text:
    Herbert WOLFSON, Petitioner, v. STATE of Florida, Respondent.
    No. 76-696.
    District Court of Appeal of Florida, Second District.
    April 6, 1977.
    Rehearing Denied May 5, 1977.

      Rick B. Levinson and Arnold Levine, Levine, Freedman & Hirsch, P. A., Tampa, for petitioner.
    Glen Darty, State Atty., and James G. Horrell, Asst. State Atty., Bartow, for respondent.
   McNULTY, Judge.

Herbert Wolfson seeks certiorari to review an order of the Circuit Court for Polk County, acting in its appellate capacity, which reversed an order of the county court dismissing an indictment charging petitioner with a criminal violation of the Government in the Sunshine Law. We deny the petition.

The statute under which Wolfson was charged provides as follows:

“Public meetings and records; public inspection; penalties.—
(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting.
* * * * * *
(3) Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation or any political subdivision who violates the provisions of this section by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.”
The indictment alleged that Wolfson “while serving as an elected City Commissioner of the City Commission of Lake Wales, Florida, a municipal corporation, did meet with other City Commissioners and/or City Officials and/or Staff of the City Commission of the City of Lake Wales, Florida, and where he did so meet said meeting was not open to the public at all times and at said meeting matters pertaining to City Commission business, to-wit: Employment of the City Attorney, was [sic] discussed in willful and knowing violation of Section 286.011, Florida Statutes.”

Wolfson contends that the indictment is insufficient on its face in that it failed to allege all of the necessary elements of the crime charged as set out in the statute. We disagree.

At the outset, we recognize that the prior decisions of the appellate courts of this state have construed the Florida Government in the Sunshine Law in the context of civil proceedings, i. e., in either injunction suits brought to put a halt to secret meetings of a governmental agency or in suits brought to invalidate governmental actions or resolutions taken at a nonpublic meeting. The instant case obviously presents the statute for judicial construction in the context of a criminal prosecution.

Wolfson, of course, contends that criminal statutes must be strictly construed, citing State v. Buchanan; and with this general principle of law we have no quarrel. Constitutional guarantees of due process and equal protection of law entitle an accused to no less. On the other hand, it has been said that:

“The construction of a penal statute should not be unduly technical, arbitrary, severe, artificial or narrow The words used need not be given their narrowest meaning, in complete disregard of the purpose or intent of the legislature ... In short, although criminal statutes are to be strictly construed in favor of the defendant, the courts are not authorized so to interpret them as to emasculate the statutes.”

Moreover, on the point, our supreme court declared in construing this very statute:

“We are persuaded to apply the rule that a statute enacted for the public benefit should be construed liberally in favor of the public even though it contains a penal provision. In this posture a reasonable construction should be applied giving full measure to every effort to effectuate the legislative intent.”

Similarly, in other states Sunshine Laws or public meeting laws not unlike ours have also been liberally construed for the benefit of the public.

Keeping these principles in mind, therefore, we turn now to the specific challenges made by Wolfson to the indictment herein. He argues first that, although the indictment does charge that “while serving as an elected City Commissioner of the City Commission of Lake Wales” he did meet with other city commissioners at a meeting not open to the public at all times, the indictment does not allege that he attended said nonpublic meeting as a member of the City Commission of the City of Lake Wales. This contention is sophistically semantic in nature and without merit. Reading the indictment in its entirety and giving its terms a fair and reasonable construction, Wolfson clearly is alleged to have secretly met, as a member of the City Commission, with other members of the Commission.

He next contends that the indictment is fatally defective in that it fails to state with sufficient specificity that the secret “meeting” he allegedly attended was a meeting at which “official acts” were to be taken. We disagree again.

Numerous prior cases, beginning with this court’s decision in Times Publish ing Co. v. Williams, have held that the intent of the Government in the Sunshine Law is to cover any gathering of some or all of the members of a public board at which such members discuss any matters on which foreseeable action may be taken by the board; and it is the entire decision-making process that the legislature intended to affect by the enactment of the statute. “Every step in the decision-making process, including the decision itself, is a necessary preliminary to formal action. It follows that each such step constitutes an ‘official act,’ an indispensable requisite to ‘formal action,’ within the meaning of the act.” The supreme court has adopted and applied this rule in numerous cases. For instance, as it said in Town of Palm Beach v. Gradison:

“One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions as to a point just short of ceremonial acceptance . . . The statute should be construed so as to frustrate all evasive devices. This can be accomplished only be embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.”

And although such definition of “official act” was thus employed in a civil context, we can think of no reasoning process which would compel the conclusion that it necessarily assumes a fatal vagueness when considered in a criminal context.

We are of the opinion, therefore, that the terms of the indictment, viz., “. . . and at said meeting matters pertaining to City Commission business, to-wit: Employment of the City Attorney, was [sic] discussed . . . ” were sufficient under the law to describe an “official act” which, under the “Sunshine Law,” cannot be done secretly.

In view whereof, the circuit court was correct in reversing the order of the county court which dismissed the indictment herein. Accordingly, certiorari should be, and it is hereby, denied.

Certiorari denied.

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

      . Section 286.011, Fla.Stat. (1975).

      . Id.

      . 191 So.2d 33 (Fla.1966).

      . See also Sec. 775.021(1), Fla.Stat. (1975).

      . 73 Am.Jur.2d, Statutes, § 296 at pp. 454-455.

      . City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971). See also Board of Public Instruction v. Doran, 224 So.2d 693 (Fla.1969).

        . See, e. g., Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Bagby v. School District No. 1, 186 Colo. 428, 528 P.2d 1299 (1974); 38 A.L.R.3d 1070, “Validity, Construction, and Application of Statutes Making Public Proceedings Open to the Public.”

      . 222 So.2d 470 (Fla.2d DCA1969).

      . Id. at p. 473.

      . See Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974); Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla.1973); City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971); Jones v. Tanzler, 238 So.2d 91 (Fla.1970); Board of Public Instruction v. Doran, 224 So.2d 693 (Fla.1969).

      . 296 So.2d 473, 477 (Fla.1974).


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Leon F. ADKINSON and wife Eveline D. Adkinson, Appellants, v. Anne NYBERG, Appellee.
    No. 76-1682.
    District Court of Appeal of Florida, Second District.
    April 6, 1977.

      David C. Park of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellants.
    Robert S. Edwards of Edwards, Sawyer & White, Plant City, for appellee.
   SCHEB, Judge.

Appellee, plaintiff below, is a vendor under an agreement for deed. She sought to foreclose, contending that upon default by her vendees in making required monthly payments the entire balance became due despite the fact that the agreement did not contain an acceleration clause. The trial judge agreed and entered a partial summary judgment declaring all indebtedness due and payable to the plaintiff. In this interlocutory appeal, the appellants, who were defendants below and the vendees under the agreement, seek reversal of that judgment. We agree with appellants and reverse.

The original vendees, Mr. & Mrs. Shupt-rine, entered into an “Agreement for Deed” for purchase of a house from the plaintiff and her husband in 1971. In 1972 the Shuptrines assigned their rights under that agreement to the defendants, Mr. & Mrs. Adkinson, who then took possession of the property and assumed the obligation to pay the remaining sums due under the contract.

The agreement as pertinent to this appeal stipulates as follows:

. . . And in case of failure of the [vendees] to make any of the payments or any part thereof, or to perform any of the covenants on their part hereby made and entered into, this contract shall, at the option of the [vendors], be forfeited and terminated, and the [vendees] shall forfeit all payments made by them on this contract; and such payments shall be retained by the [vendors] in full satisfaction and liquidation of all damages by them sustained, and the [vendors] shall have the right to re-enter and take possession of the premises aforesaid without being liable to any action therefor.

Additionally, the agreement provides that “the time of each payment shall be an essential part of the contract.”

Plaintiff, as surviving tenant by entirety of the agreement, brought suit to foreclose her rights thereunder. She alleged that as a result of the defendants’ default in making required monthly payments, the entire principal had become due and payable. The “Agreement for Deed” is essentially an installment contract for the sale of real estate with an agreement to convey the same by the vendors. The agreement includes a covenant by the vendees to pay $10,000 in installments of $95 per month, the payments to be credited to real estate taxes, insurance, and interest at the rate of 8V2% per annum, in that order, with the balance to apply to principal. The trial court found the defendants had defaulted in two monthly payments and entered a partial summary judgment for the plaintiff for the total unpaid principal of $9,150.76, interest to the date of the judgment in the amount of $602.90 and costs of $103.50.

As we pointed out in H & L Land Company v. Warner, 258 So.2d 293 (Fla. 2d DCA 1972), this type of contract is essentially a security instrument which takes the place of the more traditional purchase money mortgage. Being in essence a mortgage, the enforcement of this form of contract is governed by the rules applicable to mortgage foreclosures. Section 697.01, Florida Statutes; Mid-State Investment Corporation v. O’Steen, 133 So.2d 455 (Fla. 1st DCA 1961).

The contract before us contains no provision for acceleration of the indebtedness upon default in payments due thereunder. Absent such a provision, failure of a vendee to comply with a covenant does not accelerate maturity of the obligation due the vendor. 22 Fla.Jur. Mortgages Section 212 (1958). Since remedies to enforce payments due under an agreement for deed are treated differently than as agreed to in this contract, the plaintiff argues that the forfeiture provisions should be interpreted to grant a right of acceleration of the unma-tured balance due. This, says plaintiff, would provide a satisfactory substitute remedy for the right of forfeiture and reentry agreed upon by the parties. Admittedly, the plaintiff had the right to declare the contract in default when payments were not made as agreed upon. However, we reject the plaintiff’s argument that this should be treated as equivalent to the right to declare unmatured principal payments due. That provision merely gives the plaintiff the right to bring action for payments then due, or to foreclose her security interest for those amounts against the property securing the debt.

Plaintiff further argues that the foreclosure without an acceleration of the entire debt may pose difficult and even unsolvable problems in respect to rights of redemption and the foreclosure sale. We disagree. While security agreements without acceleration clauses are no longer common in modern real estate dealings, there are no insurmountable problems in foreclosure of less than total amounts of indebtedness under security agreements. The same principles applicable to a foreclosure of a mortgage of like character should prevail. Specifically, the court determines the amount of principal, interest, and costs and enters a judgment of foreclosure directing the property be sold to satisfy the amount due, the sale being subject to payment by the purchaser of the full balance to become due under the agreement for deed. See Wordinger v. Wirt, 112 Fla. 822, 151 So. 47 (1933). Of course, the vendees’ right to redeem would be protected just as in a traditional foreclosure of mortgage. Robbins v. Blanc, 105 Fla. 625, 142 So. 223 (1932).

The partial summary judgment awarded plaintiff is vacated and the cause is remanded for further proceedings consistent with this opinion. On remand the plaintiff should be allowed to amend her pleading to claim any sums then due under the agreement. Defendants should be allowed to appropriately amend their answer.

Reversed.

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


text:
    Matthew Allen MASTERS, Appellant, v. STATE of Florida, Appellee.
    No. CC-26.
    District Court of Appeal of Florida, First District.
    April 7, 1977.
    Rehearing Denied May 3, 1977.

      Ronald A. Nour, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Patti Eng-lander, Asst. Atty. Gen., for appellee.
   MASON, ERNEST E. (Retired), Associate Judge.

On the 17th day of February, 1975, the State Attorney for the Seventh Judicial Circuit of Florida filed with the Clerk of the Circuit Court of Volusia County an amended information in three counts charging the appellant (defendant below) with certain alleged drug offenses.

The first count charges that the appellant did on October 22, 1974, unlawfully possess more than five grams of cannabis. The second count charges that the appellant did on the same day unlawfully sell such cannabis. The third count charges that the appellant did on the same day unlawfully possess less than five grams of cannabis. An original information had been filed in the same court on February 7, 1975, charging the same offenses with only one difference and that was as to the site of the alleged offenses charged in counts one and two. This original information alleged the site as having been in Daytona Beach as to these two offenses while the amended information alleged the site was in Port Orange, but in the same county.

After much pre-trial skirmishing the case was tried on May 30th, 1975, before a jury, resulting in verdicts of guilty as to all three counts of the amended information as charged. Thereafter on April 23, 1975, the trial judge adjudged appellant guilty of each offense as charged and sentenced him to four years imprisonment under each of the first two counts, such sentences to run concurrently. As to count three, a misdemeanor charge, the court sentenced appellant to a term of eleven months in the county jail, to run concurrently with the sentence imposed under count one. As to counts one and two the sentences were to the' custody of the Division of Corrections.

The State in its brief has made two concessions as to errors by the trial judge. First, the State concedes that under the single transaction rule the trial judge should have sentenced appellant to only one term of imprisonment, and that the concurrent sentences must be voided and only one sentence imposed.

The other concession of error concerns the* misdemeanor charge contained in count three. The State concedes that inasmuch as appellant was not brought to trial within ninety days of his arrest he should have been discharged as to this charge, and that the conviction and sentence thereon is null and void. As to this charge we note that not only was the appellant not tried within ninety days of his arrest but no information was filed as to this charge until well after ninety days had transpired following such arrest. Appellant was arrested October 22nd, 1974.

Due to these concessions on the part of appellee our consideration of the assignments of error raised by the appellant is thereby limited to the validity of appellant’s conviction under counts one and two.

Appellant has raised several points on appeal but our study of the entire record leads us to conclude that there is no merit to any of them except the point posed by assignment number seven. This assignment is predicated upon the trial court’s re-assembling of the jury after its discharge following the publication of its verdicts as to the three counts of the information for the stated purpose of clarification of its verdict as to count one. To arrive at the proper decision by this court as to this assignment of error a brief chronological recitation of the events which transpired in the courtroom concerning the receipt and publication of the jury’s verdicts, their publication, the jury’s discharge by the court, its recall by the court for further consideration and clarification of its verdict as to count one, the jury’s retiring to the jury room for such reconsideration upon the court’s instruction and direction, the return of the jury after such reconsideration, the announcement and publication of the jury’s reconsidered verdict as to count one and the court’s polling of the jury upon its own motion after such publication.

However, before indulging in such recitation we note that the trial court’s charge to the jury before their initial retirement to consider their verdicts was very complete. Since the error alleged concerns only count one (appellant making no objection as to the published verdicts as to counts two and three) it is well that we note that as to count one the court, after properly defining the elements of the offenses of the unlawful possession and sale or delivery of marijuana, and after informing the jury that the charges contained the offense of an attempt to commit the particular crime, instructed the jury as to the alternatives presented to it concerning its decision as to this count in the following language:

“Now, the information charges within count one, unlawful possession of more than five grams of cannabis which includes as a matter of law the lesser crime of attempted possession of more than five grams of cannabis; unlawful possession of less than five grams of cannabis.”

As to each count of the information the court instructed the jury that it should return such verdict as would reflect its decision as to such count, whether of guilty or not guilty; and if guilty, then as to the degree of the offense charged with the jury found had been proven beyond a reasonable doubt. Further, the court instructed that if the verdict was guilty under one or more of the three counts, the jury should find a verdict of guilty for the highest offense charged and which had been proved beyond a reasonable doubt as to such count or counts. And that if no offense charged in a count had been proved beyond a reasonable doubt, then a verdict of not guilty as to that particular count should be returned.

The court at the conclusion of its charge handed to the jury verdict forms as to each count, instructing the jury to return as to each count the verdict form signed by its foreman which reflected the jury’s decision as to such. Whereupon the jury retired to consider its verdicts. After a few minutes the jury returned to the jury box and requested further clarification as to its duty under count two of the information. The court gave further instruction as to this count to the apparent satisfaction of the jury. Upon a second return to the jury box the jury announced its verdicts as follows: “guilty of unlawful possession of controlled substance, to-wit: cannabis, in a quantity less than five grams, as to count one . ”; “guilty as charged in the information of unlawful sale and delivery of controlled substance as to count two and “guilty as charged in the information of unlawful possession of a controlled substance, to-wit; cannabis, in the quantity of less than five grams, as to count three . .”

After reading the verdicts the court announced that they appeared to be in proper form and instructed the clerk to publish them. The clerk did so, following which the court inquired if either counsel desired that the jury be polled. Both stated that they did not. Thereupon the court discharged the jury, advising them that they could go their respective ways for the term.

As of the moment of the jury’s discharge we have this status of the case: the defendant stands guilty of the misdemeanor charge of unlawful possession of marijuana under count one, the felony charge of the unlawful sale and delivery of marijuana under count two and the misdemeanor charge of the unlawful possession of marijuana under count three of the information. But almost immediately upon the discharge of the jury the court’s attention was called to the fact that the jury had returned two verdicts of guilty as to count one which were clipped together, with the misdemean- or conviction resting on top and the felony conviction beneath it under a paper clip. Both were signed by the jury’s foreman. There was no such double conviction under the other two counts, but the court noted that the verdict forms that had been delivered to the jury were separated as to each count and thus clipped together. The court upon having his attention called to the two signed verdicts as to count one called counsel to the Bench and informed them as to what had been disclosed to him. The record is silent as to whether the jury had left the courtroom, or if so, how far they had retired when the court learned of the double verdict as to count one. It was recalled within minutes of its discharge and it is therefore evident that they had not left the courthouse. The record is silent again as to whether the individual jurors had separated before they were recalled. There is nothing in the record to indicate that any outside influence had been brought to bear upon the jury, or any member of it during the interim before its recall, or that any opportunity existed for the jury, or any member of it, to be communicated with or tampered with by any person during the very few minutes that transpired between the time of discharge and recall. Appellant’s counsel does not suggest that any such misconduct occurred. His position is simply that once the jury is discharged it cannot under any circumstance be recalled to clarify or reconsider its published verdict. Counsel does suggest that the trial court in recalling the jury to clarify its verdict by implication indicated to the jury that they had done something wrong in rendering a verdict of a lesser included offense.

After the jury returned' and took its place in the jury box the trial court informed the jurors that he had discovered the two inconsistent verdicts signed by the jury’s foreman, clipped together as aforesaid, and that he could not accept two verdicts under one count, but only one. He was very careful to inform the jury that he had no personal opinion as to which guilty verdict could be accepted and carefully re-instructed them as to the charges contained in count one and the alternatives available to the jury as to the proper verdict to be returned including a verdict of not guilty. He then returned the jury to the jury room with instructions to reconsider their verdict as to count one and to return such one verdict as agreed to by all of them. We find the trial judge’s instructions and conduct most circumspect and in no wise did he express any opinion as to what verdict was the proper one, nor did he either overtly or by implication indicate anything more than that there could not be accepted two inconsistent verdicts in the case. He stated that the whole procedure was to have the jury clarify and advise the court which verdict was in truth and fact the verdict of the jury.

The jury retired to reconsider its verdict and subsequently returned into court. Thereupon the following colloquy occurred between the court and a member of the jury:

“The Court: Have you decided on your verdict as to count one?
Juror Number One: Yes.
The Court: Will you please hand your verdict as to count one to the Bailiff?
I’m sorry, your comment to the Bailiff will have to go on the record. Will you repeat it for us, please?
Juror Number One: Your Honor, we weren’t sure how to void the one, so I put the one we wanted on the top.
The Court: I will ask you to void the one that you do not want us to use, whichever one that is. I will ask you to writ the word ‘void’ across the face of the one you do not want us to use.

Then I will ask you after doing that, to pass the voided verdict down among each of the jurors and let them review it to see if that is the one they all wanted voided.

Let the record show that that is being done at this time.

Let the record show that each of the jurors examined the voided verdict. I will ask you to return all the verdicts to the Foreman. Madam Foreman hand the Bailiff the one verdict you have reached, the one verdict you have unanimously reached.”

Thereupon, the verdict was handed to the court for examination, and the clerk was directed to publish it. The published verdict found the defendant guilty under count one of the felony charge of the unlawful possession of a controlled substance, to-wit: cannabis, in excess of five grams. It was signed by the forewoman. The court then instructed the clerk to poll the jury and upon such polling each juror announced that this published verdict was his or hers, as polled. The court upon the completion of the poll inquired of the jurors as a body if it was their intention to have voided the signed form marked “void”. Upon the jury’s response in the affirmative, the jury was discharged.

The court instructed the clerk to retain in the file the verdict which had been marked void and which had been delivered to the court by way of the bailiff, noting that the word “void” had been written in block capital letters over the forewoman’s signature, and that it was the same item that had been examined by each juror with each’s concurrence that such verdict form be voided.

This appears to be a case of first impression in that we have been unable to find any case, either from this jurisdiction or any other, where an appellate court has been called upon to pass upon the question of a trial court’s authority to recall a discharged jury for the purpose of clarifying the jury’s intent where it is discovered after such discharge that the jury returned two inconsistent verdicts. Neither counsel has presented this court with any such precedent. No rule of the Florida Rules of Criminal Procedure speaks particularly to this point. We are, of course, familiar with the general rule that once the jury has been discharged it cannot be re-impaneled to hear any matters relating to the same case. Lee v. State, (Supreme Court of Florida) 294 So.2d 305 (1974). The reason for this rule is that upon discharge the members of the jury lose their separate identity as a jury and can be affected by extra-trial influences. This was the rationale of this court’s decision in Smith v. State, 330 So.2d 59 (District Court of Appeal, First District) 1976.

But in this case less than a minute transpired before it was discovered that the jury had in fact as to count one of the information returned two inconsistent verdicts. The jury was immediately recalled and there occurred the sequence of events related herein-above. There is nothing in the record to reflect that the jury had in fact separated and gone their separate ways. On the contrary the fact that they were so readily re-assembled indicates to the contrary. As we stated above there is not any evidence that the jury had communicated with any outsider or that any outside influence was exerted upon them, or attempted.

The burden is upon the appellant to establish that any such communication with or influence upon the jury had occurred. In fact he has not even suggested any such and therefore, he has not met this burden.

We hold that under the circumstances as reflected by the record herein the jury, though discharge was spoken by the court, in fact remained an undispersed unit, within the control of the court. Furthermore, the very case upon which it had been impaneled was still under discussion by the court, without the intervention of any other business, at the time it was recalled for the purpose of clarification of its verdict. See Summers v. United States, 11 F.2d 583 (Circuit Court of Appeals, Fourth Circuit) 1926.

Certainly, under the circumstances as reflected by this record the trial court should have been permitted to clear up this inconsistency in the returned verdicts of the jury. We, therefore, hold that the verdict returned by the jury of the felony conviction upon its reconsideration was valid, and that the trial court did not err in entering judgment thereon. In sum, we affirm the judgments of conviction entered by the court below under counts one and two, but remand the case to the trial court to vacate and set aside one or the other of the concurrent sentences imposed.

We also upon such remand direct the trial court to vacate and set aside the judgment and sentence imposed under count three of the information. In all other respects the judgments are affirmed.

In closing we are impelled to note the efficacy of the trial court polling the jury after it returns a verdict and before the verdict is recorded. Had the trial court adopted such procedure it is probable that the confusion which resulted as reflected by the record herein would have been avoided. Under the rule the trial court may poll the jury on its own motion even though not requested to do so by either party.

IT IS SO ORDERED.

McCORD, Acting Chief Judge, DREW, E. HARRIS, and MASON, ERNEST E. (Retired), Associate Judges, concur.


author: PER CURIAM.

text:
    In re ESTATE of Carlos P. LAMAR, Deceased. Concepcion LAMAR, Claimant, against Estate of Decedent, Appellant, v. ESTATE of Carlos P. LAMAR, Appellee.
    Nos. 76-48 and 76-183.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.
    Malcolm Lewis Kneale, Miami, for appellant.
    High, Stack, Davis & Lazanby and Norman S. Segall, Miami, for appellee.
    Before HENDRY, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Goggin v. Stanley, 81 So.2d 728 (Fla.1955); In re Maxcy’s Estate, 178 So.2d 43 (Fla.2d DCA1965); In re Estate of Brugh, 306 So.2d 599 (Fla.2d DCA1975).


text:
    Edward GIBBS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-726.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.

      Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant, Edward Gibbs, was charged in 1976 with robbery and assault with intent to commit murder in the first degree. Gibbs pled not guilty and at the onset of the trial withdrew his not guilty plea and entered a plea of nolo contendere, specifically reserving appellate rights concerning denial of his pre-trial motion to suppress.

Defendant was sentenced on the robbery and assault charges. In addition, Gibbs was found guilty and sentenced for violation of the probation he was serving as a result of a sentence imposed on him in 1971 for committing an assault with intent to commit murder in the first degree.

By this appeal, Gibbs contends that the trial court erred in denying his motion to suppress a witness’ in-court identification of the defendant based on improper pre-trial photographs and lineup identification. Defendant also questions the denial by the court of his motion to suppress his confession on the ground that the State did not prove that it was voluntary. Gibbs finally urges that the trial court erred in revoking his probation, because initially the 1971 sentence of one year in the county jail and five years probation was illegal.

In reviewing the record, we have considered the likelihood of misidentification in light of the opportunity of the witness to view the defendant at the time of the crime, the accuracy of the witness’ prior description of the defendant, the level of certainty demonstrated by the witness at the confrontation and all other factors bearing on identification. We find that the trial court’s conclusions that the pre-trial identifications were reliable are amply supported by the record.

In considering defendant’s next contention, we find substantial competent evidence to support the trial court’s determination that defendant was advised of his constitutional rights and that thereafter, his written and oral confessions were freely and voluntarily made. Moreover, since the defendant’s convictions need not be dependent on the inculpatory statements objected to by him, he has no remedy on appeal after a plea of nolo contendere. Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976).

Defendant’s last point challenging the sentence imposed upon revocation of his probation is without merit. See State v. Jones, 327 So.2d 18, 24 (Fla.1976).

The convictions and sentences are therefore affirmed. Affirmed.


text:
    Frank D. HOUSE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-869.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was charged and convicted of robbery. He contends in this appeal that the trial court committed reversible error in refusing to instruct the jury on attempted robbery, as a lesser included offense of robbery. We find merit in appellant’s contention and reverse.

Fla.R.Crim.P. 3.510 provides:

“Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.

See State v. Terry, 336 So.2d 65 (Fla.1976); Brown v. State, 206 So.2d 377 (Fla.1963); Lightfoot v. State, 331 So.2d 388 (Fla.2d DCA 1976); Porter v. State, 301 So.2d 808 (Fla.3d DCA 1974); Hood v. State, 287 So.2d 110 (Fla.4th DCA 1973); Miles v. State, 258 So.2d 333 (Fla.3d DCA 1972).

Reversed and remanded for new trial.


text:
    Joseph L. GREENWELL, Appellant, v. BANK OF PERRINE, a Florida Corporation, Appellee.
    No. 76-987.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and John J. O’Brien, Miami, for appellant.
    Helliwell, Melrose & DeWolf and William Lance Gerlin, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Appellant, Joseph Greenwell seeks review of an order of the Circuit Court of Dade County granting appellee, Bank of Perrine, a deficiency judgment in the sum of $192,-952.46 after foreclosure against appellant, as guarantor, of an indebtedness of Allied General, Inc., a co-defendant.

Appellant urges reversal on two grounds. It is first contended that the trial court abused its discretion in granting the deficiency judgment.

It is next argued that the parties intended by the guaranties to cover personalty only and not real estate mortgages, therefore, it was error for the trial court to grant a deficiency judgment.

We have carefully considered all the points presented in the light of the record on appeal and the briefs. We have concluded therefrom that appellee was entitled to the deficiency judgment and that the trial court did not abuse its discretion in entering such judgment. No reversible error having been made to appear, the judgment appealed is affirmed.

Affirmed.


author: HUBBART, Judge. CHARLES CARROLL, Associate Judge

text:
    STATE of Florida ex rel. Marcia A. McGUIRK, Relator, v. Honorable Edward D. COWART, as Judge of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 77-90.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.

      Simons & Schlesinger, Fort Lauderdale, for relator.
    No appearance of counsel for respondent.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an original petition for a writ of prohibition seeking to prohibit medical malpractice mediation proceedings on the ground that the time within which such proceedings must be held has expired under Section 768.44(3), Florida Statutes (Supp. 1976). We issued a rule nisi directing the respondent to show cause in writing why the writ prayed for should not issue. The respondent has not filed a return. Subsequent thereto, this court in State of Florida ex rel. Mercy Hospital v. Vann, 342 So.2d 1073 (Fla.3d DCA 1977), has resolved the issues raised by the petition. Accordingly, the petition is dismissed and the writ discharged.

The issue presented for review is whether a circuit judge sitting as a judicial referee has authority to alter the ten month time period allowed for medical mediation proceedings under Section 768.44(3), Florida Statutes (Supp.1976). If not, a second issue is presented as to whether an unauthorized altering of the said ten month time limit at the request of the malpractice claimant can deprive the malpractice defendant of his right to mediation under Section 768.44, Florida Statutes (Supp.1976).

On September 24,1975, the relator filed a request for medical mediation on a malpractice claim against several doctors and a hospital under Section 768.133, Florida Statutes (1975) [now 768.44, Florida Statutes (Supp.1976)]. The respondent circuit judge is the judicial referee of the three person medical mediation panel before whom the relator’s claim fell. The relator thereupon challenged the constitutionality of the aforesaid statute and sought to have the claim transferred to the circuit court.

On December 22, 1975, the circuit judge granted the relator’s motion, dismissed the claim on the ground that the statute in question was unconstitutional and transferred the cause to the circuit court. Later he took under advisement a motion by the relator to reinstate and abate the claim as a medical mediation matter pending a decision on the constitutionality of the aforesaid statute in a case presently pending before the Supreme Court of Florida. Thereafter, the respondent entered an order on motion of the relator reinstating the medical mediation claim when the Supreme Court of Florida upheld the constitutionality of the aforesaid medical mediation statute. Carter v. Sparkman, 335 So.2d 802 (Fla.1976).

Although requesting all the orders transferring and reinstating her medical mediation claim which delayed the progress of the mediation proceedings, the relator now claims that the ten month time limit for a final hearing on the claims established by Section 768.44(3), Florida Statutes (Supp.1976), has expired and the respondent has lost jurisdiction to proceed. We disagree.

Section 768.44 et seq. Florida Statutes (Supp.1976), sets up a statutory mediation proceeding for all medical malpractice claims as a prerequisite to the filing of a medical malpractice suit in the courts of this state. The Supreme Court of Florida has upheld the constitutionality of this legislative scheme “[e]ven though the pre-litigation burden cast upon the claimant reaches the outer limits of constitutional tolerance . . . .” Carter v. Sparkman, 335 So.2d 802, 806 (Fla.1976).

In an effort to mitigate the plaintiffs pre-litigation burden, the statute specifically limits the time within which the medical mediation panel may hold a hearing on the claim. Section 768.44(3), Florida Statutes (Supp.1976), requires that such a hearing “shall be held within 120 days of the date the [malpractice] claim was filed with the clerk . . . .” The judicial referee is given the authority to extend the hearing date upon good cause, but such extension “shall not exceed 6 months from the date the claim is filed.” Finally, “[i]f no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.”

This court in State of Florida ex rel. Mercy Hospital v. Vann, 342 So.2d 1073 (Fla.3d DCA 1977), held that a circuit judge sitting as a judicial referee on a medical mediation panel has no authority to stay or alter the ten month time limit allowed for medical mediation under Section 768.44(3), Florida Statutes (Supp.1976). The time limits of the statute are.binding on the circuit judge and must be rigorously enforced. Nevertheless, the court went on to hold that since the circuit judge entered the unauthorized order staying the proceedings at the request of the medical claimant until the Supreme Court of Florida ruled on the constitutionality of the aforementioned medical mediation act and the statutory time thereafter expired, the medical defendant could not be deprived of his right to medical mediation. Consequently, under those circumstances there still adhered to the mediation panel the period of time which remained on the ten month period at the time the unauthorized order was entered.

We have extremely similar facts in the case at bar. The circuit judge at the request of the medical claimant has declared the Medical Malpractice Reform Act unconstitutional, dismissed the medical claim and transferred the cause to the circuit court. Thereafter, the circuit judge took under advisement a motion by the claimant to reinstate the medical claim and abate the mediation proceedings pending the Supreme Court’s ruling on the constitutionality of the aforementioned medical mediation act. After the Supreme Court of Florida had upheld the constitutionality of the Act, the circuit judge at the request of the medical claimant reinstated the claim before the mediation panel.

We hold that the circuit judge’s order dismissing the medical malpractice claim and transferring the cause to the circuit court was unauthorized and void. The Medical Malpractice Reform Act was in fact constitutional and proceedings thereunder should have gone forward. But since the claimant asked for such an unauthorized order which resulted in the subsequent expiration of the statutory ten month period, we believe that the medical defendants should not thereby be deprived of their right to mediation. We therefore hold that there still adheres to the mediation panel the time which remained on the ten month statutory period at the time the unauthorized order was entered.

Since the circuit judge in this case and in the Mercy Hospital case entered their stay or transfer orders under the peculiar circumstances of awaiting a Florida Supreme Court decision on the constitutionality of the Medical Malpractice Reform Act, it is clear that these or similar circumstances will never again occur. The ten month statutory limit for holding medical malpractice mediation hearings is clear and unequivocal. It should be rigidly enforced so as to mitigate the plaintiff’s pre-litigation burden imposed by the Act.

The petition for a writ of prohibition is dismissed and the writ discharged.

CHARLES CARROLL, Associate Judge

(dissenting).

I respectfully dissent.

Section 768.44(3) Florida Statutes 1976 Supp. provides: “If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall’ terminate, and the parties may proceed in accordance with law”.

In this case, when the hearing panel, for whatever ill-advised reason, failed to hold a hearing on the merits of the claim within 10 months from the date of the filing of the claim’, the panel’s jurisdiction in the matter was .terminated.

Now more than eighteen months has elapsed since the filing of the claim, with no hearing having been held on the merits. Under the express wording of the provision of the statute quoted above, the panel is without jurisdiction to now proceed to hold a hearing on the merits, and a writ of prohibition should issue.

The claim was filed on September 24, 1975. Under the statute the hearing thereon should have been held within 120 days. One month prior to the expiration of that period the presiding member of the hearing panel entered a written order in the mediation proceeding, in effect terminating the mediation proceedings and relegating the parties to have the matter determined by an action at law, basing such order on the ground or conclusion that the-enabling mediation statute was unconstitutional. The panel was an administrative body. In making a decision, on holding a hearing on the merits of the claim, the panel would be exercising discretion. The duty of the panel to proceed to hold a hearing as directed in this statute was ministerial. It was, of course, improper for the panel to question the validity of the statute which had prescribed their ministerial duties. Franklin County v. State, 24 Fla. 55, 3 So. 471 (1888); State ex rel. Atlantic Coast Line R. Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681, 683 (1922); State ex rel. Howarth v. Jordan, 105 Fla. 322, 140 So. 908 (1932); White v. Crandon, 116 Fla. 162, 156 So. 303, 305 (1934); Steele v. Freel, 157 Fla. 223, 25 So.2d 501 (1946); 21 Fla.Jur. Mandamus, § 42.

Six months later on June 21, 1976, in the common law action to which the matter had been transferred, an order was entered reinstating the medical mediation claim and directing that the matter should thus proceed. At that time there was still a month remaining before 10 months would elapse from the date of the filing of the claim. However, the stay of the proceedings by the panel continued beyond the 10 month limitation period because of uncertainty of the panel as to the validity of the statute and waiting for a determinative decision by a court on its validity.

In a substantially similar case recently decided by this court, State ex rel. Mercy Hospital v. Vann, 342 So.2d 1073 (Fla.3d DCA 1977), the presiding member of a Mediation Panel- stayed the proceedings beyond the 10 month jurisdictional period, upon questioning jurisdiction to proceed, at a time when the validity of the statute was under consideration in the Supreme Court in Carter v. Sparkman, 335 So.2d 802 (Fla.1976). In the latter the validity of the statute was upheld by an opinion and judgment of the Supreme Court filed May 5, 1976, which became final on denial of petition for rehearing on August 3, 1976.

In the Mercy Hospital case this court announced there was no authority for the Mediation Panel to stay or alter the time allowed for the hearing and that the time limitations in the statute are binding and must be rigorously enforced. Similarly, in the instant case the majority opinion states that the time limits of the statute are binding and must be rigorously enforced. However, in apparent contravention of those pronouncements the court in Mercy Hospital and the majority in this case have held that the panel has jurisdiction to hold merit hearings in the mediation proceedings after the period to which the jurisdiction therefor was expressly limited by the statute, where, in each instance, the failure of the panel to hold a hearing within the time allowed by the statute was because of unauthorized orders of the presiding members of the Mediation Panels which precluded or"stayed the holding of a merit hearing until the jurisdiction period therefor had elapsed. In my view', to so hold is not logical, and amounts to conferring jurisdiction where none exists.

In these mediation proceedings the parties have an interest in the prompt disposition thereof, within the periods prescribed in the statute. The defendant has that interest, in order to gain the benefits of the proceedings, as was intended by the enactment. The claimant has such an interest, in order that he may not be unduly delayed from his access to the court. In Carter v. Sparkman, supra, the Supreme Court, balancing the public policy served by the mediation proceeding against the burden of effort and delay imposed upon the claimant occasioned by such pre-litigation administrative proceeding, upheld the statute as not being a violation of the constitutional right to access to the courts, but the Court noted “the pre-litigation burden cast upon the claimant reaches the outer limits of constitutional tolerance”. It is questionable whether the validity of the statute would have been upheld if it had been understood that the jurisdictional limit of time for such a pre-litigation proceeding was not 10 months, as provided for in the statute, but could be considered to be extended for months or even a year or more, by improper action or delay of the panel.

In this case and in Mercy Hospital the matter is treated as though the delays beyond the jurisdictional period for the hearings operated either to toll or extend the jurisdiction time beyond the 10 month limit.

With those theories I am unable to agree. The statute is clear. If no hearing on the merits is held within 10 months of the filing of the claim the jurisdiction therefor is terminated. But the parties were not without remedy or the procedures necessary to compel the panel to hold a hearing on the merits as and within the time directed and permitted by the statute. For example, when the presiding member of the hearing panel in this case entered an order terminating the mediation proceedings on the ground or view that the statute was unconstitutional, either of the parties could have compelled the panel to proceed to hearing within the 10 months allowed by statute, by petition for certiorari to this court, or by seeking a writ of mandamus from the circuit court or from this court. In each of the cases there was time remaining in which the parties could have done so. Had such corrective procedures been undertaken, and if the jurisdictionally allotted time was running short, the essential relief could have been obtained in such review proceedings by a constitutional writ in aid thereof as the necessities of the situation might require. Article V, Sections 4(b)(3) and 5(b), Florida Constitution.

, After the 10 month jurisdictional period elapsed without a hearing on the merits, the claimant was entitled to prosecute his claim by court action. When the defendant in the mediation proceeding sat by without taking the procedural steps available to compel the panel to act before the jurisdictional time expired, such defendant is without legal basis to ask that the jurisdictional time limit of the statute be disregarded. Finally, I am unable to agree that the unlikelihood that in the future another Mediation Panel will similarly improperly fail to perform its duty to hold a hearing within the fixed time limit, furnishes any ground or basis to hold there is jurisdiction to proceed in this case where, by an express provision of the enabling statute, the jurisdiction therefor has terminated.


text:
    EQUIBANK, N.A., a National Banking Association, Appellant, v. S. Perry PENLAND et ux., Appellees.
    No. Y-190.
    District Court of Appeal of Florida, First District.
    April 13, 1977.
    Williams S. Cross, of Graham, Hodge, Swan & Larson, Fort Lauderdale, for appellant.
    Walter C. Shea, Jacksonville, for appel-lees.
   PER CURIAM.

Equibank (appellant-plaintiff) appeals a final judgment granting judgment on the pleadings. We reverse.

Suit was instituted by Equibank seeking foreclosure of a mortgage against the Pen-lands (appellees) and others. Penland, et ux., in their answer, alleged lack of consideration, consent, ratification, and estoppel. Equibank did not reply to the foregoing affirmative defenses. The trial court granted Penlands’ motion for judgment on the pleadings, citing American Salvage and Jobbing Co., Inc. v. Salomon, 295 So.2d 710 (Fla.3rd DCA 1974).

The subject answer did not require a reply merely to deny the allegations of the defense. Allegations as to which no responsive pleadings is required shall be taken as denied. Fla.R.Civ.P. 1.110(a) Moore Meats, Inc. v. Strawn, In & For Seminole Cty., 313 So.2d 660 (Fla.1975).

The Penlands’ cross-assignment of error challenging the trial court’s order denying their motion to quash service of process is without merit.

Reversed and remanded.

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


author: OTT, Judge:

text:
    Geraldine LINGO, Appellant, v. STATE of Florida, Appellee.
    No. 76-914.
    District Court of Appeal of Florida, Second District.
    April 13, 1977.

      Jack 0. Johnson, Public Defender, and Greg A. Johnson, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge:

Appellant was convicted of aggravated battery in violation of Section 784.045(1)(b), Florida Statutes. The appellant was incarcerated for 81 days while awaiting sentencing. The court below held that Section 775.087(2), Florida Statutes, which provides in relevant part that:

Any person who is convicted of . aggravated battery . . . and who had in his possession a “firearm” . shall be sentenced to a minimum term of imprisonment of three calendar years. . . .

precluded crediting the time served. We affirm the judgment but reverse on this ground and remand for the resentencing of appellant reflecting a credit for time served.

Section 921.161(1), Florida Statutes provides as follows:

(1) A sentence of imprisonment shall not begin to run before the date is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified time and shall be provided for in the sentence.

Hollingshead v. State, 292 So.2d 617 (Fla.1st DCA 1974) held that “[ajllowance of credit for time served in jail prior to sentencing is now mandatory.” See Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975); Grine v. State, 301 So.2d 122 (Fla.2d DCA 1974). Cf., Deaver v. State, 326 So.2d 222 (Fla.2d DCA 1976); Williams v. State, 310 So.2d 53 (Fla.2d DCA 1975).

When read together, Section 921.161 and Section 775.087, Florida Statutes support the conclusion herein.

We have considered the other assignments of error but find they fail to have any merit.

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


text:
    Richard L. WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 76-961.
    District Court of Appeal of Florida, Second District.
    April 13, 1977.

      Robert A. Farrance of Kearney & Mu-lock, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant contends the trial court erred in revoking his probation based upon hearsay testimony and his own out of court admissions. We disagree and affirm.

Appellant was charged with making a lewd, lascivious or indecent assault upon a minor child. He pled nolo contendere and was placed on probation for three years on December 21, 1973. He moved to Bexar County, Texas, where he was placed under supervision of local probation authorities effective February 20, 1975. In April 1976, his Texas probation officer forwarded an affidavit to the probation authorities in Manatee County, Florida, alleging a violation of probation based on appellant’s failure to file reports for the months of March, May, June, July, August and September 1975, and January and February of 1976. On this basis the Manatee County probation officer signed an affidavit and the court issued a warrant of violation.

At a hearing on revocation of appellant’s probation, the Texas probation officer’s affidavit was admitted into evidence over appellant’s objection. Additionally, the court received testimony from the Manatee County probation officer who stated that she had reviewed the alleged violations with appellant and that he had admitted the Texas report was correct. Appellant testified in his own behalf, claiming there was some confusion about requirements for filing the reports since he had more than one probation officer. He also claimed he had been permitted to file late reports. The trial court found appellant had committed the violation, revoked probation and sentenced him to prison for fourteen months.

The condition of probation violated required appellant to make a full and truthful report to his probation supervisor not later than the fifth day of each month. This condition is common to almost every probation. See Section 948.03, Florida Statutes.

Under due process of law, the appellant was entitled to a hearing on the issue of whether his probation was to be revoked. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). However, the volume of appeals from revocations indicates the need for us to restate some of the basic evidentiary standards to be observed in these hearings.

A revocation hearing must afford a probationer a fair opportunity to be heard on the question of whether he has violated the terms of his probation. Bowen v. State, 229 So.2d 272 (Fla.2d DCA 1969). The proceedings may be conducted by the court on a relatively informal basis and need not follow the requirements of a criminal trial. Ibey v. State, 308 So.2d 565 (Fla.2d DCA 1975). The trial judge is not required to follow the strict rules of evidence and may consider such affidavits and other documents as are relevant, even though such evidence may not be admissible in a criminal trial. The court must be satisfied from the greater weight of the evidence that a substantial violation of probation has occurred. Singletary v. State, 290 So.2d 116 (Fla.4th DCA 1974). Florida courts have held that while hearsay is admissible in revocation proceedings, a defendant’s probation cannot be revoked solely on the basis of hearsay evidence. White v. State, 301 So.2d 464 (Fla.4th DCA 1974); Brown v. State, 338 So.2d 573 (Fla.2d DCA 1976); Tuff v. State, 338 So.2d 1335 (Fla.2d DCA 1976); Couch v. State, 341 So.2d 285 (Fla.2d DCA 1977) opinion filed January 19, 1977. Some of the more significant constitutional issues in respect to admissibility of evidence have been clarified by recent decisions of the Florida Supreme Court.

Once the affidavit from the Texas probation supervisor was corroborated by appellant’s own admissions, there was a sufficient evidentiary basis for the trial judge to conclude, as he did, that appellant had substantially violated his probation. Although we said in McNeely v. State, 186 So.2d 520 (Fla.2d DCA 1966), that some evidence beyond the defendant’s admission should be introduced to justify revocation, we think the probation supervisor’s affidavit was sufficient to meet that requirement.

Finally, having noted a significant decrease in the number of persons placed on probation in the recent past, we have emphasized the informal character of revocation hearings. Trial judges who grant defendants “judicial grace” by placing them on probation should not be faced with a second criminal trial on the issue of whether a defendant has violated the conditions of that probation. Otherwise, we fear the trial courts may hesitate to utilize probation, where appropriate, as a viable alternative to incarceration.

Affirmed.

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

      . See, e. g., Croteau v. State, 334 So.2d 577 (Fla.1976), in which the Supreme Court held that evidence obtained in violation of the Fourth Amendment may be admissible in a revocation hearing even though it must be excluded from a criminal trial; and State v. Heath, 343 So.2d 13 (Fla.1977), opinion filed February 10, 1977, in which the court held that by accepting the terms of probation a probationer waives his Fifth Amendment privilege against self-incrimination with regard to providing necessary information to his supervisor concerning his living and working conditions and activities.

      . See Department of Offender Rehabilitation, PRELIMINARY OVERVIEW of WORKLOAD UNIT TASK FORCE REPORT (October 18, 1976), P. 2:
      In recent years there has been an increasing use of incarceration as a punishment alternative.
      * * * * * *
      For practically all offenses there has been a significant increase in the number of new admissions to prison. At the same time, there has been a significant decrease in the number of persons placed on probation for the same offenses.
      The change in probation rate for 1975 alone, resulted in additional 2,246 inmates. This will cost the state approximately 60 mfllion dollars in fixed capital outlay and operating costs.


text:
    Howard E. DONALD, Appellant, v. STATE of Florida, Appellee.
    No. 76-1044.
    District Court of Appeal of Florida, Second District.
    April 13, 1977.
    Jack O. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, Howard E. Donald, was charged by information with carrying a concealed firearm in violation of Section 790.01, Florida Statutes. After a jury trial appellant was found guilty as charged.

The critical question for our determination on this appeal is whether the purely circumstantial evidence introduced by the state was sufficient to establish that appellant had carried a pistol “in such a manner as to conceal said firearm from the ordinary sight of another person,” as required by the concealed firearm statute. Section 790.001(2), Florida Statutes (1973) (emphasis added). Proof of concealment is an essential element of the crime which must be proven beyond a reasonable doubt. Sutton v. State, 327 So.2d 234 (Fla. 1st DCA 1976). When circumstantial evidence is relied on to prove an essential element of the crime it must be of a conclusive nature and inconsistent with any other reasonable hypothesis but that of guilt. Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958); see Hall v. State, 303 So.2d 428 (Fla. 2d DCA 1974).

The arresting officer testified at trial that pursuant to investigation of a complaint that an intoxicated man was firing a pistol he concealed himself near the building where the man was alleged to be. As appellant came out of the building he headed away from the officer. Although appellant had been seen briefly from the front as he emerged from the building, it was impossible to tell if he was in possession of a gun due to the darkness and interference from objects in the immediate area. The officer approached appellant from the rear and ordered him to stop. In the course of the “pat down” the officer felt a pistol lodged in the belt on the front side of appellant. The officer stated that he could feel part of a pistol butt which protruded from appellant’s pants, but he could not say whether appellant’s shirttail would have obscured sight of the pistol if he had viewed appellant from the front. Neither that officer nor any other witness had clearly seen appellant from the front prior to the removal of the weapon. While the arresting officer is to be highly commended for his fair and impartial testimony, we conclude that the evidence presented was not inconsistent with a reasonable hypothesis of innocence and did not conclusively prove that appellant was guilty.

For these reasons we are compelled to reverse the judgment and sentence of the trial court and remand with directions to the trial court to enter an order discharging appellant.

REVERSED and REMANDED with directions.

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


author: HOBSON, Judge.

text:
    CITY OF TAMPA, Petitioner, v. PUBLIC EMPLOYEE RELATIONS COMMISSION et al., Respondents.
    No. 76-1450.
    District Court of Appeal of Florida, Second District.
    April 13, 1977.
    Lucius M. Dyal, Jr. of Shackleford, Farri- or, Stallings & Evans, Tampa, for petitioner.
    Jane Rigler, Tallahassee, for respondent Public Employee Relations Commission.
    Donald D. Slesnick, II, Miami, for respondent Hillsborough County Police Benevolent Association.
   HOBSON, Judge.

In this petition for writ of certiorari the main issue raised is whether PERC erred in determining that the sergeants of the Tampa Police Department are not “managerial” employees as defined in Fla.Stat. § 447.-203(4) as amended in 1976. Respondent PERC asserts that it has not reviewed the managerial status of such sergeants and therefore this court lacks jurisdiction to entertain this petition.

Upon review of the record in this cause, and more particularly the supplemental record containing the order of PERC of December 28, 1976, it is clear that PERC has not made a determination of the managerial status of the sergeants of the Tampa Police Department under Fla.Stat. § 447.-203(4).

Therefore, the petition for certiorari is denied and the cause remanded.

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


text:
    OCHOPEE LP GAS COMPANY et al., Petitioners, v. EVANS GAS, INCORPORATED, et al., Respondents.
    No. 76-1936.
    District Court of Appeal of Florida, Second District.
    April 13, 1977.
    Charles R. Holley, Naples, for petitioners.
    Richard D. Sparkman, of Sparkman & Hamilton, Naples, for respondents.
   PER CURIAM.

Petitioners seek certiorari to vacate the order of the lower court staying trial on their complaint pending disposition of a federal administrative action concerning regulatory violations upon which their complaint is based.

Common law certiorari is, of course, a discretionary writ which will not issue absent a departure by the lower tribunal from the essential requirements of law resulting in irreparable injury. Notwithstanding that petitioners here may well have demonstrated error on the part of the trial court in staying the cause, they have failed to demonstrate that such error rose to the dignity of a departure from essential legal requirements, or that irrevocable injury will result.

In view whereof, the petition for certiora-ri should be, and it is hereby, denied.

McNULTY, A. C. J., and SCHEB and OTT, JJ., concur.


author: McCORD, Acting Chief Judge.

text:
    William B. MILLS, as Trustee under the Last Will and Testament and Codicils thereto of Alfred I. duPont, Deceased, Appellants, v. Edward BALL et al., Appellees.
    No. DD-241.
    District Court of Appeal of Florida, First District.
    April 15, 1977.

      Arthur W. Milam, John H. Wilbur and Christine Rieger Milton, of Milam & Wilbur, Jacksonville, for appellant.
    William L. Durden and Fred H. Kent, of Kent, Sears, Durden & Kent, Jacksonville, for appellees Ball, Belin, Coldewey, Thornton, and Bank.
    E. Earle Zehmer, of Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, for appellee Dent.
    John J. Schickel, Asst. State Atty., for appellee Austin.
    Claude Ogilvie, Jacksonville, for appellee The Nemours Foundation.
   McCORD, Acting Chief Judge.

This is an interlocutory appeal from an order denying appellant’s motion to dismiss. We affirm denial of the motion to dismiss but reverse as to certain rulings of the trial judge contained therein.

This action originally began on August 6, 1971, with the filing on behalf of the trustees under the Last Will and Testament and Codicils thereto of Alfred I. duPont and the Nemours Foundation of a “Petition to Construe Will and to Instruct Trustees.” The original petition stated that the suit was filed for the purpose of obtaining a declaratory judgment as to the intent and purpose of the late Alfred I. duPont as to certain matters pertaining to the trust established by the Will. On January 3, 1972, the trial court filed its final judgment dated December 31, 1971, finding (1) that the action was brought under the provisions of the Trust Accounting Law (Ch. 737, Florida Statutes), the Declaratory Judgment Act (Ch. 86, Florida Statutes) and the Florida Charitable Trust Act of 1971 (Ch. 71-256, Laws of Florida); and (2) that the petitioners were the trustees under the trust created by the Last Will and Testament and Codicils thereto of Alfred I. duPont. The court also included the following constructions and directions to the trustees: (1) that the Last Will and Testament and Codicils thereto require the trustees to establish, maintain, and operate a charitable institution, and that a hospital be constructed and maintained as the primary and dominant purpose of that institution; (2) the intention of the testator is that the entire estate of Nemours be used for hospital purposes; and (3) “13. The petitioners may make application for further definition or instructions to implement the construction and instructions contained herein.” (Emphasis supplied.)

On June 15, 1976, all of the trustees named in the original petition, except William B. Mills, filed in this cause a “Petition for Further Definition, and for Instructions to Implement Instructions contained in the court’s final judgment.” Mills did not agree with the position of the other trustees and he was realigned as a party defendant. The Nemours Foundation did not join in the filing of the supplemental petition so it too was realigned as a party defendant. Predicated upon the petition, the trial court entered an ex parte order stating that the allegations of the petition were sufficient under § 86.061, Fla.Stat. (1975), to establish a prima facie case of jurisdiction and directing petitioners to serve (as they did) a copy of the supplemental petition on each of the defendants. Thereafter, appellant Mills filed a Motion to Dismiss the petition and has brought this appeal from the trial court’s order denying the motion.

One of appellant’s primary contentions is that this action was improperly filed as a continuation of the prior proceeding; rather, it should have been filed as a new proceeding. The trial court ruled otherwise and we agree with such ruling.

In support of his contention, appellant points to § 737.205, Fla.Stat. (1975), which became effective January 1, 1976, and is a part of the Trust Administration Law. It states as follows:

“Proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Rules of Civil Procedure.”

Appellant also points to § 737.201(2), Fla. Stat. (1975), which provides in part as follows: '

“Neither registration of a trust nor a proceeding under this section results in continuing supervisory proceedings.”

However, as found by the trial judge in his order, the petition filed by the trustees (all except Mills) “is a petition for supplemental relief based on a declaratory judgment heretofore entered herein and that as such it is filed in accordance with the provisions and permission granted in § 86.061 of the Florida Declaratory Judgments Act.”

The trial' court further concluded:

“ . . . [T]hat as permitted by the provisions of section 86.101, that the petition appropriately seeks to obtain relief from insecurity and uncertainty with respect to the rights, status and legal relations of the petitioners as trustees of the Alfred I. duPont Testamentary Trust.”

§ 86.061, Fla.Stat. (1975), provides as follows:

“Supplemental relief. — Further relief based on a declaratory judgment may be granted when necessary or proper. The application therefor shall be by motion to the court having jurisdiction to grant relief. If the application is sufficient, the court shall require any adverse party whose rights have been adjudicated by the declaratory judgment to show cause on reasonable notice, why further relief should not be granted forthwith.”

It should be further noted that § 86.111, Fla.Stat. (1975), provides in part that:

“The existence of another adequate remedy does not preclude a judgment for declaratory relief.”

See also, Jacksonville Expressway Auth. v. Duval County, 189 So.2d 837 (Fla. 1 DCA 1966).

Appellees filed their petition for supplemental relief pursuant to the final judgment dated December 31,1971, in which the trial court specifically said:

“The Petitioners may make application for further definition or instructions to implement the construction and instructions contained herein.”

While this proceeding could have been brought as a new action, petitioners had the option to bring it as an application for supplemental relief under § 86.061, Fla. Stat. (1975).

Appellant further contended in his motion to dismiss that the petition fails to state a cause of action because it is an improper attempt to modify the trust in that it purports to change the conditions of the trust and modify the powers given to the trustees, contrary to the explicit instructions of the testator; that the court has no power or jurisdiction to grant the relief requested by the petitioner; and that the court has no power or jurisdiction to grant any relief to petitioners J. C. Belin, T. S. Coldewey, Alfred duPont Dent, and W. L. Thornton, as they are not duly elected and authorized trustees under the terms of the Will and therefore have no standing to be heard by the court. Appellant thus grounded his motion to dismiss in part upon his contentions relating to the merits of the controversy. Because of this, the trial court evidently considered it necessary that he rule upon appellant’s contention as to the merits in disposing of the motion to dismiss and he ruled against appellant. Appellant contended below and contends here that he was not prepared at the hearing on his motion to dismiss to present his case on the merits.

Unlike other actions, a motion to dismiss a petition for declaratory judgment does not go to the merits but goes only to the question of whether or not the plaintiff is entitled to a declaration of rights — not to whether or not he is entitled to a declaration in his favor. See Rosenhouse v. 1950 Spring Term Grand Jury, 56 So.2d 445 (Fla.1952); and Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass’n Inc., 210 So.2d 750 (Fla. 4 DCA 1968). In spite of the fact that appellant, in his motion to dismiss, raised an issue on the merits, a ruling by the trial court on the merits at that time was premature. A ruling on the merits should not be made until after final hearing where the parties have full opportunity to present evidence in support of their respective positions.

We have considered the remaining questions raised by appellant and find them to be without merit. The order of the trial court is affirmed only insofar as it denies the motion to dismiss and is reversed as to the rulings on the merits contained therein. Said order is therefore quashed, and the cause is remanded for entry of a new order denying the motion to dismiss without ruling at this time upon the merits of the cause.

MILLS and ERVIN, JJ., concur.


author: DAUKSCH, Judge. MAGER, Chief Judge,

text:
    In re ADOPTION OF Wendy Dee PETERSON.
    No. 76-1400.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Rehearing Denied May 5, 1977.

      C. Lavon Ward, Fort Lauderdale, for appellants.
    Gary L. Self, Pompano Beach, for appel-lee.
   DAUKSCH, Judge.

The matter concerns adoption and custody of a 4V2 year old girl, who has resided with her maternal grandparents since the death of her mother when the child was less than 2. years old. Her father, Leonard Peterson the Appellee, consented to a custody order being entered in favor of Earl and Mildred Rogge,- the grandparents-Appellants in 1974.

In the action below the grandparents sought to adopt the child and sever the rights of the father to the child. The father countered with a petition to change the custody of the child from the grandparents to himself. The court denied the adoption and granted the change of custody-

We have considered the testimony of record, the adverse recommendation of the Division of Family Services, and the specific findings of the trial court as contained in the transcript of testimony and cannot find such a gross abuse of' discretion as would warrant a reversal of the learned trial judge who had the opportunity to judge the witnesses in live testimony before him and in whom such a grave responsibility first lies. In re: Gossett, 277 So.2d 832 (Fla. 1st DCA 1973).

AFFIRMED.

ALDERMAN, J., concurs.

MAGER, C. J., dissents, with opinion.

MAGER, Chief Judge,

dissenting:

With all due respect to the majority and the learned trial judge I must respectfully dissent from that portion of the proposed opinion transferring custody from the maternal grandparents to the natural father.

To the extent that the majority opinion affirms the trial court’s denial of the grandparents’ petition for adoption thereby recognizing the parental rights of the natural father, it is analogous to and consistent with In re Adoption of Gossett, 277 So.2d 832 (Fla. 1st DCA 1973). It is at this point that the analogy ends. In my opinion, the legal standards by which the trial court’s judgment must be measured are those which are concerned with a modification of custody.

It is a general principle of law that, absent the existence of a substantial change in conditions, an original award of custody may not be altered. Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1968); Nicholson v. Nicholson, 311 So.2d 676 (Fla. 4th DCA 1975); see also Klein v. Klein, 204 So.2d 239 (Fla. 3d DCA 1967). Although it is true, as the majority points out, that the father originally consented to the initial custody award to the grandparents primarily because of the nature of his employment (which necessitated a great deal of travel and absence from and attention to the child) nevertheless the father’s petition for change of custody and the evidence in support thereof does not demonstrate the requisite “substantial” change in circumstances or conditions for custody to be modified.

The father’s remarriage (a- circumstance recognizably not in existence at the time of the original custody award) and his desire to provide a home for his child is indeed laudatory and commendable. But it would seem that the “substantial change in circumstances” principle is not one that can be mathematically determined solely by the “quantum” of change; rather there must be a concomitant consideration of whether the welfare of the child will be promoted by an alteration of custody.

In this regard, the recommendations of the Division of Family Services recognizing the fitness of the maternal grandparents and finding that the best interests of the child would be better served by custody remaining in the grandparents are persuasive support for the conclusion that whatever “change” occurred was either far from “substantial” or insufficient to promote the child’s welfare. It might be well to note that the Division went as far to recommend that the adoption by the grandparents would be in the best interests of the child.

Admittedly, it is impossible for any appellate judge to assess the factual circumstances from the same vantage point as that of the trial judge who has viewed the participants and heard the evidence “live” and firsthand. Relegated, therefore, to a posture of having to rely upon the “cold-typed transcript” method of review it is my opinion that a substantial change in circumstances that would necessarily further the best interests of the child has not been demonstrated. Albeit well intentioned, an abuse of discretion occurred in the lower court’s change of custody award.

Therefore, I would reverse and remand for such other future proceedings including, should the circumstances later dictate, a petition for modification of custody by the natural father.


text:
    Gloria C. ADAMS, Appellant, v. Victor M. ADAMS, Appellee.
    No. 76-542.
    District Court of Appeal of Florida, Second District.
    April 15, 1977.
    Joseph L. Cardozo, of Jones & Cardozo, Sarasota, for appellant.
    Earl Cox, Bradenton, for appellee.
   PER CURIAM.

Appellant/wife contends that she may be required to wait indefinitely until appel-lee/husband finishes his schooling before she may seek a determination on her claim for permanent alimony. The final judgment in referring to wife’s claim for alimony states that “Said issue shall be reconsidered by the Court after six (6) months from the date of this Final Judgment, after Husband completes his education.” We construe this language of the judgment to authorize the wife to seek permanent alimony after six months from entry of the judgment, whether or not the husband has completed his schooling.

The judgment as so construed is hereby affirmed.

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


author: OTT, Judge.

text:
    Tim Thomas BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 76-975.
    District Court of Appeal of Florida, Second District.
    April 15, 1977.
    William C. Gregg, III, Clearwater, and Carleton L. Weidemeyer of Wightman, Rowe, Weidemeyer, Jones & Turnbull, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

The appellant was convicted of a violation of Section 800.04, Florida Statutes— specifically a lewd and lascivious act in the presence of a child under the age of 14 years.

The first witness for the state was the police officer who received the complaint of the crime from the mother of the victim. The second witness for the state was the mother of the victim. Over objection, both of these witnesses were permitted to give testimony we find was inadmissible and constituted reversible error. It is, therefore, unnecessary to treat the other assignments of error.

We first address our attention to the testimony of the police officer. After the normal preliminaries the police officer properly testified that the mother of the victim came to police headquarters to report the incident. There then followed this question:

Q. Did [the mother] tell you what happened?

Objection was promptly made but was overruled. The prosecuting attorney then pursued the matter with the following question;

Q. What did she say to you?

After some appropriate comments — not directly responsive to this question — concerning the arrival of the mother at the police station, the personnel present, his own availability and his invitation to the mother to come into his office for the interview, he continued with the following:

A. She stated that her daughter had related to her .

This was promptly interrupted by further objection by counsel for the appellant. A colloquy occurred at the bench which resulted in the following ruling by the trial judge:

While I think this embodies some of the characteristics of hearsay, I see no prejudice inasmuch as the mother will be here, inasmuch as the State’s case is based in a most entire measure upon the testimony we will receive from a child prosecutrix, I am going to allow it, Overruled.

Thereafter the police officer was permitted to testify concerning what the victim told the mother as to various details of the actions of the victim and the appellant; where and under what circumstances the incident took place; the mother’s statements concerning her own whereabouts and the relationship she had with the appellant (described in brief as a trial marriage); and, even testified that the mother stated that “it had happened one time prior to that” — meaning prior to the incident giving rise to the complaint. He concluded with the information that the victim was not in the room with him and the mother at the time of the conversation.

As stated above, we consider it also necessary to deal with the testimony of the victim’s mother. It is important to note that the mother was called — in the first instance — immediately after the police officer. She fixed the date of the incident as the 21st of December, explained her own relationship with the appellant — they had lived together for some eight months — and described the other occupants of the household consisting of the mother’s several children by her previous marriages. She ultimately testified to the incident in question. She explained that she left the house on the 21st, a Sunday afternoon, to visit another of her children at a juvenile detention center. She testified she was absent from the home approximately three hours. The defendant, the victim, and two other children of the mother were left in the home. The mother noticed nothing untoward when she returned home that afternoon at approximately 3:30 or 4:00 o’clock. Normal Christmas preparations were then described as taking place over the next couple of days, including the arrival for the holidays of an older daughter from out of town and an older son from military service.

According to the mother’s testimony the victim first advised her on the evening of the 23rd that she had something to tell her about the appellant. The mother suggested they discuss it the next morning.

The following morning after the appellant had left for work the mother asked the victim what it was she wanted to tell her about the appellant. The mother testified that the child told her “it was nasty and I wasn’t going to like it.” There was an immediate objection to any testimony involving statements of the victim which the court overruled “in accordance with the Court’s prior ruling.”

Then, the mother proceeded to relate not only the fact that the victim reported the incident to her but also graphically related the victim’s details as to her own actions and those of the appellant, the fact that the victim related it had happened one other time and then the mother’s own conclusions and discussions with others and finally the report to the police.

Thereupon the victim was called as the state’s next witness and proceeded to essentially track the recital related by the victim’s mother and the police officer.

.In Van Gallon v. State, 50 So.2d 882 (Fla.1951), the supreme court recognized the rule “that a witness’s testimony may not be corroborated by his own prior consistent statement and the exception that such a statement may become relevant if an attempt is made to show a recent fabrication.” See Roti v. State, 334 So.2d 146, 147 (Fla.2d DCA 1976). The police officer’s testimony was clearly violative of the rule and did not fall within the exception. His testimony — the first adduced at trial — had the immediate effect of putting a cloak of credibility upon the succeeding testimony of the mother and the victim.

We think the out-of-court statements of the victim made to the mother some three days after the incident — particularly under the facts and circumstances— falls far short of true res gestae declarations made at the scene of the crime that might justify their admission under the authority of Purdy v. State, 343 So.2d 4 (Fla., filed Feb. 3, 1977). In addition, the net effect of the mother’s testimony was to bolster and lend credence to the subsequent detailed testimony by the victim. It tends to establish the acts and facts establishing the alleged crime within the prohibition of Custer v. State, 159 Fla. 574, 34 So.2d 100 (1948).

The judgment of conviction is therefore reversed and the case remanded for a new trial.

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

      . In Purdy, the supreme court held applicable the res gestae exception to the hearsay rule in admitting the testimony of two witnesses as to the 7 year old victim’s out-of-court declarations (at the scene of the crime) that the appellant had raped her.

      . In Custer, the court held that
      There can be no doubt of the error in allowing the mother of the girl who was raped to state in detail the circumstances going to prove the crime. It is even more objectionable because the mother relates not merely what her daughter said but from what was told her she drew her own inference and conclusion . ..34 So.2d at 112.


text:
    Robert L. FREEMAN, Appellant, v. REDWING CARRIERS, INC., a corporation, et al., Appellees.
    No. 76-1101.
    District Court of Appeal of Florida, Second District.
    April 15, 1977.
    Robert Orseck and Michael S. Olin of Podhurst, Orseck & Parks, Miami, and Wagner, Cunningham, Vaughan & Genders, Tampa, for appellant.

      Eurieh Z. Griffin of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee Redwing Carriers, Inc.
   HOBSON, Judge.

This is an appeal from a summary final judgment. Appellant Freeman brought an action in tort against appellee Redwing and others for injuries sustained while unloading sulfuric acid from a trailer owned by Redwing. Redwing answered and interposed three affirmative defenses. Only two of the affirmative defenses are involved in this appeal, to wit: 1) that Freeman was its employee and therefore barred from recovery by the Workmen’s Compensation Act; and 2) that Freeman had accepted Workmen’s Compensation benefits from it and was therefore estopped from bringing this action against Redwing.

Redwing owned the trailer but due to the nature of Redwing’s business it was necessary to obtain tractors to haul its trailers. Redwing contracted with one Jose Ramariz to lease his tractor, which Freeman was driving. The following issues must be resolved to determine whether or not the action is barred by the Workmen’s Compensation Act:

1. The relationship between Redwing and Ramariz, i. e., whether or not Ramar-iz was an independent contractor or an employee of Redwing;
2. The relationship between Redwing and Freeman, i. e., whether Freeman was an employee of Redwing; and
3. If Freeman was an employee of both Redwing and Ramariz, which employer was he working for at the time of the accident.

We have carefully reviewed the briefs and record on appeal and find that there are genuine issues of material fact as to the relationships between Redwing, Ramariz and Freeman which preclude the entry of a final summary judgment.

There being genuine issues of material fact as outlined above, summary final judgment could not be entered on the affirmative defense of estoppel.

REVERSED and REMANDED for further proceedings.

BOARDMAN, C. J., and McNULTY, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    M. J. WATSON and Florence E. Watson, Appellants, v. Martha Jean BUCHANAN, Appellee.
    No. 76-1158.
    District Court of Appeal of Florida, Second District.
    April 15, 1977.

      Carl 0. Dunbar of Dunbar, Dunbar & Whitlock, Dunedin, for appellants.
    No appearance for appellee.
   HOBSON, Acting Chief Judge.

This case comes to us on appeal from dismissal of a complaint and poses the question of whether a swimming pool enclosure, allegedly erected in violation of setback restrictions recorded in general subdivision plan, can be the subject of injunctive relief to alleviate that alleged violation. The court below answered this question in the negative. We reverse.

On or about June 25, 1975, plaintiffs, residents of the Fairway Estates Fifth Division (Fairway). subdivision, learned that their neighbor, defendant/appellee herein, had been issued a building permit to erect a screen pool enclosure approximately six and one-half feet from the common side lot line which ran between the two homes. Thereafter plaintiffs on the same day and on June 27 advised in writing and orally the president of the subdivision’s owners’ association and the chairman of the Architectural Control Committee that they would not abide the proposed encroachment on the building setback requirement. This requirement, found in paragraph 3 of the Restriction Agreement for the Fairway subdivision states,

“3. BUILDING LINES: No structure shall be located less than twenty-five (25) feet from the front lot line. On any lot having a curved front lot line, no structure shall be loeáted less than twenty-five (25) feet from the middle point of the front lot line. No structure shall be located less than twenty-five (25) feet from any side street line nor less than ten (10) feet from any side lot line,” (emphasis supplied)

On or about the same day, June 25, 1975, plaintiffs similarly advised the foreman installing the pool on defendant’s premises. On July 15 this position was reiterated by letter to defendant’s husband. Despite this opposition, defendant proceeded to construct the screen enclosure with encroachments on the setback lines between two and one-half and over three feet in the southeastern and southwestern corners respectively.

Plaintiffs thereupon filed a complaint setting forth generally the above facts and seeking declaratory and injunctive relief. Specifically, plaintiffs sought to bind defendant to the setback restrictions and in addition sought an affirmative injunction for removal of that portion of the screen enclosure which encroached on the setback lines as designated. Defendant’s motion to dismiss was granted without prejudice, the court noting that the complaint lacked the necessary specificity in pleading. Shortly thereafter plaintiffs resubmitted an amended complaint essentially tracking the original, but with greater detail devoted to the pertinent provisions of the Fairway Restriction Agreement, and an allegation of irreparable damage which would result if the encroachment were not removed. Defendant again moved to dismiss. The court granted the motion to dismiss, specifically stating in part:

“A. That said Motion to Dismiss is granted in so far as the Plaintiffs remedy for the alleged breach of restrictions is limited to damages and not injunctive relief unless the Plaintiffs can demonstrate that the Architectural Control Committee failed to review and/or act with regard to the Defendant’s construction.”

Holding that the facts well pled must be taken as true, we find that the amended complaint was sufficient to state a cause of action for the injunctive relief sought. Stephl v. Moore, 94 Fla. 313, 114 So. 455 (1927); Hagan v. Sabal Palms, Inc., 186 So.2d 302 (Fla.2d DCA 1966). We also note, without passing upon the issue of its binding effect, that the Restriction Agreement to the Fairway Subdivision is sufficient to afford plaintiffs the right to enforce its provisions in equity or at law, or both, Cf. Hagan, supra. Accord Shroder Ocean Blvd. Associates v. Dewitt, 289 So.2d 787 (Fla.2d DCA 1974). We find no merit, for purposes of stating a cause of action, in that portion of the order below limiting injunctive relief to a demonstration by plaintiffs that the Architectural Control Committee failed to review and/or act with regard to the defendant’s construction.

Accordingly, that part of the order below dismissing the complaint of plaintiffs as to their entitlement to injunctive relief is reversed and this cause is remanded for further proceedings consistent with the views expressed ¡herein.

REVERSED.

McNULTY and OTT, JJ., concur.

      . The Restriction Agreement contemplates such enforcement actions. It provides in part in paragraph 23,

        "ENFORCEMENT: Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages.”

      . Paragraph 17 of the Restriction Agreement, designated “ARCHITECTURAL CONTROL COMMITTEE,” provides in part,
      “The ‘Developers’ . . . their successors and assigns, shall constitute the Architectural Control Committee. The . . . Committee shall have authority to approve or disapprove plans and specifications and otherwise guide the development of the Subdivision as planned and restricted herein.”
      Paragraph 18 of the agreement goes further to require written approval by the committee of any structure being built in the subdivision. We refrain from passing on the obligatory effect of these provisions, and whether such provisions may be construed to modify or obviate written setback restrictions contained elsewhere in the agreement. However, the committee’s lack of review and/or action on the defendant’s construction is not determinative, for purposes of stating a cause of action, of the plaintiffs’ right to injunctive relief. Plaintiffs’ allegations of a violation of the specific setback restriction, combined with an assertion of the binding nature of such restriction and the detrimental effect of its continued violation, were more than sufficient to state a cause of action. See generally, Fla.R.Civ.P. 1.110.