author: DOWNEY, Judge.

text:
    Roger Dean HILL, Appellant, v. STATE of Florida, Appellee.
    No. 75-170.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for'appellee.
   DOWNEY, Judge.

Appellant was convicted of rape and sentenced to 51 years and 135 days in the State Penitentiary.

Three individuals, including appellant and Carl Allen McDonald, allegedly raped the prosecutrix. The state tried McDonald first, and he was acquitted. Before appellant’s trial, the state subpoenaed and interrogated McDonald about the incident in question pursuant to § 914.04 F.S.1973, thereby granting him use immunity. See McDonald v. State, Fla.App.4th, 1975, 321 So.2d 453.

Prior to appellant’s trial the prosecutor was on notice that McDonald would refuse to testify for the state on Fifth Amendment grounds. Nevertheless the state called McDonald and at the state’s request the court designated him a court witness. Then out of the presence of the jury McDonald was interrogated and he refused to testify on Fifth Amendment grounds. The court admonished McDonald that he was fully immunized from prosecution arising out of the incident in question so that he had no standing to invoke the Fifth Amendment. McDonald persisted and was adjudicated in contempt. (See McDonald v. State, above.) The jury was then recalled and McDonald, as a court witness, was once again interrogated by the state. Once again he invoked the Fifth Amendment and once again the trial judge after further admonition found him in contempt. At that point, over objection, the state sought to “refresh McDonald’s memory” by playing in the presence of the jury a tape recorded conversation between McDonald and the state attorney. McDonald continued to stand on his Fifth Amendment rights. The tape recording not only implicated McDonald in the rape but it also inculpated appellant. Finally, during closing argument the prosecutor argued that the incriminating statements on the tape matched the victim’s testimony and corroborated it.

It is a violation of the Confrontation Clause of the Sixth Amendment for the trial court to permit the jury to hear an individual’s extrajudicial statement inculpating the defendant, if the individual refuses to testify on Fifth Amendment grounds, and if the refusal has not been procured by the defendant. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L. Ed.2d 934 (1965). Cf. Rankin v. State, Fla.1962, 143 So.2d 193. McDonald clearly refused to testify, and McDonald’s tape clearly inculpated the appellant. The state has not asserted that appellant procured McDonald’s refusal to testify. The trial court shouxd therefore have sustained appellant’s objection to having the tape played before the jury.

We also note that under the circumstances of this case it was improper for the court to permit the jury to hear McDonald invoke his Fifth Amendment privilege. Compare Kaplow v. State, Fla.App.2d 1963, 157 So.2d 862, with Lawrence v. Wainwright, 445 F.2d 281 (5th Cir. 1971).

Finally, appellant contends the trial court erred in sentencing him without a presen-tence investigation in accordance with Rule 3.710 RCrP. We do not reach this question, because the cause must be retried.

For the foregoing reasons, the judgment of conviction is reversed, and the cause is remanded for a new trial.

CROSS and MAGER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anna Josephine SPODEK, Appellant, v. Lester H. WHITE, Appellee.
    No. 74-1091.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Harry G. Carratt, of Morgan, Carratt & O’Connor, and Stuart & Walker, Fort Lauderdale, for appellant.
    No appearance for appellee.
   PER CURIAM.

We have reviewed the record and appellant’s brief and find that appellant’s point on appeal is not supported by the record. The appellate point presented arises out of appellant’s affirmative defense as to which no competent evidence was adduced whatsoever.

Accordingly, the judgment appealed from is affirmed.

CROSS, OWEN and DOWNEY, JJ., concur.


author: SCHULZ, GEORGE E., Associate Judge.

text:
    Grant C. HOLT, Appellant, v. Sheila C. HOLT, Appellee.
    No. 75-737.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Douglas C. Fulton, West Palm Beach, for appellant.

      Edward G. Stephany, Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
   SCHULZ, GEORGE E., Associate Judge.

This case comes to the court subsequent to a final judgment of dissolution of marriage of the parties, which was followed by an order of modification relative to child support. It is from the modification order of the court below the appellant/father brings this appeal.

At the time the parties’ marriage was dissolved (1972), the appellant was ordered to pay $110 per month for each child, there being two minor children of the marriage and custody of them was granted to the appellee/mother.

It appears from the record that one of the children, namely, Michelle, became married after the marriage of her parents was dissolved and lived separate and apart from her mother. The father did not have knowledge of these events and continued to pay $110 per month to the appellee toward Michelle’s support even though she was emancipated. The appellant seeks credit for an overpayment of child support. This is not in dispute except as to when Michelle became emancipated. It appears the parties agreed that the amount of $600 was overpaid. We concur the appellant is entitled to this credit, and so order.

Now with respect to the other child, Lance, who was thirteen years old in 1972, the appellant seeks relief from the modification order which provides for additional support monies for the boy from $110 to $200 per month, and a reimbursement to appellee for special schooling provided by her for Lance. In regard to the schooling, the appellant agreed orally to pay a part of the special schooling for his son. This was not by court order, but was voluntary participation on the part of the father, and never agreed to in writing. See, Rule 1.030(d) RCP. Further, the evidence fails to show an increased ability to pay on the part of the appellant. Therefore it was error to assess special schooling costs against the father, and we vacate that part of the modification order which provides for arrearage and the $100 a month for the 1974-75 school year.

We find no quarrel with the increased child support for Lance who is now older with greater needs, and considering the appellant has been relieved of supporting his daughter Michelle.

We further agree appellee is entitled to reasonable attorney fees and costs ordered by the trial court, but deny attorney fees and costs to appellee in this court.

REVERSED and REMANDED.

CROSS and DOWNEY, JJ„ concur.


text:
    POMPANO BEACH BANK AND TRUST CO., as Trustee, Appellant, v. NASSAU HOUSE ASSOCIATION, INC., Appellee.
    No. 75-242.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Allan B. Marks of Bretan & Marks, Miami, for appellant.
    Francis M. Foley, Pompano Beach, for appellee.
   PER CURIAM.

, , , , . , ihe appealed judgment being presumed valid and appellant having failed to demonstrate reversible error, it is

AFFIRMED.

WALDEN, C. J., DOWNEY, J., and MORROW, RUSSELL O., Associate Judge, concur.


text:
    CALCUTTA, INC., a Florida Corporation, et al., Appellants, v. SMALL BUSINESS INVESTMENT CORPORATION OF AMERICA, a New Jersey Corporation, and Delta Equities, Inc., a Georgia Corporation, Appellees.
    No. 75-995.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Charles A. Finkel, of Long, Finkel & Lurie, Hallandale, for appellants.
    Myron H. Burnstein, of Salter, Yeslow & Burnstein, Hollywood, for Appellee-Small Business Investment Corporation of America.
   PER CURIAM.

We have considered the briefs and record presented on this appeal and have studied the authorities relied upon by the parties. Based upon the facts of this case, as to which there is no genuine issue, we find the trial court was correct in his conclusion that the note involved herein is to be construed under the laws of New Jersey and that the defense of usury is not available to appellants,

Accordingly, the judgment appealed from is affirmed.

OWEN and DOWNEY, JJ., and MORROW, RUSSELL O., Associate Judge, concur.


text:
    Robert M. MENKE, d/b/a Menco Leasing, Appellant, v. Marcel COURNOYER et al., Appellees.
    No. 75-957.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.

      James W. Geiger, Devitt, Geiger, O’Neal & Booth, Fort Lauderdale, for appellant.
    Roger F. Borrello, Plantation, for appel-lees, Cournoyer.
    Ronald A. Gottlieb, Spiegelman & Spie-gelman, Miami, for appellees, Gleich.
   PER CURIAM.

In late 1972 the Appellant, Robert M. Menke, d/b/a Meneo Leasing and Appel-lees, Marcel Cournoyer and Francis Gleich began discussing the possibilities of a business venture relating to a flower business. These preliminary meetings culminated in the signing of a contract on January 30, 1973, the first of several documents relating to the business venture between the parties.

The initial agreement, among other things, provided the Appellant would lend to Appellees not less than $25,000.00 or arrange a line of credit of not less than $25,000.00, the repayment of which would be upon the terms and conditions as were agreeable to Appellees, however, in no event would the repayment of the monies borrowed exceed five years. The agreement also provided the Appellees agreed for themselves and their respective spouses, if applicable, to endorse the evidence of the borrowings. The spouses referred to were not parties to the agreement.

The initial agreement also made provision for the formation of a corporation together with certain conditions precedent to issuance of a loan by Appellant which included among other things stock options on behalf of Appellant, employment contracts, covenants against competition, the Appellant’s signature on all checks for the withdrawal of any funds from the corporate checking account, a pledge of stock by Ap-pellees to Appellant and other important provisos.

On February 23, 1973 a promissory note in the amount of $25,000.00, “for value received”, the subject of count one set forth in the complaint, was executed by each Ap-pellee together with their respective wives and by Appellee, Plantation Flowers of Florida, Inc., a corporation which all persons knew did not exist.

On May 1, 1973 Plantation Flowers of Florida, Inc. received its Certificate of Incorporation and on May 25, 1973 the Appellant and Appellees, Marcel Cournoyer and Francis Gleich, entered into a second agreement relating to the business venture which specifically referred to the corporation being formed on May 1, 1973 and the first agreement dated January 30, 1973 referred to above. This second agreement referred to the mechanics of carrying out the terms of the first agreement; amended the first paragraph of the first agreement, which paragraph related to Appellant’s agreement to lend to Appellees not less than $25,000.00 or to arrange a line of credit of not less than $25,000.00.

Further agreements were entered into between the parties pursuant to their business venture which were admitted into evidence during the course of the trial below.

Appellant, in count one of his Complaint brought suit on the promissory note in the amount of $25,000.00 which was executed on February 23, 1973 by all Appellees. Over the objection of Appellant the trial court allowed into evidence parol testimony to the effect that it was the understanding of all parties to the promissory note in question that the individual liability of the makers would be released upon the incorporation of Appellee, Plantation Flowers of Florida, Inc.

The general rule relating to the admissibility of parol evidence to vary or contradict the terms of the written agreement was set forth by the Florida Supreme Court in the case of Jackson v. Parker wherein the Court stated:

“We recognize the general rule (to which there are some well settled exceptions) to the effect that parol testimony as to the existence of a contemporaneous or collateral verbal agreement is not admissible to vary or contradict the terms of a valid written instrument. Where a deed recites a consideration of ‘one dollar and other valuable considerations’ the statement as to consideration is not complete and the true consideration may be shown by parol. Where it appears that a particular element of an alleged extrinsic negotiation is not dealt with at all in the writing (as for instance in this case, the time when the release of mortgage was to be delivered or become effective) it is presumed that the writing or writings do not represent all of the transaction on that element, and parol evidence in proof of such element is admissible. Parol evidence is admissible to connect several written instruments and show that they were all parts of one transaction. ... ‘It is also a generally recognized rule that parol evidence is admissible to establish a contemporaneous oral agreement which induced the execution of a written contract, although it may vary, change, or reform the instrument.’” 153 Fla. 622, 15 So.2d 451 (1943)
See also J. M. Montgomery Roofing Company, Inc. v. Fred Howland, Inc., 98 So.2d 484 (1957); Mallard v. Ewing, 121 Fla. 654, 164 So. 674 and Wagner v. Bonucelli, 239 So.2d 619 (Fla.App. 4th 1970).

We have examined the record and the evidence, considered the arguments and law urged by the respective parties relating to the admissibility of parol evidence under the circumstances set forth above, together with the other points raised by Appellant and find them to be without merit.

AFFIRMED.

WALDEN, C. J., MAGER, J., and RUDNICK, VAUGHN, J., Associate Judge, concur.


text:
    Lucien H. MARTEL, Appellant, v. GIBEAUT, INC., a Florida Corporation, Appellee.
    No. 75-228.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Mark S. Roth, Miami Beach, for appellant.
    Frank E. Maloney Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

This appeal involves the propriety of a retrospective application of § 440.10(1) F. S.1974, in a suit commenced October 2, 1974, arising out of an accident which occurred October 26,1972.

Appellant, an employee of a subcontractor, was injured on October 26, 1972, by an employee of another subcontractor on the same construction jobsite. At the time of the accident § 440.10(1) F.S.1971 precluded an employee of one subcontractor from suing another subcontractor on the same jobsite for injuries resulting from negligence. However, § 440.10(1) F.S. was amended effective October 1, 1974, so as to eliminate the bar to such an action. See Chapter 74-197, Laws of Florida.

Accordingly, on October 2, 1974, appellant sued appellee alleging that while appellant was employed by one subcontractor at a construction project, he was injured on the common jobsite by one of the employees of appellee, another subcontractor. Appellee affirmatively pleaded that workmen’s compensation was appellant’s exclusive remedy. Summary final judgment for appellee ensued.

While conceding that statutes are not generally applied retrospectively unless that is clearly the intention of the legislature, State ex rel. Riverside Bank v. Green, Fla.1958, 101 So.2d 805, appellant contends the application of remedial acts is an exception to that rule. Appellant relies upon City of Lakeland v. Catinella, Fla. 1961, 129 So.2d 133, and Grammer v. Roman, Fla.App.1961, 3 DCA, 174 So.2d 443, neither of which is apposite to this case.

To allow appellant to sue appellee for an accident arising out” of employment on a jobsite in 1972 would require a retrospective application of the 1974 amendment to § 440.10(1) F.S. and would thus enlarge the scope of appellee’s potential liability. This is constitutionally impermissible because, as the Supreme Court stated in Sullivan v. Mayo, Fla.1960, 121 So.2d 424, 428:

“It is well established in Florida that the substantive rights of the respective parties under the Workmen’s Compensation Law are fixed as of the time of the injury to the employee. This is so because the acceptance of the provisions of the Workmen’s Compensation Law by the employer, the employee, and the insurance carrier constitutes a contract between the parties which embraces the provisions of the law as of the time of the injury. Consequently, a subsequent enactment could not impair the substantive rights of the parties established by this contractual relationship.”

The rule announced in Sullivan was followed in Subterranean Circus v. Lewis, Fla.App.1975, 1 DCA, 319 So.2d 600, wherein the court held:

“First, ‘[i]t is well established in Florida that the substantive rights of the respective parties under the Workmen’s Compensation Law are fixed as of the time of the injury to the employee.’ On October 17, 1972, when Lewis was injured, the pertinent part of the Florida Workmen’s Compensation Law provided that the law was applicable to all private employers who had three or more employees. It was of no consequence that on the date of trial the law had been changed to require only one employee. The trial judge committed error in failing to apply the requirements of the Workmen’s Compensation Law as enacted on the date of the accident.”

In a case involving the converse of our factual situation, Fullerton Metal Company v. Abell Howe Company, Fla.App.1974, 299 So.2d 151, the Third District Court of Appeal held an amendment to a Workmen’s Compensation Act statute could not be applied retrospectively so as to destroy an existing cause of action. In that case Walsh, while an employee of Central Air Conditioning Company, was killed in July 1969, while working at the Fullerton Metals plant. Fullerton Metals settled the claim against it and then sued Central for indemnity. While that suit was pending the legislature amended § 440.11, F.S., effective June 18, 1971, so as to eliminate the cause of action for indemnity such as Fullerton sought to maintain. The trial court felt the amendment should be given retrospective application and dismissed the suit, On appeal the District Court reversed, holding:

“The effect of the ruling by the trial court was to destroy an existing cause of action being litigated at the time the amendment became effective.”

In view of the foregoing we conclude that the trial court was correct in granting summary final judgment for appellee.

AFFIRMED.

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


text:
    Jack T. WEAVER, Appellant, v. DR. PHILLIPS, INC., a Florida Corporation, et al., Appellees.
    No. 75-1116.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    James W. Sears of Law Office of Carroll S. Barco, Orlando, for appellant.
    Nicholas Yonclas of Akerman, Senter-fitt, Eidson & Wharton, Orlando, for ap-pellee-Dr. Phillips, Inc.
   PER CURIAM.

The briefs and appendices in this cause demonstrate to us that the trial court was correct in granting the summary judgment appealed from. Appellant’s statements in his affidavit create only a paper issue completely refuted by the guaranty agreement, the assignments of lease signed by the appellant, and the other parts of the record.

Accordingly, the summary judgment appealed from is affirmed.

CROSS, MAGER and DOWNEY, JJ., concur.


text:
    CITY OF POMPANO BEACH, Appellant, v. YARDARM RESTAURANT, INC., a Florida Corporation, Appellee.
    No. 75-1427.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.

      Donald C. Roberge and S. Charles Adams, Pompano Beach, for appellant.
    Earl Faircloth, Pompano Beach, for ap-pellee.
   DOWNEY, Judge.

The defendant city by interlocutory appeal seeks review of an order of the trial court denying appellant’s motion for summary judgment in a suit by appellee for declaratory relief and injunction to compel appellant to reissue a building permit.

The main thrust of appellant’s motion for summary judgment is that appellee has failed to exhaust its administrative remedies prior to instituting suit. Our study of the briefs and appendices indicates that in the present posture of the case appellant has not demonstrated the total absence of any genuine issue of material fact as to the applicability of the doctrine of exhaustion of administrative remedies.

The proof at trial may ultimately show (a) that appellee is required to seek relief from the City Zoning Board of Appeals, or (b) that appellant is estopped to deny ap-pellee the permit in question, in which case of course there would be no administrative remedies to exhaust.

Accordingly, finding no abuse of discretion, we affirm the order appealed from.

AFFIRMED.

OWEN and MAGER, JJ., concur.


text:
    Robert Lee ACEE, Appellant, v. STATE of Florida, Appellee.
    No. 75-827.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Rehearing Denied May 11, 1976.
    Richard L. Jorandby, Public Defender, and James R. Merola, Special Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen.,-West Palm Beach, for appellee.
   SCHULZ, GEORGE E., Associate Judge.

Appellant was charged with murder in the first degree. The jury found him guilty of murder in the third degree. This appeal follows the verdict claiming the trial court erred in allowing certain rebuttal evidence to be heard by the jury that violated appellant’s rights under Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). At the time appellant was taken into custody he was given his Miranda warnings by a police officer who later testified at the trial to the following: Subsequent to said warnings being given, appellant stated he did not want to discuss the case without the advice of an attorney. However, the police witness testified under further questioning of the appellant before or after the Miranda warnings had been given the appellant stated that he did not shoot anyone. This evidence was admitted as rebuttal testimony on behalf of the State, after the appellant took the stand in his own behalf and testified he did shoot the victim of the murder, but that it was done in self-defense.

The issue now before us is to determine if the State’s rebuttal testimony through the police witness was prejudicial and denied the appellant a fair trial, even though it appears that prior inconsistent statement was made by the appellant relative to the shooting.

The court is mindful of the evidentiary rule that provides prior inconsistent statements may be used to impeach the credibility of a witness including a defendant, and the State contends what occurred at the police interrogation has significant probative value and was admissible for impeachment purposes.

What concerns the court is the jury heard the police witness tell them at the time the Miranda warnings were given to the appellant, he said he wanted the advice of an attorney before dicussing the case. This was while the police interrogation continued. It is difficult to determine how much weight a jury would assign to such a statement by the appellant. We are of the opinion that this evidentiary matter is more prejudicial than if the appellant had said nothing or remained silent. Compare, United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L.Ed.2d 99 (1975). See also, Bennett v. State, 316 So.2d 41 (Fla.1975). In the Hale case, the respondent after having been given the Miranda warnings chose to remain silent. At the trial this was brought to the attention of the jury on cross-examination of the respondent by the prosecution, asking why he remained silent if he was innocent. The Supreme Court in its opinion said, 95 S.Ct. at 2138, “The danger is that the jury is likely to assign much more weight to the defendant’s previous silence than is warranted.”

In Grunewald v. United States, 353 U.S. 391, at 423-24, 77 S.Ct. 963, at 983, 1 L. Ed.2d 931, at 954 (1957), the court said:

“We are not unmindful that the question whether a prior statement is sufficiently inconsistent to be allowed to go to the jury on the question of credibility is usually within the discretion of the trial judge. But where such evidentiary matter has grave constitutional overtones, . , we feel justified in exercising this Court’s supervisory control to pass on such a question.”

We feel the rebuttal testimony of the police witness should have been excluded.

Accordingly, we hold that such evidence was prejudicial error and that the appellant is entitled to a new trial.

The judgment below is reversed and the cause is remanded for a new trial.

CROSS and DOWNEY, JJ., concur.


text:
    Paula COOK, Individually and as mother and next friend of Sheila Cook, a minor, Appellant, v. John MARTIN et al., Appellees.
    No. 75-236.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Rehearing Denied May 11, 1976.
    Christopher B. Knox, Burdick & Dona-hoe, Fort Lauderdale, for appellant.
    James M. Norman and Nancy Little Hoffmann, Druck, Grimmett, Norman & Weaver, Fort Lauderdale, for appellee-Seville Court, Inc.
   SCHULZ, GEORGE E., Associate Judge.

Plaintiff/appellant, Paula Cook, mother of Sheila Cook, in a personal injury action appeals from a summary final judgment granted in favor of defendant/appellee, Seville Court, Inc., a Florida corporation. The minor plaintiff, Sheila Cook, was struck by a car operated by John Martin as she was exiting from appellee’s trailer court private drive. Plaintiff alleged defendant failed to maintain its property in a safe condition in that certain shrubbery and positioning of trailers on the premises obstructed the view of anyone leaving the property in the manner similar to Sheila Cook’s exiting, and that as a direct result of defendant’s negligence in failing to maintain its property in a safe condition, Sheila Cook was injured.

After discovery was completed appellee moved for summary judgment contending the proximate cause of the accident was not because of the height of the shrubbery or positioning of the trailers, and the appellant had failed to show any breach of duty owed by the appellee; hence, a final summary judgment was entered in favor of appellee.

It is the burden of the moving party to show conclusively that a genuine issue of material fact does not exist before a summary judgment should be entered, and it should be further shown that the moving party is entitled to judgment as a matter of law. See, Holl v. Talcott, 191 So.2d 40 (Fla.1966); Visingardi v. Tirone, 193 So.2d 601 (Fla.1966).

We feel that the appellee does not meet the summary judgment rule.

Appellant is entitled to a review of the record in the light most favorable to her. Thus it appears that the deposition of Officer Smith, an investigating officer, and the deposition of the injured child, Sheila Cook, raises an issue of material fact relative to the shrubbery and its effect on visibility of someone exiting from the private driveway where the accident occurred.

When the existence of such an issue appears in the record, it must be submitted to the jury under proper instructions for a determination of questions of fact and liability.

REVERSED and REMANDED.

CROSS and DOWNEY, JJ., concur.


author: OWEN, Judge.

text:
    FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Lyndell Wayne PITZER, as father and next friend of Lynn Dale Pitzer, a minor, et al., Appellees.
    No. 75-400.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1976.
    Rehearings Denied May 10, 1976.
    George B. Pomeroy and John P. Wieder-hold, Pomeroy & Betts, Fort Lauderdale, for appellant.
    Edward P. Busch, Ser & Keyfetz, Miami, for appellees-Eskew.
    J. Jay Simons and Fred J. Berman, Si-mons & Schlesinger, Hollywood, for appel-lees-Pitzer.
   OWEN, Judge.

This is a suit for declaratory judgment in which appellant sought a determination of its liability for coverage under an automobile liability insurance policy issued by it to one of the appellees herein.

Appellant issued to appellee-Lynn D. Pitzer as the named insured an owner’s automobile liability insurance policy insuring a described 1965 Ford automobile. While the policy was in effect, Pitzer, operating a motorcycle owned by Judy Humphreys, was involved in a collision with an automobile operated by appellee-Eskew. Pitzer brought a personal injury action against Eskew who filed a counterclaim, which Pitzer called on appellant to defend. Appellant then filed the instant suit to determine its rights and obligations under the policy, contending that the policy did not provide liability insurance coverage to Pitzer while operating a motorcycle.

Section VI of the insuring agreements of the policy is entitled “USE OF OTHER AUTOMOBILES” and in pertinent part provides as follows :

“If the named insured is an individual . . . and if during the policy period such named insured . . . owns a private passenger automobile . . . covered by this policy, such insurance as is afforded by this policy . . . with respect to said automobile applies with respect to the use of any other automobile. ...” (e.s.)

Since appellee-Pitzer, the named insured, was an individual and during the policy period owned a private passenger automobile covered by the policy, the bodily injury and property damage liability insurance coverage with respect to the described automobile applied with respect to Pitzer’s use of any other automobile. The issue here is simply whether at the time of the collision the motorcycle being operated by Pitzer would qualify under insuring agreement VI as “any other automobile."

The definition of “automobile” as set out in the policy is of no help. It simply says that “ ‘automobile’ unless specifically stated to the contrary, means the motor vehicle, trailer or semitrailer described in this policy. .. . ” Obviously, this definition of automobile cannot apply to the automobile referred to in the phrase “use of any other automobile.” Appellant argues, however, that the definition is helpful because it thereby points to the “type” of vehicle that is intended by the policy language “any other automobile,” viz: if the described vehicle is a private passenger car, then “any other automobile” means vehicles of the private passenger car type; if the described vehicle is a motorcycle, then “any other automobile” means motorcycles and similar type vehicles; if the described vehicle is a truck, then “any other automobile” means a truck or similar type vehicle; etc. We reject this argument as unsound, for as appellee-Pitzer points out, under this reasoning, had the policy described a motorcycle as the insured vehicle, and Pitzer had been driving his friend’s automobile, appellant’s argument would lead to the illogical conclusion that the automobile was not an “automobile” as used in the term “any other automobile.”

The policy also defined “automobile” in connection with the medical payments coverage, that definition being identical to the definition quoted in the body of the opinion in the case of Dorrell v. State Fire and Casualty Company, 221 So.2d 5 (Fla.App. 3rd 1969). One might suspect that in the cited case the court inadvertently used the definition of “automobile” as it was there defined in reference to the medical payments coverage. In any event, we know that in the case at bar that definition of “automobile” clearly relates solely and exclusively to the medical payments coverage and is inapplicable to the liability coverage. The trial court erred in concluding to the contrary.

Simply stated, the policy does not define nor delineate what is meant by the word “automobile” as used in the term “any other automobile” in insuring agreement VI. Faced with the question of whether a motorcycle is “any other automobile” as such language is used in the policy, we conclude, for the reasons so aptly stated in Loftus v. Pennsylvania Life Insurance Company, 314 So.2d 159 (Fla.App. 4th 1975), that it is not.

The judgment is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

WALDEN, C. J., and ALDERMAN, JAMES E., Associate Judge, concur.


text:
    ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellant, v. Teresa SATTERFIELD and Ted Leo Watkins, Appellees. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellant, v. Teresa SATTERFIELD, Appellee.
    Nos. 75-1119, 75-1511.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1976.
    Rehearing Denied May 10, 1976.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellant.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee-Teresa Satterfield.
   PER CURIAM.

Upon review of the record on appeal and after due consideration of the briefs and oral argument we are of the opinion that genuine issues of material fact exist with respect to the adequacy of the notice given by defendant to plaintiff so as to preclude summary disposition. Accordingly, the final summary judgment is reversed and the order denying defendant’s motion for relief from judgment is vacated and set aside and the cause remanded for further proceedings consistent herewith.

WALDEN, C. J., MAGER, J., and RUD-NICK, VAUGHN, J., Associate Judge, concur.


text:
    CITY NATIONAL BANK OF MIAMI, a National Banking Association, Appellant, v. SOMERSET DEVELOPMENT CORPORATION OF AMERICA, a Florida Corporation, et al., Appellees.
    No. 76-2.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Rehearing Denied May 11, 1976.

      Joel D. Kopelman, of Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for appellant.
    Sanford N. Reinhard, of Zinn & Reinhard, Miami, for appellee Somerset Development Corp. of America.
   PER CURIAM.

Plaintiff brings this interlocutory appeal from an order in a mortgage foreclosure suit which enjoined and restrained plaintiff:

“from conducting any sale, public or private, of the $2,000,000.00 note as described in the defendant’s motion and specifically restrained and enjoined from conducting the sale which it proposed to hold on December 10, 1975, at 10:30 o’clock a. m., .
“This restraining order and order enjoining the sale of said $2,000,000.00 note, shall continue in full force and effect until further Order of this Court.”

We reverse on account of the following:

1. The order violated F.R.C.P. 1.610(b), in that:
A. It was entered without a verified pleading, affidavits, or sworn testimony. Tampa Port Authority v. Deen, 179 So.2d 416 (Fla.App. 2nd 1965).
B. No bond was required and there was no showing that defendant was unable to give bond, Leopold v. Richard Bertram & Co., 265 So.2d 710 (Fla.App. 3rd 1972); Carmel v. Lumidor Industries, Inc., 262 So.2d 911 (Fla.App. 3rd 1972).
2. There was no showing that defendant would suffer irreparable injury or that money damages would not be a sufficient remedy, First National Bank in St. Petersburg v. Ferris, 156 So.2d 421 (Fla.App. 2nd 1963); Fla.Stat. 679.-507(1) (1975).
3. Plaintiff was deprived of its rights under Fla.Stat. 679.504 without good or legal cause.

REVERSED.

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


text:
    Harold HUNT, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1219.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.

      Phillip A. Hubbart, Public Defender, and James K. Parker, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Roy J. Kahn, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Harold Hunt, was tried by jury, convicted and sentenced to five years in the state penitentiary for possession of a controlled substance. He appeals contending that on voir dire examination, after he ■had used all of his peremptory challenges, the trial court erred in denying his motion to excuse a juror for cause.

The challenged juror, in response to questioning by the court, stated,

“THE COURT: What kind of work do you do, ma’am ?
MISS LUNSFORD: I’m a dietician.
THE COURT: Is there anybody in your family or close to you who is either in law enforcement or in the legal profession?
MISS LUNSFORD: My boy friend is a policeman. My brother-in-law is a policeman and my boy friend’s sister is a policeman.
THE COURT: Is there anything about your relationship with any of those people which would affect your ability to be fair?
MISS LUNSFORD: I don’t believe so. I don’t think so.
THE ■ COURT: Would you give any more weight to the testimony of a police officer than you would to any other witness?
MISS LUNSFORD: No.”

Other questions on voir dire elicited that the juror’s brother-in-law had just gotten out of police training; that she had been seeing her police officer boy friend for about six months, and that she had little or no discussions about police work with her boy friend or brother-in-law. The trial was completed the same day as the jurors were impaneled.

• The challenge for cause to the individual juror by Hunt does not come within or meet the grounds for challenge under § 913.03, Fla.Stat. We find nothing in the record that the juror sought to be challenged was possessed of a state of mind which would prevent her from returning a verdict according to the evidence submitted and the law given at the trial. As stated in Piccott v. State, Fla.1959, 116 So.2d 626,

“Competency of a challenged juror is a question of mixed law and fact to be determined by the trial judge in his discretion and the decision of the trial judge will not be disturbed unless the error is manifest.”

Hunt also contends that the trial court erred in denying his motions for a directed verdict at the close of the state’s case and at the close of all of the evidence because the evidence was insufficient to prove the crime charged. We regard the evidence adduced at trial ample and sufficient to support the jury verdict.

The other point on appeal is without merit and will not be discussed.

Affirmed.


author: LEE, J. CAIL, Associate Judge.

text:
    Robert Earl WARR, Appellant, v. STATE of Florida, Appellee.
    No. 75-679.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    John A. Baldwin, Baldwin & Dikeou, Casselberry, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons and Marsha G. Madorsky, Asst. Attys. Gen., West Palm Beach, for appellee.
   LEE, J. CAIL, Associate Judge.

Appellant, Defendant below, was placed on probation for three years in July of 1973, after pleading guilty to buying, receiving and concealing stolen property. While he was on probation an affidavit of violation of probation was filed against him alleging that he had violated Condition H of his Order of Probation by committing an offense against the laws of Florida, to-wit: possession of a stolen motor vehicle. Additionally, appellant was arrested and separately prosecuted on this charge. He was eventually convicted of the substantive charge, but prior to such conviction his probation was revoked on the basis of the affidavit and warrant charging violation of probation, and hearing thereon. It is from this Order of Revocation of Probation that the Defendant below appeals.

The State concedes that there was not sufficient evidence adduced at the time of revocation to constitute proof of the violation charged, but contends that this failure of proof was cured by the defendant’s subsequent conviction in the substantive case. In support of this contention the state mistakenly relies on Fuller v. State, 294 So.2d 367 (Fla.App.3d 1974). In the Fuller case, the trial on the substantive offense was held prior to the violation of probation hearing, and resulting revocation. It is a well settled principle of law that fundamental due process requires that a revocation of probation be based only on the violation alleged and after hearing. Hooks v. State, 207 So.2d 459 (Fla.App.2d 1968); Crum v. State, 286 So.2d 268 (Fla. App.4th 1973).

Accordingly, the Order revoking Defendant’s probation herein is reversed. Nothing contained herein, however, is intended to bar the State from pursuing revocation of probation charges against the Defendant on the basis of his conviction of the substantive charges aforementioned, should it choose to do so.

REVERSED AND REMANDED for further proceedings not inconsistent herewith.

OWEN and MAGER, JJ., concur.


author: MILLS, Judge.

text:
    Ronnie Cecil ADAMS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-322.
    District Court of Appeal of Florida, First District.
    April 23, 1976.
    Richard W. Ervin, III, Public Defender; and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   MILLS, Judge.

Adams appeals from a judgment of conviction and sentence based on the trial court’s finding that he violated a condition of his probation. Adams contends that there is no competent substantial evidence to support the finding that he violated his probation, and that the court imposed an excessive sentence.

Following a plea of guilty to a charge of breaking and entering with the intent to commit a misdemeanor, the court withheld adjudication of guilt and placed Adams on probation for four years. A little over a year later, Adams was charged with another breaking and entering offense which resulted in the charge that he violated his probation.

Condition (e) of the order of probation provides that Adams must live honorably in all respects. Adams was charged with violation of this condition. Officers investigating a break-in were told by a suspect found in the building that three more participants were in a hotel located above. Upon investigation, Adams was found in a closet of a hotel room rented to others. Adams was arrested and charged with breaking and entering the building below.

After a hearing, the court found that Adams violated his probation. The court revoked Adams’ probation, and adjudicated him guilty of the initial breaking and entering charge and sentenced him to five years in prison, the last two years suspended, to be followed by three years probation. At the hearing, the State adduced evidence that Adams was found standing in the closet of a hotel room rented to others, with his eyes closed. He told the officer that he was asleep. The suspect stated that Adams did not take part in the break-in. An officer stated that the suspect told him that Adams was a party to the break-in.

Although there is no evidence directly linking Adams with the last breaking and entering; and although the officer’s testimony is admissible for impeachment of the suspect only, not as substantive evidence, there is sufficient evidence to support the charge that Adams violated a condition of probation that he was to live honorably. The evidence shows that Adams was found in the closet of a hotel room rented by other persons. His explanation that he was sleeping while standing upright in the closet is hardly plausible.

If the court is satisfied from the greater weight of the evidence as to any material facts that are contested that a substantial violation of a condition of probation has occurred, the court is justified in revoking probation. Ivey v. State, 308 So.2d 565 (Fla.App.2d, 1975).

The sentence imposed by the court is correct. The offense for which Adams was sentenced occurred on 11 February 1974. On that date, Section 948.04, Florida Statutes, 1973, was in effect, and it permitted a period of probation to extend for up to two years beyond the maximum term for which a defendant might be sentenced. In this case, Adams was subject to a maximum sentence of five years. The sentence is within the limit imposed by statute.

The judgment of conviction and sentence are affirmed.

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


author: STRAWN, DAVID U., Associate Judge.

text:
    Walter FISCHER, Appellant, v. Lynn BARTBERGER, etc., et al., Appellees.
    No. 75-1028.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    Marjorie D. Gadarian and Charles H. Damsel, Jr., of Jones, Paine & Foster, West Palm Beach, for appellant.
    Hubert R. Lindsey of Farish & Farish, West Palm Beach, for appellees.
   STRAWN, DAVID U., Associate Judge.

Appellant has presented on this interlocutory appeal two points, neither of which warrants reversal.

Appellant first argues that Plaintiff’s filing of a paper entitled “Notice of Voluntary Dismissal,” the text of which asserted a “ . . . voluntary dismissal . as to the Defendant Ohio Casualty Insurance Company . . . .”, should be held also to dismiss the Appellant-Defendant Fischer.

The “Notice” made reference to F.R.C. P. 1.420 which relates to dismissal of actions, and provides the “manner” in which actions may be voluntarily dismissed.

F.R.C.P. 1.250 provides that a party Defendant may be dropped in the “manner” of dismissing actions provided for in F.R. C.P. 1.420. That “manner” is by “notice.”

It is evident from the record that Plaintiff dropped a party (permitted under F. R.C.P. 1.250) in the manner (by “notice”) provided in F.R.C.P. 1.420.

Appellant’s second ground for reversal asserts that Plaintiff-Appellee failed to file an affidavit establishing Plaintiff’s right to use the “long arm” provision of Fla.Stat. 48.161 (1975) to obtain personal jurisdiction over Defendant Fischer. We find no requirement in the statutes or in the rules for an affidavit showing entitlement to use of the statutory procedure. We do find a requirement in the statute for the preparation and filing by counsel of an affidavit showing “compliance” with the procedures of the statute. Fla.Stat. § 48.161(1) (1975). The Court should not legislate such a requirement, and will only require the affidavit showing “compliance” with the statutes’ procedures which has been mandated by the Legislature.

AFFIRMED.

OWEN and MAGER, JJ., concur.


text:
    Hervon CARTER, Appellant, v. STATE of Florida, Appellee. Clayton E. EUBANKS, Appellant, v. STATE of Florida, Appellee. Eric Earl WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-763, 75-787 and 75-833.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellants were jointly charged in a two-count information with (1) robbery and (2) use of a firearm in the commission of a felony, to wit: robbery. Tried jointly before a jury, all were convicted and sentenced and their respective appeals have been consolidated here.

Upon consideration of the record and briefs, we conclude that reversible error has not been shown and the respective judgments are severally affirmed.

Appellants — Eubanks and Carter were sentenced to a term of twenty years on both counts, while appellant — Williams was sentenced to thirty years on the same two counts. The trial court did not specify which portion of the respective sentences was to be served on each count. It has been held that such a sentence constitutes an impermissible “general sentence,” Landers v. State, 315 So.2d 522 (Fla.App.2nd 1975); Griffin v. State, 315 So.2d 486 (Fla.App.2nd 1975); Farmer v. State, 315 So.2d 225 (Fla.App.2nd 1975); Haddon v. State, 307 So.2d 238 (Fla.App.2nd 1975); Darden v. State, 306 So.2d 581 (Fla.App. 2nd 1975). It has also been held that where one is charged in a dual-count information with (1) robbery, and (2) the use of a firearm in the commission of a felony, to wit: robbery, and it is shown that the two crimes are a part of the same criminal act, as was the case here, only one sentence should be imposed, that for the higher offense. Cone v. State, 285 So.2d 12 (Fla. 1973). We are satisfied that here, the trial court being aware of the requirement of the Cone case, supra, imposed a single sentence for the higher offense, robbery. We construe the respective sentences in that light and as thus construed no error is shown and the respective sentences are therefore severally affirmed.

AFFIRMED.

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


text:
    Robert HOOGLAND, Appellant, v. DOLLAR LAND CORPORATION, LTD., (U. S.), Appellee.
    No. 75-472.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    William A. Kledzik, Orlando, for appellant.
    No appearance for appellee.
   DOWNEY, Judge.

By this interlocutory appeal defendant Robert Hoogland seeks review of an order of the trial court denying his motion for a protective order seeking to limit discovery.

Appellee sued appellant Hoogland and another in two counts, one count seeking recovery of rent due under a written lease, the other count seeking an injunction to restrain the defendants from destroying or disposing of certain personal property in the leased premises.

Appellee noticed appellant Hoogland for a deposition and commanded him (in accordance with a court order) to produce (a) documentary evidence relative to the lease of the premises in question, (b) inventories of assets located in the leased premises and other assets owned by appellant Hoogland, and (c) income tax returns and a host of other financial data.

We feel the trial court abused his discretion in totally denying appellant’s motion for protective order. The matters described in item (1) of the Notice of Taking Deposition were relevant and not subject to protection. This is true also of that portion of item (3) as to the inventories and assets located in the leased premises. The matters mentioned in the remainder of item (3) and the matters mentioned in items (2), (4), (5), (6), and (7) of the notice are not relevant at this time and it does not appear that they could reasonably lead to relevant matters. Leonhardt v. Cammack, Fla.App.4th 1976, 327 So.2d 848. Thus, the appellant Hoogland was entitled to a protective order as to most of the material sought until such time as it may appear that discovery of those documents is relevant or that it may reasonably lead to relevant evidence.

Accordingly, the order appealed from is reversed in part and remanded with directions to enter a protective order as to all of the documents sought by the appellees’ Notice of Taking Deposition except (a) those described in item (1) and (b) the inventories and assets located at Hoogland House Restaurant in the Pan American Bank Building, Orlando.

Affirmed in part, reversed in part.

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


author: BOARDMAN, Judge.

text:
    B. Ben BROWN, Appellant, v. Ray C. PHILLIPS, Sr., et ux., Appellees.
    No. 75-1099.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.
    Rehearing Denied May 13, 1976.

      Edward Michael Walsh, St. Petersburg, for appellant.
    E. Paul Dietrich, Bennett & Dietrich, St. Petersburg, for appellees.
   BOARDMAN, Judge.

Appellant/plaintiff brought suit against appellees/defendants to set aside a transfer of real property alleging in his amended complaint dependence, fiduciary relationship and undue influence. The facts are not in serious dispute and are as follows: Appellant, B. Ben Brown, a man 89 years of age, was the owner of two adjacent houses, living in one and renting the other to the appellees for $100 per month. Appellant was solely dependent upon appellees for his meals, transportation, laundry and general care. He testified that appellees made what he called a “Sacred Promise” never to sell or mortgage the property and to take care of him for the rest of his life if he would sell the house to them for $5,000, said sum to be payable as the rent had been paid, $100 per month. In March, 1973, one of appellees took appellant to their lawyer and a contract for sale of the house was prepared. Thereafter, appellees took appellant to the title company where he signed a warranty deed to appellees and they gave him a mortgage in the amount of $5,000. No monies changed hands at the closing, but from this time on the $100 payment, formerly called rent, was a monthly mortgage payment. Some 13 months later, in July, 1974, appellees placed the property on the market for sale. When appellant reminded them of their “Sacred Promise” they ceased to take care of him and stopped providing his meals, transportation and laundry. Appellees listed the house for sale at a price in excess of $30,000 and, in November, 1974, found a willing buyer for $18,900. The present litigation has delayed the completion of the pending sale.

A nonjury trial was held by the circuit judge which resulted in a final judgment for appellees. Appellant filed his timely notice of appeal.

After hearing arguments and reviewing the parties briefs and the record, we reverse. We recognize and agree with the long line of case law in this state holding that rescission and cancellation of real property transactions is a harsh remedy. Notwithstanding, to do otherwise in this case would indeed be a miscarriage of justice and would be contrary to well-established and accepted principles of equity jurisprudence.

The evidence adduced at trial is undisputed and uncontradicted that the promise of the appellees to take care of appellant for the rest of his life was the primary consideration for his agreement to execute the deed in issue. It is well recognized as a general proposition of law that the failure of a grantee to provide the agreed-to services of support during the grantor’s lifetime for which, in whole or in part, a deed was given relates back to the inception of the contract and vitiates the entire transaction. See the cases of Cook v. Adams, Fla.1956, 89 So.2d 6; Thomas v. Vickers, 1940, 143 Fla. 54, 196 So. 602; Anders v. Anders, 1940, 143 Fla. 721, 197 So. 451; and many others supporting this rationale.

In Collins v. McKelvain, 1939, 138 Fla. 463, 189 So. 655, our supreme court, in considering similar factual circumstances as presented in this case, held:

Where a deed is executed in consideration of an agreement by the grantee to support the grantor, and this agreement is made by the grantee for the fraudulent purpose of securing the deed and without intending to carry it out, and it has this effect, it constitutes a fraud vitiating the conveyance, and equity will set it aside. . . . [citations omitted]
Conduct of the grantee, after accepting conveyance of property, in failing to provide support and maintenance for the grantor, gives rise to the presumption of an abandonment of the contract (to provide support and maintenance for the grantor) and of a fraudulent intent in entering into it and taking conveyance of the property; and relief is given upon this ground rather than upon the right to rescind for failure of grantee to carry out the terms of the contract.
[citations omitted]

We adopted the rationale of Collins, supra, in Rennolds v. Rennolds, Fla.App.2d, 1975, 312 So.2d 538, a case recently decided by this court.

We hold, therefore, that a presumption of fraud arises from the failure on the part of the appellees to perform their promise to support and care for the appellant. We do not find any evidence in the record to rebut the presumption of fraud. Appellees did not testify in the case.

In conclusion, the following quoted text from Cook, supra, appears to be pertinent:

This case is typical of many in which those of advanced years pledge their lands and belongings to others to take care of them for the balance of life and when the burden becomes onerous, the pledgee welches on the bargain. The courts of the country have almost universally adopted the rule that those so wronged may resort to equity, cancel the deed and restore the property to the rightful owner . .

Accordingly, we hold that rescission is the proper remedy and the warranty deed that appellant executed to the appel-lees should be set aside and vacated.

Lastly, we point out that appellees have raised the statute of frauds as a basis for affirmance. The performance on the part of appellant by execution of the deed takes this transaction out of the statute of frauds.

The judgment is reversed and the cause is remanded to the trial court for appropriate proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: SMITH, Judge.

text:
    Joseph G. BARRY, Appellant, v. STATE of Florida, Appellee.
    No. U-248.
    District Court of Appeal of Florida, First District.
    April 23, 1976.

      Richard L. Brown, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Michael M. Corin and Jeanne D. Schwartz, Asst. Attys. Gen., for appellee.
   SUBSTITUTED OPINION ON REHEARING

SMITH, Judge.

Barry appeals from judgments and concurrent sentences of commitment on charges of grand larceny and forgery. He contests the sufficiency of the evidence on both counts and asserts other errors.

Upon our initial consideration of the charge that Barry forged the signature of Mary Burtt Foster as an endorsement on a check payable to her, we erroneously conceived that the endorsement was written as “Mary Burtt Foster (JGB)” and that Barry intended thereby to reveal his authorship of the handwriting. In fact, as clearly appears by the State’s petition for rehearing, the evidence and the permissible inferences from the evidence were in conflict at the trial. Our initial disposition to reverse the forgery conviction was therefore in error and the opinion expressing that reversal is withdrawn. The evidence was likewise sufficient to sustain Barry’s conviction of grand larceny.

At the sentencing, the court expressed the view that Barry’s counsel was entitled to present evidence in bar of the sentence, but not evidence in mitigation. Counsel persisted, however, until he managed to present to a reluctant audience the substance of the evidence. Barry’s counsel was entitled as of right to a reasonable opportunity to make a submission, by testimony or otherwise, on any matter “relevant to the sentence.” Rule 3.720(b), R.Cr.P. Neering v. State, 164 So.2d 29 (Fla.App. 1st, 1964), cert. den. 377 U.S. 980, 84 S.Ct. 1880, 12 L.Ed.2d 748 (1964), reh. den. 379 U.S. 871, 85 S.Ct. 16, 13 L.Ed.2d 78 (1964). However, because the trial court heard and evidently considered the evidence which Barry’s counsel presented and there is no indication that any evidence omitted was of import greater than that which was presented, any error was harmless. Sec. 924.33, F.S.1975.

The judgments and sentences are AFFIRMED.

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


text:
    Shelly TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. 75-476.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Since the automobile in which the contraband was found was not in the exclusive possession of appellant, a passenger therein, knowledge of its presence cannot be inferred but must be established by proof. Frank v. State, Fla.App.1967, 199 So.2d 117. The proof in this record is circumstantial and in our judgment does not rise to that quality necessary to exclude a reasonable hypothesis of innocence; therefore appellant’s motion for a judgment of acquittal on the charge of possession of a controlled substance should have been granted.

Accordingly, the judgment and sentence appealed from are reversed and the cause is remanded with directions to discharge appellant.

CROSS, MAGER and DOWNEY, JJ., concur.


text:
    N. P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1215.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Phillip A. Hubbart, Public Defender, and Elliott Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.

      Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The single question presented on this appeal is the sufficiency of the evidence of the juvenile’s knowledge of the fact that the gun he possessed was stolen. The application of the standards laid down in State v. Graham, Fla.1970, 238 So.2d 618, convinces us that the judgment is sufficient in this instance because it shows possession of recently-stolen property plus an attempt at concealment by throwing the gun into an apartment other than the apartment of the juvenile. In addition, the evidence fails to show any reasonable hypothesis other than respondent’s knowledge that the gun was stolen.

Affirmed.


text:
    Amanda BEVERLY, Appellant, v. STATE of Florida, Appellee.
    No. Z-5.
    District Court of Appeal of Florida, First District.
    April 23, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

By per curiam order filed hereon on November 24, 1975, (Beverly v. State, Fla.App. 1st 1975, 322 So.2d 597) we allowed appellant until November 29, 1975, within which to file a supplemental record reflecting that his plea of nolo contendere was conditioned upon a reservation or right to appellate review of a question of law as permitted by State v. Ashby, Sup.Ct.Fla. 1971, 245 So.2d 225. Appellant thereafter filed a motion to which was attached an affidavit of his trial counsel, who does not appear to have been a public defender nor otherwise an employee of the state, requesting that such affidavit be made and considered as a part of the record on appeal. That motion was granted by our order of January 16, 1976.

The record, as supplemented by said affidavit, fails to reveal that appellant’s plea of nolo contendere was conditioned upon any reservation of right nor does the record reveal that appellate review has been frustrated by any state action. (Hollingshead v. Wainwright, Sup.Ct.Fla.1967, 194 So.2d 577)

Accordingly, in accordance with the concluding paragraph of our per curiam order filed November 24, 1975, above mentioned, the judgment and sentence here appealed are

AFFIRMED."

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


author: McCORD, Judge.

text:
    R. L. WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. X-195.
    District Court of Appeal of Florida, First District.
    April 23, 1976.
    Emory O. Williams, Jr., and Charles L. Cetti of Phillips, Williams, McGraw, Cetti & Hall, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was charged with and convicted of grand larceny occurring between March 30, 1974, and April 30, 1974, — the larceny of “carpeting and drapery and other items of more than $100” of the property of Betty Stringfield Bills. The charge grew out of a dispute between appellant and Mrs. Bills over sale of appellant’s house and the evidence in support of the charge was entirely circumstantial. It would serve no useful purpose to here relate all of the details of that dispute and we will therefore relate only those which we consider pertinent to the issue before us. Mrs. Bills had put up a binder on the purchase of appellant’s home and had subsequently paid additional monies. Mrs. Bills testified that appellant had mailed her a deed to the property purportedly executed by his mother-in-law. Appellant, on the other hand, testified that Mrs. Bills, without his knowledge, took the deed from his briefcase which he had left at the house. Appellant subsequently deeded the property to a third party who ultimately prevailed over Mrs. Bills in a civil action over ownership of the property.

For a period of several months after Mrs. Bills, on December 19, 1974, gave appellant the binder, she and appellant both claimed a right to possession of the house. Mrs. Bills placed a carpet, drapes and other articles in the house. She testified that she changed the locks on the house and that appellant broke in a number of different times. Appellant, on the other hand, testified that he gained entry to the house with a key. There was property in the house which he claimed to own and which Mrs. Bills testified was to go with the sale. It included a carpet and drapes — a different carpet and drapes from those placed in the house by Mrs. Bills. Appellant admittedly was in the house off and on during the several months’ period.

A neighbor testified that on March 30, 1974, she saw appellant back his truck up to the house and start throwing things off the balcony. She recalled a roll of carpeting and household goods. Mrs. Bills testified that she was out of town on the weekend of the 30th and when she came back, she went to the house and found the things had been removed which appellant had agreed to leave with the house. She further testified that the next time she found anything missing was on the 17th and 18th, when she found her drapes, carpet, vacuum cleaner and cleaning equipment were missing.

The only direct testimony as to appellant moving items from the house was the aforesaid neighbor’s testimony that she saw him removing items on the 30th, and Mrs. Bills’ mother’s testimony that on April 17 she saw appellant in the house rolling drapes or paneling and then saw him put a big brown grocery bag in the car. The evidence as to the items removed by appellant on the 30th is insufficient to support appellant’s conviction as Mrs. Bills’ ownership or right to possession of those articles is too vague and uncertain.

There is no direct evidence that appellant took the items which Mrs. Bills missed on April 17 and 18. Since the house was open part of the time during this period, anyone could have gone in and taken the items in question. While there is a strong inference and presumption that appellant took the items, such is not sufficient to sustain the verdict. In Davis v. State, Fla., 90 So.2d 629 (1956), the Supreme Court said:

“At the same time we must not lose sight of the basic proposition that one accused of a crime is presumed innocent until proved guilty beyond and to the exclusion of a reasonable doubt. It is the responsibility of the State to carry this burden. When the State relies upon purely circumstantial evidence to convict an accused, we have always required that such evidence must not only be consistent with the defendant’s guilt but it must also be inconsistent with any reasonable hypothesis of innocence. Head v. State, Fla.1952, 62 So.2d 41; Mayo v. State, Fla.1954, 71 So.2d 899.
Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence. * * * ”

While the evidence shows that the acts of appellant were extremely reprehensible and that he may have been guilty of other crimes, it does not meet the above quoted test for support of a conviction of grand larceny based upon circumstantial evidence.

Reversed with directions that appellant be discharged.

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


author: PER CUÍHAM.

text:
    PUBLIC SERVICE MUTUAL INSURANCE CO., a New York Corporation, et al., Appellants, v. The STATE of Florida, for the Use and Benefit of DADE COUNTY, Appellee.
    Nos. 75-1163 to 75-1166.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Stone, Sostchin & Koss, Miami, for appellants.
    Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State Atty., for ap-pellee.
    Before PEARSON and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CUÍHAM.

These consolidated appeals are by a bail bond surety, Public Service Mutual Insurance Company, a New York corporation, from orders denying its motions to vacate final judgments which had been entered against it, following bond forfeitures. In each of the judgments it was found that thirty days had elasped since the bond was forfeited and that the forfeiture thereof had not been discharged.

Section 903.26 Fla.Stat., F.S.A. authorizes forfeiture of bail bonds in designated circumstances. Subparagraph (5) thereof provides that the court may discharge a forfeiture within thirty days, for reasons or circumstances set out therein. If the forfeiture is not paid or discharged within thirty days, § 903.27 provides for a copy of the order of forfeiture to be filed in the office of the clerk of the circuit court, who shall enter judgment against the surety, and “furnish the surety company at its home office a certified copy of the judgment within ten days.” By subparagraph (2) of § 903.27, after notice of judgment given to the surety by the clerk, “the surety or bail bondsman may within forty-five days file a motion to set aside the judgment,” upon which the court wherein the judgment was entered may set the judgment aside in whole or in part “for reasonable cause shown”.

The judgments involved here were entered in January of 1975. To each of the judgments there was appended a certificate of the clerk of the circuit court reciting the timely mailing of a certified copy thereof to “Public Service Mutual Insurance Company, defendant-surety company, 11 Grace Avenue, Great Neck, New York, 11021”.

In moving to vacate the several judgments the surety showed its home office was at 393 Seventh Avenue, New York, N. Y., and alleged the clerk had failed to comply with the requirement to send a certified copy of the judgment to the surety at its home office. The state attorney filed responses showing his office previously had written to the surety, using the 393 Seventh Avenue, New York, N. Y., address, as follows:

“Please advise this office your correct address for mailing final judgments of bond estreatures in Dade County. We understand you may have changed your address recently, and we do not wish to cause a delay in getting to you copies of the final judgments promptly.
“Thank you for a prompt reply. The address we are presently using is the one used above.”

The surety returned that letter to the state attorney’s office with a handwritten notation thereon as follows:

“Our new address is National Agency Managers, Inc., 11 Grace Ave., Great Neck, N. Y., 11021.”

We hold, as the trial court necessarily held in denying the motions to vacate the judgments, that the notice requirement was complied with by sending certified copies of the judgments to the surety at the address it had furnished to the state attorney for that purpose.

As pointed out by the appellee, in moving to set aside the judgments the appellant made no showing of any prejudice which resulted to it from certified copies of the judgments being forwarded to the address which the surety had given to the state attorney for use in that connection. Nor was it shown that the copies of judgments so forwarded were not received by the surety, or that it did not thereby receive notice thereof.

The orders appealed from are affirmed.


text:
    Juvenile, K. G., Appellant, v. STATE of Florida, Appellee.
    No. Z-192.
    District Court of Appeal of Florida, First District.
    April 22, 1976.

      Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant was charged with being a delinquent child. The first count of the petition charged her with breaking and entering with intent to commit a misdemeanor and the second count charged that she did willfully, maliciously and intentionally injure or damage the real or personal property of another.

After presentation of the state’s evidence, the court below granted a judgment of acquittal as to the first count. At the conclusion of all of the evidence, the court below declared appellant guilty of vandalism even though at the same time he found her “vandalism” to be by accident- — that she accidentally broke a window. For a conviction under the second count, the damage must have been done willfully, maliciously and intentionally.

Reversed.

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


author: CROSS, Judge.

text:
    John C. TOPERCER, Appellant, v. W. A. KNOX et al., Appellees.
    No. 75-922.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    Robert B. White, Jr., of Page & White, Orlando, for appellant.
    Heskin A. Whittaker of Whittaker Pyle & Stump, Orlando, for appellees.
   CROSS, Judge.

This is an appeal of a summary final judgment entered in favor of appellees, W. A. Knox, W. A. Knox, Jr., and S. Stetson Fleming III, as Trustees and Directors of a dissolved Florida corporation, Spring Valley Farms, Inc., and against appellant, John C. Topercer, in an action seeking damages for negligent maintenance of a roadway shoulder.

The pleadings and depositions reveal that there are genuine issues of material fact precluding summary judgment; specifically, whether appellees were negligent in their maintenance of the roadway shoulder causing appellant damages and whether there existed any negligence attributable to the appellant which contributed to appellant’s damages. Since fact issues exist, summary judgment was prematurely entered and we, therefore, reverse and remand for further proceedings consistent with the views herein expressed. Rule 1.-510(c), Fla.RCP (1973); Leaks v. Adeinvy, 195 So.2d 47 (Fla.App. 1967).

Reversed and remanded for further proceedings.

MAGER, J., and PARHAM, HARRY C., Associate Judge, concur.


author: PER CURIAM. WALDEN, Chief Judge

text:
    ALLIED VAN LINES, INC., Appellant, v. Ila M. BRATTON and Robert T. Cotterman, Appellees.
    No. 75-133.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    Rehearing Denied May 11, 1976.
    Reinald Werrenrath III, of Akerman, Senterfitt, Eidson & Wharton, Orlando, for appellant.
    Joseph H. Williams, of Troutman & Parrish, P.A., Winter Park, for appellee, lia M. Bratton.
   PER CURIAM.

We have studied the briefs and record in this case and conclude therefrom that while the issue involved was a close one, it was properly one for the jury rather than for a directed verdict.

The other appellate points have been given serious consideration and found to be without merit.

Accordingly, the judgment appealed from is affirmed.

CROSS and DOWNEY, JJ., concur.

WALDEN, C. J., dissents, with opinion.

WALDEN, Chief Judge

(dissenting):

I would reverse and remand with instructions to reduce the plaintiff’s judgment from $10,630 to $4,500.

Plaintiff was a shipper of household goods and defendant was a public carrier. The goods were destroyed in interstate transit. Plaintiff sued the carrier.

The bill of lading contained a clear and proper limitation of liability provision (which would limit the carrier’s liability to $4,500). Plaintiff signed the bill of lading and acknowledged at trial that she knew it was a contract but said she didn’t know about the limitation of liability proviso.

In my opinion the trial court erred in denying the carrier’s motion for directed verdict and erred in presenting the question to the jury on the plaintiff’s assertion of mistake.

And so, without elaboration, it is my view, as a matter of law, that the plaintiff was bound by the limitation of liability provision in the contract.


author: LEE, TPIOMAS E., Associate Judge.

text:
    David HAMMOCK, Appellant, v. STATE of Florida, Appellee.
    No. Y-165.
    District Court of Appeal of Florida, First District.
    April 23, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   LEE, TPIOMAS E., Associate Judge.

This is a criminal appeal from a jury conviction of grand larceny and breaking and entering with intent to commit a misdemeanor. We are to review the judgment and sentence of the Circuit Court of Washington County. The trial court sentenced appellant to serve three years and committed him to the Division of Correetion of the State of Florida. Appellant was adjudged insolvent and set a superse-deas bond in the amount of four thousand dollars.

In concert with two others, Billy W. Pitts and Johnnie E. Pitts, appellant on the evening of June 25th, 1974 drove to Chi-pley, Florida for the purpose of getting into Northcutt Drugstore. They arrived early from Panama City and stopped for a meal and refreshments. The local police later, while on routine patrol, noticed that a bar locking the back door of the store was off. After notifying the owner, who then came to the store, the police entered to investigate a possible breaking and discovered upon taking inventory that a burglary had taken place. It was determined that a radio with 8-track tape system was missing together with $78.00 dollars in silver coins, $168.00 in store owned articles, also, $755.00 in drugs owned by a local mental health agency. The drugs taken, according to appellant, were liquid speed, demerols, nebutals, quaaludes, valiums and artanes , in a quantity of about 20,000 different pills.

Appellant and the two Pitts then drove to Panama City, rented a motel room and went to sleep. Upon awakening they found the elder Pitts to have left after taking approximately J^ths of the stolen drugs.

On July 3rd, 1974, at the time of appellant’s arrest he was found asleep, wrapped in a blanket in the rear seat of an automobile. The Bay County Sheriff’s Department Officers arrested appellant for disorderly intoxication and took him to the Bay County Jail. He was first questioned at approximately 4:55 a. m. but gave no statement. Appellant was read his rights (Miranda) Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by all authorities who sought to question him and appellant understood the charges, his right to an attorney and if he could not afford one he would have one appointed to represent him and that any statement made by him could be used against him in the court of law. On the afternoon of July 4th, 1974, at 12:20 p. m. a statement was taken. During one of the interrogation sessions Sheriff Theron Cook of Washington County grabbed the appellant by the hair and forcibly pushed him into a chair for the reason that Sheriff Cook thought appellant was going to “take a swing” at him.

On July 5th, 1974, appellant had his first court appearance and entered pleas of not guilty and requested a trial by jury.

On October 1st, 1974, appellant was arraigned on the charge of breaking and entering with intent to commit a felony [810.02, F.S.] and trial was set for October 23rd, 1974. Later the trial date was continued to November 12th, 1974, and then to January 27th, 1975, for the crime of breaking and entering with intent to commit a misdemeanor [810.05, F.S.], a lesser offense and committed to the Division of Correction of the State of Florida for a period of 3 years. The Court set a super-sedeas bond in the amount of $4,000.00 and declared appellant insolvent.

Appellant has found numerous errors in his trial, but only one requires discussion here. Appellant asserts that he was required to be discharged from custody and further state action under the 180-day speedy trial rule set forth in Florida Rule of Criminal Procedure 3.191(a)(1).

The record is undisputed that more than 180 days elapsed between appellant’s arrest and the date he was brought to trial. In that interval, defense counsel undertook no action which could be construed as showing a lack of preparation for trial, and there was no waiver of the speedy trial rule. On the 188th day, at a hearing on appellant’s motion to dismiss under the rule, the court commented on the fact that appellant had changed counsel as the court had earlier directed because of a conflict in representation of a co-defendant, and the court denied the motion. Immediately after this ruling, appellant’s new counsel stated for the record that appellant had not cooperated in the preparation of a defense. It is this assertion of non-cooperation which the state now asserts demonstrates that appellant was not in fact ready for trial.

We previously held in like circumstances that the discharge of counsel is not an enumerated cause for tolling the speedy trial rule under Rule 3.191(f). Hogan v. State, 305 So.2d 835 (1st DCA Fla. 1974) cert. denied, 312 So.2d 757 (Fla. 1975). A demonstration of unpreparedness for trial which is developed after the 180-day period has elapsed, and which has no record support during the 180-day period, does not toll the speedy trial rule.

Inasmuch as appellant was denied the right of a speedy trial through no fault of his own, we must reverse the lower court and remand this case for appellant’s discharge.

McCORD, J., and ENGLAND, ARTHUR J., Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    CITY OF ORMOND BEACH, Florida, etc., Appellant, v. William T. MAYO et al., Appellees.
    No. AA-470.
    District Court of Appeal of Florida, First District.
    April 23, 1976.
    Rehearing Denied June 1, 1976.
    Henry P. Duffett of Duffett, Barry, Spes, Akers & Burnett, Ormond Beach, for appellant.
    Stanley M. Danek and William L. Weeks, Tallahassee, Stephen L. Boyles, Daytona Beach, Robert L. Shevin, Atty. Gen., for appellees.
   BOYER, Chief Judge.

Appellant, defendant in the trial court, has filed a notice of interlocutory appeal from the trial court’s order denying defendant’s motion to dismiss. Essentially, the issue here involved is whether appel-lees, referred to collectively as the Public Service Commission, have standing to bring the suit.

The Commission’s complaint alleged that defendant sold water to two private utility corporations which sell and distribute water to approximately 1800 customers who live outside Ormond Beach. The complaint further asserts that the rates charged by the City to the two private utilities were in excess of the maximum rates allowed under F.S. §,180.191 and that the City’s establishment of the rate differential between in-city and out-of-city purchasers of water amounts to an arbitrary and unconstitutional classification. The Commission admits that it has no regulatory control over the City’s water system and its rates by virtue of the provisions of F.S. § 367.022(2), but claims that it has standing on its own behalf and on behalf of the customers of the two private utilities to bring the instant action. The complaint also admits that the Commission must “pass through” the rate increases to the two private utilities pursuant to F.S. § 367.081(3), but contends that the Commission may challenge whether those rates have been set in accordance with the laws of Florida.

Our meticulous examination of the record and careful consideration of the pertinent statutory and case law has led us to the conclusion that the Public Service Commission is not the proper party to maintain the action. Appellant Mayo and the other appellants constituting the Public Service Commission have no role of advocacy and, therefore, cannot take the position that they fairly and adequately represent a class of consumers. Any decision in this suit commenced by the Commission would not be binding on a class, but would potentially subject appellant to subsequent suits by the class.

We agree with the Commission that the federal cases concerning standing are relevant to the case sub judice. Particularly helpful is Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), wherein the United States Supreme Court reiterated the general rule that in order for a plaintiff to have standing to initiate a lawsuit, he must satisfy the direct injury or injury-in-fact requirement. In other words, a plaintiff must demonstrate that the purported harm caused by the defendant has directly injured him. The Public Service Commission can make no such showing in this case.

The Commission claims that it has a personal stake in the outcome of the suit in that it must regulate utilities in the public interest in addition to its status as the protector of the public interest. However, the Public Service Commission has not been designated by statute nor otherwise as a consumer advocate over utilities not under its regulatory authority. In this regard, the opinion of this Court in Southern Gulf Utilities v. Mayo, Fla.App. 1st 1974, 299 So.2d 156 is significant. While the facts in that case are distinguishable, the conclusion of the court is applicable. On Petition for Rehearing in the Southern Gulf Utilities Case, Judge McCord wrote as follows :

“ . . . The problem here results from a hiatus in the law whereby appellants are subject to the jurisdiction of the Florida Public Service Commission as to their rates and charges to their customers, while the City of Ormond Beach is not subject to the regulatory jurisdiction of said Commission as to the rates it charges to appellants; While it might be desirable from the '.standpoint of appellants and appellants’ water customers that the City also be subject to the regulatory jurisdiction of said Commission, the Legislature has not seen fit to vest such jurisdiction in the Commission. . . . ” (299 So.2d at page 157)

Likewise, in the case sub judice, while it might be desirable from a policy standpoint for the Public Service Commission to initiate such a lawsuit on behalf of the consumer, the legislature has not seen fit to authorize the Commission so to do. It follows that the trial court should have granted appellants’ motion to dismiss.

REVERSED.

MILLS and SMITH, JJ., concur.


text:
    Robert Theodore SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 74-997.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Richard L. Jorandby, Public Defender, and James R. Merola, Special Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with manslaughter by culpable negligence. At trial and over appellant’s objection, the court instructed the jury on culpable negligence under former Fla.Stat. § 784.05 (1973), as the lesser included offense to manslaughter. This was held reversible error in the case of Murray v. State, 4th DCA Fla., 328 So. 2d 501, 1976, and we therefore reverse the judgment herein on the authority of the cited case, remanding this cause to the trial court for a new trial.

REVERSED and REMANDED.

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


text:
    Ruie B. JOHNS, Appellant, v. STATE of Florida, Appellee.
    No. AA-130.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

By this appeal appellant challenges the judgment and sentence of the trial court which followed a bargained plea of guilty. Although appellant and his attorney specifically waived a presentence investigation, appellant now contends that the trial judge fatally erred in failing to comply with Rule 3.710 RCrP, thus squarely presenting the point which we anticipated but did not specifically answer in Mitchum v. State, Fla.App.1st, 1974, 292 So.2d 620, viz: Whether compliance with said rule may be waived. We hold that it may.

AFFIRMED.

RAWLS and McCORD, JJ., concur.


text:
    David BEVERLY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Y-302.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Richard W. Ervin, III, Public Defender, and Lewis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant was sentenced to prison terms without the trial judge having received and considered a presentence investigation report and recommendations from the Parole and Probation Commission. Since the record does not show that appellant had a prior felony conviction, the sentencing violated Rule 3.710, F.R.Cr.P. See Mitchum v. State, Fla.App. (1st), 292 So.2d 620 (1974), and Angel v. State, Fla.App. (1st), 305 So. 2d 283 (1974). There is no contention that there was a waiver of presentence investigation as was the case in Johns v. State, Fla.App. (1st), 330 So.2d 526, opinion filed this date.

We have considered the remaining point raised by appellant and find it to be without merit. See State v. Barber, Fla., 301 So.2d 7 (1974), and Terry v. State, Fla.App. (1st), 302 So.2d 142 (1974).

The convictions are affirmed, but the sentences are reversed and vacated with directions to resentence defendant after procuring and considering a presentence investigation report pursuant to Rule 3.710, F.R.Cr.P.

RAWLS, Acting C. J„ and McCORD and SMITH, JJ., concur.