author: RAWLS, Judge.

text:
    Herbert L. ANSON, Petitioner, v. FLORIDA STATE BOARD OF ARCHITECTURE, DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, State of Florida, et al., Respondents.
    No. CC-421.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1977.
    Robert W. Perkins and Gary L. Conover of Herrell & Perkins, P.A., Tallahassee, for petitioner.
    John Michael Huey of Huey & Camper, Tallahassee, for respondents.
   RAWLS, Judge.

Anson, the holder of a certificate of registration to practice architecture in Florida, seeks review of an order of the State Board of Architecture denying his second amended motion to dismiss the board’s administrative complaint seeking to revoke his certificate of registration.

On May 1, 1974, Anson appeared involuntarily before an assistant state attorney in the Eleventh Judicial Circuit and, in exchange for immunity from prosecution, penalty or forfeiture, gave testimony concerning the same transaction, matter or thing as that upon which the board’s administrative complaint is based. Subsequent to being granted immunity pursuant to Section 914.-04, Florida Statutes, Anson gave testimony concerning his involvement in a fraudulent scheme to help cover up illegal payments to another architect from Cedars of Lebanon Hospital. Anson, in exchange for immunity from prosecution, penalty or forfeiture pursuant to Section 914.04, Florida Statutes, gave compelled testimony at the trial of other individuals charged by the state. In the administrative proceedings, the hearing officer, after reviewing the record and Supreme Court decisions hereinafter considered, recommended that the board’s complaint against Anson be dismissed with prejudice. The board rejected the recommended order by denying the second amended motion to dismiss.

In the case of Florida State Board of Architecture v. Seymour, 62 So.2d 1 (Fla.1952), the Supreme Court reviewed an analogous factual situation. Seymour, an architect, involuntarily testified in proceedings for bribery or conspiracy to bribe before the state attorney, grand jury, and at the trial of those charged. The board contended that the immunity statutes availed Seymour nothing because its proceedings were not of a criminal type but solely confined to the investigation of an architect’s alleged dishonest practices. In holding that the board’s proceedings were unauthorized, the Supreme Court held that a proceeding to revoke an architect’s certificate amounts to a prosecution to effect a penalty or forfeiture contemplated by the immunity statutes.

In 1969, the Supreme Court, in receding from Seymour, held in Headley v. Baron, 228 So.2d 281 (Fla.1969), that the Seymour ease was erroneous in that the immunity statutes did not prohibit disciplinary action by an administrative agency. But the judicial deliberations did not reach finality.

Lurie v. Florida State Board of Dentistry, 288 So.2d 223 (Fla.1973), was decided by the Supreme Court on October 10, 1973. After reviewing the Seymour and Headley decisions, Justice Ervin, speaking for the majority, stated:

“We have re-examined the cases of Headley v. Baron, supra, and Florida State Board of Architecture v. Seymour, supra, in the light of the circumstances of this case and also in the light of the weight of judicial authority throughout the nation on the question of citizens’ immunities from the imposition of penalties and forfeitures in administrative proceedings where they are compelled to testify before grand juries, prosecuting officers, or courts concerning matters or things which might incriminate them. We are convinced now this Court was in error in overruling Florida State Board of Architecture v. Seymour, supra. See 9 Fla. Jur., Criminal Law § 276; 1 Fla.Jur., Administrative Law and Procedure § 82, and 68 A.L.R. 1503; 2 Am. Jur .2d Administrative Law §§ 267, 268, 269. Compare Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, reh. den., 335 U.S. 836, 69 S.Ct. 9, 93 L.Ed. 388; Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264, annotation; Englander v. State (Fla.), 246 So.2d 746, and Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274. Opinion filed November 19, 1973.”

Pursuant to Florida State Board of Architecture v. Seymour, supra, and Lurie v. Florida State Board of Dentistry, supra, the petition for review is granted and the cause remanded with directions that Respondent, Florida State Board of Architecture, enter an order dismissing the instant proceeding with prejudice.

McCORD, C. J., and SMITH, J, concur.

      . Anson’s pleading is entitled: “Petition for Review of Final Agency Action . . and in the Alternative, Petition for Writ of Prohibition”. A denial of a motion to dismiss does not constitute final agency action. However, we determine that the record in this cause mandates an interlocutory review as contemplated by the provisions of Section 120.68(1), Florida Statutes, viz: .A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”

      . The record also reflects a letter from the board’s attorney to the members concluding: “Based upon the foregoing and my analysis of the applicable case law it is my opinion that if we brought disciplinary action against Anson he would be able to obtain a Court Order to prevent us from proceeding further, therefore, it would be my recommendation that no formal action be taken by the Board.”


source: Caselaw Access Project

license: Public Domain

text:
    D. I. RAINEY, Jr., et al., Petitioners, v. DEPARTMENT OF REVENUE, Respondent.
    No. DD-102.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1977.
    Rehearing Denied Nov. 21, 1977.

      Edgar M. Moore of Smith & Moore, Tallahassee, for petitioners.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., for respondent.
   RAWLS, Judge.

Petitioners, D. I. Rainey, Jr., et al., having been aggrieved by final agency action, seek review of the order of respondent, Department of Revenue, assessing documentary stamp taxes and penalty. The primary issue, as framed by the hearing officer, is: Whether the transaction evidenced by the written instrument is taxable under the provisions of Sections 201.01 and 201.08, Florida Statutes?

On February 28, 1974, petitioners, with the exception of two individuals, executed and delivered to The Lewis State Bank a promissory note in the amount of $405,-000.00 and a mortgage securing same. Documentary stamps in the required amount were affixed to the promissory note. On July 7, 1975, The Lewis State Bank assigned the note and mortgage to Thomas County Federal Savings and Loan Association, Thomas County, Georgia. On July 2 and July 7,1975, the petitioners, save for D. I. Rainey, Jr., signed the instrument which is the subject matter of the challenged tax in Tallahassee, Florida. That instrument modified the promissory note and mortgage which had been assigned to Thomas County Federal, including an increase of $7,000.00 in the stated amount of principal. Rainey was entrusted with the modified document by the other petitioners who signed a letter authorizing Rainey to act for them. The amendment to note and mortgage was executed by Rainey and accepted by Thomas County Federal, as assignee of said original note and mortgage in Thomas County, Georgia. Thus, at the time the amendment to note and mortgage left Florida, it was not enforceable because all of the petitioners had not executed it. The proceeds of the transaction were delivered by Thomas County Federal to the petitioners’ agent in Georgia.

Upon the foregoing facts, the hearing officer found, as a matter of law, that the transaction was not completed in Florida and thus “there is insufficient situs in Florida to assess the tax”. The Department filed extensive written exceptions to the hearing officer’s recommended order. Its basic contention was and is that: “. The Amendment to Note and Mortgage involved in this case was made, signed, and executed; save one signature of the multiple obligors, who were jointly and severably [sic] liable, in the [S]tate of Florida . . .”

Upon considering the recommended order, the Department of Revenue refused to adopt same upon its findings, as a matter of law, that: 1) to be taxed there must be a Florida transaction, 2) the only instrument reflecting the outstanding obligation of $412,000.00 was the amendment to note and mortgage, 3) the loan was used to refinance a Florida project and execute by all but one petitioner in the State of Florida, and 4) petitioners’ promise to pay this new obligation was recorded in Florida; thus, all essential factors of a Florida transaction had been proven requiring the affixing of documentary stamps in the sum of $607.50 plus penalty of $607.50.

The salient question and dispute between the hearing officer’s conclusion and that of the Department is: Was the transaction completed in its essential elements in Florida? As above reflected, upon undisputed facts, the hearing officer answered this critical question in the negative, while the Department arrived at an affirmative answer. Justice Campbell Thornal, speaking for the Supreme Court in State v. Gay, 90 So.2d 132 (Fla.1956), resolved this essential question by stating:

“. . . While it is true that the ‘transaction’ is the borrowing of money, nevertheless it is incomplete until documents evidencing the debt are executed and delivered, and the money exchanged therefor. It is this execution and exchange of documents for money that creates the documentary tax liability. Thus it is that the tax is on the transaction itself and not upon the mere privilege of engaging in the transaction. . . . ”

The question of subterfuge is not here involved. The partially executed document was entrusted by all of the petitioners, save one, to the remaining petitioner (Rainey), who was to act as their agent in closing the transaction. No delivery had been accomplished in Florida; thus, the document was unenforceable when it was in Florida. That Thomas County Federal is a bona fide Georgia lending institution has not been questioned. The essential execution of the instrument was that of Rainey’s signature which was affixed in Georgia. The money was delivered to Rainey in Georgia upon the exchange of the instrument. We concur with the hearing officer’s finding that there was no taxable situs in Florida.

the petition for review is granted, and the final order of the Department of Revenue is quashed with directions that the assessment of documentary stamp taxes in the sum of $607.50 and the assessment of $607.50 penalty be vacated.

McCORD, C. J., and BOYER, J., concur.

      . The body of the letter provides as follows:
      “Please accept this letter as your authority to receive any and all proceeds from the re-financing of the Jefferson Towers apartment project, of which we are part owners.
      “We have previously executed the closing documents and understand that you will represent us at the closing to take place at Thomas County Federal Savings and Loan Association, Thomasville, Georgia, on Monday, July 7.
      “You are, in addition to the above authorization, authorized to endorse any required checks, issue receipts in our names, and otherwise represent us as required.”


author: PER CURIAM.

text:
    Ken EMERT, Appellant, v. KING’S CREEK WEST CONDOMINIUM ASSOCIATION, INC., a Florida Corporation, Appellee.
    No. 76-2220.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Dixon, Dixon, Lane, Mitchell & Harris, Miami, and C. Robert Murray, Jr., Coral Gables, for appellant.
    Marc A. Kuperman, Coral Gables, for ap-pellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Stephl v. Moore, 94 Fla. 313, 114 So. 455 (1927); Lane v. Clein, 137 So.2d 15,16 (Fla.3d DCA 1962); Coffman v. James, 177 So.2d 25, 31 (Fla.1st DCA 1965); Sections 711.08(4), 711.62(1), Florida Statutes (1975).


author: MELVIN, Judge.

text:
    The AMERICAN INSURANCE COMPANY, Appellant, v. COLEY ELECTRIC SUPPLY COMPANY, INC., a corporation, Appellee.
    No. FF-165.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 16, 1978.
    Alan B. Fields, Jr. of Dowda, Hedstrom & Fields, Palatka, for appellant.
    Martin S. Page of Darby, Peele, Page & Bowdoin, Lake City, for appellee.
   MELVIN, Judge.

The appellant-defendant brings its appeal from a final judgment entered against it and in favor of Coley Electric Supply, Inc., a corporation. The appellant-defendant will herein be referred to as American and the appellee, Coley Electric Supply Company, Inc., will be referred to as Coley.

Coley brought its action against American alleging that American, as the corporate surety on a payment and performance bond, was obligated to pay to Coley sums alleged to be due, in accordance with Florida Mechanics Lien Law, for materials sold to Moody Brothers, a subcontractor under E. E. Dean Snavely, Inc., general contractor for the construction of the Suwannee County Mall owned by Leslie W. Rogers, Inc. American issued the corporate surety payment performance bond for performance by the general contractor in accordance with Section 713.23, Florida Statutes.

Coley could have joined Moody, Snavely or Rogers as party defendants but was content to seek relief directly against American as a corporate surety, thrice removed from privity with Coley.

The final judgment entered in favor of Coley was in the sum of $44,942.74. We reverse.

An issue in the trial was whether any of the materials sold by Coley to Moody, the subcontractor, were ever delivered to the job site. The testimony reveals that no materials were ever delivered by Coley to or in the State of Florida. No witness testified as to personal knowledge of delivery to or the incorporation of any of the materials for which payment was sought in the Suwannee County Mall project in accordance with Section 713.01, Florida Statutes. The trial court stated its view of the matter to be: “. . . It is a reasonable assumption or a reasonable presumption that it was delivered to the job and incorporated and used on the project. . . . ”

To be entitled to a lien for furnishing materials pursuant to Chapter 718, there must be presented to the court evidence establishing that the materials were delivered to the improvement project or that the materials were specially fabricated for incorporation therein. See Beautyware Plumbing Sup. Co. v. Columbiad Apts., Inc., 215 So.2d 42 (Fla. 4th DCA 1968). The provisions of Section 713.01(6), Florida Statutes, relating to the incorporation of materials in the improvement project does not come into operation until first there has been evidence to establish that such materials have been delivered to the site. Proof of delivery is the burden of he who seeks the benefit of the presumption afforded by the statute.

There being no evidence reflected in this record that would support liability on the part of American, it follows that the final judgment against it must be and the same is hereby reversed with directions that the trial court enter final judgment in favor of the American Insurance Company.

REVERSED with directions to enter judgment in accord with this opinion.

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


text:
    Stuart TARLOWE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1197.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1978.
    William C. Owen, Jr. of Cone, Owen, Wagner, Nugent, Johnson & McKeown, Te-questa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond and Richard P. Zaret-sky, Asst. Attys. Gen.,' West Palm Beach, for appellee.
   PER CURIAM.

Upon consideration of the record, briefs and argument of counsel for the respective parties, we determine the trial court misconceived the legal sufficiency of the evidence in adjudging appellant guilty of direct criminal contempt of court. Krueger v. State, 351 So.2d 47 (Fla.3d DCA, Opinion filed August 2, 1977). Accordingly, the order of direct criminal contempt is reversed.

Reversed.

CROSS, DOWNEY and DAUKSCH, JJ., concur.


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. Rex SLOAN, Appellee.
    No. 77-1172.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellant.
    Charles H. Vaughan of Vaughan & Dele-gal, Ft. Lauderdale, for appellee.
   MOORE, Judge.

This is an appeal by the State from an order granting appellee’s motion to dismiss the indictment against him. The issue on appeal is identical to that which this court decided in Ringel v. State (Fla. 4th DCA, opinion filed June 24, 1977) wherein we held that a juvenile can be indicted for a crime where the maximum punishment provided is life imprisonment. Unfortunately, the trial court did not have the benefit of our opinion in Ringel prior to dismissing the indictment in the case sub judice.

On the authority of Ringel v. State, supra, the order of the trial court dismissing the indictment is hereby reversed and this cause remanded with instructions to reinstate the indictment and proceed accordingly-

Reversed and remanded.

DAUKSCH and LETTS, JJ., concur.


text:
    Joseph F. HILLIER and Virginia L. Hillier, his wife, Appellants, v. E. Wilson PURDY, as Sheriff of Metro Dade County, Appellee.
    No. 76-2037.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 13, 1978.
    Norman A. Sand, Miami, for appellants. Fowler, White, Hurley, Burnett, Banick & Knight and Fred R. Ober, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Madison v. Gerstein, 440 F.2d 338 (5th Cir. 1971); Quinn R. Barton, Inc. v. Johnson, 143 Fla. 245, 196 So. 489 (1940); Pennsylvania Nat. Mut. Ins. Co. v. Doyon, 323 So.2d 677 (Fla.3d DCA 1975); Fernandez v. Arocha, 308 So.2d 45 (Fla.3d DCA 1975); Sections 30.30 and 212.15, Florida Statutes (1975); and Fla.R.Civ.P. 1.510.


text:
    STATE of Florida ex rel. Miguel A. BETANCOURT, Loynas Boquete, and Luis Garcia, Relators, v. Herbert M. KLEIN, Judge of the Circuit Court, Eleventh Judicial Circuit, Dade County, Florida, Respondent.
    No. 77-2423.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 13, 1978.

      Peter F. K. Baraban and Colin Guy, John Muldowney, Miami, for relators.
    Richard E. Gerstein, State’s Atty. and Edward McHale, Asst. State’s Atty., for respondent.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

We have been presented with a petition for writ of prohibition and, pursuant to Fla.App. Rule 4.5(d)(2), have issued the rule therein provided. Return to the rule has been made and upon consideration of the petition and the return and the record submitted, the following appears:

The petitioner was arrested for the unlawful possession of marijuana. A trial was set for October 3, 1977. At trial, it appeared that a witness subpoena issued for a defense witness who was a policeman had not been obeyed because the policeman was on vacation. The court, of its own motion, continued the trial until October 17th. At the time of the trial, the policeman witness again did not respond to the subpoena. The court declined to continue the trial again unless petitioner moved for such a continuance. Thereupon, the motion was made and granted and the trial set for a date beyond the 180 day period which began on April 28, 1977, when appellant was arrested upon the pending charge.

On November 18, 1977, the petitioner moved for a discharge, which was denied. In order to be entitled to discharge because of the expiration of the 180 day period,- the defendant must have been continuously available for trial. See Fla.R. Crim.P. 3.191(a)(1). It is petitioner’s position that he was prevented from being ready for trial only by the actions of the State. In order to make this argument, he must identify the witness who was a policeman as an agent of the State. This assumption is not warranted under the circumstances of this case. Therefore, the petition must be dismissed pursuant to State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). Therefore, the writ is quashed and the petition is dismissed.

It is so ordered.


author: ERVIN, Judge.

text:
    LOUISIANA LAND & EXPLORATION COMPANY, Appellant, v. E. J. GIBBS, Jr., Tax Collector of Escambia County, Florida, et al., Appellees.
    No. EE-81.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1978.
    Rehearing Denied Feb. 16, 1978.

      Dennis K. Larry and Peter J. Winders of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    William H. Clark, Jr. of Clark, Parting-ton, Hart & Hart, Richard I. Lott, Pensacola, Robert L. Shevin, Atty. Gen., Larry Levy, Edwin J. Stacker, Asst. Attys. Gen., for appellees.
   ERVIN, Judge.

Louisiana Land & Exploration Company appeals a summary judgment entered against it in an action for declaratory judgment to determine whether it is liable both for the payment of a severance oil and gas tax and a tangible personal property tax. Louisiana Land & Exploration Company is a mineral lessee owning a working interest in oil wells in Escambia County. It pays a 5% oil and gas severance tax, 20% of which goes to the county. Escambia County has additionally assessed a tangible personal property tax on the machinery and equipment used on the wells. The company paid its 1973 tangible personal property taxes under protest and then brought an action for declaratory judgment seeking a refund. It contends the severance tax monies paid to the county should be applied as a credit toward the payment of the tangible personal property tax owing on the producing equipment. There are no factual issues. The determination of the issues turns on the case of Small v. Sun Oil Company, 222 So.2d 196 (Fla.1969) and the subsequent amendment to Section 211.13, Florida Statutes (1971).

Section 211.02, Florida Statutes (1967), when Small v. Sun Oil Company, supra, was decided, imposed an excise tax of 5% on the production of oil and gas in the state. Eighty percent of the tax would go to the state’s general revenue fund and the remaining 20% to the county in which the oil and gas was produced. Section 211.13, Florida Statutes (1967) prohibited the value of land for ad valorem taxes from being increased by the location of any oil or gas equipment used on the land, and any additional ad valorem tax from being imposed upon such equipment. This last sentence was struck down by the Supreme Court as an unconstitutional exemption of personal property from ad valorem taxation, contrary to Article 9, Section 1, Florida Constitution (1885). The offending portion was found to be severable from the remaining taxing scheme. The Supreme Court was then faced with the problem of construing the severance tax and the ad valorem tax assessed in light of the valid portions of the statute. It stated that it would apply the statute so as to carry out the legislative intent, even though it was necessary to change the literal effect of certain portions of the statute, concluding:

“It is a well established rule of construction that the intent of the Legislature as gleaned from the statute is the law. When, as here, the clearly expressed purpose of the Legislature cannot be given effect by the mechanics outlined in the statute but the same result can be attained by the application of somewhat different procedure, is the court justified in so applying the statute as to effectuate the basic legislative intent even though to do this it is necessary to change the literal effect of some portions of the statute? We think it is under the circumstances here present.
* * sfc % sf: sfc
It is apparent that the nearest approach to the legislative intent as expressed in the statute which is consistent with the Constitution of 1885, would be to so construe the statute as to require payment of the severance taxes; permit assessment of ad valorem taxes upon the personal property used in producing oil and gas; and then apply to the payment on or of these ad valorem taxes the necessary amount from the first proceeds of the excise taxes.” 222 So.2d at 200-201.

(Emphasis in original.)

The producer, Sun Oil Company, was allowed to set off the amount owed in ad valorem taxes on its equipment against the 1% severance tax paid. We find, however, the Small decision is inapplicable here because Section 211.13 has since been amended to delete the statute’s invalid portion, which had provided “and no ad valorem tax shall be imposed upon such producing equipment and machinery”. The above portion, though found unconstitutional, was considered by the Supreme Court in determining the legislative intent. With the deletion of the above language from Section 211.13 by Chapter 72-360, Laws of Florida (1972), there is no longer a legislative intent by which we can validly determine a set-off should be made against the severance tax for any ad valorem taxes due on equipment.

The appellant argues the necessary statutory intent is found in Section 211.02(2), Florida Statutes (1975), which states the one percent severance tax owed the county is imposed “to compensate the county in which oil and gas is produced for the loss of ad valorem taxes by reason of the provision of this chapter, . . . ” Since the provision of the chapter removing ad valorem taxes on oil producing machinery has been repealed, the sentiment expressed in Section 211.02(2) is to that extent no longer effective.

We therefore find no impediment in a county assessing an ad valorem personal property tax on oil and gas producing equipment in addition to a severance tax.

Appellant’s remaining point is without merit.

The judgment is AFFIRMED.

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


text:
    James ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. EE-152.
    District Court of Appeal of Florida, First District.
    Jan. 13, 1978.
    Rehearing Denied Feb. 16, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

The appellant/defendant seeks review of a judgment and sentence rendered November 12, 1976, based upon a jury verdict, adjudging him to be guilty of murder in the second degree and imppsing a sentence for the remaining period of his life.

The indictment upon which James Anderson came to trial charged him in one count with the' unlawful death of Littleton McPherson and Henry Rouser, Jr., by shooting them with a pistol. The State filed a bill of particulars designating that the offense occurred April 13, 1976, between 12:00 noon and 4:00 p. m.

The sole question presented here is whether the record reflects sufficient testimony to sustain the verdict of the jury and the judgment and sentence imposed by the trial court. It does.

It was about 10:00 a. m. on the morning of April 14,1976, when the bodies of Little-ton McPherson and Henry Rouser, Jr. were found in an area near Thigpen Road in St. Johns County, Florida. The pathologist testified that the cause of the death of each man was multiple gunshot wounds to the head and chest. Based upon his analysis of the food in each victim’s stomach, the pathologist placed the date of death as being April 13, 1976, between the hours of 12:00 noon and 2:00 p. m.

The officers found dice, cigarette butts and various sums of money scattered around in the area where the bodies lay. Although the pants pockets of each man had been pulled out, the officers found the sum of $51 in cash in victim Rouser’s front pocket. No identifiable fingerprints were found at the scene of the crime.

The defendant is the nephew of Sherman and Betty Robinson, and he formerly lived in their home. Sherman Robinson testified that he owned a .22 caliber German pistol and two boxes of long-range .22 caliber bullets that he kept at his wife’s house. At one time while defendant was living in the Robinson home, Betty Robinson took from his pants one of the two boxes of shells. Betty Robinson testified that the pistol and one box of shells was under the mattress on Monday, April 12, and one box of shells was in a dresser drawer. On April 14, she discovered the pistol was missing. She further testified that the defendant was at her home on Monday, April 12, and tried to borrow $2.00 from her. He stated to her that he had won over $400 gambling with Rouser and McPherson, and that he was going to get some more money from them. It was her testimony that the defendant came to her house on Tuesday, April 13 to pick up a pair of slacks, that the defendant entered the house alone and came out with the slacks folded under his arm. She did not know if he took the pistol and shells.

A deputy sheriff testified that on the afternoon of April 14, 1976, he questioned the defendant after first advising him of his Miranda rights. The deputy testified that the defendant stated that on the previous day he had been to his aunt’s house around 12:15 p. m. and picked up his pair of pants. He told the deputy that no one was at home at that time. He stated that shortly before 1:00 p. m., he met Rouser at “Bea’s Place” and drove with him to where McPherson was staying. He then related that he rode with the two men a short way, and paid them some money he owed them. He stated to the officer that he got out of their car in the City of Hastings, and had no further contact with them.

The bullets were removed from the body of each victim and a Federal Bureau of Investigation Firearms Expert testified that he did a neutron activation analysis of those bullets. He then did a comparison analysis of the bullets remaining in the box of ammunition removed from the residence of Betty Robinson and concluded that the bullets removed from the body of each victim and the bullets remaining in the box of shells came from the same source and contained the same elemental composition. The officer stated that there would, of course, be many thousand bullets all over the country which would contain the same elemental composition as the nine expended bullets. However, it was his opinion that the bullets removed from the bodies and the bullets remaining in the box all came from a common source.

The State presented the testimony of James Gilmore and James Howard who stated that they were driving near the Thigpen Road around 1:00 p. m. on April 13 and that they observed the defendant, running on Thigpen Road, waving and motioning for them to stop. They gave the defendant a ride into town. During the time that the defendant was with Gilmore and Howard, the defendant showed them a roll of money and some dice, which he said were crooked dice. According to the testimony, later that same afternoon, the defendant purchased a used car and paid $150 in cash on the transaction.

The trial court denied defendant’s motion for a directed verdict. The defendant testified that he had gone to his aunt’s house about noon on April 13 and picked up a pair of trousers. He stated that he did not take a pistol from the Robinson house. It was his testimony that after he left the Robinson house, he went to “Bea’s Place” where he met Rouser and they went to find McPherson. Defendant stated that he went with the victims in a car belonging to one of them out towards Thigpen Road and that while they were riding he paid each of them $100, that being a part of what he claimed he owed them. He stated that he got out of the car because the men had made the statement that they were going to a bar and he didn’t want to go. The defendant testified that after he left McPherson and Rouser, he saw a truck with Howard and Gilmore going by and he waved them down and they gave him a ride to town. He testified positively that he did not go down the dirt road off of Thigpen Road to the point where the victims’ bodies were found. He sought to explain away the contradiction in his testimony to the jury as compared to that given the deputy sheriff with reference to having left McPherson and Rouser in the City of Hastings, by stating that he did not want the officers to know that the men had given him a ride because he would not want Howard and Gilmore to get in trouble for giving him a ride in their employer’s truck.

The defendant renewed, and the court denied, his motion for a directed verdict.

The pistol was not found, the defendant’s fingerprints were not found, although fingerprints smudged beyond identification were found about the area and in the automobile. The issue between the State of Florida and the defendant was a factual one that was presented to a jury for determination. The jury had the opportunity to observe each witness and observe the candor and the demeanor of each witness while testifying before them. The jury was the sole judge of the credit that would be assigned to the testimony of any witness who appeared before them. The jury could have believed the defendant. By its verdict, the jury branded the testimony of the defendant as being not worthy of belief. The record of the testimony presented to the jury is amply sufficient to establish that the defendant stole his victims’ money through the use of loaded dice, stole their lives through the use of a stolen pistol and he now requests this court to believe his testimony that he did not do those things; the very testimony that the jury, looking at him and hearing his testimony, refused to believe. It is not the proper function of this court to substitute its judgment for that of the jury who sat as the judge of the evidence. In Wright v. State, 269 So.2d 60, at page 61 (Fla. 1st DCA 1972), this court held:

“. . .It goes without need to recite authorities that conflicts in testimony are within the jury’s province to resolve, and on appeal the reviewing court will assume the existence of that set of facts supported by the evidence which is adverse to the losing party.”

The defendant having failed to demonstrate reversible error, it follows that the verdict of the trial jury, the judgment entered and the sentence imposed should be and the same are hereby

AFFIRMED.

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


author: ALDERMAN, Chief Judge.

text:
    Jimmie E. VANDERGRIFT and Dorothy E. Vandergrift, his wife, Appellants, v. FORT PIERCE MEMORIAL HOSPITAL, INC., and Continental Insurance Company, Appellees.
    No. 76-1636.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellants.
    George H. Moss, II, of Jones, Paine & Foster, P. A., Vero Beach, for appellees.
   ALDERMAN, Chief Judge.

Mr. and Mrs. Vandergrift, plaintiffs in this medical malpractice case, appeal from a final judgment which awarded $12,500 to Mr. Vandergrift and nothing to his wife. The judgment is based upon a jury verdict which determined Mr. Vandergrift’s total damages to be $125,000 and found him to be 90 percent negligent and the defendant hospital to be 10 percent negligent. The primary issue on appeal is whether the trial court erred in denying the plaintiffs’ motion for directed verdict on the issue of Mr. Vandergrift’s contributory negligence. .Plaintiffs contend that any contributory negligence on the part of Mr. Vandergrift prior to the time he came to the defendant hospital is not available to the hospital as a defense. Based upon the facts of this ease we reject plaintiffs’ contention and affirm.

There are conflicts in the evidence; therefore, since it is the plaintiffs who are contending that a directed verdict should have been entered in their favor, we must consider the evidence in the light most favorable to the defendants. In that light it appears that Vandergrift and three companions were scuba diving in the ocean off the coast of Palm Beach, when, at approximately 3:00 p. m., Vandergrift noticed that his decompression meter was in the red zone and shortly thereafter he began having pain in his right shoulder. The “red” on the decompression meter was an indication that he had ascended too rapidly from a dive and thereby exposed himself to the bends. One of his companions, Robert Smith, a medical doctor and a certified scuba diver, told Vandergrift to dive back down again to see if the pain would go away. He did and the pain went away. Smith explained that this was another indication that Vandergrift had the bends, and he advised Vandergrift that he had to go into a recompression chamber. Vandergrift was an experienced scuba diver and knew that the only treatment for the bends was recompression. When they returned to shore Vandergrift had no pain in his shoulder. About 5:00 p. m., however, as he was driving to his home in Fort Pierce, the pain returned.

At home, Vandergrift telephoned Dr. Smith and told him about the pain. Smith advised Vandergrift to contact Harry Morris, the president of the West Palm Beach Skin Divers Club, for assistance in getting into the recompression chamber at Perry Submarine in West Palm Beach. Morris informed them that Perry Submarine would accept Vandergrift only if there were a life or death emergency. Smith continued his efforts to locate an available recompression chamber. He learned that the chamber at the Kennedy Space Center was being utilized and was not available. He told Van-dergrift that the nearest available chamber was at Gainesville and he advised him to go there, stressing to him the importance of getting to a recompression chamber. According to Smith, Vandergrift was going to think about it, but it “was a long drive and he wasn’t really keen on heading for Gainesville.”

Vandergrift did not go to Gainesville; instead he continued to consult with Morris, who had been in contact with another doctor — one who recommended a regimen of breathing oxygen. Following this suggestion Vandergrift went to the Fort Pierce Fire Department and, after breathing oxygen at the fire station and not experiencing any relief, again contacted Morris. For the second time the use of oxygen was recommended, so Vandergrift went back to the fire station and requested additional oxygen. This time, however, the request was refused. The officer in command of the fire station suggested that Vandergrift go to the hospital and receive oxygen there. During this time Dr. Smith was still recommending to Vandergrift that he seek treatment in the recompression chamber at Gainesville; but, according to Smith, Van-dergrift decided to continue the oxygen breathing instead.

At 11:00 p. m., eight hours after he first became aware that he had the bends, Van-dergrift presented himself at the emergency room of the Fort Pierce Memorial Hospital and explained to the doctor on duty that he had the bends. He told the doctor that he had been referred to the hospital because there was no more pure oxygen available at the facility where he had previously received oxygen treatment. He was given the oxygen that he requested, but he received no further treatment and was not advised by the emergency room doctor that the proper treatment for bends was recom-pression, nor was any effort made to transfer him to a facility which had a recompression chamber. The defendant hospital did not have such a chamber. Vandergrift left the hospital about 1:15 a. m. and returned to his home. By morning the pain in his shoulder had disappeared. Approximately two years later his shoulder started hurting again. This pain and the resulting disability was caused by an aseptic necrosis of the bone which resulted from the bends.

The point on appeal is whether the trial court erred in denying the plaintiffs’ motion for directed verdict on the issue of Vander-grift’s contributory negligence. For reversal the plaintiffs rely upon Matthews v. Williford, 318 So.2d 480 (Fla. 2d DCA 1975); however, we find that case to be factually distinguishable and not controlling. In Matthews the trial court’s refusal to instruct the jury on the issue of comparative negligence was affirmed. The defendant-doctor in that case was found guilty of malpractice because he did not meet the requisite standard of care after he had his patient admitted to the hospital. There was some evidence of negligence on the part of the patient prior to his admission to the hospital, but the court said that such prior conduct was not legally significant. The patient in Matthews suffered a fatal heart attack after having been admitted to the hospital. The patient’s prior negligence apparently was that he did not properly care for himself after an earlier- heart attack and that he delayed his admission into the hospital after his symptoms increased in frequency and severity. The damages claimed were not for the heart attack and the court held that the prior conduct of the patient which contributed to his fatal heart attack was not a contributing proximate cause of the damages sought.

In the present case Vandergrift seeks damages, not for having the bends, but for the aseptic necrosis in his shoulder caused by lack of proper treatment in a recompression chamber. The jury’s finding that the defendant hospital contributed to Vandergrift’s failure to receive treatment is not challenged. Additionally, we find the evidence sufficient for the jury to have concluded, as it did, that Vandergrift’s negligence was also a contributing proximate cause of his injury. Accordingly we hold that the trial court properly submitted the issue of Vandergrift’s contributory negligence to the jury.

We have also considered plaintiffs’ contention that the trial court erred in failing to grant a new trial to Mrs. Vandergrift on her claim for loss of consortium and find no error.

AFFIRMED.

CROSS and MOORE, JJ., concur.


text:
    J. J. QUICKER, Appellant, v. CITY OF FORT LAUDERDALE, Appellee.
    No. 76-1661.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.

      Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    W. W. Caldwell, Jr. and Bryson K. Love-joy, Fort Lauderdale, for appellee.
   MOORE, Judge.

Appellant, an employee of the City of Ft. Lauderdale, seeks to participate in the City’s pension plan and contends that the refusal of the City to permit appellant to participate in the pension plan constitutes unlawful discrimination contrary to the equal protection clauses of the Florida and United States Constitutions. We agree.

Appellant commenced work as an employee of the City of Fort Lauderdale in October, 1969. At that time, he was fifty-four years, six months and twenty-nine days of age. The pension plan in effect at that time covered only those employees who were under the age of fifty-four years and six months when they were initially employed by the City.

On January 3, 1973, Ordinance C-72-94 went into effect and revised the City’s pension plans. The eligibility requirements and qualifications of this second pension plan were set forth in Section 31-3:

“Sec. 31-3. Eligibility.
(1)Conditions of Eligibility
(a) General Employees who are Participants of the City’s Employees’ Pension Plan at the time of the adoption of this Retirement System shall become Members of this System.
(b) Any future Employee shall become a Member provided that:
(1) Such Employee satisfactorily completes all required medical examinations for an Employee of his classification, and,
(2) Such Employee meets all requirements of the Civil Service Board of the City except the probationary period, and,
(3) The Employee makes required contributions as provided herein for Members of the General Employees System.”

This pension plan had no age limitation except that it provided for mandatory retirement at the age of sixty-five. The more important aspects of the plan included a monthly retirement benefit, but no employee would be entitled to the benefit unless he completed eight years of employment with the City. The other principal aspect of the plan was a preretirement death benefit equal to four times the annual earnings in effect at the date of death. In December 1973, Ordinance C-73-121 revised the second plan and reinstituted the age limitation.

Shortly after the second plan became effective in January 1973, appellant sought coverage under that plan. An employee of the City’s Finance Department had informed the employees that the new plan contained no age restriction. Soon thereafter appellant received a memorandum from the office of the Director of Finance informing him that he was not eligible under Section 31-3 of the new plan because the new plan only covered employees who were participants in the prior plan and “any future employees.” Appellant was neither an employee covered under the prior plan nor a future employee.

The discriminatory effect of the new plan on appellant can be seen through the following hypothetical situation. If a fifty-six year old person was employed by the City in March, 1973 he would qualify for the pension plan, regardless of his age, as a “future employee,” assuming he completed the requisite medical examination and provided the necessary contributions toward the plan. If a “future employee,” hired subsequent to January 3, 1973, is eligible for the plan regardless of his age, why should a “former employee,” such as appellant, remain ineligible merely because he was hired prior to January 3, 1973, and was therefore neither a “future employee” nor an employee covered under the prior plan?

The general principles applicable to equal protection clause discrimination cases have been reiterated frequently and need not be set forth with great detail. Legislative classifications which interfere with the exercise of a fundamental right (e. g., right to vote; right of interstate travel) or which operate to the peculiar disadvantage of a suspect class (e. g., race; aliens) are subjected to strict judicial scrutiny and will only be valid upon the showing of a compelling state interest. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). This case does not involve such a classification. Other discriminatory classifications, including classifications based on age, must merely adhere to the rational basis standard. Murgia, supra.

The discrimination in the instant case is based partly on appellant’s age and partly on his initial date of employment. This is not a case of pure age discrimination, such as the eligibility of an employee under 55 vis-a-vis the ineligibility of an employee over 55. As the prior hypothetical demonstrated, the issue is whether an over-55 employee hired before January 3, 1973 should remain ineligible for the pension plan while an over-55 employee hired after January 3, 1973 should qualify. The only distinction between the two individuals is their initial date of employment. While the second plan contains no express age restriction, the age restriction of the prior plan still affects appellant because he cannot qualify for the second plan by virtue of being an employee covered under the prior plan. He was not covered under the prior plan because of his age.

The City’s argument supporting appellant’s ineligibility would be persuasive in arguing that elderly employees, in general, can constitutionally be excluded from pension plans. These same arguments lose their persuasive effect when some elderly employees are eligible under the second plan, but other elderly employees are ineligible merely because they were hired before January 3, 1973. For example, the City argues that it is proper to exclude elderly employees from the plan because statistically they are more prone to die prior to retirement than employees who commence working for the City at a younger age. Inclusion of the elderly employees would •arguably subject the City to potentially onerous financial liabilities in terms of the pre-retirement death benefits. This argument, if statistically sound, could feasibly provide the rational basis to support the age discrimination in the original plan and in the December 1973 revision of the second plan. During the one year hiatus, the second plan indicates the City’s willingness to cover those employees who were over 54 years and 6 months (future employees) when hired, but not other employees in the same age category. Therefore, the City’s argument justifying the exclusion of elderly employees from the second pension plan is irrelevant.

We hold that when the City deleted the age limitation from the second plan with respect to “future employees,” but attempted to retain the age limitation with respect to appellant and other similarly situated employees, the City arbitrarily and irrationally discriminated against appellant in violation of his constitutional rights. There is no rational basis for retaining an age restriction on the eligibility of former employees while eliminating such a restriction for future employees. It is unconstitutional for the second pension plan to cover some employees who were over 54V2 years when hired, but not to cover other employees who were over 54V2 years when hired.

Thus, appellant was entitled to participate in the pension plan in early 1973 if he passed the required medical examination and made the monetary contributions toward the plan. The trial transcript reveals that appellant took the medical examination and tendered funds to the plan which were subsequently returned.

Permitting appellant to join the pension plan at this time does present some practical problems. The plan has a mandatory retirement age of 65 and post-retirement benefits are unavailable until an employee has worked for the City for at least eight continuous years and has contributed to the plan for an equal time period. Thus, even if appellant is permitted to retroactively contribute to the pension plan from January 1973 to present, appellant will still have to retire before his eight years of employment and contributions entitle him to any rights under the pension plan. We cannot permit retroactive contributions for the years 1969 through 1972 because our holding is merely that the second pension plan unconstitutionally discriminated against appellant during the one year in which it remained effective. Of course, appellant can provide the retroactive contributions and become eligible for benefits in the event the mandatory retirement age is waived or extended. Or, appellant could forego the retroactive contributions and only contribute in the future. This would entitle appellant to the preretirement death benefits since the eight year vesting period only applies to the post retirement benefits.

Accordingly, we reverse the final judgment and remand for entry of a final judgment in accordance with this opinion.

REVERSED and REMANDED.

CROSS and ANSTEAD, JJ., concur.

      . Acts done under the authority of a municipal ordinance are embraced within the Fourteenth Amendment to the United States Constitution. See Home Telephone & Telegraph Company v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510 (1913).


text:
    RAUCH, WEAVER, MILLSAPS & CO., a Florida Corporation, Appellant, v. CAMPBELL-DICKEY MARKETING SERVICES, INC., a Florida Corporation, and Frank A. Stuart, M.D., Appellees.
    No. 76-1934.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.

      Edna Louise Caruso of Montgomery, Ly-tal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    Brian L. Kimber and Michael J. Padula of Allsworth, Doumar, Schuler, Padula & Laystrom, Fort Lauderdale, for appellees.
   PER CURIAM.

Plaintiff, Rauch, Weaver, Millsaps & Co., a Florida corporation, appeals from a Final Summary Judgment in favor of the defendants Campbell-Dickey Marketing Services, Inc., a Florida corporation, and Frank A. Stuart, M.D. We hold that summary judgment was properly entered denying plaintiff the relief sought in its amended complaint. However, counsel for the defendants concede that Campbell-Dickey Marketing Services, Inc., was obligated to pay the plaintiff a six percent broker’s commission in the event the subject property was sold. In circumstances such as this, where a summary judgment should be entered, yet the plaintiff may have a cause of action not pleaded, the proper procedure is to enter the summary judgment with leave to amend. Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963).

The judgment is AFFIRMED. However, this affirmance is without prejudice to the plaintiff, within a time to be set by the trial court, to move for leave to amend its complaint against Campbell-Dickey Marketing Services, Inc.

ALDERMAN, C. J., and CROSS and MOORE, JJ., concur.


author: DAUKSCH, Judge.

text:
    Elizabeth DEVLYN, d/b/a the “Spot Restaurant”, Appellant, v. Stanley J. BOMSTEIN, P. A., d/b/a “American International Business Brokers”, Appellee.
    No. 76-2228.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Vincent Meade, Jr., Fort Lauderdale, for appellant.

      No appearance for appellee.
   DAUKSCH, Judge.

The trial court entered Judgment on the pleadings. We reverse.

Plaintiff alleges in her complaint that she is the owner of a restaurant and that she contracted with Stanley J. Bom-stein, P.A., doing business as American International Business Brokers, to have the brokers obtain a buyer for her restaurant. She alleges Trudy Temple gave the brokers a written offer to purchase the restaurant and the brokers negligently failed to deliver the offer to her in time for her to accept it. There is no allegation the plaintiff was injured by this negligence unless we go to a previous court in the complaint where she sued the broker’s salesman for his negligence (by the same acts) where it is alleged she was injured. But the previous count attempts to sue the salesman individually, even though it alleges he was acting “as a salesman for American International Business Brokers.” Therefore we take it as an allegation against the brokers, American International Business Brokers.

As can be seen, it is a most clumsily drawn complaint and that circumstance is aggravated by the Appellee not favoring us with a brief. Without the assistance of counsel our job is made much more difficult, and if it becomes a regular occurrence then our function could be so impaired as to be nigh impossible.

The complaint was met by the following answer by Bomstein:

“1. Defendant denies the allegations of paragraph 12 and demands strict proof thereof.
“2. Defendant admits the allegations of paragraph 12 and 14.”

As to paragraph 12 — does he admit or deny? In order to do equal justice for both parties we determine he denies the allegations of paragraph 12. Defendant goes on to deny the rest of the allegations and alleges an “affirmative defense” that the plaintiff’s attorney failed to convey the offer to plaintiff after he learned of it from defendant. Defendant does not allege what type of affirmative defense this is under the rules, if any. See Rule 1.110(d), Fla.R.Civ.P.

Quite reluctantly, we reverse the Judgment on the pleadings and remand the matter for further proceedings consistent herewith. Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So.2d 463 (Fla. 4th DCA 1975).

CROSS and DOWNEY, JJ., concur.


author: BURNSTEIN, MIETTE K., Associate Judge.

text:
    John J. SCHREY, Appellant, v. Cheryl J. SCHREY, Appellee.
    No. 76-2408.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.

      John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    Robert T. Clelland, Jr., Port Lauderdale, for appellee.
   BURNSTEIN, MIETTE K., Associate Judge.

This is a dissolution of marriage and child custody case filed in the Florida courts by the father, appellant herein. The appellant and the children were Florida residents, and the wife, appellee, was properly and constructively served. Appellee moved to dismiss on the grounds that the trial court lacked jurisdiction over the parties and subject matter because appellee had previously filed a divorce action against appellant in the Commonwealth of Pennsylvania, although such pleading reflected no prayer for custody. The Florida trial court granted the motion to dismiss based on a finding that the court lacked jurisdiction over the subject matter and this appeal followed. We reverse as to the finding that the court lacked jurisdiction over the children in order to determine custody.

Each state is charged with the duty to regulate the custody of infants within its borders. This is true even though the parents reside in another state or if the child’s domicile is in another state. DiGiorgio v. DiGiorgio, 153 Fla. 24, 13 So.2d 596 (Fla.1943). It is even true where a parent, in bad faith, removes the child from one state to another. State v. Webster, 151 So.2d 14 (Fla.3d DCA 1963).

The paramount concern of the court should be the best interest of the child’s welfare. Silvestri v. Silvestri, 309 So.2d 29 (Fla.3d DCA 1975).

The trial court erred in not exercising its jurisdiction and ruling in accordance therewith.

REVERSED and REMANDED.

DOWNEY and DAUKSCH, JJ., concur.


text:
    Robert S. CRISP, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
    No. 76-2743.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Petition for writ of habeas corpus having been granted with full appellate review, the appealed order is

AFFIRMED.

DOWNEY, DAUKSCH and LETTS, JJ., concur.


author: ADLERMAN, Chief Judge.

text:
    Gerald Tyrone McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 75-1852.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler and Laurie Sistrunk, Asst. Public Defenders, and Randall Denker, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for appellee.
   ADLERMAN, Chief Judge.

The defendant Gerald T. McCloud, was convicted of Murder in the First Degree and Robbery. He raises several points on appeal, none of which require reversal. However, one point merits discussion: whether the trial court committed reversible error in allowing into evidence the extra-judicial statements of a court witness who admitted that he had made the prior statements but denied that they were true.

The victim was robbed and shot to death and the defendant was identified as one of the two men who participated in the robbery-murder. Arthur Lee Bell was called to testify as a witness for the State. He had made prior statements to the police indicating that he had seen the defendant and another man after the robbery and that they had told him of their involvement in the crime. On the witness stand, however, Bell denied that he had seen the defendant. He testified that his prior statements were lies and that a police detective had “programmed” him on what to say. On the State’s motion, Bell was declared a court witness. This was not error. The trial judge has the right, in the exercise of sound discretion, to call a witness either for or against the defendant, and, when so called and questioned by the court, to permit both sides to cross-examine him. Brown v. State, 91 Fla. 682, 108 So. 842 (1926). Defense counsel objected to any testimony by the witness Bell as to admissions made by the defendant, but the only ground stated was that the State had failed to establish the corpus delicti. The objection on this ground was properly denied.

The witness Bell was then extensively questioned before the jury, first by the court and then by the prosecutor and defense counsel. The prosecutor was able to read most of Bell’s out-of-court statements aloud before the jury by asking him whether he made the statements and if they were true. Bell repeatedly admitted that he had made the statements, but continued to deny that they were true. Defense counsel did not object to this procedure; in fact, at one point during the prosecutor’s cross-examination he interjected:

Excuse me. I don’t mind the State Attorney reading this off, but if there’s a line crossed off, for the jury’s benefit, I want him to say, “Crossed out,” and what was interlineated each time so they can see the full impact of the statement.
And I also think the best evidence, if we could obtain it through a motion to produce, would be that the tape itself be played before the jury.

The factual situation in Lowe v. State, 130 Fla. 835, 178 So. 872 (1937), is analogous to the present case. The court witness is Lowe admitted making earlier statements, but claimed that they were false. On a three to three vote the defendant’s conviction was affirmed. Chief Justice Ellis, speaking for the three Justices who voted to reverse, said that the method adopted by the prosecution was improper; that when the State asks that a witness be called as a court witness, it is not permissible to allow before the jury as substantive evidence statements that the witness may have made at another time contradictory to the testimony that he gave as a court witness. On the other hand, Justice Buford, speaking for the other three Justices, said that the conviction should be affirmed because there was no proper objection to the testimony and no request was made for the court to instruct the jury concerning the purpose for which the testimony was admissible.

In the present case the jury should not have been advised as to the contents of Bell’s prior statements, and if a proper objection had been timely made, it should have been sustained. But there was no timely objection, nor was there any request on behalf of the defendant that the trial court instruct the jury limiting the consideration that it should give to Bell’s testimony.

We conclude that there was sufficient evidence independent of Bell’s testimony to establish the defendant’s guilt. The other points on appeal have been considered and found not to require reversal. The defendant’s convictions are therefore affirmed.

AFFIRMED.

CROSS and MOORE, JJ., concur.


author: HUBBART, Judge.

text:
    Richard Lee SUNDELL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-564.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 17, 1978.
    Richard R. Snyder, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., and Robert Kent Burlington, Legal Intern, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

The defendant Richard Lee Sundell appeals from a judgment of conviction for robbery and a twenty-five year sentence entered thereon after a finding of guilt in a non-jury trial before the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant contends on appeal that the evidence is insufficient to support the robbery conviction herein and that the case should be reversed and remanded for a new trial. Our review of the record reveals that the defendant made no motion for a judgment of acquittal and no post-trial motion for a new trial in the trial court. Accordingly, we affirm.

The law of this state is well-settled that unless the issue of sufficiency of the evidence to support a verdict in a criminal case is first presented to the trial court by way of a motion for judgment of acquittal or motion for new trial, the issue is not reviewable on direct appeal from an adverse judgment. The same rule obtains notwithstanding a claim on appeal, as is true in this case, that trial counsel was inadequate or incompetent in failing to make the appropriate trial or post-trial motions. There is only one exception to this rule: the Supreme Court of Florida in a capital case in which the death sentence has been imposed is empowered to make an independent review of record to determine whether the evidence is sufficient to support the verdict regardless of whether the issue was presented to the trial court by proper motion. Tibbs v. State, 337 So.2d 788 (Fla.1976); State v. Barber, 301 So.2d 7 (Fla.1974); Mancini v. State, 273 So.2d 371 (Fla.1973); § 921.141(4), Florida Statutes (1975).

Measured by these established standards, it is clear that this court has no power to entertain the defendant’s contention that the evidence is insufficient to support the verdict because it was never presented to the trial court by appropriate motion. We are without authority to entertain the issue for the first time on appeal in this non-capital case.

The defendant’s reliance on Tibbs v. State, 337 So.2d 788 (Fla.1976), and Platt v. State, 65 Fla. 253, 61 So. 502 (1913) is misplaced. In both cases, the defendant was convicted of a capital crime and sentenced to death. As such, appropriate motions in the trial court attacking the sufficiency of the evidence to support the verdict were not required in order to raise the issue for the first time on appeal. Nor is Nims v. State, 70 Fla. 530, 70 So. 565 (1915), in point because there the defendant made an appropriate motion for new trial which was denied by the trial court, thus preserving the sufficiency question for appeal. And implicit in the decisions of McNeil v. State, 104 Fla. 360, 139 So. 791 (1932); Clark v. State, 98 Fla. 874, 124 So. 446 (1929); Fuller v. State, 92 Fla. 873, 110 So. 528 (1926); Ross v. State, 190 So.2d 187 (Fla. 3d DCA 1966), is that appropriate motions were made at the trial level preserving the sufficiency question for appeal.

We are not unmindful of the admonition that rules of procedure essential to administer justice should never be permitted to become so technical, fossilized and antiquated that they obscure the justice of the cause and lead to results that bring its administration into disrepute. In re Estate of Gottschalk, 143 Fla. 371, 196 So. 844 (1940). When one is faced with a sentence to the penitentiary for a crime he did not commit, his conviction being due solely to mistaken identity, the law should not quibble over trifles in providing a formula to correct the injustice. Ex Parte Welles, 53 So.2d 708, 711 (Fla.1951). If in fact the defendant has any recognized ground for post-conviction relief under Fla.R.Crim.P. 3.850, that avenue is still open to him. See: Ex Parte Welles, 53 So.2d 708 (Fla.1951); State v. Pitts, 241 So.2d 399, 413-14 (Fla. 1st DCA 1970), vacated 247 So.2d 53 (Fla.1971), on remand 249 So.2d 47 (Fla. 1st DCA 1971); Grant v. State, 166 So.2d 503, 504 (Fla. 2d DCA 1964); Fla.R.Crim.P. 3.850.

Affirmed.


text:
    Alberto MIRANDA and Alfredo Martinez, Appellants, v. The STATE of Florida, Appellee.
    Nos. 76-1233 and 76-1234.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 17, 1978.

      Max P. Engel, David Javits, Miami, for appellants.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   HUBBART, Judge.

This is a criminal prosecution for importation and possession of marijuana before the Circuit Court for the Sixteenth Judicial Circuit of Florida in which the defendants were convicted as charged and sentenced to prison. The defendants appeal.

The only substantial issue presented for review is whether Florida Marine Patrol officers may board a boat temporarily moored in Florida waters to inspect the owner’s boat registration and crawfish per-, mit and thereafter conduct a warrantless search of the boat based upon a smell of marijuana detected by one of the officers upon boarding the boat — consistent with the constitutional right of the boat owner or occupant to be free from unreasonable searches and seizures guaranteed by the federal and state constitutions. We hold that such boarding and search is constitutional within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. Accordingly, we affirm.

The facts surrounding the search and seizure in this case are substantially undisputed. On January 2, 1976, in the afternoon hours, two Florida Marine Patrol officers were on routine patrol by boat in the waters off Card Sound in Monroe County, Florida. They saw a commercial fishing boat occupied by the two defendants, Alberto Miranda and Alfredo Martinez, tied up in the mangroves at the mouth of a small creek known as Angelfish Creek. The defendant Miranda appeared to be sleeping on the deck of the boat while the defendant Martinez was in the boat cabin.

One of the officers called but did not arouse the defendant Miranda as they pulled alongside the defendants’ boat. The two officers thereupon boarded the boat for the purpose of checking the boat’s registration and crawfish permit. As they boarded, both officers detected a strong, musty odor emanating from somewhere on the boat. One of the officers with prior law enforcement experience with marijuana identified the smell as that of marijuana and began searching the boat to locate the suspected drug.

Meanwhile, the other officer aroused the defendant Miranda and spoke to him and the defendant Martinez who had emerged from the boat cabin. This officer obtained a valid boat registration and crawfish permit from the defendants and began questioning them about their fishing activities. While this questioning was taking place, the first officer searching the boat, opened the hatch of the boat where the marijuana odor was particularly pungent and discovered a large quantity of marijuana therein which was eventually seized. No search warrant was ever applied for or issued in this case. The defendants were thereupon placed under arrest and this prosecution followed.

The defendants in the trial court filed a motion to suppress the marijuana seized from the boat. The trial court held a pretrial evidentiary hearing on the motion in which the above facts were elicited. At the conclusion of the hearing, the trial court entered an order denying the motion to suppress finding that the search was justified under an exception to the rule requiring search warrants in that there was probable cause for the search of the boat coupled with exigent circumstances dispensing with the necessity for a search warrant. We entirely agree.

The law is well-settled that a search of private property conducted by state or federal agents without a duly issued search warrant is per se “unreasonable” under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12, of the Florida Constitution — subject only to a few specifically established and well-delineated exceptions justified by absolute necessity. These exceptions have been jealously and carefully drawn, and the burden is upon the state to demonstrate their application in a given case which implicit therein requires a showing that the procurement of a search warrant was not feasible because the exigencies of the situation made that course imperative. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Hornblower v. State, 351 So.2d 716 (Fla.1977) (opinion filed October 27, 1977); Haile v. Gardner, 82 Fla. 355, 91 So. 376, 378 (1921); Britton v. State, 336 So.2d 663 (Fla. 1st DCA 1976); Shepard v. State, 319 So.2d 127 (Fla. 1st DCA 1975); Hannigan v. State, 307 So.2d 850 (Fla. 1st DCA 1975).

One of the recognized exceptions to the search warrant requirement rule is that a moving vehicle may be searched without a search warrant if there is probable cause to believe that the vehicle contains contraband or evidence of crime. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), adopted by Section 933.19, Florida Statutes (1975); Collins v. State, 65 So.2d 61 (Fla.1953). This exception is grounded in absolute necessity and has been applied to boats as well as automobiles and other motor vehicles. Carroll v. United States, 267 U.S. 132, 151, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Hill v. State, 238 So.2d 608 (Fla.1970). To require the procurement of a search warrant for such moving conveyances would be extremely impracticable because the conveyance is highly mobile and capable of being removed from the jurisdiction prior to the time a search warrant could be applied for and obtained. Furthermore, it has long been felt that one’s reasonable' expectation of privacy in an automobile or boat is less than that of a private dwelling and therefore is more open to legitimate governmental intrusion. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Cameron v. State, 112 So.2d 864, 873 (Fla. 1st DCA 1959).

Related to this exception is the well-established authority of proper law enforcement officers to stop and board a boat in Florida waters for the purpose of checking the boat’s registration and crawfish permit. Hill v. State, 238 So.2d 608 (Fla.1970); Sections 370.021(5), 370.14(3)(c), 371.051(5), Florida Statutes (1975). This is akin to the authority of proper law enforcement officers to stop an automobile for the purpose of making a driver’s license or car registration check. City of Miami v. Aronovitz, 114 So.2d 784 (Fla.1959); Cameron v. State, 112 So.2d 864, 869 (Fla. 1st DCA 1959); Section 321.05(1), Florida Statutes (1975). Such authority, however, does not carry with it the right to conduct a general exploratory search of the boat or automobile for evidence of crime. In the absence of probable cause or some other recognized exception to the search warrant rule, such warrantless searches are clearly unreasonable. Hill v. State, 238 So.2d 608 (Fla.1970); City of Miami v. Aronovitz, 114 So.2d 784 (Fla.1959).

Measured by these standards, the search and seizure in this case was reasonable. The Florida Marine Patrol officers lawfully boarded the defendants’ boat for the purpose of checking the boat’s registration and crawfish permit. Upon boarding the boat, both officers smelled a very strong odor which one of the officers knowledgeable in the drug area identified as that of marijuana. In our view, this gave the officers probable cause to search the boat for marijuana without a search warrant. See: Dixon v. State, 343 So.2d 1345, 1348 (Fla. 2d DCA 1977); State v. Boyle, 326 So.2d 225 (Fla. 2d DCA 1976); Mattson v. State, 328 So.2d 246, 248 (Fla. 1st DCA 1976); Berry v. State, 316 So.2d 72 (Fla. 1st DCA 1975); Porter v. State, 302 So.2d 481 (Fla. 3d DCA 1974). It was impracticable to require the officers to procure a search warrant in view of the fact that the boat was mobile and capable of being moved from the jurisdiction before a search warrant could be obtained. Accordingly, the trial court was eminently correct in denying the motion to suppress.

We have considered the other contentions raised by the appellants on this appeal and find them to be without merit. The judgments of conviction and sentences herein are affirmed.

Affirmed.

      . Sections 893.13(l)(d) and (e), Florida Statutes (1975).

      . “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S.Const. amend. IV. “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . U.S.Const. Amend. XIV, § 1.

      .“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.” Art. I, § 12, Fla.Const.


text:
    Evelyn KAZDAN, Appellant, v. Lester A. RUSSIN, M.D., Michael Russin, M.D., Mt. Sinai Hospital of Greater Miami, Inc., Travelers Insurance Company, Dr. Hyun Oh and Imperial Insurance Company, Appellees.
    No. 76-1521.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 13, 1978.
    Freidin & Goldfarb, Miami, for appellant.
    Adams, George, Lee, Schulte & Ward and Amy Shield Levine, Milton Kelner, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Roth v. Dade County, 71 So.2d 169 (Fla.1954); Carter v. Florida Power and Light Co., 138 Fla. 220, 189 So. 705 (1939); McDonald v. Moore, 323 So.2d 635 (Fla.3d DCA 1975); Parmerter v. Osteopathic General Hospital, 196 So.2d 505 at 507 (Fla.3d DCA 1967).


author: PER CURIAM. PEARSON, Judge

text:
    S. W. P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1596.
    District Court of Appeal of Florida, Third- District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 17, 1978.

      Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, and Rory Stein, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., and Edwin D. Davis II, Legal Intern, for appel-lee.
    Before HAVERPIELD, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Respondent juvenile appeals an adjudication of delinquency for unlawfully receiving stolen property.

A petition for delinquency was filed charging the respondent with unlawfully receiving, retaining, disposing of or aiding in the concealment of stolen property, a motorcycle. Section 812.031, Florida Statutes (1975). The petition was later amended to include the charge of larceny of the same motorcycle. Section 812.021, Florida Statutes (1975).

Upon the close of the State’s case, respondent’s counsel moved that the State be required to elect between the two charges. The judge reserved ruling and at the close of all the evidence required the State to make an election. The State elected to proceed on the unlawful receipt of stolen property charge. Respondent’s counsel then moved for judgment of acquittal. The judge denied the motion and adjudicated the respondent delinquent. We reverse.

There does not appear of record competent substantial evidence to support the adjudication of delinquency for unlawful receipt of stolen goods. Rather, the testimony and the inferences to be drawn at best went toward proving the theft of the motorcycle. The established law is that one who steals property or is a principal to the theft cannot be convicted of receiving, retaining, disposing or aiding in the concealment of stolen property. See Ketelsen v. State, 211 So.2d 853 (Fla.3d DCA 1968); Thomas v. State, 216 So.2d 25 (Fla.3d DCA 1968); E. C. v. State, 280 So.2d 492 (Fla.3d DCA 1973); McWhirter v. State, 325 So.2d 463 (Fla.1st DCA 1976); C. M. I. and A. R. v. State, 335 So.2d 868 (Fla.3d DCA 1976).

Reversed.

PEARSON, Judge

(dissenting).

Juvenile proceedings are not criminal in nature and, therefore, the juvenile in the present case was delinquent if either charge was proved. Where the evidence at the conclusion of the case establishes delinquency pursuant to the sufficiently clear wording in the petition of delinquency, the finding of delinquency ought not be reversed upon a holding that the wrong kind of delinquency was proved, unless some prejudice to the juvenile in the defense of the charge can be found in the record. I would, therefore, affirm.

      . See § 39.10(5), Fla.Stat. (1975); and Richardson v. State ex rel. Milton, 219 So.2d 77, 80 (Fla.3d DCA 1969). But see Fla.R.Juv.P. 8.180(a).

      . See Fla.R.Juv.P. 8.110(c)(1).

      . See In Interest of V. D., 245 So.2d 273 (Fla.4th DCA 1971).


author: KEHOE, Judge.

text:
    JEFFERSON NATIONAL BANK OF MIAMI BEACH, Appellant, v. CITY OF MIAMI BEACH, Appellee.
    No. 76-2049.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    John G. Fletcher, Coral Gables, for appellant.
    Joseph A. Wanick, City Atty., for appel-lee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final decree dated October 7, 1976, denying its complaint for injunctive relief seeking to compel appellee, defendant below, to rezone certain property owned by appellant from single family district to general office district use. The primary thrust of appellant’s complaint was that the present zoning of the subject property is not fairly debatable and, therefore, is confiscatory. We have concluded that there was substantial competent evidence to support the final decree entered by the trial court; therefore, the final decree is affirmed.

Appellant is the owner of a piece of property with a legal description of Lot 1, Block 2, Orchard Subdivision No. 4, Plat Book 25, Page 30 of the Public Records of Dade County, Florida. The subject piece of property is a vacant lot, 158 feet by 70 feet, located on the corner of West 42nd Street and Pinetree Drive, City of Miami Beach, Florida, across the street from appellant. For several years, the property has been zoned RS-3 (single family district). In June of 1975, appellant made application to the City of Miami Beach, appellee herein, for a rezoning of the property from the RS-3 category to the C-2 (general office district) category, for the purpose of placing a parking lot on the property. The Miami Beach Planning Board, after a public hearing, recommended to the City Council a denial of the zoning request. Appellant appealed this recommendation to the City Council, appeared before the Council and was denied in its request for the zoning change.

After appellant was unsuccessful in its attempts to have the property rezoned through the administrative processes, it brought a complaint for injunctive relief in the Circuit Court of Dade County seeking to compel appellee to rezone the property as requested. Because appellee zones property by ordinance rather than by resolution, this was the appropriate procedure. After a hearing, the trial court entered a final decree denying appellant’s complaint. From this final decree, appellant appeals.

Appellant raises the two following points on appeal: (1) whether there was substantial competent evidence supporting the trial court’s final decree that the present single family zoning on the subject property was fairly debatable, and thus not an illegal and constitutional confiscation of its property, and (2) whether the doctrine of res judicata is applicable in the instant case.

The crux of this appeal is the question of whether the trial court’s final decree, predicated upon the premise that the present zoning of appellant’s property is fairly debatable, is supported by competent substantial evidence. Because of the sophistication of the parties to this appeal, it is unnecessary for us to invoke the usual litany of authority by which appeals, such as this one, are determined. Suffice it to say that, after applying the appropriate rules of appellate review, we have concluded that the final decree entered by the trial court was supported by competent substantial evidence. See, e. g., Biscayne Manufacturing Corp. v. Sandav Corp., 323 So.2d 315 (Fla. 3d DCA 1975); Manufacturers National Bank v. Canmont Internat’l, Inc., 322 So.2d 565 (Fla. 3d DCA 1975); Fernandez v. Arocha, 308 So.2d 45 (Fla. 3d DCA 1975); and Old Equity Life Insurance Company v. Levenson, 177 So.2d 50 (Fla. 3d DCA 1965). Further, in the light of this determination, it is unnecessary for us to decide appellant’s second point on appeal, i. e., whether the case of Jefferson National Bank v. City of Miami Beach, 267 So.2d 100 (Fla. 3d DCA 1972), as asserted by appellee as an affirmative defense in its answer, operated as res judicata in the instant case.

For the reasons set forth above, the final decree entered by the trial court is affirmed.

Affirmed.

CHARLES CARROLL, Associate Judge, dissents.


text:
    Nelson Earl KOWALCZYK, Appellant, v. The STATE of Florida, Appellee.
    No. 77-597.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 13, 1978.
    Black & Denaro, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final judgment of conviction for first degree murder, robbery, conspiracy to commit a felony, and a sentence of life imprisonment. Of the three points raised on appeal by appellant, one was abandoned. The two remaining points fail to show any reversible error on the part of the trial court; therefore, the judgment and sentence appealed are affirmed. See, e.g., Hoskins v. State, 70 Fla. 186, 69 So. 701 (1915); Brown v. State, 40 Fla. 459, 25 So. 63 (1898); Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976); Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA 1976); Mobley v. State, 327 So.2d 900 (Fla. 3d DCA 1976); and Sikes v. State, 280 So.2d 17 (Fla. 3d DCA 1973).

Affirmed.


text:
    Timothy NEMETH, Appellant, v. Mario Luis DE LAUEGA et al., Appellees.
    No. 77-703.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 17, 1978.
    Martin M. Dernis, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The plaintiff Timothy Nemeth appeals from a final summary judgment in a personal injury tort action entered in favor of the defendants John Duncan, Nancy Duncan and their insurer, State Farm Fire & Casualty Co. The final summary judgment reflects that the trial court in part based its ruling on certain photographic evidence. The transcript of the hearing on the motion for summary judgment further reflects that the trial judge extensively reviewed a series of photographs pertinent to this case and specifically requested that these photographs be included in the record on appeal for our review. The appellant has failed to include these photographs in the record before us.

The law is clear that it is the responsibility and duty of the appellant to provide the appellate court with a record sufficient to review the matter assigned as error. South Florida Apartment Ass’n, Inc. v. Dansyear, 347 So.2d 710 (Fla. 3d DCA 1977); Gleim v. Gleim, 176 So.2d 610 (Fla. 3d DCA 1965) and cases collected. Although we have been critical of the use of photographs as a basis for entering a summary judgment, the law is equally clear that in certain limited cases photographic evidence may form the basis for a summary judgment. See: Bess v. 17545 Collins Avenue, Inc., 98 So.2d 490 (Fla.1957); Pividal v. City of Miami, 105 So.2d 502, 504 (Fla. 3d DCA 1958). For failure of the appellant to include in the record on appeal the essential photographs which form in part the basis for the summary judgment herein, we have no alternative but to affirm the judgment below. South Florida Apartment Ass’n v. Dansyear, 347 So.2d 710 (Fla. 3d DCA 1977); Reicheck v. Florida Bond & Mortgage Co., 237 So .2d 83 (Fla. 4th DCA 1970); Belfield v. Lochner, 162 So.2d 668 (Fla. 2d DCA 1964).

Affirmed.


text:
    POLAR ENTERPRISES, INC., a Florida Corporation and Luis Bertot, Individually, Appellants, v. Jerome M. SREDNICKI, d/b/a Clock & DeCloux, Appellee.
    No. 77-1443.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 17, 1978.
    Laurence D. Faye, Coral Gables, for appellants.
    Rash & Katzen, South Miami, for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

In this case, the court had once set aside a default that permitted delinquent defendants to plead. Thereafter, the plaintiff sought an amendment to his complaint. In permitting the amendment because of prior confusion about pleadings, the trial judge directed (by court order) the defendants to file an answer by a day certain. This the defendants declined to do and, after the time for filing had expired, the plaintiff moved for a default based upon the defendants’ failure to comply with the court order. The judge entered the default. At no time did the defendants tender an answer to the amended complaint. Thereafter, final judgment was rendered on the default and this appeal ensued, contending that the trial court erred in the entry of the second default. We disagree, and affirm the action of the trial judge.

The order specifically required the filing of an answer and the court was justified in entering a default when the defendants failed to abide by the court order. Jordan v. John Ryan Company, 35 Fla. 259, 17 So. 73 (1895); Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972); cf. Synthetic Environmental Development Corp. v. Sussman, 275 So.2d 291 (Fla.3d DCA 1973). The appellants contend they had a right to have their answers stand over, pursuant to Fla.R.Civ.P. 1.190(a), and Ortiz v. Nicolaides, 196 So.2d 186 (Fla.3d DCA 1967); Rubenstein v. Richard Fidlin Corporation, 346 So.2d 89 (Fla.3d DCA 1977). This is generally true; however, in the instant case there was an order directing them to file an answer and it was for this failure to comply with the court order that the subsequent default was entered.

Therefore, the final judgment here under review be and the same is hereby affirmed.

Affirmed.


author: MILLS, Judge. BOYER, Judge,

text:
    J. W. HARRELL, Appellant (Plaintiff), v. FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE, a corporation, as Executor of the Estate of Elmo M. Pearce, Deceased, Appellee (Defendant).
    No. FF-117.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1978.
    Rehearing Denied Feb. 21, 1978.
    Charles Cook Howell, Jr., Jacksonville Beach, for appellant.
    Michael K. Sapp, of Rogers & Fisher, Jacksonville, for appellee.
   MILLS, Judge.

This is an interlocutory appeal by plaintiff, Harrell, from a partial summary judgment entered in favor of defendant, Executor, in a declaratory judgment action seeking construction of an oral trust created by Pearce and of which Harrell was trustee.

Harrell contended the trust was created for the benefit of Pearce’s grandson, Hodges, now deceased, and as security for legal fees due him from Pearce for services rendered Pearce during his lifetime. The Executor contended the trust was created for the sole benefit of Hodges and because Hodges is now dead the trust assets should revert to the estate.

The Executor moved for summary judgment using the following language:

“Defendant respectfully moves this Court for a summary judgment upon all or any part of Defendant’s pleadings in this cause since the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that Defendant is entitled to a judgment as a matter of law because Plaintiff is without admissible evidence to support a fact which he must establish and Defendant has attached hereto admissible evidence showing an absence of said fact.”

Attached to the motion was an affidavit of an attorney for a beneficiary of the Pearce Estate to which was attached a letter from Harrell to the attorney in which Harrell stated that he was holding funds given to him by Pearce in trust for the benefit of Hodges.

At the hearing on the motion, the Executor offered this affidavit in evidence and it was received by the court without objection by Harrell. No other evidence was offered by nor was any other evidence mentioned in argument made by the Executor. Harrell relied upon his deposition which had been taken and filed with the clerk by the Executor. The Executor timely objected to all parts of the deposition which violated the Dead Man’s Statute, Section 90.05, Florida Statutes (1975), and the court sustained the objection.

The key issue raised by this appeal is whether the use of the word “depositions” in the Executor’s motion for summary judgment constituted “use” of the deposition by the Executor, therefore a waiver of the Dead Man’s Statute. The trial court held there was no use of the deposition, therefore no waiver. We agree.

The taking of the deposition of a party or interested person does not waive the protection of the Dead Man’s Statute. Herring v. Eiland, 81 So.2d 645 (Fla.1955). To constitute a waiver, it must be “used” in a subsequent proceeding such as a summary judgment proceeding. Herring case. “Used” means to offer the deposition as evidence, Barber v. Adams, 208 So.2d 869 (Fla. 2d DCA 1968), or to refer to portions of the deposition in oral argument at the proceeding, Bordacs v. Kimmell, 139 So.2d 506 (Fla. 3d DCA 1962).

In the case before us the Executor did not introduce the deposition into evidence and made no reference to it in oral argument. The use of the word “depositions” in the motion did no more than recite the language of the summary judgment rule, Fla.R.Civ.P. 1.510(c). That part of the motion which reads:

“. . . because Plaintiff is without admissible evidence to support a fact which he must establish and Defendant has attached hereto admissible evidence showing an absence of said fact. . .”

states the legal grounds upon which the motion is based and the evidence which supports it. This did not include the Harrell deposition. The Executor did not attempt to derive benefit from Harrell’s deposition and then preclude him from using the deposition.

The Executor did not “use” Harrell’s deposition to support its motion for summary judgment, therefore it did not waive the Dead Man’s Statute.

Harrell urges that the Executor’s use of the affidavit with attached letters waived the Dead Man’s Statute. We do not agree. The affiant was not a party or interested person under Section 90.05.

Harrell also urges that the affidavit and attachments were insufficient to shift to him the burden of introducing evidence that the second purpose of the trust was to create security for legal fees owed him by Pearce. We do not agree. The evidence adduced is sufficient to show that the trust was created for the sole benefit of Hodges and to negate the contention of Harrell that there was a second purpose.

The partial summary judgment is affirmed.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I respectfully dissent. I cannot agree that the deposition was not “used”. The subject appeal is, as recited in the majority opinion, from a partial summary judgment. The summary judgment was entered pursuant to the executor’s motion which was filed pursuant to, and tracked the language of, Fla.R.Civ.P. 1.510. That rule specifically provides that summary judgment shall be entered only “if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The trial judge is required by the rule to consider each of the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any. Failure to consider each is error. If the subject deposition was considered, as it is required to have been, it necessarily follows that it was “used”. As recited in the majority opinion, the key issue involved in this appeal relates to whether or not the deposition of the executor was “used”. The trial court held that it was not. If it was not then the learned trial judge erred in entering the summary judgment without its use. If it was used then there was a waiver of the deadman statute.

I agree that since the affiant was not a party or interested person under F.S. 90.05 the executor’s use of the affidavit with attached letters was not a waiver of the deadman statute.

I would reverse.