author: SUNDBERG, Justice.

text:
    STATE of Florida, Petitioner, v. D. H., a juvenile, Respondent. Killum PORTER, Petitioner, v. STATE of Florida, Respondent. R. D. C., a juvenile, Petitioner, v. STATE of Florida, Respondent.
    Nos. 47298, 49254, 49586.
    Supreme Court of Florida.
    Dec. 22, 1976.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., for State of Florida, petitioner in No. 47298.
    Judge C. Luckey, Jr., Public Defender, and Tim Moran, Asst. Public Defender, for D. H., respondent in No. 47298.
    Louis G. Carres, Asst. Public Defender, for Killum Porter, petitioner in No. 49254.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton and Arthur Joel Berger, Asst. Attys. Gen., for State of Florida, respondent in No. 49254.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for R. D. C., petitioner in No. 49586.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for State of Florida, respondent in No. 49586.
   SUNDBERG, Justice.

These causes are before us on petitions for writ of certiorari granted to review conflicting decisions of several of the District Courts of Appeal. Article V, Section 3(b)(3), Florida Constitution.

In State v. D. H., 309 So.2d 601 (Fla.2d DCA 1975), the State filed a petition to have respondent, a nine-year-old minor, adjudicated a delinquent child, charging that respondent had participated in the breaking and entering of a store and had stolen a television set valued at less than $100. Respondent entered a plea of not guilty. Motion to dismiss was filed by respondent’s counsel relying on the common law presumption of incapacity of a child between the ages of 7 and 14 to commit a crime. After hearing argument, the trial judge asked the State Attorney whether he intended to present evidence of capacity to which inquiry the State replied that its sole evidence would be the evidence of the crime itself. The trial judge thereupon granted the motion to dismiss. The District Court of Appeal, Second District, affirmed the trial judge, holding that the common law rebuttable presumption that a child between the ages of 7 and 14 is incapable of committing a crime applies to proceedings adjudicating a child to be delinquent under Chapter 39, Florida Statutes.

In Porter v. State,327 So.2d 820 (Fla. 1st DCA 1976), petitioner at age 12 took a lawn mower from the property of another without the owner’s knowledge, permission or consent. The lawn mower was subsequently found but had been dismantled. At the delinquency hearing, petitioner’s counsel argued for acquittal on the basis that the State had failed to present any evidence other than the crime itself to rebut the common law presumption that a child under the age of 14 is incapable of committing a crime. The trial judge, rejecting this argument, found petitioner to be a delinquent child and placed him on probation. Upon appeal, the District Court of Appeal, First District, concluded that the common law presumption of incapacity and Florida’s Juvenile Act are inconsistent and therefore the former is not applicable to the instant proceedings:

“The intent of the presumption was to afford juveniles some limited protection against the ordinary criminal process. Given the extensive protections afforded juveniles in Florida’s Juvenile Court Act, the defense of incapacity would appear to be unnecessary. Moreover, the survival of the incapacity defense could act to defeat the juvenile statute’s effectiveness by preventing the reformation of children who successfully argue the defense.” 327 So.2d at 821.

However, the District Court of Appeal, First District, reversed and remanded the cause for a new hearing since the evidence failed to show that appellant acted with the requisite intent to deprive or defraud the owner of his property.

R. D. C. v. State, 332 So.2d 134 (Fla.3d DCA 1976), involved a petition for delinquency alleging that petitioner, then 12 years of age, had committed robbery and assault with a deadly weapon without intent to commit murder. The hearing on the delinquency petition revealed that petitioner had assaulted three elderly citizens and beaten one of them with a rock, thereafter grabbing a purse from another of the victims and fleeing with it. Respondent moved for judgment of acquittal alleging that the common law presumption of incapacity to commit a crime attaching to children between the ages of 7 and 14 had not been overcome. The State posited that the evidence of the crime was sufficient to overcome the presumption. The trial judge denied the motion for acquittal. Upon appeal, the District Court of Appeal, Third District, affirmed and found that proof of the capacity to commit a crime is not essential for an adjudication of delinquency under Chapter 39, Florida Statutes.

The question now here for disposition is whether the common law rebuttable presumption that a child between the ages of 7 and 14 is incapable of committing a crime applies to delinquency proceedings. The answer depends upon a construction of the term “delinquent child” as defined by Section 39.01(12), Florida Statutes:

“ ‘Delinquent child’ means a child who commits a violation of law, regardless of where the violation occurs, except a child who commits a juvenile traffic offense and whose case has not been transferred to the circuit court by the court having jurisdiction.” (Emphasis supplied)

The authority for Chapter 39, Florida Statutes, emanates from Article I, Section 15(b), Florida Constitution, which provides:

“When authorized by law, a child as therein defined may be charged with a violation of law as an act of delinquency instead of crime and tried without a jury or other requirements applicable to criminal cases. Any child so charged shall, upon demand made as provided by law before a trial in a juvenile proceeding, be tried in an appropriate court as an adult. A child found delinquent shall be disciplined as provided by law.” (Emphasis supplied)

It is clear that through adoption of the quoted constitutional provision as well as the predecessor provision in Article V of the Constitution of 1885 the people of this State determined that violations of law by children should not be treated as crimes but rather as acts of delinquency. Following the people’s directive the Legislature provided for judicial treatment of juveniles in Chapter 39, Florida Statutes, wherein procedures are provided, inter alia, for determining whether a given child is dependent or delinquent. Sections 39.01(10) and (12), Florida Statutes. It is readily apparent that in its definition of “delinquent child” the legislature avoided use of the word “crime” and utilized instead the term “violation of law.” This is perfectly consistent with the constitutional authority to treat violations of law as “an act of delinquency” as opposed to a “crime.”

In construing Section 39.01(12), therefore, we find that the Legislature did not intend for the common law presumption with respect to “crimes” to operate in delinquency proceedings. Such construction is consistent with the purpose of juvenile proceedings, which are intended “to protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of children who violate the laws.” Section 39.001(1). This common law presumption concerning crimes has no place in juvenile proceedings because its application in cases such as those at bar can very well frustrate the remedial purposes of reformation intended by Chapter 39, Florida Statutes. Where the presumption of incapacity is successfully maintained the child who may most need the care provided by the Act so as to be taught the capacity to refrain from anti-social behavior is deprived of that care.

We cannot accept the argument of counsel for the juveniles that Section 39.01(10), Florida Statutes, solves the problem. This section enumerates the conditions under which the child may be adjudicated “dependent” and, therefore, brought into the juvenile system for the aid which it provides. Although “a child who commits a violation of law” may in some instances qualify under the definition of a “dependent child,” it must be obvious that innumerable cases occur where a child who violates the law meets none of the criteria enumerated in Section 39.01(10). In every such event the child will “slip through the crack” with the child and society being the resultant losers.

A decision contrary to the one we reach today would fail to give credence to the remedial, parens patriae objects of Chapter 89, Florida Statutes.

We agree with the plurality opinion of the United States Supreme Court in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), that the applicable due process standard in juvenile delinquency proceedings is fundamental fairness. While a juvenile is entitled to assistance of counsel, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and to the standard of proof beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Court has never held the full panoply of federal constitutional rights in criminal trials to be applicable to delinquency proceedings. In fact, McKeiver, supra, held that a juvenile was not constitutionally entitled to a jury trial in such proceedings. We believe that the legislative removal of the common law presumption against juvenile commission of crime in delinquency proceedings comports with the applicable fundamental fairness standard.

Accordingly, the petition for writ of cer-tiorari to the Second District Court of Appeal in State v. D. H., supra, Case No. 47,298, is granted, the decision of that court is quashed, and the cause is remanded for further proceedings not inconsistent herewith. In Porter v. State, Case No. 49,254, and in R. D. C. v. State, Case No. 49,586, the District Court decisions are approved, and writs of certiorari are discharged.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, HATCHETT and DREW (Retired), JJ., concur.

      . This case was styled In the Interest of K. P. v. State in the court below.

      . The predecessor constitutional authority for judicial treatment of juveniles was Article V, Section 12 of the Constitution of 1885 which provided in pertinent part:
      “The Legislature shall have power to create and establish juvenile courts in such county or counties or districts within the state as it may deem proper, and to define the jurisdiction and powers of such courts and the officers thereof, and to vest in such courts exclusive original jurisdiction of all or any criminal cases where minors under any age specified by the Legislature from time to time are accused, including the right to define any or ail offenses committed by any such persons as acts of delinquency instead of crimes. . . .” (Emphasis supplied)

      . “ ‘Dependent child’ means a child who:
      (a) Has been abandoned by his parents or other custodians.
      (b) For any reason, is destitute or homeless.
      (c) Has not proper parental support, maintenance, care, or guardianship.
      (d) Because of the neglect of his parents or other custodians, is deprived of education as required by law, or of medical, psychiatric, psychological, or other care necessary for his well-being.
      (e) Is living in a condition or environment such as to injure him or endanger his welfare.
      (f) Is living in a home which, by reason of the neglect, cruelty, depravity, or other adverse condition of a parent or other person in whose care the child may be, is an unfit place for him.
      (g) Is surrendered to the Division of Family Services or a licensed child-placing agency for purpose of adoption.
      (h) Has persistently run away from his parents or legal guardian.
      (i) Being subject to compulsory school attendance, is habitually truant from school.”


source: Caselaw Access Project

author: DOWNEY, Judge. DOWNEY, Judge.

license: Public Domain

text:
    Jacquelyn Yon McABEE, Appellant, v. Warren EDWARDS and St. Paul Mercury Insurance Co., a Foreign Corporation, Appellees.
    No. 75-1708.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    Rehearing Denied Dec. 17, 1976.
    Donald R. Corbett, Orlando, for appellant.
    Monroe M. McDonald, of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for ap-pellee, Edwards.
    Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellee, St. Paul Mercury Ins. Co.
   DOWNEY, Judge.

Appellant Jacquelyn Yon McAbee sued appellees Warren Edwards (a lawyer) and his insurance carrier St. Paul Mercury Insurance Company for malpractice arising out of the preparation of a last will and testament for appellant’s mother, Bonita P. Yon. The court entered a judgment on the pleadings and Mrs. McAbee appealed from that judgment.

In her amended complaint appellant makes the following material allegations. In April 1960, her mother employed appel-lee Edwards to prepare her (the mother’s) will leaving her entire estate to her daughter (the appellant). After the will was executed on April 15,1960, the mother married Mr. Moore. Thereafter the mother made an appointment with appellee Edwards, advised him of her marriage, and requested him to redraft her will so that appellant would be her sole beneficiary. Appellee Edwards advised the mother that it was unnecessary to make any changes in the will to effect her testamentary plan. The mother died in 1972 while married to Mr. Moore and the will in question was admitted to probate. Mr. Moore claimed an interest in the mother’s estate as a pretermit-ted spouse. Moore’s claim was eventually settled for the sum of $27,000. Appellee Edwards owed to appellant as the beneficiary of her mother’s estate the duty to properly advise appellant’s mother of the necessity to change her will after her marriage so that the entire estate of the mother would go to the appellant, as the mother intended. Appellee breached this duty and appellant was damaged as a result of that breach.

Among other responses to the foregoing allegations, appellees’ answer admitted the preparation of the mother’s will and affirmatively pleaded: (1) appellant lacked standing to sue because of lack of privity; (2) laches; (3) the statute of limitations; (4) compromise and settlement. The trial court granted appellees’ motion for judgment on the pleadings and this appeal followed.

Since the judgment under review is one on the pleadings entered upon motion of the defendants-appellees, all well pleaded allegations of the nonmoving party (appellant) are taken to be true while those of the movants (appellees) that have been denied are taken as false. Butts v. State Farm Automobile Mutual Ins. Co., 207 So.2d 73 (3d DCA, Fla.1968). The question thus presented here is whether the appellant’s amended complaint stated a cause of action.

Appellant contends that the amended complaint presents a meritorious claim based upon a tort theory sounding in negligence or upon the contract theory of third party beneficiary. Appellees on the other hand assert that under the law of Florida a lawyer owes a duty only to his immediate client. Without privity of contract no action can be maintained for negligence in rendering legal services.

The briefs of counsel and our independent research demonstrate that there is a division of authority on the question presented. Perhaps the numerical weight of that authority favors the contentions of the appellees. See Annot.: Attorneys — Liability To Third Parties, 45 A.L.R.3d 1184, § 2a. However, we are persuaded that the better view favors the maintenance of the cause of action alleged by appellant. Ibid. Probably the closest case on point is Heyer v. Flaig, 70 Cal.2d 223, 74 Cal.Rptr. 225, 449 P.2d 161 (1969), in which a decedent’s two daughters sued the lawyer who drafted the decedent’s will. They alleged that their mother employed the defendant to prepare a will leaving her entire estate to the daughters, and that their mother advised the defendant that she was about to be married. Defendant prepared the will leaving the estate to the daughters but never mentioned the soon to be husband. Upon the death of the testatrix the husband asserted a claim “as a post-testamentary spouse” resulting in a loss of $50,000 in the value of the daughters’ inheritance. Judgment was entered for the defendant on the ground that the statute of limitations had run. In reversing, the Supreme Court of California discussed the duty of a lawyer in these circumstances to his immediate client and to the beneficiaries designated in the proposed will:

“In the case of Lucas v. Hamm, . . 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685 [1961], we embraced the position that an attorney who erred in drafting a will could be held liable to a person named in the instrument who suffered deprivation of benefits as a result of the mistake. Although we stated that the harmed party could recover as an intended third-party beneficiary of the attorney-client agreement providing for legal services, we ruled that the third party could also recover on a theory of tort liability for a breach of duty owed directly to him. At the heart of our decision in Lucas v. Hamm lay this recognition of duty.
“In the earlier case of Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358, we had held that a notary public who negligently failed to direct proper attestation of a will became liable in tort to an intended beneficiary who suffered damage because of the invalidity of the instrument. In that case, the defendant argued that the absence of privity deprives a plaintiff of a remedy for negligence committed in the performance of a contract. In rejecting this contention we pointed out that the inflexible privity requirement for such a tort recovery has been virtually abandoned in California. (49 Cal.2d at pp. 649-650, 320 P.2d at p. 19.) We then analyzed the bases for imposing such a duty: ‘The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.’
“Applying the Biakanja criteria to the facts of Lucas, the court found that attorneys incur a duty in favor of certain third persons, namely, intended testamentary beneficiaries. In proceeding to discuss the contractual remedy of such persons as the plaintiffs in Lucas, we concluded that ‘as a matter of policy, * * they are entitled to recover as third-party beneficiaries.’ (56 Cal.2d at p. 590, 15 Cal.Rptr. at p. 825, 364 P.2d at p. 689.) The presence of the Biakanja criteria in a contractual setting led us to sustain not only the availability of a tort remedy but of a third-party beneficiary contractual remedy as well. This latter theory of recovery, however, is conceptually superfluous since the crux of the action must lie in tort in any case; there can be no recovery without negligence.”
* * sj< * H« *
“When an attorney undertakes to fulfill the testamentary instructions of his client, he realistically and in fact assumes a relationship not only with the client but also with the client’s intended beneficiaries. The attorney’s actions and omissions will affect the success of the client’s testamentary scheme; and thus the possibility of thwarting the testator’s wishes immediately becomes foreseeable. Equally foreseeable is the possibility of injury to an intended beneficiary. In some ways, the beneficiary’s interests loom greater than those of the client. After the latter’s death, a failure in his testamentary scheme works no practical effect except to deprive his intended beneficiaries of the intended bequests.” Id. at 164-165.
Sfc sjc Sft * !}! *
“The duty thus recognized in Lucas stems from the attorney’s undertaking to perform legal services for the client but reaches out to protect the intended beneficiary. We impose this duty because of the relationship between the attorney and the intended beneficiary; public policy requires that the attorney exercise his position of trust and superior knowledge responsibly so as not to affect adversely persons whose rights and interests are certain and foreseeable.” Id. at 165.
* s(« * * * *
“In rendering legal services, an attorney must perform in such manner as ‘lawyers of ordinary skill and capacity commonly possess and exercise’ (Estate of Kruger (1900) 130 Cal. 621, 626, 63 P. 31, 33). A reasonably prudent attorney should appreciate the consequences of a post-testamentary marriage, advise the testator of such consequences, and use good judgment to avoid them if the testator so desires. In the present case, defendant allegedly knew that the testatrix wished to avoid such consequences. Despite his knowledge that the testatrix intended to marry following the execution of the will, the attorney drafted a will which arguably lacked adequate provision against such consequences (cf. Estate of Ryan (1923) 191 Cal. 307, 216 P. 366). Furthermore, the complaint alleges that the defendant negligently failed to advise the testatrix that she should change her will after her marriage and continued this negligent omission until the time of her death. The complaint states a sufficient cause of action in tort under the doctrine of Lucas; . . . ” Ibid.

Cf. A. R. Moyer, Inc. v. Graham, 285 So.2d 397, 401 (Fla.1973); Mullray v. Aire-Lok Co., 216 So.2d 801 (Fla.App.3d 1969).

Based upon the reasoning of the foregoing authorities we hold that the complaint stated a cause of action. We also hold that whether the action is barred by a statute of limitations is a factual question not to be decided summarily. Schetter v. Jordan, 294 So.2d 130 (Fla.App. 4th 1974). It was therefore improper for the trial court to enter judgment on the pleadings in appellees’ favor.

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED and REMANDED.

MAGER and ALDERMAN, JJ., concur.

ON PETITIONS FOR REHEARING

DOWNEY, Judge.

While petitions for rehearing were pending, counsel notified this Court that the parties had effected a settlement of the case and they filed a joint motion of dismissal. It was suggested by counsel that, since the parties had settled the case, our opinion published July 16, 1976, should be withdrawn. We decline to withdraw said opinion, and we deny the petitions for rehearing.

MAGER, C. J., and ALDERMAN, J., concur.

      . “Marriage after execution of will. — When a person marries after making a will and the spouse survives the testator, such surviving spouse shall receive a share in the estate of the testator equal in value to that which such surviving spouse would have received if the testator had died intestate, unless provision has been made for such spouse by marriage contract or unless such spouse is provided for in the will, or unless the will discloses an intention not to make such provision. The share of the estate which is assigned to such pretermit-ted spouse shall be raised in accordance with the order of appropriation of assets set forth in this law.” § 731.10 F.S.1973.


author: PER CURIAM.

text:
    Eva KLEPPER, Appellant, v. J. C. PENNEY COMPANY, INC. and Bonnie Caudell, Appellees.
    No. 75-1395.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Rehearing Denied Jan. 27, 1977.

      Harry G. Carratt, Morgan, Carratt & O’Connor, Fort Lauderdale, for appellant.
    James M. Norman, Druck, Grimmett, Norman, Weaver & Scherer, Fort Lauder-dale, for appellees.
   PER CURIAM.

This appeal is from a final judgment entered in favor of defendants after the jury found for them in a suit brought by plaintiff for false arrest, false imprisonment, malicious prosecution and assault and battery.

Plaintiff would have us reverse because, inter alia, the trial judge, during his reading of a series of instructions to the jury, added a clause to one of them and thereby deviated from the form adopted (albeit over plaintiff’s objection) by the judge at an earlier charge conference. Plaintiff complains now of fatal error in the instruction as given, but counsel neither made objection at the time it was given nor brought the error contained in the added clause to the attention of the trial judge so that he could rectify it. Furthermore, our examination of the entire record locates no fundamental error and the judgment of the lower court is necessarily affirmed.

We believe it will be helpful to remind the trial Bar of its responsibility to client and Bench alike to be attentive and alert during the jury charge. At the end of a trial it may happen that a judge who communicates with the jury and reads to them a long series of instructions would misread one, have an inadvertent slip of the tongue, or in a last moment reflection make some change in the previously adopted form of instruction. At such a time trial counsel has a special duty to his client and to the trial judge to read the instructions as the judge recites them and to aid in the prevention of the kind of error which occurred in the case sub judice by objecting to or pointing out the error.

We have considered the other points raised by plaintiff and find no reversible error.

AFFIRMED.

DOWNEY and ALDERMAN, JJ., and DANAHY, PAUL W., Jr., Associate Judge, concur.


author: ALDERMAN, Judge. PER CURIAM. ■MAGER, Judge

text:
    Dane Craig GARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 75-2028.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1976.
    Rehearing Denied Dec. 24, 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 Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

In this case we must again consider the failure of a trial court to give a requested instruction on attempt. Appellant was charged and convicted on one count of receiving stolen property and four counts of aggravated assault. The issue is whether the refusal to instruct the jury on attempts, pursuant to Fla.R.Crim.P. 3.510, resulted in reversible error.

At one time the law on this issue appeared to be clear. The landmark case of Brown v. State, 206 So.2d 377 (Fla.1968) held that if the trial judge determined an attempt to commit a crime to constitute an offense under Florida law, then he must instruct the jury on the subject of such attempt, and the jury may find guilt accordingly. According to Brown, supra, it was immaterial whether the accusatory pleading specifically charged an attempt. The court further held that the charge must be given, even though, in the opinion of the trial judge, the proofs established guilt of the crime charged rather than a mere attempt to commit it.

Subsequently, this court in a series of cases strictly applied the rule as announced in Brown v. State, supra. In Lewis v. State, 269 So.2d 692 (Fla. 4th DCA 1972), we held that an attempt to receive stolen property was a lesser included offense of receiving stolen property and failure to give a requested instruction on attempt was reversible error.

In Ward v. State, 287 So.2d 138 (Fla. 4th DCA 1973), we held the trial court’s refusal to give a requested charge on attempt to break and enter a dwelling with intent to commit a misdemeanor to be reversible error. The harmless error statute was found not to be applicable where the jury, if it had been properly instructed on attempts, could have found appellant guilty of a misdemeanor. Without such an instruction the jury was not afforded such an opportunity.

Next, in McClam v. State, 288 So.2d 285 (Fla. 4th DCA 1974), we found reversible error in the trial court’s failure to give appellant’s requested instruction on the lesser included offense of attempt to possess marijuana. Appellant was convicted of a felony. The lesser offense of attempt to possess marijuana would have been a misdemeanor.

Also in Bracy v. State, 299 So.2d 126 (Fla. 4th DCA 1974), we held that where accused was convicted of robbery and first degree murder, refusal of requested instructions on attempted robbery, attempted murder and assault with intent to commit murder was reversible error. We specifically held that such instructions must be given even though it was the opinion of the trial court that the proofs clearly established the crimes charged.

From the line of cases discussed above one could reasonably conclude that the giving of a requested instruction on attempt, pursuant to Fla.R.Crim.P. 3.510, was mandatory. However, in the case of Spigner v. State, 304 So.2d 496 (Fla. 1st DCA 1974), Justice Drew, sitting as an Associate Judge of the District Court of Appeal, First District, applied the rationale of the Supreme Court in DeLaine v. State, 262 So.2d 655 (Fla.1972) to bring into play the harmless error statute. In Spigner v. State, supra, the defendant was charged with and convicted of murder in the second degree. The trial judge charged the jury on murder in the second degree, murder in the third degree and manslaughter; but refused to instruct on attempt and assault with intent to commit the crime charged. DeLaine v. State, supra, dealt with the trial court’s failure to give a requested instruction relating to assault and battery as a lesser included offense of rape. There the court found the failure to give the instruction to be error, but not prejudicial where the jury had been instructed on the lesser included crime of assault with intent to commit rape. The court reasoned that if the jury did not convict of assault with intent to rape, the same jury would not convict of assault and battery, which is two steps removed from the crimes of which defendants were convicted. Applying the same principle in Spigner v. State, the court there held that conviction of the offense of murder in the second degree brought the failure of the trial judge to charge an attempt squarely within the scope of the harmless error statute and the holding of the Supreme Court in DeLaine v. State.

The Supreme Court has also recognized that failure to instruct on attempts pursuant to Fla.R.Crim.P. 3.510 may be harmless error. In Dobbert v. State, 328 So.2d 433 (Fla.1976), a capital case, the jury was instructed on murder in the first degree, murder in the second degree, murder in the third degree, manslaughter and justifiable and excusable homicide. The defendant was found guilty of murder in the first degree and sentenced to death. Relying heavily on DeLaine v. State, supra, and Spigner v. State, supra, the court held that the trial judge did not commit reversible error in failing to instruct on attempt.

Most recently this court in State v. Diggs, 4th DCA, 336 So.2d 446, 1976, relying on Dobbert v. State, supra, held that it was not reversible error when the trial court failed to give defendants’ requested instruction on attempted robbery. The defendants were charged and convicted of robbery, the jury having been instructed on robbery, assault with intent to commit robbery, grand larceny, assault with intent to commit grand larceny, petit larceny and assault with intent to commit petit larceny.

The pattern which emerges from these cases is that it is error not to give a properly requested instruction on attempt. This is true even where the proofs establish guilt of the crime charged rather than a mere attempt to commit it. However, if the jury is given the opportunity of convicting the defendant of a lesser included offense which is greater than or at least equal in punishment to the attempt, failure to instruct on attempt may be harmless error.

A case which does not fit into this pattern is Lomax v. State, 322 So.2d 650 (Fla.2d DCA 1975). That case involved in part the trial court’s refusal to give a requested instruction on attempted robbery. The Second District held that failure to give an instruction of an immediately lesser included offense may be harmless if there is overwhelming evidence that the appellant committed the greater crime and the jury could not reasonably have found that only the lesser crime was committed. Specifically, in reference to the requested instruction on attempt, the court said:

“Since the evidence of a completed robbery was so great, there was no rational basis for the jury to have concluded that attempted robbery was the only crime committed.” (At 652.)

At first blush the rationale of the court in Lomax v. State is appealing. However, upon consideration it is apparent that the effect of Lomax would be to make the failure to instruct on attempts harmless error in every case. This is so because any verdict of guilt in order to be affirmed would have to have been proved beyond a reasonable doubt. We do not think that Lomax v. State can be squared with the decisions of this court cited above and the holding of the Supreme Court in Dobbert v. State, supra. It further appears that the Second District in the recent case of Lightfoot v. State, 331 So.2d 388 (Fla.2d DCA 1976), has receded from its holding in Lo-max.

Reaching now the merits of the present case, we hold that the trial court’s refusal to instruct the jury on attempts pursuant to Fla.R.Crim.P. 3.510 resulted in reversible error. Receiving stolen property and aggravated assault are both third degree felonies. An attempt to commit either of the offenses is a first degree misdemean- or. If the jury had been properly instructed on attempts, it could have found appellant guilty of first degree misdemeanors. Without such instruction appellant was deprived of his legal right to perhaps have been convicted of first degree misdemeanors, rather than third degree felonies. This was not harmless error.

REVERSED AND REMANDED for a new trial.

MAGER, C. J., and DOWNEY, J., concur.

PETITION FOR REHEARING

PER CURIAM.

Appellee, in its Petition for Rehearing, contends that failure of the trial court to instruct on attempted aggravated assault was harmless error because the jury was instructed on the lesser included offense of bare assault. Bare assault is a second degree misdemeanor. It is not a “lesser included offense which is greater than or at least equal in punishment to the attempt.” Attempted aggravated assault is a first degree misdemeanor. The failure to instruct on attempts deprived appellant of his right to perhaps have been convicted of first degree misdemeanors rather than third degree felonies. The fact that the jury had the opportunity to convict him of second degree misdemeanors does not make the error harmless.

Petition for Rehearing DENIED.

DOWNEY and ALDERMAN, JJ., concur.

MAGER, C. J., dissenting, with opinion.

■MAGER, Judge

(dissenting):

In light of appellee’s petition for rehearing calling this court’s attention to the fact that the jury was instructed on the lesser included offense of bare assault, it is my opinion that the failure to instruct on at-, tempt was harmless error in light of the holding in Dobbert v. State, 328 So.2d 433 (Fla.1976) and State v. Diggs, 336 So.2d 446 (Fla. 4th DCA 1976). Accordingly, rehearing should be granted and the convictions on aggravated assault should be reinstated.


author: ALDERMAN, Judge.

text:
    INSURANCE COMPANY OF NORTH AMERICA and Ford Motor Company, a Foreign Corporation, Appellants, v. Gena M. KING et al., Appellees. FORT LAUDERDALE LINCOLN-MERCURY, INC., and Universal Underwriters Insurance Company, Appellants, v. Gena M. KING et al., Appellees. FORT LAUDERDALE LINCOLN-MERCURY, INC., and Universal Underwriters Insurance Company, Appellants, v. Gena M. KING et al., Appellees.
    Nos. 75-1393, 75-1444 and 75-2076.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1976.
    W. M. O’Bryan and Frank E. Maloney, Jr., Fleming, O’Bryan & Fleming, Ft. Laud-erdale, and Edward T. O’Donell, Newark, N. J., for Ford Motor Co. and Ins. Co. of North America.
    Edna L. Caruso, Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for Fort Lauderdale Lincoln-Mercury, Inc. and Universal Underwriters.
    Robert Orseck, Podhurst, Orseck & Parks, and Preddy, Haddad, Kutner, Hardy & Josephs, Miami, for appellees Gena M. King and Theodore King.
   ALDERMAN, Judge.

In this case two appeals from final judgment and one interlocutory appeal, arising out of the same incident, have been consolidated.

The plenary appeals, 75-1393 and 75-1444, are from final judgments against Ford Motor,Company and Fort Lauderdale Lincoln-Mercury, Inc., and their respective insurance carriers. We have considered the various points raised by these appeals and find no reversible error. In our opinion there was substantial competent evidence to support the judgments. The other points raised by appellants have been found to be without merit.

We next consider the issue raised by the interlocutory appeal, Case No. 75-2076. Fort Lauderdale Lincoln-Mercury, Inc. filed a cross-claim for indemnification. After entry of judgment in the main suit, pursuant to stipulation, judgment was also entered against Ford Motor Company in favor of Fort Lauderdale Lincoln-Mercury, Inc. for $250,000, the amount of the plaintiffs’ judgments. However the trial court denied the request of Fort Lauderdale Lincoln-Mercury, Inc. for indemnification of its court costs and attorney’s fees.

It has been established in Florida that generally an indemnitee is entitled to recover, as part of his damages, reasonable attorney’s fees, and reasonable and proper legal costs and expenses, which he is compelled to pay as the result of suits by or against him in reference to the matter against which he is indemnified. Fontainebleau Hotel Corp. v. Postol, 142 So.2d 299 (Fla. 3d DCA 1962). However, in the present case Ford Motor Company contends that it would be improper to allow the attorney’s fees and costs which Fort Laud-erdale Lincoln-Mercury, Inc. seeks because the plaintiffs alternatively alleged active negligence against Fort Lauderdale Lincoln-Mercury. Assuming that the initial complaint against Fort Lauderdale Lincoln-Mercury, Inc. was sufficient to allege a cause of action for active negligence, the record is clear that during the trial plaintiffs abandoned any claim that Fort Laud-erdale Lincoln-Mercury, Inc. was actively negligent. The judgments against Fort Lauderdale Lincoln-Mercury, Inc. could only have been entered upon the basis of its passive negligence.

Ford Motor Company relies on the case of Florida Power & Light Co. v. Nat Harrison Associates, Inc., 223 So.2d 336 (Fla. 3d DCA 1969), to support its contention that an allegation of active negligence is sufficient to bar recovery of expenses incurred by an indemnitee in defending against the claim for which he seeks indemnification. Ford’s reliance on Florida Power & Light Co. v. Nat Harrison Associates, Inc. is misplaced. The case does not stand for the rule of law for which it is cited.

Although we have found no Florida case precisely on this point, we believe that previously established legal principles make clear the proper rule in cases such as this. Fontainebleau Hotel Corp. v. Postol, supra; din’s Rent-A-Car Systems, Inc. v. Royal Continental Hotels, Inc., 187 So.2d 349 (Fla. 4th DCA 1966); Thomas Awning and Tent Co. v. Toby’s Twelfth Cafeteria, Inc., 204 So.2d 756 (Fla. 3d DCA 1967); Morse Auto Rental, Inc. v. Dunes Enterprises, Inc., 198 So.2d 652 (Fla. 3d DCA 1967); Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla. 2d DCA 1969). We conclude that it is an indemnitee’s actual wrongdoing or lack of it, rather than allegations of wrongdoing, which determine the indemnitee’s rights. A plaintiff should not be able to arbitrarily deprive a defendant of his right to indemnification from a third party by alleging that he was actively negligent when in fact that defendant is found not to have been actively negligent.

In the present case there was no evidence to establish that Fort Lauderdale Lincoln-Mercury, Inc. was actively negligent. The plaintiffs abandoned any claim against Fort Lauderdale Lincoln-Mercury, Inc. based upon active negligence. The judgments that were entered against Fort Lauderdale Lincoln-Mercury, Inc., were, fact, based upon its passive negligence. Its right to be indemnified by Ford Motor Company against plaintiffs’ judgment is not questioned. In these circumstances, we hold that Fort Lauderdale Lincoln-Mercury, Inc., as indemnitee, is entitled to recover from Ford Motor Company, as part of its damages, reasonable attorney’s fees, and reasonable and proper legal costs and expenses, which it was compelled to pay as the result of defending against the judgments for which it is being indemnified. in

AFFIRMED as to Case Nos. 75-1393 and 75-1444. REVERSED as to Case No. 75-2076, and REMANDED for further proceedings consistent with this opinion.

DOWNEY, J., and DANAHY, PAUL W., Jr., Associate Judge, concur.


author: PER CURIAM. TROWBRIDGE, C. PFEIFFER, Associate Judge

text:
    Jennie Ann LASTITION, Appellant, v. Walter LASTITION, Appellee.
    No. 75-881.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1976.
    Herbert L. Gildan and Thomas J. Yeager of Nason, Gildan & Yeager, West Palm Beach, for appellant.
    John T. Christiansen of Sales & Chris-tiansen, Palm Beach, for appellee.
   PER CURIAM.

Upon review and consideration of the briefs, record on appeal and oral argument we are of the opinion that the final judgment of dissolution should be affirmed in all respects except as to the determination that the wife’s transfer of her interest in the jointly held Travelodge property constituted a gift.

A review of the record reflects, among other things, that the property in question was originally acquired by the husband in 1963 with title to the property taken in joint names. The property was conveyed to a third party in 1971 with the conveyance accomplished by the wife signing a contract for the purchase and sale and signing a deed of conveyance to the purchaser. The record clearly reflects that at the time the wife signed the check she was bedridden and could not even endorse the check herself; her husband had to put the pencil in her hand when she signed the check. Moreover, the husband admitted that there was no conversation whatsoever concerning the purpose of this endorsement or the fact that the wife might be giving the husband half of the cash.

There was a mortgage on the subject property in the joint names of the parties. When the property was sold the husband took back the purchase money mortgage of $1,000,000 in his name alone.. The cash realized at the sale ($170,226.98) was reflected by a check made payable jointly to the husband and wife; the wife subsequently endorsed the check to the husband.

It is our opinion from a review of the totality of thé circumstances surrounding this transaction that the transfer in question did not constitute a gift by the wife to the husband of her interest in the jointly held property. Cf. Lerner v. Lerner, 113 So.2d 212 (Fla.2d DCA 1959). In this regard the learned trial judge misconceived the legal effect of the evidence.

Accordingly, the wife’s claim for a one-half interest in the subject property in question is recognized and the cause is remanded to the trial court for such other proceedings as may be consistent with this opinion.

MAGER, C. J., and CROSS, J., concur.

TROWBRIDGE, C. PFEIFFER, Associate Judge, dissents.

TROWBRIDGE, C. PFEIFFER, Associate Judge

(dissenting in part).

I would affirm the judgment below in its entirety.

All of the claims of the wife were disputed and the trial judge’s decision was primarily a factual one. He reserved jurisdiction on all matters except the dissolution and his order recognizes that the wife’s condition may require a change in residency and in alimony.

The wife wants us only to look to the last transaction instead of to the entire financial history of their dealings with each other. Judge Beranek’s opinion makes it clear that the wife received and divested herself of property over the years without ever having any real interest therein. To apply a rule of law to only one transaction overlooks the factual basis that led to that transaction.

Ball v. Ball, 335 So.2d 5 (Sup.Ct.1976) provides that a special equity is created by an unrebutted showing that all of the consideration for property held as tenants by the entirety was supplied by one spouse from a source clearly unconnected with the marital relationship and such property should be awarded to that spouse in the absence of contradictory evidence that a gift was intended. The old presumption of gift rules just don’t apply to this case. The judge below found that the wife did not contribute to the husband’s accumulation of wealth.

Accordingly, I would affirm the entire judgment.


text:
    CIVIL SERVICE BOARD OF the CITY OF MILTON, Appellant, v. The CITY COUNCIL OF the CITY OF MILTON, a Municipal Corporation, and Russell Harber as City Manager of the City of Milton, Appellees.
    No. BB-220.
    District Court of Appeal of Florida, First District.
    Nov. 19, 1976.
    Thomas G. Morton, Jr., of Parker & Morton, Milton, for appellant.
    T. Sol Johnson, of Johnson, Johnson & Green, Milton, and O. E. Adams, Sr., Pensacola, for appellees.
   PER CURIAM.

Affirmed. Slaughter v. City of Jacksonville, Fla.App., 338 So.2d 902, opinion filed November 2, 1976.

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


author: HAVERFIELD, Judge.

text:
    Walter L. ARBOGAST, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-621 and 75-1682.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Rehearing Denied Jan. 20, 1977.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, Thomas N. Balikes, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Defendant, Walter L. Arbogast, was tried by a jury in June 1971 and found guilty of possession of a stolen motor vehicle and resisting an officer without violence to his person. On direct appeal to this court, his conviction was affirmed. Arbogast v. State, 266 So.2d 161 (Fla.3d DCA 1972). On August 25,1975 defendant, pursuant to Fla. R.Crim.P. 3.850, filed a motion to vacate judgment and sentence on the ground that during his cross-examination his right against self-incrimination was violated when the prosecutor for impeachment purposes elicited testimony from him about his failure to give exculpatory statements to the police while in custody, and he was denied effective assistance of court appointed counsel when counsel failed to object on constitutional grounds. The trial judge denied the motion and defendant perfected this appeal.

To support his contention of violation of his right against self-incrimination, defendant cites U. S. Supreme Court rulings in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and more recently Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) holding that the use for impeachment purposes of a defendant’s silence at the time of arrest and after receiving Miranda warnings violates the due process clause of the Fourteenth Amendment. These cases are of no aid and comfort to the defendant because these decisions were rendered several years after he was tried and convicted and we will not give this new ruling retrospective application. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).

The question then is whether or not under previous case law defendant’s right against self-incrimination was violated. We answer this query in the negative. Previous to the holding in Doyle, supra the rule of law in this jurisdiction has been that where the defendant takes the stand, he places himself in the position of any other witness and where there is an inconsistency between silence and testimony, the prosecuting attorney for impeachment purposes has the right to comment as defendant’s failure to deny or explain incriminating facts to the police. See Reilly v. State, 212 So.2d 796 (Fla.3d DCA 1968); Lebowitz v. State, 313 So.2d 473 (Fla.3d DCA 1975); Williams v. State, 320 So.2d 434 (Fla.3d DCA 1975).

Defendant has failed to demonstrate fundamental error and further has not shown that his trial was a mockery or a farce. See Quesada v. State, 321 So.2d 442 (Fla.3d DCA 1975). Accordingly, we affirm the denial of his motion for post-judgment relief.

Defendant also filed a motion to vacate sentence on the ground that the trial court incorrectly sentenced him to serve one year in the state penitentiary on his conviction for resisting arrest without violence. This motion was denied. We find error in the sentence as resisting arrest without violence is a misdemeanor punishable by imprisonment not exceeding one year in the county jail. Sections 843.02, 775.082(3)(a), Florida Statutes (1971).

Accordingly, we remand the case to the trial court to amend the sentence as to resisting arrest without violence to read that defendant serve one year in the county jail, sentence to begin immediately at the expiration of the sentence imposed for possession of a stolen motor vehicle.

It is so ordered.


text:
    John GORMAN, Appellant, v. UNIVERSITY OF MIAMI, Appellee.
    No. 75-1853.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.
    Rehearing Denied Jan. 12, 1977.

      Stephen Cahen, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Charles C. Kline, Miami, for appel-lee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment in an action where the appellant, John Gorman, was the plaintiff claiming damages for the wrongful termination of his employment with the University of Miami.

We hold that the summary judgment was improperly entered because the pleadings, depositions, answers to interrogatories, affidavits and other evidentiary matters filed in the cause show that there is a genuine issue of material fact. See Central Investments, Inc. v. Old Southern Golf Utility Corp., 197 So.2d 17 (Fla. 4th DCA 1967); Laichak v. Bacon, 223 So.2d 752 (Fla. 3d DCA 1969), and Stringfellow v. State Farm Fire & Casualty Co., 295 So. 2d 686 (Fla. 2d DCA 1974).

Dr. Gorman contends that he had earned tenure under his contract of employment which included the provisions of the faulty manual of the University. On the other hand, the defendants contend that the terms of the plaintiff’s employment are to be determined from the annual Faculty Appointments, which gave a later date for the plaintiff’s obtaining tenure than that which would be computed from the faculty manual. It is undisputed that the later date was an error occasioned by the action of the University. There is conflicting evidence concerning the plaintiff’s actions upon learning that he had been mistakenly assigned a later date for the attainment of tenure.

Upon a motion for summary judgment, the court is not to weigh evidence, but simply to determine whether, after giving effect to the undisputed facts, the appellant has no cause of action. See Benson v. Atwood, 177 So.2d 380 (Fla. 1st DCA 1965). We, therefore, hold that the court was in error in entering a summary final judgment on count one of plaintiff’s complaint against the University.

We have reviewed the record in the light of the above stated principles applicable to summary judgment and find that the court correctly entered summary final judgment on count two of the complaint, which claims the breach of an oral contract by Henry King Stanford, President of the University of Miami. There is uncontroverted proof that plaintiff’s right to tenure and, therefore, continued employment were fixed by the terms of his employment and the alleged oral promise of the President of the University to take specified actions upon plaintiff’s appeal to him do not constitute an individual contract. Cf. the discussion in Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957), and Goff v. Indian Lake Estates, Inc., 178 So.2d 910, 912 (Fla. 2d DCA 1965). In addition, it appears that at all times defendant Stanford was acting as an officer of the University and not in his individual capacity. Cf. Blount v. Tomlinson, 57 Fla. 35, 48 So. 751 (1909).

In addition, we have considered plaintiff’s point directed to the granting of defendant’s objection to certain interrogatories and find that no error has been demonstrated on this point, especially in light of our holding upon count two of the complaint.

Finally, because of the views expressed herein, we find that the trial judge’s order striking the plaintiff’s prayer for the remedy of reinstatement should be reversed.

Affirmed in part, reversed in part and remanded.


author: COBB, WARREN, Associate Judge.

text:
    Frank L. CLEMENTS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1761.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.
    Richard L. Jorandby, Public Defender, Daniel W. O’Connell, Asst. Public Defender, and Jeffrey Cohen, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons and Richard P. Zar-etsky, Asst. Attys. Gen., West Palm Beach, for appellee.
   COBB, WARREN, Associate Judge.

In this case the appellant filed a motion to vacate, alleging the denial of effective assistance of counsel. That motion was denied by the trial court without evidentiary hearing, the order of denial reciting that the court had reviewed the files and records in the case.

The motion contained the following allegations:

“The plaintiff was the Defendant at trial court, he was arrested in Dade County December 14, 1971 and was charged via Information with a single offense of robbery in Broward County Juanuar (sic) 1972 a independant offense from Dade County.
“On January 27, 1972 the same said went before arraignment in this county, the Public Defenders office was appointed to represent the plaintiff, however, counsel never talked to plaintiff. The plaintiff was immediately sent back to Dade County.
“Then on March 15, 1972 the plaintiff was again forwarded to Broward, this time for actual trial before Judge Futch. At the jail on the same night of the 15th, counsel informed his client of trial the following morning, March 16, 1972. Due to counsel and plaintiffs lack of communication, plaintiff informed counsel of several witness (sic) who certainly could have vindicated him of the offense charged. Counsel sought to contact these witnesses with plaintiff by phone. This was without any avail, upon the mourning (sic) of the 16th, counsel informed the court of this newly discovered evidence and moved accordingly for a continuance to get these witness (sic) from Dade to Broward County, the court denied the same. Plaintiff thus asked the court per se for a continuance and was also denied. Trial commenced subsequently, but not before counsel informed the Honorable Court that he [counsel] due to this information he was supplied with by plaintiff made him inadequate to present his case competently for the plaintiff, counsel also admitted he was unable to consult with plaintiff due to his office being in Bro-ward County and his client being in Dade, plus the fact counsel was out of his office some period of time vacationing. Counsel candidly stated he was not prepared. See: Transcript Pages 1-5.”

The problem we perceive is the inadequacy of the post-trial motion in asserting this conclusion that the “several witness(es) . . : certainly could have vindicated (defendant) of the offense charged.” There was no proffer of the prospective testimony by affidavit nor even any factual allegation as to what this exculpatory testimony might be. There is nothing in the motion to show admissible evidence would be forthcoming from the witnesses. Hence, there is no showing before this Court of a causal relationship between the failure to obtain the testimony at trial of these witnesses (the alleged incompetence of counsel) and the defendant’s conviction.

The trial court should not have to speculate as to the nature of this testimony when it is asked to grant an evidentiary hearing.

Therefore, we see no reason of record to reject the denial by the trial court of an evidentiary hearing based on a motion defective in form. See State v. Reynolds, 238 So.2d 598 (Fla.1970) and Hons v. State, 285 So.2d 66 (Fla.2d DCA 1973).

AFFIRMED.

CROSS, J., and SMITH, ROBERT P„ Jr., Associate Judge, concur.


text:
    Frankie L. CLEMENTS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1042.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.

      Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon due consideration of the briefs of the parties and the record herein we are of the opinion that appellant’s motion to vacate pursuant to Rule 3.850 contains legally sufficient allegations which, if true, would entitle petitioner to relief. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Furthermore, inasmuch as the record does not conclusively demonstrate that such allegations are not true an evidentiary hearing is required. McClendon v. Wainwright, 280 So.2d 703 (Fla. 4th DCA 1973).

REVERSED AND REMANDED to the trial court for further proceedings.

MAGER, Ci J., and CROSS and ALDERMAN, JJ., concur.


author: PER CURIAM. DOWNEY, Judge

text:
    Douglas Steven McCLURE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1650.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.
    Richard L. Jorandby, Public Defender, and Arthur W. Gundling, 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.

Affirmed.

MAGER, C. J., and CROSS, J., concur.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge

(specially concurring).

I concur in the decision to affirm the judgment appealed from but feel compelled to once again point out that the State is frequently inept in its attempts to prove the value of property in prosecutions involving grand larceny. This essential element of that crime would not appear to be difficult to prove. Yet, in a large percentage of appeals from convictions involving grand larceny the failure to adequately prove that the property involved has a value of $100 or more is one of the primary points on appeal.

The proof of value in this case is woefully weak and barely meets minimum standards to sustain the conviction. Therefore, it would seem appropriate to reiterate the admonition on this subject contained in Adams v. State, 242 So.2d 723 (Fla. 1st DCA 1971):

“In this regard, prosecutors might be well advised to consider using persons having knowledge of the value of used personal property in the market place as value witnesses to eliminate a defect in the evidence found by our courts over the years in this class of case.”


author: SMITH, ROBERT P., Jr., Associate Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Annie Ruth BUTLER, Appellee.
    No. 75-1911.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.
    Richard F. Conrad and Thomas G. Kane, Driscoll, Conrad, Langston & Layton, Orlando, for appellant.
    Kenneth R. Cate and Roy Morgan, Billings, Frederick, Wooten & Honeywell, Orlando, for appellee.
   SMITH, ROBERT P., Jr., Associate Judge.

Appellant State Farm insured a motor vehicle which was struck from the rear by a negligently driven utility vehicle, used in the owner’s business of transporting passengers for hire. Appellee Butler, one such passenger, was injured in the collision. Personal injury protection benefits were unavailable to her from the insurer of the owner of the utility vehicle she occupied, because owners of vehicles of that class are not required by § 627.732(1), F.S.1975, to be so insured. Appellee Butler was not herself the owner of a motor vehicle for which security was required by the no-fault law, nor was she entitled to personal injury benefits from the insurer of the owner of some other motor vehicle. Sec. 627.736(4)(d) 1, 3, 4 a, b, F.S.1975. State Farm appeals-from a circuit court judgment awarding Butler personal injury protection benefits payable by State Farm under its policy insuring the owner of the rear-ended motor vehicle.

The issue is whether appellee Butler, passenger in a motor vehicle in the generic sense of that term, was nevertheless “not an occupant of a motor vehicle” within the meaning of § 627.736(4)(d), which provides in relevant part:

“(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
* * * * * *
“4. Accidental bodily injury sustained in this state by any . . . person [other than those to whom personal injury protection benefits are payable under subparagraphs 1, 2 and 3] while not an occupant of a motor vehicle or motorcycle, if the injury is caused by physical contact with such motor vehicle

It has been held that § 627.736(4)(d) 1 permits a passenger in a bus or other exempted motor vehicle who owns an insured motor vehicle to recover from his own insurer if injured by physical contact of the exempted vehicle with an automobile for which insurance is required, Negron v. Travelers Ins. Co., 282 So.2d 28 (Fla.3d DCA 1973), but not if that exempted vehicle collided with another exempted motor vehicle. Camacho v. Allstate Ins. Co., 310 So.2d 330 (Fla.3d DCA 1975). It has also been held, under subparagraph (d)4, that a passenger in a bus or other exempted motor vehicle, injured as a result of collision with a vehicle for which security is required, may recover from the other’s insurer unless the passenger himself owns a motor vehicle for which security is required or is entitled to personal injury protection benefits from the owner of yet another such vehicle. Gateway Ins. Co. v. Butler, 293 So.2d 738 (Fla.3d DCA 1974).

The major premise of these decisions is that such a passenger is “not an occupant of a motor vehicle,” within the meaning of subparagraph (d)4, notwithstanding that the bus or taxi or commercial vehicle looks for all the world like one of the progeny of Henry Ford, because it is not a “motor vehicle” as that term is defined and employed in the no-fault act.

It is here urged by State Farm, on the strength of legislative history and scholarly opinion, that the legislature intended to leave appellee Butler and other public conveyance passengers who own no automobiles to their common law remedies for negligence, just as the legislature intended for motorcycle operators and passengers. See Brandal v. State Farm Mut. Auto Ins. Co., 327 So.2d 867 (Fla. 1st DCA 1976). Thus it is urged that the legislature’s concern in the quoted provisions of subpara-graph (d)4 was for pedestrians and marginal pedestrians alighting from or boarding a motor vehicle — i. e., a motor vehicle in the generic sense. To accept State Farm’s tendered interpretation of the statute, we should be required to find that the legislature, after being at pains to give the term “motor vehicle” a restricted definition for purposes of the no-fault act, § 627.732(1), abruptly used that term in its generic sense in subparagraph (d)4, when securing personal injury protection benefits for an injured person “not an occupant of a motor vehicle.” If the term is there used in its generic rather than its restricted sense, passengers in a public livery conveyance or other exempted motor vehicle, injured by its collision with an insured vehicle, would receive personal injury protection benefits only from insurers of their own automobiles and, if they owned none, they would be relegated to any common law actions for negligence otherwise available to them. Appellee Butler’s common law remedy would presumably be against the owner and negligent driver of the vehicle in which she received passage for hire.

The consequence of the trial court’s judgment awarding Butler personal injury protection benefits from the insurer of the other, faultlessly driven automobile, shifts the burden of Butler’s insurance, together with the burden of premiums for that insurance, largely to individual owners of private automobiles who are subjected to the statistical risk of being rear-ended by a bus carrying 60 passengers who have the good sense not to own automobiles. Considering that result, the trial court in this case stated:

“ . . . the legislators probably thought they were only going as far as extending coverage to pedestrians statutorily; but through hasty enactment of definitions have unwittingly or if not hasty, have extended coverage even further at what will now mean additional premium to cover the additional risk, and another step further away from the indemnity concept.”

Again Murphy’s Law asserts its dominance of human affairs. Despite the unseemly result of giving the convoluted statute literal effect, we must agree with the trial court that subparagraph (d)4 of the no-fault law uniformly employs the term “motor vehicle” as it is defined in § 627.-732(1), that appellee Butler was “not an occupant of the motor vehicle” and consequently that she is entitled to personal injury protection benefits from State Farm, who insured the owner of the vehicle rear-ended by Butler’s hired conveyance. To hold otherwise would require a rewriting of subparagraph (d)4, which we are not at liberty to do, and speculation why, if the legislature there intended “motor vehicle” to be understood in its generic sense, it redundantly spoke of “a motor vehicle or motorcycle.” If the no-fault law as we construe it is thought to impose an undue burden on premium-paying automobile owners in this state, that is a matter for legislative correction.

We have considered appellee Butler’s cross-appeal from the order denying assessment of statutory penalties and, for failure of her proof of a sufficient application for benefits, we find the cross-appeal without merit.

AFFIRMED.

ALDERMAN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . Subparagraph (d)l in relevant part directs the insurer of a motor vehicle to pay personal injury protection benefits to its owner who is insured as a result of physical contact with a motor vehicle “while not an occupant of a motor vehicle.”

      . Section 627.732(1) defines a “motor vehicle” as “a sedan, station wagon, or jeep-type vehicle not used as a public livery conveyance for passengers and includes any other four-wheel motor vehicle used as a utility automobile and a pickup or panel truck which is not used primarily in the occupation, profession, or business of the insured.”


text:
    Terry Lee REDDEN, Petitioner, v. Louis L. WAINWRIGHT, Secretary, Offender Rehabilitation Department, Respondent.
    No. 76-43.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.

      Richard L. Jorandby, Public Defender, James R. Merola, Sp. Asst. Public Defender, and Joan Bickerstaff, Legal Intern, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zeretsky, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

In this habeas corpus proceeding petitioner was allowed delayed appellate review as authorized by Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967). Two points have been presented by petitioner.

In Case No. 74-835, petitioner in a two count information was charged with possession and sale of cocaine on March 12, 1974. A trial was held and the jury returned a verdict of guilty as charged. Petitioner was adjudged guilty and sentenced to a term of fifteen years with credit for time served. The sole issue raised by this conviction is whether the trial court erred in limiting defendant’s cross-examination of the state witness who allegedly purchased the cocaine from petitioner and who, between the date of the alleged sale and its prosecution, was himself charged with a crime of robbery which was pending at the time he was called by the State to testify against petitioner. The facts of this case are almost exactly the same as those in Lee v. State, 318 So.2d 431 (Fla. 4th DCA 1975). In fact, the informer in the present case and the informer in Lee v. State were one and the same person. The facts of the present case cannot be materially distinguished from Lee v. State, and for the reasons set out therein we reverse and remand for a new trial in Case No. 74-835. See also Fulton v. State, 335 So.2d 280 (Fla.1976); Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974).

In Case No. 74-836, petitioner in a two count information was charged with possession and sale of cocaine on March 7, 1974. Immediately after his conviction in Case No. 74 — 835, petitioner asked to withdraw his previous plea of not guilty in Case No. 74-836 and to be allowed to enter a plea of guilty. As part of the plea bargain the State agreed to dismiss another pending drug case against the defendant, Case No. 74-440. Further, it was agreed that any sentence in Case No. 74-836 would run concurrently with the sentence imposed in Case No. 74-835. Petitioner contends that the trial court erred in accepting his guilty plea in Case No. 74r-836. He alleges that the plea was not freely and voluntarily given due to the fact that he had been convicted of possession and sale of cocaine in Case No. 74-835 only fifteen minutes earlier. We have reviewed the transcript of the plea conference before the trial judge and conclude that there is no merit to this contention. Petitioner was fully informed of his rights, was represented by counsel, and freely and voluntarily entered a plea of guilty. Having found no error, we affirm petitioner’s adjudication of guilt and sentence in Case No. 74-836.

MAGER, C. J., ALDERMAN, J., and STOKES, ROBERT G., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Larry Wayne JEFFERSON, Appellee.
    No. 76-409.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.
    Abbott M. Herring, State Atty., Norman A. Tharp, Asst. State Atty., Titusville, for appellant, State.
    R. V. Richards, Titusville, for appellee, Jefferson.
   SMITH, ROBERT P., Jr., Associate Judge.

This case is before us on questions certified by the Brevard County circuit court as being determinative of the cause and without controlling precedent. Rule 4.6, F.A.R. Jefferson was convicted in 1974 of first degree murder as a result of death inflicted by another with whom Jefferson was engaged in perpetrating robbery. Sec. 782.-04(l)(a), F.S.1973. He was first sentenced to life imprisonment with no possibility for parole for 25 years, § 775.082(1), F.S.1973, but on reconsideration the trial court reduced Jefferson’s term to six months to 25 years because Jefferson apparently did not plan or anticipate the killing. On the state’s appeal, this court vacated the resen-tence on the ground that it was untimely under Rule 3.800(b), R.Cr.P., and directed that the original sentence be reinstated. Jefferson v. State, 320 So.2d 827 (Fla. 4th DCA 1975).

Upon receipt of this court’s mandate, the trial court reinstated the sentence of life imprisonment for the capital felony of first degree murder, thereby again subjecting Jefferson to imprisonment for 25 years before he should become eligible for parole. Sec. 775.082(1), F.S.1973. However, Jefferson promptly filed another motion under Rule 3.800(b) for reduction of his sentence in accordance with new legislation, Ch. 74-383, §§ 14, 5, Fla.Laws, which redefined felony murder by one not the murderer as murder in the second degree, punishable as a felony of the first degree by imprisonment not exceeding 30 years. Secs. 782.-04(3) and 775.082(3)(b), F.S.1975 (as further amended by Ch. 75-298, Fla.Laws).

The trial court’s certificate, after an appropriate statement of the facts, inquires whether (1) the trial court has authority to consider a Rule 3.800(b) motion for reduction of sentence “filed immediately after reinstatement of the original sentence and within sixty days of receipt of the mandate ordering said reinstatement”; and (2) whether that court now has authority to reduce Jefferson’s sentence to a term of less than 30 years on grounds that Jefferson’s offense is now punishable not as a capital felony but as a felony of the first degree under §§ 782.04(3) and 775.082(3)(b), F.S.1975.

While it may be doubted that this case is one without controlling precedent and therefore appropriate for certified questions pursuant to Rule 4.6, F.A.R., we shall answer the second question propounded, which is dispositive of the case, in view of the uncertainty of Jefferson’s proper sentence despite litigation continuing for two years after his conviction.

We have the view that the trial court, after properly convicting Jefferson in August 1974 of the capital felony of first degree murder, is now without authority to resentence Jefferson to a term of up to 30 years, as for the newly-defined first degree felony of murder in the second degree by felony murder. That the character of such an offense has been changed from first to second degree murder would alone seem a sufficient impediment to reduction of sentence under Rule 3.800(b), if the Rule were otherwise applicable; but during Jefferson’s litigation the Supreme Court has explicitly held it constitutionally impermissible to sentence an offender to a reduced term under a statutory amendment becoming effective after the date of his offense. Castle v. State, 330 So.2d 10 (Fla.1976), affirming Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1975). Therefore, notwithstanding legislation in the meantime to ameliorate the sentence for conduct such as Jefferson’s, Jefferson is properly sentenced only in accordance with statutes in effect at the time of his offense, §§ 782.04(l)(a) and 775.082(1), F.S.1973, prescribing for felony murder, a capital felony, life imprisonment with no eligibility for parole until 25 years have been served.

Having answered the second question certified, we respectfully decline to answer the first, which is not dispositive.

CROSS, J., and COBB, WARREN, Associate Judge, concur.


author: COBB, WARREN H., Associate Judge.

text:
    Ellen H. KALT, Appellant, v. STATE of Florida, Appellee.
    No. 76-534.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.

      Richard L. Jorandby, Public Defender, and James R. Merola, 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.
   COBB, WARREN H., Associate Judge.

The appellant, Ellen Kalt, was convicted of grand larceny as a result of accepting money to procure a child for adoption by the victims, Mr. and Mrs. Loy, who were unable to have children.

The trial evidence was that Appellant-Kalt was paid some $3,700 over a year-and-a-half period by the Loys. She then went to Ontario, Canada, ostensibly to obtain a baby boy, but returned without him. After more delay, the Loys demanded return of their money, and appellant offered to make repayment in installments. This was not acceptable to the Loys, and they initiated prosecution.

The evidence at trial revealed that appellant had arranged adoptions in the past and had taken cafe of a number of pregnant women; the baby of one named Debbie had been intended for the Loys but Debbie disappeared before the child was born. There also was evidence that appellant offered the Loys one child, which they refused because it was a girl and they wanted a boy.

The point on appeal with which we are concerned is whether the trial court erred in denying appellant’s motion for judgment of acquittal.

The conviction of the appellant was predicated upon circumstantial, rather than direct, evidence of misrepresentation of past or present facts. The question, therefore, was not one which properly could be submitted to a jury unless the proof was inconsistent with any reasonable hypothesis of innocence. Broadnax v. State, 57 So.2d 651 (Fla.1952).

The facts adduced here were entirely consistent with the reasonable hypothesis that the defendant intended to obtain a child for the Loys and, through circumstances occurring after payment, was unable to do so. Whatever other offenses may be chargeable against appellant, she was entitled to the granting of her motion for judgment of acquittal of an offense under Section 811.-021, Florida Statutes.

Accordingly, the judgment of adjudication of guilt is reversed and the sentence is vacated and set aside, and the cause is remanded with directions to discharge the defendant.

Reversed and remanded with directions.

CROSS, J., and SMITH, ROBERT P., Associate Judge, concur.


author: PER CURIAM. ALDERMAN, Judge

text:
    Early WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-895.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.
    Rehearing Denied Jan. 25, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Paul M. Herman, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William H. Grodnick, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

In light of the Supreme Court of Florida’s recent decisions in Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975), and this court’s decisions in Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976), and Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976), the testimony elicited during direct examination by the State reflecting the defendant’s silence after his arrest and Miranda warnings constituted fundamental reversible error. Accordingly, the judgment and sentence of conviction are reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

MAGER, C. J., and DOWNEY, J., concur.

ALDERMAN, J., dissents, with opinion.

ALDERMAN, Judge

(dissenting):

I do not believe that the cases cited in the majority opinion are controlling in this case. Appellant was charged with possession of a stolen motor vehicle. One of the issues at the trial was whether appellant at the time of arrest was under the influence of heroin. The prosecutor and defense counsel both questioned the arresting officers concerning appellant’s appearance and actions at the time of his arrest relating to symptoms or signs of drug intoxication. The testimony concerning appellant’s silence was not a comment on appellant’s silence in the face of an accusation of guilt or direct inquiry as to whether the appellant committed the crime as charged. It related to appellant’s physical condition which was relevant to the issue of whether appellant was under the influence of heroin.

I would affirm.


author: SCHEB, Judge.

text:
    Bert A. NEWCOMBE et al., Appellants, v. SOUTH FLORIDA BUSINESS NEGOTIATORS, INC., a Florida Corporation, Appellee.
    No. 76-1218.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1976.
    Rehearing Denied Jan. 14, 1977.

      G. E. Carroll, Naples, for appellants.
    Robert A. Koppen, Koppen & Watkins, Miami, for appellee.
   SCHEB, Judge.

The trial court entered judgment on a jury verdict for $34,500 in favor of appel-lee/plaintiff against appellants/defendants. Thereafter, the trial judge entered a post trial order awarding plaintiff costs of $953.13, interest of $2,942.50, and attorney’s fees of $3,000. After examining the record and briefs and hearing oral argument, we find the only meritorious questions on appeal are whether the trial judge erred in awarding interest and attorney’s fees over and above the amount of the jury verdict. On these points, we reverse.

Plaintiff is a business broker whose recovery was based upon its performance under a listing contract whereby Municipal Supply and Sign Corporation gave it an exclusive listing to sell the corporate business. Under the contract, Municipal agreed to pay plaintiff a commission of 15% of the gross sales price for finding a purchaser for its business. Additionally, Municipal agreed to pay:

“. . . reasonable attorney’s fees, court costs, collection fees and expenses including costs incurred by the broker in the enforcement of any of the conditions, terms or provisions of this agreement.”

There is substantial competent evidence to sustain the jury’s verdict for plaintiff of $34,500. Therefore, the judgment entered thereon by the trial court must be affirmed.

There is no question as to the trial court’s authority to enter a post trial order taxing costs, Roberts v. Askew, 260 So.2d 492 (Fla.1972), and we find no error in the trial judge’s order on this point. To the extent, however, that the trial judge awarded interest of $2,942.50 for the period from November 14, 1974 to April 20, 1976 (date of verdict), and attorney’s fees of $3,000, the court committed reversible error.

It is proper to allow recovery of prejudgment interest as part of the plaintiff’s damages in a breach of contract action, 9A FlaJur., Damages, § 87. However, where a case is tried by jury, there is no authority for the trial judge to assess interest over and above the amount awarded by the jury. Shoup v. Waits, 91 Fla. 378, 107 So. 769 (1926); Grayson v. Fishlove, 266 So.2d 38 (Fla.3d DCA 1972); Schulman v. Cort Aviation, 330 So.2d 114 (Fla.3d DCA 1976).

Since many breach of contract actions are tried without a jury, there is a dearth of authority as to whether it is proper for the court to award attorney’s fees following a jury verdict. The sole cases we have located on this point are Ronlee, Inc. v. P. M. Walker Co., 129 So.2d 175 (Fla.3d DCA 1961), and Riess v. Goldman, 196 So.2d 184 (Fla.3d DCA 1967), both of which hold that such fees must be awarded by the jury. We agree with the rationale of these cases decided by our sister court. In a jury trial a claim for attorney’s fees predicated upon a provision in the contract between the parties becomes an element of damages and must be determined by the jury. Plaintiff in this case did not produce evidence on attorney’s fees before the jury and, therefore, waived any entitlement for this element of damages.

Accordingly, the judgment in favor of the plaintiff in the amount of $34,500 is affirmed; however, the order and judgment taxing costs, adding interest and awarding attorney’s fees is vacated and the trial court is directed to enter an amended order deleting therefrom the attorney’s fees and prejudgment interest.

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

      . While the trial court assessed attorney’s fees following a jury verdict in Grayson v. Fishlove, supra, and the appellate court upheld the reasonableness of the fee, it does not appear that the power of the court to award such fees was an issue before the appellate court.

      . A different situation prevails, of course, when attorney’s fees are awardable by a statute which provides that they are to be assessed by the court. See e. g„ §§ 73.091; 627.428, Fla. Stat. (1975).


text:
    RESNICK DEVELOPERS SOUTH, INC., and Federal Insurance Company, Appellants, v. CLERICI, INC., a Florida Corporation, Appellee.
    No. 75-1822.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1976.
    Rehearing Denied Jan. 25, 1977.

      R. Martin Perry of Levy, Plisco, Perry, Reiter & Shapiro, Palm Beach, for appellants.
    Ronald Sales of Sales & Christiansen, Palm Beach, for appellee.
   ALDERMAN, Judge.

This is an appeal from a Summary Final Judgment of the Circuit Court of Palm Beach County.

Briefly stated, the undisputed facts are as follows: Resnick Developers South, Inc., as owner, contracted with William Passalac-qua Builders, Inc., as general contractor, for the construction of a condominium. Pursuant to this contract the owner required the general contractor to furnish a payment bond pursuant to Section 713.23, Florida Statutes. In accordance with the contract the owner on October 23, 1972 received a payment bond in the amount of the original contract price, $6,800,000. Subsequently the bond was increased to $7,335,849 to conform with changes in the original contract. The principal on the payment bond was the general contractor, and the surety was General Insurance Company of America. This bond was in proper form and qualified as a payment bond under the provisions of Section 713.23.

The owner, on October 31, 1972, as provided by Section 713.13, Florida Statutes, recorded in the Public Records of Palm Beach County, and posted at the job site, a Notice of Commencement. The Notice of Commencement properly contained the name and address of the surety on the § 713.23 payment bond, and the amount of such bond. Subsequently, the appellee, Clerici, Inc., under a subcontract with the general contractor performed certain work on the project. Appellee did not receive full payment from the general contractor and on October 16, 1974, filed a claim of lien against the owner’s property for an unpaid balance of $36,073.41. Thereafter the owner caused the subcontractor’s claim of lien to be transferred from the owner’s property to a transfer bond, as provided by Section 713.24, Florida Statutes. The owner was the principal, and appellant, Federal Insurance Company, was the surety on the § 713.24 transfer bond.

The subcontractor filed suit against the owner on November 12, 1974, and in its original complaint sought to foreclose its claim of lien against the real property. Subsequently the parties agreed that the lis pendens ought to be dissolved because the claim of lien had been transferred to a bond. Federal Insurance Company was added as a party defendant and the subcontractor filed an amended complaint seeking to enforce its claim of lien against the § 713.24 transfer bond. Additionally, the subcontractor moved for and was granted leave to further amend its complaint so as to add as a party defendant General Insurance Company of America, the surety on the § 713.23 payment bond. However, the subcontractor did not proceed against General Insurance Company of America or the general contractor, and neither were made defendants in this case.

The trial court in its Final Summary Judgment recognized that the owner was not obligated to give the § 713.24 transfer bond and that the § 713.23 payment bond exempted the owner’s property from any mechanic’s lien. However the court below held that “once the defendant-owner and its transfer bond surety gave the transfer bond voluntarily, by mistake of its legal rights or otherwise, it became enforceable against them.” It was on this basis that the owner and his surety under the § 713.24 transfer bond were held responsible for the remaining balance claimed to be due by appellee under his subcontract with the general contractor.

We reach a contrary conclusion of law and reverse. The owner in this case required and obtained from its general contractor a proper payment bond as provided in § 713.23. The legal effect of this action was to exempt the owner from Part I and II of Chapter 713 and Chapter 85. The only exception to this exemption is the lien of the contractor who furnished the bond. Therefore appellant-owner was exempt from any direct liability to appellee-subcon-tractor. The claim of lien filed by appellee was improper because, in this case, there was no way that appellee could perfect a valid claim of lien under Chapter 85 or Part I or II of Chapter 713 against the owner’s property. The statute sets out the procedure that must be followed by the subcontractor in order to perfect its claim against the § 713.23 payment bond. The subcontractor did not have the option of filing a claim of lien against the owner’s property.

Although appellee did not have the legal right to file a claim of lien in this case, it did so anyway. This created a serious problem for the owner because even though the claim of lien was unenforceable against the owner and its property, it created a cloud on the owner’s title. Several alternatives were available to the owner if appellee-subcontractor did not voluntarily release its claim of lien. If subcontractor did not bring an action to enforce its claim of lien within the time prescribed by law the owner could rely on the passage of time to remove the cloud of the improperly filed claim of lien. § 713.21(3). If subcontractor attempted to foreclose its claim of lien the owner could raise its § 713.23 exemption as an affirmative defense. Alternatively an order vacating and cancelling the claim of lien could be obtained from the Circuit Court as provided by § 713.21(4); however, this procedure requires the filing of a complaint and the issuance of a summons to the lienor to show cause within twenty days why its lien should not be enforced by action or vacated and cancelled of record. Unfortunately all of these procedures require time. The only method by which the owner could immediately remove the cloud of an improperly filed claim of lien is to have the claim of lien transferred to security as provided by § 713.23. Such a transfer is not an acknowledgement by the owner that the claim of lien is valid. It is only a substitution of security pending a judicial determination of the validity of the claim of lien.

In the present case appellee improperly filed a claim of lien. It was unenforceable against the owner’s property because of the exemption created by the § 713.23 payment bond; however the claim of lien was of record and created a cloud on the title of owner’s property. The owner elected to have the claim of lien transfer to a § 713.24 transfer bond. The condition of the § 713.24 transfer bond was to “ . well and truly pay any judgment which may become final and not subject to appeal against the subject property for the enforcement of the above described Lien, . ” Clearly this is not an assumption of a new and additional liability on the part of the owner and his surety. The owner has simply substituted the security of the transfer bond in place of its property. If the subcontractor were able to establish that it would have had a valid lien against the property, as might have been the case if there had not been a proper § 713.23 payment bond, then in that event appellee could look to the § 713.24 transfer bond in lieu of the owner’s property. However in this ease there was a proper § 713.23 payment bond and the subcontractor did not have, nor could it have had, a valid lien against the owner’s property. The § 713.24 transfer bond did not give it any additional rights; it simply created an alternate fund from which the appellee’s claim of lien could be satisfied, if in fact appellee had a valid claim of lien. In this case appellee did not have a valid claim of lien against the owner’s property. Therefore, it was not entitled to look to the § 713.24 transfer bond for payment of its claim.

We hold that the owner in this case was exempt from direct liability by virtue of the § 713.23 payment bond, and that it had the right to utilize the § 713.24 transfer bond to remove the encumbrance of appel-lee’s improperly filed claim of lien. We further hold that the exercise of this right by owner did not waive its exemption or create a new direct liability on the part of the owner and its surety to pay the amount due to appellee under its subcontract with the general contractor.

Appellee seeks support for its position from certain language used by this court in Schleifer v. All-Shores Construction and Supply Co., 260 So.2d 270 (Fla. 4th DCA 1972). Consistent with our holding in the present case, in Schleifer we held that the securing of a § 713.23 payment bond exempted the property owner and his property for direct liability. The suit had been brought by a sub-subcontractor against the property owner to foreclose a claimed mechanic’s lien or, alternatively, for money damages. We reversed a money judgment which had been entered against the owner. The general contractor had filed a § 713.24 transfer bond; however, neither the general contractor or its surety were parties to the suit. The following language appeared in Schleifer, at page 272: “ . . . upon the filing in the clerk’s office of the bond, pursuant to F.S. § 713.24, F.S.A., the lien was effectively removed from the property, and the sole remedy was upon the bond.” (Emphasis supplied.) The above quoted language from Schleifer is dicta and was not the holding of the Court in that case. Nevertheless, to avoid confusion and to remove any suggestion of conflict with our holding in the present case, we hereby recede from the above quoted language.

Appellants have also presented the question of whether the lower court erred in failing to grant their motions for summary final judgment on the basis that the § 713.-23 payment bond exempted the owner and its property from appellee’s claim of lien. There being no genuine issues of material facts on this issue, we conclude that appellants were entitled to summary final judgment in their favor.

REVERSED and REMANDED with instructions that the summary final judgment entered in favor of the appellee be vacated and that summary final judgment be entered in favor of the appellants.

SMITH, ROBERT P„ Jr., and COBB, WARREN H., Associate Judges, concur.


author: CROSS, Judge.

text:
    Ernie RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-2098.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1976.
    Richard L. Jorandby, Public Defender, and James R. Merola, 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.
   CROSS, Judge.

Appellant-defendant, Ernie Richardson, appeals a judgment of guilty and imposition of sentence for grand larceny and attempted robbery. We reverse.

Appellant was arrested on September 10, 1974 for robbery that allegedly occurred in Palm Beach County on said date. Subsequently, appellant was released from custody.

Ten days thereafter, September 20, 1974, a criminal information was filed charging appellant in two counts with robbery alleged to have occurred on September 10, 1974. A capias then issued for appellant’s arrest. The sheriff’s department was unable to locate appellant due to an error in address contained in the capias. The capias set forth his address as 227 Northwest 36th Avenue, Pompano Beach, Florida. However, court records reflect that when initially arrested, appellant gave his address as 227 Northwest 6th Avenue, Pompano Beach, Florida.

On February 8, 1975 Palm Beach County Sheriff’s Department was notified that appellant was in Broward County Jail on local charges. After trial on the Broward County charges, appellant, on April 18,1975, was returned to Palm Beach County. On June 6, 1975 appellant filed a motion for discharge, alleging he had not been brought to trial within 180 days of his original arrest on September 10,1974 as required by Fla.R. Crim.P. 3.191(a)(1). Appellant further alleged he has been continually available for trial since that date. The motion came on for hearing and was denied. Trial began on August 25, 1975, resulting in a jury verdict of guilty for the crimes of grand larceny and attempted robbery. Appellant was adjudicated guilty of these offenses on October 24, 1975, and sentenced to two concurrent five-years terms. This appeal followed.

The question for our determination is whether appellant’s motion for discharge should have been granted.

Florida R.Crim.P. 3.191(a)(1) provides that a person charged with a felony shall without demand be brought to trial within 180 days. This time period “shall commence when [a] person is taken into custody as [the] result of the conduct [of] criminal episode giving rise to the crime charged.” Under the speedy trial rule, the time within which a person must be tried cannot be extended by the state entering a nolle prosequi to a crime charged and then prosecuting new or different charges based on the same conduct or criminal episode. State ex rel. Green v. Patterson, Pinellas County, 279 So.2d 362 (Fla.2d DCA 1973); Bryant v. Blount, 261 So.2d 847 (Fla.1st DCA 1972); Fla.R.Crim.P. 3.191(h)(2). However, if the state presents any evidence tending to show non-availability of the accused for trial, the accused must then establish by competent proof his continuous availability during the required period of time. State ex rel. Green v. Patterson, Pinellas County, supra; Fla.R.Crim.P. 3.191(e).

In the instant case, a motion for discharge pursuant to the speedy trial rule was filed nine months after appellant was initially arrested and an information filed. The state contends appellant was unavailable for trial during that period and was not entitled to discharge. However, the record reflects appellant successfully met the burden of proving he would have been available for trial but for an error by the state. After release from the initial arrest, appellant was not re-arrested when the subsequent information was filed because the capias showed an address different than the one given by appellant upon his initial arrest and contained in his court record. During this period, until his incarceration in Broward County, appellant testified he resided at the address he had given when initially arrested; never left the state; did not conceal his identity nor attempt to elude police authorities. Thus, the delay in trial is not attributable to appellant and does not enlarge the 180 days from arrest in which the speedy trial rule requires that an accused individual be tried.

Accordingly, the judgment and sentence is vacated and set aside, and the cause remanded to the trial court with directions to discharge appellant, Ernie Richardson.

Reversed and remanded with directions.

DOWNEY and ALDERMAN, JJ., concur.