text:
    H. D. AND J. E. W., Juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 75-1829.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Appellants, a 13 year old juvenile and a 14 year old juvenile, were charged in petitions for delinquency with breaking and entering or entering without breaking a truck, and with grand larceny. Following an evidentiary hearing, the court found that both youths did break and enter or enter without breaking the truck; that the 14 year old committed grand larceny and that the 13 year old committed attempted grand larceny. The 14 year old was adjudicated delinquent and was committed to the Division of Youth Services. Adjudication was withheld on the 13 year old. Both juveniles take this appeal and contend error in the denial of their motions for judgment of acquittal and motions for new trial where the evidence was insufficient to establish that they committed the acts alleged in the petitions for delinquency.

On appeal, we review the record for the purpose of determining whether it contains substantial competent evidence which, if believed, will support the trial judge’s finding of guilt. Crum v. State, 172 So.2d 24 (Fla. 3rd DCA 1965); Starling v. State, 263 So.2d 645 (Fla. 3rd DCA 1972). Generally, all conflicts and reasonable inferences from the evidence are to be drawn in favor of the judgment of conviction and the evidence is to be viewed in the light most favorable to support the conclusion of the trier of fact. Douglas v. State, 214 So.2d 653 (Fla. 3rd DCA 1968); Dreger v. State, 228 So.2d 431 (Fla. 3rd DCA 1969).

The record reflects that there were three vehicles parked at the service station where the incident in question took place: the truck named in the petitions for delinquency, and two automobiles. There was eye witness testimony that three youngsters, of which the appellants were two, were breaking into the vehicles at the service station; that certain tools were removed from the truck by the other youngster, not one of the appellants, and that while this youngster was getting the tools from the truck, the 13 year old was standing near the front of the door. There was further eye witness testimony that the 13 year old was also in one of the cars, and that the 14 year old was at the other car with a wrench in his hand.

In our opinion, the evidence in the record is sufficient to establish the appellant’s guilt for the acts charged. Although they, themselves may not have broken into the specific truck mentioned in the petitions, there was ample evidence to the effect that they were not mere bystanders, but that they were participants in acts being committed. When persons combine to commit an unlawful act, each is criminally responsible for the acts of his associates. Pope v. State, 84 Fla. 428, 94 So. 865 (1922); Tucker v. State, 100 Fla. 1440, 131 So. 327, 329 (1930). An accomplice will be held to answer even though he himself did not commit the act. Davis v. State, 275 So.2d 575 (Fla. 1st DCA 1973). He may be convicted upon proof that he aided and abetted in the commission of such crime. Section 777.011, Florida Statutes; State v. Roby, 246 So.2d 566, 570 (Fla.1971); Foxworth v. State, 267 So.2d 647, 650 (Fla.1972); McNeal v. State, 303 So.2d 698 (Fla. 3rd DCA 1974).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald L. SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 76-45.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.
    William N. Hutchinson, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Appellant was found guilty by a jury of robbery and the use of a firearm in a criminal offense. On this appeal, he urges error upon several rulings of the trial judge during the trial. We find that the proof of appellant’s guilt was clear and evident and that the rulings upon which error is assigned could not have deprived defendant of a fair trial. Affirmed. See Section 924.33, Florida Statutes (1975).


author: GRIMES, Judge.

text:
    Irvin SUCKLE et al., Appellants, v. CINCINNATI INSURANCE COMPANY, etc., et al., Appellees.
    No. 76-1640.
    District Court of Appeal of Florida, Second District.
    June 10, 1977.
    David A. Demers of Law Offices of Robert W. Pope, St. Petersburg, for appellants.
    Stephen M. Bull of Welbaum, Zook, Jones & Williams, Orlando, for appellee Cincinnati Ins. Co.
   GRIMES, Judge.

In this case the appellants attack the propriety of the procedure which was followed in the entry of a judgment on the pleadings against them on their third-party complaint.

The case began as a mortgage foreclosure in which the owner, the contractor and several subcontractors and materialmen were joined as defendants. The appellants operating as a joint venture under the name of American Prefabricated Structures Company filed cross-claims against the owner and the contractor and filed a third-party complaint against Cincinnati Insurance Company. American Prefab alleged that it had provided services and materials to the construction of a project on the property being foreclosed and had not been paid. Relief was sought against Cincinnati Insurance Company because it had written a performance and payment bond on the construction of the project.

The surety company’s answer to the third-party complaint contained a general denial and two affirmative defenses. Neither of the affirmative defenses dealt with whether the third-party complaint had been timely filed. American Prefab filed a reply to both affirmative defenses. Thereafter, the surety company made a motion for judgment on the pleadings asserting only that since there was no genuine triable issue as to any material fact, it was entitled to judgment as a matter of law. Thereafter, the court entered judgment on the pleadings in favor of the surety company on the premise that the third-party complaint had not been filed against the bond within one year of the performance of the labor or completion of the delivery of materials and supplies as required by Section 713.23, Florida Statutes (1975).

American Prefab contends, and we agree, that the motion for judgment on the pleadings should not have been granted because the pleadings did not reflect a limitations defense. The only way in which one might conclude that the third-party complaint was untimely filed was by reference to a copy of a claim of lien attached thereto which indicated that the last labor, services or materials had been supplied on a date which was more than a year before the third-party complaint was filed. The surety company could have filed a motion to dismiss pursuant to Fla.R.Civ.P. 1.110(d) on the ground that the affirmative defense of the statute of limitations appeared on the face of the third-party complaint, but it did not do so. Had such a motion been filed and granted, the rule would have permitted American Prefab to amend. Likewise, the statute of limitations could have been interposed as an affirmative defense in the answer, but this was not done either.

The statutory requirement of instituting suit within one year was not a limitation of a right but of a remedy. Young v. Williamson, 169 So.2d 856 (Fla.2d DCA 1964). Therefore, it was improper to grant a judgment on the pleadings predicated upon this defense when no such defense was raised by the pleadings.

The only way in which this judgment might be sustained would be to hold that the granting of the motion constituted harmless error in view of the fact that American Prefab had an opportunity to argue the inapplicability of the statute at the hearing on its motion for rehearing. Admittedly, American Prefab made a weak showing in its motion for rehearing that it could have gotten around the statute of limitations if properly pled on grounds of estoppel and acknowledgment of the obligation. However, as American Prefab’s attorney points out, at this point in the litigation he had only ten days within which to file a motion for rehearing and to assert whatever he could to avoid the limitations argument. Had the statute of limitations been pled as it should have, American Prefab would have been alerted to the defense and would have had the opportunity to proceed in an orderly manner by way of discovery toward the development of evidence which might obviate the limitations defense. We have come a long way in simplifying the requirements of pleading, but we have not done away with the necessity of pleading those matters which form the issues upon which the ease is to be decided.

The judgment is reversed for further proceedings in which the surety company should be permitted to amend its answer to raise the statute of limitations and American Prefab can file its reply thereto.

BOARDMAN, C. J., and OTT, J., concur.


text:
    Terina TAMARGO, Appellant, v. Richard TAMARGO, Appellee.
    No. 76-1789.
    District Court of Appeal of Florida, Second District.
    June 10, 1977.
    Ralph W. Rinehart, Tampa, for appellant.
    No appearance for appellee.
   PER CURIAM.

The trial court denied the appellee/hus-band’s-motion for modification of the final judgment of dissolution of marriage seeking to change custody of a minor child from the appellant/mother to the child’s paternal grandparents. The trial court did, however, award the paternal grandparents visitation rights. The award of visitation rights to a nonparent of a child whose custody has been awarded to a fit parent is without authority and is unenforceable. Sheehy v. Sheehy, 325 So.2d 12 (Fla.2d DCA 1975).

Accordingly, the order of the trial court is reversed.

McNULTY, Acting C. J., and SCHEB and OTT, JJ., Concur.


text:
    B & J VAN BEBER EQUIPMENT RENTAL, INC., Appellant, v. Dorothy PEDERSEN and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 76-1652.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.

      Burns & Aronovitz, Miami Beach, for appellant.
    Walton, Lantaff, Schroeder & Carson, Miami, for appellees.
    Before BARKDULL, HAVERPIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, B & J Van Beber Equipment Rental, Inc., takes this appeal from a summary final judgment in favor of the defendants, Dorothy Pedersen and State Farm Mutual Automobile Insurance Company, in an action for damages stemming from an automobile accident.

The record reflects that on May 4, 1973, the vehicle driven by Boyd Van Beber was involved in a collision with the vehicle driven by Dorothy Pedersen. In 1974, a complaint was filed by Boyd Van Beber and Justine Van Beber, his wife, seeking damages for personal injuries sustained by Boyd Van Beber in the accident, and including the following allegation:

“Plaintiffs motor vehicle was damaged to where he lost the value of his. interest in it and the value of its use durning (sic) the time required to make the necessary repairs to it and Plaintiff, BOYD VAN BEBER, has had to spend some money to repair said vehicle.”

In October of 1975, the parties stipulated and the court ordered that the cause be dismissed with prejudice, as a settlement had been reached. By the terms of a release executed on September 30, 1975, in consideration of the amount of $5,000, Boyd Van Beber and Justine Van Beber made

“. . . a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, . . .for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.”

On December 9, 1975, the instant action was commenced by the filing of a complaint against the same defendants, Pedersen and her insurer, State Farm. The named plaintiff is B & J Van Beber Equipment Rental, Inc. The complaint alleges that,

“. . . Plaintiffs Dump Truck was damaged to where Plaintiff’s (sic) lost the value of its interest in it and the value of its use during the time it required to make necessary repairs to it and Plaintiff has had to spend large sums of money for repair of said vehicle. Further, Plaintiff suffered a business loss and loss of profits since Plaintiff was unable to use said vehicle as a result of the forementioned (sic) accident.”

The defendants filed a motion for summary judgment on the grounds that there are no genuine issues of material fact, and in support thereof attached certified copies of the prior complaint, the stipulation for dismissal with prejudice, the order of dismissal and a copy of the release executed by the Van Bebers. The trial judge heard the motion, granted it and entered summary final judgment in favor of the defendants.

In our opinion, the trial court erred in entering summary final judgment where there is not sufficient evidence in the record to negate all material allegations in the plaintiff’s complaint. For example, in the first action in which Boyd and Justine Van Beber as individuals, were the plaintiffs, the complaint refers to “Plaintiffs motor vehicle,” and the complaint in the pending action refers to “Plaintiff’s Dump Truck,” the plaintiff being the corporation. The stipulation for order of dismissal and the release which were executed in the first action were entered into between the defendants and the Van Bebers as individuals. We are unable to conclude from this record that it was the intent of those parties to bind the corporation, alleged to be the owner of the damaged truck in this action. Accordingly, we find that there are genuine issues of material fact to be determined in this case. The summary final judgment, is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    Gabriel ZAMORA and Rosa Zamora, his wife, Appellants, v. BLUE COAST CORPORATION, a Florida Corporation, Appellee.
    No. 76-1303.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.
    Taylor, Brion, Buker & Greene, Robert F. Garcia-Esquerro, Miami, for appellants.
    Philip Medvin, Miami, for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Settecasi v. Board of Public Instruction of Pinellas County, 156 So.2d 652 (Fla.2nd D.C.A.1963); Henry Stiles, Inc. v. Evans, 206 So.2d 65 (Fla.4th D.C.A.1968); Liberman v. Rhyne, 248 So.2d 242 (Fla.3rd D.C.A.1971); B. B. S. v. R. C. B., 252 So.2d 837 (Fla.2nd D.C.A. 1971); Accurate Metal Finishing Corp. v. Carmel, 254 So.2d 556 (Fla.3rd D.C.A.1971); Fla.R.Civ.P. 1.510(c), (e); Section 59.041, Florida Statutes (1975).


text:
    James McRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1970.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.
    James McRay, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: SMITH, Judge. RAWLS, Acting Chief Judge

text:
    SCHOOL BOARD OF COLLIER COUNTY, Florida, Petitioner, v. Nadine STEELE, Respondent.
    No. CC-487.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearing Denied Sept. 7, 1977.
    Hugh D. Hayes, Grootemaat & Hayes, Naples, for petitioner.
    Nadine Steele, in pro. per.
   SMITH, Judge.

The Collier County School Board petitions for review of an order of the State Board of Education which set .aside the School Board’s dismissal of respondent Steele, holder of a continuing teacher’s contract, and ordered her reinstated. Section 120.68, Florida Statutes (Supp. 1976).

In a controversy arising out of Steele’s absence from school to attend an Equal Rights Amendment rally in Tallahassee, the School Board, after Section 120.57(1) proceedings, discharged her on account of breach of contract, absence without leave and willful neglect of duty. Sections 231.-36, 231.44, Florida Statutes (1975). Steele sought review by the State Board of Education as authorized by Section 231.36(6). Following a report by the State Board’s hearing officer, who reviewed the record developed before the School Board, the State Board reinstated Steele by an order evidenced only by a letter from the Commissioner of Education to the School Board’s attorney:

“This is to notify you that the State Board of Education meeting in Tallahassee on June 29, 1976, reversed the action of the Collier County School Board, reinstating Ms. Steele’s continuing contract with full back pay from the time of dismissal.”

The State Board’s hearing officer recommended reinstatement because the record showed Steele requested personal leave without pay to attend the ERA rally and was refused permission by her principal, whose criteria for granting personal leave were so unsettled and capricious as to deny Steele equal protection of the law. The School Board’s written policy concerning personal leave not exceeding five working days included no standards for its application, but left its application to the principal and superintendent, who were shown to have granted personal leave for many reasons not demonstrably more compelling than respondent’s.

We do not reach the merits of the State Board’s decision vacating that of the School Board, nor do we examine the merits of the displaced decision of the School Board. We hold the Administrative Procedure Act, Chapter 120, Florida Statutes (Supp. 1976), does not authorize judicial review of the State Board’s order at the instance of a district School Board.

Our Constitution provides for “a uniform system of free public schools” in which the school boards of single-county districts “operate, control and supervise all free public schools within the school district”, subject to “such supervision [by the State Board] as is provided by law.” Article IX, Sections 2 and 4, Florida Constitution. Consistent with that plan, Section 231.36, Florida Statutes (1975) places authority to employ and discharge teachers in the district school boards. School Board of Leon Co. v. Goodson, 335 So.2d 308 (Fla. 1st DCA 1976); Hart v. School Board of Wakulla Co., 340 So.2d 121 (Fla. 1st DCA 1976). The State Board has supervisory power to review a district school board decision to suspend or discharge a teacher only “[i]f the employee is under continuing contract”. Section 231.36(6); Adams v. Bd. of Pub. Inst. of Okaloosa Co., 225 So.2d 423 (Fla. 1st DCA 1969). That limited review power does not have the effect of removing responsibility for “final agency action,” as that term is employed in the APA, from the district board to the State Board. Section 120.68(1), Florida Statutes (Supp. 1976). That responsibility remains with the district school board, both as a conceptual affirmation of local authority and as a necessary consequence of orderly proceedings under the APA.

In Phillips v. Santa Fe Community College, 342 So.2d 108 (Fla. 1st DCA 1977), the Board of Trustees of a community college dismissed a teacher for incompetence and misconduct. The teacher as holder of a continuing contract was entitled to administrative review of his discharge by the Board of Education. Fla.Admin. Code Rule 6A-14.411. Phillips sought that review and the Board of Education sustained the Trustees’ action. Phillips’ tardy petition for review made it necessary to determine whether “final agency action” under Chapter 120 was taken by the Santa Fe Trustees or by the Board of Education. We held that the Santa Fe Board of Trustees was the agency responsible for “final agency action” and that the Board of Education’s subsequent administrative review did not displace the Trustees’ action as “final” but simply tolled the time allowed for Phillips’ petition for judicial review. To recognize the order of the Board of Education as “final agency action,” we stated,

“. . . would effectively displace the Santa Fe Trustees as the body having authority to discharge instructional personnel at that college. A hearing would be required [under Section 120.57(1)] before the Board of Education itself, or before one of its members, or before a hearing officer whose proposed order would be submitted to the Board. Any prior proceedings before the district Trustees would thereby be eclipsed.” 342 So.2d at 110.

The implication of Phillips in the case, before us is that the school system’s final administrative action is not to discharge respondent but to reinstate her. The Board of Education has, in effect, dictated a revision of the Collier County School Board’s final order, and the School Board is bound to effectuate that revision as its own. The School Board cannot here seek judicial review of final agency action which is, in legal effect, its own. Cf. Bureau of Community Med. Fac. Planning v. Samson, 341 So.2d 1071 (Fla. 1st DCA 1977).

Were we to recognize the order of the Board of Education as final agency action, subject td review on petition of the Collier County School Board, we would necessarily subject the Governor and Cabinet to all responsibilities concerning final agency action which are imposed by Chapter 120. Section 120.57(1) would require factfinding by the Board of Education or a hearing officer assigned in its place, thus removing that function from the district school board or adding a second, duplicative trial. We cannot conceive the legislature intended such a result. Rather, it was the legislature’s evident purpose that the statewide school system speak through final orders of the district school boards, subject to administrative review in limited cases by the Board of Education. Judicial review is unavailable to a district school board whose final order is modified by a superior administrative decision.

The School Board urges that respondent’s discharge for willful absence from duty without leave was not reviewable by the Board of Education under the terms of Section 231.36(6) because that offense is a ground of discharge under Section 231.44 and is not one of the offenses for which discipline is authorized by Section 231.36(6), namely:

“immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude.”

We find, on the contrary, that a teacher’s violation of Section 231.44 by willful absence without leave is “misconduct in office” or “willful neglect of duty” for which discipline is authorized and State Board review is provided by Section 231.36(6).

The petition for review is DISMISSED.

McCORD, J., concurs.

RAWLS, Acting C. J., specially concurs.

RAWLS, Acting Chief Judge

(specially concurring).

Article IX, Section 4(b), Florida Constitution (1968), entitled “School District; School Boards”, provides: “The school board shall operate, control and supervise all free public schools within the school district . . ..” Consistent with this constitutional provision, Section 231.56, Florida Statutes, authorizes the district school boards to employ and discharge teachers in their respective districts. Thus, it would appear that the citizens granted to the local school boards, by their charter, and the legislature implemented same, by statute, the authority for “hiring” and “firing” teachers. Not so. The legislature, by the provisions of Section 231.36(6), Florida Statutes, has empowered the State Board of Education with the final authority (subject to judicial review) of “firing” and, by “conceptual affirmation”, imposed this super board’s determination upon the local board. Thus, by sophistic reasoning, we are forced to conclude that the final action of the district school board is not the action that it has reached after extensive due process hearings, but, to the contrary, its final action is the action dictated by the “Tallahassee State School Board”. The result is incredulous; however, I am compelled to concur because it is the law.

      . “If the employee is under continuing contract, any such decision [by the school board] adverse to him may be appealed by him in writing to the Department of Education, through the Commissioner [of Education], for review; provided such appeal is filed within 30 days after the decision of the school board, and provided further that the decision of the department shall be final as to sufficiency of the grounds for dismissal.”

      . Fla.Admin. Code Rule 6A-1.691(2): “The hearing officer shall notify the parties of a schedule for filing such papers with the hearing officer as may be necessary and appropriate to determine whether the record reflects that the decision of the school board to discontinue the continuing contract status or dismiss the appellant was supported by substantial competent evidence.” That Rule of the State Board further provides, in subsection (4): “The State Board of Education shall affirm, overrule or enter such order as may be equitable based on the record and the hearing officer’s recommendation.”

      . “Any member of the instructional staff of any district who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his contract shall be subject to cancellation by the school board.” § 231.44, Fla.Stat. (1975).


text:
    Joseph Anthony VECCHIO, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-1116, 76-1157.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Rehearing Denied Aug. 31, 1977.
    Bennett H. Brummer, Public Defender, and Arthur B. Stark, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Joseph Anthony Vecchio appeals his convictions of breaking and entering, two counts of grand larceny and burglary.

Vecehio’s sole point on appeal is that the search warrant issued was invalid on its face for failure to particularly describe the property or things to be seized.

The subject warrant reads in pertinent part:

“ . . . Stolen property is being possessed in violation of State Statute 812.-031, Receiving Stolen Property. The thing specifically sought to be seized is particularly described as a quantity of stolen auto parts.”

This warrant authorizing the police to search Vecchio’s private residence for stolen auto parts was not tantamount to a license to engage in a general exploratory rummage in Vecchio’s belongings which is prohibited. See Andresen v. Maryland, 427 U.S. 463, 479, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627, 642 (1976). We find that describing the generic class of items sought was sufficient. Cf. North v. State, 159 Fla. 854, 32 So.2d 915 (1947); James v. U. S., 416 F.2d 467 (5th Cir. 1969); U.S. v. Wilson, 451 F.2d 209 (5th Cir. 1971).

Affirmed.


text:
    Gary Thomas WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1336.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Rehearing Denied Sept. 8, 1977.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant-appellant, Gary White, seeks reversal of his conviction for burglary and attempted grand larceny on the ground he is entitled to a new trial because the prosecutor elicited testimony concerning collateral crimes committed by him which were not relevant to the charges on which he was being tried.

This alleged error arises out of the following colloquy during redirect examination by the prosecutor of one of the police officers:

$ * * * s|« *
“Q Sir, what defense counsel refers to as a little ride, which you referred to as location, would you explain to the jury what that means, to take a man on location?
“MR. WOOD: I would object to that as being prejudicial.
“MR. MONROE: I would point out that he was the one that brought it out in a sinister tone — Oh, you took him for a ride.
“MR. WOOD: Your Honor, I am going to object to that characterization—
“THE COURT: Sustained.
“MR. WOOD: —and I would ask for a mistrial.
“THE COURT: Denied. The objection is sustained, but the motion for mistrial is denied.
“MR. WOOD: I would ask the jury to be instructed to disregard counsel’s remark.
“THE COURT: Disregard the last statement of the prosecutor, members of the jury.
“The previous objection to the question is overruled. Let’s have the question read back so the jury knows what the question is that is being asked.
“(The pending question was read by the Reporter as above recorded.)
“THE WITNESS: Individuals are taken on location to point out—
“THE COURT: You better confine it to this case, before we get into some problem.
“Q (By Mr. Monroe) Sir, is location a proper police procedure?
“A Yes, sir, it is.
“Q And when you take a man out on location, what do you mean when you take him out on location?
“A It is always requested by the individual who is under arrest, if they wish to go on location and point out—
“Q Point out what?
“A Crimes they committed.
“MR. WOOD: I am going to object to this, your Honor.
“THE COURT: Sustained.”
* # # * # #

This line of questioning pursued by the prosecutor was a direct result of defense counsel bringing out the fact that the police took defendant for a ride thereby insinuating to the jury that defendant was pressured into confessing to the charges. It is well established that a defendant may not take advantage of an error which he himself induced. See Gagnon v. State, 212 So.2d 337 (Fla. 3d DCA 1968); Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974). In the case at bar, if error was committed then such error was stimulated and suggested by defense counsel who now cannot be heard to complain on appeal.

We also note that although defense counsel objected to the complained of remarks, he failed to move for a curative instruction which is proper procedure. See Sullivan v. State, 303 So.2d 632 (Fla.1974); Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974). We find no abuse of discretion on the part of the trial judge in not declaring a mistrial.

Affirmed.


text:
    Marcia GOLDNER, Appellant, v. TKP ASSOCIATES and Lydia Harrison, Appellees.
    No. 77-676.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Rehearing Denied Aug. 31, 1977.

      Michael L. Mann, Miami, for appellant.
    Ehrich & Zuckerman, Miami, for appel-lees.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. See the rule in Hope v. National Airlines, 99 So.2d 244 (Fla.3d DCA 1957).


author: DAUKSCH, Judge.

text:
    Stephen ABRAMSON, Petitioner, v. J. Ed STRAUGHN, as Executive Director of the Department of Revenue, an Agency of the State of Florida, Respondent.
    No. 76-1946.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1977.
    Thornton M. Henry, Jones, Paine & Foster, West Palm Beach, for petitioner.

      Robert L. Shevin, Atty. Gen., and Caroline C. Mueller, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for respondent.
   DAUKSCH, Judge.

By Petition for Writ of Certiorari, we have for review a Final Order of the Department of Revenue, assessing Petitioner for documentary stamp taxes and penalty. We grant certiorari. Fla.App.Rule 4.1.

In 1969, Petitioner entered into a joint venture agreement with Kassuba Realty Corporation to acquire real property for rental and investment purposes. Under the terms of the agreement acquisition and financing of the properties were handled thru Kassuba Realty. Its president, Walter Kas-suba, personally guaranteed all obligations of Kassuba Realty. Petitioner was primarily responsible for the development and management of the properties.

Under the terms of the joint venture agreement, each venturer was liable on all notes and other evidences of indebtedness of the joint venture in proportion to his respective interest in the venture, that is, fifty percent each. This meant that while only Kassuba Realty’s president was personally liable to a lender, under the terms of the agreement he could seek indemnification from Petitioner.

As each parcel was acquired, full documentary stamps were affixed to the deed and record title was retained by Kassuba Realty Corporation. Equitable ownership of the property was conveyed to the joint venturers, each taking fifty percent.

In 1973 Walter Kassuba began experiencing financial difficulties and filed for bankruptcy. Petitioner, wishing to extricate his fifty percent interest in the venture from the bankruptcy proceedings and the claims of Kassuba’s creditors, entered into an agreement with Kassuba which was approved by the bankruptcy court. Each ven-turer received whole parcels of property to satisfy his fifty percent interest and assumed the mortgages thereon.

Pursuant to this agreement, Kassuba Realty, Walter Kassuba, and his wife executed four quit-claim deeds, conveying certain whole parcels to Petitioner. The consideration stated on the face of each deed was $10.00. Minimum documentary stamps were affixed to each deed.

The Department of Revenue sent Petitioner a Notice of Assessment for $3,307.50 plus a penalty of $3,307.50. This assessment was based on the value of the mortgages assumed by Petitioner when the joint venture property was conveyed to him by the four quit-claim deeds. Petitioner objected to the additional assessment and argued that the conveyances constituted a partition of joint venture property so that no consideration was given.

An administrative hearing was held and the Hearing Officer found that the assessment was proper because Petitioner gave consideration for the transaction in that prior to the conveyances he was liable only for indemnification under the terms of the joint venture agreement but afterward he was directly and primarily liable for the outstanding mortgages.

We find that the transaction resulted only in a change in the form of Petitioner’s liability and hold that such a change does not constitute consideration for documentary stamp tax purposes.

The clear purpose of Section 20.-02*, Florida Statutes (1975), is to assess the purchaser for documentary stamp tax on the basis of the total consideration given in the transfer of real property. Kendall House Apartments, Inc. v. Department of Revenue, 245 So.2d 221 (Fla.1971). When a grantee specifically “assumes” a mortgage or even when he takes property only “subject to” an outstanding mortgage, he has given consideration to the extent of the value of such mortgage. Florida Department of Revenue v. De Maria, 338 So.2d 838 (Fla.1976).

The rationale of both the cited cases is that where the burden of making' the mortgage payments has shifted from the grantor to the grantee, consideration is given by the grantee. The Supreme Court in Florida Department of Revenue v. De Maria, supra, referred to this change in financial responsibility as a “ . . . shifting of the economic burden and benefit which supplies the consideration required by Section 201.02, Florida Statutes” at 840.

It might appear that the Petitioner, in assuming the mortgages on the parcels conveyed to him, gave consideration as defined in Florida Department of Revenue v. De Maria, supra, and Kendall House Apartments, Inc., supra. However, we believe that these cases are distinguishable. We find that implicit in the holdings in both De Maria and Kendall House Apartments, Inc. is an absence of any liability or obligation in the grantee with respect to the mortgage prior to the conveyance. With the transfer in each case came a genuine “shifting of the economic burden” from a grantor who was solely responsible for mortgage payments to a grantee who, prior to the transfer, had no share in the financial obligation represented by the mortgage.

We conclude that the quit-claim deeds at issue here represent nothing more than a change in the form of Petitioner’s liability. Prior to the conveyances he was liable, by way of his duty to indemnify, for one-half of the value of all evidences of indebtedness. Subsequent to the transfers, he remains liable for one-half; only the nature of his liability has changed. See Straughn v. Story, 334 So.2d 337 (Fla. 1st DCA 1976).

Finding that Petitioner was not a purchaser for consideration within the meaning of Section 201.02, Florida Statutes (1975), the Final Order of the Department of Revenue is REVERSED.

CROSS and LETTS, JJ., concur.

      . “201.02 Tax on deeds and other instruments relating to lands, etc.—
      (1) On deeds, instruments, or writings whereby any lands, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser, or any other person by his direction, on each one hundred dollars [$100] of the consideration, therefor the tax shall be thirty [30] cents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of thirty [30] cents for each one hundred dollars [$100] or fractional part thereof of the consideration therefor.
      (2) The tax imposed by subsection (1) of this section shall also be payable upon documents by which the right is granted to a tenant-stockholder to occupy an apartment in a building owned by a cooperative apartment corporation.

        (3) The tax imposed by subsection (2) shall be paid by the purchaser, and the document recorded in the office of the clerk of the circuit court as evidence of ownership.”


text:
    CITY OF HIALEAH GARDENS et al., Appellants, v. DADE COUNTY et al., Appellees.
    No. 76-946.
    District Court of Appeal of Florida, Third District.
    July 12, 1977.
    Rehearing Denied Sept. 9, 1977.

      Warren S. Wepman, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Neil Flaxman, South Miami, for appellants.
    Steel, Hector & Davis and Darrey A. Davis, Coral Gables, Stuart L. Simon, County Atty., Miami, Lewis I. Horwitz, Bay Harbor Island, for appellees.
    George F. Knox, Jr., City Atty. and Eugene Steinfeld, Asst. City Atty., for City of Miami as amicus curiae.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This appeal stems from the dismissal of the City of Hialeah Gardens’ suit to enjoin Metropolitan Dade County from receiving any part of the revenue collected by Florida Power and Light Company (FP&L) from inhabitants of Hialeah Gardens. Dade County has cross-appealed from the trial court’s modification of its final order after a hearing on motions to intervene and for rehearing which were brought by the Village of Virginia Gardens.

In 1960, the Board of County Commissioners of Dade County passed an ordinance granting FP&L a thirty year non-exclusive franchise to provide electricity to the residents of Dade County. The ordinance, No. 60-16, in pertinent part reads as follows:

“Section 1. That there is hereby granted to Florida Power & Light Company . the non-exclusive right, privilege or franchise to construct, maintain and operate in , under, upon, over and across the present and future streets, alleys, bridges, easements and other public places in the unincorporated and incorporated areas of Dade County, Florida . for the period of thirty years from the date of acceptance hereof . for the purpose of supplying electricity to [Dade County], and its successors, the inhabitants thereof, and persons and corporations beyond the limits thereof, subject to all existing municipal franchises.”

Other sections of the ordinance recite standards regarding the placement, construction and maintenance of transmission facilities and provide for the payment of a franchise fee to Dade County.

The ordinance was passed by a more than two-thirds vote of the members of the Board of County Commissioners and approved by a majority of the qualified electors of Dade County in accordance with Section 1.01(A)(14)(a) of the Dade County Home Rule Charter. Section 1.01 delineates the powers of the Board of County Commissioners, and Subsection 14 in particular deals with the power to grant franchises:

“SECTION 1.01. POWERS
A. The Board of County Commissioners shall be the legislative and the governing body of the county and shall have the power to carry on a central metropolitan government. This power shall include but shall not be restricted to the power to:
* * * * * *
14. Regulate, control, take over, and grant franchises to, or itself operate gas, light, power, telephone, and other utilities, sanitary and sewage collection and disposal systems, water supply, treatment, and service systems, and public transportation systems . . .”

Hialeah Gardens initially brought suit against FP&L claiming that FP&L had since 1960 been wrongfully paying to Dade County part of the revenue derived from the sale of electricity to inhabitants of Hialeah Gardens. The City therefore sought to have FP&L enjoined from making any further payments to Dade County. In its subsequent amended complaint, Hialeah Gardens included Dade County as a party defendant. The original allegations and requests for relief were restated but in addition, a temporary injunction was sought barring the County from exercising any rights under its franchise agreement with FP&L or from interfering in any way with Hialeah Gardens’ attempts to negotiate its own franchise with FP&L. This latter request was premised upon the contention that the County had exceeded its authority in granting the county-wide franchise.

FP&L moved to dismiss the amended complaint, while Dade County filed a counterclaim against Hialeah Gardens and a crossclaim against FP&L seeking a declaration of its rights, privileges and powers under the franchise agreement. Specifically, the County alleged that Ordinance No. 60-16 was preemptive, barring franchise contracts between FP&L and those municipalities in Dade County which had not established such relationships prior to the effective date of the ordinance.

The trial judge ultimately dismissed Hialeah Gardens’ complaint against both the County and FP&L. The court held that the Metro charter authorized the County to grant county-wide franchises, subject to the conditions for approval mandated by Charter Section 1.01(A)(14)(a), which conditions had been performed. The court further ruled that Ordinance No. 60-16 was preemptive in nature and that FP&L was consequently barred from entering into franchise agreements with Dade County municipalities subsequent to May 24, 1960, the date that the ordinance went into effect. The court’s order stated the discerned prohibition applied not only to those municipalities which had no contractual relationships with FP&L on May 24, 1960, but also to those whose contracts would expire between May 24, 1960, and May 24, 1990.

Hialeah Gardens’ petition for rehearing was denied. However, a second petition for rehearing was filed by the Village of Virginia Gardens along with a motion to intervene as a party plaintiff for the purpose of presenting the petition for rehearing and participating in any appeal. Virginia Gardens had a franchise agreement with FP&L which was entered into prior to May 24, 1960, but which would expire before 1990. Accordingly, the Village would be directly affected by the court’s order, although neither it nor any other municipality with a pre-1960 franchise had been joined as parties to the suit. Virginia Gardens therefore argued that the trial court had erred in entering a ruling adjudicating the rights of municipalities in this class and requested that references to existing franchise agreements be deleted from the order.

After a hearing, the trial court granted Virginia Gardens’ motion to intervene. In addition, the court modified its final order:

“(a) The penultimate sentence in the final paragraph of the order reading as set out below is stricken:
% jjs * sH s|c ¡¡s
‘It appears to this Court that the language of the aforesaid Section 1 of County Ordinance No. 60-16 is preemptive in nature and bars the Florida Power & Light Company from entering into subsequent franchise agreements with those municipalities in Dade County (a) with which it had no contractual relationships on May 24, 1960, or (b) whose municipal franchises with the Florida Power & Light Company would expire between May 24,1960 and May 24, 1990.’

(b) It is replaced by the following two sentences:

‘It appears to the Court that the language of the aforesaid Section 1 of County Ordinance No. 60-16 is preemptive in nature and bars the Florida Power & Light Company from entering into subsequent franchise agreements with those municipalities in Dade County with which it had no contractual relationships on May 24, 1960. The Court feels and states as a matter of dictum without specifically so ruling that the language of the aforesaid Section 1 of County Ordinance No. 60-16 appears to bar the Florida Power & Light Company from entering into renewal franchise agreements with those municipalities in Dade County whose municipal franchises with the Florida Power & Light Company expire between May 24, 1960 and May 24, 1990.’ ”

From the final order and subsequent modification thereof, the instant appeal and cross-appeal ensued.

In attempting to determine whether Dade County has preempted the right of Hialeah Gardens to award a franchise to FP&L,' our inquiries have invariably focused upon the advisability or perhaps the necessity for uniform regulation of electric utilities. In Miami Shores Village v. Cowart, 108 So.2d 468, 471 (Fla.1958), the Supreme Court of Florida ruled that the Home Rule Amendment, Article VIII, Section 11, Florida Constitution (1956), required Dade County through its Home Rule Charter “to provide for municipal autonomy as to the purely local functions or powers of the municipalities in Dade County.” At the same time, the County was authorized to regulate and control “on a county-wide basis . . . those municipal functions and services that are susceptible to, and could be most effectively carried on under, a uniform plan of regulation applicable to the county as a whole.” Cowart, 108 So.2d at 471. Utilizing this standard, the Court upheld an ordinance establishing uniform traffic control and enforcement throughout the metropolitan area as being “in accord with the intent and purpose of the constitutional authority granted by the Home Rule Amendment.” Id. at 472.

The Cowart decision was later relied upon by the Supreme Court in State v. Dade County, 142 So.2d 79 (Fla.1962), wherein the Court sustained the purchase and operation of a county-wide transit system:

“An adequate public transportation system, according to the record in this case and as a matter of common knowledge, is necessary and essential in the development, improvement and growth of great metropolitan areas such as that embraced within the limits of the County. One of the obvious purposes of metropolitan government and a principle inherently embodied in the constitutional amendment and the Home Rule Charter is the development of public services and utilities having county-wide application and uniform operation. We have therefore held that county ordinances adopted under the amendment and charter supersede municipal charters and ordinances when in conflict therewith except where the charter specifically provides otherwise.” (Footnote omitted.) 142 So.2d at 85.

Similarly, in City of Coral Gables v. Burgin, 143 So.2d 859 (Fla.1962), the Supreme Court cited Cowart in holding that a Dade County ordinance governing the licensing of plumbers superseded a Coral Gables ordinance involving the same matter. There the Court found that the regulation of the plumbing trade was not something which was “so peculiar to [Coral Gables] as to justify denominating it purely local.” Id. at 861.

Turning to the case before us, it certainly cannot be said that the regulation of electric utilities is a purely local matter. To the contrary, electric companies by their very nature are public service corporations, subject to lawful governmental regulations to enforce the performance of their duties to the public. City of Gainesville v. Gainesville Gas & Electric Power Co., 65 Fla. 404, 62 So. 919 (1913). As such, they are uniquely susceptible to the kind of uniform county-wide regulation provided by Dade County’s franchise agreement with FP&L. As was noted earlier, Ordinance No. 60-16 deals with such matters as the location, construction and maintenance of transmission facilities, expressly bringing them under the supervision of the County Commission. We find this authority to be entirely consistent with the kind of uniform governance which was contemplated by the Legislature when it proposed the Home Rule Amendment and which was later endorsed by the Supreme Court in Cowart, supra. See also City of North Miami Beach v. Metropolitan Dade County, 317 So.2d 110 (Fla. 3d DCA 1975).

We therefore hold that Dade County Ordinance No. 60-16 preempts the right of the City of Hialeah Gardens to enter into its own franchise agreement with FP&L.

We find no merit to the contention that Charter Section 1.01(A)(18) governs the procedure for the granting of franchises within the boundaries of individual Dade County municipalities. That section provides that the County Commission may:

“Set reasonable minimum standards for all governmental units in the county for the performance of any service or function. The standards shall not be discriminatory as between similar areas. If a governmental unit fails to comply with such standards, and does not correct such failure after reasonable notice by the Board, then the Board may take over and perform, regulate, or grant franchises to operate any such service. The Board may also take over and operate, or grant franchises to operate any municipal service if:
(a) In an election called by the Board of County Commissioners within the municipality a majority of those voting vote in favor of turning the service over to the county; or
(b) The governing body of the municipality requests the county to take over the service by two-thirds vote of its members, or by referendum.” (Emphasis added.)

From the wording of this section, it is clear that it is meant to apply only to situations where the County in some manner is going to supplant the provision of an existent municipal service. Considering Section 1.01(A)(18) in pari materia with Section 1.01(A)(14), supra, we find that the latter section is applicable to county-wide franchise grants, whereas the former applies whenever the County wishes or is requested to “take over” a service which is otherwise being provided within a particular municipality. If we were to interpret Section 1.01(A)(18) as being the governing provision in this instance, the County would only be able to grant a county-wide franchise after receiving the necessary approval from each of Dade’s municipalities individually. Such a cumbersome and fractionalized process is hardly consistent with the idea of an effective uniform plan of county-wide utility regulation.

We also find no merit in the argument that the County should be estopped from contending that Ordinance No. 60-16 is preemptive due to the County’s apparent inaction in the face of at least five separate municipal franchise grants to FP&L since the passage of the ordinance in 1960. Even if the County’s previous failure to assert its rights in this regard could be interpreted as tantamount to a representation that it would not attempt to frustrate future municipal franchise attempts, Hialeah Gardens could still not successfully argue estoppel, since the City has not demonstrated any detrimental change in position caused by reliance upon such a representation. See generally 12 Fla.Jur., Estoppel and Waiver, § 56 et seq.

Application of estoppel here would seriously hinder the utilization of a major facet of Dade County’s Home Rule power. Under such circumstances, we will not restrain the assertion of an otherwise legitimate Charter function absent a clear showing of unjust consequences by the party seeking to effect the estoppel. See Florida East Coast Railway Co. v. City of Miami, 186 So.2d 533 (Fla. 3d DCA 1966).

Hialeah Gardens finally challenges the County’s use of the FP&L franchise revenues to pay special obligation improvement bonds which were issued to finance the construction or acquisition of capital improvements, including county parks. Since there has been no contention that any of these capital improvements are to be constructed or the franchise revenues otherwise expended within Hialeah Gardens, the City claims that the County’s use of the franchise fees violates Article VIII, Section 1(h) of the Florida Constitution. Section 1(h) provides that:

“Properties situate within municipalities shall not be subject to taxation for services rendered by the County exclusively for the benefit of the property or residents in unincorporated areas.”

In responding to this argument, we initially note that it is predicated upon the presumption that franchise fees are in fact taxes. However, as the Supreme Court of Florida held in City of Plant City v. Mayo, 337 So.2d 966 (Fla.1976), franchise fees are not taxes, but rather consideration paid by the utility for the grant of the franchise. Thus, the prohibitions of Article VIII, Section 1(h), are not applicable to the franchise fees exacted by the County from FP&L.

The final issue before us here involves the County’s cross-appeal from the modification of the trial court’s order upon the Village of Virginia Gardens’ motions to intervene for purposes of rehearing and appeal. In this regard, the record clearly reflects that Virginia Gardens was allowed to intervene solely for the purpose of reviewing the propriety of the trial court’s ruling insofar as it expressly applied to municipalities which had existing franchises with FP&L at the time of the trial.

Without expressing any opinion as to the merits of a declaratory action involving those Dade County municipalities which have operative franchise agreements with FP&L, we find that municipalities in this class should have been joined if their rights were to be determined by declaratory decree. See Section 86.091, Florida Statutes (1975). Thus, it was within the province of the trial judge to modify the final order to the extent that it applied to municipalities with existing franchises.

For the above reasons, the final order of the trial court is in all respects affirmed.

Affirmed.


text:
    S. A. RIZZO, W. George Kennedy, and K & R Sod Co., Appellants, v. Robert C. SCHWEBKE, Appellee.
    No. 76-1095.
    District Court of Appeal of Florida, Third District.
    July 12, 1977.
    Rehearing Denied Sept. 9, 1977.

      Kelly, Black, Black & Kenny and Brian P. Patchen, Miami, for appellants.
    Milton M. Ferrell, Herbert A. Warren, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

S. A. Rizzo, W. George Kennedy and K & R Sod Company, defendants in the trial court, appeal from an adverse final judgment following a non-jury trial in a suit brought by Robert C. Schwebke against defendants on three of four promissory notes. The defendants counterclaimed against plaintiff for return of principal and interest which defendants paid when due to plaintiff on the first of the four promissory notes.

Defendants’ sole point on appeal is that the notes were invalid and unenforceable because the notes were obtained from defendants as a real estate commission by plaintiff while he was acting as a real estate broker without a license in violation of Chapter 475, Florida Statutes. The pertinent portions of Chapter 475 which concern us here relate to the definition of a real estate broker and exceptions thereto, and the requirement that in order for a contract for commission or compensation for the sale of property to be valid, a broker or salesman must be registered.

The trial judge in entering judgment for plaintiff against the defendants made the following findings of fact and conclusions of law:

“1. The Plaintiff and the Defendants, S. A. RIZZO and W. GEORGE KENNEDY, entered into an Agreement whereby it was agreed that the parties would attempt to acquire a parcel of land referred to as Naranja Lakes and if successful in acquiring such land to develop it. It was agreed that the Plaintiff would be a participant in the project and that his interest would be ten percent.
2. Proposed Contracts were submitted to the owner of the land, such Contracts being submitted with the name of KENNEDY or assigns as the purchaser. An offer of $1,350,000.00 was accepted by the seller and a Contract was entered into on June 8,1970 between the seller and KENNEDY or assigns as the purchaser. This Contract was signed by KENNEDY and specifically provided therein that there was no broker.
3. The purchase of the land was closed in October, 1970 and title was taken in the name of K & R SOD COMPANY, the sole stockholders of such corporation being RIZZO and KENNEDY.
4. After the closing the Plaintiff continued to be active in the project in connection with matters concerning zoning and the development of the project. Subsequently it was agreed between the Plaintiff and the Defendants, S. A. RIZZO and W. GEORGE KENNEDY, that the Plaintiff would withdraw from the project and that he would be paid the sum of $67,-500.00 for his interest. The Plaintiff agreed to accept Notes for such sum rather than cash.
5. On March 31, 1971 the Defendants, RIZZO and KENNEDY and K & R SOD COMPANY, executed and delivered to Plaintiff four Promissory Notes, three of which were for $17,500.00 payable January 15, 1972, January 15, 1973, January 15, 1974 and one Note for $15,000.00 payable January 15, 1975.
6. The Note due January 15, 1972 was paid when due. When the second Note came due on January 15, 1973 it was not paid. The Defendant, KENNEDY, informed the Plaintiff that none of the other Notes would be paid because the Defendants were unhappy with the testimony which the Plaintiff had given in another case which had been brought against the Defendants for a real estate commission.
7. The Defendants raise as a defense in this action that the Notes jvere given as payment of a real estate commission and that Plaintiff was not a registered real estate broker and therefore the Notes are illegal and void under Florida Statute Section 475.41. However, the Defendant, KENNEDY, testified in another case that no commission had been paid to Plaintiff. Further, all proposed Contracts and the actual Contract of sale were signed by KENNEDY and specifically recited that there was no broker.
8.The Court specifically finds that the Notes involved in this suit were not payment of a real estate commission.
* * # * * #
IT IS THEREUPON, ordered and adjudged,
1. That the Plaintiff, ROBERT C. SCHWEBKE, have and recover from the Defendants, S. A. RIZZO, W. GEORGE KENNEDY and R & K SOD COMPANY, jointly and severally .
2. That the Plaintiff is entitled to recover his costs from the Defendants which costs shall be taxed upon Motion.
3. That the Defendants take nothing by their Counter-claim and go hence without day.”

We find from the record that there is substantial competent evidence to support the findings of fact of, and conclusions of law by, the trial judge. Therefore, the judgment will not be disturbed on this appellate review. City of Miami Beach v. Fein, 263 So.2d 258 (Fla.3d DCA 1975); Courshon v. Fontainebleau Hotel Corporation, 307 So.2d 901 (Fla.3d DCA 1975), and cases cited therein.

Affirmed.

      . Section 475.01(2), Florida Statutes, provides in pertinent part:
      “Every person who shall, in this state, for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor . . . sell . . . or offer, attempt or agree to . . . the sale ... of any real property or any interest in or concerning the same, including mineral rights or leases; or who shall advertise or hold out to the public by any oral or printed solicitation or representation that such person is engaged in the business of selling . real estate, or interests therein . of others; and every person who shall take part in the procuring of sellers [or] purchasers . of the real property ... of another; or who shall direct or assist in the procuring of prospects, or the negotiation or closing of any transaction which does, or is calculated to, result in a sale . thereof, and who shall receive, expect, or be promised any compensation or valuable consideration, directly or indirectly therefor; and all persons who are members of partnerships or officers or directors of corporations engaged in performing any of the aforesaid acts or services; each and every such person shall be deemed and held to be a “real estate broker” or a “real estate salesman,” as hereinafter classified . . the term broker or salesman [shall not] .be applied to a person who shall deal with property in which he is a part owner, unless said person shall receive a larger share of the profits of proceeds from the transaction than his proportional investment therein would otherwise justify, such excess share being directly or indirectly the result of the service of buying [or] selling . . said property ...”
      Section 475.41, Florida Statutes, provides:
      “No contract for a commission or compensation for any act or service enumerated in subsection (2) of 475.01 shall be valid unless the broker or salesman shall have complied with this chapter in regard to registration and renewal of the certificate at the time the act or service was performed.”


author: HUBBART, Judge. BARKDULL, Judge,

text:
    STATE of Florida, Petitioner, v. Allen BRAVERMAN, Respondent.

      No. 76-1767.
    District Court of Appeal of Florida, Third District.
    July 12, 1977.
    Rehearing Denied Sept. 9, 1977.

      Richard E. Gerstein, State Atty., for petitioner.
    William B. Seidel, Fort Lauderdale, for respondent.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This is a criminal prosecution in which the defendant entered nolo contendere pleas to certain criminal charges which the trial court accepted but later permitted the defendant to withdraw. The State petitions this court for a writ of certiorari seeking review of the order allowing the withdrawal of such pleas. The issues presented for review center on whether the trial court’s order herein constitutes a departure from the essential requirements of law. We conclude that the petition for writ of certiorari should be granted and the order under review quashed.

I

The record reflects that the respondent, Allen Braverman, who was the defendant below, was charged by information before the Circuit Court for the Eleventh Judicial Circuit of Florida with possession of a controlled substance, sale or delivery of a controlled substance, conspiracy to commit a felony and assault with intent to commit murder. Three other co-defendants, including Kim Kestner, were jointly charged with the same crimes as well as other offenses not relevant here.

On July 24, 1974, the defendant through privately retained counsel filed a written plea of not guilty. Thereafter, over a year passed during which time the defendant continued to be represented by counsel who presumably took whatever steps he deemed necessary to investigate and prepare the case.

On November 14, 1975, the defendant appeared with counsel before the trial court for the purpose of changing his plea. The defendant through counsel asked the court to permit him to withdraw his plea of not guilty entered over a year ago and tendered a plea of nolo contendere to two counts in the information, to wit: sale or delivery of a controlled substance, and assault with intent to commit murder. A lengthy proffer of the facts pertaining to these two charges was made by the assistant state attorney.

The factual proffer revealed that the defendant in concert with other co-defendants sold a pound of cocaine to an undercover police officer in an apartment in Dade County, Florida, that surveiling police officers thereafter entered the apartment announcing their authority and purpose, that the officers arrested everyone in the apartment involved in the cocaine sale, that one of the police officers attempted to enter a bedroom in the apartment where the defendant Braverman was counting the cash proceeds of the cocaine sale, that the defendant Braverman dropped the money, picked up a revolver and pointed it at the officer, and that the officer and the defendant Braverman thereupon exchanged gunfire during which time the defendant Brav-erman was hit. The defense counsel agreed to this proffer with minor exceptions not relevant here. The court then conducted a thorough inquiry of the defendant prior to accepting the nolo plea.

No representation was made by either party or the court that the plea was being tendered or accepted pursuant to any plea negotiation agreement between the state and the defense. See Fla.R.Crim.P. 3.171. The trial court ordered a pre-sentence investigation in the case and set a sentencing hearing for February 2,1976. This hearing was not held, and the defendant has never been sentenced in this case.

On or about March 22, 1976, the defendant through counsel filed a motion to withdraw his nolo contendere pleas pursuant to Fla.R.Crim.P. 3.170(f). The motion alleged three grounds as good cause for withdrawal of the nolo pleas, to wit: (1) The discovery of new evidence obtained since the nolo pleas establishing among other things that the defendant was physically unable to have committed the assault with intent to commit murder, which evidence if known at the- time of the nolo pleas would have caused the defendant not to have entered the nolo pleas; (2) The state failed to supply the defendant with certain pre-trial discovery; and (3) The defendant entered his nolo pleas upon an honest misunderstanding as to the expected sentence.

On July 30,1976, the motion came on for a hearing before the trial court. The hearing centered entirely on the first ground of the motion relating to newly discovered evidence. No testimony or proofs were offered in support of the other two grounds. The defendant established that newly discovered evidence had come to the attention of the defense counsel since the entry of the nolo pleas. This evidence consisted of a letter from the co-defendant, Kim Kestner, to her attorney which states as follows:

July 28, 1976.
S. L. GAER
99 N.W. 183rd Street, Suite 111
Miami, Florida 33169
Dear Mr. Gaer,
This is to authorize you to state that on the night of my arrest in the case that you represented me for and on, the undercover agents who were later determined to be police officers, when entering my apartment did not announce nor did I hear them announce that they were in fact police officers.
You have fully and completely explained to me the confidentiality existing by virtue of our relationship. Fully understanding this, I hereby waive the privilege of confidentiality existing between an attorney and client with respect to the and solely with respect to the aforementioned.
Yours,
/s/ Kim Kestner
KIM KESTNER

Kestner’s attorney was present at the hearing and announced to the court that his client would not testify at any future trial of the defendant Braverman. He further stated that his client had authorized him to testify in her behalf only as to the contents of the letter and to no more.

The trial court granted the motion to withdraw the nolo pleas over the vigorous protest of the state. This petition for writ of certiorari follows.

II

The major issue presented for review is whether newly discovered evidence constitutes a sufficient ground for the withdrawal of a nolo contendere plea to a criminal charge prior to sentencing. We hold that newly discovered evidence constitutes a sufficient ground for the withdrawal of a nolo contendere plea prior to sentencing only upon a showing that the ends of justice would be served by permitting such a withdrawal.

It is the established law of this state that a plea of guilty or nolo conten-dere should be entirely voluntary by one competent to know the consequences, and should not be induced by fear, misapprehension, undue persuasion, promises, mistake, fraud, inadvertence or ignorance. A defendant should be permitted to withdraw a plea of guilty or nolo contendere prior to sentencing where it is the least evident that the plea was infected by any of the above influences or was entered by one not competent to know its consequences or was otherwise involuntary, or where it appears that the ends of justice would be served by the withdrawal of such a plea. The defendant has the burden of establishing one of the above grounds in order to be entitled to withdraw his guilty or nolo contendere plea. Canada v. State, 144 Fla. 633, 198 So. 220 (1940); Eckles v. State, 132 Fla. 526, 180 So. 764 (1938); Pope v. State, 56 Fla. 81, 47 So. 487 (1908); Stapleton v. State, 239 So.2d 140 (Fla.1st DCA 1970); Riddle v. State, 212 So.2d 122 (Fla.2d DCA 1968); Ostermann v. State, 183 So.2d 873 (Fla.2d DCA 1966); Jackman v. State, 160 So.2d 554 (Fla.3d DCA 1964); Hill v. State, 110 So.2d 464 (Fla.2d DCA 1959).

Fla.R.Crim.P. 3.170(f) provides that at any time prior to sentence the trial court “may, in its discretion, and shall upon good cause” permit a defendant to withdraw a guilty plea. This rule is also applicable to a nolo contendere plea since such a plea for our present purposes has the same effect as a guilty plea. Peterson v. State, 206 So.2d 700 (Fla.3d DCA 1967); Peel v. State, 150 So.2d 281, 290-291 (Fla.2d DCA 1963). The discretion herein must be liberally exercised in favor of permitting the defendant to withdraw his plea provided good grounds are shown therefore since the policy of the law is partial to a trial on the merits. Canada v. State, 144 Fla. 633, 198 So. 220 (1940); Eckles v. State, 132 Fla. 526, 180 So. 764 (1938); Pope v. State, 56 Fla. 81, 47 So. 487 (1908); Banks v. State, 136 So.2d 25 (Fla.1st DCA 1962). The exercise of this discretion, however, is always subject to appellate review because judicial discretion is not a naked right to choose between alternatives. There must be a sound and logically valid reason for the exercise of such discretion. If the trial court abuses its discretion in granting or denying leave to withdraw a guilty or nolo contendere plea, the appellate court will interfere. Pope v. State, 56 Fla. 81, 47 So. 487 (1908); Banks v. State, 136 So.2d 25 (Fla.1st DCA 1962). See also Utica Mutual Insurance Co. v. Clonts, 248 So.2d 511, 512 (Fla.2d DCA 1971).

In the instant case, the defendant with counsel entered pleas of nolo conten-dere to two criminal charges after a factual basis for the pleas had been shown and after the trial court made a thorough and searching inquiry of the defendant which established that the pleas were freely and voluntarily entered with full knowledge of its consequences. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant sought to upset these otherwise valid pleas on the basis of a newly discovered letter from a co-defendant to her attorney stating that the arresting police officers in this case did not announce their authority upon entering the apartment where the arrest of the defendant occurred.

This newly discovered evidence in no way relates to any of the established grounds for setting aside a nolo contendere plea prior to sentencing under Florida law. It fails to establish that the pleas were not freely and voluntarily entered by one competent to understand its consequences. It fails to establish that the pleas were induced by fear, misapprehension, undue persuasion, promises, mistake, fraud or ignorance. It fails to establish that the ends of justice would be served by permitting the pleas to be withdrawn.

The letter from the co-defendant and the testimony of the co-defendant’s counsel concerning the contents of the letter would be completely inadmissible in evidence at any future trial of the defendant. Such evidence constitutes rank hearsay. See McNeal v. State, 76 Fla. 200, 79 So. 728 (1918); Belk v. State, 167 So.2d 239 (Fla.2d DCA 1964). Aside from that insurmountable obstacle, the evidence in no way raises a serious question as to the guilt or innocence of the defendant. It does not affect the defendant’s guilt or innocence on the charge of sale or delivery of a controlled substance, and the defendant makes no contention to the contrary. Its probative value, if any, on the assault charge is of gossamer strength.

In the trial court, the defendant argued that the letter and the testimony of co-defendant’s counsel concerning the contents of the letter was admissible under the authority of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We do not agree. In Chambers, the Court held that it was a denial of due process under the Fourteenth Amendment to the United States Constitution for a state to convict a person of a crime when the defendant was not permitted at his trial to call witnesses establishing that a third party had conféssed to committing the crime for which the defendant was on trial. The letter in this case and counsel’s testimony concerning its contents do not even remotely amount to confessions or admissions to the crimes for which the defendant was charged. If so, there would be a different result herein. See Baker v. State, 336 So.2d 364 (Fla.1976).

Ordinarily, newly discovered.evidence cannot constitute a ground for withdrawing a nolo contendere or guilty plea prior to sentencing since it in no sense relates to whether the plea was entered freely and voluntarily with full knowledge of its consequences or was induced by some improper influence. Only upon a showing that the ends of justice would be served can newly discovered evidence constitute a basis for withdrawing such pleas prior to sentencing. We believe that such a showing should be reserved to those cases where evidence has been uncovered subsequent to the plea which raises a substantial question as to the guilt or innocence of the defendant. Our law should never be so inflexible that a showing of innocence would be to no avail in withdrawing a nolo contendere or guilty plea prior to sentencing. See Ex parte Welles, 53 So.2d 708, 711-12 (Fla.1951). We find no such showing in this case, however, in view of the inadmissible nature of the newly discovered evidence as well as its scant probative value.

It was, therefore, a departure from the essential requirements of law for the trial court to permit the defendant to withdraw the nolo contendere pleas herein on the ground of newly discovered evidence. Although the trial court has wide discretion in allowing the withdrawal of guilty or nolo contendere pleas, it is not an unfettered discretion in which such pleas can be withdrawn upon mere demand by the defendant without a showing of good cause. There is no such showing in this case and, therefore, the trial court abused its discretion in permitting the withdrawal of the nolo conten-dere pleas based on this ground.

III

The final issue remaining is whether any other grounds were established by the defendant in the trial court for withdrawing the nolo contendere pleas. The defendant asserted two other grounds in his motion to withdraw the pleas, to wit: the failure of the state to make certain pre-trial discovery and the entry of the pleas upon an honest misunderstanding as to the expected sentence. He failed, however, to present to the trial court any proof whatever in support of either ground. Mere naked allegations contained in a motion to withdraw a nolo contendere or guilty plea unsupported by any proof can never constitute a basis for the withdrawal of such pleas. Ostermann v. State, 183 So.2d 873 (Fla.2d DCA 1966). Consequently, it was a departure from the essential requirements of law for the trial court to permit the withdrawal of the nolo conten-dere pleas herein based on either of these grounds in the absence of any supporting proof.

The petition for writ of certiorari is granted, the order appealed from is quashed and the cause remanded for proceedings consistent with this opinion.

BARKDULL, Judge,

dissenting.

I respectfully dissent. I have found no case in Florida that has quashed a trial judge for exercising his discretion, in permitting the withdrawal of a plea of guilty (a nolo plea is the same as a guilty plea) prior to a sentencing hearing.

There are many cases where, upon the denial of such a motion, the trial court sentenced the defendant and upon appeal the trial judge was reversed for failing to grant such a motion. Riddle v. State, 212 So.2d 122 (Fla.3rd D.C.A. 1968); Morton v. State, 317 So.2d 145 (Fla.2nd D.C.A. 1975). There are other cases which have approved the trial judge’s denial of same [Pope v. State, 56 Fla. 81, 47 So. 487 (1908); Ostermann v. State, 183 So.2d 873 (Fla.2nd D.C.A. 1966); Sutton v. State, 202 So.2d 589 (Fla.1st D.C.A. 1967)] but I have found no cases that entertained a common law petition for certiorari and thereby quashed a trial judge’s order, entered prior to any sentence.

A review of the cases reveals that the courts lean toward a full trial on the issues. Eckles v. State, 132 Fla. 526, 180 So. 764 (1938); Artigas v. State, 140 Fla. 671, 192 So. 795 (1940); Hill v. State, 110 So.2d 464 (Fla.2nd D.C.A. 1959); Riddle v. State, supra; Morton v. State, supra. And, in light of the pronouncements of the trial judge in this matter at the time he granted the motion:

sfc * # % # *
“THE COURT: One of the other reasons I granted a new trial — and I was of a mind all the way to grant it — I think the defendant was laboring under the apprehension originally that there was a deal made in this case and I don’t think that was fully overcome, notwithstanding his answers on voir dire, the information before I accepted the plea.”
I would not quash his order.

      . “THE COURT: Before accepting a plea of no contest, I am required by law to ask you certain questions. If you do not understand the questions, you can ask me to explain them to you or you can talk to your lawyer at any time.
      Do you fully understand the nature of the charges against you?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you understand that if I accept your plea of no contest I can sentence you up to five years in the State Penitentiary on Count 2 and up to fifteen years on Count 4?
      MR. DePOZSGAY: Your Honor, I have a correction: Fifteen years on Count 2 and fifteen years on Count 4.
      THE COURT: Do you understand that I can sentence you to fifteen years on each count?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you fully understand what is going on here today?
      THE DEFENDANT: Yes, sir.
      THE COURT: Is there anything wrong with you mentally or physically which would prevent you from understanding?
      THE DEFENDANT:. No.
      THE COURT: Are you pleading no contest freely and voluntarily and for no other reason?
      THE DEFENDANT: Yes, sir.
      THE COURT: Has anybody threatened you or forced you into entering this plea?
      THE DEFENDANT: No, sir.
      THE COURT: Other than what has been said here today in Court has anybody promised you anything or told you what the Court would do if your plea of no contest is accepted?
      THE DEFENDANT: Yes, sir.
      THE COURT: Somebody has promised you something?
      THE DEFENDANT: No, sir.
      THE COURT: Do you understand that based on your plea of no contest to Counts 2 and 4, the Court is going to order what is called a PSI? Do you understand that?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you understand what a PSI is?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you understand that the sentencing is going to rely largely on that pre-sentence investigation?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you understand that by pleading no contest you are waiving your right to a trial by jury or to a trial by the court?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you understand that you are waiving your privilege against self-incrimination?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you understand that you are waiving your right to face your accusers?
      THE DEFENDANT: Yes, sir.
      THE COURT: You have a right to have the people who have accused you of this matter sit up here in the witness stand. You are entitled to confront them and cross examine them. Do you understand that?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you waive that right?
      THE DEFENDANT: Yes, sir.
      THE COURT: Have you had ample opportunity to discuss any defenses you may have to these charges with your attorney?
      THE DEFENDANT: Yes, sir.
      THE COURT: You have had enough time to talk to your lawyer?
      THE DEFENDANT: Yes, sir.
      THE COURT: Are you satisfied with the services of Mr. Seidel?
      THE DEFENDANT: Yes, sir.
      THE COURT: Mr. Seidel, are you satisfied that the defendant understands the charges and consequences of his plea?
      MR. SEIDEL: Yes, sir.
      THE COURT: The Court will accept the plea of no contest to Count 2 and Count 4.”


author: DOWNEY, Judge.

text:
    Peter A. LEVIN, Appellant, v. STATE of Florida, Appellee.
    No. 76-428.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1977.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant seeks reversal of his judgment of conviction and sentence on two theories: (a) the refusal of the trial court to allow appellant to view the confidential portion of the presentence investigation report, and (b) the refusal of the trial court to give appellant credit on his sentence for time spent in the Florida State Hospital prior to sentencing. We affirm.

I. Fla.R.Crim.P. 3.713 and the Committee Note thereunder make it clear that revelation of the confidential portion of a PSI report which is not factual or which contains no physical or mental evaluation material is discretionary. This court in Campbell v. State, 342 So.2d 1010 (Fla. 4th DCA 1977), and the First District Court of Appeal in McCormack v. State, 332 So.2d 117 (Fla. 1st DCA 1976), have so construed that rule.

The Supreme Court of the United States in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), in a plurality decision, stated that due process required revelation to a defendant of the confidential portions of the PSI report if it is the basis, at least in part, for a death sentence. However, in disposing of the State’s argument that the confidential portions of the PSI report should be kept confidential because divulging those portions thereof will occasionally disrupt the process of rehabilitation, the court pointed out:

“The argument, if valid, would hardly justify withholding the report from defense counsel. Moreover, whatever force that argument may have in noncapital cases, it has absolutely no merit in a case in which the judge has decided to sentence the defendant to death. Indeed, the extinction of all possibility of rehabilitation is one of the aspects of the death sentence that makes it different in kind from any other sentence a State may legitimately impose.” 430 U.S. at 360, 97 S.Ct. at 1206.

Thus, until the Supreme Court of Florida or the Supreme Court of the United States holds that the confidential portions of a PSI report be revealed to a defendant in a non-capital case, we are constrained to follow our previous ruling on this question.

II. Appellant was charged with violating the Child Molester Law. After pleading guilty, sentence was withheld and appellant was admitted to the Florida State Hospital for approximately six months. Thereafter, he was sentenced to three years imprisonment with credit for three hundred days spent in the County Jail. However, appellant complains because the trial court did not also give him credit for the time he spent in the Florida State Hospital. This complaint is devoid of merit because the statute mandating credit for time served specifically provides for “credit for all of the time he spent in the county jail before sentence.” Section 921.161, Florida Statutes (1975).

In view of the foregoing the judgment and sentence appealed from are affirmed.

AFFIRMED.

MAGER, C. J., and ANSTEAD, J., concur.


text:
    William S. HAMILTON, Appellants, v. BANK OF PALM BEACH AND TRUST COMPANY, etc., et al., Appellees.
    No. 76-1465.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1977.
    H. Bryant Sims, Moore, Winkel, Sims & Kenney, Palm Beach, for appellants.

      George W. Cornell, Mahoney, McNulty & McCarthy, Boca Raton, for appellees David Carey Woll, Administrator of the Estate of Cynthia W. Geddes, deceased, and J. Albert Woll.
    H. D. Faust, Burns, Middleton, Farrell & Faust, Palm Beach, for appellee Bank of Palm Beach and Trust Co.
   DOWNEY, Judge.

We have for review a summary final judgment foreclosing a mortgage. We find genuine issues of fact which preclude summary judgment against the appellant and reverse.

In material part, the complaint alleged that (a) the appellee Bank was the owner and holder of a promissory note and mortgage encumbering the real property in question and that said note was in default; (b) appellant William S. Hamilton might claim some interest in said property by virtue of a notice of lis pendens recorded in the public records of Palm Beach County; and (c) appellant’s interest, if any, in the property was subject and inferior to the Bank’s mortgage lien.

Appellant filed an answer which stated “that the [appellant] is without knowledge as to all allegations in said Complaint, and therefore, denies same and demands strict proof thereof.”

The Bank moved for summary judgment and attached several affidavits which clearly demonstrated there was no genuine issue of fact as to the ownership of the note and mortgage, the default, and the Bank’s right to foreclose the mortgagor’s interest in the property. However, not a scintilla of evidence was offered to show that Hamilton’s asserted interest in the property was inferior to the Bank’s mortgage. The cases are legion and need no citation that the burden of proof on motion for summary judgment is upon the movant to affirmatively demonstrate that none of the issues of fact ostensibly raised by the pleadings is in actuality in dispute. Until the movant adduces some proof that no issue raised by the non-movant’s pleading is genuine the non-movant need not file any proof to oppose the motion.

Appellees contend in their brief that:

“Mr. Hamilton failed to offer any affirmative defense in his answer and likewise failed to direct any counterclaim or crossclaim against any defendant, if he had any grounds for doing so and from that point on he was in default in his pleading of any affirmative matters.
“In addition, the defendant, William S. Hamilton, defaulted when the plaintiff made a motion for summary judgment on or about May 12, 1976. A copy of the motion and the supporting affidavits were served upon the attorney of record, for William S. Hamilton and no defense was interposed by appellant to the motion for summary judgment.”
* # # * # *
“Whether the Plaintiff in its complaint had alleged Mr. Hamilton had a one-half interest in the property or whether he might ‘claim some interest in and to the aforesaid described real property . .’ as alleged in the complaint is immaterial as a practical matter for all purposes of this action and this appeal.
“The burden was on defendant Hamilton to protect his own interests and not to rely upon the mortgagee to recognize decide or acknowledge that he had an undivided half interest which the mortgagee could not know and which was entirely secondary to the rights of the mortgagee based upon its purchase money mortgage.”

Finally, in the conclusion to their brief ap-pellees state:

“After the commencement of the foreclosure action the record does not show that the Appellant made any payments on the account of the mortgage or on the arrears. He advanced no affirmative defense in his answer to the complaint, he did not oppose the application for summary judgment and cannot now be heard to bring up matters on appeal which as he claims might have been brought up in his pleadings.”

It appears to us that appellees’ contentions miss the mark. Appellant filed an answer which put in issue the allegations of the Bank’s Complaint vis-a-vis the appellants. An affirmative defense or counterclaim was not necessary. With the pleadings in that posture the burden of proof was upon the Bank and until the Bank as the movant for summary judgment adduced some evidence that its mortgage was superior to appellant’s claim, appellant was required to do nothing. This case is a classic example of the failure of the movant to show that the paper issue raised by appellant’s answer is not genuine. Having failed to make that showing the entry of a summary judgment against Hamilton was improper.

Accordingly, the summary final judgment appealed from is reversed as to appellant and the cause is remanded for further proceedings.

REVERSED AND REMANDED, with directions.

CROSS and ANSTEAD, JJ., concur.


text:
    CITY OF DEERFIELD BEACH, Florida, Appellant, v. OCEAN HARBOR ASSOCIATION and Oliver-Hoffman Corporation, Appellees.
    No. 76-2191.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1977.
    Ronald E. Solomon, Pyszka, Kessler, Adams & Solomon, Fort Lauderdale, and Larry Klein, West Palm Beach, for appellant.
    Deborah Bovarnick, Becker & Poliakoff, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

Ocean Harbor Association, Inc., a condominium association, (on its own behalf and on behalf of its members) and Mr. and Mrs. Carl W. Heinle (individually and on behalf of a class of condominium unit owners) sued Oliver-Hoffman Corporation, the condominium developer; the City of Deerfield Beach; and J. J. Arnau (individually and as Chief Building Inspector of Deerfield Beach) for money damages said to result from improper construction of the condominium improvements. The City of Deerfield Beach filed a motion for summary judgment which the court denied, and this interlocutory appeal ensued.

Appellant contends that an interlocutory appeal is permissible because a class action was formerly cognizable in equity, citing Rosenwasser v. Frager, 307 So.2d 865 (Fla.3d DCA 1975), and the history of Fla.R. Civ.P. 1.220 as authority for its position. Appellees ignore the problem, presumably being satisfied to have the substantive question resolved at this stage of the litigation. However, since the question is jurisdictional, we cannot sweep it under the rug.

An examination of the complaint contained in appellant’s appendix demonstrates that the causes of action appellees alleged are purely for money damages, i. e., they are actions formerly cognizable at law. Thus, if Mr. and Mrs. Heinle sued as individuals only and not as the representatives of a class, no interlocutory appeal would be permissible for any of the parties, plaintiffs or defendants. And in our judgment the Heinles’ and the condominium association’s joining together to represent the entire class of condominium unit owners should not give the parties to this litigation any greater right to a review of interlocutory orders than any other individual involved in an action formerly cognizable at law.

A class action is an invention of equity. After Florida abolished the distinction between law and equity, effective January 1, 1967 (In re Florida Rules of Civil Procedure 1967 Revision, 187 So.2d 598, 600 (Fla.1966)), a class action could be utilized to obtain legal relief as well as equitable relief. Thus the question to which we address ourselves is whether a class action which seeks only money damages is an action formerly cognizable in equity so as to permit a party involved in that action to utilize Fla.App.Rule 4.2(a) to obtain review of an interlocutory order denying the party’s motion for summary judgment. We think the answer to that question lies in the following passage:

“In the final analysis, the difference between an action at law and one in equity lies largely in the mode of relief granted. If the purpose of the action is to recover a sum of money or damages, the action is clearly one at law. On the other hand, if the pleadings present issues of equitable cognizance it is a proceeding in equity.” 1 Fla.Jur., Actions, § 11.

Fla.R.Civ.P. 1.220 deals with parties to an action and allows numerous persons to be represented in a suit without having them named; that rule does not deal with the type of cause of action nor the mode of relief sought. Thus, the fact that class actions had their genesis in equity does not necessarily bring into play the rule authorizing interlocutory appeals in equitable matters.

No doubt it would be expeditious from the standpoint of these parties to dispose of the substantive question involved and be done with it. But we have no discretion in matters involving jurisdiction.

Since the present action seeks only the recovery of money damages, it is clearly one at law. Therefore, an interlocutory appeal from the order denying the City’s motion for summary judgment on the ground of sovereign immunity will not lie.

Accordingly, this interlocutory appeal is dismissed.

DISMISSED.

MAGER, C. J., and DAUKSCH, J., concur.

      . We are not presented with—and specifically make no pronouncement concerning—the question of the appealability of an order passing on a motion attacking the propriety of the maintenance of specific litigation as a class action.


text:
    Joel WEINSTEIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-844.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Aug. 31, 1977.
    Grusmark, Jaffe & Karten and Milton E. Grusmark, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

The appellant was found guilty by a jury in Count I of the sale of delivery of a controlled substance and in Count II of the possession of a controlled substance. He was sentenced to one year in the state prison on both counts. On this appeal, he raises three points. The first urges that because a mistrial was ordered and the court immediately began the retrial, he was, therefore, deprived of a valuable right in being denied sufficient time to have the testimony in the first trial transcribed so that it could be used for impeachment. Appellant’s second point was expressly waived at oral argument. The third point claims that the judgment of guilty on the first count for delivery or sale cannot stand because it is duplicitous. In addition, it is urged that the sentence is illegal because the sale and the possession were parts of the same transaction.

We hold that the first point, claiming a right to continuance because of the mistrial, does not present reversible error. No case cited, nor any case that we know of, holds that a defendant should secure an advantage because of a mistrial he himself moved for. Defendant could not have had a transcript at his first trial prior to the questioning of the first witnesses and, therefore, there is no reason that it should be necessary to provide him with time to have one made prior to his second trial. Of course, if the transcript had been in existence, the denial of the use of the transcript at the second trial might be error. Cf. Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971); and Martin v. Rose, 525 F.2d 111 (6th Cir. 1975). The aim of the courts is for a prompt disposition of the cases ready for trial. In the absence of any showing of prejudice to a defendant, the trial court is to be commended for its prompt handling of the retrial of criminal causes.

Appellant’s third point claims duplicity in that he was charged and found guilty by the jury in Count I of two separate offenses: (1) delivery of a controlled substance and (2) sale of a controlled substance. The statute under which defendant was charged and found guilty is Section 893.13, Florida Statutes (1975). This statute uses the language “sell ... or deliver.” It appears from a reading of the statute that it does not create two separate offenses, but creates one offense which may be proved in two ways. If appellant had felt that he was in any way prejudiced by the information which was in the language of the statute, he could have moved for particulars or could even have requested an election if he had construed the statute as including two offenses. Neither course was taken in this case and the verdict and judgment are, therefore, without error.

The sentence was upon both counts: (1) delivery or sale of a controlled substance and (2) possession of a controlled substance. The sale and possession were part of the same transaction. The sentence should, under such circumstances, be amended to show that it is upon the count charging the higher offense, in this case the sale. Therefore, we affirm the judgments but remand the cause with directions to modify the sentence in accordance with this opinion. See Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971).