author: RAWLS, Acting Chief Judge.

text:
    Bobby Ray PORCHAY et al., Appellants, v. STATE of Florida, Appellee.
    Nos. V-443, X-252.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

As a result of police officers stopping an automobile in which the three appellants were riding, a search was conducted, resulting in appellants Porchay and Wiltz each being charged with carrying a concealed firearm and Stewart being charged with possession of a controlled substance, i. e., cannabis. After the trial court denied appellants’ motion to suppress “all material obtained by unlawful search and seizure”, appellants were duly adjudicated guilty upon their respective pleas of nolo con-tendere.

A reading of the record of this case readily reveals that the vehicle occupied by appellants was stopped by the police officers only because the occupants appeared “suspicious”. At the time the vehicle was stopped there existed no probable cause to believe that a crime had been committed nor that the appellants were in the process of committing one. The record fully supports the testimony of Officer Barnes that the reason the vehicle was stopped was to check and see who the subjects were — an identification check. A bare suspicion, without cause, will not constitute reasonable grounds for detention.

After the officers stopped the vehicle one of them shined a flashlight into the car and saw a “small .22 pistol laying on the front floorboard of the car on the driver’s side.” In answer to the question, “What portion of this pistol were you able to see from where you were standing?”, he said, “all of it.” The officers then searched the three appellants. Wiltz, the driver, had no contraband on his person; Porchay had a .32 caliber pistol in a shoulder holster; and Stewart had a bag of marijuana in his sock.

The state urges that since the Texas license plate on the vehicle was bent and not fully readable, this alone provided a justification for stopping the car. The immediate answer is that it is clear from the record that such was not the reason. At best, the defective license plate was a pretense for stopping the vehicle and searching for evidence.

However, even should we assume that the officers were justified in stopping the automobile, the ensuing search was illegal. Officer Davis gave as a basis for searching the occupants of the vehicle that upon shining his flashlight into the vehicle, he saw in plain view all of a .22 pistol on the floorboard of the Chevrolet. The state in its brief “takes the position that the motion [to suppress] was properly denied below since . . . (b) the search of the three defendants was entirely justified following the ‘plain view’ observation of the illegal firearm. . . . ” However, the state has not advised as to how the firearm that was in “plain view” is metamorphosized into a “concealed firearm”, and thus illegal. The Attorney General in his Opinion # 072-161 advises that a person carrying a pistol in an automobile, “on the floor and partially exposed”, (emphasis supplied) violates § 790.01(2) “ . . . if, and only if, the pistol is in close proximity to him or within his easy reach, and it is concealed from the ordinary sight of another person. . ” (Emphasis supplied.)

This Court’s decision in State v. Day is on all fours. There, at 4:30 a. m. an officer looked through the windshield of the defendant’s parked automobile and observed the butt end of a pistol protruding from under the driver’s seat. He removed the pistol, placed the defendant under arrest for carrying a concealed firearm, searched the defendant and found contraband on his person. In sustaining the trial court’s order granting the motion to suppress, Judge McCord, speaking for this Court, stated:

“The only basis for this search was as an incident to an alleged lawful arrest of appellee for carrying a concealed firearm. The state contends on the one hand that the ‘concealed’ firearm was in plain view and was, thus subject to seizure under the plain view doctrine. On the other hand the state contends the firearm was concealed and that, therefore, appellee was legally arrested for carrying a concealed firearm; that the subsequent search which revealed contraband was, therefore, a valid search as incident to a lawful arrest. It is obvious, however, that the pistol could not be both concealed and in plain view.”

We agree with appellants that under the facts of this case, as revealed by the record, the learned trial judge erred in not granting appellants’ motion to suppress. There was no legal basis for the officers having initially stopped the vehicle, except the defective out of state license plate which clearly was not the reason, but merely a pretense. The following search was not incident to a lawful arrest since the “plain view” of the gun provided the alleged reason for the arrest. No independent probable cause existed for the search.

Reversed.

SMITH, SAMUEL S., and SACK, MARTIN, Associate Judges, concur.

      . Richardson v. State, 291 So.2d 253 (Fla. App.1st 1974).

      . We cannot distinguish between “plain view” and “ordinary sight”.

        .State v. Day, 301 So.2d 469 (Fla.App.1st 1974).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lonnie A. McMILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-648.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
    James A. Gardner, Public Defender, and .Steven H. Denman, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted, adjudged guilty, and sentenced to ten years imprisonment on a charge of breaking and entering with intent to commit a felony. Sentence on a second charge of larceny of a firearm was deferred. The only point on appeal is whether the trial court erred in imposing a deferred sentence on the second count.

Accordingly, the sentence on the breaking and entering charge is affirmed. Deferred sentences i'n Florida are invalid, State v. Bateh, Fla.1959, 110 So.2d 7. Therefore, the sentence on the larceny charge is vacated and the cause is remanded for resentencing in keeping with the requirements of State v. Bateh, supra.

Affirmed in part, reversed in part and remanded with directions.

HOBSON, Acting C. J., and BOARD-MAN and SCHEB, JJ., concur.


text:
    Delfin QUESADA, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1789.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Phillip A. Hubbart, Public Defender, and Bennett Brummer, Asst. Public Defender and Elliot H. Scherker, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., and Carl B. Schwait, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the defendant, Del-fin Quesada, from an order of the trial court summarily denying a motion for post-conviction relief pursuant to Rule 3.850 RCrP.

Quesada was charged by information in 1970, with buying, receiving and concealing stolen property, and in 1971, with breaking and entering and grand larceny. Represented by the public defender, Quesada pled not guilty to the charges and advised the court that he would interpose insanity as a defense. Subsequently he was again charged by information with breaking and entering, to which he pled not guilty.

Prior to trial, Quesada was examined by three psychiatrists. In the reports, the doctors acknowledge his emotional problems, but state that he was able to aid counsel in the preparation of his defense and stand trial, and that he knew the difference between right and wrong at the time of the alleged offenses. At the time of trial, Quesada, represented by private counsel, changed his plea to guilty on all charges except one which the State agreed to abandon. On March 10, 1972, Quesada was sentenced to S years in the state penitentiary for buying, receiving and concealing stolen property, 10 years for breaking and entering and 5 years for grand larceny.

On October 1, 1974, Quesada filed a motion to vacate pursuant to Rule 3.850, RCrP., on two grounds. First, that no hearing was held on the issue of the defendant’s competence prior to the acceptance of his guilty plea. Second, that Que-sada did not receive effective assistance of counsel since the only defense he received from his attorney was pleading guilty when he should have pled not guilty by reason of insanity. On November 20, 1974, the trial judge denied the Rule 3.850 motion without an evidentiary hearing.

Quesada’s arguments on appeal are not well taken. As to whether the trial court should have granted post conviction relief based upon failure to hold a hearing on Quesada’s competence prior to accepting the guilty plea, we agree that the rule espoused by the Florida Supreme Court is that a hearing to determine a defendant’s sanity is obligatory if a reasonable doubt is raised as to the defendant’s sanity. Brock v. State, Fla. 1954, 69 So.2d 344; Brown v. State, Fla.1971, 245 So.2d 68. Under the facts of this case, the rule is inapplicable since no doubt was raised as to the defendant’s sanity. The written reports of all three psychiatric experts concluded that Quesada was sane, and ■ the court had no reasonable grounds to believe him insane. See Rule 3.210(a), RCrP.

As to whether a defendant has received reasonably effective counsel, the test is whether the facts alleged demonstrate that the trial was a mockery or a farce. McCrae v. State, Fla.App.1975, 313 So.2d 429. The record does not support such a finding. Accordingly, the order of the trial court is affirmed.

Affirmed.


author: NATHAN, Judge.

text:
    Linda ROSS, Appellant, v. Jere Sandy ROSS, Appellee.
    No. 75-200.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.

      Halpern, Shenberg & Langer, Miami, for appellant.
    Horton, Perse & Ginsberg, William Phillips, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and HALL, VINCENT T., Associate Judge.
   NATHAN, Judge.

Linda Ross appeals from a final judgment of dissolution of marriage awarding custody of the parties’ one and one-half year old child to the father, Jerep Sandy Ross, and from the failure of the trial court to award alimony to the wife or attorneys fees to her attorneys.

The husband and wife, age 27 and 25, respectively, were married in 1971 and one child was born of the marriage. Just prior to dissolution of the marriage, the parties entered into a property settlement agreement which omitted alimony. Apparently, the sole contested issue before the trial court was the matter of custody of the child which, after extensive testimony, was awarded to the husband, with liberal rights of visitation to the mother.

On appeal, the wife and mother contends that since the trial judge did not find her to be unfit, due to the tender age of the child, there is a presumption that she should have custody of the child. Her statement of the law is well taken. Although § 61.13(2), Fla.Stat., provides for equal consideration of mother and father in a determination of custody, the law of Florida is still that, other essential factors being equal, the mother of an infant of tender years should receive prime consideration for custody. Anderson v. Anderson, Fla.1975, 309 So.2d 1; Forman v. Forman, Fla.App.1975, 315 So.2d 9. However, in a child custody proceeding, it is the function of the trial judge to determine what is in the best interests of the child. An appellate court should not reverse the trial judge’s findings absent a showing of abuse of discretion. Grant v. Corbitt, Fla.1957, 95 So.2d 25; Dinkel v. Dinkel, Fla.1975, 322 So.2d 22. Where, as in the case sub judice, there is conflicting testimony as to the best interests of the child insofar as custody is concerned, the judgment of the trial court should not be disturbed absent a finding of abuse of discretion, which requires a lack of substantial evidence to sustain the trial judge’s findings. Cf. Dinkel v. Dinkel supra. After hearing extensive testimony, the trial judge made the determination that the young child’s welfare would best be served by awarding custody to the father. No clear abuse of discretion having been shown, the judgment of the trial court is affirmed.

As to the trial court’s failure to award alimony to the wife, testimony was presented that the wife is educated and employed and no showing of any need for alimony was made before the trial court. The issue of the husband’s ability to pay and the wife’s need for alimony was not raised at the hearing. These are the factors to be considered by the court in awarding alimony. Kahn v. Kahn, Fla.1955, 78 So.2d 367; Baker v. Baker, Fla.App.1974, 299 So.2d 138. Neither is there a basis in the record for an award of attorneys fees for the wife’s attorney as there was no evidence or attempt to put on evidence in this regard. See Lyle v. Lyle, Fla.App.1964, 167 So.2d 256.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.


text:
    William V. WATSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-64.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    William V. Watson, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HA-VERFIELD, JJ.
   PER CURIAM.

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


text:
    Martin RUBIN, Appellant, v. SUNAID FOOD PRODUCTS, INC., a Florida Corporation, Appellee.
    No. 75-226.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Richard & Richard, Miami Beach, for appellant.
    Paul, Landy, Beiley & Yacos, Gilbride & Heller, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed upon authority of the rule stated in Wynne v. Ludman Corporation, Fla.1955, 79 So.2d 690. See also 75 Am. Jur.2d “Trial” § 369 (1974), and cases cited thereat.


text:
    Sylvain LEDEE, Appellant, v. Alice D. LEDEE, Appellee.
    No. 75-250.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Thomas P. Carlos, Louis M. Rockman; Det H. Joks, Miami, for appellant.
    Herbert Wall, Coral Gables, for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant seeks reversal of an order of the Circuit Court denying him the right of homestead as a defense to a writ of execution and sheriff’s levy on property which appellant owned and claimed as homestead as provided for by Article X, § 4, of the Florida Constitution.

We have carefully considered all of appellant’s contentions on appeal in the light of the record before us, briefs and arguments of counsel and have concluded that no reversible error has been made to appear. The findings of the chancellor are clothed with a presumption of correctness and will be sustained unless shown to be clearly erroneous.

Affirmed.


text:
    Thomas Joseph SMART, Appellant, v. The STATE of Florida, Appellee.
    No. 75-289.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Joseph Mincberg, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Milligan v. State, Fla. App.1965, 177 So.2d 75; Arnold v. State, Fla.App. 1972, 265 So.2d 64; compare State v. Cochran, Fla.1961, 126 So.2d 883; § 925.07(1), Fla.Stat. (1973).


text:
    BLOCH BROTHERS CORPORATION, Petitioner, v. BOARD OF BUSINESS REGULATION, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Respondent.
    No. 74-298.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
    John C. Diehl and John W. McWhirter, Jr., Cason, McWhirter, Henderson & Stokes, Tampa, for petitioner.
    Imy N. Hamilton, Tampa, for respondent.
   PER CURIAM.

The Division of Florida Land Sales (Division), Department of Business Regulation, issued a temporary order to cease, desist and refrain against the petitioner, finding that it had offered for sale units or parcels of land in a subdivision known as St. Johns River Acres, and did not register the subdivision with the Division as required by applicable law. Petitioner filed a motion to quash said order. After proper hearing held before an examiner, the Division determined, among other things, that the temporary order should be made permanent, that petitioner’s motion to quash be denied, and provided a means by which purchasers could seek redress. Petitioner appealed this order of February 27, 1973, to the respondent, Board of Business Regulation (Board), Department of Business Regulation. After hearing oral argument and considering the record made before the Division, the Board entered its order dated February 11, 1974. The pertinent part of said order is quoted as follows :

3. That so much of the order dated February 27, 1973, relating to, the refund of all monies, plus reasonable interest, paid by purchasers to Bloch Brothers Corporation for acreages in St. Johns River Acres is hereby modified by ordering Bloch Brothers Corporation to refund all monies, plus the rate of interest now allowed by law, paid by purchasers to Bloch Brothers Corporation for acreage in St. Johns River Acres, if said purchasers request a refund. Bloch Brothers must within 30 days from the date of this order notify each purchaser of acreage in St. Johns River Acres by written letter approved by the Director of the Division of Florida Land Sales of said purchasers [sic] right to request a refund of all monies, plus the interest now allowed by law. Furthermore, said purchasers shall have 6 months from the date the letter was mailed, as shown by certified mail, to request the refund of all his monies, plus the interest now allowed by law. . . .

By petition for writ of certiorari, petitioner seeks reversal of the findings of the Board contrined in paragraph 3 above.

We have heard oral argument in this case and have carefully examined the entire record and the briefs submitted by the parties. The sole issue presented is limited to the Board’s exercise of authority as directed in paragraph 3.

Section 478.191, Florida Statutes, entitled Civil remedy, provides:

(1) Any subdivider who disposes of subdivided lands in violation of section 478.23, ... is liable as provided in this section to the purchaser . .
(2) In addition to any other remedies, the purchaser, under the preceding subsection, may sue either in law or in equity to recover the consideration paid for the lot, parcel, unit or interest in subdivided lands

From a cursory examination of the above statute it can be readily ascertained that an aggrieved individual purchaser is provided full and adequate remedies. The Legislature did not grant such authority to the Board. In dealing with the question of administrative power, the Florida Supreme Court in the case of Kirk v. Publix Supermarkets, Fla.1966, 185 So.2d 161, held:

. . . It is elemental that when the Legislature provides that an administrative power shall be exercised in a certain way such prescription precludes the doing of it in another way. . . .

We believe that the ruling in the above-cited case follows the basic proposition of law applicable to administrative authority. We hold, therefore, that the findings of the Board in paragraph 3 were made in excess of its specific statutory authority or power and are unenforceable. The Legislature has vested such authority in the purchaser and not in the Board.

We reverse that portion of the order of the Board now before us; the remaining provisions of said order are left undisturbed. The petition for writ of certiorari is granted.

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


author: BARKDULL, Chief Judge.

text:
    BRITISH-AMERICAN INSURANCE COMPANY, LTD., a Bahamian Corporation, Appellant, v. Nicholas CLADAKIS et al., Appellees.
    No. 75-720.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.

      Smathers & Thompson and G. Morton Good, Miami, for appellant.
    Marx & Squitero and Richard M. Krinz-man, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   BARKDULL, Chief Judge.

The plaintiff, British-American Insurance Company, Ltd., appeals from an order dismissing its lawsuit against Nicholas Cla-dakis on the grounds of forum non conven-iens and lack of subject matter jurisdiction.

Nicholas Cladakis, an English national resident in England, was sent to Cyprus as manager of British-American’s Eastern Mediterranean Division. British-American is a Bahamian corporation which does not do business in Florida. On February 27, 1975, British-American received a letter from Cladakis’ Florida lawyer, informing it that its manager “has withdrawn approximately $100,000.00 from the company”. British-American responded by suing Cladakis in Florida for conversion of funds, and naming as additional defendants the Florida lawyers who are holding approximately $82,000.00 of the $100,000.00 appropriated by Cladakis. The defendants were personally served with process, and the money was garnished. Cladakis moved to dismiss, alleging improper venue. The trial court noted the complex foreign connections of the case, including the fact that the cause of action accrued in Lebanon and Greece when the defendant removed the $100,000.00 from the plaintiff’s bank accounts there. The case was dismissed on grounds of forum non conveniens and lack of subject matter jurisdiction. The plaintiff appealed, arguing that this case should be litigated in Florida.

The appellant contends that the trial court did have subject matter jurisdiction over this suit between Bahamian and English aliens arising from conversion of funds in the Middle East; the money is here in Florida, and the defendant was personally served in Florida. The appellant also contends that the doctrine of forum non conveniens was misapplied. Florida is a convenient forum, because there was personal service of process here, the money involved is here, and the defendant failed to prove that the plaintiff has an alternate forum available. Greyhound Corporation v. Rosart, Fla.App.1960, 124 So.2d 708; Goldstein v. Wometco Enterprises, Inc., Fla.App. 1962, 139 So.2d 892. Conversion is a transitory action. Wilson Cypress Co. v. Logan, 115 Fla. 845, 156 So. 286. Plus, the action is one of a continuing nature. See: Lilly v. Bronson, 129 Fla. 675, 177 So. 218. We agree.

The appropriation of the funds is alleged to be a conversion, as indicated, and this is a continuing tort as well as a transitory action. The bulk of the funds appropriated are here in Florida under the control of the defendants and, therefore, clearly the Florida courts have subject matter jurisdiction. Further, the defendants have failed to meet the burden of showing there is another convenient forum.

Therefore, the order here under review be and the same is hereby reversed, with directions to require the defendants to file defensive pleadings.

Reversed and remanded, with directions.


author: McNULTY, Chief Judge.

text:
    Evelyn M. MOSHER, Appellant, v. Donald M. MOSHER, Appellee.
    No. 75-30.
    District Court of Appeal of Florida, Second District.

      Nov. 7, 1975.
    John W. Emerson and E. Glenn Tucker of Treadwell, Emerson, Elkins & Bough-ner, Naples, for appellant.
    J. Blan Taylor of Taylor & Locker, Naples, for appellee.
   McNULTY, Chief Judge.

A final judgment in this divorce action was entered on October 9, 1968 and appellant-wife was therein awarded permanent alimony in the sum of $750 a month. Subsequently, on or about August 22, 1973, ap-pellee-husband, a physician, filed and served a petition for modification of that alimony. A hearing was held thereon on November 26, 1973 and, on December 3, 1973, the court ordered a “de-escalation” of the alimony payments and reduced them to $500 per month. At the same time, the court ordered that he would “entertain a further Petition to de-escalate in this matter on September 1, 1974.” On September 30, 1974, such other “de-escalation” hearing was indeed held at which time the court, considering it as a continuation of the previous proceeding, terminated all alimony. This appeal ensued.

It is patent from the record that at the time of the modification hearings the court was of the view that the “no-fault divorce” concept changed the law with respect to alimony. That is to say, he considered that the “no-fault” concept required the giving of primary concern to rehabilitation of a wife rather than to the general rule prior thereto of awarding her permanent alimony to assist in maintaining her accustomed lifestyle until such time as a sufficient change of circumstances occurred so as to render such alimony inequitable or unduly burdensome.

In doing so, however, the court necessarily gave retrospective effect to such view. This was error. We think it’s now well settled that the “rehabilitative” thrust of the no-fault divorce law may not be retrospectively applied in the consideration of a petition for modification of alimony awarded in a decree entered prior thereto.

Additionally, the trial court never did reach the question of whether there was a change of circumstances sufficient to warrant modification of alimony under the law as it existed prior to the “no-fault” concept. Had he gone that far, though, a careful review of the record reveals that, as a matter of law, there was not a sufficient showing of such a change to support an affirmative finding on that issue. So we cannot affirm on either theory.

Before concluding, and in fairness to the trial judge, we feel compelled to observe that he was without the benefit of our decision in Lash v. Lash, handed down subsequent to the September 1974 hearing herein, in which this court held that even in cases clearly subsequent to and governed by the “no-fault divorce” law the “rehabilitative alimony” concept did not change the law with respect to permanent alimony in those cases in which it would be recognized as appropriate prior thereto. Permanent alimony is still viable to assist a wife to maintain a set standard of living, particularly one attained after 23 years of marriage such as here, notwithstanding a certain degree of “rehabilitation” on the part of the wife. Furthermore, revisited in this light, such “rehabilitation” would be, of itself, an insufficient “change of circumstances” to warrant modification or reduction of alimony.

In view whereof, the order appealed from should be, and it is hereby, reversed. Subsequent proceedings for modification should, of course, be predicated on future petitions for modifications and decided on principles not inconsistent herewith.

BOARDMAN and GRIMES, JJ., concur.

        . The effective date of the “no-fault divorce” law, Ch. 61, F.S.1973, was July 1, 1971, more than two years after the final judgment herein.

      . See Friedly v. Friedly (Fla.App.2d, 1974), 303 So.2d 50; Carmel v. Carmel (Fla.App.3d, 1973), 282 So.2d 6.

      . (Fla.App.2d, 1975), 307 So.2d 241.

      . Cf. Hagen v. Hagen (Fla.App.3d, 1975), 308 So.2d 41.

      . Cf. Osman v. Osman (Fla.App.3d, 1973), 280 So.2d 67.


text:
    Charles STALLWORTH, Appellant, v. The STATE of Florida, Appellee.
    No. 75-919.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Charles Stallworth, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

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


text:
    Ruvel SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 73-1083.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1975.
    Phillip A. Hubbart, Public Defender, and Kathleen Gallagher, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Stephen V. Rosin, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   ORDER ON MANDATE

PER CURIAM.

Whereas, the judgment of this court was entered on April 2, 1974 (292 So.2d 400) affirming the judgment of the Circuit Court for Dade County, Florida, in the above styled cause; and

Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed July 24, 1975, 319 So.2d 14 and mandate now lodged in this court quashed this court’s judgment and remanded the cause with directions;

Now, Therefore, It is Ordered that the mandate of this court heretofore issued on April 18, 1974 is withdrawn, the judgment of this court filed in this cause on April 2, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment and sentence of the trial court appealed herein is reversed with directions that a new trial be held. Costs allowed shall be taxed in the trial court (Rule 3.16, subd. b, F.A.R.).


text:
    Elmon WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 75-776.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
    James A. Gardner, Public Defender, Sarasota, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed.

See Jones v. State, Fla.App.2d, 321 So.2d 574, opinion filed October 24, 1975.

HOBSON, A. C. J., and BOARDMAN and SCHEB, JJ., concur.


author: DOWNEY, Judge.

text:
    Carl Allen McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 75-197.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1975.

      Richard L. Jorandby, Public Defender, and Elliott R. Brooks and Craig Barnard, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was summarily adjudged guilty of fifteen separate acts of direct criminal contempt and sentenced to fifteen consecutive 178 day terms of incarceration in the county jail. He seeks review of those judgments and sentences, which resulted from the following circumstances.

Appellant and Roger Dean Hill were tried upon a charge of rape. The jury acquitted appellant, but the court granted a mistrial as to Hill. Just prior to Hill’s next trial his counsel sought to depose appellant, but appellant refused to testify on Fifth Amendment grounds. The deposition was certified to the court, and though the trial judge directed him to answer the questions in the judge’s presence, appellant steadfastly refused, asserting fear of self-incrimination. The trial judge advised appellant that his acquittal on the rape charge precluded the state from trying him again and thus he had no right to i efuse to testify about the circumstances of that crime. However, appellant was adamant and refused to testify. Thereupon, the state served appellant with an investigative subpoena returnable instanter and advised the court that it was thereby immunizing appellant pursuant to § 914.04, F.S.1973. Several more questions were propounded to appellant by the state and by the court and appellant refused to answer them. The court then declared that appellant was in contempt and that sentence would be imposed later.

When the Hill trial commenced appellant was called as a court witness. Out of the presence of the jury the prosecutor propounded six questions to appellant concerning the subject matter of the case, and appellant invoked his constitutional right against self-incrimination. Once again the court took great pains to advise appellant that he could not refuse to testify on Fifth Amendment grounds because he was immune from prosecution for any participation in the alleged rape. Appellant persisted and after each refusal the court summarily found him guilty of a direct criminal contempt and sentenced him to 178 days in the Orange County jail. The jury was returned to the courtroom and in their presence the same or similar questions were propounded to appellant with the same result. Again the trial judge instructed appellant he must testify, again appellant refused, and again the judge, after each refusal, found him in direct criminal contempt and sentenced him to 178 days in the Orange County jail.

A written judgment and sentence was entered by the trial court adjudicating appellant guilty on fifteen counts of direct criminal contempt and sentencing him to 178 days in the Orange County jail on each count, to be served consecutively.

Appellant charges that error was committed by the trial court in (1) finding him in contempt for exercising his constitutional right against self-incrimination, (2) summarily adjudicating him guilty of contempt, (3) adjudicating him guilty of fifteen instances of contempt for successive refusals to respond to similar questions, (4) sentencing him to the equivalent of seven and one-half years in the county jail, (5) imposing more than one sentence upon him as each purported contempt arose out of the same transaction, (6) sentencing him to more than six months without a jury trial, (7) sentencing him to “hard labor” for contempt, (8) failing to follow the provisions of Rule 3.830, RCrP.

With regard to appellant’s right to invoke the Fifth Amendment under the facts of this case, we find the trial court was correct in advising appellant that he was immune from prosecution and therefore could not with impunity refuse to testify on grounds of self-incrimination. Appellant’s acquittal of the alleged rape involved in the Hill prosecution protected appellant from any further prosecution on the rape charge. In addition, the state through an investigative subpoena under § 914.04, F.S.1973, immunized appellant from any other prosecution for past offenses which his coerced testimony might necessarily reveal. Appellant was advised of his' immunity by the state and at length by the court. The fact that appellant testified in his own trial or that he had made a pretrial statement to the police did not give him grounds to fear a prosecution for any perjury that he might have committed in those past statements if the testimony he gave at Hill’s trial was inconsistent with those earlier statements. See, e. g., United States v. Watkins, 505 F.2d 545 (7th Cir. 1974). The immunization of appellant was complete as to any necessarily disclosed past act, including the giving of past statements or testimony. As pointed out in State ex rel. Hough v. Popper, Fla.1973, 287 So.2d 282, an individual who gives coerced testimony pursuant to § 914.04, F.S.1973, obtains “transactional” and “use” immunity, thereby precluding the state from prosecuting the witness for the criminal transaction under consideration and from using that testimony in any other criminal proceeding against the witness. Therefore, since appellant had both transactional and use immunity, he was in no position to refuse to testify.

Of course, appellant could not invoke the Fifth Amendment to protect himself against a prosecution for perjury arising out of any untruthful statements he might make in answer to the questions being propounded to him in the Hill trial. Inherent in the power to compel the giving of testimony is the requirement that it be truthful. The immunity afforded by the statute relative to the past does not clothe the witness with a license to commit perjury in the future. Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911). Stated another way, a witness is not free to commit perjury under the protection of the immunity statute; the immunity does not extend to a perjury the witness commits while testifying under compulsion. Glickstein v. United States, supra; People v. Florentine, 276 App.Div. 730, 97 N.Y.S.2d 553; 8 Wigmore on Evidence, § 2282, pp. 511-512 (1961); Note, 7 University of Florida Law Review 194, 199-200.

Appellant relies upon Salem v. State, Fla.App.1974, 305 So.2d 23, as authority for the propriety of his refusal to testify, particularly since Salem’s fear of incrimination by perjury based upon prior testimony is very similar to the fear expressed by appellant. It is difficult to determine from the opinion whether the state granted Salem full immunity for testifying in the Hatten trial or not. In any event, if the state had granted Salem full immunity for testifying in the Hatten trial (as is indicated in Judge Pearson’s dissenting opinion) we would agree with the dissent. On the other hand, if the majority opinion is based upon a finding that full immunity was not granted to Salem, then the conclusion reached was justified. We assume that to have been the finding of the majority since otherwise its reliance upon United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1973), was illfounded. The latter case makes it quite plain if a witness is granted statutory immunity in order to compel him to testify in a pending proceeding or investigation, he may not refuse to testify for the very reason that whatever has preceded the compelled testimony becomes inoperative as a result of the compulsion of the immunity statute and there can be no justified fear of self-incrimination. The Wilcox court pointed to Mason v. United States, 408 F.2d 903 (10th Cir. 1969), to demonstrate that the right to refuse to testify based upon Fifth Amendment grounds depends upon whether statutory immunity has been granted.

“The grant of immunity under the federal statute to the witnesses in Mason is coextensive with the protection afforded under the Constitutional privilege itself, Counselman v. Hitchcock, supra [142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892)]; Brown v. Walker, 1896, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; Heike v. United States, 1913, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821, as to both federal and state prosecutions. In Reina v. United States, 1960, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249. Since the granting of immunity is not a judicial function, but it is an executive or legislative power, United States v. Ford, 1878, 99 U.S. 594, 25 L.Ed. 399; Ullman v. United States, 1955, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511, a grant of immunity under a federal statute, as was given to the witnesses in Mason, virtually decides for the Court whether to permit the invocation of the privilege. In fact, the decision whether the witness will testify or be permitted not to on grounds of self-incrimination is no longer under judicial auspices. The protection is complete, and unless the witness commits perjury while he testifies under the protection of the statute or refuses to testify despite the immunity of the statute, so as to become contemptuous, he need fear no future prosecution for the matter he reveals.” 450 F.2d at 1138, note 9.

We also find ourselves in possible conflict with a recent decision of the First District Court of Appeal in Saunders v. State, 319 So.2d 118, opinion filed May 9, 1975. On facts very similar to those sub judice that court held a witness was entitled to plead the Fifth Amendment in the trial of another defendant although the witness had previously been acquitted of the same charges and the state had offered the witness “immunity regarding the robbery or false imprisonment for which he was charged.” That case might be distinguished on the basis of the above quoted limited offer of immunity. If on the other hand the state’s offer of immunity was sufficient to completely immunize the witness under § 914.04, F.S.1973, then we would disagree with the conclusion reached there.

Having concluded that appellant had no right to refuse to testify, we turn to the second contention of error, i. e., that concerning the summary nature of the adjudication of contempt. Appellant argues that not all direct criminal contempts can be adjudicated summarily; and that in cases of direct criminal contempt which do not constitute an open threat to the orderly procedure of the court the con-temnor is entitled to notice of the charges, a hearing thereon, and an opportunity to defend against those charges. The foregoing argument is valid. However, it does not apply to the facts of this case because appellant’s refusal to testify was an open threat to the orderly conduct of Hill’s trial.

Appellant relies upon Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965), as authority for his position that the court erred in punishing his contempt summarily. However in the recent case of United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975), the Supreme Court clarified its Harris opinion and held that an act committed in the trial court’s presence may be disruptive even though it is not violent. If it is disruptive, it may be dealt with summarily as a direct contempt under Rule 42 (a), Federal Rules of Criminal Procedure (much like our Rule 3.830 RCrP). The Court went on to hold that immunized witnesses’ refusal to testify at trial, even though not delivered disrespectfully, constituted direct criminal contempts punishable summarily because such refusals were intentional obstructions of the orderly administration of justice. 95 S.Ct. at 1806.

In our view the circumstances of this case present a direct criminal contempt justifying the court in summarily adjudicating the contemnor. Rule 3.830, RCrP provides in part as follows: “A [direct] criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.” The refusals to answer the questions involved herein were all made in the presence of the trial judge and after extensive advices and warnings by the court.

We therefore conclude on authority of United States v. Wilson, that the trial court acted properly in dealing summarily with appellant’s improper refusal to testify-

However, the court acted improperly in failing to follow the requirements set forth in Rule 3.830, RCrP. Manning v. State, Fla.App.1970, 234 So.2d 16; Berman v. State, Fla.App.1971, 253 So.2d 144; Speller v. State, Fla.App.1974, 305 So.2d 231; Krathen v. State, Fla.App.1975, 310 So.2d 381; cf. Miller v. State, Fla.App.1975, 305 So.2d 826. Moreover, we hold that the trial court erred in finding appellant guilty of fifteen contempts rather than one. We are of the opinion that when a witness improperly refuses to answer a series of questions pertaining to the subject matter of an investigation or trial he commits but one contempt, not a series of them. As stated in Baker v. Eisenstadt, 456 F.2d 382 (1st Cir. 1972):

“most courts have concluded that separate refusals to answer questions in the same proceeding, prior to punishment, particularly when the refusals are based on the privilege against self-incrimination, cannot be the subjects of multiple contempt penalties.” 456 F.2d at 390.

Since this case must be remanded we make the following observation. The inclusion of the provision in the judgment and sentence under review that appellant “be imprisoned at Hard Labor” is improper because no existing Florida statute provides for imprisonment at hard labor as a sentence for any offense — including criminal contempt. See Speller v. State, supra; and cases cited at 24 C.J.S. Criminal Law § 1577d(l). Appellant’s reliance on such cases as Ballengee v. State, Fla.App.1962, 144 So.2d 68, and Thiede v. State, Fla.App.1966, 189 So.2d 490, as authority for his position that a contemnor may not be sentenced to hard labor is misplaced. The reason underlying those decisions was the thesis that criminal contempt was not a crime — hence one guilty of criminal contempt was not a convict and could not be sentenced to hard labor. However, that thesis was overruled by Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), and Aaron v. State, Fla.1973, 284 So.2d 673, which decisions held that criminal contempt is a crime. Since criminal contempt is a crime, one found guilty of that crime may be sentenced in the same manner as anyone else found guilty of a crime of the same magnitude. But the mere inclusion of the provision relative to hard labor in the judgment and sentence under review does not require reversal; that provision may be stricken as surplus-age. See Rodgers v. State, Okl.Cr.1973, 510 P.2d 992, 994, and other cases cited at 24 C.J.S. Criminal Law § 1577d(l), p. 536, note 35.

However, we reverse the judgment and sentence because the trial court erred preju-dially in failing to follow the procedure set forth in Rule 3.830, RCrP, and in adjudicating appellant guilty of fifteen con-tempts rather than just one, and we remand the cause for further proceedings in accordance with this opinion.

Reversed and remanded.

WALDEN, C. J., and MAGER, J„ concur.

      . The trial court failed to comply with the following provisions of Rule 3.830:
      “The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why lie should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances.”

      . Aaron v. State, Fla.1973, 284 So.2d 673, sets forth the magnitude of the crime of criminal contempt and the appropriate punishment therefor at page 676 of the opinion.

      . Hard labor may properly be part of the penitentiary system even though no statute provides for hard labor as punishment for a crime. 24 C.J.S. Criminal Law § 1577, p. 537.


text:
    Andrew J. ROBINSON, Appellant, v. Jeanne R. ROBINSON, Appellee.
    No. 74-1253.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
    Rehearing Denied Nov. 26, 1975.
    James F. Spindler, Jr., of Eddy & Spin-dler, P. A., Pompano Beach, for appellant.
    J. Richard Smith, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

The parties to this appeal were married and had lived together in Massachusetts for approximately fourteen years when appellant departed the marital home. Prior to leaving appellant conveyed his interest in the home and furniture valued at approximately $50,000 to appellee and gave her $1,000 in cash. He took with him the balance of their joint savings account amounting to $6,753 and signed appellee’s name to a promissory note for $3,500. He also left debts of approximately $33,359, for part of which appellee had some direct liability.

To appellant’s petition for dissolution of marriage appellee filed an answer praying for alimony, child support, and attorney’s fees. The final judgment appealed from awarded appellee custody of the two minor children of the marriage, $70 per week child support, $20 per week rehabilitative alimony for twenty months, lump sum alimony of stock worth approximately $16,500, and a $1,000 attorney’s fee. It also ordered appellant to pay all of the debts of the marriage and any necessary medical and dental expenses of the children.

Appellant’s sole complaint is directed at the award of rehabilitative and lump sum alimony.

At the time of the final hearing appellant was employed as a salesman with a net income of $142 per week. He owned $15,000 in stock which he had inherited from his mother.

With the final judgment in effect appellant has been divested of virtually all of his assets, required to pay all of the liabilities or debts of the marriage incurred by him, and ordered to pay the lion’s share of his income for alimony and child support. After awarding appellee the $16,500 worth of stock as lump sum alimony, the final judgment states that the stock is also awarded to appellee in repayment of her one-half of the joint savings account taken by appellant and to offset the note to which appellant signed appellee’s name.

We do not not believe the circumstances of this case justified the award of $16,500 to appellee either as lump sum alimony or in repayment of her interest in the savings account or for the forged note. Considering the respective need and ability of the parties, the amount awarded as lump sum alimony is too high. In addition, lump sum alimony is not the proper vehicle to repay the note to which appellant signed appellee’s name or to reimburse appellee for her share of the joint bank account which appellant withdrew. We would also point out with regard to the note, that since it is a forgery it is not enforceable against appellee. Regarding reimbursement for the joint bank account, it appears the trial court has failed to take into consideration appellant’s conveyance to appellee of his half interest in the home and furniture, which interest was worth between $15,000 and $20,000 net. That conveyance should certainly offset appellee’s interest in the bank account.

Accordingly, the final judgment is affirmed in all respects except as to the award of lump sum alimony. Upon remand the trial court should further consider, either upon this record or after the taking of further testimony, the amount of lump sum alimony based upon the appel-lee’s need and the appellant’s ability to pay.

Reversed and remanded with directions.

OWEN and MAGER, JJ., concur.


author: BOARDMAN, Judge.

text:
    Francis E. WRIGHT, Appellant, v. STERLING DRUG, INC., a Foreign Corporation, Appellee.
    No. 75-747.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 24, 1975.

      William F. Blews, Blews & Everhart, St. Petersburg, for appellant.
    Robert F. Nunez, St. Petersburg, for ap-pellee.
   BOARDMAN, Judge.

This is the third occasion that this controversy has been before us.

Appellant appeals an order vacating and setting aside a default and final judgment which had previously been entered against appellee. On November 1, 1972, appellant/ plaintiff had filed a complaint for damages against appellee/defendant alleging that ap-pellee manufactured a drug which caused appellant’s blindness. On November 21, 1972, the summons and complaint were served upon John D. Buchanan, an agent transacting business in Florida for Prentice-Hall Corporation Systems, Inc., as resident agent for appellee. On December 19, 1972, a judgment by default was entered against appellee. On March 12, 1973, final judgment was entered, pursuant to the jury verdict, in the sum of $500,000 in favor of appellant. On June 15, 1973, appellee filed a motion to vacate and for other relief. On June 27, 1973, the court rendered its order setting aside the default and final judgment previously entered in this case. Appellant filed a petition for writ of certiorari to this court which was denied as being a technically improper method- of review. Wright v. Sterling Drugs, Inc., Fla.App.2d, 1973, 287 So.2d 376.

The case was returned to the circuit court and, subsequently, appellant filed a “SUGGESTION OF FRAUD UPON THE COURT, SUGGESTION OF MISREPRESENTATION AND FALSE TESTIMONY AND MOTION FOR RECONSIDERATION.” After hearing, the trial court granted appellant’s relief and withdrew and set aside its prior order vacating the default judgment. Appellee then filed an interlocutory appeal and this court affirmed the ruling of the trial court which set aside the order vacating the default judgment. Sterling Drug, Inc. v. Wright, Fla.App.2d, 1975, 307 So.2d 494. The cause was again returned to the circuit court. This time appellee filed its amended motion to vacate and for other appropriate relief. After hearing, the trial court rendered its order granting appellee’s motion finding in pertinent part:

3. The Defendant, Sterling Drugs, Inc., was never personally notified of the pendency of this suit prior to the entry of the Final Judgment.
4. The failure to transmit the suit papers to Sterling Drugs, Inc., was not due to any fault of the Defendant, Sterling Drugs, Inc., but was due to a mistake among the employees of Prentice-Hall Corporation Systems, Inc., the service-of-process agent of Sterling Drugs, Inc.

Appellant timely filed this interlocutory appeal.

The basic issue for our consideration is whether a foreign corporation (ap-pellee) is bound by the failure of an agent or employee of its resident agent to notify it of service of process. See Florida Statutes, Sections 48.081; 48.181(1) and (2); and 48.091. Upon the rationale of our recent decision rendered in Barnett Bank of Clearwater v. Folsom, Fla.App.2d, 1975, 306 So.2d 186, this issue is answered in the affirmative.

Appellee attempts to distinguish Folsom, supra, by contending that in this case ap-pellee seeks relief under Rule 1.540(b)(1), RCP, and that the rule was not before the court in Folsom, supra. We submit such assertion is an attempt to show a distinction without a difference. We point out that there is no question or, for that matter, dispute between the parties that appellant was in literal compliance with Section 48.-081, Florida Statutes.

We have, as we should, carefully examined the order appealed in this case and we reach the conclusion that the said order is 'grounded on the failure of the resident agent, Prentice-Hall, to notify appellee, and that appellee was not personally notified of the pendency of the action against it.

In Folsom, supra, Judge Grimes, in a well-reasoned opinion, held that actual notice is not required under Section 48.031, Florida Statutes. If actual notice is not required under said statute then it certainly logically would follow that personal notice to a foreign corporation would not be required when the resident agent of said corporation is notified of pending litigation. It is academic that an agent stands in the place and stead of its principal. To hold otherwise would circumvent the purpose and intent of the statutes regarding service of process on a resident agent of a foreign corporation.

Prentice-Hall is well qualified to accept its responsibilities and perform its duties as a resident agent. It holds itself out as rendering professional service to accept process and has been designated resident agent of many corporations in Florida and throughout the United States. A failure to perform on the part of its officers, agents or employees does not amount to “mistake,” “inadvertance,” “surprise,” or “excusable neglect” of appellee within the terms of Rule 1.540(b)(1), RCP.

We, therefore, reverse and remand for appropriate action consistent with this opinion.

Reversed and remanded.

McNULTY, C. J., and SCHEB, J., concur.


text:
    Thomas Donald OLSON, Appellant, v. Mary Jane OLSON, Appellee.
    No. 74-1714.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Nov. 19, 1975.

      Harry A. Gaines, Miami, for appellant.
    Blitstein & Molans, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, ex-husband, seeks review of that provision of a dissolution of marriage judgment awarding his ex-wife the marital residence.

After being married for approximately four years, Mary Jane Olson petitioned for dissolution of her marriage to Thomas Donald Olson and asserted a special equity in their jointly owned marital residence by virtue of the fact she made capital contributions to the maintenance thereof. The chancellor entered final judgment dissolving the marriage and, based upon his finding that Mary Olson has a special equity In the marital domicile, ordered Thomas Olson to convey all interest he may have therein to Mary. Thomas Olson appeals therefrom.

The well established rule is that a jointly held domicile should be divided equally between each partner with each spouse’s financial contributions to the acquisition thereof to be considered as gifts to each other. To establish a special equity, the wife’s contributions must be shown to have been “above and beyond the performance of ordinary marital duties.” Steinhauer v. Steinhauer, Fla.App.1971, 252 So.2d 825, 831; Tiffany v. Tiffany, Fla.App.1975, 305 So.2d 798, 800. The record in the case sub judice reflects that Mary Olson loaned her husband $4,500 for pilot training because of both parties desire that Thomas become an airline pilot, and made several mortgage payments due on the marital residence.

We interpret these financial contributions of Mary Olson to be within the realm of ordinary marital duties and, therefore, conclude that she has failed to overcome the presumption that said contributions were gifts. For “there is a marked distinction between a circumstance where a special equity is being sought in a tangible asset because the contribution to the acquisition of that asset was above and beyond the ordinary marital duties and the circumstances where one partner is permitted to receive a judgment against another marital partner for ‘loans’ made during the marital relationship. The latter situation is totally incompatible to the unity concept of marriage.” Rey v. Rey, Fla.App. 1973, 279 So. 2d 360, 362.

Accordingly, that provision of the final judgment awarding the marital residence to the ex-wife is reversed and the cause remanded for further proceedings not inconsistent herewith. In all other respects the judgment is affirmed.

It is so ordered.


author: WALDEN, Chief Judge.

text:
    Willie Espel McSHAY, Appellant, v. STATE of Florida, Appellee.
    No. 75-86.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 26, 1975.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Chief Judge.

The trial court sentenced appellant as a recidivist under Fla.Stat. § 775.084 (1971). The court did not follow the procedures outlined in Fla.Stat. § 775.11 (1975), which required the filing of a separate information accusing the alleged recidivist of his former violations, to support the sentencing as a recidivist. In Wright v. State, 291 So.2d 118 (Fla.App.2nd 1974) the court held that the formalities of § 775.11 must be followed. That court reversed for re-sentencing, without prejudice to the state to proceed under § 775.11.

However, § 775.11 has been repealed, perhaps in response to the suggestion of the Wright court:

“That the procedures under said § 775.11 may well be archaic and cumbersome and that the legislature in the upcoming session may well wish to reconsider its failure in 1971 to repeal that section when it sought to streamline the recidivism concept by enacting § 775.084, . . .” Id. at 121.

In Hamilton v. State, 306 So.2d 600 (Fla.App.2nd 1975), a statute was enacted (after appellant was sentenced), which required a convicted person to be given credit on his or her sentence for time spent in jail awaiting trial. The Hamilton court stated:

“Under these circumstances, the applicable Florida law dictates that this court apply the law applicable at the time the appeal was decided. See Hollingshead v. State, Fla.App.1st, 1974, 292 So.2d 617, and Joins v. State, Fla.App.1st, 1974, 287 So.2d 742, cited therein.” Id. at 601.

But see Ellis v. State, 298 So.2d 527 (Fla.App.2nd 1974), in which the statute at the time of sentencing provided for a lesser term than its predecessor — in force at the time of the commission of the crime. The Ellis court said:

“The courts of Florida have long held that the statute in effect at the time of the commission of the crime, rather than at the time of sentencing, is the controlling statute.” Id. at 527.

In Heilmann v. State, 310 So.2d 376 (Fla.App.2nd 1975) the court explained the distinction in the different methods of applying statutory revisions:

“While statutory changes in law are normally presumed to apply prospectively, procedural or remedial changes may be immediately applied to pending cases, including in some instances cases pending on direct appeal. Thus, the courts have applied Fla.Stat. § 921.161(1), as amended, to cases on direct appeal even though the change became effective after imposition of sentence by the trial court.” Id. at 377.

The application of a revision in court rules (enacted after sentencing and dealing with procedure) to a case on appeal has been considered by this court, and decided in accord with Heilmann. Collins v. Wainwright, 311 So.2d 787 (Fla.App.4th 1975). The Collins court stated:

“Appellant was convicted and sentenced in November 1971, at which time there was no rule requiring a presen-tence investigation. Rule 3.710, RCrP, became effective February 1, 1973 (272 So.2d 65). Appellant suggests that we should apply the rule as it exists at the time of the appeal, citing as analogous authority our decision in Gallagher v. State, Fla.App.1974, 300 So.2d 299. See also Joins v. State, Fla.App.1974, 287 So.2d 742. We accept appellant’s suggestion. Accordingly, while the sentencing procedure adopted by the trial judge was appropriate at the time, its appropriateness has been changed by a change in the law between the conviction and sentence and the appearance of the cause before this court. The rule applicable to this cause now requires that on this record a presentence investigation must be considered prior to imposition of sentence, since that record does not demonstrate that appellant had ever been convicted of a prior felony.” Id. at 788-789.

See also, Sharp v. State, 303 So.2d 56 (Fla.App.4th 1974); contra, Andrews v. State, 316 So.2d 296 (Fla.App.1st 1975). We hold that although the trial court failed to follow the requirements of Fla. Stat. § 775.11, the failure is not reversible error as Fla.Stat. § 775.11 has since been repealed.

Affirmed.

OWEN and MAGER, JJ., concur.


text:
    Floryn SCHACHT, Appellant, v. Alan S. COHEN, Appellee.
    No. 74-1603.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 26, 1975.
    Hal H. McCaghren of Hal H. Mc-Caghren Law Offices, West Palm Beach, for appellant.
    Bruce J. Daniels of Lesser, Lesser & Daniels, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, upon authority of Gill v. Shively, 320 So.2d 415 (Fla.App.4th 1975).

WALDEN, C. J., MAGER, J., and GRIDLEY, WILLIAM C, Associate Judge, concur.


author: WALDEN, Chief Judge. SCHWARTZ, ALAN R., Associate Judge

text:
    Stella R. THOMPSON et al., Appellants, v. FIRST NATIONAL BANK OF HOLLYWOOD, as Trustee, et al., Appellees.
    No. 73-1354.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Suggestion for Certification Denied Nov. 26, 1975.
    William E. Blyler of Patterson, Maloney & Shankweiler, Coral Springs, for appellants.
    Jack F. Weins of Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for appellee-First National Bank of Hollywood.
    C. H. Landefeld, Jr., of Landefeld & Ro-manik, Hollywood, for appellees-Investment Corp. of South Florida and Broward County Kennel Club, Inc.
   WALDEN, Chief Judge.

As between lessors or a lessee, who is liable for the payment of a special assessment lien arising out of improvements to the leasehold?

The trial court entered judgment in favor of the lessee. Lessors appeal. We affirm.

Our decision hinges upon the construction to be given the terms of their lease and the application of the general rule as provided by case law.

The lease was entered into in 1948 for a term of five years. There were renewal options for four additional five year terms. In 1949 an additional option was granted for fifty years. In 1953 the options were exercised with the result that the term of the lease would end at the year 2023.

In 1972 the special assessment was imposed for sanitary sewer improvements. Lessee refused to pay.

In 1973 the lessors filed the instant suit against the lessee with its gravamen being expressed in these paragraphs of their complaint.

“8. Under the terms of said lease, the lessees agreed to pay when due all taxes assessed and levied on the leased premises during the term of the lease.
******
“11. Plaintiffs have notified Defendant of the imposition of special assessment taxes and demanded Defendant pay the balance of the tax.
“12. Defendant has refused to pay the balance of said tax thereby compelling Plaintiffs to pay the tax to prevent the sale of the leased premises for delinquent taxes.
“13. Defendant’s refusal constitutes a breach of the covenants of the lease con-vering [sic] the leased premises.”

After general denial, specific issue was joined by the lessee as reflected in Paragraph 15 of its answer :

“15. As and for its affirmative defense, the Defendant would allege that the lease agreement attached to the Plaintiffs’ Complaint as Exhibit ‘A’ does not provide for the payment by the lessee of special assessment taxes but rather by the clear and explicit language contained in paragraph 3 of the lease agreement provides for the payment by the lessee of only ‘real property taxes and personal property taxes.’ ”

The critical and determinative lease provision was this:

“3. Tenants agree to pay and discharge, in the name of the Landlords, during each year of said term, in addition to said rent above agreed to be paid, without deduction or abatement for any cause whatsoever, the annual taxes, which may be imposed or assessed against the demised premises or any improvements that may be constructed thereon, or any part thereof, including personal property at any time during the term hereof or any renewal term hereunder, under or by virtue of any present or future law, ordinance or order of the State of Florida, or of the County of Bro-ward, or the City of Hallendale, for so called real property taxes and personal property taxes; . . .” (Emphasis supplied.)

More precisely, the issue in the trial court and here is whether the term “annual taxes” found in the lease encompasses “special assessments.”

And now to begin, lessors on appeal frankly and correctly concede “. . . that in the context of landlord-tenant law ‘special assessments’ are not ordinarily embraced by the term ‘taxes’. Consequently, the provision in a lease calling for payment of ‘taxes’ by the lessee will not under ordinary circumstances render the lessee liable for payment of a subsequently appearing ‘special assessment.’ See Annot., 63 A.L.R. 1387.”

By way of slight elaboration as concerns the rule governing liability for special assessments, in the absence of an express, specific and clear agreement in the lease to impose liability upon the lessee, the burden remains upon the lessor. Further, and as conceded, the word “taxes” and the term “special assessments” are not synonymous and an agreement by the tenant to pay taxes is not an agreement to pay special assessments.

A further summarization of the rule, gained from scores of case law decisions in the field of landlord-tenant, are those quotes from 3, Thompson on Real Property, § 1161 Landlord and Tenant (1959):

“While in a general sense the word ‘taxes’ includes special assessments, yet there is a clear distinction between the two; special assessments are a peculiar class of taxes which are laid upon the property benefited according to some equitable rule, while taxes, as generally understood, mean the burdens imposed by the government to defray its expenses. A promise to pay taxes does not apply to a special assessment for the construction of a sewer. A covenant to pay 'all taxes or duties levied, or to be levied’ does not include a special tax for paving a sidewalk. So, a private assessment for paving a street is not a tax or public due of any kind within the meaning of the covenants in a lease.” (Footnotes omitted.) Id. at610, 611.

We hereby adopt the rule above reflected by authority of and under the rationale of Chicago & W. I. R. Co. v. Chicago & E. I. Ry. Co., 86 F.2d 441 (7th Cir. 1936); Carstens v. McLean, 7 F.2d 322 (9th Cir. (1925); Deutsch v. Frey, 36 Ohio App. 226, 173 N.E. 40 (1930); Blake v. Metropolitan Chain Stores, 247 Mich. 73, 225 N.W. 587 (1929); DeClercq v. Barber Asphalt Paving Co., 167 Ill. 215, 47 N.E. 367 (1897); Pettebone v. Smith, 150 Pa. 118, 24 A. 693 (1892); 3, Thompson on Real Property, Landlord and Tenant § 1161 (1959); 51C C.J.S. Landlord & Tenant § 360(4) (b) (1968); see State v. Raulerson, 113 Fla. 147, 151 So. 384 (1933); Gleason v. Dade County, 174 So.2d 466 (3d D.C.A. Fla. 1965); 29A Fla.Jur., Special Assessments § 3 (1967).

Having lost and conceded the issue made by the pleadings in the trial court, lessors suggest here that an exception is warranted.

There is an exception to the general rule when the term is perpetual — a perpetual lease — and there the obligation falls upon the lessee. This is reflected in the cases of City of Norfolk v. J. W. Perry Co., 108 Va. 28, 61 S.E. 867 (1908) (99 year lease renewable forever) ; or Chicago Great Western Ry. Co. v. Kansas City Northwestern R. Co., 75 Kan. 167, 88 P. 1085 (1907), (999 year lease).

The thesis on which this exception is recognized is that the lessee in such case is in the same position with respect to the property as the ordinary fee simple owner. City of Norfolk v. J. W. Perry Co., supra. A perpetual lease is a fee simple determinable — a conveyance in fee, reserving rent. Penick v. Atkinson, 139 Ga. 649, 77 S.E. 1055 (1913) (lease in perpetuity for a ground rent).

The term perpetual lease is defined in Black’s Law Dictionary (Revised 4th Edition 1968) as:

“A lease of lands which may last without limitation as to time; a grant of lands in fee with the reservation of a rent in fee,”

and the term perpetual as :

“Never ceasing; continuous; enduring; lasting; unlimited in respect of time

Similarly defined in Webster’s International Dictionary (1966), is perpetual lease :

“A lease renewable forever at the lessee’s option.” See 50 Am.Jur.2d, Landlord and Tenant §§ 1170, 1254 (1970).

It is clear in our opinion that the lease in question was not a perpetual lease. At the time the bargain was struck in 1948 and the lease terms agreed upon there was a provision for a sure term of five years, only, with option renewal possibilities of four additional five-year terms. At that time, then, the maximum possible term, depending upon the decision of the lessee to exercise the options, was twenty-five years. It is hazarded that lessors would not even bother under those facts to urge that the lease was perpetual. And, as a basic, it is the intention of the parties at the time the agreement was made that should govern.

Does the fact that in 1953 options were exercised and added to a sure termination date of 2023 change the character of the lease to a perpetual one? We think not. The fact that the lease terminates on a date certain is the antithesis of the perpetual lease feature — one having no realistic termination date. See State v. Union Trust Co., 27 Ohio App. 156, 161 N.E. 17 (1927).

Counsel for lessors with dedication and skill challenges us, as we understand it, to disregard the established case law in this area. He asks this court to adopt a new rule based upon a concept of “who gets the benefit,” rather than following what he chooses to call “a mechanistic view of what is supposed to be the living law.” We have seriously considered this possibility and have reviewed the reasoning of the cases that considered the problem. We must reject the challenge for the reason that the suggestion — to apportion payment of special assessments where the lease is silent as to the liability for payment of these assessments — would create new and worse problems than now exist. It would result in cases where liability would be batted back and forth between parties depending on the facts. Most likely liability would have to be apportioned, based on expert testimony concerning the remaining length of the term, the life and kind of improvements and other factors peculiar to each case. Courts would be in the improper position of making contracts; it would result in uncertainty and increased litigation. Thus, we feel, upon study, the majority view is the better and more preferable one.

As matters stand the parties in negotiating a lease should certainly be able to foresee the possibility of special assessments. Thus, a lessor who wishes to avoid responsibility for improvements to the leasehold can, by the simple expedient of including a specific proviso in the terms of the lease (depending, of course, upon what he can negotiate with the prospective lessee) avoid the burden by shifting it to the lessee.

We accept as true that it will be a hardship for these lessors to pay the assessment, as would be any substantial unexpected debt payment. However, we do not know but what it might well be an equal burden for lessees.

In the final analysis the only way that this court could reverse the judgment would be by judicial legerdemain — to go back to 1948 and rewrite the original lease so as to specifically require the lessee to pay special assessment liens for improvements to the lessor’s property. We cannot do so under established law.

We conclude by referring to Efros v. Russo, 68 N.J. Super. 110, 171 A.2d 370 (1961), modified in Efros v. Russo, 71 N. J.Super. 602, 177 A.2d 565 (1961). It is the single case advanced by lessors in support of their position. It cannot be meaningfully distinguished. We feel that it was prompted by hard facts and that it represents the minority view — a minority of one.

All circumstances and suggested authorities considered, it is our decision that the appealed judgment should be affirmed.

Affirmed.

OWEN, J., concurs.

SCHWARTZ, ALAN, Associate Judge, dissents with opinion.

SCHWARTZ, ALAN R., Associate Judge

(dissenting).

The real issue in this case, as I see it, is what the Court should say on an issue which, for reasons which seem clear, the contracting parties did not themselves consider and concerning which, therefore, the written lease agreement makes no specific provision — that is, whether the lessor or the lessee should bear the ultimate cost of special assessments for projects which benefit, almost in .their entirety, only the leasehold. I believe that we should resolve the issue in the manner in which we must conclude that the parties themselves would have resolved it if they had considered it, in a “reasonable” and “just” manner. See 7 Fla.Jur., Contracts §§ 84, 85, pp. 150-152 and cases cited. It seems obvious that a “reasonable” and “just” construction of the parties’ implied intention is that they would have had the burden of the special assessments fall upon the party, or parties, who reaped their benefits. Since that party is admittedly the lessee, and the Court has held instead that the lessor shall pay all the amounts involved, I must respectfully dissent.

When the parties entered into the original lease in 1948, with its five-year term, they could properly have relied upon the “ordinary” implication of the law that, in the absence of any specific provision for special assessments, these amounts would be born by the lessor. See e. g., Chicago & W.I.R. Co. v. Chicago & E. I. Ry. Co., 7 Cir. 1936, 86 F.2d 441; Carstens v. McLean, 9 Cir. 1925, 7 F.2d 322; 3, Thompson on Real Property, Landlord and Tenant, § 1161 (1959). This is so because the benefit of the projects for which the special assessments were made would almost certainly and predominantly have accrued to the lessor at the conclusion of the relatively short term then involved. One may assume, however, that when the fifty-year option was granted the next year, the parties did not reconsider the inapplicability of this presumption to the very long term lease which then became effected. What has happened, however, as a result of the parties’ plain and simple failure to reconsider the matter is that the lessor is to pay special assessments for projects which may not even outlast the termination of the lease in 2023, but the amount of which exceeds, as we are told, the entire rent provided for the property in question. I cannot conceive that this result may be countenanced.

It must be remembered that, in the absence of a specific provision allocating responsibility for the payment of special assessments, the presumption that, in a short term lease, these amounts will be borne by the lessor is just that — a presumption supplied by the law to fill a gap in the agreement. The presumption arises, I think, because it is assumed that the parties would have intended that the landowner whose fee interest is primarily benefited by the projects involved would pay for them. There is no reason why the same assumption as to the bearing of relative burdens should not be indulged when as in this case, the benefits primarily flow to the lessee. The language in 17 C.J.S. Contracts § 319, pp. 739-741, as quoted in James v. Gulf Life Ins. Co., Fla.1953, 66 So.2d 62, 63, seems entirely appropriate in our resolution of this issue:

“The words of a contract will be given a reasonable construction, where that is possible, rather than an unreasonable one, and the court will likewise endeavor to give a construction most equitable to the parties, and one which will not give one of them an unfair or unreasonable advantage over the other.”

Nor can I agree that the application of a rule of reason to this question, which might well require an apportionment of the special assessments involved as between the lessor and the lessee based upon the benefits each derives from them, would, as the Court suggests, “create new and worse problems than now exist”. The “difficulties” of apportioning benefits are just the kinds of problems the courts were established to resolve. I do not think that the burdens created by these “difficulties” are so great as to justify an essentially unreasonable and unj ust result. The case of Efros v. Russo, 68 N.J.Super. 110, 171 A.2d 270, mod., 71 N.J.Super. 602, 177 A.2d 565 (1961), cited by the majority, which is directly on point, reaches a correct result upon sound reasoning. I think we should follow it.


text:
    Jack MARTIN et al., Appellants, v. FIRST APOSTOLIC CHURCH, an unincorporated association, Appellee.
    No. 74-1256.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 26, 1975.
    Steven R. Bechtel, Mateer & Harbert, Orlando, for appellants.
    Elwood Phillips, Orlando, for appellee.
   PER CURIAM.

Appellants, constituting the Board of County Commissioners of Orange County, Florida, appeal final judgment entered in favor of appellee, First Apostolic Church, directing the Board of County Commissioners to grant appellee’s application for a special exception to build a church, a permissive use on a parcel of land the church owned.

Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine there was sufficient competent evidence before the commissioners to support denial of appel-lee’s application for a special exception. It is not the function of a reviewing court on a petition for a writ of certiorari to reweigh the evidence, as the lower court in the instant case did, but to review the record brought before it to determine if there had been a departure from the essential requirements of law. De Groot v. Sheffield, 95 So.2d 912 (Fla.1957).

Accordingly, the final judgment appealed is reversed, and the cause remanded with directions to enter an order denying and dismissing the petition for writ of certiora-ri.

Reversed and remanded, with directions.

OWEN, CROSS and DOWNEY, JJ„ concur.


text:
    Gerald Monte CICCARELLI, Petitioner, v. The CITY OF KEY WEST, Florida, Respondent.
    No. 75-311.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Thomas A. Wills, American Civil Liberties Union of Florida, Coral Gables, for petitioner.
    Edward Worton, State’s Atty., and W. Randall Winter, Asst. State’s Atty., for respondent.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   NATHAN, Judge.

This petition for a writ of certiorari was filed by Gerald Monte Ciccarelli, to seek review of a judgment of the circuit court sitting in its appellate capacity, affirming a judgment of the Key West municipal court.

Ciccarelli was charged by complaint with “loitering on any public street, public sidewalk, public overpass, public bridge or public place so as to hinder or impede or tend to hinder or impede the passage of pedestrians or vehicles,” in violation of § 21-41(1) of the Code of Ordinances of the City of Key West. On January 31, 1973, immediately prior to his trial in the Key West municipal court, Ciccarelli orally moved for dismissal of the complaint on the grounds that § 21-41(1) is vague and overbroad in violation of the Fourteenth Amendment to the Constitution of the United States. The court orally denied the motion to dismiss and proceeded with the trial. Ciccarelli pled not guilty, was tried without a jury, adjudicated guilty as charged and sentenced to pay a fine of $25.00 plus $2.00 court costs, or serve 12 days in the city jail. From his adjudication of guilt and sentence, he appealed to the circuit court. No evidentiary facts were presented on appeal. The sole issue presented was whether the trial court erred and violated Ciccarelli’s right to due process under the Fourteenth Amendment to the Constitution of the United States by convicting him under an ordinance that is invalid on its face as being vague and overbroad. The circuit court, affirming the municipal court, entered a judgment on appeal holding that, “The subject ordinance is not overbroad and is valid on its face and does not contravene the provisions of the United States Constitution.”

Ciccarelli now files this petition for writ of certiorari in this court, stating that he has no other adequate remedy by appeal or otherwise. This court has jurisdiction of the cause pursuant to Art. V, § 4(b)(3) of the Florida Constitution and Rule 4.5(c) of the Florida Appellate Rules. See State v. Katz, Fla.App.1959, 108 So.2d 60; Dresner v. City of Tallahassee, Fla.1964, 164 So.2d 208; Blacharski v. Watts, Fla.App.1972, 268 So.2d 465; Pettersen v. Nelson, Fla.App.1972, 269 So.2d 22; Whittemore v. Dade County, Fla.1974, 292 So.2d 363, 365.

The petitioner argues that in the decision sought to be reviewed herein, the circuit court departed from essential requirements of law by holding Ordinance 21-41 to be valid on its face and by failing to prescribe limitations upon its application so as to bring the ordinance within constitutional restraints.

It is well settled that a law denies due process guaranteed by the Fourteenth Amendment of the United States Constitution if (1) it is so vague that a person of ordinary intelligence is not put on notice of the conduct which is prohibited, State v. Buchanan, Fla.1966, 191 So.2d 33, 34; Palmer v. City of Euclid, 1971, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98; Papachristou v. City of Jacksonville, 1972, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, or (2) if the law is so overbroad that it makes common conduct criminal and provides the police with unfettered discretion to arrest. Headley v. Selkowitz, Fla.1965, 171 So.2d 368; State v. Penley, Fla.App.1973, 276 So.2d 180, 181; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L. Ed. 888.

Key West Ordinance 21-41 specifically prohibits loitering if it “impedes or tends to impede” passage. Ciccarelli submits that the limiting words themselves are so vague and overbroad that the ordinance fails to comport with due process requirements; a person of ordinary intelligence must guess what conduct is prohibited; ordinary and usual conduct is made criminal and the police still have unfettered discretion to arrest for usual, ordinary, non-criminal conduct.

In the recent Florida Supreme Court opinion of State v. Ecker, 1975, 311 So.2d 104, reviewing the constitutionality of a loitering statute, the court recognized that if the statute broadly proscribes loitering or idling, without more, it would be unconstitutional. On the other hand, if a statute proscribes loitering that threatens public safety or a breach of the peace, it can withstand constitutional attack. The Supreme Court stated that whether the statute would withstand constitutional attack depends upon a “delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property.” (page 107)

The Supreme Court then proceeded to analyze a number of cases including United States Supreme Court cases which demonstrate that a statute broadly proscribing loitering without more would be unconstitutional.

The issue which we now must determine is whether Ordinance 21-41 is sufficiently restrictive to afford due process. § 856.-021, Fla.Stat., was found to be constitutional in State v. Ecker, supra, because it sets out standards and separate and distinct elements which must be established in order to convict a defendant under it. The test applied by the Florida Supreme Court in Ecker is “ . . .if the statute proscribes loitering that threatens the public safety or breach of the peace, it can withstand constitutional attack.” (page 107) Ordinance 21-41(1) offers no standards to distinguish it from a “catchall.” It has no elements of a criminal offense, unless ordinary conduct can be so considered.

The “delicate balance” test referred to by the court takes on added significance where the ordinance impinges upon a constitutional right. The First Amendment of the Constitution of the United States provides for the right of people peaceably to assemble. A right of constitutional proportions should not be impaired except where a substantial threat of injury to public safety exists. Absent criminal intent or criminal negligence “tending to impede passage” is not a crime, and absent a refusal to obey a lawful order to move on, no threat to public safety is apparent. Under such circumstances the “delicate balance” must favor the petitioner’s constitutional rights including the right of assembly.

We hold that in order to comply with the above test, Ordinance 21-41(1) must contain some restrictive standards which would limit its application to impediments to passage that threaten public safety or a breach of the peace. We, therefore, find that the circuit court departed from the essential requirements of law by affirming the judgment and sentence of the Key West municipal court, by failing to declare the Ordinance 21^11(1) unconstitutional on its face as lacking the necessary restrictive standards.

The petition for certiorari is granted and the judgment and sentence of the trial court is quashed.

      . § 866.01, Fla.Stat.


text:
    Bruce KOZEROWITZ, now Bruce Kaye, Petitioner, v. A. J. STACK and the Florida Real Estate Commission, Respondents.
    No. 75-492.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    liehearing Denied Nov. 12, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Marilyn L. YUNIS, Appellant, v. CORAL GABLES FIRST NATIONAL BANK, a National Banking Corporation, Appellee.
    No. 75-37.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Rehearing Denied Nov. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    AVIVA DAVIS INTERIORS, INC., a corporation, Petitioner, v. Hartley LORD and _ Lord, his wife, jointly and severally, Respondents.
    No. 75-672.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1975.
    Rehearing Denied Nov. 3, 1975.
   PER CURIAM.

Certiorari denied.


text:
    W. F. CAPLE, Petitioner, v. DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Respondent.
    No. 75-528.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1975.
    Rehearing Denied Nov. 3, 1975.
   PER CURIAM.

Certiorari denied.


text:
    GOA DIAMOND CORPORATION, a Florida Corporation, and Cesar Goas, Appellants, v. ZURICH-MIAMI, INC., a Florida Corporation, Appellee.
    No. 75-851.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
    Rehearing Denied Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    T & M INVESTMENTS, INC., Appellant, v. Benjamin POLLOCK, Appellee.
    No. 75-576.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
    Rehearing Denied Nov. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Alvin DOUSE and Manchester Insurance and Indemnity Company, Petitioners, v. Isadore KNIGHT, Respondent.
    No. 75-849.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    DADE COUNTY BOARD OF PUBLIC INSTRUCTION, Appellant, v. Edna HANNERS, Appellee.
    No. 75-640.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Rehearing Denied Nov. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    BACHE & CO. INCORPORATED, Petitioner-Relator, v. Joseph VIGMAN et al., Respondents.
    No. 75-1526.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 1975.
   PER CURIAM.

Certiorari and prohibition dismissed.


text:
    COMMUNITY NATIONAL BANK & TRUST COMPANY, Petitioner-Relator, v. Joseph VIGMAN et al., Respondents.
    No. 75-1525.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 1975.
   PER CURIAM.

Certiorari and prohibition dismissed.


text:
    Irving ALPERT, Administrator of the Estate of Jack Paul, deceased, Appellant, v. CONCORD FLORIDA, INC., Appellee.
    No. 75-1199.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Karl H. COX, Petitioner, v. The STATE of Florida, Respondent.
    No. 75-1098.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Certiorari denied.


text:
    G. A. C. PROPERTIES, INC., a Florida corporation, Appellant, v. Frederick M. ENGLAND, and Viola B. England, his wife, Appellees.
    No. 75-1371.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    KLEMENTS & ASSOCIATES, ARCHITECTS & ENGINEERS, INC., a Florida corporation, and Klements/Furlong Enterprises, Ltd., Appellants, v. CITY NATIONAL BANK OF MIAMI, a national banking association, Appellee.
    No. 75-1202.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Rosa Ana REY, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and CNA INSURANCE CO., a Florida corporation, Respondents.
    No. 75-581.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Moe HIRSCH, Appellant, v. Fay HIRSCH, Appellee.
    No. 75-870.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    INTERNATIONAL HEALTH SERVICES, INC., a Delaware Corporation, et al., Appellants, v. Ernest PHILBECK, Appellee.
    No. 75-811.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Thomas KENNEY, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 75-337.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    WINGATE MILLWORKS, INC., a Florida Corporation, Appellant, v. John H. COPELAND, Sr., et al., Appellees.
    No. 75-352.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    NOLAN’S GARAGE, INC., Petitioner, v. Benjamin BOGGS and Hollis Boggs, Respondents.
    No. 75-1383.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 1975.
    Rehearing Denied Nov. 3, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    CITY OF MIAMI BEACH, a Florida municipal corporation, Petitioner, v. Emil MORTON, d/b/a Morton Towers, Respondent.
    No. 75-853.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Sheri Lynn JACOBS, Appellant, v. Steven D. GINSBURG, Appellee.
    No. 75-986.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1975.
    Rehearing Denied Nov. 12, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Richard H. OLSEN, Appellant, v. Saul GOODMAN, Appellee.
    No. 75-1424.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    GROVER HOUSING CORPORATION, a Florida corporation, Petitioner, v. GAN-MUR CORP., a Florida corporation, et al., Respondents.
    No. 75-1427.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Gary V. PLANT, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1487.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 17, 1975.
   Habeas corpus denied.


text:
    Greta LANDSBERG, Appellant, v. Jack LANDSBERG, Appellee.
    No. 75-423.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    MANAGEMENT RECRUITERS OF GREATER MIAMI, INC., Appellant, v. David STRASBERG, Appellee.
    No. 75-330.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Michael RAINES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-323.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Raoul R. WAHLBERG, Appellant, v. Theda NAF, formerly known as Theda L. Wahlberg, Appellee.
    No. 75-221.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    The CITY OF LAUDERDALE LAKES, a Municipal Corporation, of the State of Florida, Appellant, v. BABCOCK DEVELOPMENT CO., a Florida Corporation, et al., Appellees.
    No. 75-343.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   Appeal from Circuit Court, Broward County; Stewart F. LaMotte, Jr., Judge.

Appeal dismissed.


text:
    James R. GALLO, Appellant, v. Jean GALLO, Appellee.
    No. 75-1391.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1975.
   Appeal dismissed.


text:
    Norman W. LYON, individually and Norman W. Lyon, as Administrator of the Estate of Edward C. Lyon, Deceased, Appellant, v. WAGNER ELECTRIC CO., a Florida Corporation, et al., Appellees.
    No. 75-1283.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    The STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. CONDOMINIUM INTERNATIONAL, INC., et al., Appellees.
    No. 75-1633.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Norman Francis HAFT, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1655.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    The STATE of Florida ex rel. Roy Edwin GASKILL, Relator, v. The Honorable Bill G. CHAPPELL, Judge of the Circuit Court of the 16th Judicial Circuit of the State of Florida, In and For Monroe County, Respondent.
    No. 75-1366.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    Jesse T. WOOD and Allstate Insurance Company, Appellants, v. James G. JOINER, etc., et al., Appellees.
    No. 75-1374.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
   PER CURIAM.

Appeal dismissed.