text:
    The STATE of Florida, Appellant, v. Albert W. TRESVANT, Sr., Appellee.
    No. 77-1780.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Rehearing Denied June 28, 1978.

      Janet Reno, State’s Atty. and Paul M. Rashkind, Asst. State’s Atty., for appellant.
    James W. Matthews, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The State filed this appeal from an order granting new trial. We find error and reverse.

The appellee was found guilty by a jury of the crimes charged against him by indictment, consisting of conspiracy to commit a felony, bribery, and unauthorized compensation for official behavior, in violation respectively of Sections 777.04(3); 838.015, and 838.016 Florida Statutes (1975).

As recited in the order granting new trial, it was sought by the defendant on the grounds (1) that the court erred in excusing a qualified juror on motion of the State, and (2) that the “jury was influenced by fear or prejudice owing to an incident involving defendant following them out of the courtroom building into a parking lot area”.

As to the first incident, whereby a juror was removed for cause during the trial and was replaced by the chosen alternate juror, the trial court, in granting the motion for new trial, viewed that as having been an error of law. Regarding the second incident, as to which the court during trial had become satisfied that no prejudice to the defendant had thereby occurred, in granting new trial the court said such incident constituted a “cause not due to defendant’s own fault which prevented a fair and impartial trial”.

On voir dire, the juror who later was excused for cause, when questioned as to whether she had ever been a victim of a crime, did not answer that question directly but stated she had been arrested on being accused of interfering with an arrest which was being made of her son, but that the matter had been dropped. Investigation made by the State while the trial was proceeding disclosed that a person having the same name had been arrested on six occasions. Prior to the close of the State’s case the State, with permission of the Court, on further voir dire examination of the juror, established that she was the person who had been subject to said multiple arrests, which she had not revealed. The State’s motion for the juror to be excused or removed for cause was granted and the trial proceeded with the alternate juror replacing the one thus excused.

The appellee argues it was error to remove the juror because the fact that she had been arrested a number of times did not legally disqualify her to sit as a juror. The State contends removal of the juror was not for any reason of disqualification under the law, but for her lack of candor in not revealing the other arrests, when her answers were such as to lead to an inference indicating there was only one such and, because, as recited in the court’s order, in the course of her subsequent voir dire in which she was questioned by a prosecutor regarding her failure to have disclosed the other arrests “there developed some hostility or resentment on the part of Johnson [the juror] directed toward the inquiring prosecutor”. Further, the State argues that no prejudice resulted inasmuch as the discharged juror was replaced by the previously accepted alternate juror.

Regarding that incident, it is our view that removal of the juror and substitution of the alternate in her place was not an abuse of discretion in the circumstances. Moreover, if it should be considered that the excusal of the juror was unnecessary or uncalled for, the error therein was harmless. There was no showing that it operated to the prejudice of the defendant, or that it resulted in a miscarriage of justice.

Concealment by a juror on voir dire of information which may have been of materiality as to whether the juror would be excused on peremptory challenge or for cause, which having occurred is not revealed or discovered until after trial, can justify the granting of a new trial. Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972). Therefore, when such occurs and is disclosed during a trial, a mistrial would be indicated unless, as in this instance, there is available an acceptable alternate juror to replace the offending juror when removed. United States v. Taylor, 554 F.2d 200 (5th Cir. 1977). It follows that if there existed a legal need to excuse the juror in question, the procedure employed in this case did not constitute error in law; and if the situation did not legally require the removal of the juror for cause her removal with substitution of the alternate juror was not shown to have caused any prejudice and, if error, was harmless. The trial court was in error in viewing that incident as an error of law requiring or justifying the entry of an order for new trial.

The second incident occurred at the end of a day of the trial, when the jurors, and the defendant in company with his daughters, left the building at the same time, and proceeded to a certain parking lot where all of the cars they were using had been parked. The next morning a juror related to a court attendant, who relayed the information to the court, that as the jurors were proceeding to the parking lot the defendant appeared to be following them, and had certain conversation with them, and that there had been some discussion of that among the jurors. The conversation of the defendant, as recalled by the juror, was that defendant had asked them as a group why they had not used the nearby free parking lot for jurors, and that in the parking lot he had asked one of the jurors what kind of a car he had. The court talked with the reporting juror, in the presence of counsel but out of the presence of the other jurors. With his consent the court also questioned the defendant on the matter. The defendant denied he had spoken with the jurors, stating that his conversation had been with his daughters, and he stated that the remark he made in the parking lot to one of the jurors was prompted by the fact that the car owned by the juror, which was parked next to his, was a Jaguar, a make of car which he said he admired, and that the only remark he made to that juror was: “Wow, a Jaguar”. The court then had the jurors brought in and addressed them as follows:

“Ladies and gentlemen, it has been brought to my attention that there was some incident yesterday which caused you some concern, and which, perhaps, has been discussed among you.
“I have not only talked to one of you, I have also inquired of the parties at some length, and I feel satisfied that nothing that occurred yesterday was intended to influence, intimidate or otherwise make you feel uncomfortable in any way, but before proceeding further, I would like for you to indicate for the record, individually, your feelings.”

The court then stated: “Starting with No. 1, do you feel that, as a result of yesterday’s incident and the discussion this morning, that you are still able to render a fair and impartial verdict?” That juror’s response was: “Definitely”. Each of the other jurors, when separately asked to answer that question, replied: “Yes”. Thereupon the court asked counsel if they wished to inquire further of the jurors. Counsel for defendant stated: “I have no inquiry, Judge”, and the prosecutor stated he had no further questions. The trial proceedings then were resumed.

At that stage of the proceedings, there was no claim of prejudice by the defendant with regard to that incident, and no objection or motion for mistrial was made on behalf of the defendant. On the contrary, at the trial the defendant represented to the court that he had done nothing to intimidate the jurors or to cause them concern.

As revealed by the foregoing proceedings which were had with reference to the parking lot incident, at the trial it was established to the satisfaction of the court, and apparently to counsel for the parties, that no harm or prejudice had resulted therefrom, and that the ability of the jurors to return a fair and impartial verdict had not been impaired. We so regard the record of the case as it related to that incident, and find nothing in the record which would support the subsequent conclusion expressed by the court that this incident operated to prevent a fair trial of the defendant.

We hold that the two matters occurring during the trial which the court regarded as errors such as to require the granting of a new trial, were not errors or, if error, were harmless, and that the granting of a new trial on the basis thereof was an abuse of discretion.

We are cognizant of the well established rule that an order granting a new trial is entitled to great weight, and that an appellant has the burden of showing a clear abuse of discretion, but an order granting a new trial on matters which the trial court views as errors of law should be reversed when, on appeal, it is determined such matters were not error, or constituted harmless error. Gatlin v. Jacobs Construction Co., 218 So.2d 188 (Fla. 4th DCA 1969); State v. Monsees, 301 So.2d 109 (Fla. 4th DCA 1974); State v. Woodson, 330 So.2d 152 (Fla. 4th DCA 1976).

Accordingly, the order granting new trial is reversed.


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    ESCAMBIA COUNTY, a political subdivision of the State of Florida, and John R. Jones, as Property Appraiser of Escambia County, Florida, Petitioners, v. The ADMINISTRATION COMMISSION of the State of Florida, and the Ad Valorem Tax Division of the Department of Revenue of the State of Florida, Respondents.
    No. II-243.
    District Court of Appeal of Florida, First District.
    May 24, 1978.
    Rehearing Denied June 30, 1978.

      John W. Fleming and Patricia D. Wheeler, Pensacola, for petitioners.
    Robert L. Shevin, Atty. Gen., and William D. Townsend, Asst. Atty. Gen., Tallahassee, for respondents.
   ERVIN, Judge.

Escambia County and its property appraiser seek review of an order of the Administration Commission which approved an amendment to the County’s budget made by the Department of Revenue increasing the County’s budget by providing for the expenditure of electronic data processing equipment. We agree with the County that the Department of Revenue has no authority to amend a county’s budget after July 15. Section 195.087(1)a, Florida Statutes (1977), is explicit in requiring that the Ad Valorem Tax Division of the Department of Revenue shall review a budget request and may, on or before July 15, amend or change the requested budget as it deems necessary. No statutory authority, however, is given to the Department to so act after July 15.

We find no support in the record for the Department’s argument that the County is estopped from objecting to the Department’s amendment of the County’s budget on the ground that the County agreed to the changes. The only reference to the alleged agreement is a letter from the Es-cambia County Property Appraiser to the Department. We find nothing in the letter remotely suggesting any such agreement; indeed, the letter specifically stated it was the County’s intention to appeal the Department’s decision imposing the amendment.

That portion of the Administration Commission’s order approving the Department of Revenue’s prior order which directed an increase in the County’s budget of $27,925 for data processing, entered August 23, 1977, is REVERSED. The order is otherwise AFFIRMED.

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


author: McCORD, Chief Judge.

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and Department of Insurance, Appellants, v. Myrtle McDowell McDOUGALL, Administratrix of the Estate of Samuel W. McDowell, Deceased, et al., Appellees.
    No. DD-8 & FF-260.
    District Court of Appeal of Florida, First District.
    May 25, 1978.
    Rehearing Denied June 28, 1978.

      Thomas F. Woods, of Woods, Johnston & Erwin; and James G. Mahorner, Tallahassee, for appellants.
    John D. Caminez, Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Truett & Swed-mark, Tallahassee, for appellees.
   McCORD, Chief Judge.

Appellee, Myrtle McDowell, as adminis-tratrix of the Estate of Samuel W. McDowell, brought this action for wrongful death on behalf of herself and the children of her marriage to decedent. She contends that the decedent’s death was caused by the negligence of appellants. Appellants denied that the death resulted from any negligence on their part and filed a third party complaint against one Grady Parrish, Leon County Sheriff Raymond Hamlin and Sheriff Hamlin’s insurance carrier, Appalachian Insurance Company, alleging that negligence on the part of the Leon County Sheriff’s Department was the proximate intervening cause of McDowell’s death. The trial court entered a summary judgment on behalf of the third party defendants and after trial entered final judgment for $70,-000 against appellants and in favor of ap-pellee. The two cases which are here consolidated are appeals from the summary judgment and the final judgment. We affirm.

The events from which this cause of action stemmed are as follows: On April 26, 1974, the Circuit Court of Leon County, Florida, found Grady Parrish, who was charged with a criminal offense, not guilty by reason of insanity and committed him to the Florida State Hospital pursuant to Fla.R.Crim.P. 3.460 finding that he was manifestly dangerous to himself and to the peace and safety of the people. Parrish was thereafter admitted to the hospital and at the time of his admission, the admitting physician, Dr. Rodriquez, noted the following:

1. The court-appointed psychiatrists had determined Parrish to be dangerous.
2. Parrish stated to Dr. Rodriquez that he had tried to kill other people when drunk before.
3. There was a sound psychiatric basis to believe that Parrish was dangerous to others.

Dr. Susan Bohn, Parrish’s treating psychologist knew that the offense for which Parrish was committed involved an armed breaking and entering. Twelve days after Parrish’s commitment he escaped carrying a knife and was apprehended the same day. After his recapture he was confined in the maximum security ward for almost three months. He then underwent a staffing procedure to ascertain whether or not he was legally dangerous to others as a result of mental illness. It was the unanimous consensus of the staff at that time that he was dangerous to others. The staff report, dated September 26, 1974, contained a past history of Parrish which indicated that he had been charged with four escapes since 1955, that he had gone AWOL from the National Guard, and that in his case escape was a recurrent behavioral pattern. The hospital had full knowledge of-his propensity to escape. In addition the hospital report noted that his F.B.I. rap sheet indicated 26 charges, that he was shot twice in fights, and that when on alcohol he was likely to do anything suggested to him. The rap sheet revealed that in the past he had been charged with carrying a short barrel shotgun and assault with a deadly weapon.

The purpose of the September 26, 1974 staff report was to request authorization from the committing court to retain Parrish on the grounds that he was still dangerous. Hospital doctors Bohn and Ogburn subsequently, on January 17, 1975, had a five minute conference and decided to transfer Parrish from the more secure forensic unit to the general population of the hospital. This conference did not include Parrish’s treating physician, Dr. Onate. Dr. Bohn, Parrish’s primary treating psychologist, testified that at that time it was her opinion that Parrish was dangerous to others and was still an escape risk. Dr. Bohn at that time considered that he should not be allowed to go to class unescorted. Parrish was then transferred to Unit 4, a less secure unit of which Dr. Dachtera was the treating physician and at the time of this transfer, Dr. Dachtera did not have Parrish’s main records which included the summary of the September 26, 1974 staff report.

During the period from January 16 through February 11, Parrish was on 600 milligrams of thorazine, a relatively large dose, and this medication had a calming effect upon him. Such a large dose of this drug is used to treat a person who shows severe abnormality or psychotic disorder. During this period, the testimony shows that Parrish’s most probable diagnosis was psychotic, organic brain syndrome, secondary to chronic alcoholism with a history of alcoholic blackouts; that it was consistent with his history that at this time he was extremely dangerous when drunk; that alcohol would give him alcoholic blackouts or an amnesia state in which he did not know or care what he did.

On January 30,1975, Parrish was issued a partial privilege card under which he would be accompanied to an alcoholics anonymous class outside Unit 4 by hospital personnel. On February 11, 1975, when in violation of hospital procedure Parrish was allowed to leave Unit 4 to attend the alcoholics anonymous class without being accompanied by hospital personnel, he escaped by walking off the hospital grounds. His escape was not reported by the class instructor for three hours and fifteen minutes as a result of poor hospital procedure. Dr. Dachtera then reported Parrish missing and placed him on escaped status. She noted that he had come to the hospital with a history of violent and unpredictable behavior, and she reported that he was still dangerous and should be returned to the forensic unit upon apprehension. At the time of his escape, he was, as aforesaid, on 600 milligrams of tho-razine, and when it wore off in two or three months, he would again become dangerous.

After his escape the hospital notified the Chattahoochee Police Department, and that department issued an all points bulletin but the bulletin did not notify law enforcement authorities that Parrish was dangerous nor did it mention the nature of his commitment to the hospital. The all points bulletin went to the Leon County Sheriff’s Office as well as to other law enforcement officials of the state. Parrish returned to his home in Leon County where he apparently lived normally and without incident until the thorazine wore off and the altercation occurred in which he killed McDowell when drunk at approximately 8:40 p. m. on May 4, 1975. There is testimony that the Leon County Sheriff’s Office took procedures to locate and apprehend Parrish, and there is also testimony from Parrish’s family that Leon County deputies saw him on several occasions but made no effort to apprehend him. This was denied by testimony of sheriff’s deputies, and such conflict in the evidence was resolved by the trial court’s final judgment in favor of appellee.

In granting the summary judgment on the third party claim, the trial court found that even if the employees of the Office of the Sheriff of Leon County knew that Parrish had been committed to the state hospital as being manifestly dangerous to himself and to the peace and safety of the people, the act of Parrish in killing McDowell was not a foreseeable consequence of the failure of the employees of that office to arrest or apprehend Parrish; that their negligence, if any, therefore, was not a proximate cause of the death of McDowell. Appellants contend that the trial court’s granting of the summary judgment is inconsistent with the final judgment against the hospital; that if the incident was a foreseeable consequence of Parrish’s escape from the hospital, it was likewise a foreseeable consequence of the sheriff’s failure to apprehend him. It is unnecessary, however, that we resolve the question of foreseeability as to the sheriff because we find the entry of the summary final judgment was correct for another reason.

This action was brought as a result of the state’s partial waiver of its sovereign immunity which it accomplished by § 768.28, Florida Statutes. That statute states in pertinent part as follows:

“(1) In accordance with s. 13, Art. X, state constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.” (Emphasis supplied.)

It should be noted that sovereign immunity has been waived only to the extent specified in the act, and the act states that such immunity is waived for injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable. It is obvious that a private person would never be liable for his failure to apprehend a dangerous escaped mental patient under the circumstances involved in this case. Thus, sovereign immunity has not been waived by the state as it relates to the actions of the Leon County Sheriff’s Office in this instance. Further, there has been no showing that the sheriff is liable because of a special duty to McDowell. See Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967).

The case in relation to waiver of sovereign immunity as to the actions of the employees of the state hospital, however, falls in a different category. Operators of a private hospital who negligently allowed a dangerous mental patient to escape would be liable for the resulting injury that such patient did to another person if the injury was a foreseeable result of the negligence. The state would likewise be liable under the same circumstance by virtue of its waiver of sovereign immunity. The question of appellant’s liability, therefore, turns on the question of whether or not it was foreseeable that this dangerous mental patient, if allowed to escape from the state hospital, would be likely to injure or kill someone. Under the evidence of this case as above related, such result was foreseeable, and the negligence of appellant’s employees was, therefore, the proximate cause of McDowell’s death. There was no affirmative intervening cause shown by the evidence to have caused the death.

Appellants contend that the principle of law stated in Modlin bars appellees’ action against appellants. The doctrine established by Modlin related to suits against governmental entities prior to the enactment of § 768.28, Florida Statutes. Under Modlin, a governmental agency was not liable for negligence of its employees unless the duty which was breached by the employee was a duty owed to the injured party as distinguished from a duty owed to the public generally. § 768.28 has now abrogated that rule as to actions falling within the realm of that section, and in such cases a state agency is liable for a wrongful act or omission of any employee of the agency while acting within the scope of his office or employment under circumstances in which the state or such agency, if a private person, would be liable to the claimant in accordance with the general laws of this state.

Subsection (5) of § 768.28 restricts the state’s monetary liability by the following statement:

“Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000.”

Appellants contend payment of the final judgment must be restricted to the sum of $50,000 because this is a claim by one person — the administratrix of the estate of Samuel W. McDowell, and only one judgment. We disagree. The judgment here is a judgment under § 768.20, Florida Statutes, for the several claims of Myrtle McDowell, the decedent’s widow and the decedent’s children. The aforesaid § 768.20 requires that the suit be filed in the name of the administratrix but it includes the several claims of all persons entitled to recover for the death by wrongful act of the decedent. Under these circumstances, this is not the claim of or judgment for one person. Therefore, payment of the judgment is limited by only the $100,000 ceiling stated in the above-quoted statute.

We have considered the other points raised by appellants and find them to be without merit.

AFFIRMED.

BOYER and MILLS, JJ., concur.


author: PER CURIAM.

text:
    CITY OF MIAMI, a Municipal Corporation, Appellant, v. J. C. VEREEN & SONS, INC., a Florida Corporation, Appellee.
    No. 77-866.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.

      George F. Knox, Jr., City Atty., and G. Miriam Maer, Asst. City Atty., for appellant.
    Prunty, Ross, Deloach & Olsen, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellee, which was the plaintiff below, moved for and obtained a judgment on the pleadings, cancelling a dedication deed made by it to the City of Miami. The" City appealed.

In 1953 the appellee, owning property located on the east side of North Miami Avenue, between third and fourth streets, sought a variance to permit certain store fronts to encroach three feet onto City property, for 75 feet of the 300 foot frontage of its property. The application for variance was rejected on its merits, but the City agreed to grant the variance upon Vereen agreeing to dedicate to the City a strip of its land bordering on North Miami Avenue, consisting of said 75 feet of frontage, having a depth of 5 feet.

On July 13, 1953 the parties entered into an agreement which recited passage of an ordinance granting the above-mentioned variance, and the dedication to the City of the 75 X 5 foot strip located in the “zoned street area”, and which recited that the appellee-owner could retain possession of said deeded strip until the street abutting that block should be widened by the City, at which time the encroachments made pursuant to the variance would be removed by the appellee, with appellee to post a $500.00 bond to guarantee removal of the encroachments.

On the same date appellee made and delivered to the City a special warranty deed to said 75 X 5 frontage strip, which recited receipt by the grantor of “TEN ($10.00) DOLLARS and other good and valuable considerations”. As in the contract, the deed provided that possession would not pass to the grantee City “until said City widens North Miami Avenue” abutting said 75 X 5 foot strip, and contained therein was a covenant by the grantor to remove said encroachments as agreed. The deed contained a provision that if the City “should repeal its ordinance creating the setback on said North 75 feet of Lot 10, Block 84 North, of City of Miami” [citing the plat recordation] the property would revert to the grantor.

This action was filed by Vereen against the City on May 3, 1976. Prior to that time the said ordinance prescribing setback to accommodate street widening had not been repealed, and the street had not been widened by the City. Upon disclosing the above facts the complaint sought relief on the asserted ground that failure of the City to widen the street, during the time interval involved, amounted to abandonment by the City.

By an amendment to the complaint, as an added ground for the relief prayed for, the plaintiff-appellee claimed it was entitled to reconveyance of the property by virtue of the provisions of Sections 255.22 and 255.23, Florida Statutes (1975). Those sections provide that in the event an owner of adjoining land conveys real property, without receipt of valuable consideration, to a municipality or county for a specific purpose or use, if the latter shall fail to use the property for such purpose for a period of 60 consecutive months, then upon written demand of the grantor or his successor in interest, provided such person is then the owner of the adjoining land, the property may be reconveyed to such abutting land owner by quit claim deed. It is further provided therein that when the purpose for which the property was conveyed required “physical improvement or construction on such property or the maintenance thereof” failure of the municipality or county to perform such, for the said period, shall be conclusively deemed to be abandonment thereof for the purpose for which it was conveyed.

The answer filed by the City admitted the making the of written agreement and the deed, and admitted that the street had not been widened, but denied abandonment, and denied the allegation that no steps had been taken with reference thereto, averring that for several years the City had been planning to widen North Miami Avenue; that the widening of the street is intended to be made in the future, when it will be made necessary by increased growth of the City and by reason of construction of a planned Convention Center and downtown Government Center. In answer to the amendment to the complaint by which plaintiff invoked the statutory sections cited above as a basis for recovery, the City averred that it gave consideration for the deed, citing the granting of the variance permitting encroachment upon City property as constituting valuable consideration.

The function of a motion for judgment on the pleadings is the same as a former common law demurrer. The well-pleaded allegations of the party opposing the motion are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Wagner v. Wagner, 196 So.2d 453 (Fla. 4th DCA 1967). Such a motion raises questions of law arising on the pleadings. Miller v. Eatmon, 177 So.2d 523 (Fla. 1st DCA 1965). Even when a motion for judgment on the pleadings is treated as a motion for summary judgment, it is to be heard wholly on the pleadings, without aid of facts dehors the pleadings. Reinhard v. Bliss, 85 So.2d 131 (Fla.1956); Butts v. State Farm Mutual Automobile Ins. Co., 207 So.2d 73 (Fla. 3d DCA 1968). The procedure is designed to be primarily for application of the law to the facts. Riviera Printing Co. v. Hessler’s, Inc., 109 So.2d 778 (Fla. 3d DCA 1959). Judgment may be granted only if, on the facts admitted for the purpose of the motion, the moving party is clearly entitled to judgment as a matter of law. Paradise Pools, Inc. v. Genauer, 104 So.2d 860 (Fla. 3d DCA 1958); Miller v. Eatmon, supra.

In granting the motion of the plaintiff for judgment on the pleadings and entering a judgment for the plaintiff, whereby the court directed the defendant City to recon-vey the said 75 X 5 foot strip to the plaintiff, the ground therefor as stated in the judgment was that “The defendant City of Miami has abandoned, surrendered and released all right, title and interest in the conditional dedication of the property described in the complaint”.

In our opinion the trial court was in error in so holding. The fact that the City, for the period of time involved, had not used the property for the intended purpose of widening the street did not of itself afford basis to hold, as the trial court did, that as a matter of law the City had abandoned the property for the intended street-widening use. Dade County v. City of North Miami Beach, 69 So.2d 780 (Fla.1954). See also: Leslie Enterprises, Inc. v. Dade County, 293 So.2d 73, 75 (Fla. 3d DCA 1974).

In the North Miami Beach case, in which failure of the county to use property for the purpose for which it was conveyed, for a period of 17 years, was held not to be abandonment as a matter of law, the Supreme Court said:

“Some of the cases hold that when no time is fixed in the deed for reversion to take place a reasonable time consistent with the intention of the parties, the thing to be accomplished and the circumstances incident to its accomplishment will be considered to have been intended. A mere delay in the application of the land for the purpose of the grant or its improper use therefor will not impair the grant nor will it authorize the grantor to repossess it. When as in this case there is no dispute about these facts, what constitutes reasonable time is a question of law. [Citations Omitted] Since abandonment may not be shown by proof of nonuse, delay in use when the public need is not pressing does not constitute abandonment.
******
“Abandonment is a question of intent and he who asserts it, has the burden of proving it. Nonuse is only evidence that may or may not point to abandonment. * * * The evidence shows conclusively that the county has had this and other projects for park purposes in mind for years and that it is proceeding with them as it deems best, as the circumstances warrant, as the need for them arises and means permit. The evidence shows that plans for further improvement of the park are in contemplation as soon as means and conditions justify.”

Applying here the law as pronounced by the Supreme Court in the North Miami Beach case, it is evident that the City’s delay in using the property to widen the street did not in law constitute an abandonment by the City, nor did the complaint otherwise show that the City had renounced the planned widening of the street or had taken any action amounting to affirmative abandonment by the City. On the contrary, by answer the City denied abandonment, and averred it was its purpose to use the property for street widening in the future when conditions should justify or require. From the outset, as revealed by the documents attached to the complaint, the widening of the street was a matter planned for the future, and no time limit was imposed on the City for its use for that purpose. In the circumstances the nonuse did not establish abandonment. To the extent that intent would bear on the question of abandonment, the bare pleadings did not furnish evidence of intent that would settle the question.

The appellee cites Woodlawn Park Cemetery Co. v. City of Miami, 104 So.2d 851 (Fla. 3d DCA 1958) and relies thereon as an authority supporting the judgment. In our view that decision is not in point or applicable to this case. There the City, prior to 1945, had identified a certain street as a 70 foot right-of-way. In platting a tract adjacent to the street in 1945 Woodlawn was required to dedicate a 35 foot strip, to the center of the right-of-way, to the City for. its use for such street. In 1951, by ordinance, the City reduced the width of the street, establishing it as a 50 foot street, consisting of 25 feet on each side of the center line. That was affirmative action by the City which properly was held to amount to abandonment of the outside 10 feet of the 35 foot dedication which had been made to the City by Woodlawn for street purposes. In Woodlawn the court referred to Dade County v. City of North Miami Beach, supra, as having held that nonuse alone is evidence that may or may not point to abandonment, and that nonuse for the purpose for which dedicated, for 17 years, was not an unreasonable length of time.

Although in this case the trial court did not predicate the judgment on the statute invoked by the plaintiff [Sections 255.22 and 255.23, Florida Statutes (1975), it is to be observed that the provisions thereof would not support the judgment entered on the pleadings. That is so for two reasons. First, whether the conveyance was or was not for “valuable consideration” is not established by the pleadings. The complaint alleged the conveyance was without consideration. The answer denied that, and averred the contrary. Secondly, for the cited statute to operate to prompt reconveyance, the applicant therefor must be the owner of the land abutting that which was deeded to the City. There is no allegation in the complaint as amended that the plaintiff remains the abutting owner.

For the reasons stated the judgment entered on the plaintiffs motion for judgment on the pleadings is reversed, and the cause is remanded for further proceedings.

HENDRY, J., dissents.


text:
    Enrique BEHAR, Appellant, v. Joseph ZALMANOFF et ux., Appellees.
    No. 77-968.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied June 28, 1978.
    Allen Kornblum, Miami, for appellant.
    I.R. Mayers, Miami, for appellees.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Procacci v. Zacco, 324 So.2d 180 (Fla. 4th DCA 1975); Hanna v. Means, 319 So.2d 61 (Fla. 2d DCA 1975); Reyes v. Perez, 284 So.2d 493 (Fla. 4th DCA 1973).


text:
    Robbie CLICK, Individually, and as personal representative of the Estate of Clifford W. Click, Deceased, Appellant, v. Peter M. PARDOLL, M.D., Appellee.
    No. 77-1127.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied June 28, 1978.
    Helliwell, Melrose & Dewolf and Douglas S. Lyons, Miami, for appellant.
    Rentz, McClellan & Haggard, Miami, for appellee.
    Before HENDRY, J., and CHARLES CARROLL (Ret.) and PARKER, J. GWYNN (Ret.), Associate Judges.
   PER CURIAM.

The personal representative of the Estate of Clifford W. Click instituted a wrongful death action against Doctors Hospital and “Dr. John Doe” for alleged malpractice against the hospital and a doctor causing death to the deceased. The action was filed June 30, 1975, the day before the effective date (July 1, 1975) of the Medical Liability Mediation Act requiring all claims of damages of injury, death or monetary loss on account of alleged malpractice by any doctor or hospital to submit such claims to a medical liability mediation panel before filing said claim in any court in the State of Florida.

On September 15, 1976 the trial court granted plaintiff’s motion to amend complaint adding “Dr. Peter M. Pardoll” (in place of “Dr. John Doe”). Service was perfected on Dr. Pardoll on October 6, 1976. Subsequently thereto the order appealed from was entered dismissing the complaint as to Dr. Pardoll and requiring plaintiff to file her cause before a medical mediation panel as to that defendant.

The claim against Dr. Pardoll was not filed until long after the effective date of the Medical Liability Mediation Act. The decisions are uniform that if an amendment would amount to the substitution of an entirely new action, it would not relate back to the date of the original filing. We hold that in this case the amending of the complaint by adding Dr. Pardoll’s name as a defendant under these circumstances constitutes a new action filed as to the doctor so that the amended complaint does not “relate back” to the date the original complaint was filed. Cabot v. Clearwater Construction Company, 89 So.2d 662 (Fla.); Barron and Holtzoff, Federal Practice and Procedure, Section 448; 3 Moore’s Federal Practice, Section 15.15 at pages 1040-41; and Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970).

The right to have an alleged malpractice claim against a doctor to be heard by a duly constituted medical mediation panel is a. valuable property right of the doctor. State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977).

The order of the lower court is accordingly affirmed.


author: KEHOE, Judge.

text:
    Charlotte JONES, Appellant, v. Lynn F. LUMMUS, Administrator ad Litem for the Estate of Floss M. Kramer, Deceased, Appellee.
    Nos. 77-1627, 77-1628.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied June 28, 1978.

      Gladson, Knecht & Sullivan and David A. Crowley, Coral Gables, for appellant.
    Quinton, Leib & Lummus and James D. Adams, Miami, for appellee.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a summary judgment entered by the trial court in favor of appellee. Appellant contends the court erred in holding that the filing of a timely claim against an estate, in accordance with the statutory procedure governing such claims, does not toll the running of the Statute of Limitations in regard to the time within which suit may be filed on the claim. We agree and reverse.

On July 9, 1973, appellant presented a timely claim against the estate of Floss M. Kramer for the reasonable value of certain services rendered by appellant to the decedent prior to her death. The claim was rejected by appellee on May 21, 1975. Thereafter, on June 18, 1975, appellant filed her complaint suing for the reasonable value of the services stated in her claim. The complaint alleges that Floss M. Kramer died on May 14, 1973; that Floss M. Kramer, at the time of her death, was indebted to appellant for services rendered in the form of nursing, boarding, lodging, counseling, advising, and for taking care of the decedent almost continuously from February, 1967 to May 9, 1973, but most intensively from February, 1971 through May 9, 1973. Appellee filed a motion for summary judgment on the sole grounds that, as a matter of law, the entire claim was barred by the Statute of Limitations. The trial court granted the motion and ordered that the estate go hence without day and recover its costs from appellant.

Counsel for appellee contends, which contention is clearly reflected by the record, that the learned trial judge based his ruling on our holding in Azaroglu v. Jordan, 270 So.2d 422 (Fla. 3d DCA 1972), wherein we held that the filing of a timely claim, pursuant to Section 733.16(1), Florida Statutes (1971) does not toll the running of the Statute of Limitations. However, in Miami Beach First Nat’l. Bank v. Borbiro, 201 So.2d 571 (Fla. 3d DCA 1967), this court upheld and followed the provisions of the probate code suspending the running of the Statute of Limitations against a claimant and substituting the non-claim procedure where a claimant files a timely claim against the estate. It appears that we have reached diametrically opposed results in these two cases based on indistinguishable factual situations. In the light of this dilemma, we now exercise our appellate prerogative and recede from the viewpoint expressed in Azaroglu and cede to the point of view expressed in Borbiro. This affirmation is compatible with a long line of cases holding that the presentation of a claim by a creditor to the administrator of an estate tolled the Statute of Limitations. See, e. g., Ramseyer v. Datson, 120 Fla. 414, 162 So. 904 (1935); Barnes v. Scott, 29 Fla. 285, 11 So. 48 (1892); Deans v. Wilcoxon, 25 Fla. 980, 7 So. 163 (1889); Bush v. Adams, 22 Fla. 177 (1886); Sanderson’s Adm’rs. v. Sanderson, 17 Fla, 820 (1880); and McDonald v. Bogue, 14 Fla. 363 (1874). We are further persuaded by the arguments of Professors Fenn and Koren in commenting on Azaroglu as follows:

“. . . it seems most unfair to the creditor. He no longer can bring suit as an alternative to filing his claim. Having filed the claim, he should be entitled to expect ‘like proceedings had as in other claims against the estate’ and not be required to devise some method of expediting or avoiding the non-claim procedure in order to establish his rights prior to the running of the regular statute of limitation.” H. Fenn & E. Koren, The 1974 Florida Probate Code — A Marriage of Convenience, 27 U.Fla.L.Rev. 615, 666 (1975).

Appellant, in her second point on appeal, contends that the trial court erred in applying a two year statute of limitations to her cause of action for personal services rendered the decedent. We disagree with this contention. Implicit within the trial court’s order granting appellee’s motion for summary judgment was a finding that appellant’s cause of action for her personal services rendered was, in essence, an action for the recovery of wages due and, therefore, the statute of limitations for such actions was applicable. We agree with this proposition and, accordingly, have concluded that appellant’s second point on appeal is without merit. See generally Keel v. Brown, 162 So.2d 321 (Fla. 2d DCA 1964); and Buenger v. Kennedy, 151 So.2d 463 (Fla. 2d DCA 1963).

Based upon the reasons and the authorities set forth above, and in the light of the applicable law, it is our opinion that the summary judgment appealed should be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Jill WEISSMAN, Appellant, v. Donald RAY and Steakthing Restaurant Corporation, d/b/a Les Jardins, Appellee.
    No. 77-1794.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rehearing Denied June 28, 1978.
    Levy & Cohen, Miami, for appellant.
    Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellee.
    Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977).


author: ANSTEAD, Judge.

text:
    Vincenzo ARMETTA et al., and all those listed in Schedule A attached hereto, Appellants, v. CLEVETRUST REALTY INVESTORS et al., Appellees. INTERVENORS GROUP II, Appellant, v. CLEVETRUST REALTY INVESTORS, and the Barth Corporation, et al., Appellees.
    Nos. 76-2258, 76-2372.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied June 28, 1978.

      Alan S. Becker and Peter S. Sachs of Becker, Poliakoff & Sachs, P. A., Fort Lauderdale, for appellants.
    Stanley L. Seligman of Stanley L. Selig-man, P. A., Hollywood, for appellant inter-venors Group II.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellees.
   ANSTEAD, Judge.

Appellants, condominium' unit purchasers, challenge the trial judge’s order granting a motion to dismiss several counts in appellants’ counterclaim against the appellee-mortgage lender, Clevetrust Realty Investors. We affirm.

In June 1973 Clevetrust entered into an agreement whereby it lent money to the Barth Corporation for the construction of Emerald Isles West, a condominium project in Davie, Florida. The loan was secured by a mortgage. On October 16, 1974, Cleve-trust filed a complaint to foreclose the mortgage against the Barth Corporation. On October 25, 1974, the appellant purchasers filed a motion to intervene, which was granted. The appellants were seeking some $1.5 million dollars in deposits paid to the developer. In addition to seeking relief against the developer, the appellants filed various counterclaims against the appellee lender. The trial judge dismissed with prejudice several counts of the counterclaim which were based on breach of fiduciary duty, accounting, negligence, and joint venture.

Both Counts III and IX are predicated on the existence of a fiduciary relationship between the appellants and appellee which the appellants claim was created by Section 711.25 (1971) of the Florida Statutes and Paragraph 14 of the mortgage between the appellee and the developer, Barth.

At the time in question Section 711.25 restricted the uses to which sellers and developers could utilize deposit monies paid by condominium purchasers. In paragraph 14 of the mortgage agreement the appellee lender placed restrictions on the developer Barth similar to those contained in Section 711.25. However, neither the statute or paragraph 14 creates a duty on the part of the appellee lender to collect and manage these deposit monies. Both provisions impose a duty on the seller and the developer. The statute protects the purchaser and paragraph 14 protects the lender, but neither provision imposes a fiduciary duty on the lender to protect the purchaser.

Count X of the counterclaim seeks to impose liability on the appellee lender for a variety of alleged negligent acts in supervising the developer’s actions. This claim is largely predicated on Connor v. Great Western Savings and Loan Association, 69 Cal.2d 850, 73 Cal.Rptr. 369, 447 P.2d 609 (1968) and Dunson v. Stockton, Whatley, Davin & Co., 346 So.2d 603 (Fla. 1st DCA 1977).

In Dunson the court found that the lender assumed complete control of the developer-borrower’s building operations so that:

The separate identities of lending institution and construction company were extinguished and the identities merged into one, as did the identities of mortgagor and mortgagee. Id. at 606.

The court went on to hold that under such circumstances the lender was estopped from disregarding a construction contract entered into between the builder and the original owner of the mortgaged land who had conveyed the property to the builder so the builder could obtain construction financing.

In Connor a lender was held liable to home purchasers not in privity with the lender because the lender had acted beyond the role of lender and had become an active participant, along with the developer, in the home construction enterprise. The California court noted:

Even though Great Western is not vicariously liable as a joint venturer for the negligence of Conejo, there remains the question of its liability for its own negligence. Great Western voluntarily undertook business relationships with South Gate and Conejo to develop the Weath-ersfield tract and to develop a market for the tract houses in which prospective buyers would be directed to Great Western for their financing. In undertaking these relationships, Great Western became much more than a lender content to lend money at interest on the security of real property. It became an active participant in a home construction enterprise. It had the right to exercise extensive control of the enterprise. Its financing, which made the enterprise possible, took on ramifications beyond the domain of the usual money lender. It received not only interest on its construction loans, but also substantial fees for making them, a 20 percent capital gain for “warehousing” the land, and protection from loss of profits in the event individual home buyers sought permanent financing elsewhere. Id., 73 Cal.Rptr. at 376, 447 P.2d 616 at 616.

The allegations involved herein fall short of both Dunson and Connor. Although appellants assert that Clevetrust became an active participant in the condominium construction project, their pleadings contain insufficient factual allegations to support this conclusion. Nor is it alleged that the appel-lee lender took over control of the developer. Most of the complaints relate to the default of the developers for which the appellants seek to impose liability on the lender through supervisory terms of the loan agreement. However, we find nothing in the terms of the loan agreement which makes the lender an active participant in the development beyond the traditional role of mortgage lender.

A lender owes no duty to others to supervise the construction and development of projects which it has financed. Schaeffer v. Gilmer, 353 So.2d 847 (Fla. 1st DCA 1977). The only supervisory provisions contained in the loan agreement were inserted for the protection of the lender, as a lender, not as a participant in the development. We reject Connor to the extent that it is interpreted as broadly holding a lender liable to third party purchasers of dwelling units constructed and sold by the developer-borrower. Even when a lender is in privity with a purchaser, provisions in the mortgage for inspection by the lender of the project do not give rise to a duty by the lender to the purchaser-mortgagor to see that the project is properly constructed. Rice v. First Federal Savings and Loan Association of Lake County, 207 So.2d 22 (Fla. 2d DCA 1968). Absent unusual circumstances, such as contained in the Con-nor and Dunson cases, provisions contained in a loan agreement solely for the protection of the lender do not create a duty on the part of the lender to others.

Appellants also rely on the case of A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973) which sets out a professional architect’s responsibility to third persons for negligence. Also see McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976). Those cases have no application here. As stated above, a lender owes no duty to others to supervise financed construction. There is little, if any, analogy between the role of an architect in supervising the construction of a project and that of a lender who supplies the funds.

As to Count XV on joint venture, we feel the complaint has the same deficiencies as were noted in First Wisconsin National Bank v. Roose, 348 So.2d 610, 611 (Fla. 4th DCA 1977):

There is no allegation of any agreement between the mortgagor and mortgagee except the agreement for financing. There is no allegation of a joint proprietary interest in the development. There is no allegation of a community of interest in the performance of a common purpose and no allegation that each would share in the profits and losses. Absent clear allegations in accordance with the guidelines established in the cases cited above, we cannot impose a duty upon a mortgagee greater than the one established as a money lender and security holder. Id. at 611.

The interest of the appellee lender is admittedly that of money lender and security holder. For example, no allegations are made that any profits or losses were anticipated by the appellee lender beyond those anticipated as interest charged on the money loaned.

The appellants also claim procedural error by the trial judge for considering matters outside the amended counterclaim in granting appellee’s motion to dismiss and in subordinating appellants’ claim to the main suit already pending. We find no error. From our review of the pleadings set out above, we find there was legal justification for granting the motion to dismiss. And, as evidenced by Fla.R.Civ.P. 1.230, intervention is subordinate to and recognizes the propriety of the main proceeding. Trawick’s Fla.Prac. and Proc., § 4-9, Intervention (1977). No justifiable reason for holding otherwise has been demonstrated here.

AFFIRMED.

DOWNEY, C. J., and DAUKSCH, J., concur.


author: COWART, Jr., JOE A., Associate Judge.

text:
    In re ESTATE of Samuel B. CHARRY, Deceased.
    No. 77-713.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied June 26, 1978.
    Evan J. Langbein of Dubbin, Schiff, Berkman & Dubbin, Miami, for appellant.
    Howard L. Kuker of Trager & Schwartz, Miami Beach, for appellee.
   COWART, Jr., JOE A., Associate Judge.

This is an appeal from an order denying a petition to revoke a codicil.

The testator signed at the end of the codicil. Immediately following his signature and on the same piece of paper was a fully executed “officer’s certificate” or self-proof affidavit in the exact form set forth in Section 732.503, F.S., 1975. There was no separate attestation clause and the two witnesses signed the self-proof affidavit along with the testator.

The appellant urges that the self-proof statute contemplates that a will first be properly signed by the testator and witnesses and that it may then be made self-proving by the addition of a self-proof affidavit. We agree that is the proper method of execution but, nevertheless, affirm the order of the trial court.

Appellant cites many Texas cases that hold that the self-proof affidavit relates to proof only and is not part of the will whether on the same instrument or attached as a separate document, and, therefore, the signatures of testator and witness on the affidavit are not on the will. In the case of In re Schiele's Estate, 51 So.2d 287 (Fla.1951), the testator did not sign the form will on the line provided but signed in the attestation clause. While recognizing that the attestation clause was not a part of the will the court declined to hold the will invalid remanding it for a factual determination of whether the testator signed with testamentary intent. The better view is that attestation clauses and self-proof affidavits are not necessary or essential parts of a will but when incorporated into a will they are not improper parts of it. The Texas view places form above substance and we decline to follow it.

The appellant here argues that the phrase “attesting witness” includes not only the physical act of observing the testator sign his will and of the witness himself signing but requires the witness to have the mental intent to sign as a witness and that here the witnesses signed not as witnesses but for testimonial purposes only in order to avoid the legal necessity of later presenting evidence in court to prove the codicil. In the case of In re Lomineck’s Estate, 155 So.2d 561 (Fla. 1st DCA 1963), the person who performed the act of signing an incapacitated testatrix’ name to the will added his own name with the prefix “per”. It was argued that that person signed only as the agent of the testatrix and not as a subscribing witness but the court held that he was an attesting and signing witness. Section 732.502, F.S., 1975, requires the testator to sign his will at the end in the presence of at least two attesting witnesses who must sign in the presence of each other and in the presence of the testator. The testator must sign with testamentary intent and at the end of the will. Each witness must see the testator sign and each witness must sign in the presence of the testator and of the other witness. There is no requirement that the witnesses sign at any particular place or with any particular mental intent. To require that a witness have any specific mental intent when he subscribes a will would make the validity of every will subject to the testimony of any witness that he did not have the requisite particular intent when he signed. We decline to add this dangerous concept to the requirements of the statute.

AFFIRMED.

DAUKSCH and MOORE, JJ., concur.

      . McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App.1965); Boren v. Boren, 402 S.W.2d 728 (Tex.Sup.1966); Cooper v. Liverman, 406 S.W.2d 927 (Tex.Civ.App.1966); In re Estate of

        Pettengill, 508 S.W.2d 463 (Tex.Civ.App.1974); Cherry v. Reed, 512 S.W.2d 705 (Tex.Civ.App.1974); McLeroy v. Douthit, 535 S.W.2d 771 (Tex.Civ.App.1976), affirmed 539 S.W.2d 351 (Tex.Sup.1976).


author: DOWNEY, Chief Judge.

text:
    James Arthur O’BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-870.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied June 28, 1978.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

By amended information appellant was charged with burglary of a motor vehicle in violation of Section 810.02, Florida Statutes (1975). The information alleged the vehicle was “the property of Strazulla Brothers Co., Inc.” The proof of ownership relied on by the State was adduced through Joseph P. Strazulla, President of Strazulla Brothers Co., Inc. He referred to the vehicle in question as “my girl’s car” which he was driving on the occasion of the burglary. He also referred to the car as “my car” when describing the proximity of appellant’s automobile to the vehicle in question.

The recent cases holding that ownership is any possession that is rightful as against the burglar would seem to make it rather easy for the State to prove “ownership” of the burglarized property. However, the State still must prove the allegations as laid in the information. We find the proof here woefully inadequate.

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

REVERSED AND REMANDED with directions.

CROSS and DAUKSCH, JJ., concur.

      . In the Interest of M. E., 357 So.2d 1052 (Fla. 4th DCA 1978); Anderson v. State, 356 So.2d 382 (Fla. 3d DCA 1978); Dorsey v. State, 324 So.2d 159 (Fla. 1st DCA 1975).


author: DAUKSCH, Judge.

text:
    HILLCREST EAST NO. 23, INC., etc., et al., Appellants, v. HOLLYWOOD BEACH HOTEL DEVELOPMENT CO., INC., etc., et al., Appellees.
    No. 77-2432.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied June 28, 1978.

      Jeffrey E. Streitfeld of Becker, Poliakoff & Sachs, P. A., Fort Lauderdale, for appellants.
    Gary S. Brooks of Williams, Salomon, Kanner & Damian, Miami, for appellees.
   DAUKSCH, Judge.

At issue in this interlocutory appeal is an order granting Appellees' petition for withdrawal of rental deposits from the court registry pursuant to Section 718.401(4), Florida Statutes (1977).

Appellants, the plaintiffs below, are the condominium association and individual unit owners who are lessees under a long-term condominium recreation lease. Appellees, the defendants below, include the condominium developer (Hollywood Beach Hotel Development Co., Inc.) and the lessor under the recreation lease (Hillcrest Management Company).

Following the commencement of their action against Appellees, Appellants began depositing monthly rentals due under the recreation lease into the court registry as permitted by Section 718.401(4), Florida Statutes (1977). The monthly deposits amounted to $9,345. Some three months later, Appellees petitioned for withdrawal of the deposited funds from the registry, alleging that Section 718.401(4), Florida Statutes (1977) is unconstitutional and, alternatively, that the deposited funds are needed for the “payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintain and equipping the leased facilities.”

The lower court declined to rule on the constitutionality of Section 718.401(4), Florida Statutes (1977), but ordered the clerk of the court to disburse to Appellees the sum of $5,130 each month from the monthly deposits made intó the registry by Appellants. The court specifically found that the evidence showed that the deposited funds were needed for purposes set forth in Section 718.401(4), Florida Statutes (1977).

The testimony of the executive vice-president of the development company, who was the sole witness at the hearing, established that the developer owns the recreation facility and maintains a subsidiary, Hillcrest Management Company, to manage and maintain the recreation facility. It is undisputed in the record that more than one half of the money which the developer requested from the court registry was to be used for expenses incurred by Hillcrest Management Company in maintaining its own business. For example, the developer sought funds to pay taxes but these are taxes on the developer’s office building, located across the street from the recreation facility, in which Hillcrest Management Company maintains its offices. Other expenses listed include salaries, employee benefits, telephone, utilities, insurance, and office supplies. These are all expenses involved in the operation of the management company’s office. The only listed expense which may be directly related to the recreation facility is a $2,185 monthly mortgage payment. The sole witness testified that the mortgage encumbers the recreation facility. However, no documentary evidence of the note or mortgage was offered at the hearing. This would have been the primary and best evidence of the existence of a mortgage. Appellants’ counsel appropriately objected to the secondary evidence.

The relevant portion of Section 718.-401(4), Florida Statutes (1977) provides:

“When the unit owner has deposited the required funds into the registry of the court, the lessor may apply to the court for disbursement for all or part of the funds shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities.” (Emphasis supplied.)

First, with regard to mortgage payments, if the mortgage encumbers the leased facility, the lessor is entitled to disbursement of deposited funds to make the payments. Palm-Aire Country Club Condominium Association No. 2, Inc. et al. v. F. P. A. Corporation, etc., et al., 357 So.2d 249 (Fla. 4 DCA 1978). However, this presupposes proof of the existence of the mortgage and that it encumbers the recreation facility. It was error to order disbursement of deposited funds for mortgage payments in the absence of documentary proof establishing the mortgage.

With regard to the disbursement of funds to cover expenses incurred by the management company in operating, maintaining and equipping its own office, not the recreation facility, an implicit finding in Palm-Aire Country Club Condominium Association No. 2, Inc. et al., supra, is that the deposited funds must be needed for expenses directly related to the leased premises. While we found in Palm-Aire, supra, that the phrase “incident to maintaining and equipping the leased facilities” refers to “other necessary expenses”, it is still true that deposited funds can be used only for expenses in some way directly related to the recreation facility. For example, such funds can be used for mortgage payments only if the mortgage encumbers the leased premises. Deposited funds could not be used to make payments on a mortgage encumbering some other property which is not the subject of the lease. Similarly, “taxes” means taxes on the recreation facility and “maintenance and operating expenses” refers to expenses directly relating to the recreation facility. Any other interpretation of the statute would strain logic and would permit disbursement for purposes clearly not contemplated by the statute.

The part of the order disbursing funds for expenses incurred by the management company in operating its own office is reversed. The cause is remanded for further evidentiary proceedings concerning the existence of the mortgage covering the leased facilities.

REVERSED and REMANDED.

CROSS and LETTS, JJ., concur.


text:
    Richard S. LUBBEN, d/b/a Richard S. Lubben and Sons, Appellant, v. Margaret SEMENEK, Matthew A. Colletti and Dolores M. Colletti, Appellees.
    No. 77-2728.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied June 28, 1978.
    A. Matthew Miller of Miller & Schwartz, P. A., Hollywood, for appellant.
    Richard A. Rosenberg, Fort Lauderdale, for appellee Margaret Semenek.
   PER CURIAM.

Upon review of the record this court is of the opinion that the trial court abused his discretion in vacating the default judgment. Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So.2d 1329, Fla. 4th DCA, opinion filed April 4, 1978; In re Aston, 245 So.2d 674 (Fla. 4th DCA 1971). Accordingly, the order vacating the default judgment is hereby reversed.

REVERSED.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.


author: PER CURIAM. DOWNEY, Chief Judge,

text:
    Edwin E. BRABETZ and Bertha Brabetz, his wife, Appellants, v. Delores STRANGE, D. A. Boucher and Esther R. Boucher, his wife, et al., Appellees.
    No. 78-321.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Barry G. Roderman of Barry G. Roder-man & Associates, P. A., Fort Lauderdale, for appellants.
    Peter N. Hanna, Fort Lauderdale, for appellee, Massi.
    Abraham B. Rosenberg, Hollywood, for appellees, Strange and Boucher.
   PER CURIAM.

AFFIRMED.

DAUKSCH and LETTS, JJ., concur.

DOWNEY, C. J., concurs specially, with opinion.

DOWNEY, Chief Judge,

concurring specially:

This is an interlocutory appeal from an order denying a motion to vacate an order of abatement.

Almost everything said in the briefs regarding what transpired in the court below is de hors the record because we have no record or appendix. Thus, an affirmance is required and ordinarily no opinion would be justified. However, we glean from the briefs that the trial court entered an order abating or continuing this case in the trial court until a decision is rendered in the case of Franklin v. White Egret Condominium, 358 So.2d 1084, pending in this Court. We would assume that either the trial judge or one of the parties, or both, felt a decision in White Egret would assist in the decision of this case. But obviously appellants, as the plaintiffs below, object to the abatement or continuance of their case awaiting the eventual outcome of White Egret and I think they were justified in their objection.

Where one of the parties to pending litigation objects, I do not believe the trial court has the authority, absent some very compelling circumstance (which I am unable to articulate), to abate or continue the case awaiting a decision in another case involving different parties.

Accordingly, I concur in the decision to affirm because the record is inadequate to reach the merits of the appeal.


text:
    LINDER INDUSTRIAL MACHINERY CO., Appellant, v. LE-BERT INTERNATIONAL, INC., Appellee.
    No. 76-2150.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied June 28, 1978.
    Hall & Hedrick and John F. Cosgrove, Miami, for appellant.
    Bryson & Berman, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Griffith v. Shamrock Village, Inc., 94 So.2d 854, 858 (Fla.1957); Underwriters National Assurance Co. v. Harrison, 338 So.2d 58, 60 (Fla. 3d DCA 1976); Roger Holler Chevrolet Co. v. Arvey, 314 So.2d 633 (Fla. 4th DCA 1975); Ashland Oil, Inc., v. Pickard, 269 So.2d 714, 720 (Fla. 3d DCA 1972); Fred S. Conrad Construction Co. v. Exchange Bank of St. Augustine, 178 So.2d 217, 221 (Fla. 1st DCA 1965); Crews v. Warren, 157 So.2d 553, 555-556, 561 (Fla. 1st DCA 1963).


text:
    Bernardo DeCASTRO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2205.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, appeals a judgment of conviction entered pursuant to a jury verdict on two counts of robbery and two counts of possession of a firearm during the commission of a felony. Appellant was sentenced to 15 years of imprisonment on each of the robbery convictions, to be served consecutively; sentence was suspended on the remaining two counts. We affirm.

Appellant filed a pre-trial motion to suppress certain confessions, admissions, and statements on the grounds, among others, that the statements were obtained in violation of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) [hereinafter cited as Miranda], and that the statements were given involuntarily. The motion was heard prior to the start of the trial on October 26, 1976. Following the hearing, the motion was denied as to the statement relevant to this case.

Appellant contends that the trial court erred in denying his motion because the statement obtained from him was inadmissible on two grounds: (1) the statement was involuntary; and (2) the waiver of his Miranda rights was involuntary. Appellant argues that he was illegally induced to make the statement, thereby making it involuntary, because the interrogating officer promised to make every effort to see that other charges pending against appellant would not be prosecuted if he would make a statement. Appellant also argues that the interrogating officer promised to obtain methadone treatment for him, if he would make a statement.

It is undisputed by appellant and appellee that an involuntary confession or statement is barred from prosecutorial use by the Fourteenth Amendment to the Constitution of the United States. To be admissible, a statement must be voluntary; it cannot be the product of threats, violence, or improper influence. See, e. g., Brooks v. Florida, 389 U.S. 413, 88 S.Ct. 541, 19 L.Ed.2d 643 (1967); and Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).

In the light of appellant’s contentions and arguments, we have scrutinized the record and have determined that, appellant was not promised anything in return for his statement in this case and that the promise of methadone treatment was not used as an inducement for him to confess. We note that appellant did not testify at the hearing on his motion to suppress, which he could have done without waiving his privilege against self-incrimination at trial. Simmons v. State, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); and Dempsey v. State, 238 So.2d 446 (Fla. 3d DCA 1970).

Further, based on our scrutinization of the record, we find appellant’s contention that he involuntarily waived his Miranda rights to be without merit.

In a motion to suppress evidence the trial judge is the trier of both fact and law. His conclusions come to the appellate court clothed with a presumption of correctness, and in testing the accuracy of his conclusions, the court should interpret the evidence and all reasonable inferences capable of being drawn therefrom in the light most favorable to sustain them. Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975); and Rodriguez v. State, 189 So.2d 656 (Fla. 3d DCA 1966).

Based upon the reasons set forth above and the applicable law, we are of the opinion that the trial court correctly denied appellant’s motion to suppress. Accordingly, the judgment of conviction and sentence appealed should be affirmed.

Affirmed.


text:
    Calvin Lewis WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1770.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Seherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

The single point urged on this appeal from the revocation of appellant’s probation is that the trial judge erred in denying the appellant’s motion for a continuance of the revocation hearing. The appellant pleaded guilty to three counts of breaking and entering and three counts of grand larceny. He was placed on probation for ten years.

A preliminary hearing was held on December 20, 1976, on two new charges against the defendant: (1) carrying a concealed firearm and (2) loitering where narcotics are sold.

An affidavit of violation of probation was filed on December 29, 1976. A hearing on the violations of probation by carrying a weapon was held on March 28, 1977. Defense counsel requested a continuance because he had not deposed all of the police officers prior to the hearing. The court granted a continuance of two days for the defense to present its case but permitted the State, whose witnesses were present, to go forward with the case. On March 30th, defense counsel, after concluding its defense, renewed the request for continuance. The second request was denied. It is this order upon which error is urged.

We hold that a denial of due process does not appear on this record. See State v. Heath, 343 So.2d 13 (Fla.1977); Bernhardt v. State, 288 So.2d 490 (Fla.1974).

Affirmed.


text:
    FIRST NATIONAL BANK OF POMPANO BEACH, Appellant, v. TITUSVILLE ANSWERING SERVICE, INC., a Florida Corporation, and George P. Atkins and Karen A. Atkins, his wife, Appellees.
    No. 76-2554.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.

      Fred D. Leone, Cocoa, for appellant.
    Kenneth A. Studstill of Studstill & Kutsche, P. A., Titusville, for appellees.
   DOWNEY, Chief Judge.

Mr. and Mrs. Molitor and Mr. and Mrs. Atkins formed a corporation, Titusville Answering Service, Inc., the corporate stock of which was equally divided between them. The parties entered into a Stockholders Agreement “to set forth their understanding and agreement as between them and said Corporation”. In pertinent part the Stockholders Agreement provided that the authorized stock of the corporation was 500 shares. With reference to the sale and valuation of the corporate stock the agreement states:

“7. That the parties hereto will not sell, alien or convey the stock now held by them to any person (excepting only MR. AND MRS. MOLITOR, or either of them may convey or assign all or any part of the stock held by them to DONALD N. MOLITOR without violating any of the terms hereof) without first offering same to the Corporation at the price determined as being its value, in accordance with the annual audit of the Corporation. Upon the completion of the annual audit of the Corporation, the auditors shall certify as to the value per share of the Corporation’s capital stock, taking into account the then market value of all of the Corporation’s assets. Unless excepted to in writing within thirty (30) days, this value shall be conclusive upon the Stockholders. However, and as an alternate method available to the Stockholders at their unanimous option and provided further, that the decision to exercise said option is conveyed in writing to the Corporation within said thirty (30) day period aforesaid, the Stockholders can convene in special meeting for the purpose of establishing a per share value of the capital stock of the Corporation taking into consideration such intangible items as goodwill, competition, economic conditions generally in the service area of the Corporation, etc. The per share valuation so determined by the Stockholders shall be binding upon them for the purposes hereinafter recited until the next annual audit. In the event that no agreement is reached by the Stockholders then the valuation determined by the auditor shall govern. In the event the Corporation does not accept the offer of the stockholder to sell his stock to it, the Stockholder will next offer it to the remaining Stockholders, in equal portions, at the price at which he proposes to sell it to any person other than the parties hereto, and will give the other Stockholders the right of first refusal of any offer of sale made by him. In the event that one or more of the remaining Stockholders do not desire to exercise their right to purchase the stock of the offering Stockholder, then and in such event, the remaining Stockholders can purchase, on the same terms and price, such additional shares.
“8. That in the event of the death of either the survivor of MR. AND MRS. MOLITOR or the survivor of MR. AND MRS. ATKINS, the Corporation will purchase, and the representative of such deceased Stockholder will sell, the stock held by such decedent at its value, as determined in accordance with the provisions of the preceding paragraph governing the sale of stock to the Corporation, said purchase price to be paid as follows, to-wit: 29% of said value in cash, and the remainder in debenture notes of the corporation. The debenture notes which are to be issued upon offer of said stock for sale, shall pay interest at not less than 6.5% per annum, shall mature serially over a period of three (3) years with interest payable annually. The said debenture notes shall take priority in liquidation, and shall be secured by a pledge of the capital stock purchased with said debenture notes. In the event of default in the payment of principal or interest when due, all of said debentures shall become due and payable, and the holder thereof shall be entitled to receive in full payment thereof the capital stock of the Corporation pledged as aforesaid.”

Both of the Molitors died in 1973, the wife being the survivor. On January 21, 1974, counsel for the Atkins wrote appellant enclosing a copy of a letter from the corporate accountant which, among other things, states that “[b]ased on the book value the Stock is worth $1436.00 or $2,872 per share”. Mr. Atkins referred to counsel’s letter as an offer on behalf of the corporation to buy the Molitor shares using the book value set by the accountant. In April 1974 appellant wrote counsel for appellee and advised that the personal representative was interested in negotiating an acceptable valuation for the stock in accordance with the Stockholders Agreement and specifically calling counsel’s attention to the provision for evaluating the stock in the context of the market value of the corporate assets. Soon thereafter this litigation ensued with the corporate appellee suing for specific performance of the Stockholders Agreement requiring the appellant to sell the Molitors’ shares to the corporation. Appellant filed a counterclaim and third party complaint in which it prayed: 1) for specific performance of an offer to buy or sell pursuant to Paragraph 16 of the Stockholders Agreement, 2) for judgment for dividends due and owing on the Molitor stock, 3) for a restraining order to prohibit the corporation and the officers from violating their duties, and 4) for dissolution of the corporation.

The evidence adduced at trial showed that the parties had never really complied with the strict terms of the Stockholders Agreement. Specifically, they never required the accountant to make an annual audit of the corporation or required him to certify the value of the stock, taking into account the market value of the corporate assets. The accountant had made monthly reports styled “Statement of Operations” showing income and expenses and he had prepared the corporate income tax return. However, neither had there been an “audit” nor any gesture toward certification of the value of the stock until the accountant’s letter forwarded to appellant by appellee’s counsel in January 1974. A Certified Public Accountant testified the corporation was on a cash basis and an “audit” could not be performed.

The trial court entered final judgment for appellee and ordered appellant to convey the Molitors’ shares to the corporation at the book value found by the accountant for fiscal year 1973. The rational of the trial court’s ruling was that the parties had not complied with the terms of the agreement but rather had treated the tax return as the “audit” provided for; they had not insisted upon a certified stock valuation based upon the market value of the corporate assets, but had accepted the book value produced on the form 1120S Balance Sheet. Thus, the trial court concluded the book value became the conclusive value of the shares.

We feel the trial court misinterpreted the legal effect of the evidence. To begin with, it is quite apparent from the face of the agreement that the parties desired to keep the stock closely held if at all possible. In pursuance of that concept it was agreed that upon the death of both of the Molitors or Atkins the decedents’ stock would be bought by the corporation at its value based upon the market value of the corporate assets as determined by the last annual audit. Regardless of whether the corporate books were subject to “audit” in the strict sense of that word, it is clear the parties never intended to dispose of their stock pursuant to paragraphs 7 and 8 of the agreement at anything less than the value of the stock based upon the market value of the corporate assets. The fact that during the three years of corporate operation none of the parties insisted on receiving proper certification of the value of the stock does not impress us as a waiver of the right upon sale to receive that value. No doubt until such time as a sale was imminent there was no need for the parties to know the stock’s value based upon the market value of the corporate assets.

Thus, we hold that, if appellee corporation is entitled to specific performance at all, it would be on the basis of a purchase of the Molitors’ stock at its value based upon the market value of the corporate assets as of the date of Mrs. Molitor’s death. We do not conclude that the corporation is or is not entitled to specific performance because we feel that the trial court should make that determination in conjunction with his determination of the issues raised by appellant’s counterclaim and third party complaint.

The final judgment makes no mention of the appellant’s counterclaim and third party complaint. However, the transcript of the testimony reflects that the trial judge felt he need not rule on appellant’s counterclaim and third party complaint if he granted appellees’ complaint for specific performance. Right or wrong, in view of our reversal of the judgment, it is incumbent upon him to now consider appellant’s counterclaim and third party complaint and rule thereon and, if necessary, take further testimony on the issues raised by the pleadings.

Accordingly, the judgment appealed from is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED with directions.

LETTS and ANSTEAD, JJ., concur.


text:
    W. C. BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 77-591.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.

      Richard L. Jorandby, Public Defender, Joseph R. Atterbury, Legal Intern, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   DURANT, Jr., N. JOSEPH, Associate Judge.

We consider here whether or not under the laws of the State of Florida there is such a crime as attempted accessory after the fact.

A person is an accessory after the fact where he maintains, assists or gives an offender any aid, knowing that he committed a felony “with intent that he shall avoid or escape detection, arrest, trial or punishment.” Section 777.03, Florida Statutes (1975). In Henderson v. State, 55 So.2d 110 (Fla.1951), our Supreme Court said that:

. for the purpose of a similar verdict the words “attempt” and “intent” were synonymous.

And, in the case of King v. State, 317 So.2d 852 (Fla. 1st DCA 1975), the First District made the following pronouncement which is controlling in the case at bar:

If a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime.

It is apparent, therefore, than once an individual attempts to aid a fleeing felon for the purpose of accomplishing the result of helping him avoid detection, then he has actually completed the crime of accessory after the fact.

For the foregoing reasons, we specifically hold that there is no such crime as attempted accessory after the fact, and that the trial judge was correct in refusing to charge the jury on this non-existent crime.

The judgment and sentence rendered by the trial court are, therefore,

AFFIRMED.

ANSTEAD and CROSS, JJ., concur.


author: MOORE, Judge.

text:
    Isiah T. MOODY, Appellant, v. STATE of Florida, Appellee.
    No. 77-678.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.

      Thomas A. Bratten of Bratten & Harris, P.A., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant’s sole basis for appealing the judgment of conviction and sentence on charges of possession and sale of heroin is the failure of the trial court to instruct the jury regarding the fourth and last paragraph of Fla.Std.Jury Instr. (Crim.) 2.11(e) (Entrapment).

We must determine the answers to three questions: (1) whether the standard jury instruction accurately states the burden of proof with respect to the defense of entrapment — i. e., when there is any evidence of entrapment adduced by the defendant or inherent in the State’s case, must the State then prove beyond a reasonable doubt the absence of entrapment?; (2) whether it is error to fail to instruct the jury regarding the State’s burden of proof; and (3) whether any such error can be considered harmless when viewed in the light of the facts in this case?

This is basically a one-on-one case in which appellant’s guilt was determined by the testimony of an undercover narcotics agent and the appellant. The undisputed facts are that the agent and a confidential informant (CI) who was a cousin of appellant, approached appellant at his home in an effort to purchase heroin. Appellant was a known ‘user’ who had been in a drug rehabilitation program for somewhat over one month. The Cl, who did not testify, went into the house and was told by appellant to return in approximately twenty minutes. Upon returning, the Cl, who was known to appellant to have a drug habit, was allegedly holding his stomach and appeared to be sweating and suffering from cold spells and nausea. Appellant testified that he believed the agent to be his cousin’s (CI) girl friend and that she also stated that she was sick. Because appellant had no drugs in his home, the trio (appellant, agent and CI) proceeded to five different locations before appellant was successful in making a purchase with money provided by the agent. Appellant also testified that he had no intention to purchase drugs (although he retained part of the purchase), and would not have done so if it had not been for his cousin and that he felt sorry for him.

The burden of proof in entrapment cases has been a troublesome area and the principles involved vary depending upon the jurisdiction. The Florida courts do not appear to have addressed the issue directly although two have indicated that the burden of adducing evidence is on the defendant. Evenson v. State, 277 So.2d 587, 591 (Fla. 4th DCA 1973); Koptyra v. State, 172 So.2d 628, 632 (Fla. 2d DCA 1965). In Koptyra, however, the court indicates that the defendant will not have the initial burden of adducing evidence if “ . . . the facts relied on otherwise appear in evidence to such an extent as to raise in the minds of the jury a reasonable doubt of guilt.” At 632. While these cases may lack clarity in dealing with the burdens of proof they are consistent with each other and are not inconsistent with Fla.Std.Jury Instr. (Crim.) 2.11(e). They indicate that an accused has the initial burden of adducing evidence on the defense of entrapment, and after such evidence has been adduced, the burden shifts to the State to prove, by some standard, that the defendant was not entrapped. See Dupuy v. State, 141 So.2d 825 (Fla. 3d DCA 1962) where, at 827 the Court stated:

“ . . .it would seem that in a case where the defense of entrapment is raised it is incumbent upon the state to make a showing amounting to more than mere surmise and speculation that the intent to commit crime originated in the mind of the accused and not in the minds of the officers of the government.” (emphasis added).

This Court, in Story v. State, 355 So.2d 1213 (Fla. 4th DCA 1978) stated:

“Once the evidence is introduced which suggests the possibility of entrapment, the State must prove that the defendant was predisposed to commit the offense charged.”

An early approach to the problem by the federal courts is found in United States v. Sherman, 200 F.2d 880 (2d Cir. 1952) where, at 882, Judge Learned Hand stated:

“[I]n such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it.”

Later the First Circuit held that the accused was required to establish inducement by a preponderance of the evidence, after which the government was required to prove beyond a reasonable doubt that the accused was not entrapped. Gorin v. United States, 313 F.2d 641 (1st Cir.), cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052 (1963). The government’s burden can be carried by proof of defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activities, or his ready acquiescence in commission of the crime. Story v. State, 355 So.2d 1213 (Fla. 4th DCA 1978).

Most federal courts have adopted the view that once the defendant has adduced any evidence of entrapment the burden shifts to the government to prove beyond a reasonable doubt that the defendant was not entrapped. United States v. Tate, 554 F.2d 1341 (5th Cir. 1977); Notaro v. United States, 363 F.2d 169 (9th Cir. 1966); Kadis v. United States, 373 F.2d 370 (1st Cir. 1967); United States v. Harrell, 436 F.2d 606 (5th Cir. 1970).

The federal view of the burden of proof on entrapment is not binding on the States because it is not based on any constitutional requirement. State v. Brown, 287 A.2d 400 (Del.Super.1972). Thus, California requires by statute that the defendant prove entrapment by a preponderance of the evidence. See, People v. Moran, 1 Cal.3d 755, 83 Cal.Rptr. 411, 463 P.2d 763 (1970). Many states require the defendant to prove entrapment by a preponderance of the evidence before requiring the state to disprove entrapment beyond a reasonable doubt. State v. Grilli, 304 Minn. 80, 230 N.W.2d 445 (1975); State v. Amundson, 69 Wis.2d 554, 230 N.W.2d 775 (1975); Commonwealth v. Miller, 361 Mass. 644, 282 N.E.2d 394 (1972). Others adhere to the typical view that a defendant has the burden of proving all affirmative defenses such as self-defense and entrapment by a preponderance of the evidence without placing any burden at all upon the state. Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411 (1964), cert. den. 379 U.S. 939, 85 S.Ct. 344, 13 L.Ed.2d 349 (1969); State v. Rogers, 43 Ohio St.2d 28, 330 N.E.2d 674 (1975). The freedom of the states in this regard is illustrated in Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977) where the Court said:

“We thus decline to adopt as a constitutional imperative, operative country-wide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Proof of the nonexistence of all affirmative defenses has never been constitutionally required . . .”

Nevertheless, in view of the approval by the Florida Supreme Court of Fla.Std. Jury Instr. (Crim.) 2.11(e), we are persuaded by, and adopt, the federal view that (1) the defendant has the burden of adducing any evidence of entrapment; (2) the trial court determines the sufficiency of the evidence of entrapment; (3) if the evidence of entrapment is sufficient the jury must be instructed that the state has the burden of disproving entrapment beyond a reasonable doubt; and (4) the jury should never be instructed on the defendant’s burden of adducing evidence. See, Tate, supra; United States v. Braver, 450 F.2d 799 (2d Cir. 1971); United States v. Martinez-Carcano, 557 F.2d 966 (2d Cir. 1977).

We therefore answer the first two questions presented to us in the affirmative. The state has the burden of proving beyond a reasonable doubt that the defendant was not entrapped when there is sufficient evidence of entrapment and the failure to instruct the jury on the state’s burden is error.

We turn now to the third question. A trial judge should generally adhere to the Standard Jury Instructions; however, he is not relieved from his obligation to determine whether the standard instructions accurately and adequately state the relevant law. When they do they should be given in the absence of extraordinary circumstances. Leverette v. State, 295 So.2d 372 (Fla. 1st DCA 1974). If it becomes necessary to depart from the Standard Jury Instructions it is mandatory that the trial judge “state on the record or in a separate order the respect in which he finds the standard form erroneous or inadequate and the legal basis of his finding.” Fla.R.Crim.P. 3.985; see also, Appell v. State, 250 So.2d 318 (Fla. 4th DCA 1971). There was no compliance with this requirement in the case sub judice.

In lieu of charging the jury on the state’s burden of proof regarding entrapment the trial judge substituted the following:

“If you find the State did entrap the Defendant into committing the crime, then you should find him not guilty.”

The giving of this instruction without also instructing on the State’s burden could well have left the jury with the impression that it was incumbent upon the appellant to prove his innocence. Appellee would justify this instruction by arguing that all instructions must be considered in their entirety and that the jury was clearly instructed that each essential element of the crime must be proved beyond a reasonable doubt. Further, complete instructions were given on the presumption of innocence and reasonable doubt. In effect, the jury was told that the state must prove the essential elements of the crime beyond a reasonable doubt but the appellant must prove entrapment. Such is not the law.

We do not say that the failure to give the complete standard instruction on entrapment will always result in prejudicial error. In the case sub judice, however, where the record presents a close question on the issue of entrapment, we are of the view that it was prejudicial error not to instruct the jury that the burden was on the state to prove beyond a reasonable doubt that appellant was not entrapped. United States v. Landry, 257 F.2d 425 (7th Cir. 1958).

Accordingly, the appellant is entitled to a new trial and this cause is therefore REVERSED and REMANDED.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . Fla.Std.Jury Instr. (Crim.) 2.11(e) (Entrapment):
      “(e) Entrapment
      One of the defenses asserted in this case is that the defendant was a victim of what is known as entrapment.
      One who, for the purpose of prosecution, is persuaded, induced or lured by an officer of the law or someone acting for him, into the commission of a crime which he had otherwise no intention to commit, may avail himself of the defense of entrapment and should not be convicted. However, that defense is not available if the officer acted in good faith for the purpose of detecting crime and merely furnished an opportunity for commission thereof by one who already had the intent to commit the crime.
      It is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that he was decoyed or solicited by persons seeking to expose the criminal, or that law enforcement officers pretending participation in the act were present and apparently assisting in its commission.
      The state must prove beyond a reasonable doubt that the defendant was not the victim of entrapment by law enforcement officers, and unless it has done so you should find the defendant not guilty.”