 267 So.2d 99, cert. denied (Fla.1973), 275 So.2d 251.

      . Rule 3.191, RCrP.


source: Caselaw Access Project

author: McNULTY, Chief Judge. BOARDMAN, Judge

license: Public Domain

text:
    INCOME DEVELOPMENT CORPORATION and Edward K. Mathews, President, Petitioners, v. Gerald A. LEWIS, Comptroller of Florida, sitting as the head of the Florida Department of Banking and Finance, Respondent.
    No. 76-32.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 1976.
    Rehearing Denied Sept. 9, 1976.

      John W. McWhirter, Jr., of Cason, McWhirter, Henderson & Stokes, Tampa, for petitioners.
    Edward E. Kuhnel, Gen. Counsel, and Earl Archer, Asst. Gen. Counsel, Office of the Comptroller, Tallahassee, for respondent.
   McNULTY, Chief Judge.

Pursuant to the Administrative Procedure Act, we review by certiorari the two-year suspension of the mortgage brokerage license issued to the corporate petitioner and its president and sole owner, Mathews. We affirm in part and reverse in part.

Respondent, as the State Comptroller and sitting as the head of the Florida Department of Banking and Finance, confirmed and adopted the recommendations of a hearing examiner for the Division of Administrative Hearings and found the petitioners guilty of: (1) failing to maintain an escrow account as required by § 494.-05(l)(f), F.S.1973; (2) failing to maintain and preserve closing statements in the records of their transactions as required by § 494.06(3), F.S.1973; and (3) charging fees in excess of those allowed by the provisions of § 494.08(4), F.S.1973. A careful review of the record persuades us that there was competent, substantial evidence to support the conclusions of the hearing examiner and respondent with respect to the first two specifications. The specification with respect to excessive fees, however, is necessarily predicated on another subsection of that statute, i. e., § 494.08(3), F.S.1973, which we think is constitutionally void for vagueness.

Subsection (4) of § 494.08, supra, as noted, prescribes the maximum fees or commissions which may be charged by a licensed mortgage broker. These máxi-mums, however, are modified by the preceding subsection of that statute, i. e., the aforesaid subsection (3), which provides that:

“(3) No person shall charge or exact directly or indirectly from the mortgagor a fee or commission in excess of the maximum fees or commissions as set forth herein. The fee or commission shall include all direct or indirect costs or expenses incidental to the processing and closing of the mortgage loan transaction, including but not limited to appraisal fees, abstracting charges, title insurance premiums, and attorneys’ fees, but shall not include the cost of state intangible taxes, documentary stamps and recording fees actually paid to a public official.” (Emphasis supplied.)

Clearly, § 494.08 at once prescribes maximum, outside limits of an aggregate fee that can be charged, but mandates deducting therefrom “all direct or indirect costs or expenses” incidental to the transaction, expressly including such things as abstract or title insurance costs and attorneys’ fees, none of which are limited by Ch. 494, F.S. 1973, itself or by any other statute. The broker is thus compelled in each instance to gear his charges to those of all such others furnishing services to the borrower. It is impossible, therefore, for a broker to know before a transaction begins what fees he may charge (thus his client would necessarily be equally ignorant) and, after the transaction, it is indeed possible that by deducting “all direct or indirect costs or expenses incidental” to the transaction there would be little if anything left below the maximum. Obviously, not only are the mandated deductions speculative, the allowable net brokerage is also. There are simply no reasonably certain guidelines by which brokerage in a given case can be computed. For this reason, in our view, subsection (3) of § 494.08, supra, when read together with subsection (4) thereof, is fatally overbroad and vague.

Accordingly, the findings with respect to the charging of excess fees must be voided and set aside. This necessarily brings into focus petitioners’ fourth point on appeal, which is that the two-year suspension is an excessive penalty. Because petitioners’ guilt of excessive fees must be set aside, and since a reading of the record persuades us that this was the most serious of the specifications and charges against them, we would agree that the penalty (the maximum allowable under § 494.05(1), F.S. 1973) would not have been as severe absent a finding of guilt thereof. Therefore, the penalty invoked herein should be, and it is hereby, reversed and set aside; and the cause is remanded for due consideration of another and lesser penalty which, in the sound discretion of respondent, would be appropriate for guilt of the remaining two specifications of the charges herein.

Petition for Certiorari is granted and this cause is remanded for further proceedings not inconsistent with this opinion.

SCHEB, J., concurs.

BOARDMAN, J., concurs in part; dissents in part with opinion.

BOARDMAN, Judge

(dissenting in part).

I concur in that part of the holding of the majority opinion that Fla.Stats., § 494.08(3) is unconstitutionally vague and overbroad. My only point of departure with the majority opinion is that I do not in good conscience believe that the two-year suspension for specifications one and two, standing alone, is excessive; and, therefore, I would not remand the case.

      . See § 120.68(2), F.S.1975.

      . Cf. Erwin v. State, Dept. of P. & O. R., Etc., Bd. of Dentistry (Fla.App.2d, 1975), 320 So.2d 2.


author: PER CURIAM. WALDEN, Chief Judge

text:
    PORT EVERGLADES TERMINAL COMPANY, Appellant, v. TRANSPORT INSURANCE COMPANY as subrogee of William J. Griffin, and William J. Griffin, Individually, Appellees.
    No. 75-566.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellant.
    Tully Scott and Robyn Greene of Corlett, Meritt, Killian & Sikes, Miami, for appellee Transport Ins. Co.
    T. W. Montgomery of Jones & Montgomery, Fort Lauderdale, for appellee William J. Griffin.
   PER CURIAM.

AFFIRMED.

DOWNEY, J., and ANDREWS, JOHN, Associate Judge, concur.

WALDEN, C. J., dissents with opinion.

WALDEN, Chief Judge

(dissenting):

It is my view that the judgment in favor of plaintiffs should be reversed and remanded for a new trial. This is a negligence case. The trial court directed a verdict in favor of plaintiffs as a matter of law. I feel that this was error because from the facts, circumstances and allowable inferences there was a negligence question as concerns plaintiffs’ conduct which could only be properly resolved by the jury. This was appellant’s first point.

As to appellant’s second point suggesting that the proceedings impermissibly made possible a double recovery so as to constitute error, I agree. However, appellant either contributed to or acquiesced in such trial errors and did not preserve the matters for appellate review. Thus, I am of the opinion that this point would not be sufficient to warrant reversal.

With this, I respectfully dissent from the majority decision to affirm, and would reverse and remand for a new trial.


author: PER CURIAM.

text:
    Joseph Michael ROBERTIA, Appellant, v. Carolyn Sue ROBERTIA, Appellee.
    Nos. 75-610, 75-1055.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.
    Martin Zevin, Fort Lauderdale, for appellant.
    Mark S. Schecter of Kirsch & Mills, Fort Lauderdale, for appellee.
   PER CURIAM.

This is a consolidated appeal of a final judgment of dissolution of marriage, Case No. 75-610, and a subsequent interlocutory appeal, Case No. 75-1055.

Upon review of the record, briefs and having had benefit of oral argument of counsel for the respective parties, we modify and amend the final judgment of dissolution of marriage by striking the following words: “which shall be exercised as follows, to-wit:” from the fourth line of numbered paragraph two, and amending the third line of numbered paragraph two thereof by the addition of the word “reasonable” preceding the word “rights.” All of paragraphs A, B, D, E, F, G and H of numbered paragraph two are stricken from the final judgment of dissolution of marriage. Also the last sentence of numbered paragraph twelve, beginning with the word “respondent” and concluding with the word “cost” is stricken. Paragraph numbered fifteen also is stricken from the final judgment of dissolution of marriage.

The order bearing date of May 12,1975 in the interlocutory appeal, Case No. 75-1055, transferring funds from a joint account of the parties into a trust account as a super-sedeas bond is quashed, vacated and set aside.

We remand to the trial court for determination of a reasonable time to pay attorneys’ fees and costs as previously awarded and provided for in the final judgment of dissolution of marriage.

Accordingly, we affirm the final judgment of dissolution of marriage, as modified and amended, in Case No. 75-610 and remand with directions. We quash, vacate and set aside the order entered in interlocutory appeal, Case' No. 75-1055.

CROSS and ALDERMAN, JJ., and CARLTON, CHARLES T., Associate Judge, concur.


text:
    A. B. G. INVESTMENT, INC., Appellant, v. J. Sinclair SELDEN, Jr., and United Mortgage Corporation, Appellees.
    No. 75-1635.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.
    James R. Monroe and Arthur R. Louv of Young, Turnbull & Linscott, P. A., Orlando, for appellant.
    Monroe E. McDonald, Orlando, for appel- ' lee, J. Sinclair Selden, Jr.
   DURANT, Jr., N. JOSEPH, Associate Judge.

A.B.G. Investment, Inc., defendant in an action on a promissory note, appeals from a summary final judgment awarding plaintiff-appellee Selden $50,000 principal, $14,-097.22 interest, $55.10 costs, and $6,000 attorneys fees.

On November 16, 1972, appellant executed a $65,000 note (at a rate of 10% interest per year) payable on demand to the order of United Mortgage Corporation. On the same day appellant paid United Mortgage $15,000.

On March 13, 1973, Selden received the note in return for a $50,000 check he made payable to the order of E. C. Maitland.

On November 8,1974, Selden filed a complaint against appellant alleging: appellant executed the note and delivered it to United. United endorsed the note and delivered it to Selden. Appellant failed to pay the note upon demand. Appellant owes Selden $50,000 plus interest from November 16, 1972, and attorney fees.

Appellant’s answer admitted ^execution of the note and failure to pay on demand. It denied any liability on the note. As affirmative defense the answer alleged fraud on the part of United Mortgage and failure of consideration.

On April 11, 1975, Selden filed a motion for summary judgment alleging he was entitled to judgment under § 673.3-305, F.S., because he took the note free of appellant’s attempted defenses.

On May 23, 1975, Selden filed an amended complaint alleging appellant’s execution and delivery of the note to United Mortgage and appellant’s failure to pay the note on demand. In addition, the amended complaint alleged:

“3. On March 13,1973, for a consideration of $50,000, Plaintiff purchased the said instrument in good faith for full value and without notice of any defects or defenses the maker might have and while the said instrument was not in default. By virtue of these facts, Plaintiff is a holder in due course for value and is entitled to the benefits of the laws in such cases made and provided.”

Appellant’s amended answer denied any liability and denied paragraph three of the amended complaint. It also set forth United Mortgage’s fraud and lack of consideration as affirmative defenses. In addition it alleged affirmatively:

“2. That Plaintiff had a duty of inquiring as to the validity of the promissory note since Plaintiff was informed that the note was given for services to be performed by United Mortgage Corporation for A.B.G. INVESTMENT, INC. and/or Plaintiff was a stockholder in United Management Corporation, an affiliated corporation of United Mortgage Corporation, and/or Plaintiff allegedly made payment of $50,000 for the promissory note to E. C. Maitland and not to the alleged transferor, United Mortgage Corporation.”
******
“4. That the promissory note was expressly conditioned upon services to be performed by United Mortgage Corporation for Defendant, A.B.G. Investment Inc., and Plaintiff knew of said express condition prior to obtaining said note. The note, therefore, is conditioned and not negotiable. Plaintiff cannot be a holder in due course. United Mortgage Corporation failed to perform said services for Defendant, A.B.G. INVESTMENT, INC.
“5. That the Plaintiff, J. SINCLAIR SELDEN, JR., took the promissory note more than three (3) months after its issue, which is an unreasonable length of time after its issue. Plaintiff is not a holder in due course since he had notice that the note was overdue.”

After a hearing the trial court granted Selden’s motion for summary judgment.

Appellant contends that summary judgment should not have been rendered because the depositions, admissions and interrogatories disclose a controversy of material fact whether appellee took the note in good faith and without notice that the instrument was, in whole or in part, voidable, and/or otherwise subject to a defense of failure of consideration. We agree with appellant’s contention and must, therefore, reverse the judgment appealed from.

It is the burden of the moving party to show conclusively that a genuine issue of a material fact does not exist before a summary judgment should be entered, and it should be further shown that the moving party is entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

The question of whether the holder of a note is a holder in due course becomes one of fact to be determined by the trier of the facts if clearly put in issue. Vernon v. Yanks, 303 So.2d 375 (Fla.App. 3, 1974). In this case, the pleadings and the depositions of appellee Selden clearly put in issue whether Selden was in fact a holder in due course. Accordingly, the judgment for appellee Selden is reversed and this cause is remanded for further proceedings.

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


text:
    STATE of Florida, Plaintiff-Appellant, v. Woodrow DIGGS and Bradley Nelson Smith, Defendant-Appellee.
    No. 75-1907.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.
    David H. Bludworth, State’s Atty., and Fred H. Gelston, Asst. State's Atty., West Palm Beach, for appellant.
    Donald J. Beuttenmuller, Jr., of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellee-Woodrow Diggs.
    John L. Avery, Jr., of Brennan, Brown & Avery, West Palm Beach, for appellee-Bradley Nelson Smith.
   PER CURIAM.

The State timely appeals the order of the trial court granting defendants, Diggs and Smith, a new trial because of the court’s failure to give an instruction on attempted robbery. We reverse.

The defendants were charged with three counts of robbery and each defendant was convicted on all three counts. The court instructed the jury on the lesser offenses of assault with intent to commit robbery, grand larceny, assault with intent to commit grand larceny, petit larceny and assault with intent to commit petit larceny. The court denied the defendant’s requested instruction on attempted robbery but subsequently granted a new trial because of its failure to so instruct the jury.

The trial judge did not have the benefit of Dobbert v. State, a Supreme Court of Florida case, 328 So.2d 433 (1976), when he granted a new trial due to the failure to instruct on attempted robbery. Dobbert stands for the principle that it is not reversible error for failure to instruct on attempt when the jury finds a defendant guilty of the highest offense which has been proven beyond a reasonable doubt when it was empowered to find him guilty of the lesser offenses.

In the Case sub judiee, the jury found the defendants guilty of robbery. Failure to instruct on attempt was harmless error.

Reversed and remanded for further proceedings consistent with this opinion.

MAGER, C. J., ALDERMAN, J., and WEAVER, SIDNEY M., Associate Judge, concur.


text:
    Charles EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1125.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Phillip A. Hubbart, Public Defender, and Elliott H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Defendant, Charles Edwards, takes this appeal from his conviction and sentence following a jury trial on the charges of breaking and entering and grand larceny. He urges reversal on the grounds of double jeopardy.

The record reflects that on March 3,1975, a jury was empaneled and sworn. On March 4, defense counsel revealed to the State the names of three more witnesses whom he intended to call; two were character witnesses and the third was the defendant’s wife whose testimony appeared to be in the nature of an alibi. On March 5, the State moved to exclude the three witnesses. The trial court determined that the two character witnesses could testify, but after a proffer of the wife’s testimony, ruled that since the State was not able to take her statement due to the defendant’s failure to supply the names sooner, the State was prejudiced, and

. . under all the circumstances the Court feels that the interest of justice would best be served by the granting on the Court’s own motion of a mistrial.” (emphasis supplied)

A new trial date was set. The defendant filed a motion to dismiss the information and discharge the defendant, alleging that manifest necessity had not required a mistrial, and that a new trial would place the defendant in jeopardy a second time on the same charge. The motion was denied. The defendant sought a writ of prohibition which was denied by this court and the cause proceeded to a jury trial culminating in a judgment of conviction and sentence.

In our opinion, the trial court did not abuse its discretion in declaring a mistrial where such mistrial was required by manifest necessity. The trial judge had discretion to determine that the situation which confronted the court and the parties at the time presented a legally sufficient reason to justify the declaration of a mistrial. The trial judge was best situated, under the circumstances and conditions then presented, to intelligently make such a decision. No abuse of this discretion has been established. See Adkins v. Smith, 205 So.2d 530 (Fla.1968), and Strawn v. State ex rel. Anderberg, 332 So.2d 601 (Fla.1976). Accordingly, the defense of double jeopardy is not available to the defendant.

Affirmed.


author: DOWNEY, Judge.

text:
    David H. SMITH and Maureen L. Smith, his wife, Appellants, v. FIRST NATIONAL BANK OF POMPANO BEACH, a National Banking Corporation, et al., Appellees.
    No. 76-644.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.

      Larry Klein, West Palm Beach, for appellants.
    Thomas E. Byrd of Byrd & Ferrell, Fort Lauderdale, for appellee Thomas E. Byrd, Trustee.
   DOWNEY, Judge.

We have for review an interlocutory order setting aside a judicial sale in a mortgage foreclosure at the behest of the second highest bidder at the sale.

The trial court had originally entered a summary final judgment of foreclosure in which it provided, among other things:

. the Clerk of this Court shall sell that property at public sale at 11:00 a. m. on the 19th day of January, 1976, to the highest bidder or bidders for cash in the lobby of the Broward County Courthouse, Fort Lauderdale, Florida, after having first given notice as required by Section 45.031, Florida Statutes.”

At the sale appellants bid $146,000.00, and the property was struck off to them. The second highest bidder was a Mr. Byrd, who bid $145,000. At the commencement of the sale the clerk had announced that one-third of the bid price would have to be paid at the time of the sale and the remainder by 2:00 p. m. on the sale date. After appellants were declared the high bidders, they paid the clerk $51,822.17. Appellants asked the clerk if they could furnish the remainder by the following day, and the clerk consented. On the following day appellants became involved in a traffic jam resulting from an accident. They called the clerk and asked him to remain open so they could deliver the balance of the purchase price to him that day. The clerk advised appellants they could bring in the remaining funds the next day (January 21, 1976). On January 21, 1976, at 8:30 a. m. appellants delivered to the clerk the remaining balance, and in due course a certificate of sale was issued to appellants.

Thereupon, Thomas E. Byrd, trustee, filed a motion to set the sale aside or confirm him as the successful bidder. Byrd contended that the judgment of foreclosure had ordered the clerk to sell to the highest bidder for cash; he, Byrd, was prepared on January 19th to pay $145,000 in cash; but the clerk allowed appellants additional time to pay the balance of their bid, all contrary to law.

The situation presented is somewhat novel but there is authority in similar circumstances from which we obtain some guidance.

In O’Malley v. McMullen, 294 So.2d 379 (Fla.2d DCA 1974), the judgment of foreclosure directing the sale of property provided that all bidders should be required to have “in hand cash or equivalent.” The clerk required bidders to do just that. On motion the trial court set aside the sale because the clerk’s requirements were too restrictive and stifled bidding. On appeal the court discussed the general latitude afforded the clerk in judicial sales as follows:

“It should be noted that the recommended form for final judgment of foreclosure (form No. 1.996) in the Florida Rules of Civil Procedure, 31 F.S.A. specifies that the clerk of the court shall sell the property at public sale “to the highest bidder for cash.” Courts have uniformly held that promissory notes or personal checks are not acceptable tender at a public sale for cash. Hence, the question might properly be asked whether that language, assuming it be traditional language, would mandatorily require the clerk to insist on cash or its equivalent to be furnished at the time of making a bid. The fact that there is so little law on this subject suggests the probability that the clerks of our circuit courts are able to work it out along practical lines such as that followed in Pinellas County. Obviously, it would be ridiculous to require each bidder to come to a public sale with a satchel full of money, and one could not very practically bring certified checks because he would not know how much it was going to take in order to become the successful bidder. If the highest bidder is given a reasonable time within which to come up with the cash, no one should be hurt. The determination of what constitutes a reasonable time is left to the clerk under the supervision of the court.

The rule is also stated in 50 C.J.S. Judicial Sales § 30:

“The bidder may be allowed a reasonable time after the bidding within which to meet a requirement for an immediate cash deposit or payment forthwith of the money bid. A delay of a few days has been held not to avoid the sale if no injury resulted therefrom . . .”

(Footnotes omitted.)

The evidence adduced upon Byrd’s motion to set aside the sale demonstrated no fraud upon anyone, no trickery exercised by anyone, and no harm accruing to anyone involved in the foreclosure litigation. The sale took place January 19,1976; $51,822.17 was paid that day and the full balance was paid January 21, 1976. Neither the plaintiffs or defendants in the original foreclosure suit nor any creditor has raised any objection to the proceedings. Byrd alone as the disappointed second highest bidder, has objected. Under the circumstances of this case we can conceive of no valid reason to set aside the sale and thus we hold the trial judge abused his discretion.

Accordingly, we reverse the order appealed from and remand the case for further proceedings consistent herewith.

REVERSED and REMANDED.

MAGER, C. J., and CROSS, J., concur.

      “8 The case of Williams v. Continental Securities Corporation, 1944, 22 Wash.2d 1, 153 P.2d 847, provides a good discussion of accepted bidding procedures at public sales. See also Matthews v. Eslinger, 1955, 41 Tenn.App. 116, 292 S.W.2d 543.” 294 So.2d at 383-384.

      . “The court has much discretion as to the sufficiency of the grounds for setting aside the sale, especially where the rights of infants are involved. However, such discretion is not an arbitrary one, and must be exercised with due regard for the rights of all parties involved, measured by legal equitable standards, and there must be a basis of fact or circumstance to justify the exercise thereof.” 50 C.J.S. Judicial Sales § 52 c (footnotes omitted).


author: McCORD, Judge.

text:
    The LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 666, et al., Petitioners, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Florida State Employees Council # 79, AFSCME, AFL-CIO, Respondents.
    No. BB-346.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1976.

      John J. Chamblee, Jr., of Frank & Meyer, Tampa, for petitioners.
    Thomas W. Brooks, Ben Patterson and Carol Reilly, Tallahassee, for respondents.
    Steve A. Shackelford, Jr., and Mark E. Levitt, Tallahassee, for intervenors.
   McCORD, Judge.

This is a petition for review of administrative action under Chapter 120, Florida Statutes (filed as a petition for writ of certiorari). The order for which review is sought was issued by Public Employees Relations Commission (hereinafter referred to as PERC or the Commission) rescinding a previous order which granted a joint inter-venor status to petitioners, the Laborers International Union of North America, Local 666, Local 1306, and Local 1240, in a proceeding before PERC in which Florida State Employees Council No. 79, AFSCME, AFL-CIO (hereinafter referred to as AFSCME) sought the conduct of an election within a unit of state employees pursuant to § 447.307(2), Florida Statutes. The aforesaid order is a reviewable final order under § 120.68(1), Florida Statutes, since it finally adjudicates petitioners’ rights in the proceeding. Shute v. Keystone State Bank, 159 So.2d 106 (1 DCA Fla.1964); Schneider v. Manheimer, 170 So.2d 75 (3 DCA Fla.1965). The controversy is a dispute between two unions over whether or not one of them (the petitioners) will be allowed to participate in an election to determine representation of a unit of state employees.

This proceeding began when on August 13, 1975, AFSCME filed a petition with PERC seeking the conduct of the above mentioned election. The unit of state government involved is a unit within the Department of Health and Rehabilitative Services.

On September 13, 1975, the petitioners filed with PERC a motion to intervene as joint intervenors in the representation proceeding generated by AFSCME’s petition and by order of October 13, 1975, the motion was granted by the Commission’s Chairman. While Part II of Chapter 447, Florida Statutes, (the statute which deals with collective bargaining by public employees) is silent in relation to intervention in a proceeding before PERC, § 120.52(10), Florida Statutes, (the Administrative Procedure Act) includes in the definition of the term “party” in an administrative proceeding the following provision which is applicable here:

“(b) Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.” (Emphasis supplied)

Implementing the foregoing statute, PERC’s Rule 8H — 1.06 defines the term “party” in pertinent part as follows:

“The term ‘Party’, as used herein, shall mean . . . ; or any other person, . organization, . . . with a substantial interest in the proceedings, whose intervention for participation in a proceeding has been permitted or directed by the Commission, General Counsel, or a Hearing Officer.”

While the foregoing rule does not include the Commission’s Chairman among those who may permit intervention, the Commission’s Rule 8H-3.05, to which we will hereinafter refer, sets forth circumstances under which the Chairman will authorize intervention.

On October 14, 1975, AFSCME filed a memorandum in opposition to petitioners’ intervention contending that Local 666 of petitioners was not in compliance with § 447.305(2), Florida Statutes, and Commission Rule 8H-6.02 in that said Local had not filed an annual financial report and therefore was not a properly registered employee organization entitled to intervene in the proceeding. While neither the foregoing statute nor the foregoing rule relates directly to intervention, the statute requires the filing of an annual financial report by an employee organization prior to requesting recognition by a public employer for purposes of collective bargaining or prior to submitting a petition to the Commission for purposes of requesting a representation election. Rule 8H-6.02 sets forth the content of the annual report and requires that it be filed within ninety days after the end of its fiscal year.

Rule 8H-3.05, to which we have previously referred, deals with intervention in a certification proceeding (such as this), and it provides as follows:

“Once a Petition for Certification has been filed by a party, any registered employee organization not named in the initial Petition may intervene in the proceeding by filing a motion to intervene accompanied by proof of at least a ten percent (10%) showing of interest among the employees in the proposed unit supporting its certification. The certified or recognized bargaining agent of the employees in the proposed unit is not required to provide proof of at least a ten percent (10%) showing of interest among employees in the proposed unit to intervene in said proceedings. If a request to intervene is filed more than fifteen (15) working days after the date of the submission of the initial Petition for Certification, the consent of the Chairman will be required. The original and four (4) copies of the Petition and Motion to Intervene must be filed with the Chairman.” (Emphasis supplied)

Petitioners filed their request for intervention more than 15 days after submission of AFSCME’s petition for certification, and thus, the emphasized portion of the above rule became applicable.

After having permitted petitioners’ intervention as aforesaid, PERC’s Chairman, acting upon-AFSCME’s memorandum in opposition to petitioners’ intervention, issued another order on November 4, 1975, rescinding his previous order of October 13, 1975, which had granted intervenor status to petitioners. It appears that petitioners, at the time of their intervention on October 13, had the necessary 10% showing of interest among the employees in the unit proposed by AFSCME as required by the above intervention rule, but they had not filed a financial report.

Following this order excluding them as intervenors, petitioners filed a motion asking that PERC waive the financial report requirement since petitioners’ failure to file the report was due to a circumstance beyond their control; that the financial records of Local 666 were in the custody of the federal grand jury in Miami, Florida, operating under the United States District Court and were, therefore, not available to it for preparation of such report.

Prior to their ejection from the proceeding, petitioners had participated in informal negotiations involving PERC, AFSCME, and the State of Florida undertaken for the purpose of attempting to agree upon an appropriate bargaining unit. After their exclusion from the proceeding, petitioners could not longer participate, and AFSCME and the State of Florida, on January 22, 1976, reached and executed a consent election agreement which was approved by PERC’s Chairman on February 16, 1976. The consent election agreement set forth, among other things, the mechanics governing the election process and described a bargaining unit which AFSCME and the State consensually determined to be appropriate. Such unit embodied a considerably larger number of state employees than the unit initially described in the AFSCME petition.

Following their ejection from the proceedings, petitioners, by letter dated January 19, 1976, requested the Commission’s Chairman to reconsider and reverse the order rescinding their intervenor status. The Chairman determined to treat petitioners’ letter as an appeal to the Commission and placed the matter upon the Commission’s agenda for full consideration at its meeting to be held on March 4,1976. In the meantime, petitioners had moved the Commission to enter an order staying approval of the election agreement executed between AFSCME and the State, and on February 13,1976, the Commission’s Chairman denied that motion.

At its March 4, 1976, meeting the Commission denied the petitioners’ request to intervene, voting two against and one for intervention. Petitioners were at that time. in compliance with the financial report requirement of Rule 8H-6.02, supra, but they did not then have the 10% showing of interest among employees in the proposed unit because of the enlargement of the unit by the consent election agreement agreed to in the absence of petitioners’ participation.

Petitioners then filed with this Court their petition for review of PERC’s order of March 4, 1976, and also filed therewith an application to stay all proceedings associated with this controversy, including the election which had been scheduled to be held in the period April 5 through April 15, 1976. This court, on April 1, 1976, granted the application for stay and entered its order staying the election and the proceedings. Subsequently, this court entered an order directing petitioners to post a $10,000 bond and such bond was posted.

As above pointed out, the Commission has by rule empowered its Chairman to allow interventions in its proceedings. • (The Commission’s power to delegate this authority to its Chairman has not been brought into question in this proceeding, and we, therefore, do not rule upon it.) Here the Chairman gave his consent to petitioners’ intervention and they thus became a party to the proceedings. The Chairman subsequently revoked his approval but referred the question to the full Commission. While we recognize that an administrative agency is given a wide latitude in the administration of laws entrusted to it, under the totality of the factual circumstances of this case as above related, we consider that the summary revocation of petitioners’ intervenor status by the Chairman and the concurrence therein by the Commission was an abuse of discretion. Petitioners, at the time of the Commission’s meeting where it considered petitioners’ intervention, were in compliance with the financial statement requirement and good cause was shown for their previous failure to file same. In addition, petitioners had not been afforded an adequate opportunity to meet the deficiency in the 10% interest qualification resulting from the escalation in size of the proposed unit subsequent to their exclusion as parties. Under the circumstances with which petitioners were faced at the time of the Chairman’s order summarily excluding them as a party, they should have been given a reasonable time to comply with the financial statement requirement. They should now be given a reasonable time to comply with the 10% showing of interest requirement.

PERC’s order of March 4, 1976, is reversed with directions that petitioners be allowed a reasonable time within which to qualify as aforesaid for intervenor status; that if petitioners qualify, they be allowed to participate as an employee organization in the election and participate otherwise as a full party to the proceedings; that if petitioners fail to qualify, they shall be denied intervenor status and the proceedings will then continue without their participation. Upon this opinion and judgment becoming final, this Court’s previous order staying the proceedings below is vacated and the sureties on petitioners’ bond are discharged.

BOYER, C. J., and MILLS, J., concur.


text:
    Patricia E. BLAKE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1847.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Rehearing Denied Sept. 8, 1976.
    Phillip A. Hubbart, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Ira N. Loewy and Sidney Pertnoy, Asst. Attys. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant was found guilty of second degree murder by a jury. She was adjudicated guilty and sentenced to life imprisonment. This appeal followed.

The first point presented urges that the trial court erred in denying defendant’s motion for a mistrial after the following proceedings in the examination of a witness who was being examined about her previous inconsistent statements concerning the number of stab wounds the victim had suffered:

“Q. Did it appear to you that there was only one stab wound on the body of Eric Darcy?
“A. At the time I did not know when I saw so much blood—
“MR. MOSCA: That answers the question and anything else would be volunteered.
“THE COURT: Overruled.
“You may complete your answer.
“THE WITNESS: I did not believe that so much blood—
“MR. MOSCA: Objection and move to strike what she believes.
“THE COURT: Overruled.
“Continue your answer.
“The witness is trying the best way she knows how.
“MR. MOSCA: Can we approach the bench?
“THE COURT: When the witness completes—
“MR. MOSCA: Excuse me, Judge, but may I reserve the right to make an objection at a later time with regard to this colloquy?
“THE COURT: Yes, you may.
“MR. MOSCA: Thank you.
“THE COURT: Please complete your answer if you would.”

Defendant contends that the statement by the trial judge, “The witness is trying the best way she knows how,” comments on the weight and credibility of the testimony given by the witness. We cannot agree with this interpretation of the statement. The trial judge overruled defense counsel’s objection and the witness was instructed to answer the question. By so ruling, the trial judge held the witness capable of giving lay testimony as to the amount of blood she observed. As the witness attempted to answer with the statements “it seemed like an amount [of blood] to me . . . ” and “I did not believe that so much blood . . . ,” she was further interrupted by defense counsel’s objection. Finally, after defense counsel was overruled again, the judge gave the statement that the witness was trying to give an estimate of blood “ . . . the best way she knows how.”

It is true that the comment of the trial court in the instant case contains words remarkably similar to those found in Robinson v. State, Fla.App.1964, 161 So.2d 578. We think that the comments in Robinson went much further and it is clear that they could have been interpreted as going to the weight to be given the evidence of the individual witness. We agree that comments by a trial judge must be carefully reviewed to see whether they have invaded the province of the jury. See Gendzier v. Bielecki, Fla.1957, 97 So.2d 604; Hamilton v. State, Fla.App.1959, 109 So.2d 422. We hold, however, that in the present instance there is no reasonable possibility that the statement of the trial judge deprived defendant of a fair trial.

The second point presented urges reversible error because the trial court admitted into evidence a statement made by a defendant to a police officer at the scene of the crime without requiring the deletion of a portion of the statement referring to a prior criminal entanglement. The record shows that immediately upon the arrival of the investigating officer, he was told by the defendant, “I killed him for that bitch, I have been through this before and I killed my husband back in ’50 or ’51.” Defense counsel argued against that portion of the statement concerning a prior criminal entanglement saying that such statement had no relevancy and was so remote as to serve no purpose and have no bearing on the case. The court found the statement admissible under a test in Williams v. State, Fla.1959, 110 So.2d 654. We hold that the court properly allowed the evidence for the reason stated and upon the further basis that the defendant volunteered the statement to the police officer. In Dempsey v. State, Fla.App.1970, 238 So.2d 446, this court had before it a similar statement and held in accordance with the trial judge’s ruling here that the statement was admissible unless the sole purpose of the evidence was to show the criminal propensity of the accused. In the present instance, the defendant’s report of the crime to the law officer clearly showed her state of mind at the time of her admission of the act.

Having considered each of the points presented and finding no reversible error, the judgment and sentence are affirmed.

Affirmed.


text:
    Kathleen H. DINKINES et al., Appellants, v. Rose May DINKINES, etc., Appellees.
    No. 75-741.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Sept. 8, 1976.
    Farrington & Farrington, Fort Lauder-dale, for appellants.
    Walton, Lantaff, Schroeder, Carson & Wahl, Fort Lauderdale, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellants, defendants below, appeal from a final summary judgment quieting title to real property.

On April 10, 1975, the trial court entered its final summary judgment which reads in pertinent part as follows:

“THIS CAUSE coming on this day to be heard upon the Motion of the plaintiffs for summary judgment upon their Complaint to Quiet Title, the defaults previously entered in this action against WILLIAM FRANKLIN DINKINES, PEARL DINKINES SMITH, PERRY W. SMITH, IDA DINKINES BOLTON, FLORA DINKINES and JOSIE DIN-KINES FOSSLER, and the Court having considered the pleadings, the Affidavit in Support of Summary Judgment and having heard and considered arguments by counsel and being fully advised in the premises, the Court
“FINDS:
“(1) That there is no genuine issue as to any material fact; and
“(2) That plaintiffs are entitled to judgment as a matter of law.
“It is, therefore,
“CONSIDERED, ORDERED AND ADJUDGED:
“(1) That the Court has jurisdiction of the parties to the cause and the subject matter.
“(2) That the equities of this cause are with the plaintiffs.
“(3) That the defaults previously entered in this action by the Clerk of the Circuit Court be and they are hereby confirmed, ratified and made absolute.
“(4) That plaintiff, ROSE MAY DIN-KINS, as surviving spouse and sole heir at law of WESLEY DINKINS, a/k/a WESLEY DINKINES, Deceased, be and she is declared to be the fee simple and absolute owner of the following described real property situate and being in the County of Dade and State of Florida:
“Tract 7, FLORIDA FRUIT LANDS CO.’S SUBDIVISION NO. 1, Section 21, Township 53 South, Range 40 East, according to the Plat thereof, as recorded in Plat Book 2, Page 17, Public Records of Dade County, Florida,
subject, however, to the right of plaintiff, CHALMERS R. WILSON, as Ancillary Administrator of the Estate of WESLEY DINKINS, a/k/a WESLEY DINKINES, Deceased, to possession of the real property for the purpose of paying expenses of administration, taxes, debts and claims, if any, against the Estate of WESLEY DINKINS, a/k/a WESLEY DINKINES, Deceased.
“(5) That all the right, title or interest of the defendants and all persons claiming by, through or under them, and all parties having or claiming to have any right, title or interest in the lands since the filing of the lis pendens, be and the same are quieted, vacated, set aside and cancelled as clouds upon the title to the plaintiff, ROSE MAY DINKINS, in and to the above-described lands, and that the title of the plaintiff, ROSE MAY DIN-KINS, in and to those lands be and it is forever quieted, cleared and confirmed and forever fully and completely established as against all of the defendants to this action, and against all persons whomsoever claiming by, through or under them, and all persons having or claiming to have any right, title or interest in the lands involved in this action since the filing of the lis pendens.
“(6) That all of the defendants, and all persons claiming by, through or under them, and all parties having or claiming to have any right, title or interest in the above-described lands, since the filing of the lis pendens, are forever prohibited, enjoined and restrained of and from executing any right, title, interest, claim or demand of any nature or kind whatsoever, in, to or against those lands of the plaintiff, ROSE MAY DINKINS, or any part of them.”

From this judgment, appellants appeal.

We have carefully considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Fernandez v. Arocha, Fla.App.1975, 308 So.2d 45; Frazee v. Frazee, Fla.App.1966, 185 So.2d 484; and 2 Fla.Jur., Appeals §§ 314 and 316. At the time the trial court entered its judgment, there existed no genuine issue as to any material fact and appel-lees, as movants, were entitled to a summary judgment as a matter of law. See Robinson v. Miami, Fla.App.1965,177 So.2d 718; Goodwin v. Shire, Fla.App.1958, 105 So.2d 178; and Rule 1.510, Florida Rules of Civil Procedure, 31 F.S.A. Therefore, for the reasons stated and upon the authorities cited, the final summary judgment appealed is affirmed.

Affirmed.


author: BOYER, Chief Judge.

text:
    FRUEHAUF CORPORATION, a corporation d/b/a Fruehauf Division, Fruehauf Corporation, Appellant, v. AETNA INSURANCE COMPANY, a corporation, Appellee.
    No. Z-226.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1976.

      Ralph W. Nimmons, Jr., Douglas D. Chunn, of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellant.
    Richard W. Kreidler, Jacksonville, for ap-pellee.
   BOYER, Chief Judge.

From an adverse judgment entered by the trial court sitting as the trier of the facts, appellant, defendant in the trial court, takes this appeal. Although appellant raises three points in its brief, the primary issue is whether the trial court erred in finding negligence.

On the Tuesday or Wednesday before Thanksgiving, 1973, David Valíante delivered his 1972 Ford diesel truck-tractor to appellant for brake repairs. The brakes were repaired but the truck was stolen from appellant’s premises over the Thanksgiving weekend. Appellee, Mr. Valiante’s insurer, paid Mr. Valíante and sued appellant.

At trial, the central issue concerned the quality of appellant’s security precautions. A chain link fence encloses the premises at the top of which are three strands of barbed wire. At the point where the fence crosses a drainage culvert, there is a hole sufficiently large for a man to gain access. Numerous mercury vapor lights illuminate the premises, but the effectiveness of the lights is lessened by the presence of trailers located in close proximity to the fence. Other security measures conducted by employees of appellant included a check of the premises, discussions of security procedures, and written security instructions given to all employees. Further, because of previous thefts, the keys to all power vehicles were to be removed, tagged, and placed in a box in the service area accessible only to supervisory personnel. Two of appellant’s employees testified that the keys to Mr. Valiante’s truck were given to him on the afternoon after the theft, but Mr. Valíante and his driver both testified that they never received the keys.

After suffering thefts in September and October of 1972, and April of 1973, appellant decided to hire a guard service, contracting with Overland Express, Inc. The theft of the Valíante truck occurred during the early morning hours of Monday, November 26, when thieves apparently cut a large hole in the fence. The Overland guard who was supposed to be patrolling the area wrote in his daily report that there were two dogs in the fenced area. Inasmuch as neither Overland nor appellant used guard dogs, the dogs were either strays or belonged to the thieves. Whatever their origin, the dogs frightened the guard who, upon hearing them bark, did not go onto appellant’s premises after 12:40 a. m. on the morning of the theft.

The first aspect of the trial court’s finding of negligence questioned by appellant concerns the appropriate standard of care. Because this ease involves a bailment for mutual benefit, the bailee is required to exercise ordinary (reasonable) care under the circumstances to protect the bailor’s property. As noted by the Third District Court of Appeal: “The test of liability of a bailee for intrusted goods which are lost or stolen is whether the bailee exercised that degree of care toward the goods that a reasonably prudent person would bestow on his own goods.” (Hollander v. Nolan Brown Motors, Inc., Fla.App. 3rd 1973, 272 So.2d 9) Appellant insists that it met that test as evidenced by the extensive security measures taken by it, particularly the use of a guard service.

For purposes of analysis, we find it helpful to place the alleged negligence of appellant into two categories: Negligence in the hiring and supervision of the guard service, and negligence in maintaining other proper security measures. In considering each category, we bear in mind the proper test applicable to such cases, i. e., whether the bailee exercised that degree of care toward the goods that a reasonably prudent person would bestow on his own goods. Although the use of a guard service may well be desirable, we do not construe the standard of ordinary or reasonable care to be such as to require a bailee in all situations to employ such a service to fulfill its duty to protect a bailor’s property. A bailee is not an insurer of the property delivered into its keeping and is not liable for the loss of the thing bailed, except where there is a breach of the duty of the requisite degree of care. (See 4 Fla.Jur. 187, “Bailments”, Section 10) Therefore, when a bailee does take the voluntary step of hiring a guard service, it should not be held to a higher standard of care than would have been imposed had it not contracted with a guard service at all. In more general terms, when one does something he is not obligated to do, he should not be held liable for failure to do more.

While appellant was under no obligation to hire a guard service, it could nevertheless, under appropriate circumstances, be held liable for negligence emanating from the hiring or maintenance of the guard service. For instance, the general rule seems to be that an employer of an independent contractor may be liable to one injured as a result of the contractor’s fault where it is shown that the employer was negligent'in selecting a careless or incompetent person with whom to contract. (See Annotation at 8 A.L.R.2d 267, 268 (1949)) Appellee in its brief argues that very point. However, there is no evidence in the record to suggest that the guard service hired by appellant had a history of incompetence and/or carelessness nor that, even if such a history of incompetence had been established, that appellant knew or should reasonably have known thereof.

An employer may also be held liable for the negligence of a guard service where the relationship between the employer and the guard service is one of master-servant rather than employer-independent contractor. (See Annotation at 38 A.L.R.3d 1332,1336 (1970)) The relationship is determined by the right of control concept. When the employer retains the right of control over the personnel supplied, the master-servant relationship is created, and the employer will be held vicariously liable for the negligence of the hired personnel acting within the scope of employment. The employer-independent contractor relationship (as distinguished from master-servant relationship) is established when no such right of control is retained. Appellee argues that the master-servant relationship is present in the case sub judice. However, though there is evidence that appellant set certain minimum standards for the guards to be used, there is no substantial evidence which would detract from the status of Overland Express, Inc. as an independent contractor.

There is a third theory by which appellee seeks to impose liability upon appellant for the negligence of the guard service. Under that theory, appellant, though under no obligation to hire a guard service, once having done so, had a duty to operate the service non-negligently. That theory is in keeping with the general statement of negligence law which imposes an obligation on everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he is undertaking. (23 Fla.Jur. 260, “Negligence”, Section 13; see also Shealor v. Ruud, Fla.App. 4th 1969, 221 So.2d 765) In Shealor v. Ruud, supra, the court held that the defendant-city having voluntarily elected to install a warning system at a railroad crossing, had a duty not to permit its operation in a manner calculated to cause injury to others. • The underlying basis for the decision in the Shealor case was the reliance placed by the aggrieved party upon the act voluntarily undertaken by the party sought to be charged. The plaintiff in that case implicitly asserted the general public’s reliance on the defendant’s warning system, claiming that it was misleading, confusing and a nuisance. Sub judice, there is no indication in the record whatsoever that the truck owner was aware that appellant employed a guard service nor that he relied thereon. Further, as above discussed, the evidence was insufficient to “pierce the independent-contractor veil”.

There being no viable theory supported by the record by which the negligence of the guard service could .have been imputed to appellant, the judgment in favor of appellee may be affirmed only if there is other evidence of negligence, independent and distinct from the negligence of the guard service. We find that there was. The trial court may well have concluded that the built-in hole in the fence by the drainage culvert, the lighting system which could have been considered inadequate, and the missing key to the Valíante truck constituted negligence on the part of appellant. Although negligence of the guard service could clearly have been found to have been a proximate cause of the loss of the Val-iante truck, the trial court eould also have found that the separate negligence of appellant was a concurring proximate cause. As has often been held, findings by a trial court will not be disturbed unless there is a lack of substantial evidence to support the court’s conclusion. (Strawgate v. Turner, Sup.Ct.Fla.1976, Case No. 47,136, opinion filed June 30, not yet reported).

Accordingly, the decision of trial court is

AFFIRMED.

McCORD, J., and SCHLEGEL, LEW E., . Associate Judge, concur.


text:
    Bernard E. KARLEN, Appellant, v. GULF & WESTERN INDUSTRIES, INC., et al., Appellees.
    No. 75-1222.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Sept. 8, 1976.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and J. Frost Walker, III, Miami, Norman Winer, New York City, for appellant.
    Myers, Kaplan, Levinson & Kenin and Thomas R. Spencer, Jr., Miami, for appel- . lees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

In 1967, Karlen and others entered into an agreement with Gulf & Western Industries, Inc., which among other things stated as follows:

* * * sis * *
“18. Any dispute between the parties arising out of or related to this contract shall be submitted to arbitration before the American Arbitration Association in the State of Florida at the nearest city having American Arbitration Association facilities pursuant to its rules.”
* * * * 5fS *

Thereafter, Karlen and the appellees (except Tele-Communications, Inc.) engaged in an arbitration proceeding which terminated in June of 1973. The right of Karlen to require the appellees (except Tele-Commu-nications, Inc.) to arbitrate was not determined in the earlier proceeding. Karlen then attempted to originate a second arbitration proceeding against the appellees by a demand for arbitration, which did not attach any written provision requiring arbitration by any of the parties. In fact, this particular part of the demand for arbitration was x’d out. Subsequently, the appel-lees brought the instant action to enjoin this second arbitration proceeding. After receiving stipulated facts and evidence, the trial court enjoined the arbitration proceedings against all the parties, except Gulf & Western in accordance with the 1967 agreement, for any alleged claims that arose subsequent to the termination of the 1973 arbitration. This appeal ensued.

We affirm the action of the trial judge, first because there was no proper demand for the arbitration when no written provisions requiring arbitration were attached to the demand. G & N Construction Company v. Kirpatovsky, Fla.App.1966, 181 So.2d 664; Wood-Hopkins Contracting Company v. C. H. Barco Contracting Company, Inc., Fla.App.1974, 301 So.2d 479; United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256; Arbitration Rules of the American Arbitration Association, § 7(b). Further, the arbitration provision in the 1967 agreement was a personal covenant between Karlen and Gulf & Western, which was not assumed by any of the other corporations involved in this litigation. Orion Shipping & Trading Co. v. Eastern States Petroleum Corporation of Panama, S.A., 2nd Cir. 1963, 312 F.2d 299; Beacon Construction Company of Massachusetts, Inc. v. Prepakt Concrete Company, 1st Cir. 1967, 375 F.2d 977; Application of Jacoby, S.Ct. N.Y.Co.1942, 33 N.Y.S.2d 621; 5 Am. Jur.2d, Arbitration and Award, § 22. To bind successor parties in interest to a personal covenant tp arbitrate between Karlen and Gulf & Wesfern would have taken some written evidenp of such undertaking. There was no provision in the Karlen and Gulf & Western 1967 agreement that such a covenant to arbitrate was to be binding on the successors or assigns of either Karlen or Gulf & Western; this was simply a personal covenant to arbitrate between these parties. This right still remains and, therefore, the final judgment here under review be and the same is hereby affirmed.

Affirmed.

      . Gulf & Western does not allege any error in this ruling.


text:
    Robert C. WILSON, Appellant, v. SIRKIN BUILDING CORPORATION, Appellee.
    No. 75-1236.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Sept. 8, 1976.

      Whitman & Wolfe, Miami, for appellant.
    Sam Daniels, Brumer, Moss, Cohen & Rodgers, Miami, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Plaintiff, Robert C. Wilson, appeals from a final judgment after a non-jury trial barring him from maintaining a tort suit against the defendant, Sirkin Building Corporation, and relegating him to his workmen’s compensation remedy. The final judgment under review reads as follows:

******
“THIS action came on to be tried pursuant to the Stipulation of the parties, before the Court, sitting without a jury, on the issue of liability. On the evidence presented the Court makes the following findings of fact and conclusions of law:
“FINDINGS OF FACT
“1. Sometime prior to March 13, 1973, one Julius Silver acting in behalf of 418 Euclid Avenue Corp., entered into an agreement with Alan Sirkin who was acting in behalf of Sirkin Building Corporation. The agreement of these parties, in essence, provided as follows:
a. Each of the parties agreed to jointly engage in a venture to build a condominium type of building at a location described as 418 Euclid Avenue, Miami Beach, Dade County, Florida.
b. Each of the parties agreed to contribute capital toward the financing of said project and in fact each party did contribute the sum of $20,000.00.
c. Each of the parties maintained the right of joint control and the right to bind each other. This control was evidenced by the fact that on various occasions Alan Sirkin signed contracts with subcontractors to do work on the job and at various times Julius Silver signed contracts with other subcontractors to perform work on said building project.
d. The parties agreed in the event there was a financial loss incurred in this venture there was an obligation for each to share in the loss.
e. The parties maintained a bank account separate and apart from any other accounts, which account dealt solely with this project. Each of the parties were required to sign any checks written on said account and in fact each party did sign all checks written on said account.
f. The agreement between 418 Euclid Avenue Corp. and Sirkin Building Corp. was solely for the purpose of building the condominium at 418 Euclid Avenue.
“2. Acting pursuant to the parties agreement, 418 Euclid Avenue Corp. purchased a Workmen’s Compensation insurance policy which policy in fact provided coverage for any and all employees of any joint venture or partnership of which 418 Euclid Avenue Corp. was a party.
“3. The Plaintiff, as a result of the accident sued upon herein, made claim against 418 Euclid Avenue Corp. for Workmen’s Compensation benefits and did receive said benefits under the policy of insurance placed into evidence by the Plaintiff and referred to in paragraph 2 above.
“4. On the day of the accident giving rise to this action the Plaintiff was hired to do certain ‘cleanup work’. He was hired by Mr’s. Silver and Sirkin and was to be paid out of the special account maintained by 418 Euclid Avenue Corp. and Sirkin Building Corp. referred to in subparagraph e above.
CONCLUSIONS OF LAW
“5. At the time of the accident in question herein there existed a joint venture between the Defendant and 418 Euclid Avenue Corp.
“6. The provisions of F.S. 440.11, entitled ‘Exclusiveness of Liability’ bar the Plaintiff from bringing this action.
“7. The Plaintiff has failed to prove the material allegations of his Complaint.
“On the basis of the foregoing Findings of Fact and Conclusions of Law it is:
“ORDERED AND ADJUDGED that the Plaintiff, ROBERT C. WILSON, take nothing by this action and that the Defendant, SIRKIN BUILDING CORPORATION, go hence without day and recover costs from the Plaintiff to hereinafter be taxed upon proper Motion.”
* * S}S sfc * *

We have examined the record in light of the findings of fact made by the trial judge, sitting non-jury, and find ample substantial competent evidence to support these findings. Therefore, the final judgment here under review be and the same is hereby affirmed. Miami Roofing & Sheet Metal Co., Inc. v. Kindt, Fla.1950, 48 So.2d 840; Gidney Auto Sales v. Cutchins, Fla.App. 1957, 97 So.2d 145; Marks v. Insurance Service Bureau, Inc., Fla.App.1972, 262 So.2d 450; Mitchell v. Morse Operations, Inc., Fla.App.1973, 276 So.2d 248; Walker v. Connolly, Fla.App.1974, 299 So.2d 67.

Affirmed.


author: BOOHER, STEPHEN R., Associate Judge.

text:
    STATE of Florida, Appellant, v. Donna J. LUCK et al., Appellees.
    No. 74-1102.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. ■ Atty. Gen., West Palm Beach, for appellant.
    Richard Jorandby, Public Defender, and Richard Lubin, Asst. Public Defender, West Palm Beach, for appellee Luck.
    John L. Avery, Jr., West Palm Beach, for appellee Walden.
    Edward Fine of Campbell, Colbath & Kapner, West Palm Beach, for appellee Morley.
   BOOHER, STEPHEN R., Associate Judge.

The State appeals an order entered pursuant to the “speedy trial” rule which discharged the defendants from the crimes charged in the information and all other crimes chargeable as a result of the same conduct or criminal episode. We reverse.

Time sequences are always important in cases interpreting Rule 3.191 of the Florida Rules of Criminal Procedure. They are particularly so in this case.

On November 7,1973, defendants Walden and Morley were arrested by officers of the Orlando Police Department (Orange County), who stopped the automobile in which they were riding. Walden, the driver, was charged with and subsequently convicted of driving while intoxicated and of careless driving. Morley, the only passenger, was charged with and convicted of possession of a deadly weapon by a convicted felon. As an incident of the arrest of the two defendants and of the inventory of the vehicle, the stolen items which form the basis of the charges in question were recovered by the police.

On January 25,1974, all three defendants were arrested by officers of the Riviera Beach Police Department (Palm Beach County) on an open charge of possession of stolen property, and thereafter, on February 4, 1974, the State filed an information charging that on November 6,1973 (one day prior to the arrest on the moving violation) all three defendants received stolen property, to-wit: credit cards, in violation of Section 811.16, Florida Statutes (1973). The defendants claim that the information, as framed, charged only a misdemeanor, because of this Court’s holding in Lore v. State, 267 So.2d 699 (Fla. 4th DCA 1972).

On April 17, 1974, a stipulation for continuance of the trial set for April 29, 1974, was filed to enable the taking of depositions of the State’s witnesses. On April 22,1974, defendants Luck and Walden signed form waivers of speedy trial, and defendant Morley signed a similar waiver on April 24, 1974.

On May 9, 1974, the State filed an amended information, which changed the description of the stolen property from credit cards to a driver’s license, Social Security card and identification.

On August 13, 1974, the defendants filed their motion for discharge and dismissal under the “speedy trial” rule, and on August 16, 1974, the trial court entered the order herein appealed, granting the motion.

The defendants argued below and the trial court apparently agreed that the original information charged only a misdemean- or, and that the time for trial on that charge would have expired on April 25, 1974, prior to the filing of the amended information, except for the stipulation for continuance and waivers of speedy trial. The trial court concluded that the amended information filed May 9,1974, was a different charge, that its viability was unaffected by the continuance and waivers, and that prosecution thereon was barred.

This reasoning stands or falls on the initial premise that the original information charged only a misdemeanor. The defendants base their argument upon the language of the State Credit Card Crime Act of 1967, Sections 817.57-817.68, Florida Statutes, as construed by this Court’s holding in Lore v. State, 267 So.2d 699 (Fla. 4th DCA 1972). That decision, however, was disapproved by the Supreme Court of Florida in the recent case of Fayerweather v. State, 332 So.2d 21 (Fla.1976). There the Court, ruling on the precise question here presented, approved a felony conviction and five-year sentence for receiving a stolen credit card in violation of Section 811.16, Florida Statutes (1973), and rejected the contention that the maximum permissible sentence was the one-year misdemeanor penalty provided by Section 817.67(1) of the State Credit Card Crime Act.

We conclude, therefore, that the charge in the original information was a felony rather than a misdemeanor and that the 180-day time limit provided by Fla.R. Crim.P. 3.191(a)(1) applies. Accordingly, the time for trial did not expire until July 24, 1974, and the amended information had been filed before that date.

The defendants also argue that the speedy trial clock should start to run, at least as to defendants Walden and Morley, on the date of their original arrest, November 7, 1973. The record reflects, however, that they were arrested and charged with different offenses on that date and that they were not charged nor were “holds” placed against them for the offense here charged. Compare Hargrove v. State, 281 So.2d 390 (Fla. 2d DCA 1973). Further, they were arrested by officers of a different police department and charged in a different court. Finally, they are charged here with an offense on a different date in a different county. In any event, this argument does not benefit these two defendants unless we conclude that the original information charged only a misdemeanor, which we have not. When the felony time limit is applied, the 180-day period calculated from the date of the original arrest would not have expired until May 6, 1974, and by that date the stipulation for continuance and waivers of speedy trial had been filed.

This leaves for consideration the argument that the stipulation for continuance and speedy trial waivers applied only to the original information, and that when the amended information was filed it had the effect of vitiating the original information as though it had been formally dismissed by order of court. Wilcox v. State, 248 So.2d 692 (Fla. 4th DCA 1971). The defendants recognize that, after a defense motion for continuance is filed, the provisions of Fla.R. Crim.P. 3.191 are no longer applicable and that the trial court then has the right to set the case for trial within a reasonable time. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). The same rule applies even if there has been an intervening nolle prose-qui and refiling, which is somewhat analogous to what the defendants claim here. See Clark v. State, 318 So.2d 513 (Fla. 4th DCA 1975); Swanson v. Love, 290 So.2d 112 (Fla. 2d DCA 1974). They seek to avoid this result by arguing that the continuance and waivers should fall with the original information and the original 180-day time limit should be restored. Under this theory, the time limit would have expired on July 24, 1974, and since the case had not been brought to trial by that date, the order of discharge and dismissal would have been proper.

The Court considered and rejected this same argument in State v. Stanzione, 315 So.2d 500 (Fla. 4th DCA 1975). There we specifically held that the amendment of ah' information after defendants had expressly waived speedy trial and had requested and been granted a continuance did not vitiate the waiver or revive the 180-day time limitation. In fairness to the trial court and counsel we point out that they did not have the benefit of either the Stan-zione or Fayerweather decisions when this case was argued and decided in the trial court.

We do not pretermit consideration by the trial court on remand of the question of whether the defendants have been granted a speedy trial in the light of all the circumstances, or whether there has been any unreasonable delay arising from the negligence of the prosecution, without fault or consent of the defendants, which would violate their right to a speedy trial. State ex rel. Butler v. Cullen, 253 So.2d 861, 863 (Fla.1971); State v. Stanzione, 315 So.2d 500, 503 (Fla. 4th DCA 1975).

Accordingly, the order of discharge is vacated and set aside and the cause is remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

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


author: SACK, MARTIN, Associate Judge.

text:
    Thomas RANGER, Appellant, v. AVIS RENT-A-CAR SYSTEM, INC., et al., Appellees.
    No. 75-1605.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Sept. 8, 1976.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and James D. Little, Miami, for appellant.
    Robert L. Dube, Richard M. Gale, Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   SACK, MARTIN, Associate Judge.

Plaintiff appeals an adverse final judgment entered pursuant to a directed verdict for the defendants in this action to recover damages for injuries sustained as a result of being struck by an automobile.

Plaintiff-appellant, Thomas Ranger, on the evening of December 25, 1973 was attempting to cross N.W. 22nd Avenue from the median strip where he been let off by a bus when he was struck by an automobile driven by defendant Azell Hardnett and owned by defendant Avis Rent-A-Car. Ranger, who admitted he had a few drinks earlier in the day, alleged that he stepped into the crosswalk as the traffic light turned green and started across the street. The next thing he remembered was waking up in the hospital. Hardnett testified that he saw Ranger on the median strip and suddenly he was in front of the car and it was too late to avoid hitting him. At the jury trial expert testimony was presented by both parties as to how fast Ranger could have been walking and whether Hardnett, driving at various speeds, could have stopped his car on time. At the close of all the evidence, the trial judge finding that there were too many inferences directed a verdict for the defendants. Ranger appeals therefrom. We reverse.

It is well established that in granting a motion for directed verdict, the court must determine that there is a total absence of evidence to support a jury finding for the party against whom the verdict is entered. Further, it is not within the province of the trial judge to weigh evidence or determine questions of credibility, and where there is the possibility of different conclusions or inferences from the evidence, the judge should submit the issue to the jury. Parsons v. Reyes, Fla.1970, 238 So.2d 561. Considering the record in the case at bar in view of the above principles of law, we find that the evidence was conflicting and the trial judge erred in not submitting to the jury for its determination the issues of whether Hardnett should have seen Ranger and could have stopped his car on time, and whether Ranger was guilty of negligence contributing to the accident. See Nelson v. Ziegler, Fla.1956, 89 So.2d 780.

Accordingly, the judgment for defendants is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: GRIMES, Judge.

text:
    James Francis CLARK, a/k/a Robert Francis Clark, Appellant, v. STATE of Florida, Appellee.
    No. 74-889.
    District Court of Appeal of Florida, Second District.
    July 28, 1976.
    Rehearing Denied Sept. 10, 1976.

      Jack O. Johnson, Public Defender, Bar-tow, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from a conviction for breaking and entering with intent to commit grand larceny.

During the presentation of the state’s case, one of the arresting police officers testified as follows:

“Q. All right. Did you have occasion to talk with the defendant any further at the scene of the crime?
A. Only when I advised the defendant that he was under arrest for breaking and entering and read him his rights from the card supplied by the State Attorney’s Office.
Q. All right. After you had advised him of his rights did he have occasion to say anything to you at all?
A. He refused to make any statements to me, sir, other than he knew nothing about the incident that had occurred at the tavern.”

Defense counsel did not object to this testimony or move for a mistrial.

Even though part of the statement attributed to the appellant was self serving, the reference to appellant’s refusal to otherwise make a statement after being arrested was clearly improper. Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Since the evidence against appellant was strong, the only questions which remain are whether the comment can be considered harmless error or whether appellant waived his right to complain by reason of his counsel’s failure to object.

In Bennett v. State, Fla.1975, 316 So.2d 41, our Supreme Court considered the effect of testimony by a fire marshal that the defendant refused to sign a waiver of rights or to make a statement to the police. The court said:

“The first error of which defendant complains was of constitutional dimension and warrants reversal without consideration of the doctrine of harmless error. Jones v. State, [200 So.2d 574 (Fla.App.3d, 1967)] supra. In any event the error should not be held harmless, as contended by the State, if there is a reasonable possibility that it might have contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).”

Ironically, the U. S. Supreme Court case of Chapman v. California cited therein, which established the doctrine that an error of constitutional dimension could be harmless, dealt with a case involving impermissible comments by the prosecutor concerning the defendant’s failure to testify. However, there is nothing to keep the Florida Supreme Court from placing a stricter construction upon the similar privilege against self incrimination found in our state constitution. Cooper v. California, 1967, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.

If there is any doubt that our Supreme Court meant what it said in Bennett, this was laid at rest in Shannon v. State, Fla. 1976, 335 So.2d 5 (Opinion filed June 30, 1976). In reversing a decision which had held that comments on the petitioner’s right to remain silent constituted harmless error, the court observed:

“. . . That decision conflicts with our more recent decision in Bennett v. State, 316 So.2d 41 (Fla.1975), where we held that any comment on an accused’s exercise of his right to remain silent is reversible error, without regard to the harmless error doctrine.”

The effect of counsel’s failure to object requires a more detailed consideration because the authorities on this point are not in harmony. The cases which will be discussed include not only those pertaining to evidence about the defendant’s exercise of his Miranda rights but also those where the prosecutor commented on the defendant-having failed to testify at the trial. The analogy between these is viable, we think, because each of the principles for which they respectively stand is grounded upon the defendant’s Fifth Amendment right against self incrimination.

Reference to Defendant's Right to Remain Silent is Reversible Error Regardless of Failure to Object.

In Jones v. State, Fla.App.3d, 1967, 200 So.2d 574, the district court of appeal held that a comment that the accused while in custody remained silent in the face of an accusation of guilt was reversible error without objection having been made. The court said:

“. . . Failure to object at trial will not prevent review of the propriety of introduction of evidence, the admission of which constitutes fundamental error (Rule 3.7(i) F.A.R. 31 [32] F.S.A.), or, in a criminal case, when the appellate court deems it to be in the interests of justice that it be reviewed. . . .”

Likewise, the court of appeal in Bostic v. State, Fla.App.4th, 1976, 332 So.2d 349, held that evidence of the defendant’s assertion of his Miranda rights and refusal to make a statement to arresting officers required reversal in spite of the absence of an objection. The court said:

“There can be no doubt that the error involving the admission of such testimony is of constitutional and fundamental dimensions, and thus does not require a trial objection to preserve the issue on appeal. The Third District, in Jones v. State, 200 So.2d 574 (Fla.App.3rd, 1967), a decision recently followed and expressly approved by our Supreme Court in Bennett v. State, supra, squarely so held on facts identical to those before us here.”

Erroneous Reference to Defendant’s Right to Remain Silent is Waived by Failure to Object.

In State v. Jones, Fla.1967, 204 So.2d 515 (as distinguished from Jones v. State, supra), the Supreme Court held that the failure to object to statements by the prosecutor which were construed by the district court of appeal as commenting upon the defendant’s failure to testify constituted a waiver of the right to complain of the comments. On this point, the court first said:

“Adverting now to the failure of defendant’s counsel to object in the trial court until after rendition of the verdict of guilty, respondent calls attention to the rule stated in Gordon v. State, [Fla. 1958, 104 So.2d 524] supra, as follows:
‘Ordinarily improper remarks of counsel to the jury can be remedied by appropriate instructions by the trial judge. Consequently under ordinary circumstances such inappropriate remarks will not be reviewed by an appellate court unless timely objection is made in the lower court. This rule, however, is subject to the exception that if the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influence then on appeal they may be considered as error even in the absence of an objection in the trial court.’ (Emphasis added.)”

The court then observed that prior to Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, when indigent defendants were not offered the services of an attorney, the application of the foregoing exception was necessary to protect the rights of uninformed defendants who were being tried without counsel. Under those circumstances, trial judges were admonished to intervene, sua sponte, and declare mistrials whenever prejudicial comments were made which could not be corrected by appropriate admonition. However, the court continued:

“At the present time all defendants in criminal trials who are unable to engage counsel are furnished counsel without charge. Application of the exception is no longer necessary to protect those charged with crime who may be ignorant of their rights. Their rights are now well guarded by defending counsel. Under these circumstances further application of the exception will contribute nothing to the administration of justice, but rather will tend to provoke censure of the judicial process as permitting ‘the use of loopholes, technicalities and delays in the law which frequently benefit rogues at the expense of decent members of society-’
It has been suggested that some courts today seem to be preoccupied primarily in carefully assuring that the criminal has all his rights while at the same time giving little concern to the victim. Upon the shoulders of our courts rests the obligation to recognize and maintain a mid-dleground which will secure to the defendant on trial the rights afforded him by law without sacrificing protection of society. As Mr. Justice Cardozo explained in Snyder v. Commonwealth of Mass., 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687:
‘But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.’
The Court now recants the statement of the exception upon which respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.”

In Farmer v. State, Fla.App.4th, 1976, 326 So.2d 32, upon cross-examination the prosecutor had elicited from the defendant an admission that he had remained silent at the preliminary hearing. After pointing out that this was improper, the court of appeal stated:

“. . . Defendant’s counsel initially objected, but then withdrew the objection, apparently because he intended to show on redirect examination that appellant’s silence at the preliminary hearing was the result of advice of counsel. There was no motion for a mistrial, no motion to strike this testimony, nor any motion for the court to instruct the jury to disregard such testimony. In short, there was no judicial error, and we are not inclined to hold it as fundamental error in view of defense counsel’s tactical decision to withdraw his objection.”

Thus, we have the unanimous decision of the Supreme Court in State v. Jones, supra, that the court will review the improper argument of prosecutors only when an objection is timely made. This decision rendered nine years ago has been cited with approval for this point by the Supreme Court as recently as Thomas v. State, Fla. 1976, 326 So.2d 413, though there have been several decisions since 1967 in which certain comments of prosecutors unrelated to the defendant’s silence were thought to be so outrageous as to require reversal regardless of the lack of an objection. E. g., Wilson v. State, Fla.1974, 294 So.2d 327; Thompson v. State, Fla.App.4th, 1975, 318 So.2d 549; Knight v. State, Fla.App.1st, 1975, 316 So.2d 576. Moreover, Jones v. State was the case upon which the Supreme Court predicated its conflict jurisdiction in Bennett, and it was quoted with approval in that decision. However, a motion for mistrial was made in Bennett, so the effect of the failure to make an objection was not directly before the court. Similarly, in Shannon, supra, defense counsel moved for a mistrial. Neither opinion refers to State v. Jones.

Thus it is, that our decision will be in conflict with another Florida decision regardless of which way we go. Foreclosed as we are from determining whether the tainted evidence could be considered harmless, we must make our own determination of the effect of the failure to object, confident that in the final analysis the posture of this case will permit the Supreme Court finally to decide this important question.

As part of our analysis, it may be helpful to consider what is meant by the terms “fundamental error” and “error of constitutional dimension.” Justice Adkins reminded us in Sanford v. Rubin, Fla.1970, 237 So.2d 134, that “fundamental error . is error which goes to the foundation of the case or goes to the merits of the cause of action.” See also Ashford v. State, Fla.1973, 274 So.2d 517. No objection need be made to preserve an attack on an error which is fundamental. Haley v. State, Fla.App.2d, 1975, 315 So.2d 525. Likewise, it has been held that fundamental error may be raised by collateral attack through a motion for post-conviction relief under RCrP 3.850. O’Neal v. State, Fla.App.2d, 1975, 308 So.2d 569, overruled on other grounds in Roberts v. State, Fla.App.2d, 1975, 320 So.2d 832. In Ashford v. State, supra, the Supreme Court cautioned that appellate courts should exercise discretion under the fundamental error doctrine very guardedly.

Generally, fundamental errors are those of constitutional dimension. But not all errors of constitutional dimension are fundamental. This is illustrated by the fact that while one is protected by the Constitution from an illegal search and seizure, yet the illegality of a search and seizure may be waived by his failure to object to it. Robertson v. State, 1927, 94 Fla. 770, 114 So. 534; New v. State, Fla.App.2d, 1968, 211 So.2d 35. Our Supreme Court has noted that constitutional issues other than those constituting fundamental error are waived unless they are timely raised. Sanford v. Rubin, supra. Thus, it seems fair to conclude that whether errors of constitutional dimension are fundamental depends upon their magnitude.

The desirability of having an objection voiced to evidence of the nature involved in this case is evident. As the Supreme Court observed in State v. Jones, supra, the rule which does not require an objection to be raised to the introduction of evidence of this type “made it possible for defense counsel to stand moot if he chose to do so, knowing that all the while a verdict against his client was thus tainted and could not stand. By such action defendants had nothing to lose and all to gain, for if the verdict be ‘not guilty’ it remained unassailable.” Likewise, to insist upon a blanket rule that no objection need be made can have the effect of placing the trial judge on the horns of a dilemma. Assuming questionable evidence has been introduced without objection, the judge may find himself in a position of declaring a mistrial which the defendant doesn’t even want. If the judge is wrong (and often the determination of whether the evidence is improper is not so clear), the defendant may be entitled to release without a second trial on grounds of double jeopardy. Strawn v. State ex rel. Anderberg, Fla.1976, 332 So.2d 601. Whether or not the judge could safely ask defense counsel to take a position with respect to whether he wanted a mistrial is not totally clear. Compare State v. Grayson, Fla.1956, 90 So.2d 710, with Farmer v. State, supra.

Admitting the influence of some of the practical ramifications, we have concluded that the interests of justice would not be served by the adoption of an absolute rule that in every instance there is no need to object to references to an accused’s exercise of his right to remain silent in order to preserve the error. On the other hand, we do not hold that an objection is always necessary to preserve the point. Some references may be so prejudicial to the right of a defendant to a fair trial that the error must be deemed to fall within the ambit of that elusive term “fundamental.” As in many other areas of the law, the decision should be made on a case by case basis. The polestar must always be whether the defendant has been afforded a fair trial.

Applying these principles to the instant case, we believe that the admission of the tainted evidence does not rise to the magnitude of fundamental error.

While it would have been prudent not to have asked whether the appellant had made any statement unless the prosecutor ascertained in advance that he had done so, we cannot characterize the interrogation as being designed to impair the appellant’s constitutional rights. When the witness made an improper response, the prosecutor did not attempt to continue a dialogue with the witness or otherwise pursue the fact of appellant’s exercise of his right to remain silent. Moreover, the defense counsel, who capably performed his responsibility of properly defending the accused, may well have felt that the latter part of the witness’ statement: “. . . other than he knew nothing about the incident that had occurred at the tavern,” was valuable testimony to the accused who was charged with breaking and entering the tavern in question with the intent to commit grand larceny. Finally, there is no contention that the prosecutor made any reference to the statement in his final argument to the jury. Under these circumstances, we cannot say that introduction of such testimony, within the context of this record, so infected the appellant’s right to a fair trial as to require application of the doctrine of “fundamental error.”

AFFIRMED.

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