text:
    Dale D. GORDON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1728.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger and Jose R. Rodriguez, Asst. Attys. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, defendant below, was charged by information with possession of a controlled substance and loitering. A motion to suppress evidence seized from appellant at the time of his arrest was filed and subsequently denied by the trial court. After non-jury trial, appellant was found and adjudicated guilty on both counts of the information. A sentence of six months imprisonment was imposed on the possession charge, with a sixty day sentence on the loitering charge to run concurrently. This appeal follows.

Appellant raises two points on appeal. Firstly, appellant contends that the trial court erred in denying the motion to suppress evidence in that the evidence seized was the product of an illegal arrest. Secondly, appellant contends that the trial court erred in denying his motions for judgment of acquittal in that the evidence presented by the state was insufficient to prove the crimes charged in the information.

After carefully reviewing the record, all points raised in the briefs and arguments of counsel, it is our opinion that (1) there was probable cause for the arrest of appellant for loitering; (2) a valid search of appellant incident to his arrest ensued, revealing the controlled substance; and (3) there was competent substantial evidence presented at trial to sustain appellant’s convictions for loitering and possession of a controlled substance. State v. Ecker, 311 So.2d 104 (Fla.1975); Benefield v. State, 160 So.2d 706 (Fla.1964); Sharp v. State, 328 So.2d 503 (Fla.3d DCA 1976).

Accordingly, appellant’s convictions and sentences are hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: HENDRY, Chief Judge.

license: Public Domain

text:
    Ronald POUNCY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1734.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   HENDRY, Chief Judge.

Appellant, defendant below, appeals his conviction and sentence for murder in the second degree for the brutal slaying of Walter Wood.

After carefully reviewing the record, briefs and argument of counsel, we are of the opinion that the sentence and conviction must be reversed and remanded for new trial in that the trial judge failed to instruct the jury as to the consequences of a verdict of not guilty by reason of insanity as required by Roberts v. State, 335 So.2d 285 (Fla.1976) and Wheeler v. State, 344 So.2d 244 (Fla.1977). See also Curtis v. State, 352 So.2d 540 (Fla. 3d DCA 1977), opinion filed November 22, 1977, and Ringgo v. State, 339 So.2d 293 (Fla. 2d- DCA 1976).

Appellant has raised additional points on appeal, among which is the contention that the trial judge erred in failing to grant defense counsel’s motions for protective order and to quash subpoenas issued by the State to depose certain psychiatrists hired by appellant’s counsel to aid in the preparation of his defense. Appellant argues that both the deposing of the doctors, and their subsequent utilization by the State as witnesses, violated the attorney-client privilege.

Though not the determinative question on this appeal, in light of the fact that we have given appellant a new trial, a discussion on this point at this time would be anticipatory of the same objections being raised at appellant’s second trial.

While neither appellant nor the State has been able to furnish us with any Florida decision directly on point, other jurisdictions and the Federal courts have dealt with this particular issue, which we state as follows:

Whether the doctrine of attorney-client privilege bars the State from deposing and calling as witnesses psychiatrists hired by an accused or his counsel for the sole purpose of aiding the accused and his counsel in the preparation of his defense, i. e. insanity.

We believe that generally, and with one notable exception, the answer is yes.

In City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26 (1951), the Supreme Court of California, in an opinion authored by Justice Traynor, ruled that when a physician, as an agent of the attorney, examines the client for the sole purpose of aiding the client’s attorney in the preparation of his or her lawsuit and not for the purpose of treating the client, any information obtained by the physician regarding the client’s condition and divulged to the client’s attorney is privileged.

Likewise, in United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975), the Third Circuit Court of Appeals ruled that the assertion of an insanity defense did not result in the waiver of the attorney-client privilege accorded to a psychiatric consultation made in the preparation of trial. The court therein opined that:

“[T]he effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting. If the expert is later used as a witness on behalf of the defendant, obviously the cloak of the privilege ends. But when, as here, the defendant does not call the expert the same privilege applies with respect to communications from the defendant as applies to such communications to the attorney himself.
* * * * sic *
The issue here is whether a defense counsel on a case involving a potential defense of insanity must run the risk that a psychiatric expert whom he hires to advise him with respect to the defendant’s mental condition may be forced to be an involuntary government witness. The effect of such a rule would, we think, have the inevitable effect of depriving defendants of the effective assistance of counsel in such cases. A psychiatrist will of necessity make inquiry about the facts surrounding the alleged crime, just as the attorney will. Disclosures made to the attorney cannot be used to furnish proof in the government’s case. Disclosures made to the attorney’s expert should be equally unavailable, at least until he is placed on the witness stand. The attorney must be free to make an informed judgment with respect to the best course of the defense without the inhibition of creating a potential government witness.” Supra at 1046, 1047.

Also in accordance see State v. Kociolek, 23 N.J. 400,129 A.2d 417 (1957); United States ex rel. Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976); 8 Wigmore, Evidence § 2301 (McNaughton rev. 1961); but compare People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976).

Sub Judice, appellant’s attorneys employed several psychiatrists to aid in the preparation of appellant’s defense. The psychiatrists examined appellant and questioned him extensively about the murder of Wood. Their evaluations were thereupon relayed to appellant’s counsel. Over objection, the State subpoenaed and deposed the psychiatrists, utilizing them as witnesses at trial. In light of the above authorities, we believe that the trial judge’s ruling violated the attorney-client privilege by permitting the State to (1) depose the doctors and (2) use them as State’s witnesses when appellant had no intention to utilize the psychiatrists as defense witnesses. Said privilege would have, of course, been waived, had appellant utilized his psychiatrists as witnesses. United States v. Alvarez, supra; Section 90.242, Florida Statutes (1975); See also McMunn v. State, 264 So.2d 868 (Fla. 1st DCA 1972).

The one major exception to this attorney-client privilege is where the trier of fact is so effectively deprived of valuable witness- . es so as to undermine the public interest in the administration of justice. United States ex rel. Edney v. Smith, supra; Sepler v. State, 191 So.2d 588 (Fla. 3d DCA 1966).

The State has stressed what it believes to be two factors which amount to such overriding public interest so as to pierce the attorney-client privilege, sub judice. Firstly, the State contends that appellant’s psychiatrists examined appellant soon after the date of the crime and were thus, more qualified than the State’s psychiatrists who examined appellant some months after the crime, to offer their opinion to the jury as to appellant’s mental condition at the time of the commission of the crime. Secondly, the State contends that the adoption of the attorney-client privilege, in cases such as this, would encourage the defense to “scoop” up all qualified experts in a given field, i. e., psychiatry, thus precluding the State from effectively presenting its case. While both points are valid, to a degree, (and we encourage all trial judges to carefully explore all “public interest” factors before invoking the attorney-client privilege in situations such as this), sub judice, we are of the opinion that there was no overriding public interest precluding the court from applying the attorney-client privilege.

During the course of the trial, the State called two court-appointed psychiatrists as witnesses, in addition to two of appellant’s psychiatrists. All four psychiatrists testified that appellant knew right from wrong at the time of the commission of the act. In furtherance of his defense of insanity, appellant called but two lay witnesses. Obviously, there was neither such a dearth of experts available, nor such a precarious position occupied by the State so as to violate the attorney-client privilege.

Accordingly, for the above reasons, appellant’s sentence and conviction are hereby reversed and remanded for new trial.

Reversed and remanded.

      . In fairness to the trial judge, it must be mentioned that the Roberts decision had not been rendered until after appellant’s trial.


author: PER CURIAM.

text:
    Eddie Lee SHARP, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1749.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAYERFIELD, JJ.
   PER CURIAM.

The appellant was found guilty by a jury of robbery with a weapon, was adjudged guilty and was sentenced to thirty years in prison. This appeal is from the judgment and sentence. We hold that the conviction must be reversed and the cause remanded for a new trial under this court’s holding in Abreau v. State, 347 So.2d 819 (Fla. 3d DCA 1977), which was, in turn, based upon Lomax v. State, 345 So.2d 719 (Fla.1977). Although the evidence of defendant’s guilt appears to be overwhelming, reversible error under Lomax arises from the fact that defendant was tried upon a charge of robbery with a firearm and the court refused to instruct upon the lesser-included offense of simple assault. The court did charge upon the lesser-included offenses of robbery with any weapon, robbery without a weapon, attempted robbery, grand larceny, petty larceny and aggravated assault. The jury returned a verdict of guilty of the lesser-included offense of robbery with a weapon. Under the reasoning advanced by several courts prior to the Florida Supreme Court decision in the Lomax case, this failure to instruct in simple assault would not have been reversible error. Nevertheless, as pointed out by our opinion in Abreau, supra, reversible error appears under the Florida Supreme Court decision in Lomax v. State, supra.

Reversed and remanded for a new trial.

      . Dobbert v. State, 328 So.2d 433 (Fla.1976); DeLaine v. State, 262 So.2d 655 (Fla.1972); and Spigner v. State, 304 So.2d 496 (Fla. 1st DCA 1974). See also Garrison v. State, 340 So.2d 1171 (Fla. 4th DCA 1976).


text:
    Francis WINGERT, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-1849, 76-1893.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.

      Robert M. Leen, Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

These consolidated appeals are by Francis Wingert, who was found guilty of murder in the second degree and sentenced to twenty years imprisonment. The first appeal is from the judgment and sentence. The second appeal is from the denial of his motion to vacate the judgment and sentence on the ground of inadequacy of counsel at the trial. The defendant was represented by the public defender at his trial and was represented by a specially-appointed public defender in the preparation and presentation of his motion for relief pursuant to Fla.R.Crim.P. 3.850 and in the handling of these appeals.

Police officers, upon investigating a report of an odor emanating from defendant’s apartment, found a dead body. Thereafter, the police officers went looking for the defendant and found him in a bar, at which time they asked him to accompany them to the station in order to aid in the investigation of the matter. At the station, defendant was given his Miranda warnings and voluntarily made a statement in which he admitted killing the victim but claimed the killing was done in self-defense. No explanation was offered of why the death had not been reported.

At defendant’s trial, a woman companion who was present at the killing testified that the victim had been killed when the defendant took a hammer and struck the victim several blows on the head after the victim had “passed out” from the consumption of alcohol. The public defender knew of the existence of the tape recorded statement, but did not make a motion for its suppression. He did object to the introduction of the statement at the trial on the ground that defendant had been drunk and did not understand his constitutional rights, but he did not indicate to the court at that time that he had not had an opportunity to hear the statement. The court ruled that because no motion had been made prior to trial, pursuant to Fla.R.Crim.P. 3.190(i), objecting to the statement, the Miranda objection would not be considered at the time of the trial. The judge did, however, rule that the statement was voluntarily made. This ruling is clearly sustained by the showing in this record that the defendant accompanied the police officers to the station when he was not under arrest and was anxious to give his exculpatory statement. Cf. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and see the principles of law in State v. Chorpenning, 294 So.2d 54 (Fla.2d DCA 1974).

On the appeal from the judgment, the defendant urges that the trial court erred in failing to sustain his counsel’s objection at the time of trial and that the statement was taken in violation of his Miranda rights because he was too drunk at the time to understand his rights. We hold that error does not appear for two reasons. First, there is no error because it appears that this was a voluntary statement made prior to arrest. See Miranda v. Arizona, supra; and Jackson v. State, 317 So.2d 454 (Fla.4th DCA 1975). Secondly, there is no error because of the reason given by the judge, that such objections must be made prior to trial where the matters forming the basis of the constitutional attack are available to defense counsel in sufficient time to make the motion prior to trial. The reason for this rule is that only by a decision on such motions prior to trial can the State be given a right to appeal. The right of the State to appeal appears in the Florida Statutes and the Florida Appellate Rules. Section 924.071(1), Florida Statutes (1975); and Fla.App. Rule 6.3.

Turning now to the second of these consolidated appeals in which the defendant contends that the court should have granted him relief upon his motion made pursuant to Fla.R.Crim.P. 3.850, it should be noted that the trial judge held a full hearing on this motion. We find nothing in the record which would sustain defendant’s contention that the evidence received by the trial judge upon the motion conclusively established inadequacy of the trial counsel. Rather, it is apparent from the record that the decision not to move to suppress the recorded statement was made at the time because trial counsel felt that the exculpatory portions of the statement were strong enough to serve the purpose of getting defendant’s explanation of the killing before the jury without putting the defendant on the stand. Such a decision is not the kind that would establish incompetency of counsel. See State v. Eby, 342 So.2d 1087 (Fla.2d DCA 1977); and Odom v. U. S., 377 F.2d 853 (5th Cir. 1967).

Having considered defendant’s appeals and finding that error does not appear, the judgment and sentence are affirmed and the trial court’s order denying defendant’s motion pursuant to Fla.R.Crim.P. 3.850 is affirmed.

Affirmed.

      . Fla.R.Crim.P. 3.190(i) grants to the judge discretion in this matter. The rule is as follows:
      “(i) Motion to Suppress a Confession or Admissions Illegally Obtained.
      “(1) Grounds. Upon motion of the defendant or upon its own motion, the court shall suppress any confession or admission obtained illegally from the defendant.
      “(2) Time for Filing. The motion to suppress shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial.
      “(3) Hearing. The court shall receive evidence on any issue of fact necessary to be decided in order to rule on the motion.”


author: NATHAN, Judge.

text:
    R. T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1990.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.

      Bennett H. Brummer, Public Defender and Paul Morris and Warren S. Schwartz, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and Edwin D. Davis, II, Legal Intern, for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

R. T., a juvenile, appeals from an order adjudicating him delinquent. The petition for delinquency charged the juvenile defendant with having violated Section 810.-09, Florida Statutes (Supp.1976), in that he did . . remain in the property of the School Board of Dade County, located in the vicinity of 11700 S.W. 116th Street. . ” This is the site of Mays Junior High School, and the record reflects that the alleged offense, failure to leave the premises when ordered to do so, occurred within the school building.

Section 810.09, as of the date at issue herein, provided, in pertinent part, that “[a] person commits an offense if, without being authorized, licensed, or invited, he willfully enters upon or remains in any property other than a structure . . . as to which notice against entering or remaining is given . . . .” (Emphasis supplied.)

Appellant argues that the trial court erred in denying his motion for a judgment of acquittal when the act he was found to have committed was not an offense under the laws of Florida. The state contends that the true issue is whether or not there was a fatal variance between the allegation and the proof, asserting that an error in the charge (citation to Section 810.09, Trespass on Property Other Than Structure or Conveyance, instead of Section 810.08, Trespass in Structure or Conveyance) did not mislead or embarrass defendant in the preparation of his defense.

We find the state’s position to be without merit. On the date of the alleged violation, Section 810.08 proscribed only willful entrance onto the structure of another without authorization, license or invitation. Although both the prior statute, which was replaced by Section 810.08, and the subsequently amended version of 810.08 included within the trespass the act of remaining when ordered to depart, the law in effect on the date at issue did not proscribe remaining within a structure when ordered to leave.

The state having failed to prove a crime or a material element thereof, the order of the trial court adjudicating defendant a delinquent must be reversed. Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975); Minor v. State, 329 So.2d 30 (Fla. 2d DCA 1976).

Reversed.


author: KEHOE, Judge.

text:
    SOUTHERN INTERNATIONAL CORP., Appellant, v. POLY-URETHANE INDUSTRIES, INC. and Foremost Insurance Co., Appellees.
    No. 76-2050.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.

      Richard M. Welsh & Associates, Joe N. Unger, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before HAVERFIELD, HUBBART and KEHOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final judgment, entered on October 7, 1976, by the trial court sitting non-jury, determining that under a general liability insurance policy issued by appellee Foremost Insurance Company to appellee Poly-Urethane Industries, Inc., both defendants below, the claims made by appellant constituted one occurrence under the policy, thereby, limiting liability to $10,000. We agree with the trial court’s determination; therefore, the final judgment appealed is affirmed.

This case arises out of a contract between appellant and appellee Poly-Urethane Industries, Inc. (hereinafter referred to as Poly-Urethane), for the application of a poly-urethane sealant to the roofs of part of a condominium complex known as Palm West Gardens Condominium located at 1910, 1950, and 1990 West 56th Street, Hialeah, Florida, owned by appellant. Pursuant to the contract, appellee Poly-Urethane applied a sealing substance to the roofs of each of these buildings, completing the application around January of 1973. Several months later, various tenants of these buildings began experiencing leaks in the roofs. Appellee Poly-Urethane does not contest responsibility for the damage nor is it contested that the damages are covered by the policy of insurance issued by appellee Foremost Insurance Company.

The policy is a comprehensive general liability policy which provides coverage for bodily injury or property damage caused by the application of the sealant. For any such damage, it provides $10,000 coverage for “each occurrence” and $25,000 for the “aggregate.” In the definition section of the policy, the term “occurrence” is defined as follows:

“For the purposes of determining the limit of the company’s liability, all bodily injury and property damage arising out of continuous or repeated exposure to substantially the same general conditions, shall be considered as arising out of one occurrence.”

During the course of the trial and by this appeal, appellant argues that, because several roofs were sealed pursuant to the contract, the leakage of each roof was a separate occurrence and, therefore, the aggregate coverage under the policy of $25,000 should apply. Appellees argue, and the trial court agreed as reflected in its final judgment, that the application of the sealant to the several roofs under the contract constituted one event and appellant’s damages were the result of a single “occurrence”, as that term was defined in the policy, thereby, making $10,000 the applicable policy limit.

Neither appellant nor appellees have cited any Florida authority, nor have we been able to locate any, on the basic point raised by this appeal, i. e., whether, under the facts of this case, appellee Poly-Urethane’s application of the sealant constituted a single “occurrence” as that term is defined in the insurance policy. However, our attention is called to Annot., 55 A.L.R.2d 1300 (1957),.which contains persuasive authority, from analogous cases in other jurisdictions. From our study of these cases and a careful review of the record in the instant case, we have concluded that the trial court properly found that the actions of appellee Poly-Urethane were a single “occurrence” as the term was defined in the policy. See, e.g., St. Paul Mercury Indemnity Company v. Rutland, 225 F.2d 689 (5th Cir. 1955); Union Carbide Corp. v. Travelers Indemnity Company, 399 F.Supp. 12 (D.Pa.1975); TriState Roofing Company v. New Amsterdam Casualty Company, 139 F.Supp. 193 (D.Pa.1955); Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La.1973); and Wilkinson & Sons, Inc. v. Providence Washington Insurance Company, 124 N.J.Super. 466, 307 A.2d 639 (1973). Therefore, the final judgment entered by the trial court against appellees is affirmed.

Affirmed.


text:
    Fletcher EVERETT, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 76-2103.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.

      Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

This appeal is taken by defendant, Fletcher Everett, from a conviction of uttering a forged instrument and petit larceny.

Defendant first urges as reversible error the trial court permitting the prosecution to introduce into evidence handwriting exemplars obtained from him after he had been compelled to appear at the police station prior to the filing of formal charges in violation of his right to be free from unreasonable seizure of his person.

The underlying issue of fact is whether these handwriting exemplars were obtained by coercion or were voluntarily given by the defendant. At the trial, defense counsel moved to suppress the handwriting exemplars on the ground of coercion. A hearing was held outside the presence of the jury and the record reflects that Officer Nelson, the lead investigator, telephoned the defendant and requested that he and his wife come down to the police station to discuss the case. Nelson also informed defendant that if he did not come, he would continue his investigation which could be the cause to have an arrest warrant issued for him. Subsequently, defendant and his wife did come to the station; however, since Nelson was on vacation, Officer Hughes advised defendant of his constitutional rights (since he was a suspect) and then discussed the case with him. Defendant and his wife also gave Hughes handwriting exemplars. Hughes denied making any threats or promises to them in obtaining the exemplars. Defendant did not testify and the trial court denied the motion to suppress.

The contention that defendant was compelled to come to the police station as a result of his telephone conversation with Officer Nelson is nothing more than mere speculation, and we conclude that defendant voluntarily went to the police station and gave samples of his handwriting to Officer Hughes. Cf. U. S. v. Brunson, 549 F.2d 348 (5th Cir. 1977). Further, the determination of the voluntariness of the consent given by the defendant was a question of fact initially for the trial court to decide. There being substantial competent evidence to support the court’s determination of vol-untariness, we will not disturb this denial of the motion to suppress on appeal. See Gerrard v. State, 345 So.2d 849 (Fla. 3d DCA 1977).

We also considered defendant’s remaining points on appeal and find no merit therein.

Affirmed.


text:
    Reinaldo ALONZO et ux., Appellants, v. W. L. THORNTON et al., Appellees.
    No. 76-2121.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Kaplan, Dorsey, Sicking & Hessen and Joseph C. Segor, Miami, for appellants.

      Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn and Stephen A. Stieglitz, Miami, for appellees.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See West v. Jessop, 339 So.2d 1136, 1137 (Fla. 2d DCA 1976).


text:
    Walter SCHEEL and Nellie Mae Scheel, Appellants, v. METROPOLITAN DADE COUNTY et al., Appellees.
    No. 76-2127.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    William Huggett and Theodore M. Kraft, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Gregor M. Gaebe, Miami, for appellees.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Walter Scheel and Nellie May Scheel, plaintiffs in the trial court, appeal a final judgment in favor of the appellees and from an order denying them a new trial. The Scheels brought this suit against the County and others, alleging that they were falsely arrested, assaulted, and brutalized by the actions of a group of police officers. The police allegedly entered their home, assaulted them, and placed them under arrest. The charges for which they were arrested were ultimately dismissed.

This case was subsequently tried before a jury. One of the appellants’ key witnesses was Walter Scheel. When he was called to testify he was asked whether he had ever been convicted of a crime. He replied in the negative, although he had in fact been convicted of robbery and leaving the scene of an accident, and had admitted to these in his deposition (all but the latter conviction were some 50 years ago). He was advised by his attorney not to admit his convictions at trial. The trial court permitted the defense to proffer Scheel’s prior deposition testimony admitting his past criminal record. During the course of this proffer, Scheel admitted that in his prior deposition he had testified under oath that he had been convicted of a robbery charge, elected to assert his Fifth Amendment privilege against self-incrimination when asked if he was telling the truth at the time of his deposition, admitted to having been convicted of leaving the scene of an accident, admitted to having been convicted as an accessory to either robbery or burglary, and admitted to having escaped from prison. He subsequently admitted these convictions to the jury. The plaintiffs’ counsel objected to the use of Scheel’s prior deposition to impeach his testimony and twice moved for a mistrial. The objections were overruled and the mistrials were denied. The jury returned with a verdict in favor of the appellees. The trial court entered a final judgment on the verdict, and denied the appellants’ motion for new trial. This appeal followed.

The appellants contend the trial court erred in permitting the impeachment by the deposition and the line of questioning as to the various types of convictions.

We disagree, and affirm. First, it was valid use of a deposition for impeachment purposes, the witness having given a different answer than that which he gave on an earlier deposition. Adams v. State, 54 Fla. 1, 45 So. 494 (1907); Cunningham v. State, 239 So.2d 21 (Fla. 1st DCA 1970); Robinson v. State, 254 So.2d 379 (Fla. 3d DCA 1971); State v. Young, 283 So.2d 58 (Fla. 1st DCA 1973); Fireman’s Fund Insurance Company v. Riley, 294 So.2d 59 (Fla. 3d DCA 1974); Crespo v. State, 344 So.2d 601 (Fla. 3d DCA 1977); United States v. Rodriguez-Hernandez, 493 F.2d 168 (5th Cir. 1974), cert. denied 422 U.S. 1056, 95 S.Ct. 2678,45 L.Ed.2d 708. Second, after the witness denied that he had ever been convicted of a crime, counsel was justified in refreshing his memory from the deposition as to the robbery conviction and, further, he was justified in demonstrating that the witness had been convicted of crimes other than the robbery conviction.

We recognize the general exception as to remoteness in time and those convictions of which a witness may have been pardoned. Singleton v. State, 38 Fla. 297, 21 So. 21 (1896); Alford v. State, 47 Fla. 1, 36 So. 436 (1904); New England Oyster House, Inc. v. Yuhas, 294 So.2d 99 (Fla. 3d DCA 1974). However, in light of the negative answer given from the stand, which the witness knew was false, and his prior testimony upon deposition, we find no error under the circumstances in the complained of ruling by the trial judge.

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

Affirmed.


text:
    LONG ISLAND INSURANCE COMPANY, Appellant, v. Richard STUCKEY, Appellee.
    No. 76-2197.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.

      Michael P. Weisberg, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Moss, Cohen & Rodgers, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. Farley v. Gateway Insurance Company, 302 So.2d 177 (Fla. 2d DCA 1974).


text:
    Charles LOWMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2262.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Bennett H. Brummer, Public Defender, Paul Morris, Asst. Public Defender, and Thomas Wills, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita G. Esquiroz and Jose R. Rodriguez, Asst. Attys. Gen., for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, defendant below, was convicted by a jury of robbery (Count I) and display of a firearm while committing a felony (Count II). He was sentenced to twenty years imprisonment on Count I and fifteen years on Count II, the second sentence to run concurrently with the first. Subsequently the court suspended the sentence on Count II. It is from this conviction and his sentence that defendant appeals.

While attempting to depart from the home of his girlfriend, defendant passed through the living room in which the girl’s mother lay sleeping. The mother awakened, defendant pointed a gun at her, and stole her wallet.

Count I of the information charged defendant with taking the wallet and the cash therein. During the course of trial, the girlfriend’s father testified that another $150 in cash, a watch and a gold cross were also missing from the house. Before closing arguments, defense counsel requested the court to instruct the jury to disregard the testimony regarding the cash, watch and cross as pertaining to a separate offense not charged in the information. The request was denied. Defense counsel renewed his request for a curative instruction and moved for a mistrial in the alternative. Both motions were denied.

Defendant contends that the trial court committed reversible error in denying his motion to instruct the jury to disregard a collateral crime or in the alternative to declare a mistrial; that since the adjudication of guilt on Count I is void, the trial court erred in adjudicating defendant guilty on Count II because conviction on Count II is dependent on conviction on Count I; and that the court erred in entering a suspended sentence on Count II since both convictions arose from the same transaction.

In regard to defendant’s first contention, the record reveals that the defense never objected to the elicitation of the testimony herein challenged as immaterial and prejudicial, nor moved to strike it. On the contrary, defense counsel extensively cross examined three prosecution witnesses on the issue of the missing property in an effort to impeach their credibility. This combination of failure to raise timely objections and exploitation for impeachment value is sufficient of itself to vitiate defendant’s argument. See Killingsworth v. State, 90 Fla. 299, 105 So. 834 (1925); Taylor v. State, 289 So.2d 421 (Fla.3d DCA 1974). But the record also reveals that the actual instructions given the jury defined the law in a manner sufficient to encompass the substance of the requested charge. Refusal to give a requested charge when it is covered by charges given is not error. Yost v. State, 243 So.2d 469 (Fla.3d DCA 1971); White v. State, 324 So.2d 115 (Fla.3d DCA 1975), cert. dism., 339 So.2d 1173 (Fla.1976); Zuberi v. State, 343 So.2d 664 (Fla.3d DCA 1977).

Our finding on the above point obviates the need to discuss defendant’s second contention. As to his final assertion that the sentence on Count II, though suspended, was improper, we note that the offenses charged were violations of separate statutes. Thus the fact that they arose from the same criminal episode is not dispositive of the propriety of the sentence imposed. Estevez v. State, 313 So.2d 692 (Fla.1975); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Johnson v. State, 338 So.2d 556 (Fla.3d DCA 1976); Harris v. State, 338 So.2d 880 (Fla.3d DCA 1976); Williams v. State, 346 So.2d 67 (Fla.1977).

Affirmed.


text:
    B & H SALES, INC., Appellant, v. JEWEL BUILDERS, INC., a Foreign Corporation authorized to do business in the State of Florida, Central Florida Water Systems, Inc., a Florida Corporation, Crow, Pope & Land of Florida, Inc. and Cotton States Mutual Insurance Company, Appellees.
    No. 76-2686.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1977.
    Rehearing Denied Jan. 26, 1978.

      Robert G. Brightman and Robert D. Melton of Robert D. Melton, P.A., and H. James Brett, Orlando, for appellant.
    Harold E. Morían, II and Monroe E. McDonald of Sanders, McEwan, Mims & McDonald, Orlando, for appellee Cotton States.
   PER CURIAM.

This is an appeal from an order setting aside a jury verdict in a garnishment proceeding. The appellant, B & H Sales, Inc., secured a judgment against Central Florida Water Systems, Inc. Thereafter, a writ of garnishment was issued to Crow, Pope and Land of Florida, Inc. alleging that Crow owed Central Florida sufficient funds to satisfy the judgment. In an amended answer to the garnishment writ Pope admitted the indebtedness. The ap-pellee, Cotton States Mutual Insurance Company, filed a claim pursuant to Section 77.16 of the Florida Statutes, alleging that it had a superior claim to the funds held by Crow. A jury trial was held on Cotton States’ claim which resulted in a verdict in favor of B & H. The trial court then set aside the verdict and entered a judgment for Cotton States. A judgment contrary to a jury verdict may be entered only where no evidence is presented on which the jury could lawfully have returned its verdict. Landry v. Sterling Apartments, Inc., 231 So.2d 225 (Fla. 4th DCA 1969). Here, the disputed issues of fact submitted to the jury concerned the amount and propriety of certain payments made on a construction project. Those issues were submitted to the jury along with proper legal instructions. In his order setting aside the verdict the trial court concluded that only one result could be reached on the basis of the evidence presented. We disagree. The evidence presented consisted largely of the testimony of one witness. On cross examination the testimony of this witness was sufficiently challenged to create a factual dispute on the issues ultimately submitted to the jury. The jury’s verdict is not inconsistent with the proof presented.

Accordingly, the judgment of the trial court is hereby reversed with directions that a judgment be entered in accordance with the verdict of the jury.

REVERSED WITH DIRECTIONS.

DOWNEY, ANSTEAD and DAUKSCH, JJ., concur.


text:
    Russell W. BLACK, Jr. and H. Eugene Walton, Appellants, v. DEPARTMENT OF LEGAL AFFAIRS, State of Florida, Appellee.
    No. 76-1184.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    John L. Riley of Riley, Showe & Salts-man, St. Petersburg, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This is an action filed pursuant to the “Florida Deceptive and Unfair Trade Practices Act.”

The Department of Legal Affairs brought this action against appellants Black and Walton, as individuals and as principals in a business called Central Vending, alleging certain deceptive and unfair trade practices in connection with their sales of food vending machines and/or franchises to the public. The complaint sought injunctive relief and an order for a refund of all monies secured from a Mr. and Mrs. Bumgarner and a Mr. and Mrs. Iovine, as complaining witnesses.

The final judgment appealed was entered after trial and enjoined appellants from further engaging in the sale of franchises and/or distributorships in connection with the sale of the vending machines in question without full compliance with the “Florida Deceptive and Unfair Trade Practices Act.” Additionally, the judgment awarded damages in favor of the complaining witnesses against appellant Black d/b/a Central Vending, appellant Walton having been found not to have any interest in the business. We affirm as to the injunctive relief granted but reverse with respect to the money judgment.

The aforesaid Unfair Trade Practices Act proscribes “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Pursuant to the act, the state Department of Legal Affairs is empowered to enact rules which “prohibit with specificity” acts or practices deemed deceptive or unfair. The department in fact promulgated such rules and the trial court found herein that appellants, individually, were guilty of deceptive and unfair trade practices as proscribed thereby. There is ample evidence in the record to support such a finding, so the injunction must stand.

With respect now to the money judgment, we first of all observe that the act deals with the relationship existing between a “supplier,” defined to mean a “seller, lessor, assignor, or other person who regularly solicits, engages in, or enforces consumer transactions, . . . ” (italics ours) and a consumer. A “consumer transaction” within the purview of the act is defined as “a sale, lease, assignment, award by chance, or other disposition of an item of goods . . . to an individual . that relate to a business opportunity that requires both his expenditure of money or property and his personal services on a continuing basis and in which he has not been previously engaged . . . .” (Italics ours) Stated otherwise, the obvious purpose of the act is to protect the unwary from being “conned” into investing in unsound, fly-by-night business ventures. We' must emphasize the word “unwary,” however, because of the express limitation in the aforesaid definition of “consumer transaction” which limits the business opportunity within the protection of the act to one in which the consumer “has not been previously engaged.”

Subsection (3) of Section 501.207 of the act provides that in any action brought under the act “the court may make appropriate orders ... to reimburse consumers found to have been damaged . . ” by a violation of the act. It is this provision, obviously, under which the trial court entered the money judgment herein. The judgment sought to reimburse the complaining witnesses herein for sums previously expended by them for the purchase of food vending machines which were, in turn, sold to them pursuant to the complained-of deceptive and unfair trade practices. Necessarily, therefore, the court found that the parties entered into a prohibited “consumer transaction.”

Appellants point out, however, and the appellee Department of Legal Affairs admits, that there was no showing that the complaining witnesses had not previously been engaged in the vending machine business. We think this omission was fatal. Absent a showing that the consumer was unwary, i. e., was not knowledgeable about the business opportunity involved, the transaction was not a “consumer transaction” within the protection of the act. We conclude, therefore, that while the deceptive and unfair trade practices of which appellants were found guilty are enjoinable, an order or judgment for reimbursement of funds expended by the complaining witnesses as a result thereof was unwarranted and without authority.

The other points raised on appeal either are without merit or, in view of our disposition hereof, need not be discussed.

Accordingly, the judgment appealed from insofar as it grants injunctive relief should be, and it is hereby, affirmed; but with respect to the money judgment entered herein it should be, and it is hereby, reversed and the cause is remanded for the entry of an order vacating the money judgment.

Affirmed in part; reversed in part.

HOBSON, A. C. J., and OTT and DAN-AHY, JJ., concur.

      . § 501.204, Fla.Stat. (1975).

      . § 501.205, Fla.Stat. (1975).

      . § 501.203(3), Fla.Stat. (1975).

      . § 501.203(1), Fla.Stat. (1975).


author: RYDER, Judge.

text:
    NATIONAL STEEL PRODUCTS COMPANY, formerly known as Stran-Steel Corporation, a Foreign Corporation, Appellant, v. DONALD L. MYRICK AND ASSOCIATES, INC., a Florida Corporation, Donald L. Myrick, an Individual, d/b/a Donald L. Myrick and Associates, Clearwater Oaks Bank, a Florida Banking Corporation, Ellis First National Bank of New Port Richey, a Banking Corporation organized and existing under the laws of the United States, and Bruce Strumpf, as Receiver, Appellees.
    No. 77-664.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Rehearing Denied Jan. 20, 1978.
    Ronald P. Teevan of Cooper, Rives, Pen-ick, Strohauer & Teevan, Clearwater, for appellant.
    Harold S. Wilson, Clearwater, for appel-lee Donald L. Myrick and Associates, Inc., and Donald L. Myrick.
    Herbert E. Langford, Jr., of Haworth, Langford & Turtzo, P.A., Clearwater, for appellee Clearwater Oaks Bank.
    Larry K. Coleman of Knowles, Blalock, Coleman & Landers, Bradenton, for appel-lee Ellis First Nat. Bank of New Port Ri-chey.
   RYDER, Judge.

Appellant, plaintiff below, appeals a final order dismissing with prejudice its second amended complaint for replevin of certain building materials. We reverse.

After two prior complaints were dismissed, appellant filed its second amended complaint against appellees seeking replev-in of certain building materials which, if assembled, would have constituted a skating rink. Appellant alleged in this complaint that it was entitled to recover possession of the materials because, pursuant to a written agreement with appellee Myriek and Associates [hereinafter “Myriek”], it sold and delivered the materials to Myriek on October 31, 1974 at a certain location in Pasco County where the skating rink was to be constructed; that the total purchase price due appellant was $88,115.15, payable in three cash payments; that Myriek made the first two payments, leaving a net balance of $27,502.44 due appellant; that My-rick had tendered a check in the amount of the balance due appellant, but this check was dishonored by the bank upon which it was drawn; that Myriek had thereafter refused and failed to make payment of the balance due; and that the materials have a present value, to the best of appellant’s knowledge, of $19,066.00.

The second amended complaint further alleged that the subject materials never were incorporated in the intended improvement or any other improvement to the real property; that the intended improvement had been abandoned; that the materials had not been removed from the real property to which they were delivered; and that appellant is therefore entitled to replevy these materials pursuant to the specific statutory right of replevin granted by Section 713.15, Florida Statutes (1975), “Repossession of materials not used." It was further alleged that any interest claimed by appellee Ellis First National Bank of New Port Richey [hereinafter “Ellis Bank”] or by appellee Clearwater Oaks Bank [hereinafter “Oaks Bank”] in the subject materials is inferior and subordinate to that of appellant. Appellant’s second amended complaint also contained the necessary procedural allegations required by Section 78.05, Florida Statutes (1975), such as a statement that the property is wrongfully detained, that the claimed property has not been taken for a tax or assessment pursuant to law, and so on. .

Appellees Ellis Bank and Oaks Bank filed motions to dismiss appellant’s second amended complaint. A final order was entered on April 6,1977 dismissing the second amended complaint with prejudice, appellant having declined to plead further. This appeal ensued.

We are of the view that the allegations of appellant’s second amended complaint, which must be taken as true at this stage of the proceedings, state a cause of action for the replevin of the building materials, founded on Section 713.15, Florida Statutes (1975), which provides:

If for any reason the completion of an improvement is abandoned or though the improvement is completed, materials delivered are not used therefor, a person who has delivered materials for the improvement which have not been incorporated therein and for which he has not received payment may peaceably repossess and remove such materials or replevy the same and thereupon he shall have no lien on the real property or improvements and no right against any persons for the price thereof, but shall have the same rights in regard to the materials as if he had never parted with their possession. This right to repossess and remove or replevy the materials shall not be affected by their sale, encumbrance, attachment, or transfer from the site of improvement, except that if the materials have been so transferred, the right to repossess or replevy them shall not be effective as against a purchaser or en-cumbrancer thereof in good faith whose interest therein is acquired after such transfer from the site of the improvement or as against a creditor attaching after such transfer. The right of repossession and removal given by this section shall extend only to materials whose purchase price does not exceed the amount remaining due to the person repossessing but where materials have been partly paid for, the person delivering them may repossess them as allowed in this section on refunding the part of the purchase price which has been paid.

Only two of the various arguments advanced by the appellees below and in this court to sustain the dismissal of the complaint merit discussion. First, the appellees contend that Section 713.15 does not give appellant an independent right to replevy the materials, but rather appellant as vendor of the materials must first allege its initial entitlement to possession under the replevin statute, Chapter 78, Florida Statutes (1975) by way of its retention of some right, title or security interest. Only then, it is argued, could appellant look to the requirements of Section 713.15 providing for repossession and removal or replevin of the materials. Since appellant has not alleged that it retained any security interest in the materials in question, but rather that it sold and delivered them to appellee My-rick, appellees conclude that the allegations of the second amended complaint were insufficient to state a cause of action for replevin.

We cannot agree with this argument of appellees. A close reading of the clear terms of the statute resolves this point in favor of appellant’s argument that it grants an independent right to replevin when allegations are made (and, of course, if ultimately proven) of facts coming within the ambit of the statute. At this juncture we emphasize the first sentence of the statute and point out that under its terms “. a person who has delivered materials for the improvement which have not been incorporated therein and for which he has not received payment may peaceably repossess and remove such materials or replevy the same and thereupon . . . shall have the same rights in regard to the materials as if he had never parted with their possession.”

Section 713.15 thus gives the person who delivered the materials two distinct courses of action, peaceable repossession and removal of the materials (i. e., through self-help) or replevin (i. e., through the judicial process). The person who delivered the materials may elect to pursue either course of action. If he elects to institute a legal action for replevin, as did appellant here, this statute itself confers the right to maintain such an action whether or not he may also have a security interest in the materials.

Furthermore, we note that the forerunner of the present Section 713.15, Florida Statutes (1975), was Section 84.10, Florida Statutes (1961) which was first enacted in 1935. The first sentence of the prior statute is identical to the wording of the present statute except it merely provides “. . . may repossess and remove such materials . . . .” The phrase “or re-plevy the same” was first added by the legislature in the 1963 session, resulting in Section 84.151, Florida Statutes (1963) which was renumbered in 1967 as Section 713.15. The addition of the phrase “or re-plevy” grants a person, like appellant, delivering materials that are not used for an improvement and for which he has not received payment a new and independent remedy, replevin. We also note that the 1963 legislature added the word “peaceably” to modify the phrase “repossess and remove.” It is thus clear that the legislature intended the plaintiff to have two distinct remedies, either self-help or judicial action.

Appellees further argue that appellant’s second amended complaint fails to state a cause of action for replevin pursuant to Section 713.15 because appellant does not allege that it has refunded the part of the purchase price paid by Myrick. Refund of the partial payment, so say appellees, is a precondition to replevin under the aforesaid statute. We disagree.

At this point we emphasize the last sentence of the statute and note that it provides, “. . . where materials have been partly paid for, the person delivering them may repossess them as allowed in this section on refunding the part of the purchase price which has been paid.” As noted above, this statute provides for two distinct remedies, self-help repossession and removal of the materials or replevin of the materials through the judicial process. The last sentence of the above-quoted statute plainly makes refund of the partial payment a precondition only when one elects to employ self-help repossession and removal, not when replevin is elected. This provision seems entirely logical to us, as it will prevent the self-help repossessor from getting a windfall. On the other hand, no possibility of a windfall exists when the avenue of replevin is followed because the court, pursuant to the first sentence of Section 713.15, may properly limit the amount of materials replevied in cases of partial payment to the amount of such materials “for which he has not received payment . . . .” In the instant case, appellant has alleged that the current value of the materials is less than the net balance due it and thus seeks to replevy all of the materials in question. Trial of these facts and the trial court’s findings in this regard, of course, await our remand.

We have considered the other arguments advanced by appellees and find them without merit.

In view whereof, the judgment appealed from should be, and it is hereby, reversed and the cause is remanded for further proceedings not inconsistent herewith.

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


text:
    Junior Dan SOUTHALL, Appellant, v. STATE of Florida, Appellee.
    No. 77-746.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Lawrence D. Martin of Vega, Brown & Nichols, P.A., Naples, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The appellant pled guilty to a charge of possession of more than five grams of marijuana. He was later sentenced to five years in prison. His only assignment of error is directed to the court’s refusal to grant his motion to withdraw his guilty plea prior to sentencing. On this record we do not believe that error was committed in refusing the appellant the right to withdraw his plea.

While his appeal was in progress, the appellant brought to our attention that his only previous felony conviction had just been set aside by the Circuit Court of Dade County on July 26, 1977, under the authority of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In view of the fact that the judge specifically stated that one of the reasons for the severity of appellant’s sentence in the instant case was the fact of his prior felony conviction, appellant will have to be resentenced. Wolfe v. State, 323 So.2d 680 (Fla.2d DCA 1975). Since the state has conceded the invalidity of appellant’s Dade County conviction, we see no purpose in requiring a hearing under Fla.R.Crim.P. 3.850.

The judgment is affirmed. The sentence is vacated, and the case is remanded for resentencing at which the appellant should be present. In order to spare the sentencing judge the awkward task of now having to decide what appellant’s sentence ought to be without the felony conviction on his record, we suggest that appellant be resen-tenced before another judge.

GRIMES, Acting C. J., and SCHEB and OTT, JJ., concur.


text:
    STATE of Florida, Appellant, v. Bobby L. SPAN, Appellee.
    No. 77-1327.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, and James R. Wulchak, Legal Intern, Bartow, for appellee.
   PER CURIAM.

Reversed on the authority of State v. Wilcox, 351 So.2d 89 (Fla.2d DCA 1977) and Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977).

SCHEB, Acting C. J., and OTT and DAN-AHY, JJ., concur.


text:
    Jimmie Lee HART, Appellant, v. STATE of Florida, Appellee.
    No. 77-529.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1977.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, Bartow, and Carol C. Murphy, Research Asst., St. Peters-burg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed without prejudice to file a petition for habeas corpus in this court. See Baggett v. Wainwright, 229 So.2d 239 (Fla.1969).

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


text:
    Ronald Edward SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 77-1468.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1977.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, and Ken Glover, Research Asst., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court, but we agree with appellant that the phrase “at hard labor” in his sentence is improper. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Therefore, we remand this case for correction of sentence, and appellant need not be present at that time.

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


author: OTT, Judge.

text:
    FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Petitioner, v. Neva S. TODD, Respondent.
    No. 76-1868.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1978.

      Kenneth H. Hart, Jr., Gen. Counsel, Florida Dept, of Commerce, Tallahassee, for petitioner.
    Shepherd D. Johnston, Richard G. Rum-rell, Miami, and Gerald B. Curington of Smathers & Thompson, Jacksonville, for amicus curiae.
    No appearance for respondent.
   OTT, Judge.

We reverse the ruling of the Florida Industrial Relations Commission and reinstate the ruling of the claims examiner as affirmed by the appeals referee.

Respondent was employed by the state for 28 years. While employed she contributed to her retirement fund. The state — as a base period employer — also contributed to her pension. Upon voluntary retirement in 1974, respondent began receiving state retirement benefits as well as social security benefits.

After retirement, respondent obtained other employment, but was laid off. Her claim for unemployment compensation was denied by the claims examiner on the ground that the total of her state retirement and social security benefits exceeded the weekly unemployment benefit amount. The appeals referee affirmed, citing the Florida Unemployment Compensation Law — Section 443.06(8), Florida Statutes which provides in relevant part that:

[a]n individual shall be disqualified for benefits for any week with respect to which ... he has received, or is eligible to receive, from a base period employing unit, income . . . . Provided, however, that for any week in which income . . . when combined with [Social Security] income is less than the weekly benefits which would otherwise be due under this chapter he shall be entitled to receive for such week, . . . benefits reduced by the income . . . combined with the United States Social Security Act retirement income, prorated to a weekly basis.

The Industrial Relations Commission reversed, holding that “the claimant is not disqualified from receipt of unemployment compensation benefits until she has exhausted her contribution to her retirement fund.”

The Florida Statute at issue does not qualify or distinguish the disqualification or reduction of benefits on the basis of whether the retirement funds are contributory or noncontributory. When the legislature passes laws it is deemed to have expressed its intent by the words found in the statute. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918). That is their prerogative. Courts and other tribunals may not “write in” legislative intent in the absence of the direct or indirect language in support of such intent.

The ruling of the Industrial Relations Commission was hinged upon whether respondent was “receiving back her investment in [the] fund.” Since the controlling statute is devoid of any reference to such a criterion, the Industrial Relations Commission’s order deviates from the statute and is contrary to the essential requirements of law.

Certiorari granted.

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


text:
    James R. THOMPSON, as Judge of the County Court of Lee County, Florida, Appellant, v. STATE ex rel. George MITCHELL, Appellee.
    No. 77-150.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1978.
    Joseph P. D’Alessandro, State’s Atty., Louis S. St. Laurent, Chief Asst. State’s Atty., and James A. Pilón and Darryl C. Casanueva, Asst. State’s Attys., Fort Myers, for appellant.
    Wilbur C. Smith, III of Smith & Carta, Fort Myers, for appellee.
   OTT, Judge.

In this appeal from the granting of a suggestion for writ of prohibition we are asked to decide whether relator’s express and unconditional waiver of his speedy trial rights in a stipulation for continuance constituted a waiver of his speedy trial rights under Fla.R.Crim.P. 3.191. We hold that it does and reverse.

Defendant/relator twice stipulated to a continuance of his trial, trial being set for June 18, 1976 by the second stipulation. Both stipulations contained the statement: “The Defendant herein waives speedy trial.” Thereafter, relator’s trial was continued twice more through no fault of rela-tors — one continuance was at the request of the state; the other was on the court’s own motion due to an overcrowded docket — with trial ultimately reset for October 29, 1976. On September 23, 1976, relator filed a motion for discharge. Upon denial of this motion, relator applied to the circuit court for a writ of prohibition, which was granted.

Relator contends that Negron v. State, 306 So.2d 104 (Fla.1974), requires affirmance of this case. However, the defendant in Negron had not specifically waived her speedy trial rights under the rule. Coppola v. State, 337 So.2d 779 (Fla.1976).

Here a specific and unconditional waiver of speedy trial was made in writing. We think this case falls within the rationale of State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). That case held that when the time limitations set forth in the speedy trial rule (now Fla.R.Crim.P. 3.191) are waived by a defendant’s request for a continuance, the accused need only be tried within a reasonable time. The accused always, of course, retains his constitutional right to a speedy trial. Furthermore, an accused may at any time following completion of his preparation for trial file a demand for speedy trial pursuant to Fla.R. Crim.P. 3.191(a)(2). He must then be brought to trial within 60 days.

This opinion is limited to situations where the accused has filed a specific and unconditional waiver of his right to speedy trial. We do not now pass on the situation where the accused files a motion for continuance without a specific waiver of his speedy trial rights.

In accordance with this opinion, the writ of prohibition is vacated and the cause remanded for further proceedings not inconsistent with the views expressed herein.

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

      . He was charged with a misdemeanor and therefore fell under the jurisdiction of the county court.


author: GRIMES, Judge.

text:
    HARTMAN AGENCY, INC., Appellant, v. INDIANA FARMERS MUTUAL INSURANCE COMPANY, Appellee.
    No. 77-1364.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1978.
    E. Snow Martin of Martin & Martin, Lakeland, for appellant.
    Arthur C. Fulmer of Lane, Massey, Trohn, Clarke, Bertrand & Smith, P. A., Lakeland, for appellee.
   GRIMES, Judge.

This is an interlocutory appeal from an order denying a motion to quash and dismiss the appellee’s third party complaint on grounds of lack of jurisdiction over the appellant.

The appellee sought to obtain jurisdiction over the appellant pursuant to the provisions of Section 48.181(1), Florida Statutes (1975). However, the third party complaint did not allege the manner in which the appellant was doing business in Florida nor did it allege any specific acts done by the appellant within the state. The only allegations applicable to jurisdiction were those which stated that appellant was a resident of Indiana and engaged in business in Florida.

In order to serve a foreign resident pursuant to Section 48.181, Florida Statutes (1975), the complaint must adequately allege that the cause of action arose from business activities conducted within this state. Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla. 2d DCA 1976). This requires allegations of specific facts which show that the defendant is conducting business in Florida. Nichols v. Seabreeze Properties, Inc., 302 So.2d 139 (Fla. 3d DCA 1974); see Elmex Corp. v. Atlantic Federal Savings & Loan Association, 325 So.2d 58 (Fla. 4th DCA 1976).

The conclusionary allegations contained in the third party complaint were insufficient to permit the appellee to obtain jurisdiction over the appellant under the statute. Cf. World Business Consultants Ltd., Inc. v. Automotive Finishes, Inc., 352 So.2d 120 (Fla. 2d DCA 1977).

REVERSED.

BOARDMAN, C. J., and OTT, J., concur.


text:
    In re the GUARDIANSHIP OF William Charles THOMAS. HERITAGE FEDERAL SAVINGS AND LOAN ASSOCIATION and First National Bank of New Smyrna Beach, Appellants, v. William Charles THOMAS, Appellee.
    No. FF-171.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1978.
    John P. McCoy, of Cobb, Cole, McCoy, Bell, Bond & Kaney, Daytona Beach, J. Boyd DeLoach, New Smyrna Beach, for appellants.
    Horace Smith, Jr., of Dunn, Bernardini, Smith & Burnett, Daytona Beach, for ap-pellee.
   PER CURIAM.

Based upon the record on appeal, the briefs and oral argument and the points as framed and recited in the briefs, and without addressing ourselves to the procedures employed in the trial court or here nor any other potential issues not articulated in the points on appeal, the judgment here appealed is affirmed except insofar as it purports to award attorney’s fees, for which we find no basis in contract or law. Our decision here is not intended to foreclose future consideration in the trial court of the cross-claim and third party claim which do not appear to have been adjudicated by the judgment here appealed and are not mentioned therein.

Affirmed in part and reversed in part and remanded for further proceedings in accordance with law.

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


author: PER CURIAM. BOYER, Judge,

text:
    Lee Raymond OGLETREE, Appellant, v. SENTRY INDEMNITY COMPANY and Willie Davis, Appellees.
    No. FF-484.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1978.
    Anthony I. Provitola, DeLand, for appel-lant-
    Frank Marriott, Jr., of Gosney, Cameron & Parsons> Daytona Beach, for appellees.
   PER CURIAM.

Appellant/plaintiff Ogletree and Appel-lee Davis were involved in an automobile collision which occurred when Appellant, after stopping at a STOP sign and “easing on across” an intersection, was hit broadside by Appellee, who had pulled out on the highway from a gas station more than 100 feet from the intersection. At the ensuing trial, the jury found in favor of Appellee, allowing Appellant no recovery. The trial judge refused to give an instruction requested by Appellant on Section 316.121(1), Fla.Stat., which sets out the duty of a driver approaching an intersection to yield the right of way to a vehicle which has entered the intersection from a different highway. He did instruct on Section 316.123, which prescribes the duty to stop at STOP signs and yield the right of way to vehicles on the protected road. He also gave Standard Jury Instruction 4.1, defining negligence as the failure to use reasonable care. We find no error in the failure to instruct on Section 316.121(1). This Court held in Allen v. Rucks, 121 So.2d 167 (Fla. 1st DCA 1960), that it was improper for a court in a similar situation to charge solely on the statute requested here by Appellant because it was “inadequate and misleading” when applied to the facts of the case. We conceive that the same is true here. It would be extremely perplexing, and we think improper, to instruct a jury that the driver of a vehicle at a STOP sign must stop and yield the way to oncoming vehicles but that a driver of a vehicle on the street not controlled by the STOP sign must yield the right of way to the vehicle if it enters the intersection first.

We find Appellant’s other point to be without merit.

AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I respectfully dissent. In my view Allen v. Rucks, cited in the majority opinion, has no application to the facts sub judice. Here, the evidence revealed, as recited in the majority opinion, that Ogletree stopped at the stop sign and was then “easing on across” when he was hit broadside by Davis, who had entered the intersecting street from a gas station a short distance from the intersection. A driver who has legally entered a controlled intersection does not thereby become fair game for anyone who can hit him before he can get through the intersection. The jury should have been instructed, in my view, that one legally entering a controlled intersection, viz.: After obeying the traffic control and determining that there was no other vehicle in the intersection nor so close thereto as to constitute an immediate hazard, has thereupon preempted the intersection and accordingly has the right of way over other vehicles entering the intersection. I would reverse.


text:
    John BOWEN, d/b/a Crockett Associates of Florida, Appellant, v. Thomas J. MERLO et ux., Appellees.
    No. GG-77.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1978.
    Ernest D. Jackson, Sr., Jacksonville, for appellant.
    Fred M. Johnson, Jacksonville, for appel-lees.
   PER CURIAM.

Appellant contends that the trial court erred in holding as a matter of law that he did not comply with Section 713.18, Florida Statutes, the Mechanics’ Lien Law, on grounds that he mailed his claim of lien to the owner by regular mail instead of by certified or registered mail as required by Section 713.18(l)(c). We concur and reverse. It is undisputed that the owner here received actual notice of the claim of lien. We agree with the court in Vitra-Spray of Florida, Inc., v. Gumenick, 144 So.2d 533 (Fla. 3rd DCA 1962) that notice is the important element dealt with by the section. We note in addition that Section 713.-18(l)(b) specifically allows the claim to be served by actual delivery and there is no doubt that actual delivery was accomplished here. Continental Home Parks, Inc., v. Golden Triangle Asphalt Paving Co., 291 So.2d 49 (Fla. 2d DCA 1974), cited by Ap-pellees, is distinguishable because there was no allegation there that the proper person ever received notice of the claim.

REVERSED and REMANDED.

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


author: BOYER, Judge.

text:
    Lloyd Byron CROFT, Sr., and Clyde Croft, his wife, Appellants, v. H. C. EDWARDS, Chairman, George E. Fletcher, Vice-Chairman, C. T. Ayers, Sec.-Treas., Celia Hendrickson, Billy Brasher, M.D., Charles Pinkoson, M.D., and Glenna Carr as and constituting Board of Trustees of Alachua General Hospital, Gainesville, Florida, Appellee.
    No. GG-209.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1978.
    Don Peters, Gainesville, and Harley Herman, North Miami, for appellants.
    James G. Feiber, Jr. of Salter, West, Doughtie & Feiber, Gainesville, for appel-lee.
   BOYER, Judge.

Appellant Lloyd Croft, who is not a resident of Alachua County, Florida, availed himself of services rendered by the Alachua General Hospital of which appellees are trustees. Mrs. Croft, also a non-resident, signed a credit agreement incident to Mr. Croft’s admission to the hospital. When the Crofts failed to pay the bill for services rendered collection procedures ensued. The Crofts resisted, asserting in their answer, inter alia, that appellees, as recipients of Hill-Burton funds from the federal government, were obligated “to provide a reasonable volume of free services for those unable to pay”. Following a non-jury trial the trial judge entered a final judgment against appellants for the hospital services rendered plus interest and costs, ruling as a matter of law that appellants could not assert the Hill-Burton Act as an affirmative defense in the debt collection action because appellants (a) lacked standing, (b) have no implied right to maintain an action pursuant to the Act and (c) are not third party beneficiaries under the Act.

Appellees rely heavily on Yale-New Haven Hospital v. Matthews, 32 Conn.Sup. 539, 343 A.2d 661 (C.P.1974), cert. den., 423 U.S. 1024, 96 S.Ct. 467, 46 L.Ed.2d 398 (1975). Although we are of the view that that case is well reasoned and is clearly supportive of the final judgment here appealed we find it unnecessary to address the point sub judice. A careful examination of appellants’ answer wherein numerous and repetitive defenses are sought to be raised reveals that while appellants alleged appel-lees to have been recipients of Hill-Burton funds and that as such they were obligated “to provide a reasonable volume of free service to those unable to pay”, at no place did they allege any breach of that obligation, viz: That appellees had failed so to do. The affirmative defenses were not tested by a motion to strike, therefore there is no ruling by the trial judge as to the sufficiency of the allegations. In the absence of an allegation of a breach of duty under the Hill-Burton Act it would make no difference whether appellants had standing, had an implied right to maintain an action pursuant to the Act or were third party beneficiaries under the Act. Sub judice had appellants proven every allegation of their affirmative defenses, insofar as they related to the Hill-Burton Act, they would have proven no valid defense even with standing, an implied right to maintain an action under the Act and as third party beneficiaries.

Accordingly, without finding occasion in this case to determine the correctness of the trial court’s rulings it is apparent that appellees proved the debt and appellants failed to prove a valid defense. It is a well established principle of law that an action of a trial court must be affirmed on appeal if the conclusion reached is correct though the announced basis for the conclusion is erroneous. (Jones v. Dove, 300 So.2d 758 (Fla.1st DCA 1974); and New Magnolia Baptist Church, Inc. of Branford v. Ellerker, 353 So.2d 204 (Fla.1st DCA 1977), opinion filed December 21, 1977.) We do not, however, imply disagreement with the basis announced by the trial judge sub judice. We simply do not here have occasion to make that determination.

The judgment here appealed is

AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.


text:
    STATE of Florida, Appellant, v. Tajuana Iona GIBSON, Appellee.
    No. 77-995.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 1978.

      James A. Gardner, State’s Atty., and Thomas M. Fitzgibbons, Asst. State’s Atty., Sarasota, for appellant.
    Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

The defendant in this case entered a plea of nolo contendere to a charge of aggravated battery by use of a firearm. After hearing from the victim of the battery who said that the defendant was justified under the circumstances in shooting him, the court withheld adjudication of guilt and placed defendant on probation for one year. The state then pursued an appeal in this court.

We first note that the state cannot appeal the order of the trial court under Section 924.07, Florida Statutes (1975). State v. Wilcox, 351 So.2d 89 (Fla.2d DCA 1977). However, we choose to treat the state’s appeal as a petition for certiorari, and we grant certiorari because we believe that the trial court departed from the essential requirements of the law.

The crime with which the state charged appellant is one of those covered by the mandatory sentencing statute, Section 775.087(2), Florida Statutes (1975). Under this section a trial court may not withhold adjudication or suspend sentence and must sentence a defendant to a term of at least three years in prison. Therefore, we must vacate the order of the trial court and remand the case to the trial court for further proceedings consistent with this opinion. However, nothing we have' said here should be construed as preventing the trial court from allowing the defendant to withdraw her plea.

HOBSON, A. C. J., and GRIMES and RYDER, JJ., concur.


text:
    Howard A. HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1196.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 1978.
    Jack O. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, and Ken Glover, Research Assistant, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court but we agree with appellant that the phrase “at hard labor” in his sentence is improper. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Therefore, we remand this case to the trial court for correction of sentence and appellant need not be present at that time.

SCHEB, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    C. D. W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2202.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Appellant, C. D. W., a juvenile seeks reversal of an order denying his motion to dismiss the petition for delinquency filed against him and subsequent adjudication of delinquency on the ground that the petition was filed in the circuit court in excess of 30 days from the date on which the complaint against him was received by the intake office of the Division of Youth Services. The State confesses error.

Upon the authority of Section 39.05(7), Florida Statutes (1975) and S. R. v. State, 346 So.2d 1018 (Fla.1977), we find that the petition should have been dismissed with prejudice and, therefore, reverse the adjudication of delinquency.

Reversed.