author: NATHAN, Judge.

text:
    Edward R. SINGER and Paula Z. Singer, his wife, Appellants, v. I.A. DURBIN, INC., and Alarm Systems of Florida, Inc., Appellees.
    No. 76-468.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.

      Paige & Catlin, Miami, for appellants.
    Rentz, McClellan & Haggard, Miami, Fleet & Packer, Hollywood, Preddy, Had-dad, Kutner, Hardy & Josephs, Miami, for appellees.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   NATHAN, Judge.

Plaintiffs appeal from an order dismissing with prejudice their amended complaint, in an action stemming from alleged incomplete installation of a burglar alarm system which plaintiffs contend resulted in the burglary of their home.

Plaintiffs Edward and Paula Singer filed a complaint sounding in breach of contract, breach of warranty, negligence and gross negligence, seeking compensatory and punitive damages against I. A. Durbin, Inc., and Alarm Systems of Florida, Inc., alleging that on February 1, 1973, the Singers contracted with Durbin for the purchase of a home, which was to include a burglar alarm system; that upon information and belief, the burglar alarm system was installed by Alarm Systems of Florida, Inc.; that after closing on the purchase contract, the Singers contracted with Alarm Systems for monthly service of the alarm system; that on August 17, 1975, when the plaintiffs were not at home and the alarm was on, the home was burglarized through windows which were never wired into the burglar alarm system, and property valued in excess of $20,000 was taken.

Upon dismissal of their complaint by the trial court, plaintiffs took this appeal. For reversal, they rely solely on Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175 (Fla.1976). The facts in Nicholas are distinguishable from those in the instant case in that this case concerns the failure to provide a complete burglar alarm system, leaving certain windows not connected to the system; whereas in Nicholas, there was no question that the system was installed or operating properly but the defendant’s agent failed to notify plaintiff or the police when a trouble signal was received. The Florida Supreme Court held that as a burglary was foreseeable under those circumstances, the burglary was not an intervening cause of plaintiff’s losses which would bar recovery. We can liken the instant case to Nicholas in the respect that neither concerns a malfunction of equipment. In Nicholas, page 177, the Court, agreeing with Judge Haverfield’s dissent in Nicholas v. Miami Burglar Alarm Co., 297 So.2d 49 (Fla.3d DCA 1974), stated:

“Florida recognizes the general rule that though a person’s negligence is a cause in fact of another’s loss, he will not be liable if an act unforeseeable to him and independent of his negligence intervenes to also cause the loss. See, e. g., Benedict Pineapple Co. v. Atlantic Coast Line R. Co., 55 Fla. 514, 46 So. 732 (1908). From this rule some have concluded that a burglar alarm company is not liable for a burglary if its equipment malfunctions, for normally the occurrence of the theft at that moment would be both unforeseeable and independent of the breakdown. This derivative rule has no place in determining liability in the instant case.”

Neither is it applicable in the determination of liability in the case now before us.

A negligent act is not the proximate cause of a loss that results from the intervention of a new and independent cause that is not reasonably foreseeable. Benedict Pineapple Co. v. Atlantic Coast Line Railroad Co., 55 Fla. 514, 46 So. 732 (1908). Since a person usually has no reason to foresee the criminal acts of another, it is generally held that an intervening criminal act breaks the chain of causation, and therefore, the original negligence of the defendant cannot be the proximate cause of the damage resulting from the intervening criminal act. Bryant v. Atlantic Car Rental, Inc., 127 So.2d 910 (Fla.2d DCA 1961); Lingefelt v. Hanner, 125 So.2d 325 (FIa.3d DCA 1960). However, when the intervening criminal act, or the loss therefrom, is foreseeable, then the original actor’s negligence may be considered the proximate cause of the loss, and he may be liable, notwithstanding the intervening criminal act. Cooper v. I. B. I. Security Service of Florida, Inc., 281 So.2d 524 (Fla.3d DCA 1973).

Cases concerning the liability of a burglar alarm company whose system fails to function have consistently held that a burglar alarm company is not liable for the loss, upon the theory that the burglary was an unforeseeable intervening criminal act breaking the chain of causation. Nicholas v. Miami Burglar Alarm Co., 339 So.2d at page 179, Justice Adkins concurring in part and dissenting in part.

Unfortunately, this country is faced with a crime rate which has increased to frightening proportions in recent years. The statistics provided in the Annual Report of the Florida Department of Criminal Law Enforcement show the number of incidents of breaking and entering and burglaries in the State of Florida in the years material to this case. For example, in 1973, there were 142,625 breaking and enterings or burglaries; in 1974, there were 185,043; in 1975, there were 196,446; in 1976 there were 164,413; and in the first three months of 1977, there were 39,799, which indicates an approximate yearly total of 160,000. These alarming figures demonstrate the necessity and the justification for Florida residents to seek to protect their homes against such crimes with a burglar alarm system. Thus, those who contract to have a burglar alarm system installed in a home or building are entitled to the benefit of their bargain, that is, a properly installed system which provides reasonable protection of the premises, and not just selected windows or doors, unless otherwise contracted for.

We hold, therefore, that just as a burglary is foreseeable where the alarm company’s agent fails to notify the police when a trouble signal is received, a burglary is also foreseeable where the alarm company is guilty of an omission in not wiring all of the windows of a home, as contracted for, in order to connect them to the alarm system.

In our opinion, the facts alleging negligence in the complaint in this case were sufficient to withstand a motion to dismiss. Thus, we also hold that a burglar alarm company under contract to install an alarm system may be responsible for breach of contract and breach of warranty for failure to install the system pursuant to the terms of the contract.

The determination of whether the defendants, or either of them may be liable in negligence, breach of warranty or breach of contract are questions for the trier of fact. We note that if liability is found as to Durbin, the damages, if any, to which plaintiffs would be entitled would be limited to the cost of making the alarm system conform to the installation contract, and not the value of the stolen property.

On the issue of punitive damages, we hold that the trial court was correct in dismissing that portion of the complaint. The allegations do not establish an intentional wrong that amounts to an independent tort, nor do they establish the entire want of care or attention to duty that would allow the trier of fact to impute malice to the burglar alarm company.

Accordingly, the order of dismissal is affirmed as to the claim for punitive damages arising out of gross negligence, and reversed in all other respects and remanded for further proceedings.

Affirmed in part, reversed in part and remanded.


source: Caselaw Access Project

author: HUBBART, Judge. HAVERFIELD, Judge

license: Public Domain

text:
    Henry MOBLEY, also known as Henry Pratt, Appellant, v. The STATE of Florida, Appellee.
    No. 76-942.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.

      Stanley M. Goldstein, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is a criminal probation revocation proceeding in which probation was revoked and a county jail sentence imposed. The defendant appeals.

The question presented for review is whether a trial court may lawfully revoke a criminal defendant’s probation based on evidence that the defendant violated one of the conditions of probation but was never given prior formal notice of such condition because of his refusal to make himself reasonably available to his probation supervisor for the purpose of being informed of his probationary conditions. We hold that a trial court may revoke probation under such circumstances and affirm.

I

On April 25, 1974, the defendant, Henry Mobley also known as Henry Pratt, pled guilty to and was adjudicated guilty of various crimes before the Dade County Circuit Court. He was placed on five years probation. Mr. David Todd of the Florida Department of Offender Rehabilitation was assigned to act as the defendant’s probation supervisor.

Shortly after the entry of the probation order herein, Mr. Todd made a home visit on the defendant and requested that the defendant come to the probation office so that he might discuss the terms of probation in a formal setting as well as other matters. The defendant refused. Repeated requests made by Mr. Todd for the defendant to come to the probation office on other occasions were also met with similar refusals. As a result, the defendant was never officially notified of the terms and conditions of his probation, nor given a copy of the terms of his probation.

On April 26, 1976, the defendant was charged by affidavit with having violated the conditions of his probation. Among other things, the affidavit charged that the defendant had failed to obey one of his probation supervisor’s instructions to come to the probation office. The trial court held a probation revocation hearing in which ample evidence was adduced to support this charge. The defendant himself admitted at the hearing that Mr. Todd had warned him he would be brought to court if he failed to come to the probation office as requested. He insisted, however, that Mr. Todd make home visits instead.

The defendant does not deny on appeal that he failed to report to the probation office as requested by his probation supervisor. He contends, nonetheless, that his probation revocation should be reversed because he was never officially notified concerning the condition of his probation which he was charged with violating, to wit: that he carry out all instructions given to him by his probation supervisor. We 'cannot agree.

II

Section 948.02(1), Florida Statutes (1975), provides in relevant part as follows:

“It shall be the duty of the [Department of Offender Rehabilitation] . . .to cause to be delivered to each person on probation under its supervision a certified copy of the terms of such probation, and any change or modification thereof, and to cause said person to be instructed regarding the same; . . . .”

The statute imposes a duty on the Florida Department of Offender Rehabilitation of officially notifying a criminal defendant concerning the terms and conditions of his probation by delivering a copy of the probationary terms and instructing him thereon. The performance of this duty necessarily presupposes reasonable cooperation by the defendant. The Department can hardly be required to perform this duty if the defendant refuses to be so notified in accordance with reasonable policies and practices.

There is a presumption that officials of the Florida Department of Offender Rehabilitation carry out the above statutory duty, which presumption can only be overcome by affirmative evidence establishing that the Department did not so perform its duty. When such a showing is made and the defendant is not otherwise advised of his probationary conditions by the court, probation may not be revoked unless the defendant is charged with violating a probationary condition by committing a crime.

This court in Jones v. State, 296 So.2d 519, 521 (Fla.3d DCA 1974) states the applicable law:

“Appellant seeks reversal on two grounds. First, contending the Commission [now the Florida Department of Offender Rehabilitation] failed to inform him of the terms of the probation, as provided for in § 948.02(1). Fla.Stat., F.S.A. We find no merit therein. There is a presumption that officials properly perform their required duties. See Purdy v. Mulkey, Fla.App.1969, 228 So.2d 132. The fact that an official document purporting to show the Commission’s compliance with that requirement was not signed, is insufficient to overcome the presumption of performance, in the absence of evidence that the duty was not performed, and there was none here. The appellant’s argument would have more weight if the violation involved was one relating to lawful conduct which one on probation ordinarily would not know would constitute violation thereof. A person on probation hardly needs an official document to advise him that commission of felonies while on probation will constitute violations of such probation.”

In the instant case, the evidence establishes that the defendant was never officially notified of the terms and conditions of his probation. We reject the state’s argument that the Florida Department of Offender Rehabilitation so notified the defendant when the probation supervisor delivered a copy of the probationary terms to him in another unrelated case and instructed him thereon. This act does not satisfy the duty imposed upon the Department with respect to the probation in this case.

We cannot find, however, that this failure to so notify the defendant is fatal to the probation revocation in this case. We are not persuaded that the Florida Department of Offender Rehabilitation breached its statutory duty pursuant to § 948.02(1), Florida Statutes (1975), since the defendant repeatedly refused to make himself reasonably available to the probation supervisor in order to be notified of his probationary conditions.

Mr. Todd testified that it was his policy and practice to use an office, rather than a home visit to formally explain the terms of probation and deliver a copy of the probationary terms to a criminal defendant. We cannot say that this is an unreasonable practice as such a formal office setting may very well be necessary to impress upon, the defendant the extreme importance of complying with probationary conditions. The defendant repeatedly refused to come to the probation office to have such terms explained to him insisting on home visits only. We believe that the defendant was in no position to dictate the place where he was to be advised of his probationary conditions. His lack of cooperation with his probation supervisor excuses any failure by the Department to perform its statutory duty herein.

Affirmed.

HAVERFIELD, Judge

(concurring specially).

I concur with the majority opinion. Nevertheless, I believe there is an additional reason for affirming the revocation of probation order. The record reflects that there was evidence presented to the effect that the probationer failed to submit reports and present himself at the office of his probation supervisor after being so ordered by the court. Since probation is a rare privilege and a matter of judicial grace, it follows as a matter of reason that an inherent condition of probation is to obey any and all orders of the court. Defendant’s conduct in ignoring the court’s order to present himself at his probation supervisor’s office and file the delinquent reports can only be characterized as defiant and in open violation of his probation. Such defiance is also a sufficient ground to support the determination that defendant violated his probation.

      . Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); McNeely v. State, 186 So.2d 520 (Fla.2d DCA 1966).


author: PER CURIAM.

text:
    Lola COHEN, as Executrix of the Estate of Morris Cohen, Deceased, Appellant, v. TEAK HOUSE, INC., a Florida Corporation, d/b/a Pekin Restaurant & Lounge, Appellee.
    No. 76-1211.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Katz & Breitner, Coral Gables, for appellant.
    A. M. Schwitalla and Jose M. Quignon, Jr., Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The plaintiff urges in his appeal from a summary final judgment that the trial court improperly applied the principle set forth in Carol Management Corporation v. Maxwell Company, 156 So.2d 773 (Fla. 3d DCA 1963); and Edelman v. Kolker, 194 So.2d 683 (Fla. 3d DCA 1967). Error has not been shown. See Best v. Barnette, 130 So.2d 90 (Fla. 2d DCA 1961).

Affirmed.


text:
    Jorge ACOSTA, Appellant, v. The STATE of Florida, Appellant.
    No. 76-1279.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Pollack, Tunkey, Robbins & Leen, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.

      Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Heineman v. State, 327 So.2d 898 (Fla. 3d DCA 1976); Clayton v. State, 272 So.2d 860 (Fla. 3d DCA 1973).


text:
    Irving SCHULMAN, Appellant, v. WASHINGTON FEDERAL SAVINGS & LOAN ASSOCIATION OF MIAMI BEACH et al., Appellees.
    No. 76-1311.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Milton Kelner, Miami, for appellant.
    Lapidus & Hollander and Howard J. Hollander, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965).


author: PEARSON, Judge.

text:
    The PUBLIC HEALTH TRUST OF DADE COUNTY, Florida, a political subdivision of the State of Florida, which operates, maintains and governs Jackson Memorial Hospital, Appellant, v. Samuel O’NEAL, Appellee.
    No. 76-1465.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Stuart L. Simon, County Atty. and James K. Kracht and Amy N. Dean, Asst. County Attys., for appellant"
    Franklin, Ullman, Kimler & Entin, North Miami Beach, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

The appellant is the Public Health Trust of Dade County, Florida which states that it is the operator of Jackson Memorial Hospital in Miami, Florida. The appellee is Samuel O’Neal, who recovered for personal injuries by the settlement of his lawsuit against Dade County and other defendants alleged to have been acting as employees of Dade County. The appealed order was entered by the circuit court in plaintiff’s O’Neal’s cause, pursuant to O’Neal’s motion, and is entitled “Order on Motion for Equitable Distribution.” The appellant, The Public Health Trust of Dade County, urges that the circuit court had no authority to apportion its lien and that the statute creating the lien contains no provision for equitable distribution thereof.

This court has previously dealt with the liens created by this statute in two cases. See Dade County v. Bodie, 237 So.2d 553 (Fla.3d DCA 1970); and Dade County v. Perez, 237 So.2d 781 (Fla.3d DCA 1970). In the first cited case, we held:

“If the lien of a hospital as provided for in the statute was not meant to be effective for its full amount (subject to a right to question the propriety of the charges comprising the same), it would not be reasonable or consistent for the statute to authorize recovery of the full amount of the hospital’s (lien) charges against one who, without the hospital lien having been released, should receive a satisfaction of judgment or a release upon settlement. Conversely, since the statute allows a hospital lienor full recovery in the situation outlined above, it would be illogical to conclude that such a hospital lien should not be applied in full against proceeds of a judgment or a settlement.”

We think that further discussion is unnecessary in this case and that the order must be reversed.

The appellee, Samuel O’Neal, has raised a very serious question by cross-assignment. He urges that because Dade County was a defendant in his personal injury action and because it, thereafter, settled said action, the County should not now be allowed by the claim of a separate entity to enforce a lien which will, in effect, greatly diminish the amount of the settlement. Unfortunately, that point cannot be decided on this appeal. If the trial court was in error in enforcing the lien, then it was “invited error” because appellee O’Neal made the motion asking for equitable distribution. The motion requests the court to determine “. . . the amount to which JACKSON MEMORIAL HOSPITAL (Claim of Lien #669288 5012) is entitled to be paid . . .” The motion recites the existence of the lien, recites the amount of the settlement and the amount of the net recovery after deduction of attorney’s fees. Thereafter, the appellee moved for the order entered. Nothing appears in the record to indicate that any question was ever raised concerning the validity of the lien. It is well settled that a party may not assign as error a ruling which he himself requested. See Hawkins v. Perry, 146 Fla. 766, 1 So.2d 620 (1941); and Gagnon v. State, 212 So.2d 337 (Fla.3d DCA 1968). Nevertheless, we feel that this holding must be without prejudice to the appel-lee/cross-appellant to apply to the court pursuant to Fla.R.Civ.P. 1.540(b) for relief if he has evidence to show that the discharge of the lien was contemplated at the time that the settlement of his personal injury action was made. Because the jurisdiction of this cause has been in this court for part of the one year period under Fla.R. Civ.P. 1.540(b), we grant leave to the appel-lee/cross-appellant to file such motion within thirty days of the filing of this opinion.

Thereupon, the order appealed is reversed and the cause remanded with directions to enter an order establishing the lien of The Public Health Trust of Dade County, Florida, for the full amount thereof pursuant to the statute creating the lien. This order shall be subject to the right of the appel-lee/cross-appellant, thereafter, to file a motion pursuant to the rule cited above.

Reversed and remanded with directions.

      .The order recites that it is entered without the taking of testimony upon argument of counsel and it orders the following:
      “1. That Plaintiff’s Motion is granted to the extent that the lien of Jackson Memorial Hospital in the amount of Twelve Hundred One Dollar ($1201.55) and 55/100 is reduced by forty percent (40%) representing the attorneys’ fees on said funds due to Plaintiff’s counsel.”

      . Ch. 27032, Laws of Florida (1951).

      . The record before us does not contain a settlement contract. It contains simply a stipulation for dismissal and an order of dismissal upon the basis that the cause has been amicably settled. We must presume that this was the only matter before the trial court, as the order appealed shows that no evidentiary hearing was had.


text:
    SANDPIPER CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Foreign Corporation, Appellee.
    No. 76-216.
    District Court of Appeal of Florida, Second District.
    July 22, 1977.
    Charles H. Livingston, Sarasota, for appellant.
    W. Robert Mann, Bradenton, for appellee.
   PER CURIAM.

Joseph Ciambrone brought suit against the appellant Sandpiper and appellee United States Fidelity & Guaranty Company (USF&G). Ciambrone alleged that Sandpiper, a building contractor, constructed a commercial building for him and, approximately six months after the completed building was delivered, part of the roof collapsed. Ciambrone sought damages against Sandpiper on theories of negligence, breach of contract and breach of warranty. USF&G was named a defendant by virtue of its being Sandpiper’s insurer.

USF&G had issued a liability policy to Sandpiper but contended that there was no coverage for Ciambrone’s claim since it arose after the contractor had completed its operations. The trial court denied USF&G’s motion for summary judgment, but did grant a separate trial on the issue of coverage under the insurance policy issued Sandpiper by USF&G.

After hearing evidence on this issue, the trial judge concluded that Sandpiper’s operations had been completed prior to collapse of the roof. Since Sandpiper’s insurance policy excluded coverage for completed operations, the trial court held USF&G was not liable. From this judgment, Sandpiper appeals. We affirm the decision of the trial court.

The trial court based its holding of non-coverage on the following exclusionary language of the Sandpiper policy:

EXCLUSION
(Completed Operations Hazard and Products Hazard)
It is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability Coverage and, if a Contractual Liability Insurance (Designated Contracts Only) Coverage Part forms a part of the policy, such insurance as is afforded by such Coverage Part for Contractual Bodily Injury Liability and Contractual Property Damage Liability, does not apply to bodily injury or property damage included within the Completed Operations Hazard or the Products Hazard.

The policy defines “Completed Operations Hazard” and “Products Hazard” to be as follows:

“[Completed operations hazard” includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the Named Insured. “Operations” include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
(1)When all operations to be performed by or on behalf of the Named Insured under the contract have been completed,
(2) when all operations to be performed by or on behalf of the Named Insured at the site of the operations have been completed, or
(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
“[Pjroducts hazard” includes bodily injury and property damage arising out of the Named Insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the Named Insured and after physical possession of such products has been relinquished to others.

Sandpiper contends that the exclusions in its policy are ambiguous, and that the ambiguities should be resolved in its favor. Sandpiper relies heavily on Nixon v. United States Fidelity & Guaranty Co., 290 So.2d 26 (Fla.1973), and its progeny for support. USF&G, in turn, says that it was a party to that suit, and that the Sandpiper policy was written with the idea of removing the infirmities found by the supreme court in Nixon.

The facts in the Nixon case were as follows: Mr. Nixon, a general contractor, was sued by the parents of a small child killed by the collapse of a cinder-block wall. The wall had been built by Nixon’s subcontractor. Nixon notified his insurance carrier, USF&G, of the suit, but it refused to defend. After a $15,000 judgment was obtained against Nixon, he sued USF&G for indemnification and defense costs.

Nixon’s policy afforded liability coverage for accidents “arising out of the hazards” of doing business. “Hazards” were subsequently defined to be, “The ownership, maintenance or use of the premises, and all operations.” (Emphasis added.) However, in another portion of the policy certain hazards were excluded from coverage. The “Products — Completed Operations Hazard” was one of these exclusions. The supreme court, in a four-to-two decision, concluded that there was an ambiguity in the policy since coverage was provided for “all operations,” yet coverage was excluded for the “Products — Completed Operations Hazard.” This attempt at exclusion was found to be ambiguous because Nixon, who was a general contractor and not a manufacturer, could have reasonably concluded that the exclusionary clause applied only to those operations related to “products.”

The USF&G policy now before the court has, we believe, significant differences from the policy in Nixon. First, there is no broad insuring clause referring to “all operations” of the insured. Rather, the insuring clause provides:

COVERAGE B — PROPERTY DAMAGE LIABILITY
The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence, .

Second, unlike the policy in Nixon, the instant policy refers to completed operations and products hazards separately, and defines them separately also. This dichotomy obviously resulted from the insurance company’s perception of the rationale of the Nixon opinion, which found the exclusion relating to “Products — Completed Operations” to be confusing to the insured contractor.

Finally, the exclusionary language in the Sandpiper policy, quoted previously, does not appear to be ambiguous. We agree with the observation of the supreme court in Nixon that insurance companies should issue more concise and readable policies. But, we think USF&G has satisfactorily addressed this problem and Sandpiper should reasonably have known that it was not buying coverage for its completed operations when it purchased this policy.

Affirmed.

HOBSON, Acting C. J., SCHEB, J., and FOGLE, HARRY W., Associate Judge, concur.


text:
    Ringo SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 76-1667.
    District Court of Appeal of Florida, Second District.
    July 22, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The order revoking the appellant’s probation is affirmed but this case is remanded for resentencing of appellant specifying the amount of credit for time served. The appellant does not have to be present at re-sentencing.

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


text:
    Gloria WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1796.
    District Court of Appeal of Florida, Second District.
    July 22, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Dávis G. Anderson, ,Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged in a single information with three counts of resisting an officer with violence, a third degree felony. She was convicted as charged on counts one and three, but was found guilty of the lesser included offense of resisting an officer without violence on count two. She was given concurrent sentences of six to eighteen months on each count.

Resisting an officer without violence is a first degree misdemeanor. Section 843.02, Florida Statutes (1975). The maximum prison sentence for a first degree misdemeanor is one year. Section 775.082(4)(a), Florida Statutes (1975). Therefore appellant’s sentence on count two exceeds the legal maximum.

Appellant’s convictions on all three counts and the sentences on counts one and three are affirmed. The sentence on count two is vacated, and the cause is remanded for imposition of a sentence of six months to one year on that count. Appellant need not be present for this purpose.

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


text:
    Harold L. KEATHLEY, Appellant, v. Walter LARSON et al., Appellees.
    No. 76-1809.
    District Court of Appeal of Florida, Second District.
    July 22, 1977.

      Dennis P. Thompson and David E. Platte, Richards, Nodine, Gilkey, Fite, Meyer & Thompson, P. A., Clearwater, for appellant.
    John R. Bonner, Sr., Bonner & Hogan, P. A., Clearwater, for appellees.
   PER CURIAM.

In this interlocutory appeal Keathley, plaintiff below, seeks reversal of an order dismissing with prejudice Count I of his third amended complaint, an action for specific performance. We think he’s right.

This cause commenced with appellant’s filing of a two-count complaint against ap-pellees. Count I sought specific performance of a contract whereby appellees agreed to sell to appellant all of the stock of a closely held corporation known as Gay Ranch, Inc. Appellant alleged that the main asset of said corporation is a mobile home park in Pinellas County, known as Gay Ranch. Count II sought recovery of monetary damages allegedly suffered by appellant as a result of appellees’ breach of the aforesaid contract, i. e., appellees’ refusal to close the transaction.

After obtaining leave to amend, appellant subsequently filed an amended complaint containing two counts, requesting the same relief as did the original complaint. Appel-lees moved to dismiss and, alternatively, to strike certain portions of the amended complaint, including all references to the purported contract between the parties (which was attached to the amended complaint) because Schedules A and B (the legal description of the real property upon which the Gay Ranch Mobile Home Park is situated) referred to in said contract were not attached thereto. By order dated January 22, 1976, Circuit Judge William Walker denied appellees’ motion to dismiss, but granted their motion to strike.

Appellant then filed his second amended complaint requesting the same relief as his two prior complaints. Appellees again moved to dismiss and, alternatively, to strike certain paragraphs because, inter alia, appellant still had not attached Schedules A and B thereto.

By order dated April 5, 1976, Judge Walker found that Schedules A and B referred to in the contract sued upon “obviously contain the legal description of the property for which Plaintiff seeks the order of this Court for specific performance”; that said schedules are not included in the second amended complaint; that they are material; and that the legal description contained in Schedules A and B must be alleged or sufficient allegations otherwise made “whereby the Court could identify the property for which the specific performance is sought.” Thereupon, Judge Walker granted appellees’ motion to dismiss Count I of the second amended complaint for specific performance, with leave to appellant to amend within ten days.

Appellant timely filed his third amended complaint, again consisting of two counts seeking specific performance of an agreement of sale of closely held stock and monetary damages. Appellees again moved to dismiss or strike on the grounds that appellant had not complied with the order of April 5, 1976, by neither attaching Schedules A and B, nor alleging the legal descriptions contained in said schedules, nor otherwise making sufficient allegations to identify the property.

This time appellees’ motion came on to be heard before Circuit Judge B. J. Driver, who entered the order appealed from, dated October 13, 1976, stating that, “the Court has limited itself to the issue of whether or not the requirements of Judge Walker’s Order aforesaid [relating to the legal description] were complied with” and, finding that said requirements had not been fulfilled, dismissing Count I of the third amended complaint with prejudice.

The principal underlying issues in the case are, of course, whether a suit for specific performance will lie for enforcement of a contract for the sale and purchase of the stock (personalty) in a closely held corporation the main asset of which is realty and, if so, whether it is essential in such suit that the legal description of the corporate owned realty be pleaded and proved. We think each issue must be resolved in favor of appellant. In Carman v. Gunn this court expressly held that such a contract was amenable to specific performance notwithstanding no attempt was made in the contract legally to describe the corporate owned realty. It necessarily follows, therefore, that the legal description of such realty is irrelevant; and it was error for Judge Walker to require appellant to plead it as a condition precedent to maintaining his specific performance count.

Appellees additionally argue, however, that appellant did not timely appeal from Judge Walker’s prior order in the premises. Rather, they say, this appeal is taken from Judge Driver’s order which doesn’t rule on the issue previously resolved by Judge Walker but is simply limited to whether Judge Walker’s requirement of the legal description had been met. There being no dispute but that Judge Walker’s requirements were not met, appellees conclude that Judge Driver’s order is not erroneous and must stand. The net result, they would argue, is that the merits of Judge Walker’s order cannot be reached in this interlocutory appeal. We cannot agree.

Where appellees’ argument falls is in the assumption that Judge Driver’s order is unassailable. It is assailable. We think he should not have limited his consideration to whether the requirements of Judge Walker’s prior order were met. Clearly, Judge Walker could himself have reversed his prior ruling before final judgment; but in any event, it is well settled that where one judge has made an interlocutory order in the case, and for some reason is properly removed from the case and another judge properly assigned (undisputedly the situation here), the successor judge can vacate that prior interlocutory order while the case is still pending and has not yet gone to final judgment. While it is true that a judge should hesitate to undo his own work, and hesitate still more to undo the work of another judge because of the “code” of restraint based upon comity and courtesy, nevertheless when presented with a prior interlocutory ruling that is based on a clearly mistaken interpretation of the law it is indeed appropriate for the succeeding judge to vacate or modify the prior order.

Here, we think Judge Walker’s order was predicated on a clearly mistaken interpretation of law, as a result of which the gravamen of appellant’s cause of action was effectively undercut. Undisputedly he sought in good faith to amend his pleading in a way to satisfy Judge Walker rather than resorting to a delaying interlocutory appeal. But it is patent from the attempted amendment, which again omitted any legal description of the corporate owned realty, that appellant was in effect still insisting on the irrelevancy of such legal description. Parenthetically, we note, that while we assume good faith in every respect, we nonetheless wonder why exhibits A and B weren’t attached to the complaint or legal descriptions of the realty otherwise pleaded. This entire interlocutory appeal could perhaps have been avoided. We persist in resolution of the matter, however, to avoid revisiting it on a full direct appeal following a final judgment.

Getting on, then, when appellee’s motion attacking the last amendment came on to be heard before Judge Driver, appellant had no way of knowing that Judge Driver was going to limit his consideration of the matter to the extent mentioned above. The net result was that appellant was “sandbagged” in that he necessarily had lost his right to have the principal issues in the case resolved by an interlocutory appeal from Judge Walker’s order and had no way (other than the course we pursue here — perilous to the plaintiff/appellant at best) to remedy the situation by an appeal from Judge Driver’s order. Under such circumstances, Judge Driver’s sua sponte limiting himself solely to the issue of whether Judge Walker’s prior order was complied with constituted an abuse of discretion. Judge Driver had the full count before him and was asked to determine its sufficiency generally. The underlying principles of law should have been addressed; and if Judge Driver perceived Judge Walker’s ruling as error, as we do, he would have been well within his prerogatives to disagree, in which case appellees' right to an interlocutory appeal would have been preserved. If he thought Judge Walker’s order correct and the law of the case, he should have said so, in which event appellant’s right of interlocutory appeal would clearly have been preserved. As it was, appellant’s right in the premises was ostensibly denied him and appellees were armed with the technical “timeliness” argument advanced here. Neither equity nor orderly procedure can suffer such result.

Accordingly, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings consistent herewith.

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

      . 198 So.2d 76.(Fla. 2d DCA 1967).

      . Tingle v. Dade County Board of County Commissioners, 245 So.2d 76 (Fla. 1971); Deemer v. Hallett Pontiac, Inc., 288 So.2d 526 (Fla. 3d DCA 1974); American Fire and Casualty Company v. Tiliberg, 199 So.2d 782 (Fla. 2d DCA 1967).

        .See Tingle, supra, n. 2.


author: OTT, Judge.

text:
    John M. WEISBERG, Appellant, v. STATE of Florida, Appellee.
    No. 77-139.
    District Court of Appeal of Florida, Second District.
    July 22, 1977.

      Charles H. McQuillan of McQuillan & Beltz, P. A., Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant pled nolo contendere to a charge of possession of more than five grams of marijuana. He specifically reserved his right to appeal the court’s denial of his two motions to suppress evidence. He contends that the affidavit in support of the search warrant was defective. We agree and reverse.

The confidential informant was described in the affidavit as a “reliable and trustworthy confidential informer. . There were no further allegations or facts supporting such a conclusion.

In Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977), the First District Court of Appeal found an affidavit to be defective. With reference to the reliability of the confidential informant, the affidavit therein described him only as “an informant known by your affiant to be a reliable person . .” 346 So.2d at 142. This affidavit was deemed to be defective “because although it alleged that the confidential informant who supplied the information on which the state relied for issuance of the warrant was reliable, there was no underlying factual information stated in the affidavit supporting his reliability.” 346 So.2d at 141.

The Davis court held that the affidavit therein did not meet the second part of the two-part test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) as explained in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). One of the requirements is that the magistrate be provided with the factual basis upon which the affi-ant concludes the informant is reliable. The issuing magistrate cannot otherwise judicially determine probable cause for issuance of the writ.

Moreover, in State v. Wolff, 310 So.2d 729, 732 (Fla.1975) the supreme court set down the “three distinct determinations” which an issuing magistrate must make before issuing a search warrant. The court stated:

He must evaluate (1) the truthfulness and integrity of the witness before him; (2) the reliability of the source of the hearsay information, if any; (3) the adequacy of the factual premises furnished from all sources to support the validity of the conclusion.

With reference to the second determination, the court noted that the magistrate “is judging from the facts of prior actions the reliability and trustworthiness of a non-swearing informant.” 310 So.2d at 732.

The state’s reliance on State v. Compton, 301 So.2d 810 (Fla. 2d DCA 1974) for the proposition that Florida courts have upheld search warrants based upon the simple assertion that an affiant consider his confidential informant to be reliable is without merit. On the contrary, the affidavit in Compton contained much more than such a “simple assertion.” Present were other allegations in the affidavit that the affiant had received information in the past from this particular source which had proven to be reliable and trustworthy.

Reversed and remanded for entry of an order granting defendant’s Motion to Suppress and affording the defendant the opportunity to withdraw his plea of nolo con-tendere.

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


text:
    Edmond DUHART, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1132.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Bennett H. Brummer, Public Defender, Julian S. Mack, Asst. Public Defender, and Randy Ferguson, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Arthur Joel Berger, Asst. Atty. Gen. and Paul Mendel-son and Ronald A. Dion, Legal Interns, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Melero v. State, 306 So.2d 603 (Fla. 3d DCA 1975); Lattimore v. State, 323 So.2d 5 (Fla. 3d DCA 1975); United States v. Jones, 457 F.2d 697 (5th Cir. 1972); Chaney v. State, 267 So.2d 65 (Fla.1972); Hanks v. State, 305 So.2d 817 (Fla. 3d DCA 1975); and compare Cribbs v. State, 297 So.2d 335 (Fla. 2d DCA 1974).


author: BARKDULL, Judge.

text:
    David E. STONE et al., Appellants, v. Lynne B. ROSEN, Appellee.
    No. 76-1214.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Horton, Perse & Ginsberg, Stone, Sostch-in, Koss & Gonzalez, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and James D. Little, Miami, for appellee.
    Nicholas R. Friedman, Miami, for The Florida Bar, as amicus curiae.
    ’ Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   BARKDULL, Judge.

David E. Stone and the law firm of Stone, Sostchin & Ross, plaintiffs in the trial court, appeal from an adverse summary final judgment in a malicious prosecution action.

Between December of 1973 and January of 1974, David Stone [acting for himself and his wife] negotiated with Lynne B. Rosen for the sale of certain realty. The closing did not take place as scheduled, because a dispute arose between the parties concerning checks drawn on David Stone’s trust account to cover an amount due and owing under the terms of the deposit receipt agreement. On January 5, 1974, David Stone filed a suit for specific performance of the deposit receipt agreement. This suit ended in favor of Stone.

On April 9,1974, while the suit for specific performance was pending, Lynne Rosen wrote a letter to The Florida Bar complaining that attorney Stone had acted improperly by commingling his personal funds with those of his firm’s clients. On December 6, 1974, the Grievance Committee of The Florida Bar issued a report finding no probable cause for further disciplinary proceeding.

Thereafter, on April 15, 1975, attorney Stone and his law firm filed an action for malicious prosecution against Lynne Rosen, alleging that the accusations to The Florida Bar were false, malicious, and made without probable cause. On June 12, 1975, Ro-sen answered and raised as affirmative defenses the defenses of absolute privilege and that the complaint to The Florida Bar was based on probable cause that David Stone had acted improperly. The trial court entered a summary final judgment in favor of Rosen, finding that Rosen’s conduct in filing a letter of complaint against David Stone with The Florida Bar and the Dade County Bar Association was qualifiedly privileged. This appeal followed. We affirm.

First, there are no issues of fact as to the essential element of the want of probable cause and, therefore, it was a question of law which could have been determined by the entry of a summary judgment adverse to the plaintiff. Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952); Duprey v. United Services Automobile Association, 254 So.2d 57 (Fla. 1st D.C.A. 1971); Fredricks v. School Board of Monroe County, 307 So.2d 463 (Fla. 3rd D.C.A. 1975); cf. Yost v. Miami Transit Co., 66 So.2d 214 (Fla.1953). Even though the trial judge did not cite this as his reason in the order granting summary judgment, he may be right for any reason appearing on the record. Braren v. Lawyers’ Realty Abstract Co. of Sarasota, 196 So.2d 244 (Fla. 2nd D.C.A. 1967); Miami Beach First National Bank v. Borbiro, 201 So.2d 571 (Fla. 3rd D.C.A. 1967); First National Bank of Clearwater v. Morse, 248 So.2d 658 (Fla. 2nd D.C.A. 1971). However, a more important point is what we find to be an absolute privilege on the part of a citizen to make a complaint against a member of the integrated bar of this State. Therefore, we find that the order under review was correct for this reason.

All persons desiring to practice law in this State are required to be members of the integrated bar. Art. 2, Sec. 1, Integration Rule of The Florida Bar. The present rules of the integrated bar give counsel adequate protection of confidentiality until a finding of probable cause and an independent vote as to whether or not the proceedings will be made public. Art. 11, Rule 11.12, Integration Rule of The Florida Bar. There is a split of authority in the country as to whether or not one making a complaint against a member of the bar is entitled to a qualified privilege or an absolute one. Among those extending a qualified privilege are the following States: Alabama and Missouri. Among those extending an absolute privilege are the following States: California, Hawaii, Massachusetts, Nebraska, New York, North Dakota, Ohio, Oregon, and Texas.

In Toft v. Ketchum, 18 N.J. 280, 113 A.2d 671 (1955), cert. denied, 350 U.S. 887, 76 S.Ct. 141, 100 L.Ed. 782 the New Jersey Supreme Court considered a malicious prosecution action by an attorney against a citizen who had filed a complaint with the grievance committee. In holding that an absolute privilege was the appropriate defense, Chief Justice Vanderbilt, joined by present United States Supreme Court Justice William Brennan, wrote:

* * * * * *
“The basic question before us is whether public policy requires that the filing of a complaint with an ethics and grievance committee be privileged. In dealing with this issue we are confronted by two conflicting considerations of policy. On the one hand, there is the injury that may be suffered by any attorney as a result of the institution of disciplinary proceedings against him on what turns out to be improper or groundless charges. Even if the charges against him are found to be baseless and the complaint is dismissed, he still may suffer from the public knowledge of these proceedings which may damage his reputation and injure his ability in the future to earn a living. * *
“On the other hand, however, it is in the public interest to encourage those who have knowledge of any unethical conduct of attorneys to present such information to the appropriate county ethics and grievance committee so that this court may carry out its constitutional disciplinary duties. * * *
******
“In attempting to do justice as between these two conflicting interests, we are necessarily forced to give great weight to the fact that we have been charged by Constitution with the solemn duty of ridding the bar of those who are unfit to practice our profession. As we have seen, this is fundamentally a duty to the public and it is necessary that we make every effort to do this job to the best of our ability. If each person who files a complaint with the ethics and grievance committee may be subject to a malicious prosecution action by the accused attorney there is no question but that the effect in many instances would be the suppression of legitimate charges against attorneys who have been guilty of unethical conduct, a result clearly not in the public interest. And although to deprive an attorney of his right to recover damages in a civil action for the malicious filing of such a complaint without probable cause occasionally works a hardship upon the attorney * * * we are of the opinion that this result must follow if we are to properly carry out our constitutional duty to maintain the high standards in our bar. * * * ”
******

Members of the legal profession are accorded rights and privileges not enjoyed by the public at large; the acceptance of these carries with it certain responsibilities and obligations to the general public. For the sake of maintaining the high standards of the profession and disciplining those who violate the Canons of Legal Ethics, one who elects to enjoy the status and benefits as a member of the legal profession must give up certain rights or causes of action which, in this instance, is the right to file an action against a complainant who lodges an unsuccessful complaint with the Grievance Committee of The Florida Bar.

Therefore, for the reasons above stated, the final summary judgment here under review be and the same is hereby affirmed.

This case appears to be one of first impression in Florida, and has drawn the interest of The Florida Bar by its appearance in this proceeding as amicus curiae. Therefore, because of the impact of this decision on the members of The Florida Bar, we are going to certify same to the Supreme Court of Florida as passing upon a question of great public interest.


author: PER CURIAM. PEARSON, Judge

text:
    Cyril Clinton WYTHERS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1347.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, 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.

Cyril Clinton Wythers was charged by information with robbery and with unlawful possession of a firearm while engaged in a criminal offense. He was tried non-jury, convicted on both counts, and sentenced to two concurrent ten-year terms in the state penitentiary, with eight years of each term to be served followed by two years probation.

The record reflects that during trial, the prosecutor cross-examined a police detective who was a defense witness, and asked what he said to the defendant prior to the lineup. The officer responded:

“I had informed Mr. Wythers that I was the investigator assigned to the case and that I did not originally investigate the case. He was advised of his rights and I asked him if he wanted to talk to me in regards to the matter and he stated that he did not.”

Defense counsel objected and moved for a mistrial on the ground that this testimony was inadmissible as an improper comment on the defendant’s right to remain silent. The prosecutor countered that he did not believe that this law was applicable to a non-jury situation, and further that he did not elicit this testimony and that it was the first time he heard it. Following argument on the motion, the judge stated that she knew of “case law right to the point,” but that she did not know whether it applied to a non-jury case; she withheld ruling. At the conclusion of all the testimony, the court denied the defendant’s motion for mistrial as follows:

“The case which you cite which is a proper case says that when you ask the Defendant anything regarding whether he wants to say anything, that this is in violation of his Miranda Rights. However, I do not feel that this is applicable in a [non-jury trial].”

The judge then reviewed aloud, on the record, the evidence which would support a conviction, including that the defendant had been identified in a photographic lineup, and by fingerprints in the cash register.

The defendant contends that the court erred in admitting over objection the evidence establishing the exercise of his right to remain silent, and in denying the motion for mistrial. He further contends that Bennett v. State, 316 So.2d 41 (Fla.1975), and Shannon v. State, 335 So.2d 5 (Fla.1976), mandate reversal in this case. The State has conceded that the testimony in question was inadmissible, but urges that Bennett and Shannon are inapplicable as they can be distinguished from the instant case in one material respect. That is, that they were jury trials, and this was a non-jury trial in which the judge recognized that the testimony was inadmissible and expressly stated on the record that her adjudication of guilt was based on substantial competent evidence other than the tainted evidence.

At the outset, we acknowledge that the testimony in question was inadmissible and that its admission constitutes an error of constitutional dimension. We agree with the specially concurring opinion in Martín v. State (Fla.3d DCA 1977), case no. 76-1035, opinion filed July 6, 1977, wherein it is stated that, “ * * * a defendant has the same constitutional rights in every trial.” Other Florida cases have held that in a non-jury trial, where the erroneous admission of damaging evidence may have deprived the defendant of a fair trial, a conviction will be reversed and the cause remanded for a new trial. Paul v. State, 340 So.2d 1249 (Fla.3d DCA 1976). See also Smith v. State, 340 So.2d 930 (Fla.4th DCA 1976), and Mackey v. State, 234 So.2d 418 (Fla.3d DCA 1970). But we note Houston v. State, 337 So.2d 852 (Fla.lst DCA 1976), in which the court considered the weight of the evidence as to appellant’s guilt, together with the fact that the trial was before a judge without a jury, and found that it was apparent that the error did not injuriously affect the substantial rights of appellant and was harmless error.

The federal courts take a position similar to that expressed in Houston, supra. For example, United States v. McCarthy, 470 F.2d 222. (6th Cir. 1972), holds that less stringent standards govern a non-jury trial than a jury trial. The federal courts further have held that as a general rule, in a non-jury trial, the introduction of incompetent evidence does not require a reversal in the absence of an affirmative showing of prejudice. United states v. Penick, 496 F.2d 1105, 1108 (7th Cir. 1974). See also United States v. Allstate Mortgage Corporation, 507 F.2d 492, 494 (7th Cir. 1974); United States v. Smith, 465 F.2d 388, 391-392 (8th Cir. 1972).

Another principle of law espoused by the federal courts is that the court cannot declare an error of constitutional dimension to be harmless unless it can declare with confidence beyond reasonable doubt that the record excludes the possibility that the evidence complained of might have contributed to the conviction. United States v. Smith, supra. In the instant case, we have an error of constitutional dimension, but we find beyond doubt that the record excludes the possibility that the testimony of the detective might have contributed to the conviction. We recognize that by and large, the Florida courts have required reversal where such error appears on the record, due to the substantial opportunity for prejudice to the defendant. But where, as here, there is an affirmative showing on the record that the judge recognized that the evidence was improper and inadmissible, and further that the judge then specifically stated the evidence against the defendant, which was competent substantial evidence to support a conviction, then we can infer that the judge did not take into consideration the inadmissible evidence in making a determination of guilt.

The other point raised on appeal by defendant is without merit and will not be discussed in this opinion.

Affirmed.

PEARSON, Judge

(dissenting).

In my concurring opinion in Martin v. State, (Fla.3d DCA 1977), case no. 76-1035, released July 6, 1977, I argued that the rule requiring reversal in jury trials where the cross-examination of a defendant revealed his Miranda warning silence should attach with equal force in non-jury cases as well.

In the present non-jury case, the fact of the defendant’s Miranda warning silence was brought to light through the cross-examination of a defense witness. I would apply the same principle here as I did in Martin v. State, supra. I, thereby, respectfully dissent.

      . Bennett v. State, 316 So.2d 41 (Fla. 1975); and Shannon v. State, 335 So.2d 5 (Fla. 1976).


text:
    DADE COUNTY, Appellant, v. YUMBO, S. A., Appellee.
    No. 76-1433.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellant.

      John G. Fletcher, Coconut Grove, for ap-pellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   BARKDULL, Judge.

Dade County seeks review of an order of the circuit court on petition for writ of certiorari, which granted a zoning change from GU (Interim Use) to RU-TH (Townhouse District), RU-4L (Limited Apartment House — 23 units/acre), and BU-2 (Special Business).

Yumbo, S.A., the owner of a 400-acre tract located in the unincorporated area of south Dade County between Homestead Air Force Base and Biscayne Bay, petitioned the County Commission for a rezoning, necessitating a change of district boundaries, to build a new type of habitat (including townhouses, apartments, businesses) where the main objective of this project would be to preserve the natural aspects of the tract by putting each of the housing units on stilts.

The County Commission denied the application for rezoning, based on the recommendations of the Building and Zoning Departments and of the Planning Department. The reasons for recommendation of denial were: .(1) rezoning would be in direct conflict with a 1975 Comprehensive Development Master Plan, which indicates the property as being in a preservation area; (2) the property’s proximity to Homestead Air Force Base, resulting in over-flights; and (3) insufficient public facilities for development at this time; i. e., water, sewers, roads, schools, etc.

A petition for issuance of a writ of certio-rari was filed. After hearing thereon, the circuit court granted the petition for writ of certiorari and directed the County to change the zoning on the property, as requested by the property owner. This appeal ensued.

The appellant contends the circuit court erred in granting the petition for writ of certiorari by substituting its own judgment for that of the Dade County Commission, by abandoning the fairly debatable rule, by ruling that zoning resolution created an avi-gational easement and a taking of real property, and by destroying the Master Plan concept, which directs development in logical patterns. We agree, and reverse.

There can be no question that promulgation of zoning regulations is a proper function of the appellant herein. City of Miami Beach v. Lachman, 71 So.2d 148 (Fla. 1954); Village of Euclid, Ohio v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). However, the trial court held, and the appellee contends, that the fairly debatable doctrine established in the aforementioned cases and their progeny has been abrogated by this court and replaced with the substantial competent evidence rule, based on the following cases: Dade County v. Carmichael, 165 So.2d 227 (Fla. 3rd D.C.A. 1964); Sun Ray Homes, Inc. v. County of Dade, 166 So.2d 827 (Fla. 3rd D.C.A. 1964); Baker v. Metropolitan Dade County, 237 So.2d 201 (Fla. 3rd D.C.A. 1970); Centex Homes Corp. v. Metropolitan Dade County, 318 So.2d 149 (Fla. 3rd D.C.A. 1975); Dade County v. Marca, 326 So.2d 183 (Fla.1976). The theory behind this argument is that the aforementioned cases have changed the law of zoning as it applies to Dade County, so that zoning actions that were formerly administrative in character are now quasi-judicial acts, to be determined upon judicial review by the substantial competent evidence rule.

Such a theory must be rejected by this court. In reviewing the cases cited by the trial court in support of its holding, we find that those cases dealt primarily not with the standard to be used in review of the evidence before the administrative body but, rather, dealt with procedure utilized to seek judicial review of the administrative ruling. Prior to Dade County v. Metro Improvement Corporation, 190 So.2d 202 (Fla. 3rd D.C.A. 1966), rulings that were classified administrative in nature were challenged by a direct attack on their validity in an equitable type proceeding. Dade County v. Markoe, 164 So.2d 881 (Fla. 3rd D.C.A. 1964); Sun Ray Homes, Inc. v. County of Dade, supra. Quasi-judicial orders, on the other hand, were reviewable by certiorari in the circuit court. However, in Dade County v. Metro Improvement Corporation, supra, it was held that pursuant to § 33-316 Code of Metropolitan Dade County, certiorari was the sole method of review of a decision of the Board of County Commissioners in a zoning matter. This method was approved by this court without discussion of whether or not a zoning classification was an administrative or quasi-judicial function, until the case of Baker v. Metropolitan Dade County, supra, wherein this court, in discussing the proper method of review of a request, for rezoning, stated: “ * * * The commission’s procedure, i. e., utilizing the resolution as a means of denying the request for rezoning, is quasi-judicial in nature. Harris v. Goff, Fla.App. 1963,151 So.2d 642. * * * This quoted section was reiterated in Centex Homes Corp. v. Metropolitan Dade County, supra, which again involved the appropriate method of review, but the order reviewed was a denial of a request for a variance which, since the inception of modern-day zoning, has been considered a quasi-judicial act. Thus, it would appear that (based on Baker v. Metropolitan Dade County, supra) matters pertaining to zoning classifications on property might constitute a quasi-judicial function of the Dade County Commission rather than an administrative function.

Notwithstanding that holding in Baker v. Metropolitan Dade County, supra, this court has not abandoned the fairly debatable rule in reviewing attacks on zoning classifications that were formerly administrative in nature. In fact, in Baker v. Metropolitan Dade County, supra, this court (in dealing with the zoning of a portion of the property involved therein) stated: “ * * * The latter zoning is, at the very least, fairly debatable, and as such should be sustained. * * * ” [emphasis added].

Subsequent to Baker v. Metropolitan Dade County, supra, this court and the Supreme Court of Florida (in dealing with zoning cases involving Dade County) have consistently applied the fairly debatable rule in those situations involving requests for rezoning, change of zoning boundary, or any other zoning act universally known primarily as an administrative action. Miles v. Dade County, Board of County Commissioners, 260 So.2d 553 (Fla. 3rd D.C.A. 1972); Metropolitan Dade County v. Crowe, 296 So.2d 532 (Fla. 3rd D.C.A. 1974); Metropolitan Dade County v. Fletcher, 311 So.2d 738 (Fla. 3rd D.C.A. 1975); Marca, S.A. v. Dade County, 332 So.2d 142 (Fla. 3rd D.C.A. 1976). See also: Renard v. Dade County, 261 So.2d 832 (Fla.1972).

Therefore, we find that the trial court erred in holding that the fairly debatable rule had been replaced by the substantial competent evidence rule in zoning cases of this nature, and we hereby hold that in those cases involving Dade County zoning actions, which are universally considered administrative in nature, the trial court shall employ the fairly debatable rule in reviewing the County’s action.

Inasmuch as the fairly debatable standard is to be employed in the instant case, the trial court further erred in entering the order appealed in that, in so doing, it improperly substituted its own judgment for that of the zoning authority. City of Miami Beach v. Lachman, supra; City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla. 1956); Smith v. City of Miami Beach, 213 So.2d 281 (Fla. 3rd D.C.A. 1968). The ordinance in question is fairly debatable and, as such, the Commission’s action in denying the request for rezoning should have been sustained.

The trial court’s finding that the ordinance in question created an avigational easement and a taking of real property is also erroneous under the facts of the instant case. There can be no question of the incompatibility of residential development in close proximity to an airport. Burritt v. Harris, 172 So.2d 820 (Fla.1965); City of Jacksonville v. Schumann,' 167 So.2d 95 (Fla. 1st D.C.A. 1964); City of Jacksonville v. Schumann, 199 So.2d 727 (Fla. 1st D.C.A. 1967); Adams v. County of Dade, 335 So.2d 594 (Fla. 3rd D.C.A. 1976). It would be proper for the County, in the exercise of its police power, to enact zoning ordinances denying intensification of habitation. Smith v. County of Santa Barbara, 243 Cal. App.2d 126, 52 Cal.Rptr. 292 (1966); Morse v. County of San Luis Obispo, 247 Cal. App.2d 600, 55 Cal.Rptr. 710 (1967). Our holding herein is limited only to the decision of the County to deny the appellee’s request for residential zoning and should not be construed to deny the appellee relief by way of inverse condemnation or otherwise, if the County (by its zoning practice) deprives the appellee of any reasonable use of his property. Compare Kasser v. Dade County, 344 So.2d 928 (Fla. 3rd D.C.A. 1977).

Lastly, we are confronted with the question raised by the appellant herein, to the effect that the trial court’s decision destroyed the so-called “Master Plan Concept”, which directs development in logical patterns. We recognize that adoption of a comprehensive development is a current trend in land use planning in those areas where urban sprawl has become commonplace. Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956 (1st Cir. 1972); Construction Industry Association of Sonoma County v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975); Norbeek Village Joint Venture v. Montgomery County Council, 254 Md. 59, 254 A.2d 700 (1969); Golden v. Planning Board of the Town of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291; Section 163.3161 et seq. Florida Statutes, 1975. However, the trial judge’s ruling herein was premature; there has been no showing by the appellee that his property cannot be put to a reasonable use compatible with the master plan. Furthermore, there has been no showing that the master plan is so inflexible so as to constitute County action precluding the appellee from any and all reasonable present or future use of his property. Until such time as these questions have been properly presented and litigated, we feel constrained to uphold the validity of the master plan as it applies to the specific property involved herein. Certainly, when we have found the present zoning on the appellee’s property to be fairly debatable, it is not necessary to rule upon the validity of the master plan as it affects the appellee’s property. Therefore, the trial court erred in finding (under the facts of the instant case) that the master plan was confiscatory as it applied to the appellee’s property.

Based on the foregoing, the trial court is hereby reversed and the cause is remanded to the trial court, with directions to deny the petition for writ of certiorari.

Reversed and remanded, with directions.


text:
    John Joseph CHURNEY, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 76-1504.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Rehearing Denied Sept. 28, 1977.

      Black & Denaro, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

John Joseph Churney was charged by information, tried without a jury and convicted of possession of cocaine, possession of more than five grams of marijuana and possession or sale of controlled substance implements. He was sentenced to 90 days in the county jail for possession of marijuana, and five years probation on the other two counts. His points on appeal concern the validity of the issuance and the execution of the search warrant and the sufficiency of the evidence.

The record reflects that on September 21, 1975, a detective with the public Safety Department narcotics unit observed approximately four marijuana plants growing on the fourth floor balcony of an apartment in a large Dade County apartment complex. The detective drew up an affidavit for a search warrant and presented it to a circuit judge who issued the warrant. The search warrant described the thing to be seized as “a quantity of marijuana,” described the location of the apartment and commanded the police to search the entire apartment day or night. On September 25, 1975, at approximately 10:00 p. m., the detective and six or seven officers executed the warrant. A search of the entire apartment produced sixteen marijuana plants from the balcony in addition to cocaine and various paraphernalia for the use of a controlled substance. The defendant and two women were arrested.

Defendant’s motion to suppress the evidence seized in the search was denied and the physical evidence and laboratory report were admitted into evidence pursuant to stipulation of counsel. Defendant reserved the right to appeal the denial of the motion to suppress. He was found guilty and sentenced whereupon this appeal ensued.

As one of his points on appeal, defendant contends that the affidavit for search warrant failed to set forth facts sufficient to establish probable cause for the issuance of a warrant to search the apartment. As a general rule, an affidavit in support of a search warrant for a private dwelling must show probable cause on its face. Section 933.18, Florida Statutes; Panzavecchia v. State, 201 So.2d 762 (Fla. 3d DCA 1967). Both federal and state constitutions require that search warrants be supported by affidavits which state facts sufficient to permit an impartial magistrate to determine whether probable cause exists; and to be sufficient, the affidavit must state facts, not conclusions. State v. Malone, 288 So.2d 549, 550 (Fla. 1st DCA 1974), and cases cited therein. Probable cause for issuance of a search warrant cannot be based on mere suspicion, but rather must be based on facts known to exist. In assessing whether an affidavit establishes probable cause, the test is not whether the evidence would be admissible for the purpose of proving guilt at trial, but whether the information would lead a person of prudence and caution to believe that the offense has been committed. The test depends on probabilities determined by the factual and practical considerations of everyday life on which reasonably prudent and cautious persons, not legal technicians, act. Dunnavant v. State, 46 So.2d 871 (Fla.1950); Gispert v. State, 118 So.2d 596 (Fla. 2d DCA 1960); Suiero v. State, 248 So.2d 219, 221 (Fla. 4th DCA 1971).

In our opinion, the affidavit in this case establishes probable cause to support a reasonable belief by the judge that marijuana was being secreted on the premises of the apartment to be searched. The affidavit stated pertinent facts: (1) the affiant personally observed approximately four plants; (2) the affiant identified the plants as being marijuana plants based on his past observation of over seventy marijuana plants; (3) these plants were growing on a fourth floor balcony which “balcony belonged to, and is a part of” the apartment to be searched. The only gain of access to the balcony was through the apartment. Thus, the issuing judge had before him facts, and not conclusions, which established that marijuana was on the premises.

The law prohibits the issuance of a warrant when an affidavit merely states conclusions and is devoid of supporting facts from which ultimate probable cause belief can be reasonable inferred. But where, as here, facts are contained in an affidavit, reasonable inferences can be made from them; for inference is the essence of probable cause. See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The defendant next contends that the search was illegally executed during the nighttime. In response, we adopt the reasoning of Judge Letts in dicta in State v. Nelson, 347 So.2d 749 (Fla. 4th DCA 1977), opinion filed June 17, 1977:

“. . . nighttime searches are particularly desirable when dealing with drugs because the approach must be made without detection, otherwise the drugs are frequently flushed down the toilet . Detection of approaching police officers will not permit of the instant destruction of a stolen motorcycle, either down the toilet or by way of the garbage disposal. Drugs, on the other hand, as every judge, criminal lawyer and law enforcement officer knows, are repeatedly gotten rid of by way of the toilet, and the exigencies of the occasion, surrounding any drug seizure, demands undetected approach or the search is a waste of the taxpayer’s time and money.”

For those reasons, and based upon our recognition of the fact that most drug dealings are conducted in the nighttime, we find no error in the denial by the trial judge of the motion to suppress on the ground that the search warrant was executed at night. Accord: Solis v. Superior Court of Monterey County, 63 Cal.2d 774, 408 P.2d 945 (1966).

Generally, a trial court’s ruling on a motion to suppress comes to the appellate court with a presumption of correctness, and in testing the accuracy of the trial court’s conclusion, the appellate court should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain the trial judge. Jester v. State, 339 So.2d 242 (Fla. 3d DCA 1976). No error having been shown in the denial of the motion to suppress on any of the grounds asserted by defendant, the trial court is affirmed.

Defendant’s next point is that the evidence was insufficient to support a conviction on the charge of possession of marijuana. We agree and reverse the conviction and sentence thereon. The evidence presented by the State was insufficient to prove beyond a reasonable doubt that the defendant was in possession of the marijuana.

The remaining points on appeal are without merit and will not be discussed in this opinion.

Affirmed in part and reversed in part.


text:
    Joseph A. FARTO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1858.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Manuel W. James, Key West, for appellant.
    Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State Atty. and John P. Durant, Asst. State Atty., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. Capitol Indemnity Insurance Company v. State, 86 So.2d 156 (Fla.1956); Lyden v. DePiera, 147 So.2d 573 (Fla.3rd D.C.A.1962).


author: HUBBART, Judge.

text:
    The STATE of Florida, Petitioner, v. Ralph Howard STEELE, Respondent.
    No. 76-2086.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.

      Richard E. Gerstein, State Atty. and John P. Durant, Asst. State Atty., for petitioner.
    Colin Guy, Miami, for respondent.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This is a traffic infraction proceeding in which a motorist was adjudged guilty of a traffic offense and fined. The circuit court reversed and the State petitions this court for a writ of certiorari.

The issue presented for review is whether a hearing officer on a traffic infraction hearing may precede the hearing with an opening statement discouraging charged motorists from pleading not guilty by giving a law lecture on alleged frivolous defenses to traffic infractions and, in particular, stating that there is no defense to a traffic infraction involving a rear-end collision except total brake failure. We hold that such an opening statement is improper as a general rule and in particular constitutes a basis to recuse the judge in a traffic infraction proceeding conducted thereafter in which a motorist is charged with a traffic offense involving an alleged rear-end collision. We, accordingly, find no departure from the essential requirements of law in the circuit court's reversal of the traffic infraction conviction herein and deny the State’s petition for a writ of certiorari.

I

On February 22, 1976, the respondent Ralph Steele was issued a traffic ticket for careless driving resulting in a rear-end collision in violation of Section 316.030, Florida Statutes (1975). On April 25,1976, the case came on for a trial before a hearing officer, the Honorable Judge James Rainwater of the County Court of Dade County, Florida.

Prior to calling the case, the judge made a lengthy opening statement to the courtroom of ticketed motorists whose. cases were on the court calendar for that evening. In the statement, he gave a law lecture on alleged frivolous defenses to various offenses, the import of which was to discourage not guilty pleas. Specifically, he stated that under the law there was no defense to a traffic offense involving a rear-end collision except total brake failure. He emphasized that he did not want to hear any defenses which he thought were frivolous. He did not explain basic court procedures, the various pleas which could be entered or any of the rights of the ticketed motorists.

The judge then called the respondent Steele’s case along with a companion case. The respondent Steele was represented by counsel who entered a plea of not guilty to the charge and requested the judge to re-cuse himself from the case based upon his opening statement. The following proceedings took place:

“[DEFENSE COUNSEL]: On behalf of the Defendant Steele, my name is Colin Guy. I represent him, and we would enter a plea of not guilty at this time.
Your Honor, I have a motion to make at this time.
I would ask the Judge, this Honorable Court to recuse itself from this type of case. It is a rear end collision and you made a specific statement that there is no defense to a rear end collision.
THE COURT: There is none.
Your motion is denied. That is the law and I am not going to repeat myself by telling you about the law.
Obviously, there is no other excuse. It might be in a civil case, but not in a traffic case because you run into the rear of someone, then you are guilty unless you have brake failure.
If you do not have brake failure, anything you tell me is simply in mitigation of what happened.
There is no defense.
MR. GUY: Then I feel that the Court has prejudged the case.
THE COURT: No.
I am just quoting you the law.” [Emphasis added]

Prior to taking testimony, the judge qualified his statements on the alleged law of rear-end collisions by announcing that he had been talking only of a “true rear-end collision” by which he meant to exclude a case where “somebody cuts in front of you.”

The judge took testimony thereafter which revealed that in the early evening hours of February 22, 1976, the respondent Steele was driving his car south in the left hand lane on South Dixie Highway in Dade County, Florida. It had been raining earlier and it was still drizzling. The traffic was moderate to heavy. Traveling ahead of the Steele vehicle was a large van which blocked Steele’s view of the traffic ahead of the van. Steele was traveling within the 45 mph speed limit at the time at about 34-40 mph. The van then switched lanes suddenly revealing just ahead in Steele’s lane, a vehicle in the process of stopping for another vehicle which in turn was stopped to make a left hand turn off South Dixie Highway. Steele applied his brakes immediately but they did not take hold causing him to rear-end the vehicle stopped ahead of him. This vehicle in turn rear-ended the vehicle stopped ahead of it.

At the close of the evidence, defense counsel argued to the judge that Steele was not guilty of careless driving because the accident under the circumstances was unavoidable due to the sudden appearance of the stopped vehicle on a fast-moving thoroughfare after the van had changed lanes together with the unexpected brake failure of the Steele vehicle. The judge found the defendant guilty as charged and fined him $100 plus $4 court costs.

The respondent Steele appealed his conviction to the Circuit Court for the Eleventh Judicial Circuit of Florida. Section 318.16(1), Florida Statutes (1975). The circuit court heard the appeal and entered an order reversing the conviction with directions to afford the defendant a new trial before another hearing official. The circuit court concluded that the judge should have recused himself in view of his opening statement to the ticketed motorists which in effect pre-judged the respondent’s case prior to hearing any evidence. The State now petitions this court for a writ of certio-rari seeking to quash the circuit court’s decision.

II

It is the established law of this State that every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of the court to scrupulously guard this right of the litigant and to refrain from attempting to exercise jurisdiction in any manner where his qualification to do so is seriously brought into question. The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice. Crosby v. State, 97 So.2d 181 (Fla.1957); State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939); Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331 (1930).

A judge must not only be impartial, he must leave the impression of impartiality upon all those who attend court. Anderson v. State, 287 So.2d 322 (Fla. 1st DCA 1973). The attitude of the judge and the atmosphere of the courtroom should be such that no matter what charge is lodged against a litigant or what cause is before the court, the judge can approach the bar with every assurance that he is in a forum which is everything a court represents: impartiality and justice. The due process guarantee of a fair trial can mean nothing less than this. State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939).

The prejudice of a judge is a delicate question for a litigant to raise but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge in question should be prompt to recuse himself. No judge under any circumstances is warranted in sitting in the trial of a cause whose neutrality is shadowed or even questioned. Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); State ex rel. Aguiar v. Chappell, 344 So.2d 925 (Fla. 3d DCA 1977).

In the instant case, the judge delivered an opening statement to the respondent and the other ticketed motorists in the court audience which placed in question his impartiality to sit on the respondent’s case. He gave a law lecture on defenses to traffic charges the import of which was to discourage the entry of not guilty pleas and defenses to traffic charges upon pain of incurring the judge’s disfavor. At no time during this lecture did he explain the rights of the ticketed motorists in court nor the basics of court procedure. Almost the entire statement was taken up telling litigants about defenses the judge considered frivolous and did not wish to hear. In our judgment, this alone disqualified him from sitting as a judge on the respondent’s case.

We think it is entirely proper for a traffic judge or hearing officer to give a brief opening statement to the assemblage of ticketed motorists prior to hearing any traffic cases. Such motorists are usually unrepresented by counsel and the opening statement should assist them in understanding court procedures as well as their rights. An opening statement may properly cover the procedure to be followed when a defendant’s name is called by the clerk, the necessity of entering a plea and the types of pleas available, the possible results of each plea, basic trial procedure including the procedures to be followed once the case is concluded, and the rights of the defendant. A short lecture on the importance of traffic safety may also be in order. See Florida Traffic Court Manual 18-19 (1974).

It is quite another matter, however, for the judge or hearing officer to deliver a law lecture, as in this case, on alleged frivolous defenses to traffic charges or indicate in any way that he or she might be displeased with the assertion of certain defenses or the entry of a not guilty plea. To do so constitutes a basis for recusal of the judge or hearing officer to sit on any subsequent traffic matter as it casts a cloud on his or her impartiality.

Beyond that, the judge’s statements in this case on the law of rear-end collisions compounds the already sufficient grounds for the judge’s recusal herein. He clearly pre-judged the case by stating he would entertain only one defense to a traffic offense involving a rear-end collision, total brake failure. Although this was slightly modified later, the respondent Steele did not get a fair hearing on the defense which he presented since it did not fit the judge’s preconception as to what a proper defense in this case would be.

The respondent was charged with violating Section 316.030, Florida Statutes (1975), which provides as follows:

“(1) Any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person. Failure to drive in such manner shall constitute careless driving and a violation of this section.
(2) Any person found guilty of careless driving shall be punished as provided in s. 316.026."

A person is in violation of the above statute when he drives his vehicle in a careless or imprudent manner so as to endanger the life, limb, or property of any person, taking into consideration all the attendant circumstances including, but not limited to, the width, grade, curves, corners and traffic conditions. It is the duty of the traffic judge or hearing officer to determine whether the ticketed motorist is guilty of careless driving taking into consideration all the circumstances of the case.

A rear-end collision does not create a rebuttable presumption of guilt under the careless driving statute. Each case must be evaluated on its own facts based on all the attendant circumstances in determining whether the ticketed motorist failed to operate his vehicle “in a careful and prudent manner . . . so as not to endanger the life, limb or property of any person.” Section 316.030, Florida Statutes (1975). A rear-end collision is just one such attendant circumstance. So is brake failure or a sudden cut-off of the rear-ending motorist by another vehicle. We cannot begin to canvass all of the myriad attendant circumstances which daily confront a busy traffic judge or hearing officer in cases of this nature. But none of these circumstances, standing alone, either convicts or acquits a motorist charged under the statute. It is the duty of the trier of fact to weigh and evaluate all of the attendant circumstances, not to fasten upon one circumstance to the exclusion of all others. See Read v. Frizzell, 60 So.2d 172 (Fla.1952); Padron v. State, 153 So.2d 745 (Fla. 3d DCA 1963).

In the instant case, the respondent Steele contended that under all the circumstances of the case he was not guilty of careless driving. He asserted that the rear-end collision was unavoidable because of the sudden change of lanes by the van in front of him which suddenly revealed a stopped vehicle on a very busy thoroughfare and because of subsequent brake failure. We express no view on whether the evidence herein requires the respondent’s conviction or acquittal of careless driving. Such an expression would not be in order as we are not the trier of fact. We do insist, however, that the respondent was entitled to have a fair and impartial hearing officer evaluate the entire case with an open mind based on all of the attendant circumstances.

The judge, therefore, committed reversible error in refusing to recuse himself at the request of the respondent. The circuit judge in reversing the traffic judgment herein did not depart from the essential requirements of the law.

Ill

The State argues that it was harmless error for the judge, even if he was not impartial, to sit in this case because the evidence was more than sufficient to sustain the careless driving conviction. The flaw in this contention is that any argument based on sufficiency of the evidence as a predicate for harmless error presupposes that an impartial judge evaluated the evidence at the trial level and found against the party appealing the judgment. We cannot make that supposition in this ease. Any error based on the lack of impartiality of the trier of fact constitutes a denial of due process and, accordingly, is per se reversible error. Crosby v. State, 97 So.2d 181 (Fla.1957); Rockett v. State, 262 So.2d 242 (Fla. 2d DCA 1972); Skelton v. Beall, 133 So.2d 477 (Fla. 3d DCA 1961). See Traynor, The Riddle of Harmless Error 64-65 (1970).

The refusal of the judge to recuse himself in the traffic proceeding herein constituted reversible error. The circuit court did not depart from the essential requirements of law in reversing the conviction and remanding the cause for a new trial before a different hearing officer. The petition for a writ of certiorari is, therefore, denied.


text:
    The STATE of Florida, Appellant, v. William Arthur LAMB, James Hubert Scarberry, Emery Paul Zerick, Appellees.
    No. 76-2245.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.

      Richard E. Gerstein, State Atty., and Paul M. Rashkind, Asst. State Atty., for appellant.
    Jack R. Nageley and Bernard A. Frank, Miami Beach, for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendants William Arthur Lamb, James Hubert Scarberry, Emery Paul Zerick and William Lane Dabney were charged in a six-count indictment with various offenses, including conspiracy to receive stolen property. Each defendant filed a motion to dismiss the count charging conspiracy. Following an evidentiary hearing, the trial court granted the motions of Lamb, Scar-berry and Zerick, appellees herein, and denied the motion of defendant Dabney. The State takes this interlocutory appeal, and raises as its sole point that the trial court erred in dismissing the conspiracy count as against the three defendant-appellees.

The defendants were charged under Section 777.04(3), Florida Statutes (1975), which provides that,

“Whoever shall agree, conspire, combine, or confederate with another person or persons to commit any offense commits the offense of criminal conspiracy . . ”

The nature of proof necessary in a conspiracy case is discussed in Borders v. State, 312 So.2d 247 (Fla.3d DCA 1975), in which the defense alleged that there was insufficient evidence to show that the defendant had agreed with others to commit an illegal act and that the law required proof of such agreement, not just circumstantial evidence. This court found that it was unnecessary to prove a specific conversation in which an agreement was made and that circumstantial evidence of a conspiracy is sufficient for conviction. In affirming the conspiracy conviction this court held:

“A person charged with a crime may be convicted solely on the basis of circumstantial evidence. . . . Indeed it is well recognized that the existence of a conspiracy or confederation can and will be inferred from circumstantial evidence as indicative of an overall plan.” (citations omitted) Borders v. State, supra, page 248.

In this case, the evidence in the record reflects both specific agreements among the co-conspirators, as well as circumstantial evidence of the conspiracy. The testimony presented before the trial judge shows that five City of Miami Beach police officers agreed among themselves to distribute the proceeds of money stolen by one of the officers from the scene of a burglary. For example, at the scene of the burglary, Zer-ick gave $100.00 to Officer Borchers; shortly after leaving the scene, Borchers had a discussion with Dabney about the distribution of the stolen money; Borchers also discussed the distribution of the money with Lamb and Scarberry and later at the police station with Zerick; at times separate and distinct from these conversations, Borchers distributed $25.00 each to Lamb, Scarberry and Dabney.

The applicable law of conspiracy is set out in Bass v. State, 172 So.2d 614, 617 (Fla.2d DCA 1965), as follows:

“Where an accused is charged as a principal in the commission of an unlawful act under the theory of conspiracy or confederation to commit the unlawful act, it is not essential to show an express agreement or understanding between the parties made previous to or during the commission of the unlawful act. If an accused is present, aiding and abetting in the commission of the crime, and consciously shares in the commission of the act, he thereby becomes a principal. The community of unlawful purpose, that is, the conspiracy or confederation, need not be shown by positive evidence, and the Jury may infer from all the circumstances surrounding and accompanying the act that the common purpose to commit the crime existed. It is immaterial whether the confederation resulted from a premeditated agreement to commit the act, or whether it arose on the spur of the moment, for where two or more persons conspire and confederate to commit an unlawful act, each makes the other his agent, and each is responsible for the acts committed pursuant to the common purpose.” (citations omitted)

We are of the opinion that the acts of the defendants fall within the dictates of Bass, supra, and that the trial court erred in dismissing the conspiracy count as to Lamb, Scarberry and Zerick. The evidentiary issues are for resolution by a jury.

Reversed and remanded with instructions to reinstate the charge of conspiracy.