text:
    THE FLORIDA BAR. In re Petition for Reinstatement of John T. BOND.
    No. 49120.
    Supreme Court of Florida.
    April 28, 1976.
    John A. Sutton, Orlando, for petitioner.
    David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, respondent.
   PER CURIAM.

This matter is before us on Petition for Reinstatement by John T. Bond as a member in good standing of The Florida Bar. This Petition is supported by the Referee who recommends reinstatement and the Board of Governors of The Florida Bar who approve such recommendation. Bond was allowed to resign as an active member of The Florida Bar by decision of this Court in In re: The Florida Bar, 301 So.2d 446 (Fla.1971), filedjuly 12, 1971.

Our examination of the Petition, the reinstatement hearing transcripts, and supporting documentation leads us to conclude that the Petition for Reinstatement should be granted.

Accordingly, it is the judgment of this Court that Petitioner, John T. Bond, should be and is hereby reinstated to membership in The Florida Bar. Costs of these proceedings in the amount of $1,283.-48 are hereby charged against Petitioner.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND and HATCH-ETT, JJ., concur.


source: Caselaw Access Project

author: OVERTON, Chief Justice.

license: Public Domain

text:
    Raymond F. FAYERWEATHER, Petitioner, v. STATE of Florida, Respondent.
    No. 46641.
    Supreme Court of Florida.
    April 28, 1976.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Elliot H. Scherker and Kurt Marmar, Asst. Public Defenders, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for respondent.
   OVERTON, Chief Justice.

This cause is before the Court on a petition for writ of certiorari to review the decision of the Third District Court of Appeal in Fayerweather v. State, 303 So.2d 34 (Fla.App. 4th 1974). That - decision conflicts with Lore v. State, 267 So.2d 699 (Fla.App. 4th 1972) and Strada v. State, 267 So .2d 702 (Fla.App. 4th 1972). We have jurisdiction.

The State Credit Card Crime Act constitutes Part II of Florida Statutes, Chapter 817, Fraudulent Practices. It proscribes certain fraudulent uses of credit cards and deems the violation of each of its provisions either a first degree misdemeanor or a third degree felony and punishes accordingly. Section 817.68 provides that the act,

“ . . . shall not be construed to preclude the applicability of any other provision of the criminal law of this state . . . unless such provision in inconsistent with [its] terms . . . .”

The issue to be decided is whether conduct which violates both the State Credit Card Crime Act, Section 817.60(1), (3), Florida Statutes 1973, and the provision making it unlawful to receive stolen property, Section 811.16, Florida Statutes 1973, may be punished under the latter, even though the former, a newer law, sets a less severe punishment.

Petitioner was convicted of receiving stolen property, a credit card, in violation of Section 811.16, Florida Statutes 1973, and sentenced to five years imprisonment. Petitioner contends his sentence may be no longer than one year, the maximum set by the State Credit Card Crime Act for violation of Section 817.60(1), (3), Florida Statutes 1975. Petitioner unsuccessfully sought habeas corpus in the Eleventh Circuit Court. The Third District Court of Appeal affirmed, declining to follow the Fourth District Court of Appeal’s decisions in Lore v. State, supra, and Strada v. State, supra. The Third District adopted the view of the Second District Court of Appeal in State v. McCurdy, 257 So.2d 92 (Fla.App. 2d 1972) and McConnell v. State, 298 So.2d 550 (Fla.App. 2d 1974).

In Lore, the Fourth District Court of Appeal interpreted Section 817.68 of the Credit Card Crime Act to mean that if any part of any other criminal provision conflicted with any part of the act, the conflicting part would be supplanted by the terms of the act. The court held that where a person’s conduct violated both the credit card law and another state law, he may be charged and convicted under either provision but may be sentenced only as prescribed in the credit card act. The court reiterated this view in a companion case, Strada, and in the later case, Gordon v. State, 312 So.2d 809 (Fla.App. 4th 1975).

In State v. McCurdy, supra, the Second District Court of Appeal interpreted Section 817.68 to require irreconcilable conflict between the act and another law before “denying a clear field of operation to either, at the election of the State.” 257 So.2d at 94. The court noted that the intent of Section 817.68 is to make prosecution under the act non-exclusive, rather than exclusive. See also McConnell v. State, 298 So.2d 550 (Fla.App. 2d 1974).

It is not unusual for a course of criminal conduct to violate laws that overlap yet vary in their penalties. Multiple sentences are even allowed for conduct arising from the same incident. See, e. g., Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Estevez v. State, 313 So.2d 692 (Fla.1975), and Steele v. Mayo, 72 So.2d 386 (Fla.1954). Traditionally, the legislature has left to the prosecutor’s discretion which violations to prosecute and hence which range of penalties to visit upon the offender. Section 817.68 of the State Credit Card Crime Act suggests no legislative retreat from this practice. We do not read the section to require exclusive prosecution under this act when the elements' of other criminal laws are also present. We hold the petitioner was properly convicted and sentenced for knowingly receiving stolen property under Section 811.16, Florida Statutes 1973.

We approve the decision of the Third District Court of Appeal and discharge the writ.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . Art. V, See. 3(b) (3), Fla.Const.


text:
    Robert E. SIZEMORE, Petitioner, v. CANAVERAL PORT AUTHORITY, and Aetna Insurance Company, Respondents.
    No. 46429.
    Supreme Court of Florida.
    April 28, 1976.

      Sammy Cacciatore, Nance & Cacciatore, Melbourne, for petitioner.
    Wendell J. Kiser, Akerman, Senterfitt, Eidson & Wharton, Orlando, for respondents.
   OVERTON, Chief Justice.

This is a claimant’s petition for writ of certiorari to the Industrial Relations Commission. We have jurisdiction.

At petitioner’s job site on June 19, 1968, a tractor rolling backwards crushed petitioner against a trailer. Petitioner was hospitalized, treated and released July 12, 1968, with no diagnosed impairments of any present significance. Subsequently in June, 1972, during a preinduction physical examination, petitioner first learned of the condition diagnosed as a very large dissecting aneurysm of the thoracic aorta. He was advised it could rupture at any time, especially when subjected to heavy physical exertion or any other stimulus producing high blood pressure, the rupture resulting in immediate death.

Defendant’s claim for compensation for this condition was filed May 4, 1973. Expert testimony at the hearing established surgical treatment was not recommended owing to substantial risk of death or paralysis. It is uncontroverted that the aneurysm was caused by the job-related injury occurring in June, 1968.

Before the 1972 diagnosis petitioner maintained a normal lifestyle, including surfing for a year in California prior to finishing high school, further schooling, and taking occasional light physical work. Following the diagnosis and throughout these proceedings petitioner has manifested a psychological disturbance secondary to this condition which has raised the question of his fitness for any sort of work. The parties stipulated at hearing that petitioner’s wage was $60 per week and that appropriate compensation would be $36 per week therefor.

The Judge of Industrial Claims concluded as a matter of law that petitioner should receive temporary total disability for the period between his injury in June, 1968, and May 1, 1973, the date on which he found maximum medical improvement to have occurred, despite petitioner’s ignorance of the aneurysm until June, 1972. The Judge’s basis for this decision is not clear, and the ' Commission reversed the finding. The record is clear that petitioner observed no physical limitations during the period ending in June, 1972, and his ignorance protected him from the psychological stress he now experiences. Since petitioner experienced no known disability or physical restriction, we must conclude he was not disabled during that period within the meaning of the compensation law.

From the time of the diagnosis in June, 1972, to May 1, 1973, medical testimony established the condition of petitioner’s mental health to be such as to disqualify him from employment, in addition to being physically disqualified from any strenuous activity. The condition was described as one of severe depression, frustration and anxiety secondary to the diagnosis, a reaction much like that a very serious cancer or cardiac patient would experience. The Commission’s objection to any disability finding for this period was based on petitioner’s failure to test the job market. We disagree since the proven mental aspect of his health prevented gainful employment. Cf. Superior Mill Works v. Gabel, 89 So.2d 794, 795 (Fla.1956), citing with approval A. Larson, Workmen’s Compensation, § 42.22 (1st ed. 1952).

The Judge of Industrial Claims next found that petitioner reached maximum medical improvement May 1, 1973, relying on prognoses in the record for the aneurysm. The Commission reversed this finding, citing the testimony of two physicians indicating the contrary. We agree. Our review indicates such testimony is. accurately relied on by the Commission and is not disputed in the record. Both physicians testified that when considering the physical and mental aspects of petitioner’s health together, it had not stabilized but showed potential for improvement.

The Judge of Industrial Claims looked beyond the stipulation of the parties concerning the petitioner’s wage at the time of the injury, and increased the amount awarded as compensation from $36 to $49 per week. He determined Section 440.14(4), Florida Statutes (1973), to authorize such action. The Commission reversed the increase, holding the Judge of Industrial Claims bound by the stipulation. We agree since there was no evidence before the Judge of Industrial Claims from which he could make that finding.

Our opinion renders the penalties assessed by the Judge of Industrial Claims improper, and renders excessive the attorney’s fee. We remand this cause to the Industrial Relations Commission with directions to remand it to the Judge of Industrial Claims for further findings of fact and entry of an order consistent with this opinion.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ROBERTS and ADKINS, JJ., dissent.

      . Art. V, § 3(b)(3), Fla.Const.

      . Workmen’s Compensation Law :
      “440.14 Determination of pay. — Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined subject to limitations of subsection (2) of § 440.12 as follows:
      * * * % *
      “(4) If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his average weekly wages.” § 440.14(4), Fla.Stat. (1973).


author: PER CURIAM.

text:
    William BUCOLO, Appellant, v. STATE of Florida, Appellee. Ronald A. SIMPSON, Appellant, v. STATE of Florida, Appellee. James R. AGUT, Appellant, v. STATE of Florida, Appellee. William BUCOLO and James R. Agut, Appellants, v. STATE of Florida, Appellee.
    Nos. 38280, 38279, 38278, 38424.
    Supreme Court of Florida.
    April 28, 1976.

      Richard Yale Feder, Irma Robbins Fed-er, Miami, Alfred I. Hopkins, Miami Beach, and Allan V. Everard, Riviera Beach, for appellants.
    Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We reconsider our opinion in the instant case appearing at 316 So.2d 551 (1975), pursuant to the direction of the United States Supreme Court in Bucolo v. Adkins, — U.S. —, 96 S.Ct. 1086, 47 L.Ed.2d 301, 44 U.S.L.W. 3500 (1976). That Court, referring to its opinion in Bucolo v. Florida, 421 U.S. 927, 95 S.Ct. 1651, 44 L.Ed.2d 84 (1975), held this state was “clearly foreclosed” from proceeding further in this cause.

In accordance therewith, the convictions of appellants are reversed and they are hereby discharged from further response to these proceedings.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.


text:
    Delores CASTLE, Appellant, v. STATE of Florida, Appellee.
    No. 75-588.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1976.
    Richard L. Jorandby, Public Defender, and James R. Merola, Special Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant-defendant, Delores Castle, appeals a judgment adjudging her guilty, and sentence for the offense of possession of heroin.

Upon review of the record on appeal and after consideration of the briefs submitted by counsel for the respective parties, we determine the warrantless arrest of the appellant was not based on probable cause. Therefore, the trial court erred in denying appellant’s motion to suppress evidence seized incident to this arrest.

Accordingly, the judgment and sentence herein appealed is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

WALDEN, C. J., and CROSS and OWEN, JJ., concur.


author: SMITH, Judge.

text:
    Thomas Edward REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. Z-186.
    District Court of Appeal of Florida, First District.
    April 30, 1976.

      J. Michael Carter, of Thompson, Gille-land & Carter, Crawfordville, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

Reynolds appeals from judgments and imprisonment sentences for breaking and entering with intent to commit grand larceny and grand larceny. He asserts that the evidence was insufficient to sustain his conviction and that the trial court erred in failing to repeat entirely, when requested to do so by the jury, its charges on the elements of breaking and entering with intent to commit grand larceny and on the State’s burden of proof.

Just before midnight on the night of the offenses, witnesses looked through the plate glass windows of Whitehill Equipment Company in Tallahassee and saw inside three black males moving around and removing merchandise. One wore a brown jacket. As police arrived, two of the thieves left on foot. The third, Frederick Henderson, was arrested while attempting to drive an automobile loaded with stolen merchandise away from the scene. See Henderson v. State, 332 So.2d 30 (Fla.App. 1st, 1976). Appellant, a black male wearing a brown jacket, was stopped while jogging down a nearby street. Appellant identified himself, explained that he often took his nightly exercise in that area and was generally cooperative with the investigating police, who accepted his explanation. Thereafter, the car in which Henderson had been apprehended was found to be registered to appellant and appellant claimed the impounded automobile as its owner.

The evidence, when viewed by a jury cognizant of the presumption of innocence and the State’s burden of proof, could support a conscientious verdict that appellant participated in breaking and entering the Whitehill premises in order to commit grand larceny, and, after entering, committed grand larceny. But in the course of its deliberation, the jury returned to request that the court repeat its instructions on “circumstantial evidence and breaking and entering . . . and reasonable doubt.” The court, which had previously charged the jury on these subjects as recommended in Florida Standard Jury Instructions-Criminal, repeated the previously given charge on breaking and entering with intent to commit grand larceny but omitted the italicized portion set out below:

“Now, even though an unlawful breaking and entering is proved, if the evidence does not establish that it was done with the intent to commit the particular crime stated, the Defendants must be found not guilty. The intent with which an act is done is an operation of the mind and, therefore, it is not always capable of direct and positive testimony and proof. Therefore, it may be established by circumstantial evidence like any other fact in the case.”

And in recharging the jury on the State’s burden of proof, the court stated:

“ . . . Now, reasonable doubt. (Pausing) First, I charge you that you must carefully, impartially and conscientiously consider, compare and weigh all of the evidence. And if after doing this you think that your understanding, judgment and reason are well satisfied and convinced to the point of having a full, firm and an abiding conviction that the charge has been proved to the exclusion of and beyond a reasonable doubt, it is your duty to find the Defendant guilty. Now, a doubt which is a mere possible doubt, a speculative or imaginary or a forced doubt is not a reasonable doubt. And for the reason that everything relating to human affairs is open to some doubt of this kind, such a doubt must not influence you, the Jury, to return a verdict of not guilty where you do .have an abiding conviction of guilt. On the other hand, if after carefully considering, comparing and weighing all the evidence there is not an abiding conviction of guilt, or if you have a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you should find the Defendant not guilty because this doubt is reasonable. And a doubt which is not suggested by or does not arise from the evidence or the lack of evidence is not a reasonable doubt and should never be considered. In other words, a reasonable doubt is a doubt which you can explain and accept and justify in your own mind, not one that you conjure up and want to believe. . . . ”

The court failed to repeat the charge previously given in introducing the words above quoted, that "the Defendant . is presumed to be innocent until his guilt is established by the evidence to the exclusion of and beyond every reasonable doubt” and refused to charge the jury again concerning the presumption of innocence which attends the defendant throughout the trial. See Florida Standard Jury Instructions — Criminal (1st ed.), 2.11(a). The court also failed to recharge the jury in the terms of charge 2.11(b), “proof indispensable.” Although the court repeated to the jury that “a doubt which is not suggested by or does not arise from the evidence or the lack of evidence is not a reasonable doubt and should never be considered,” the court neglected to recharge the jury that “a lack of evidence or an insufficiency of evidence may create a reasonable doubt.”

Defense counsel objected to the court’s failure to give a complete charge on the presumption of innocence. We conceive that any proper understanding of the State’s burden of proof in a criminal case must begin with an appreciation of that presumption. The recommended Standard Instructions yoke the presumption with the burden. The evidence against Reynolds was circumstantial and not in all respects compelling, so it was all the more important that the complete and integrated charge on the presumption of innocence and the State’s burden of proof be accurately repeated to the jury when requested. McKenna v. State, 119 Fla. 576, 161 So. 561 (1935); Hedges v. State, 172 So.2d 824 (Fla.1965); Faulk v. State, 296 So.2d 614 (Fla.App. 1st, 1974). Although the jury foreman responded affirmatively to the court’s inquiry whether the charges given adequately answered the request for further instructions, we do not believe that judgment should be left entirely to jurors whose doubt of what they had heard prompted the request for repeated instructions in the first instance. Reynolds must receive a new trial.

REVERSED.

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


author: .SMITH, Judge.

text:
    Frederick L. HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. Z-115.
    District Court of Appeal of Florida, First District.
    April 30, 1976.
    Rehearing Denied June 3, 1976.
    Richard W. Ervin, III, Public Defender, and Gary M. Delohery, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   .SMITH, Judge.

Appellant Henderson, who when apprehended at the scene of a break-in possessed a substantial quantity of stolen goods, was tried jointly with Thomas E. Reynolds whose appeal was also decided today. Reynolds v. State, 332 So.2d 27 (Fla.App. 1st, 1976). Henderson complains, as did Reynolds, of the trial court’s failure to repeat the court’s charge on the presumption of innocence when, as requested by the jury, he recharged on the State’s burden of proof. The evidence of Henderson’s guilt was overwhelming and the court’s failure to repeat all portions of the requested charge was harmless to Henderson. DeLaine v. State, 262 So.2d 655 (Fla.1972); Mathews v. State, 221 So.2d 431 (Fla.App.2d, 1969).

AFFIRMED.

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


author: BOYER, Chief Judge.

text:
    William Rodney SPENCER and Willie James Van Horn, Appellants, v. STATE of Florida, Appellee.
    Nos. Y-504, Z-195 and Z-211.
    District Court of Appeal of Florida, First District.
    May 18, 1976.

      See also, Fla.App., 332 So.2d 32.
    Richard W. Ervin, III, Public Defender, David J. Busch, and Louis G. 'Carres, Asst. Public Defenders, for appellants.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Three separate appeals involving two defendants who participated in a single criminal episode have been consolidated. Appellant Spencer, a 16-year old juvenile, appeals the order of the juvenile court (Juvenile Division of the Circuit Court) waiving jurisdiction and transferring him to Circuit Court (Criminal Division) to be tried as an adult, and the judgments and sentences relative to his conviction for one count of sexual battery and two counts of kidnapping. Appellant Van Horn appeals the judgments and sentences he received for sexual battery, bare assault, and two counts of kidnapping. Both appellants challenge the sufficiency of the evidence, and appellant Spencer argues that the juvenile court order waiving jurisdiction failed to contain required findings.

At trial, the evidence revealed that around midnight on April 4, 1975, appellants were driving an automobile in Day-tona Beach and noticed three teenage girls from Illinois who were on vacation. Appellants offered the girls a ride which they accepted. The girls expressed a desire to be let out at the Plaza Hotel. Appellants offered to take the girls to a lounge for a drink, but the girls were adamant about being dropped off at the Plaza Hotel. Although appellant Spencer, who was operating the car, slowed down at the Plaza Hotel, he did not stop but proceeded past the hotel. In an attempt to entice appellants to stop the car, the girls suggested that they all go to a lounge in Daytona Beach. However, the car did not stop, except for traffic signals. At a red light, one of the girls, Pamela Morten, managed to exit the automobile. She yelled for her two friends to leave also, but she noticed that appellants prohibited them from doing so. She notified the police as soon as possible.

In the meantime, the car containing appellants and the two teenage females drove onto the beach. Appellant Van Horn went into the back seat and told the girls to quit crying or he would kill them with a gun. After the car stopped, appellant Spencer threatened one of the girls, Lynne Lavelle, with a knife, and told her that if she did not cooperate, he would kill her. He then took her into a remote area of the beach where he attempted oral and vaginal intercourse upon her. Appellant Van Horn remained in the automobile with the third female, Domenica Partipilo. He forced her to engage in sexual intercourse with him, after which he told her that he had a gun. The police, acting upon information given to them by Ms. Morten, appeared on the scene soon thereafter.

We are convinced from the foregoing sequence of events, adduced at trial that the evidence was sufficient to sustain appellants’ convictions. Both appellants employed sufficient force to sustain conviction for sexual battery under F.S. § 794.011(3), and the evidence also indicates that the girls resisted sufficiently under the circumstances. The evidence further supports the convictions for kidnapping. All of the girls testified that they were physically restrained from leaving the car despite numerous requests that they be allowed to do so.

The only remaining point concerns the waiver of jurisdiction by the juvenile court as to appellant Spencer. At the time the trial court entered its order waiving jurisdiction, the court was governed by F. S. (1973) § 39.09(2) (f), which provided as follows:

“When a child is transferred for criminal prosecution, the court shall set forth in writing its reasons for finding that there are no reasonable prospects for rehabilitating a child prior to his majority.”

Sub judice, the order of transferal falls short of the statutory requirements. Instead of listing the reasons why there were no reasonable prospects of rehabilitating appellant as a juvenile, the trial court merely listed the crimes with which appellant was charged in the delinquency petition, found that there was probable cause to believe that appellant had committed the offenses, and ordered that appellant be transferred to circuit court to be tried as an adult.

Although we have concluded that the transfer order is deficient, we do not deem it necessary to remand for a new transfer hearing. There was sufficient evidence presented to the juvenile court judge at the May 14, 1975 transfer hearing from which he could have concluded that waiver of juvenile court jurisdiction was proper. We therefore remand to the juvenile court judge for the preparation of an order setting forth the reasons for finding (if he should so find) that there are no reasonable prospects for the rehabilitation of appellant Spencer as a juvenile. See Gagliano v. State, Fla.App. 1st 1970, 234 So.2d 159.

IT IS SO ORDERED.

McCORD and RAWLS, JJ., concur.

      . By contrast, F.S. (1975) § 39.09(2) (e) which took effect July 1, 1975, now provides that the juvenile court must only set forth in writing its reasons for the transfer.


text:
    Michael E. MUDRACK, Appellant, v. STATE of Florida, Appellee.
    No. AA-270.
    District Court of Appeal of Florida, First District.
    May 18, 1976.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

The only issue in this case which merits discussion relates to the failure to recite in the order of transfer the reasons for finding that there was no reasonable prospects for rehabilitating appellant prior to his becoming an adult. (See Spencer & Van Horn v. State, Fla.App. 1st 1976, 332 So.2d 30, Opinion filed this date) However, the statute upon which appellant relies, F. S. (1973) 39.09(2) (f) has been amended to require only that:

“When a child is transferred for criminal prosecution, the court shall set forth in writing its reasons for the transfer.” (F.S. (1975) 39.09(2) (e))

The amendment was in effect at the time of the waiver hearing held pursuant to F. S. 39.09(2) and the order of transfer was sufficient.

AFFIRMED.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: DOWNEY, Judge.

text:
    Willie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-61.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1976.
    Richard L. Jorandby, Public- Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged with arson of an automobile on June 15, 1974, in violation of § 806.03 F.S.1974. On July 23, 1974, appellant pleaded guilty and on November 1, 1974, he was sentenced to the Division of Corrections for a term of three years (with credit for four days jail time), provided that after he had served twelve months of said term he should be placed on probation for a period of four years. Appellant’s sole contention on appeal is that the foregoing sentence is illegal and that “the illegal portion of the sentence be stricken.”

As the Supreme Court of Florida pointed out in State v. Jones, Fla.1976, 327 So.2d 18, 24:

“. . . prior to July 1, 1974, the provisions of Section 948.01(4), Florida Statutes (1973), granted specific authority to the trial judge to prescribe a period in the county jail followed by probation for those offenses punishable only by imprisonment in the county jail (misdemeanor offenses). It is our opinion that the term ‘whenever punishment by imprisonment in the county jail is prescribed’ is descriptive of the offenses to which the subparagraph was applicable. The new amendment to Section 948.-01(4), effective July 1, 1974, expands the trial judge’s specific statutory authority to include felonies as well as misdemeanors in the use of the split sentence probation alternative.” (Emphasis added.)

The problem in this case is that the offense with which appellant was charged took place before the effective date of the amendment to § 948.01 F.S., so that the trial judge did not have the authority to utilize the split sentence procedure in sentencing appellant to the Division of Corrections.

Accordingly, the sentence appealed from is vacated and the cause is remanded with directions to resentence appellant.

CROSS and OWEN, JJ., concur.


author: McCORD, Judge. BOYER, Chief Judge RAWLS, Judge

text:
    George E. MANASSA, Jr. and Marian Manassa, his wife, Appellants, v. NEW HAMPSHIRE INSURANCE COMPANY and Colonial Point of Jacksonville, Inc., Appellees.
    No. X-465.
    District Court of Appeal of Florida, First District.
    April 28, 1976.
    Rehearing Denied June 3, 1976.

      Henry M. Searcy of Howell & Searcy, Jacksonville, for appellants.
    Carle A. Felton, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.
   McCORD, Judge.

This is an appeal from a final judgment in favor of appellees, defendants, in the court below, and a cross-appeal by appel-lees. Appellants sought damages sustained when appellant George Manassa slipped on leaves and fell while playing tennis on the tennis court of an apartment complex owned by appellee Colonial Point of Jacksonville, Inc. (hereafter referred to as Colonial Point). Appellants had been invited to play on the court by tenants of Colonial Point. They had never played tennis before and did not pay any attention to or notice whether or not there were leaves on the court. Their tennis companion, however, testified that there were a few scattered leaves all over the playing area; that they were “kind of widely spread” and were very obvious. The accident occurred on a Sunday in February, •and the evidence shows that the trees around the court shed leaves throughout the late fall and winter months and that the leaves build up on the court. Sixteen days prior to this accident, a tenant of the apartment complex had slipped on leaves on the court and broken his wrist. He reported the accident to the management and observed that for about a week the leaves were cleared but were allowed thereafter to accumulate again. The resident manager who occupied that position at the time of both accidents, and her husband who assisted her, testified that they were aware of the first accident and the leaf buildup problem but were unable to keep the courts cleared because their supervisors would not provide sufficient funds to keep the leaf machine in repair or to hire weekend grounds keepers. The head groundsman testified that the machine was in repair at the time of the accident and that he kept the court cleared but that maintenance men did not work on weekends and the machine and brooms were kept in a locked shed. The manager had recommended to the owner that warning signs be posted to warn of the dangerous condition caused by the leaves on the court but none were posted.

The trial court charged the jury on assumption of risk, and the jury returned a verdict for defendants-appellees. Appellants contend the court erred in giving the assumption of risk charge. In view of this court’s opinion in Parker v. Maule Industries, Inc., Fla.App. (1st), 321 So.2d 106 (1975), the giving of such charge was error and requires reversal. There we held that the defense of assumption of risk is no longer a complete bar to a plaintiff’s recovery; that it should be treated as a special form of and merged with contributory negligence since we now have the doctrine of comparative negligence enunciated in Hoffman v. Jones, Fla., 280 So.2d 431 (1973).

On their cross-appeal, appellees contend that appellants failed to establish a prima facie case on the issue of Colonial Point’s negligence in maintaining a dangerous condition of leaves on the tennis court and that the court erred in not granting appellees’ motions for directed verdict made at the close of appellants’ case and at the close of all the evidence. We disagree. The evidence presented an issue of fact under the doctrine of comparative negligence. It was Colonial Point’s duty to exercise ordinary or reasonable care to see that its tennis court was reasonably safe for its invitee’s use, Winn-Dixie Montgomery, Inc. v. Petterson, Fla.App. (1st), 291 So.2d 666 (1974). The question of whether or not Colonial Point exercised such care under the circumstances of this case was for the jury to determine.

Reversed and remanded for a new trial.

BOYER, C. J., concurring specially.

RAWLS, J., dissents.

BOYER, Chief Judge

(concurring specially) .

I am yet of the view that assumption of risk is and ought to be, a complete defense in an action based on negligence. (See dissent in Parker v. Maule Industries, Inc., Fla.App. 1st 1975, 321 So.2d 106). However, a majority of a panel of this Court has held to the contrary, thereby establishing the law binding on this Court unless and until the Supreme Court of Florida holds otherwise. If the giving of the charge on assumption of risk was error, I cannot agree with my brother Rawls that it was harmless. Accordingly, following Parker v. Maule Industries, Inc., supra, I concur in the opinion authored by my brother McCord.

RAWLS, Judge

(dissenting).

It is my view that the trial court’s instruction of assumption of risk under the facts of this case was harmless error.

I would affirm the final judgment rendered upon the jury’s verdict.


author: McCORD, Judge.

text:
    FLORIDA SHERIFFS ASSOCIATION, Petitioner, v. STATE of Florida DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, and Robert L. Kennedy, Jr., Executive Director of the Division of Retirement, Department of Administration, Respondents.
    No. Z-117.
    District Court of Appeal of Florida, First District.
    May 14, 1976.

      John A. Madigan, Jr., and John W. Costi-gan of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for petitioner.
    L. Keith Pafford and Robert L. Kennedy, Jr., and David V. Kerns, Tallahassee, for respondents.
   McCORD, Judge.

This is a petition for review of administrative action pursuant to § 120.68, Florida Statutes. Petitioners sought and obtained from respondent a declaratory judgment under § 120.565, Florida Statutes. The question presented by petitioner was the following:

“Whether the definition of ‘special risk’ as set forth in Rule 22B-1.05(c) (2), Florida Administrative Rules and Regulations, means danger in which an individual places himself due to the hazardous nature or his employment; or whether special risk means the hypothetical danger in which such individual places others if he were to continue in his employment past retirement age.”

The foregoing question relates to the interpretation which respondents have placed upon § 121.021(15), Florida Statutes 1975, (a portion of the Florida Retirement System Act) which provides as follows:

“(15) ‘Special risk member* means any officer or employee whose application is approved by the administrator and who receives salary payments for work performed as a peace officer; law enforcement officer; policeman; highway patrolman; custodial employee at a correctional or detention facility; correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical employees; fireman; or an employee in any other job in the field of law enforcement or fire protection if the duties of such person are certified as hazardous by his employer.” (Emphasis supplied)

The administrator referred to in the above statute is the respondent Director of the Division of Retirement [Section 121.-021(5)]. Respondent’s rule which interprets the foregoing statute and with which petitioner takes issue is paragraph 2 of re-pondents’ Rule 22B-1.05C which states in pertinent part as follows:

“2. Once it is determined that the member falls into one of the categories enumerated in (1), the member’s duties shall be considered hazardous and the member classified as special risk if, in the judgment of the Administrator, continued performance of the primary duties and responsibilities of the member beyond the normal retirement age for a special-risk member will constitute a hazard to the public and the member's fellow workers or will jeopardize the physical or mental well-being of the member, and at least one of the following statements applies to the member: . . . ”
(Emphasis supplied)

The above quoted rule was adopted by respondent Administrator to implement the foregoing statute. Petitioner takes issue with that portion of the rule by which the Administrator interprets a member’s duties as “hazardous” if the continued perfor-manee of the primary duties and responsibilities of the position beyond the normal retirement age for a “special risk member” will constitute a hazard to the public and the member’s fellow workers. Petitioner contends that such interpretation imposes burdens not contemplated by the language of the above quoted statute; that the legislative intent of the statute was to give additional retirement benefits to certain employees who perform tasks on behalf of the public that are particularly hazardous or dangerous to themselves; that it was not the intent of the legislature to classify an employee as a special risk member whose duties, because of the infirmities of advancing age, would constitute him a hazard to the public and his fellow workers.

Respondents counter with the argument the legislature, in using the term “hazardous” in relation to the employee’s duties, intended that such term encompass not only duties hazardous to the employee but also duties hazardous to the public and the employee’s fellow workers if performed beyond the normal retirement age for a special risk member.

When we think of hazardous duties in the normal and ordinary sense, we do not consider that such term can relate only to duties which an employee performs that are not hazardous to him but may be hazardous to others. The usual connotation of the term denotes duties which are hazardous to the employee, although such duties may also be hazardous to others. The term may not logically be applied to duties that are only hazardous to others. It is our ruling that the legislature intended that the term be applied only in its usual and ordinary sense — duties hazardous to the employee. The provision of the rule which interprets the statute otherwise goes beyond the legislative enactment and is invalid.

Reversed.

BOYER, C. J., and LEE, THOMAS E., Associate Judge, concur.


author: GRIMES, Judge.

text:
    Leo V. MYSELS, Appellant, v. Francis E. BARRY et al., Appellees.
    No. 75-1354.
    District Court of Appeal of Florida, Second District.
    May 12, 1976.

      John R. Asbell and Robert E. Doyle, Jr., of Asbell, Hains & Doyle, Naples, for appellant.
    Salvatore C. Scuderi, Marco Island, for appellees Francis E. Barry and Ruth H. Barry.
   GRIMES, Judge.

The narrow question involved is whether an officer and shareholder can be held per-onally liable for the debts of a foreign corporation which were incurred as a result of doing business in Florida where that corporation has failed to qualify to do business in Florida. We answer this question in the negative.

Florida Fashions of Interior Design, Inc. was validly incorporated in the Commonwealth of Pennsylvania. The corporation was never qualified to do business in Florida. Appellant (Mysels) was the president of the corporation and one of its stockholders. In 1973, while acting in the capacity of a salesman for the corporation, Mysels took an order for goods and services to be furnished by the corporation to the appellees (Barry). Barry paid the amounts due under the sales agreement, but the corporation failed to perform. The court entered a default judgment against the corporation. Judgment was also entered against Mysels because the corporation had failed to obtain a permit to transact business in Florida.

Fla.Stat. § 613.01 (1973) provides that no foreign corporation shall transact business within the state until it files a copy of its charter with the Department of State and obtains a permit to transact business in the state. Failure to comply with this statute constitute^ a misdemeanor on the part of the corporation as well as by its officers and agents. Fla.Stat. § 613.04 precludes a foreign corporation which has failed to qualify from maintaining a suit in any of the courts of this state. However, Fla. Stat. § 613.01 (1973) states that no violation of this chapter shall affect the title to property thus acquired, held or disposed of by the foreign corporation. Fla.Stat. § 613.04 (1973) sustains the validity of contracts entered into by a foreign corporation which has failed to qualify. There is no statutory provision which makes the officers or shareholders of a nonqualifying foreign corporation liable for the debts of the corporation. The question then is whether this sanction may properly be imposed in the absence of a statute.

According to 17 Fletcher on Corporations, § 8524 (1960):

“It is the majority rule that in the absence of definite statutory authority therefor, officers, stockholders, incorpo-rators or other persons contracting for or on behalf of a noncomplying foreign corporation cannot be held liable on its contracts as partners, . . . ”

See A. Tasker, Inc. v. Amsellem, D.C.App.1974, 315 A.2d 178. But Barry asserts that Florida has adopted the minority view.

Thus, in Taylor et al. v. Branham & Co., 35 Fla. 297, 17 So. 552 (1895), the Florida Supreme Court apparently held the stockholders and officers of a Tennessee corporation liable as partners for a debt incurred in Florida by a corporation because they had not become incorporated in Florida. In a statement which may have been broader than necessary for its point, the court said:

“The law is settled ‘that a corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. That it exists only in contemplation of law, and by force of the law; and where that law ceases to operate the corporation can have no existence. . . . ’ ” 17 So. at 554.

Yet, shortly thereafter, the Supreme Court held that the shareholders of the very same corporation were liable as partners because there was not sufficient proof that the corporation had been organized under the laws of Tennessee. Duke v. Taylor, 37 Fla. 64, 19 So. 172 (1896). The court went on to say:

“ . . . Where a corporation has been legally created and organized under the laws of a sister state for the transaction of any business there, it may, by comity existing between the States, transact business in this State, provided it be not in contravention of our laws or public policy. . . . ” 19 So. at 175.

Laws relating to the qualifying of a foreign corporation to do business within the state were first enacted in 1907. Subsequently, the issue of stockholder liability for the debts of a nonqualifying foreign corporation was squarely presented in Herbert H. Pape, Inc. v. Finch, 102 Fla. 425, 136 So. 496 (1931). However, on rehearing it was stated that:

“ . . . [A] majority of the court have reached the conclusion that it is unnecessary to finally decide in this case whether or not the stockholders or officers of a foreign corporation may be held individually liable as partners when they undertake to transact business in this state in the name of such foreign corporation when it is not authorized under Florida laws to transact business here. That question will accordingly be left open for future consideration and determination in some appropriate case where such question is necessarily involved and required to be definitely decided.” 136 So. at 501.

The foregoing passage suggests that the court viewed the question as undecided at that time, and there have been no cases on the subject since that date.

Generally, the courts will “pierce the corporate veil” only when there has been a showing that the corporation has been formed or used for a fraudulent, illegal or unjust purpose. Roberts’ Fish Farm v. Spencer, Fla.1963, 153 So.2d 718. In such instances, the individual shareholders are held personally liable for corporate debts. There was no such showing in the instant case. Likewise, one who purports to contract as an agent for a principal who has no legal existence renders himself personally liable. Bryce v. Bull, 106 Fla. 336, 143 So. 409 (1932). Here, however, Florida Fashions of Interior Design, Inc. was a validly existing corporate entity. With respect to business transacted in Florida, the corporation was subject to the jurisdiction of the Florida courts, regardless of its failure to obtain a permit to do business in the state. Had the corporation obtained such a permit, there would have been no requirement to deposit a fund with the Department of State against which Barry could have made a claim.

Accordingly, we hold that in the absence of statutory sanction, the officers and shareholders of a foreign corporation cannot be held personally liable for corporate debts incurred within the state by reason of the failure to qualify to do business in Florida.

REVERSED.

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

      . Chapter 613 was repealed by Chapter 75-250, Laws of Florida 1975, effective January 1, 1976, but the new law on the subject of the failure of a foreign corporation to qualify does not appear to have been substantially changed.


text:
    Robert Hale HONEY, Appellant, v. Scott Charles FARRELL et al., Appellees.
    No. 75-1179.
    District Court of Appeal of Florida, Second District.
    May 12, 1976.
    Wagner, Cunningham, Vaughan, May & Genders, Tampa, Robert Ors'eck of Pod-hurst, Orseck & Parks, and Susan Goldman, Miami, for appellant.
    William M. Schneikart, of Miller & Mc-Kendree, Tampa, for appellees.
   GRIMES, Judge.

This is an appeal from a summary judgment for the defendant in a personal injury action arising out of a motor vehicle accident.

The pleadings and depositions reflect the following facts. Plaintiff/appellant (Honey) was operating a motorcycle when he collided with the rear of an automobile being driven by defendant/appellee (Farrell). The accident occurred in the eastbound lane of 131st Avenue in Tampa shortly after midnight on a Saturday night. A light rain was falling at the time.

Honey has retrograde amnesia as a result of the accident and can recall no facts with respect to its occurrence. Farrell said he was coming home from a pool hall where he had drunk three beers. He said he was driving south on 19th Street and stopped for a stop sign at the intersection of 131st Avenue. He looked to the right, saw no traffic coming and turned east on 131st. When the accident occurred he said he had proceeded “probably about half a block, 250 feet, something. Maybe a little less.” He indicated that he was traveling about 30 miles per hour when the motorcycle struck him from behind.

Officer Williams, who investigated the accident, said he found Farrell’s vehicle “almost adjacent across from” a convenience store on the north side of the street. He testified that the store was 50 to 55 yards east of the intersection. He said Farrell’s vehicle had moved 105 feet east from where he concluded the impact had occurred. Farrell’s vehicle left skidmarks after but not before “the point of impact.” The turn signals on Farrell’s automobile were not working. Farrell was charged with D.W.I. but the record does not reflect the disposition of this charge. His blood alcohol level was said to be 1.1 (presumably 0.11 per cent).

The file contained an affidavit by Ms. Wackerle which read as follows:

“1. On April 8, 1973 I was seated at my window of my house and I had a clear view of the intersection of 131st Avenue and 19th Street. That while seated in my home and with a view of the said intersection, I saw the motorcycle come from the west going east on 131st Street. That after passing out of my view to the east, I heard the crash of the collision.
2. That at no time during my observation of this intersection or during the time that the motorcycle was coming down 131st Street did I observe any automobile come south on 19th Street and/or turn left onto 131st Street in an easterly direction.
3. Further I have said that there was no automobile immediately preceding the motorcycle going east on 131st Street.
4. The motorcycle appeared to be proceeding at a reasonable and normal rate of speed.”

Under comparative negligence, proof of Honey’s negligence would not bar his recovery if Farrell was also negligent. Hoffman v. Jones, Fla.1973, 280 So.2d 431. Honey argues that the evidence raises three possible inferences of negligence on Farrell’s part, to wit:

(a) Farrell had slowed down to turn into the convenience store and since his turn signals were not working, Honey couldn’t see him.

(b) Farrell had suddenly emerged from the convenience store immediately in front of Honey.

(c) Farrell failed to see Honey approaching from the right on 131st Avenue and made his left turn in front of him.

Farrell doesn’t seriously dispute that one or more of the foregoing inferences could be drawn from the facts, but he contends that none of them are reasonable. See Byrd v. Leach, Fla.App. 4th, 1969, 226 So.2d 866. We agree that there are strong circumstances tending to negate the likelihood of any of these inferences. Yet, viewing the evidence as a whole, we cannot say that for purposes of summary judgment all of these inferences are unreasonable. The fact that Ms. Wackerle’s affidavit leaves unanswered several important questions weighs against rather than in favor of a summary judgment. See Holl v. Talcott, Fla.1966, 191 So.2d 40. Likewise, the effect of Farrell’s drinking cannot be overlooked. Cf. Ingram v. Pettit, Fla.1976, (Case No. 46,679, Opinion filed March 31, 1976). In the final analysis, we hold that Farrell failed to carry his burden of conclusively showing that no material issues remain for trial. Visingardi v. Tirone, Fla.1966, 193 So.2d 601; Smith v. Avis Rent-A-Car System, Inc., Fla.App.2d, 1974, 297 So.2d 841.

REVERSED.

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


author: RAWLS, Acting Chief Judge.

text:
    MID-STATE HOMES, INC., Appellant, v. T. C. REED and W. L. Kirk, Appellees.
    No. X-483.
    District Court of Appeal of Florida, First District.
    April 23, 1976.
    Rehearing Denied June 1, 1976.
    Harry M. Hobbs, Tampa, for appellant.
    W. L. Kirk of Pitts, Eubanks, Roos & Rumberger, Orlando, for appellees.
   RAWLS, Acting Chief Judge.

Mid-State Homes (appellant-plaintiff) filed the instant suit to set aside a tax deed and now appeals from an adverse judgment. The issue asserted by Mid-State is that it was the legal titleholder of record and that the clerk of the circuit court failed to give it notice prior to selling the property at a tax deed sale.

On August 18, 1972, Mid-State acquired a certificate of title to the subject property. The certificate did not reflect an address for Mid-State. On September 6, 1973, the Clerk of the Circuit Court in and for Volusia County published and mailed a notice of application for a tax deed to the owner of the property whose name and address appeared on the tax roll for the year in which taxes were last extended on such property. A tax deed sale was had and certificate of title issued to appellees. Mid-State, in seeking to set aside the tax deed, relies upon Florida Statute 197.256, the “notice” statute, which became effective July 1, 1973. This statute directs the clerk to mail a copy of the notice to:

“ . . . the legal titleholder . of record ... if the address of the owner appears on the record of the conveyance of the lands to the owner, or, if the address of the owner does not appear thereon, then the notice shall be mailed to the owner to whom the property was assessed on the tax roll for the year in which the property was last assessed...."

It is uncontroverted that Florida Statute 197.256 governed the sale of the subject property. Likewise, it is uncontroverted that the address of the legal titleholder of record did not appear on the “record of conveyance”. Paraphrasing the language of Bailey v. Folks, reading salient words of the statute (F.S. 197.256) in their normal context, we are persuaded that the legislature directed the clerk to mail a copy of the notice to the legal titleholder of record if the address of the owner appears on the record of the conveyance, and if the address does not appear thereon, the notice shall be mailed to the owner to whom the property was last assessed.

In the instant cause, the critical address was not shown on the conveyance of record, therefore, the clerk fulfilled his duty when he mailed the notice to the owner to whom the property was last assessed.

AFFIRMED.

MILLS and SMITH, JJ., concur.

      . The certificate of title was prepared by Mid-State’s attorney.

      . Florida Statute 197.505, as of June 30, 1973.

      . Bailey v. Folks, 182 So.2d 477 (Fla.App.1st 1966).


text:
    LEE COUNTY CONSERVATION ASSOCIATION, INC., et al., Appellants, v. STATE of Florida BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND et al., Appellees.
    No. Z-349.
    District Court of Appeal of Florida, First District.
    April 22, 1976.
    Rehearing Denied May 18, 1976.
    P. Kevin Davey, of Douglass & Powell; Robert A. Chastain and Robert C. Wattles, Tallahassee, for appellants.
    Ross A. McVoy, William L. Boyd, of Mahoney, Hadlow, Chambers & Adams, Tallahassee, Howard S. Rhoads, of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for appellees.
   PER CURIAM.

Upon considering the record and briefs and after hearing oral arguments, we find that there was sufficient evidence adduced before the trial court, though controverted, to sustain his findings and to support the Final Judgment here appealed.

AFFIRMED.

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


author: BY THE COURT.

text:
    Leroy GHENT, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-384.
    District Court of Appeal of Florida, First District.
    April 30, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

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


text:
    Cleveland TILLMAN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-10.
    District Court of Appeal of Florida, First District.
    April 23, 1976.
    Richard ,W. Ervin, III, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

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


text:
    Paul E. PRESCOTT, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. AA-458.
    District Court of Appeal of Florida, First District.
    April 30, 1976.
    E. Allan Ramey, De Freniak Springs, for petitioner.
    Kenneth H. Hart, Jr., and Luther C. Smith, Tallahassee, for respondent.
   PER CURIAM.

Petition for writ of certiorari denied.

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


text:
    DEPARTMENT OF OFFENDER REHABILITATION, Petitioner, v. Peners Lee GRIFFIN, and Career Service Commission, Department of Administration, Division of Personnel, Respondents.
    No. Z-394.
    District Court of Appeal of Florida, First District.
    April 22, 1976.
    Raymond W. Gearey, Tallahassee, for petitioner.
    M. Howard Williams, Donald D. Conn, and Betty Steffens, Asst. Attys. Gen., for respondents.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, certiorari is denied.

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


text:
    Richard William WINTERS, Appellant, v. STATE of Florida, Appellee.
    No. Y-124.
    District Court of Appeal of Florida, First District.
    April 23, 1976.
    Rehearing Denied June 1, 1976.
    Jerome M. Novey of Novey & Blanton, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Appellant Winters appeals a judgment of guilty entered pursuant to a plea of nolo contendere with reservation of right to appeal. The issue posed challenges the trial court’s order denying appellant’s motion to suppress evidence obtained from a search of his dwelling without a valid search warrant.

Late in the year 1972 or early in 1973, someone erected a mailbox on State Road 319 on a rural route in Wakulla County serviced by the Crawfordville Post Office. The mailbox bore the name of J. W. Williams and was assigned number 30 by the rural mail carrier. The mail carrier had never seen any person by the name of J. W. Williams. In February, 1973, a letter containing cocaine, which was mailed from the South American country of Colombia and addressed to J. W. Williams at his rural post office box in Wakulla County, was intercepted by the U. S. Bureau of Customs in Miami. A customs officer, along with several Florida Department of Criminal Law Enforcement (FDCLE) officers, attempted to make a controlled delivery of the intercepted letter to the J. W. Williams mailbox. The letter was refused. During the year 1973, several other letters containing cocaine, which were addressed to J. W. Williams, were intercepted by customs; however, a controlled delivery of these letters was not attempted as customs was undergoing a reorganization.

In January of 1974, the letter which gives rise to this controversy was intercepted by the customs office' in Miami. The letter, which contained cocaine, was from Bogota, Colombia, and was addressed to the J. W. Williams address in Wakulla County. FDCLE officers arranged a controlled delivery of this letter to the J. W. Williams mailbox. In preparation for the delivery, Special Agent Frederick arranged for the rural mail carrier to deliver some junk mail to the Williams mailbox. In maintaining surveillance of the mailbox area, Frederick observed a man remove the mail from the Williams mailbox and from a mailbox adjacent thereto which bore the name of Winters. The man then walked down a dirt road which led to a frame house and house trailer. As a result of these observations, a search warrant authorizing the search of the frame house and house trailer was obtained. On the morning of January 24, 1974, Agent Frederick rode with mailman Russ and delivered the intercepted letter containing cocaine to the Williams mailbox. Agent Layman was positioned across the road where he could observe the Williams mailbox and surrounding area. At some distance from the Williams mailbox, Agent Frederick departed the mailman’s company and joined Agent Layman in the surveillance of the Williams mailbox. The surveillance lasted from 10:00 a. m. until 7:00 p. m. At the latter time, the sur-veilling agents observed a person identified as Winters remove mail from the Williams and Winters mailboxes and proceed along the dirt road which led to the frame house and house trailer. The two agents were unable to observe from their position whether Winters entered the frame house or the house trailer. As it was getting dark, the agents radioed the Wakulla County Sheriff’s office and asked that deputy sheriffs be sent to assist in serving the search warrant. In response, two deputies arrived. At this time, the officers observed a car departing the dirt road. Agent Frederick and a deputy sheriff stopped the car and searched same, as they suspected the cocaine might be in the driver’s possession. A large quantity of marijuana was found in the car. At this juncture, the driver of the car, William Parramore, leaned over the steering wheel and commenced blowing the horn and yelling that a raid was in progress. Agent Layman ran to the door of the frame house and announced, “Police with a search warrant.” The door of the house was opened by appellant Winters, and Agent Layman entered the house. Layman observed a female occupant of the house flee with something in her hand from the living room to the kitchen. Layman pursued the woman, later identified as Mrs. Parramore (wife of the horn blowing driver of the automobile), and took from her a “baggie” of marijuana and a pipe. Agents Frederick and Layman proceeded to search the living room and kitchen. They found the “controlled” letter which had been opened and from which part of the cocaine had been removed. Marijuana and other illegal drugs were also found.

The Parramores and appellant Winters were arrested and subsequently charged by information with: 1) possession of more than five grams of cannabis sativa, 2) possession of cocaine, and 3) possession of paraphernalia to be used for unlawfully administering a controlled substance. Upon timely motions to suppress evidence and search warrant, the trial court entered its order finding the affidavit upon which the search warrant was predicated to be insufficient and suppressing the evidence procured through the service of the defective search warrant. In its order suppressing the evidence, the trial court specifically stated: “The Court does not decide any question as to whether the officers conducting the search had probable cause to believe that a felony was being committed in their presence and the Court therefore defers any ruling on such question.” Thereafter, appellant moved to suppress the evidence which had been seized in the residence. After conducting an extensive hearing the trial court denied that motion to suppress. Appellant entered his plea of nolo contendere to Count II (possession of cocaine), reserving his right to appeal the trial court’s denial of the second motion to suppress, and the state nolle prossed the other two counts.

The judgment of conviction of possession of cocaine must stand or fall upon the admissibility of the evidence seized as a result of the residential search. Appellant argues that no probable cause existed for the arrest of appellant Winters. “Exigent circumstances” is the label to be applied in determining probable cause to sanitise a warrantless search. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The following summarizes the facts: 1) Winters was observed removing the intercepted letter containing cocaine from the J. W. Williams mailbox; 2) the officers saw Winters walk up the dirt road into the vicinity of the frame dwelling; and 3) Winters’ cohort was heard yelling, “It’s a raid. It’s a raid.”, while blowing his automobile’s horn. In our judgment, the record amply supports the conclusion that the officers observed Winters commit the crime of illegally possessing cocaine and that the ensuing search was legally justified. There was strong reason to believe that Winters and the other occupants of the dwelling were about to destroy the cocaine which the officers had every reason to believe was in Winters’ possession. United States v. Doyle, 456 F.2d 1246 (5th Cir. 1972); and Mahoney v. State, 300 So.2d 743 (1 Fla.App.1974).

Appellant insists that Melton v. State, 75 So.2d 291 (Fla.1954), controls. We do not agree. In Melton, the arresting officer went to the residence solely for the purpose of serving a search warrant. Here, the arresting officers embarked upon a two-fold mission; that is, to serve the search warrant and to arrest Winters, who shortly before had been observed committing a crime in the officers’ presence.

The judgment of conviction is AFFIRMED.

MILLS and SMITH, JJ., concur.

      . A customs official directed the Crawfordville Postmaster to keep a log on all mail addressed to J. W. Williams and not to deliver any letters from a foreign address to the Williams mailbox except after first notifying customs.


author: McNULTY, Chief Judge.

text:
    Richard Henry McKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1404.
    District Court of Appeal of Florida, Second District.
    May 12, 1976.
    Jack 0. Johnson, Public Defender, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Chief Judge.

Appellant appeals from his conviction, after jury trial, of the crime of rape and ensuing life sentence. He alleges that the trial court erred in excluding the testimony of Dr. Richard Meadows, a psychiatrist. We agree and reverse.

Appellant’s chief defense was that he was insane at the time of the offense. When appellant sought to present Dr. Meadows as his first witness, the state, relying on Cirack v. State, moved to prevent his testimony on the grounds that it was based .upon hearsay from various sources including the appellant. A proffer was made in which Dr. Meadows testified that he had formed an opinion as to appellant’s sanity at the time of the offense, viz., that appellant was legally insane. His opinion was based in large part on a conversation with the appellant in which the latter related his personal history and gave an account of the rape. Dr. Meadows stated that it was unnecessary that he believe what appellant told him, but he did consider appellant’s account of the rape insofar as his description of it reflected his state of mind. The trial court refused to permit Dr. Meadows to testify.

The court did allow a Dr. Ron Knaus to testify, however, and his opinion was that appellant could not distinguish right from wrong at the time of the offense. Two other psychiatrists testified for the state. They agreed that appellant suffered from schizophrenia but was able to distinguish between right and wrong at the time of the offense. So without Dr. Meadows, appellant was on the short end of a two on one situation; obviously to his prejudice.

The state relies here, as it did below, on Cirack v. State, supra. In that case a psychiatrist’s opinion that the defendant was insane at the time of the offense, which opinion was based upon his assumption that the defendant was truthful when he told the doctor that he had been drinking for three days while eating only snacks, was excluded. In its ruling, the trial court in that case said that the doctor’s opinion must be based upon his tests, examinations, and observations, and “not on the factual matters stated by the defendant to you, which are not in evidence and which you assumed to be true.” In affirming, the Supreme Court held that under the circumstances the ruling was correct since the opinion was based on the unsupported factual assumption that the' defendant actually consumed the alleged quantities of alcohol.

But here, Dr. Meadows stated that his opinion was not dependent upon the truth or falsity of the account given by the defendant. His evaluation was based on the actions, demeanor and manner of recollection of the appellant. This alone materially distinguishes this case from Cirack, supra; so it is unnecessary to consider the continued viability of Cirack in light of Jones v. State wherein the Supreme Court reversed the lower court’s exclusion of psychiatric testimony under circumstances very similar to those here.

In view of the necessity for a new trial we need not consider appellant’s other point on appeal. However, alluding thereto, we do note that once hearsay evidence is admitted without objection there does not appear to be any reason why it cannot be considered as part of a hypothetical question propounded to an expert witness.

In view whereof, the judgment and sentence appealed from is reversed and the appellant is awarded a new trial.

Reversed.

BOARDMAN and GRIMES, JJ., concur.

      . (Fla.1967), 201 So.2d 706.

      . (Fla.1974), 289 So.2d 725.


author: HAVERFIELD, Judge. PER CURIAM.

text:
    Linda Anne FISHER and Stanley Fisher, her husband, etc., Appellants, v. Daniel CREAMER et al., etc., Appellees.
    No. 75-1239.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied May 26, 1976.
    Cushman & Cushman, Miami, for appellants.
    Marks, Keith, Mack & Lewis, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Defendants take this interlocutory appeal to review an order denying their motion for summary judgment in this action to establish a constructive trust.

The salient facts are as follows: By warranty deed dated September 20, 1956, Edward Roberts, James Todd and Louis Liebman, business partners, obtained equal interests to a certain parcel of property located in Dade County. Between 1956 and 1962 Roberts, Liebman and Todd jointly purchased six additional parcels of property in Dade County in the name of L. R. Katz as agent on their behalf. In June 1962 the three partners formed a Florida corporation, Toliro Corporation (Todd-Ltebman-Roberts), in order to transfer all their joint real estate holdings in Dade County to a corporate entity. Following the incorporation, Katz executed and delivered to Toliro Corporation a quit claim deed conveying (1) the six parcels of property taken in his name as trustee, and (2) the first parcel of property purchased in 1956 in which title was vested in the names of Todd, Liebman and Roberts. Toliro then issued a single share of stock to each of the partners. Thereafter, Toliro paid the real estate taxes and exercised control over the property. Todd, Liebman and Roberts died non-residents of the State of Florida. Title to all of the stock in Toliro Corporation was acquired by the trustees of the estate of Louis Liebman, plaintiffs in this cause. Record title to the first parcel of property acquired in 1956, by virtue of mistake and/or inadvertence, never having been divested from Todd, Liebman and Roberts, plaintiffs filed a complaint to impress a resulting or constructive trust upon the property against the defendants, the heirs and legatees of the estate of Edward Roberts. It was admitted that although more than three years had elapsed since the death of Edward Roberts, no notice to creditors had been filed in the Roberts estate, nor had there been any claim filed against the estate in the probate court of Dade County. Defendants answered and moved for summary judgment on the grounds of plaintiffs’ admitted failure to comply with § 733.16 and § 734.29(1), Fla. Stat., F.S.A. The trial judge denied the motion and this interlocutory appeal followed.

With respect to § 733.16, Fla.Stat., it has been established that this non-claim statute is not applicable to a claimant who alleges that he holds equitable title to specific identifiable property, legal title of which is in the decedent, and is seeking to impress a resulting or constructive trust in this property for the reason that the property in trust does not constitute part of the estate. See Hodges v. Logan, Fla.1955, 82 So.2d 885; Landers v. Sherwin, Fla.App.1972, 261 So.2d 542 and cases cited therein.

We must also reject defendant’s contention that plaintiffs’ action is barred by the three-year limitation provided in § 734.29 inasmuch as the enforcement of a resulting trust in equity is governed by the doctrine of laches and not by the statute of limitations. See Peacock v. Firman, Fla.App.1965, 177 So.2d 560 and 33 Fla.Jur. Trusts §§ 118, 119 (1960).

Affirmed.

Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.

ON PETITION FOR REHEARING

PER CURIAM.

On petition for rehearing appellants have brought to this court’s attention that the record reflects that the appellees conceded they could not maintain their suit as an action to establish a resulting trust, but rather are seeking to establish a constructive trust. Petitioner-appellants with respect to our disposition of their contention as to § 734.29, Fla.Stat. argue that plaintiff’s action is barred by this three-year limitation since plaintiffs are seeking to establish a constructive trust and such trusts are subject to statutes of limitations. We cannot agree.

The correct rule of law is that in a court of equity the claims of the beneficiary of a constructive trust are subject to the application of the doctrine of laches which may be based on the provisions in the statutes of limitations relating to actions at law of like character and further, if there are intervening equities present, a court of equity need not base its application of the doctrine of laches on the provisions of the appropriate statute of limitations. See Wadlington v. Edwards, Fla.1957, 92 So.2d 629, 630. In addition, the failure to assert one’s rights in circumstances where a relation of constructive trusteeship has arisen will not bar a suit if the action is brought as soon as the occasion arises for the assertion of his rights by the beneficiary. See Le Cain v. Becker, Fla.1952, 58 So.2d 527.

We find that the chancellor did not abuse his discretion in not applying the three year statute of limitations.

Rehearing denied.

      . The heirs and legatees of the estate of James Todd also were named as defendants, but they do not contest plaintiffs’ claim.

      . “738.16 Form and manner of presenting claims; limitation.
      “(1) No claim or demand, whether due or not, direct or contingent, liquidated or unliquidated, or claim for personal property in the possession of the personal representative or for damages, including but not limited to actions founded upon fraud or other wrongful act or commission of the decedent, shall be valid or binding upon an estate, or upon the personal representative thereof, or upon any heir, legatee or devisee of the decedent unless the same shall be in writing and contain the place of residence and post-office address of the claimant, and shall be sworn to by the claimant, his agent or attorney, and be filed in the office of the clerk of the circuit court granting letters. Any such claim or demand not so filed within four months from the time of the first publication of the notice to creditors shall be void even though the personal representative has recognized such claim or demand by paying a portion thereof or interest thereon or otherwise. . . . and no cause of action, at law or in equity, heretofore or hereafter accruing, including but not limited to actions founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom such claim may be made, whether suit be pending at the time of the death of such person or not, unless such claim be filed in the manner and within the said four months as aforesaid; . . . ”

      . “734.29 Limitations against unadminis-tered estates.
      “(1) After three years from the death of any person his estate shall not be liable for any obligation or upon any cause of action if no letters testamentary or of administration with respect thereto have been taken out in Florida within said three years, or if such letters have been taken out but neither proof of publication of notice to creditors, nor the claim of any creditor has been filed in the circuit court within said period; provided, however, that the lien of any duly recorded mortgage and the lien of any person in possession of any personal property of the decedent, and the right to foreclose and enforce the same with respect to the property encumbered thereby, shall not be impaired by said limitation.”


text:
    Daniel R. GREENE, Appellant, v. A. B. GALLOWAY, Appellee.
    No. Z-110.
    District Court of Appeal of Florida, First District.
    April 14, 1976.

      G. Robert Barron of Smith, Grimsley, Barron & Remington, Fort Walton Beach, for appellant.
    C. LeDon Anchors, E. Leo Andrews, Jr., Fort Walton Beach, for appellee.
   McCORD, Judge.

This is an appeal from final judgment in an action brought for dissolution of a partnership between appellant and appellee, a partition of the real property of the partnership and an accounting of the patnership assets. The question raised on this appeal was limited by appellant Greene on oral argument to the issue of whether or not the court erred in failing to assess costs and attorneys fees.

The trial in the court below had progressed through final hearing and the court had directed that an order be drawn dissolving the partnership, partitioning the property and appointing commissioners to ascertain whether or not the real property was divisible in kind. On the following day (before the final judgment was prepared) appellee Galloway submitted to Greene a written buy or sell offer to which Greene made a written acceptance. Galloway’s subsequent refusal to convey the property resulted in a collateral lawsuit between the parties in which specific performance was decreed and Galloway then conveyed the property to Greene. On June 2, 1975, the trial judge entered an order denying Greene’s motion for assessment of attorneys fees and on June 18, 1975, he entered the final judgment from which this appeal was taken, ruling as follows with respect to assessment of attorneys fees:

“The court finds that all other issues between the parties including assessment of attorney fees, were effectively resolved as a result of a Final Judgment being rendered in the collateral lawsuit between the parties prior to rendition of a written Final Judgment in this cause.”

Section 64.081, Florida Statutes, relating to partition of property provides as follows:

“Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to his interest. Such judgment is binding on all his goods and chattels, lands or tenements . . . ”

Here, after much of the work had been done by the attorneys in the partition suit, the real property was sold by one of the parties to the other with no stipulation relating to payment of attorneys fees or costs. In the absence of a stipulation to the contrary, the trial court erred in not following the dictates of § 64.081, Florida Statutes, above quoted. Compare State ex rel Glass v. Sebring, 117 Fla. 788, 158 So. 446 (1935), and Adler v. Schekter Fla.App.(3d), 197 So.2d 46 (1967).

Reversed and remanded with directions to assess costs and reasonable attorneys fees pursuant to the foregoing statute, both as to the proceedings below and the proceedings on this appeal.

BOYER, C. J., and LEE, THOMAS E., Associate Judge, concur.