author: PER CURIAM. SCHWARTZ, Judge

text:
    Sandra MARTIN, Appellant, v. John B. MARTIN, Appellee.
    No. 78-474.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Rehearing Denied Feb. 6, 1979.
    Mason & Meyerson and William John Mason, Miami, for appellant.
    Lee, Murphy & Coe and Jack Coe, Miami, for appellee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); § 61.08(1), Fla.Stat. (1977).

SCHWARTZ, Judge

(specially concurring).

The trial judge’s determination of the amount of rehabilitative alimony awarded in this case, which the wife claims here is grossly inadequate, was avowedly based, in large measure, upon her marital misconduct. I concur with the affirmance of the judgment below only because the record supports a finding that the misconduct, which involved a long-standing and consuming affair with a married man, was directly and causally related to the fact that the marriage became irretrievably broken and thus was properly dissolved. Since this is the case, the issue was pertinent to, and was properly considered by the court in fixing the amount of alimony justified by the equities of the situation. See Claughton v. Claughton, 344 So.2d 944 (Fla. 3rd DCA 1977); McClelland v. McClelland, 318 So.2d 160 (Fla. 1st DCA 1975); Pro v. Pro, 300 So.2d 288 (Fla. 4th DCA 1974); cf. Williamson v. Williamson, 353 So.2d 880 (Fla. 1st DCA 1977); Oliver v. Oliver, 285 So.2d 638 (Fla. 4th DCA 1973); Annot., Fault in Consideration of Alimony Award, 86 A.L.R.3rd 1116 (1978).

I do not conceive, however, that § 61.08(1) Fla.Stat. (1977), which indeed permits the consideration of adultery in passing upon alimony issues, would allow such evidence to be employed merely to decrease or enhance an award by way of punishment for conduct of which the court may disapprove, when that conduct is not related to the equitable considerations with which dissolution courts should be concerned under our no-fault law. McAllister v. McAllister, 345 So.2d 352, 354-355 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jackie GLEASON, Appellant, v. LEADERSHIP HOUSING, INC., Appellee.
    No. 77-403.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1979.
    Rehearing Denied Feb. 12, 1979.
    Hugo L. Black, Jr. of Kelly, Black, Black, & Kenny, P. A., Miami, for appellant.
    Robert Orseck of Podhurst, Orseck & Parks, P. A., Joe N. Unger and Haddad & Josephs, Miami, for appellee.
   PER CURIAM.

This case was previously reviewed by this court in 327 So.2d 101. Upon remand, the parties presented evidence going to the question of appellant’s damages and the trial court found that the February 15, 1972, value of the 16.8 acres of land on February 15, 1972, the pertinent date in question, together with interest, was $68,-053.44.

We have considered the four points which appellant raised on this appeal and find that reversible error has not been demonstrated.

Accordingly, the order appealed from is affirmed.

DOWNEY, C. J, BERANEK, J.,'and KAPNER, LEWIS, Associate Judge, concur.


text:
    The STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Richard S. DENMARK et al., Appellees.
    No. 77-469.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1979.
    Rehearing Denied Feb. 8, 1979.

      H. Reynolds Sampson, Gen. Counsel, and Andrew Schuster and Alan E. DeSerio, Tallahassee, for appellant.
    Sam Daniels of Daniels & Hicks, Kelly, Black, Black, Wright & Earle, Miami, and Brown, Paxton & Williams, Fort Pierce, for appellees.
   PER CURIAM.

The State of Florida Department of Transportation appeals from an order granting defendant landowners’ motion for judgment notwithstanding the verdict as to the amount of severance damages to defendants’ remaining land after condemnation. Appellant, D.O.T., contends that the trial court erred by directing a $229,850.00 award for severance damages. Appellant contends that the jury’s verdict specifying $48,000.00 for severance damages was within the range of testimony presented and should have been allowed to stand.

The State of Florida filed a complaint seeking to appropriate 37.46 acres of a 99.59 acre tract for a traffic interchange to be constructed at the junction of Interstate 95 and State Road 70. At a jury trial, the State presented expert testimony to the effect that the value of the property actually taken was $438,550.00. On the issue of severance damages, or damages suffered by the remaining property after the taking, the State’s expert witness testified that although he estimated severance damages at $229,850.00, these damages would be totally eliminated when offset by the special enhancement to the value of remaining property resulting from the proposed construction project.

The expert testimony adduced by the landowners set the market value of the land taken at $780,000.00 and the severance damages at $320,000.00. Contrary to the opinion of the state witness, the landowners’ appraiser testified that there would be no special enhancement to the value of the remainder due to construction of the proposed project.

After receiving appropriate instructions, the jury rendered a verdict as follows:

1. Total value of property taken as of January 26,1976 $750,000.00
2. (a) Severance damages, if any, to Defendants’ remaining lands as of January 26, 1976 48,000.00
(b) Special enhancement, if any, to Defendants’ remaining lands as of January 26,1976 -0-
(c) Severance damages (a) — special enhancement (b) 48,000.00
(d) Business damage of Lessee 65,200.00
TOTAL $863^00.00

The trial court ultimately granted defendant landowner’s motion for judgment notwithstanding the verdict and increased the severance damage award in 2(a) from $48,000.00 to $229,850.00. This increased the net award in 2(c) to $229,850.00 since the figure for 2(b) was left at zero.

No objection was made to the verdict before the jury was discharged. The record reflects that the trial court had a side bench discussion with all counsel, off the record, immediately after the verdict was received. Thereafter the trial court asked if anyone wished to poll the jury and all counsel declined. Then the jury was discharged. As soon as the jury was gone counsel for the appellee requested that the court delay entry of a final judgment because the jury’s award of severance damages was inadequate and noted the same error later relied on by the trial court in granting the judgment notwithstanding the verdict.

We believe this situation is similar to one involved in Lindquist v. Covert, 279 So.2d 44 (Fla. 4th DCA 1973), wherein we held that the failure to object to inconsistent verdicts before the discharge of the jury precluded subsequent review of the error. An examination of Judge Reed’s opinion reflects the reasoning behind the ruling:

As a starting point in our discussion, we would concede that the two verdicts were inconsistent with one another. Obviously the verdict for the plaintiff against Lind-quist and Smith necessarily implies that Lindquist was negligent in driving his vehicle into the plaintiff’s vehicle. The verdict in favor of Lindquist, on the other hand, necessarily finds that Lindquist was not negligent in striking the plaintiff’s vehicle — which collision was the only collision in which Lindquist was involved and thus the only source of his injury. However, when these verdicts were read, neither Lindquist nor Smith raised an objection to their inconsistency. This problem was not called to the court’s attention until the motions for new trials were filed.
Certainly this court does not approve the creation of technical barriers to appellate review. At the same time, however, there would be very little fairness in reversing the plaintiff’s judgment because of an inconsistency in the verdicts which could have been corrected in virtually no time at all by a resubmission of the cause to the jury had either of the appellants raised the matter before the jury was discharged. See Stevens Markets Inc. v. Markantonatos, Fla.1966, 189 So.2d 624; cf. Higbee v. Dorigo, Fla.1953, 66 So.2d 684 and Isenberg v. Ortona Park Recreational Center Inc., Fla.App.1964, 160 So.2d 132, 134. We are reinforced in this conclusion by the fact that the verdict for the plaintiff and against the defendants was amply supported by competent substantial evidence, and it is only the verdict in favor of the defendant Lindquist which raises the problem of an apparent inconsistency. Hence we hold that any error of the trial court related to the receipt of the inconsistent verdicts has not been preserved for purposes of this appeal, because of the appellants’ failure to object thereto before the jury was discharged. (Id. at 45)

As in Lindquist, we must concede the error in the jury’s answer to question 2(a). However, the jury’s net award under question 2(c) of $48,000.00 is well within the permissible range of damages established by the evidence. We cannot know for a certainty what the jury intended. But had the error in the answer to question 2(a) been called to the court’s attention prior to the discharge of the jurors, the jurors would have had an opportunity to reconsider all three questions pertaining to severance damages in light of the error, and could then have returned a new verdict reflecting their findings. That opportunity was foreclosed upon discharge of the jury without objection.

One of the purposes of interrogatory verdicts is to provide a means of checking the work of the jury. Here we know the jury erred in finding $48,000.00 as “(a) Severance damages, if any, to Defendants’ remaining lands as of January 26,1976” for the evidence presented established without contradiction that the initial severance damages were at least $229,850.00. Behm v. Department of Transportation, 336 So.2d 579 (Fla.1976); Dade County v. Renedo, 147 So.2d 313 (Fla.1952); City of Hollywood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977). But can we conclude absolutely that the jury did not, off the verdict form, make the proper calculations and come up with a net award of $48,000.00 which was within a proper range, and then, in transferring those calculations to the verdict form, erroneously show the method of computation? We cannot make such an absolute conclusion, and we think it was error for the trial court to do so.

A review of the testimony of the state appraiser reveals that the $229,850.00 figure was one of several preliminary steps in his appraisal process. In effect, the state appraiser testified that even if one sets the severance damage amount at $229,850.00, enhancement to the value of the remainder more than offsets damages caused by severance of the property taken. The testimony of the state appraiser at the trial below as to the “true after value” of the remaining property based upon consideration of possible severance damages and enhancement, was not of such character as to mandate a jury award of $229,850.00, but rather furnished an evidentiary basis for an award of severance damages less special enhancement in any amount from zero to $320,-000.00.

Accordingly, the final judgment of the trial court is reversed with directions that the verdict of the jury be reinstated and judgment entered thereon.

REVERSED WITH DIRECTIONS.

DOWNEY, C. J., ANSTEAD, J., and SIL-VERTOOTH, LYNN N., Associate Judge, concur.


text:
    Glenn K. BRYANT, a minor, by and through his father and next friend, Leroy Bryant, and Leroy Bryant, Individually, Appellants, v. David PISTULKA and James White, Appellees.
    No. JJ-399.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1979.
    Charles Cook Howell, III, of Howell, Howell, Liles & Braddock, Jacksonville, for appellants.
    Brown, Terrell & Hogan, P. A., and Be-dell, Bedell, Dittmar & Zehmer, Jacksonville, for appellee, David Pistulka.
    David R. Howell, Jacksonville, for appel-lee, James White.
   PER CURIAM.

This is an appeal from a final order of the Circuit Court of Duval County dismissing plaintiffs’ second amended complaint with prejudice.

In their second amended complaint appellants sought damages for alleged negligence against sixteen defendants. Since the filing of this appeal, appellants have settled with fourteen of the original defendants and the appeal has been dismissed as to them, leaving only the original defendants, Pistulka and White, as appellees.

The second amended complaint contained eight counts, only five of which are now pertinent, viz counts one, two, three, seven and eight. We reverse as to counts one, two, seven and eight, and affirm as to count three. In so doing we hold that counts one, two, seven and eight each states a cause of action sufficient to withstand a motion to dismiss but that count three must fall because it is erroneously predicated upon an alleged violation of Section 562.11 F.S. (1973) which statute was designed only to regulate licensed vendors of alcoholic beverages upon the licensed premises of such vendors. State v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA, 1977); United Services Automobile Association et al. v. Butler, 359 So.2d 498 (Fla. 4th DCA, 1978). Therefore, as to count three of the second amended complaint, the learned trial court was eminently correct in dismissing same with prejudice, inasmuch as it is impossible for appellants to base a cause of action upon that statute.

Reversed as to counts one, two, seven and eight. Affirmed as to count three. Remanded for further proceedings consistent herewith.

ERVIN, Acting C. J., MELVIN, J., and MASON, ERNEST E., .Associate Judge, concur.


author: SMITH, Acting Chief Judge.

text:
    Patricia MOBLEY, Glenda Baker, Dennis Huguley, Melanie Parker, Abigail Williams and Betty Lockwood, Appellants, v. SOUTHERN PLASMA CORPORATION, and Henry Gurley, Appellees.
    No. KK-124.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1979.

      Ben R. Patterson, of Patterson & Trayn-ham, Tallahassee, for appellants.
    Thomas J. Guilday, of Huey, Camper & Guilday, Tallahassee, for appellees.
   SMITH, Acting Chief Judge.

Six former employees of appellee Southern Plasma Corp., of which appellee Gurley is executive officer, appeal from a circuit court order granting appellees’ motion to dismiss appellants’ complaint. Appellants’ claim is predicated on their firing by Southern Plasma and by Gurley because of appellants’ organizational activities with Southern Plasma Corp. Employees Association. Sections 447.03, .17, Florida Statutes (1977). The trial court dismissed the complaint on motion on the ground that “jurisdiction has been preempted under the National Labor Relations Act,” 29 U.S.Code Sections 151 et seq.

Appellants’ complaint alleges that appel-lee Gurley learned, on or about September 2, 1977, that appellants and three other employees had formed an employee organization for collective bargaining; that Gur-ley notified the employees, on September 2, that Southern Plasma “would never allow its employees to unionize”; and that Gur-ley then discharged “all employees” and ceased operations, but reopened on September 10 and denied appellants reemployment. The complaint further alleges that Southern Plasma and Gurley acted as they did intentionally and with malice, or with reckless indifference to appellants’ organizational rights under Article I, Section 6, Florida Constitution, and Section 447.03, Florida Statutes (1977). Appellants claimed actual damages in loss of earnings, decreased earning capacity and damage to their credit. They prayed for compensatory and punitive damages, attorney’s fees, and a permanent injunction reinstating their employment.

There is disagreement concerning the authority of state courts to grant emergency injunctive relief against trespass and other conduct which offends state statutes where the enforcement of the state law poses a threat of interference with federal labor policy. But the NLRA preempts state jurisdiction of simple claims for wrongful discharge on account of collective bargaining activities, for such claims are cognizable by the NLRB. See, e. g., Carpenters District Council of Jacksonville and Vicinity v. Waybright, 279 So.2d 300 (Fla.1973). However, a state court may entertain action for money damages predicated on “outrageous” employer conduct amounting to a tort by statute or common law. In Farmer the Supreme Court held that state labor remedies are preempted by the NLRA unless the offending conduct was something more than discrimination in employment practices, i. e., “that the state tort be either unrelated to employment discrimination or a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function of the actual or threatened discrimination itself.” Apparently Farmer would require that the dominant focus of the complaint and evidence at trial be akin to the proof required of a plaintiff in a suit for intentional infliction of emotional distress. That court noted the “robust language and clash of strong personalities that may be commonplace in various labor contexts.” The Court’s use of the term “outrageous” is not entirely clear, but it appears that in the labor relation context plaintiffs seeking to avoid preemption of their state law claim must affirmatively plead and prove conduct which goes well beyond mere discrimination in employment practices. Plaintiffs here have not done that; they allege a simple discharge after threats.

It appears from the NLRB complaint against Southern Plasma, evidenced to us on appeal but apparently not to the trial court, that Southern Plasma Corporation Employees Association, in behalf of all appellants, complained to NLRB on March 3,1978, of the unfair labor practice charged in the complaint in this case. It further appears that NLRB’s acting regional director filed a complaint against Southern Plasma Corp. on April 14,1978, charging an unfair labor practice in respect to all appellants except Mobley, who therein is described as an assistant lab manager and, therefore, as a “supervisor” who has no remedy under the NLRA. Thus the papers evidenced to us suggest that the NLRB has declined to exercise jurisdiction in Mobley’s behalf. Though the trial court’s judgment is otherwise clearly correct, Mobley’s claim will be remanded and an opportunity given before the trial court to file, within 20 days after its receipt of our mandate, an amended complaint containing allegations which may seek to demonstrate that Mobley’s cause of action is not preempted by federal law.

REVERSED and REMANDED as to Mobley; otherwise AFFIRMED.

ERVIN and BOOTH, JJ., concur.

      . Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978).

      . Farmer, Special Administrator v. United Brotherhood of Carpenters & Joiners of America, Local 25, 430 U.S. 290, 305-06, 97 S.Ct. 1056, 1066-67, 51 L.Ed.2d 338, 353-54 (1977).

      . Id.

      . 29 U.S.C. Section 152(11).

      . Corbett v. Eastern Airlines, Inc., 166 So.2d 196, 205 (Fla. 1st DCA 1964).


author: McCORD, Chief Judge.

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant, v. Bertha SEABROOK, Appellee.
    No. II-199.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1979.

      John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, Tallahassee, for appellant.
    Jackson G. Beatty and W. Ralph Dur-rance, Jr., Tallahassee, for appellee.
   McCORD, Chief Judge.

Appellant, Prudential Insurance Company of America (Prudential), appeals a final judgment in favor of appellee, Bertha Sea-brook, ruling that she is entitled as beneficiary to the proceeds of an insurance policy written by Prudential. We affirm.

The evidence shows that in June, 1974, Prudential issued a life insurance policy to appellee’s husband (decedent), and he paid the premium for the month of June. By the terms of the policy, premiums were due on the first day of each month. It provided for a 31-day grace period during which the policy would remain in force and an overdue premium could be paid. The policy provided that if payment was not made by the end of the 31-day grace period, the policy would terminate, but that it could be reinstated if the insured signed a reinstatement form and paid all past due premiums. The reinstatement form receipt provided:

“This receipt is issued on the further condition that any check ... be good and collectible.”

The decedent failed to pay the July premium, thereby activating the 31-day grace period. When he failed to pay by August 1, the policy lapsed according to its terms. Thereafter, the company and the local agent, Mayo, contacted the insured regarding reinstatement of the policy. On August 27, 1974, decedent signed a reinstatement form and gave Mayo a check for $139.20 (the July and August premiums) to reinstate the policy. The check was sent to Prudential’s Jacksonville office where decedent’s account was credited by computer. Thereafter, Prudential twice presented the check for payment, and both times it was returned for insufficient funds. Prudential then bought the check back from its depository bank on September 17, and on that date, it “flagged” decedent’s subaccount. An interoffice memorandum form was sent to Prudential’s billing section instruction that division to “lapse the policy according to usual normal lapse rules [on] 10-1-74.”

The evidence shows that Prudential’s representative, Mayo, continued to contact the decedent regarding payment of the check and that finally, on September 26 or 27, decedent agreed with Mayo that decedent would give Mayo the appropriate amount of cash to honor the check on September 30. However, on September 28, decedent accidentally drowned. Unaware of the drowning, Mayo visited decedent’s place of employment on September 30 to collect the cash. Mayo was then informed of the drowning. On October 1, Prudential mailed the uncancelled check back to decedent’s widow, appellee, informing her that the policy had lapsed.

The trial court found that Prudential had waived its contract right to demand a good and collectible check before effecting reinstatement since Prudential had retained decedent’s check and Prudential’s agent, Mayo, had arranged with decedent for an alternative method of payment on September 30. The trial court in its judgment stated that it was persuaded by the evidence that had the decedent left the appropriate amount of cash for Mayo to pick up on September 30 and had Mayo not known of decedent’s death, he would have taken the money and Prudential would have officially reinstated the policy.

We agree with the trial court that the policy was in effect when decedent died on September 28. The language used in Prudential’s office memorandum indicates clearly that, for its own purposes, Prudential considered that the policy would not lapse until October 1. Consequently, logic mandates that even Prudential recognized that the policy had been reinstated after its lapse in August. Therefore, since the policy was not subject to lapse again until October 1, even under Prudential’s view, it had not lapsed on September. 28, when decedent died. Prudential’s actions in this matter indicate its intent to waive the good and collectible check requirement before reinstating the policy after its August lapse. Instead of returning decedent’s check to him and denying reinstatement, Prudential chose the alternative of retaining decedent’s check as evidence of the debt and made other arrangements with decedent for payment. Prudential thereby extended credit to decedent for payment of the past due premiums. See Security Life and Trust Co. v. Jones, 202 So.2d 906 (Fla. 2 DCA 1967), and Veal v. Security Mutual Life Insurance Co., 6 Ga.App. 721, 65 S.E. 714 (1909).

In summary, as shown by its actions to keep decedent indebted to it and by its own memorandum admissions, Prudential waived, until September 30, its right to condition reinstatement of decedent’s policy on a good and collectible check being tendered by decedent. Since that condition has been waived and since decedent complied with the other requirement for reinstatement in August, the policy was reinstated and was in effect until September 30, after which time it would have lapsed unless payment was made. Thus, at the time of death, the policy was in effect, and the beneficiary of the policy is due the proceeds.

Petition for rehearing, if filed, shall be filed within 10 days from the date hereof.

The decision of the trial court is AFFIRMED.

BOYER and SMITH, JJ., concur.


text:
    Walter Lee ALLS, a minor, by his father and next friend, Monroe Alls, and Monroe Alls, Individually, Appellants, v. 7-ELEVEN FOOD STORES, INC., and Crystal Springs Water Company, a division of Borden, Inc., Appellees.
    No. 78-155.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 9, 1979.

      R. Fred Lewis, Coconut Grove, for appellants.
    Adams & Ward and Amy Shield Levine, Miami, for appellees.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The appellants seek review of a summary final judgment in favor of 7-Eleven Food Stores, Inc. Suit was filed by the appellants against two separate defendants, 7-Eleven and Crystal Springs Water Company, seeking recoyery of damages for personal injuries sustained as the result of a glass bottle break at a 7-Eleven store when the minor appellant picked it up.

7-Eleven failed to timely respond. A default judgment was entered against it. After its motion to vacate default was denied, 7-Eleven sought review up through the Supreme Court of Florida which denied its petition for certiorari. 7-Eleven Food Stores, Inc. v. Alls, 308 So.2d 660 (Fla. 3d DCA 1975), certiorari denied 322 So.2d 925 (Fla.1975). While 7-Eleven’s appeals were proceeding, the other defendant, Crystal Springs, made a motion for summary judgment which was granted in its favor. Based on that happening, 7-Eleven filed a motion for summary judgment asserting that it too was entitled to summary judgment on the liability defense raised by the other defendant, which was granted.

This appeal ensued, the appellants contending that notwithstanding the favorable summary judgment for Crystal Springs, a default having been entered against 7-Eleven, the trial judge was without authority to thereafter enter a summary judgment in 7-Eleven’s favor. We disagree.

First, a defaulting defendant may take advantage of a defense which is common to all. Edwards v. Schilling, 14 Fla.Supp. 7 (Fla. 4th Cir. 1959); 47 Am.Jur.2d, Judgments, § 1160; 19 Fla.Jur., Judgments and Decrees, § 314 (1978 Supp.); Anno. 78 A.L.R. 938; Compare: Blatch v. Wesley, 238 So.2d 308 (Fla. 3d DCA 1970). Second, it would be proper for a trial judge to enter a summary judgment for a defaulting defendant when it is apparent that the plaintiff can recover no damages against the defaulting defendant. Fields v. Quillian, 74 So.2d 230 (Fla.1954); Andrews v. Goetz, 104 So.2d 653 (Fla. 1st DCA 1958); Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2d DCA 1959). It is, of course, a principle of appellate law that a trial court can be right for any reason which appears in the record. Cohen v. Mohawk, 137 So.2d 222 (Fla.1962); Aetna Insurance Company v. Settembrino, 324 So.2d 113 (Fla. 3d DCA 1975); Board of County Commissioners of Metropolitan Dade County v. Lowas, Fla.App., 348 So.2d 13.

Therefore, for the reasons above stated, the summary judgment here under review be and the same is hereby affirmed.

Affirmed.

      . The defense of Crystal Springs on the question of liability was that the plaintiff was the sole proximate cause of the accident and consequential injuries.

      . No appeal was taken by the plaintiffs from the summary judgment finding no liability on the part of Crystal Springs.


author: HUBBART, Judge.

text:
    Andrew SKINNER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-2018, 78-990.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Bennett H. Brummer, Public Defender, Thomas G. Murray and Rory Stein, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   HUBBART, Judge.

The defendant Andrew Skinner appeals a summary denial of his motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850 in the Circuit Court for the Eleventh Judicial Circuit of Florida. We find no merit in the defendant’s contentions on this appeal save one. See: State v. Matera, 266 So.2d 661 (Fla.1972); Clements v. State, 320 So.2d 44 (Fla.3d DCA 1975); Phillips v. State, 313 So.2d 428 (Fla.3d DCA 1975).

In our view, the defendant’s sentence of life imprisonment for unarmed robbery exceeded the statutory maximum for such crime as provided in Section 812.-13(2)(c), 775.082(3)(c), Florida Statutes (1975), and, therefore, such sentence should have been vacated and a new sentence imposed within the statutory maximum. The defendant was charged by information with unarmed robbery, found guilty thereof by a jury, and adjudged guilty based on the jury verdict. Specifically, the information charging the defendant with robbery contained no allegations that the robbery was committed with a “firearm”, “deadly weapon” or “weapon.” See: §§ 812.13(2)(a), (b), Fla.Stat. (1975). Under the authority of Chapola v. State, 347 So.2d 762 (Fla.1st DCA 1977), the defendant was charged with and convicted of unarmed robbery as a second degree felony under Section 812.-13(2)(c), Florida Statutes (1975), and could only be sentenced to a maximum of fifteen years in the state penitentiary under Section 775.082(3)(e), Florida Statutes (1977).

The state contends that the defendant has waived this contention by failing to raise the issue when he originally appealed his conviction and sentence to this court in Skinner v. State, 344 So.2d 343 (Fla.3d DCA 1977). We cannot agree. Fla. R.Crim.P. 3.850 specifically provides that a sentence may be vacated upon motion by a defendant when “in excess of the maximum authorized by law.” Moreover, it has long been held that a sentence not authorized by law is always subject to collateral attack under Fla.R.Crim.P. 3.850. McNamara v. State, 324 So.2d 702, 703 (Fla.3d DCA 1975); Crusoe v. State, 183 So.2d 600, 604 (Fla.2d DCA 1966).

We further reject the state’s contention that the issue herein is rendered irrelevant or moot because the defendant was also sentenced to life imprisonment on a burglary charge in the instant case, the sentences to run consecutively. We know of no circumstances under the law of this state which would ever authorize a trial court to sentence a defendant to a term of imprisonment in excess of the statutory maximum set for the crime for which the defendant stands convicted. Such an error is fundamental and jurisdictional in nature and can > never be considered irrelevant, moot or harmless. Butler v. State, 343 So.2d 93 (Fla.3d DCA 1977); Williams v. State, 280 So.2d 518 (Fla.3d DCA 1973).

The order under review is reversed and the cause remanded to the trial court with directions to vacate the sentence of life imprisonment imposed upon the defendant for the crime of unarmed robbery and to impose a proper sentence under the law. In all other respects, the order appealed from is affirmed.

Affirmed in part; reversed in part.


author: PEARSON, Judge. HUBBART, Judge

text:
    The STATE of Florida, Appellant, v. Alfred WITHERSPOON, Appellee.
    No. 77-1892.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.

      Janet Reno, State’s Atty., and Dennis L. Curran, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before PEARSON and HUBBART, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The State appeals an order discharging the defendant upon the ground of double jeopardy. It appears that the defendant was brought to trial and the defendant’s motion for judgment of acquittal was granted upon the ground that the State’s proof departed from the bill of particulars in specifying an incorrect time of day for the offense. Thereafter, a new information was filed specifying a period of time for the offense which included the time first specified but broadening the range to include the time testified to by the State’s witnesses. The trial court granted defendant’s motion to dismiss upon the ground of double jeopardy.

We agree that a second trial would have constituted double jeopardy. See Bizzell v. State, 71 So.2d 735 (Fla.1954); and Sanford v. State, 75 Fla. 393, 78 So. 340 (1918). It is apparent to us that the trial court may have committed error in its original order in that the discrepancy as to time was not so material as to constitute the basis for a judgment of acquittal. But that order is not reviewable here and, of course, was never reviewable upon appeal by the State. If the first order was error, it does not constitute grounds for reversal of the present-order dismissing the second information.

The State urges that it has been deprived, by the ruling of the court, of an opportunity to try the defendant. This may well be so but it should be pointed out that the facts given by the State in the bill of particulars were mistaken. It sometimes happens that the State is unable to prosecute because of errors in the preparation of the case.

The State relies upon the holding of the Supreme Court of Florida in State v. Beamon, 298 So.2d 376 (Fla.1974), for reversal. We think, however, that the situation in Beamon, though very similar to our present case, is distinguished by the fact that the second prosecution in Beamon was for an act alleged to have been two days removed from the first mistaken information. In the present instance, the bill of particulars to the first information was essentially correct and the variance was, at most, a matter of two hours. There is no doubt that the same crime is alleged in each of the informations here filed against the defendant.

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the order under review and remand the cause to the trial court for further proceedings under the authority of State v. Beamon, 298 So.2d 376 (Fla.1974).

In my view, the court herein makes the same error under the same controlling facts as this court made in State v. Beamon, 302 So.2d 208 (Fla. 3d DCA 1973), which decision was subsequently quashed in State v. Beamon, 298 So.2d 376 (Fla.1974). That error is in concluding that the first information as limited by the statement of particulars, upon which a judgment of acquittal was entered on the defendant’s motion, charges “the same offense” which the defendant is presently charged with under the second information, and that, therefore, the defense of double jeopardy is applicable to bar the second information. In point of fact, two different offenses are charged in the above two informations involving materially different times, thereby rendering the defense of double jeopardy ineffective.

In the first information as limited by the statement of particulars, the defendant herein was charged with grand larceny occurring on November 19, 1976, “at approximately 8:00 P.M.” In the second information, the defendant is charged with grand larceny occurring on November 19, 1976, “at dusk, to wit: between 6:00 P.M. — 8:00 P.M.” These two informations as limited by the statement of particulars charge crimes committed at materially different times, and, therefore, an acquittal on the first information cannot bar prosecution on the second information under the defense of double jeopardy. Different offenses, not the same offense, are charged in the two informations.

The defendant urges, however, that the time variance in this case is immaterial, that the crimes charged in both cases are exactly alike, and that the defendant’s acquittal on the first information bars prosecution on the second information under the defense of double jeopardy. I cannot agree. Under established Florida law, the defendant is estopped to make this argument because it is directly contrary to the position he took on his motion for judgment of acquittal a.t trial on the first information.

At the close of the state’s case at the above trial, the defendant moved for a judgment of acquittal on the ground that a material variance existed between the statement of particulars and the state’s evidence as to the exact time of the offense, which variance was directly prejudicial to the defendant’s claim of alibi. The statement of particulars alleged that the exact time of the offense was approximately 8:00 P.M.; the state’s evidence showed that the exact time of the offense was at “dusk” or “at nightfall” which was shortly after 5:30 P.M. as the court judicially noticed. The defendant asserted that he had prepared an alibi defense in reliance on the statement of particulars placing him at approximately 8:00 P.M. on the date in question at a place remote from the scene of the larceny, that he was prejudiced by the state’s evidence which varied from the statement of particulars and established that the exact time of the offense was at “dusk” or “at nightfall”, and that a judgment of acquittal was accordingly in order as to the 8:00 P.M. larceny. The trial court agreed and correctly entered a judgment of acquittal as to the 8:00 P.M. larceny. Indeed, to have denied the motion under these circumstances would have constituted reversible error in view of the defendant’s asserted prejudice as to his alibi defense. Crowell v. State, 238 So.2d 690 (Fla. 3d DCA 1970).

It is clear that the defendant cannot now change his position and claim that the time variance in this cause is of no consequence, that the defendant’s acquittal of the 8:00 P.M. larceny is in effect an acquittal of the “dusk” or “6:00 P.M. — 8:00 P.M.” larceny herein, and that the second information is barred by double jeopardy. The Florida Supreme Court in State v. Beamon, 298 So.2d 376 (Fla.1974), has so held under the same controlling facts.

In Beamon the defendant was charged in a first information as limited by a statement of particulars with a certain crime (robbery) which occurred on a particular date (November 24, 1972). At trial, the state’s evidence established that the crime charged (robbery) occurred on another date (November 26, 1972) which was different from that alleged in the statement of particulars. The defendant moved for judgment of acquittal based on this variance in dates which he asserted was material in the case. It appears that the defendant had prepared an alibi defense for the date alleged in the statement of particulars (November 24, 1972) and was surprised when the state’s evidence at trial did not conform to that exact date. The trial court agreed and correctly entered a judgment of acquittal. Crowell v. State, 238 So.2d 690 (Fla. 3d DCA 1970).

The defendant in Beamon was thereupon charged in the second information as limited by a statement of particulars with the same crime (robbery) allegedly occurring on a different date (November 26, 1972). The defendant moved to dismiss this information on the ground of double jeopardy. He claimed that the date variance in this case was of no consequence after all, that his acquittal on the first information was in effect an acquittal on the second information as the same offense was charged in both, and that the second information was barred by double jeopardy. The trial court agreed and dismissed the information. This court affirmed. State v. Beamon, 302 So.2d 208 (Fla. 3d DCA 1973).

The Florida Supreme Court on certiorari quashed our opinion with directions to per--mit the defendant to be tried on the second information. The Court concluded that the defense of double jeopardy was inapplicable in the case because two different crimes involving materially different dates were charged in the two informations therein involved. The Court stated:

“On appeal, the Third DCA affirmed the judgment, reasoning that the acquittal constituted a bar to subsequent prosecution for the robbery in question and that the State was collaterally estopped as to the second count of the information. We cannot agree.
It is the defendant — not the State— who is estopped. The defendant is es-topped by virtue of his inconsistent positions in first claiming as a basis for acquittal the materiality of the date and then contending on the new information that the actual, different date of the alleged offense is immaterial now, so that whatever the date of the alleged offense he was acquitted of it in the first trial. He cannot carry water on both shoulders. This was made clear by this Court’s reasoning in the case for conflict of State v. Cootner, supra, involving a different ownership of property: (60 So.2d 734, 737) [Emphasis added]
‘The appellee having obtained an instructed verdict of acquittal in the first case on the ground that the ownership of the property was a material allegation and there was a fatal variance between the allegation and the proof, is estopped to now complain on a prosecution of a second information that the same would place him in double jeopardy because the allegation with reference to the ownership of the property was immaterial.’ [Emphasis added]
Sub judice, in entering a judgment of acquittal on the first information, the trial court specifically held that the State was limited in its proof to an offense occurring on Nov. 24, 1972, rather than Nov. 26. This was the very position taken and strongly urged by the respondent as a basis for his acquittal in arguments before the trial court on the first information. Since no proof as to an offense on Nov. 26 was then allowed, the State was not estopped to pursue such Nov. 26 offense by a failure to prove what did not happen on Nov. 24!
sfc # # # * *
We conclude that the respondent’s trial under the first Information placed him in jeopardy only of an offense of robbery, if any, occurring on Nov. 24, 1972; it did not place him in jeopardy nor constitute a collateral estoppel of the alleged offense of robbery occurring on Nov. 26, 1972.
The district court correctly noted that the test to sustain a plea of former jeopardy is that it must be made to appear that (1) there was a former prosecution in the same state for the same offense; (2) that the same person was in jeopardy on the first prosecution; (3) that the parties are identical in the same prosecution; and (4) that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar. State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944); King v. State, 145 Fla. 286, 199 So. 38 (1940). However, the district court erred in applying this test sub judice when it determined that the respondent had previously been acquitted of the offense now charged in the second Information. As we indicated above, the offense charged in the first Information, as limited by the bill of particulars filed there, was not the same offense as that charged in the second Information, as limited by the bill of particulars filed in connection with that Information. The offenses charged by the two Informations, as each was limited by its own bill of particulars, occurred on different dates; the initial Information, as so limited, charged only an offense occurring on Nov. 24, 1972, and the second Information charged an offense occurring on Nov. 26, 1972. Since the offense involved was not a continuing one, the difference in dates clearly renders them two separate and distinct offenses, a fact recognized by the trial judge when he specifically declared respondent ‘not guilty of the crime of robbery on Nov. 24, 1972.’ Accordingly, no double jeopardy and no collateral estoppel are involved in the instant case, and the trial court and district court of appeal erred in holding to the contrary.” 298 So.2d at 378, 380.

Beamon directly controls the instant case. Just as the defendant in Beamon was es-topped from claiming that the date variance between the two informations therein was not material, so the defendant in this case is equally estopped from claiming that the time variance between the two informa-tions herein is not material. In both cases, the defendant asserted the materiality of the variance in his motion for judgment of acquittal at trial on the first information claiming prejudice due to an alibi defense prepared in reliance on the erroneous statement of particulars. In both cases, the defendant cannot now be heard to claim that the variance asserted for obtaining the motion for judgment of acquittal is in fact not a material variance at all. Two different offenses occurring at materially different times are involved in this case, just as two different offenses occurring at materially different dates were involved in the Beamon case. And contrary to the court’s contention in its opinion herein, Beamon cannot be distinguished on the ground it involves materially different dates while the instant case involves materially different times. The principle governing both cases is the same; two different offenses are charged in the two informations in both cases which makes the double jeopardy defense inapplicable.

One final point. Although I realize that perfect justice is not attainable in an imperfect world, it seems clear to me that a preventable injustice has occurred in this case. A defendant has been permitted to escape prosecution by successfully asserting inconsistent positions relative to the materiality of the time variance in this cause. He should not be allowed to avoid trial by this device. To dismiss this case on the ground of double jeopardy is, in my view, contrary to the law and an injustice to the state.


author: CARROLL, Associate Judge.

text:
    FLORIDA NATIONAL BANK AND TRUST COMPANY AT MIAMI, as Guardian of Ina M. Garrett, incompetent, Appellant, v. Mary HAVRIS a/k/a Marion C. Havris, Andrew Havris, her husband, and Mrs. Charles A. Carter, Appellees.
    No. 78-359.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.

      George J. Baya, Miami, for appellant.
    Joseph P. Farina, Miami Shores, for ap-pellees.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CARROLL, Associate Judge.

The plaintiff below, Florida National Bank and Trust Company at Miami, as guardian of Ina M. Garrett, incompetent, filed this appeal from the final judgment entered following a non-jury trial.

A defendant, Mrs. Charles A. Carter, was the employed housekeeper and attendant of Mrs. Garrett from 1973 to 1975, and was so employed when the involved activities relating to Mrs. Garrett’s money and residence property took place. During this period, Mrs. Garrett, who was 94 years of age in 1975, lived alone with the housekeeper in Miami, in a home which she owned. The defendant Mary L. Havris, a niece of Mrs. Carter, the housekeeper, was not related to Mrs. Garrett, and was not her employee.

Mrs. Garrett had funds on deposit in certain savings associations and banks. With Mrs. Garrett’s consent, the housekeeper and her niece Mary Havris became authorized to sign checks on Mrs. Garrett’s said accounts, and during the interval of time above mentioned, by withdrawals and transfers, the funds of Mrs. Garrett became placed in bank accounts of Mrs. Havris and of Mrs. Havris and her husband, from which monies needed for care expenses of Mrs. Garrett were used.

In 1975, on March 19, Mrs. Garrett made a deed by which she conveyed her home and the furniture and fixtures therein to Mary L. Havris, reserving to Mrs. Garrett a life estate and right of possession, That deed was not recorded. ■

Nine days later, on March 28, 1975, a second deed of her home property was made by Mrs. Garrett to herself and to Mary Havris, as joint tenants with right of sur-vivorship. That deed was recorded on the date upon which it was executed.

On October 17, 1975, in a proceeding which had been commenced on September 3, 1975, to determine competency of Mrs. Garrett, the plaintiff bank was appointed guardian of Mrs. Garrett’s property and Ina M. Porcella, a niece of Mrs. Garrett, was appointed guardian of her person.

On January 7,1976, the plaintiff bank, as guardian of the property of Mrs. Garrett, filed this action against Mrs. Havris and her husband and Mrs. Carter. Thereby, the plaintiff sought judgment to invalidate the recorded joint tenancy deed dated March 28, 1975, and to require the defendants to account to plaintiff for monies of Mrs. Garrett which had been obtained and were held by them.

In the course of that action, there was disclosed the existence of the earlier unrecorded deed dated March 19,1975, from Mrs. Garrett to Mary Havris with reservation of a life estate. There was considerable evidence regarding the facts relating to that deed transaction, by testimony of the parties thereto and of the attorney who drew the deed and had it executed, and also as to the mental capacity of Mrs. Garrett at that time. Thus, although plaintiff’s complaint did not allege the making and existence of the unrecorded deed and seek to have it declared invalid, the issues relating to the validity thereof were tried. The record so shows. Also it is clear the court recognized the issues thereon were tried, because the court ruled on the merits regarding the validity of that unrecorded (first) deed, as disclosed in the findings of fact and conclusions of law filed by the court. Such action by the court was in conformity with Fla.R.Civ.P. 1.190(b) which provides that where issues not raised in the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. That status of the case as to trial of issues relating to the first deed is not altered by the fact that the court denied a motion of the plaintiff, filed on the date on which the court filed its findings and conclusions of law, by which plaintiff sought leave to file a proposed amended complaint relating to said first deed, and for permission to introduce further evidence with regard thereto. It was within the discretion of the court to deny the request of the plaintiff for permission to file a new pleading and present further evidence after the trial had been completed and the court had made and filed its findings of fact and conclusions of law.

In the judgment entered, the court ruled in favor of the plaintiff as to Mrs. Garrett’s funds found to be held by Mary Havris, granting judgment against Mary Havris for $19,787.62, with interest from November 13, 1975, plus certain costs. The judgment held that the second deed, dated March 28,1975, was “null and void and of no effect.” The final judgment made no reference to the earlier (unrecorded) deed of March 19,1975. However, it appears that the basis of the holding in the judgment that the second (recorded) deed of March 28,1975, was void, was because the court had found the prior (unrecorded) deed of March 19, 1975, was valid, and for that reason viewed the subsequent deed or attempted conveyance as being of no effect. See the trial court’s finding of fact No. 6 and conclusion of law No. 4, quoted infra.

The appellant contends the court erred by failing to hold that the first deed of March 19, 1975, was invalid. The circumstances with regard to the validity of the two deeds were similar. If the first deed was invalid, the second deed likewise was invalid. In considering that question, it is necessary to give effect to the extensive findings of fact made by the trial court. With apology for the extent to which this opinion is lengthened, the trial court’s findings of fact and conclusions of law are of sufficient importance to a determination of this appeal to require their inclusion. They were as follows:

“FINDINGS OF FACT
“1. On June 22, 1966, INA M. GÁR-RETT executed her last will and testament whereunder her home described in Findings 6 and 7 hereof, together with the furniture therein, was devised unto her brother, LEWIS C. RICHARDS, and, in the event he predeceased her, an undivided one-third thereof was devised unto her nephew, HOMER M. RICHARDS; an undivided two-thirds thereof was devised unto her niece INA PORCELLA and LEO PORCELLA, her husband; and all the rest and residue of her estate in a like manner.
“2. On November 20, 1970, the said INA M. GARRETT executed a first codicil to her last will and testament, prepared by her attorneys, Smathers & Thompson, containing a gift to her church.
“3. On December 22, 1970, INA M. GARRETT executed a second codicil to her last will and testament, prepared by her attorneys, Smathers & Thompson, whereunder INA PORCELLA was named as the executrix thereof to serve without bond, and the remainder of said will was ratified.
“4. On November 7, 1973, INA M. GARRETT employed defendant MRS. CHARLES A. CARTER, as a housekeeper until October 16, 1975 at a starting salary of $70 per week, which was subsequently increased to $85 per week.
“5. On February 6, 1975, INA M. GARRETT executed her last will and testament prepared by James W. Swain, the attorney of defendant MARY HAVRIS, also known as MARY L. HAVRIS and MARION C. HAVRIS, whereunder said Defendant is the only beneficiary, and the said James W. Swain was employed by Defendant MRS. CHARLES A. CARTER, for such purpose.
“6. On March 19, 1975, INA M. GARRETT, a widow, in consideration of love and affection, executed a warranty deed prepared by the said JAMES W. SWAIN, conveying her home unto Defendant MARY L. HAVRIS, situated in Dade County, Florida, to-wit:
“Lot 6 in Washington Place, according to the Plat thereof in Plat Book 20 at Page 54, together with improvements thereon and furniture and fixtures therein contained, reserving unto the grantor a life estate therein and the sole possession, use, and occupancy thereof.
That Defendant MARY L. HAVRIS did not pay any consideration for the execution of said deed and the said James W. Swain was employed by Defendant MRS. CHARLES A. CARTER, to prepare and secure the execution of said deed.
“7. On March 28, 1975, INA M. GARRETT, an unmarried widow, in consideration only of love and affection, executed a warranty deed prepared by E. Paul Beatty, an attorney employed by Defendant MRS. CHARLES A. CARTER, conveying to INA M. GARRETT and MARY L. HAVRIS, as joint tenants, and not as tenants in- common, with full right of survivorship, her home in Dade County, Florida, described as:
“Lot 6, of Washington Place, per Plat thereof recorded in Plat Book 20, at Page 54, together with the improvements thereon known as 623 N.E. 72nd Street, Miami, Florida
which was filed for record by said attorney on March 28, 1975, and recorded on said date in Official Records Book 8946, at page 1350.
“8. On April 4, 1975, the warranty deed referred to in Finding No. 6 above was forwarded by mail to INA M. GARRETT, and has not yet been recorded among the records of Dade County, Florida.
“9. On April 9, 1975, INA M. GARRETT executed her last will and testament, prepared by attorney E. Paul Beatty, employed for such purpose by Defendant MRS. CHARLES A. CARTER, whereunder all of the rest, residue and remainder of her estate, including her home, was devised to Defendant MARY L. HAVRIS, who was also appointed as the Executrix thereof.
“10. On July 6, 1975, Defendant MARY L. HAVRIS sent a mailgram to MRS. LEO PORCELLA, Renick, West Virginia (INA M. PORCELLA), containing the typewritten signature of INA M. GARRETT, stating that INA M. GARRETT had decided to leave everything she had to said Defendant.
“11. On September 3, 1975, INA M. PORCELLA filed in the Probate Division of this Court, Case No. 75-6045-N, a petition to determine the competency of INA M. GARRETT, then 94 years of age.
“12. On September 5, 1975, reports of the examination of INA M. GARRETT were filed in said Case No. 75-6045-N which establish a history of being unable to manage herself, or her affairs, due to senility and chronic brain syndrome.
“13. On or prior to September 12, 1975, Donald R. Thompson, of attorneys Frates, Floyd, Pearson, Stewart, Proenza & Richman, was employed by Defendant MARY L. HAVRIS to contest such petition to determine the competency of INA M. GARRETT and was paid the sum of $2,500.00 for such purpose out of the funds of INA M. GARRETT. On said date, he filed his appearance in said Case No. 75-6045-N as counsel for INA M. GARRETT.
“14. On September 12, 1975, the said Donald M. Thompson served, in Case No. 75-6045-N, a motion to dismiss the petition of INA M. PORCELLA to determine the competency of INA M. GARRETT on the ground that the same can only be filed by LEWIS C. RICHARDS, one of her brothers.
“15. On September 19, 1975, LEWIS C. RICHARDS, a brother of INA M. GARRETT, filed in said Case No. 75-6045-N his petition to determine her competency.
“16. On September 25, 1975, reports of the further examination of INA M. GARRETT were filed in Case No. 75-6045-N establishing that she was unable to manage her affairs; that she is likely to dissipate or lose her property; that she fears being deprived of her home; that she is unable to be responsible for herself or her affairs; and that she does not know the names of her banks or her lawyer.
“17. On October 17, 1975, INA M. PORCELLA filed in the Probate Division of this Court, Case No. 75-6654-N, her petition for the appointment of a guardian for the said INA M. GARRETT because of senility, impairment of memory, partially disoriented and confused, and being unable to be responsible for herself and her affairs.
“18. On October 17,1975, the Honorable JOSEPH NESBITT, one of the judges of this Court, entered orders in said Case No. 75-6654-N appointing INA M. POR-CELLA as Guardian of the Person of INA M. GARRETT, and Plaintiff as Guardian of her Property because of her mental and physical incompetency.
“19. On October 31, 1975, the Honorable JOSEPH NESBITT entered his order in said Case No. 75-6654-N requiring Defendant MARY HAVRIS to forthwith pay to Plaintiff all sums of the said INA M. GARRETT coming into the hands of said Defendant.
“20. That from November 7, 1973 to May 6, 1975, MARY HAVRIS, a/k/a MARION C. HAVRIS, withdrew the remaining funds of INA M. GARRETT deposited in various banking and Savings and Loan institutions in Dade County, Florida; cashed twenty-two Social Security checks payable to her order, and collected sums for the rental of the guest house situate in the rear of the above described premises, all aggregating $38,-340.44.
“21. That from .November 7, 1973 to November 13, 1975, MARY L. HAVRIS, a/k/a MARION C. HAVRIS, only expended the sum of $18,552.82 (exclusive of the aforementioned sum of $2,500.00 paid to attorney Donald R. Thompson) for the use and benefit of INA M. GARRETT out of and from said sum of $38,340.44, leaving an unexpended balance of $19,-787.62 due to Plaintiff by said Defendant.
“22. On November 12, 1975, Defendant MARY HAVRIS paid unto Plaintiff the sum of $7,045.12, pursuant to the order referred to in Finding No. 19 above.
“From the foregoing facts, the Court concludes:
“CONCLUSIONS OF LAW
“1. The law herein is with the Plaintiff and against Defendant MARY L. HAVRIS, a/k/a MARION C. HAVRIS, with respect to the funds of INA M. GARRETT withdrawn by said Defendant from banking and Savings and Loan institutions in Dade County, Florida, and not expended by said Defendant for the use and benefit of INA M. GARRETT.
“2. That the services rendered by DONALD R. THOMPSON to INA M. GARRETT in said case # 75-6045, did not benefit the said INA M. GARRETT, in that the report of the physician employed by the said DONALD R. THOMPSON to examine INA M. GARRETT discloses that a guardian should have been appointed for her, because of other matters.
“3. Plaintiff is entitled to judgment against Defendant MARY L. HAVRIS a/k/a MARION C. HAVRIS in the sum of $19,787.62, with interest thereon from November 13, 1975 at the rate of 6% per annum, together with costs and disbursements incurred and expended by .Plaintiff to be hereinafter taxed.
“4. That the warranty deed referred to in Findings of Fact # 6 is valid and conveys good and marketable title to Defendant MARY HAVRIS a/k/a MARION C. HAVRIS, subject to the life estate of INA M. GARRETT.
■ “5. That the warranty deed referred to in Finding of Fact # 7 be and the same is null and void and of no effect, and the Clerk of this Court will be directed to cancel the same of record.”

With regard to the first deed, made by Mrs. Garrett to Mary Havris reserving to the grantor a life estate and right of possession, the finding of the trial court as to consideration was that the grantee paid no consideration, and that the conveyance was made “in consideration of love and affection.” Likewise, as to the second deed purporting to create a joint tenancy in Mrs. Garrett and Mary Havris, the court found that deed was made “in consideration only of love and affection.”

We hold, as contended by appellant, that the two deeds by which this 94-year old woman transferred her home property to Mary Havris were without consideration and were invalid. In holding the unrecorded deed of March 19, 1975, was valid, the trial court misapprehended and misapplied the law, by concluding that love and affection of or towards one not a blood relation of the grantor constituted adequate consideration for Mrs. Garrett’s deeding of her property to Mary Havris, to whom she was not related.

10 Florida Jurisprudence, Deeds § 59, in discussing the question of whether or not love and affection constitutes good consideration, states, “ * * * However, there must be some blood or marriage relationship between the grantor and the grantee. * * * ” Said statement is derived from the English Rule which requires that in order for love and affection to be good consideration for a conveyance, said love and affection must be toward one to whom a natural duty exists,, such as near relatives by either consanguinity or affinity. See 23 Am.Jur.2d, Deeds § 65; 349 Am.Jur.2d, Estates § 349 and cases cited in footnote 7. Most American cases are in accord with the English Authorities. In Watson v. Watson, 24 S.C. 228 (1885), the Supreme Court of South Carolina in dealing with a conveyance where love and affection was the consideration, stated in part as follows:

“ * * * * The Circuit Court held the deed in question here a covenant to stand seized, * * *.
“ * * * * This conveyance has the same force and effect as a common deed of bargain and sale, but the great distinction between them is that the former can only be made use of among domestic relations, for it must be founded on the consideration of blood or marriage. No use can be founded for any purpose by this conveyance in favor of a person not within the influence of the domestic consideration; and it makes no difference whether the grantee, if he be a stranger to the consideration, is to take on his own account or as a mere trustee for some of the family connections. He is equally incompetent to take. The existence of another consideration in addition to that of blood or marriage will not impede the operation of the deed. * * * ”

In Florida decisions upholding conveyances where the basis for consideration was love and affection, express or implied, with absence of any other consideration recognized in law as adequate, the relationship of the grantor and grantee has been a blood relationship or a relationship of marital affinity. See Waterman v. Higgins, 28 Fla. 660, 10 So. 97 (1891); Wise v. Wise, 134 Fla. 553, 184 So. 91 (1938); Vazquez v. Santisteban, 334 So.2d 97 (Fla. 3d DCA 1976).

It was the finding of the trial court that the only consideration for these deeds was love and affection. Since under the law that can constitute consideration only as to one who is related by blood or marital affinity (which this grantee was not), the deeds were without consideration.

However, the appellees argue that aside from love and affection there was adequate consideration for the deeds, in that, as acknowledged by Mrs. Garrett, the grantee Mary Havris previously had been kind and helpful to Mrs. Garrett, and was her good friend. We hold that argument to be without merit.

The trial court did not find such factors to be consideration. There was no contract or legal obligation to pay for such prior acts of Mrs. Havris, nor were those gratuitous acts of Mrs. Havris of a kind or character for which a legal obligation to pay for them existed or could be implied. As such, they were not adequate consideration for the deeds: See Florida Nat. Bank & Trust Co. v. Brown, 47 So.2d 748 (opinion on rehearing 758, 761), and 17 C.J.S. Contracts § 116 wherein it is said:

Except to the extent that statutes may otherwise provide, by the great weight of authority a past consideration, if it imposed no legal obligation at the time it was furnished, will support no promise whatever; or, as the rule has been stated otherwise, an executed consideration is no consideration for any promise other than that which the law would imply. A past consideration is insufficient, even though of benefit to the promisor, where the services rendered or things of value furnished are intended and expected to be gratuitous, * * *

Nor did the fact that Mrs. Havris may have been or was considered by Mrs. Garrett to be her “good friend” constitute consideration for the conveyances. During the time this friendship existed, Mrs. Garrett’s money on deposit, and that which she would have received as income, was diverted by Mrs. Havris to the latter’s bank accounts. When the court ordered Mrs. Havris to return Mrs. Garrett’s money, $19,-000.00 thereof could not be produced by Mrs. Havris, against whom subsequently judgment was entered for that amount. “With a friend like that,_?” See the trial court’s above quoted findings of fact Nos. 19, 20 and 21.

Accordingly, the provisions contained in the judgment are affirmed, but the judgment is hereby supplemented and amended to include therein a further holding as follows: “The unrecorded deed dated March 19, 1975, from Ina M. Garrett to Mary L. Havris, of the home property of Mrs. Garrett, described as Lot 6, in Washington Place, according to the plat thereof, recorded in Plat Book 20, at Page 54, of the Public Records of Dade County, Florida, together with improvements thereon and the furniture and fixtures therein, with reservation of a life estate in the grantor, is hereby held and declared to be invalid and of no force or effect.”

The judgment, as herein supplemented and amended, is affirmed.


author: DAUKSCH, Judge.

text:
    The CITY OF VERO BEACH, a Municipal Corporation of the State of Florida, for the Use and Benefit of ECONO STEEL, INC., a Florida Corporation, Appellant, v. MORGANTI SOUTH, INC., a Corporation, and Federal Insurance Company, Appellees.
    No. 77-1384.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1979.
    Rehearing Denied Feb. 14, 1979.
    Charles W. Pittman of Macfarlane, Fur-guson, Allison & Kelly, Tampa, for appellant.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellees.
   DAUKSCH, Judge.

Affirmed on the authority of Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So.2d 1321 (Fla. 4th DCA 1978).

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.


text:
    Arthur John ORMANIAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1792.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 1979.
    Jack 0. Johnson, Public Defender, and David Wm. Boone, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court; However, we remand the case with directions that the trial court amend the sentence, awarding appellant credit for the time he spent in a state hospital as a mentally disordered sex offender. Section 917.218, Florida Statutes (1977); Hall v. State, 358 So.2d 891 (Fla.2d DCA 1978). Appellant need not be present for this purpose.

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


text:
    Jimmie Theodore GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 78-2240.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 1979.
   PER CURIAM.

Appellant’s motion to vacate, set aside, or correct his sentence, filed pursuant to Florida Rules of Criminal Procedure, Rule 3.850, was denied without an evidentiary hearing. The trial court found that the motion did not state a legal cause of action upon which relief could be granted.

As to two of the three allegations set forth in the motion we agree with the trial court’s ruling. The third allegation was that prior to sentencing appellant was by court order sent to a drug rehabilitation center, where he spent four months, and that he should have been given credit on his sentence for the time he served at the rehabilitation center. If this allegation is determined by the court to be correct it would entitle appellant to the relief he seeks. Johnson v. State, 334 So.2d 334 (Fla. 2d DCA 1976). We point out that there is nothing in the record before us to refute this fact.

Accordingly, the order denying appellant’s motion is vacated and the cause remanded for further proceedings consistent with this opinion.

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


author: SCHEB, Judge.

text:
    Fredrick Ira IBBITSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-434.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 1979.

      Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer, Daphne W. Boswell, Asst. Public Defenders, and Anne H. Kay-lor, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant challenges a two-year sentence imposed upon him under § 775.084, Fla.Stat. (1977), the habitual offender statute, for resisting an officer with violence. Appellant complains that (1) the state did not adequately prove his previous convictions or the necessity for declaring him a habitual felony offender, and (2) the court failed to make findings required by the habitual offender statute. From an examination of the record we find no merit in appellant’s first contention, but as to the second, we believe appellant is correct.

In Grimmett v. State, 357 So.2d 461 (Fla.2d DCA 1978), this court held that under § 775.084(4)(b) the trial court must make a finding on the record that the sentencing of a defendant as a habitual offender is necessary for the protection of the public. In the case before us the court did not make the required finding.

Accordingly, we affirm appellant’s conviction, but we set aside his sentence and remand this case for a new sentencing hearing at which appellant must be present.

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

      . We have held that the trial court need not state its reasons for such a finding as long as they are evident from the record. McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978).

      . In setting aside appellant’s sentence we realize that it is not excessive since he could have received five years in prison without reference to the habitual offender statute. §§ 775.-082(3)(d) and 843.01, Fla.Stat. (1977). However, because appellant has been marked a habitual offender, we believe that in all fairness we must require the new sentencing hearing.


text:
    Eddie Lee SHARP, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1749.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1979.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on December 27, 1977 (353 So.2d 642) reversing the judgment and sentence of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment by certiorari, the Supreme Court of Florida, by its opinion and judgment dated November 30, 1978, 365 So.2d 169, now lodged in this court, quashed this court’s judgment with directions to reinstate the judgment and sentence of the trial court;

NOW, THEREFORE, It is Ordered that the judgment of this court filed December 27, 1977 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment and sentence of the trial court is reinstated and affirmed. Costs allowed shall be taxed in the criminal court (Rule 9.400(a) Florida Rules Appellate Procedure).


author: BOOTH, Judge.

text:
    STATE of Florida, Appellant, v. Woodrow MAIER, Appellee.
    No. HH-478.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1979.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellant.

      William J. Sheppard, Jacksonville, for ap-pellee.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court granting appel-lee’s motion to compel discovery of the confidential informer of one W.L. Merritt, a special agent for the Naval Investigative Service. Agent Merritt made the following affidavit which formed the basis for the search warrant for a house trailer owned by appellee:

“Your affiant has been working with a previously reliable confidential informant who has been inside the above-described house trailer within the past seven days. While inside the house trailer said confidential informant observed two large bags of cannabis, commonly known as marijuana. The occupant of the trailer also represented to said informant that the substance was marijuana.
The confidential informant has identified cannabis in the presence of your, affiant. Your affiant is a Special Agent for Naval Investigative Service and is familiar with the appearance of marijuana. Said confidential informant bought a portion of the substance from the occupant of the above-described house trailer and turned it over to your affiant and your affiant recognized it to be capnabis, commonly known as marijuana. Said confidential informant has given information to Naval Investigative Service which has proven reliable on at least four occasions, two of which led to convictions, the other two are still pending.”

The search by Duval County authorities revealed drugs and drug paraphernalia, and appellee was charged with possession of: (1) more than five grams of cannabis, (2) mescaline, (3) tetrahydrocannibinolis and (4) drug paraphernalia. Appellee moved to suppress the evidence and to compel disclosure of the confidential informer.

The trial court correctly upheld the validity of the search warrant based on information given by an unnamed informant and denied the motion to suppress. The law is clear, and the trial court correctly held, that a search warrant may be based on hearsay information given by an unknown or unidentified person.

The second order of the trial court, however, requiring disclosure of the unnamed informer, is erroneous since that individual is, admittedly, the confidential informer of Agent Merritt, a special agent for the Naval Investigative Service, and appel-lee makes no showing that the identity of the informer is necessary for preparation of his defense. The trial court required disclosure even though the court expressly found that defendant “had not shown sufficient factors to cause the disclosure of the informant,” stating:

“[Ejither Defendant possessed the controlled substance, or he didn’t — the informant can not add anything to the facts as charged, so there is no known benefit that can accrue to the Defendant at the trial and the truth of the charge against Defendant will not depend upon the testimony of the informer. . . . ” (e. s.)

The trial court’s conclusion was that the privilege did not attach to Agent Merritt’s informer in the State proceeding.

Appellee’s contention is that the privilege of nondisclosure does not attach as to the informer in this case because Agent Merritt was not “charged with the enforcement of that law,” i. e., Florida Statute § 893.03, which is the basis of the charges against appellee. Specifically, appellee urges that the officer or other public official to whom the informer imparts his information must have the power to arrest for the offense disclosed by the informer’s tip or there is no privilege of confidentiality. Appellee also contends that Agent Merritt has no investigative powers outside the naval installation if non-military personnel are involved. Neither contention has merit.

The governmental privilege of nondisclosure of the confidential informer is not limited to law enforcement officers or to officers charged with enforcement of the particular law for which the accused is on trial. As authority to the contrary, appel-lee relies on the following statement in Roviaro v. U. S., 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957):

“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” (e. s.)

The foregoing defines the privilege in terms of the factual situation in the Roviaro case and the situation generally encountered, but does not thereby limit the confidential informer privilege as contended by appel-lee. No subsequent decisions have interpreted Roviaro to impose the underscored words in the above quote as a new and additional requirement of the privilege of non-disclosure. Nor do we.

The question here is not whether Agent Merritt could enforce, or arrest for violation of, Florida laws, but whether he received the information supporting the issuance of the search warrant in the course of his official duties as an investigative officer for the U.S. Navy. There is no contention that Agent Merritt received the information other than in the course of his official duties. The holding below is, however, that Agent Merritt is no more than a private individual insofar as matters occurring off the naval base and therefore no privilege of confidentiality exists as to the informer who supplies information as to matters occurring off the naval base. In the lower court and on appeal, appellee relies on a portion of the Department of Navy Instructions which defines the duties of “command investigators” and improperly equates these investigators with NIS special agents, whose duties are defined in the same instructions. Command investigators, defined to include military police, shore patrol, provost marshals, are limited in their activities to the investigation of “minor criminal offenses” and those “of a purely military character,” with off-base investigative activities restricted to a minimum and to the immediate area surrounding the installation.

Agent Merritt, the affiant in this case, is not a “command investigator” and is not so limited. As a special agent of the NIS he is invested with the responsibility for investigation of major criminal offenses, defined to include offenses against state laws as well as minor criminal offenses which have aspects involving “narcotics, dangerous drugs or controlled substances.” Therefore, it is clear that Agent Merritt was acting properly within the scope of his duties in receiving the information, and as required by the naval instruction, in “making investigative referrals in behalf of command.” As stated in U. S. v. Brouillette, 478 F.2d 1171, 1177 (C.A. 5th 1973):

“After all, under the system of federalism, there is room for dual State-federal activity. Federal officials often refer information they have received to State officials for possible prosecution. . .”

The trial court recognized that its decision requiring disclosure would make cooperative efforts between law enforcement agencies difficult, stating:

“Obviously, as numerous as our law enforcement agencies are, there are bound to be cases, similar to this one, wherein one agency, not charged with enforcement of a law, obtains information that would be helpful to another law enforcement agency charged with the enforcement of a particular law. In such case the information should be turned over to the proper law enforcement officer . However, this might in some instance, such as this, lead to a ‘Catch 22’ situation. In this case if the affiant had introduced the informant to the Sheriff’s Office, the Sheriff’s Office would not be able to vouch for the (sic) reliability since the informant had not previously been used and produced reliable results for the Sheriff’s Office. . . (e. s.)

Indeed, under the lower court’s ruling, cooperation among law enforcement agencies in cases involving a confidential informer can jeopardize the informer of the cooperating officer without the accused having to make the showing of necessity for disclosure traditionally required. There is no basis in law or reason to penalize cooperation between law enforcement agencies by refusing to recognize the confidentiality of the informer of the cooperating agency to the same extent as informers of the agency charged with the enforcement of the particular law violated.

In U. S. ex rel. Coffey v. Fay, 344 F.2d 625 (2nd Cir. 1965), a state prosecution for robbery, the court refused to require disclosure of the confidential informer of an FBI agent who provided information leading to the arrest. and accompanying search by state officers. The opinion states (344 F.2d at 629):

“About two months after the theft of the jewels, Gilhofer [FBI agent] obtained information implicating [the defendants] in the crime. He decided that ‘there was no apparent federal violation’ involved, so he invited the New York City authorities to join in arresting the two men. .
* * * * *
FBI agents presumably have no authority under federal law to make arrests on state charges. . . . ” (e. s.)

The FBI agent testified, in the State prosecution, but the State court refused to require disclosure of the identity of his informer. In the federal habeas corpus proceeding, the court ruled that the identity of the confidential informer was privileged, stating (344 F.2d at 633):

“The same exigencies of law enforcement which dictate reliance on hearsay and other extrajudicial types of evidence in the making of arrests may also compel the use of informers whose names cannot be disclosed . . . [G]ilhofer’s primary obligation in the time available to him was to arrange for the arrests and not to seek to obtain the same information from sources wholly independent of the informer. . . ”

Although the FBI agent was not charged with enforcement of, and had no authority to arrest for, the state robbery offense, his informer was protected by the privilege of non-disclosure.

Finally, we note that Rule 3.220(a)(l)(i), Florida Rules of Criminal Procedure, relied on by the appellee, is not applicable here to require disclosure of the federal agent’s informer, since the information is not in the actual or constructive possession of the State, as required by State v. Coney, 294 So.2d 82 (Fla.1974).

Accordingly, the order requiring disclosure is REVERSED and the cause REMANDED for further proceedings consistent herewith.

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

      . McCray v. State of Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62 (1967):
      “ ‘[A]n affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,’ so long as the magistrate is ‘informed of some of the underlying circumstances’ supporting the af-fiant’s conclusions and his belief that any informant involved ‘whose identity need not be disclosed * * * ’ Was ‘credible’ or his information ‘reliable.’ Aguilar v. State of Texas, supra, (378) U.S. [108], at 114, [84 S.Ct. 1509, 12 L.Ed.2d 723] . . .” (emphasis theirs)

      . Wigmore, Evidence, at 767, 777 (McNaughton Rev. 1961):
      . The privilege applies to communications to such officers only as have a responsibility or duty to investigate or to prevent public wrongs. . . . This ordinarily signifies the police and officials of criminal justice generally. But it may also include administrative officials having a duty of inspection or of law enforcement in their particular spheres. The truth is that the principle is a large and flexible one.
      ******

        It is not doubted that the government's privilege not to disclose the identity of an informer applies as much when the informer imparts his information to a judge or as when he imparts it to the police or prosecutor.” (e. s.)

      . In Roviaro the informer supplied information on violations of federal drug law violations to federal officers. The Supreme Court required disclosure of the informer’s identity based on the accused’s showing of the informer’s participation in the illegal activities charged and necessity of disclosure for the defense.

      . In Black v. Sheraton Corp., 47 F.R.D. 263 (D.C.1969), the same type of argument made here as to the Roviaro definition was made as to the “supply information” part of the definition and was rejected:
      “The actual scope of factual situations in which the privilege has been invoked, however, is significantly broader [than Roviaro ]. It has been held to apply not only to persons who supply information to the authorities but also to those who cooperate with or assist a law enforcement agency. . . (e. s.)

      . Department of Navy SECNAV INSTRUCTION 5520.3 of 16 July 1975; DoD DIRECTIVE 5105.42, 38 Fed.Reg. 7131 of March 16, 1973.

      . Department of Navy, SECNAVINST 5520.3, OP-009C, 16 July 1975:
      “Use of Command Investigators Certain Navy and Marine Corps commands maintam an investigative capability organic to masters at arms forces, military police, base police, security or guard forces, shore patrol, provost marshals, and other compositions. Use of these investigators for criminal and security investigations shall be limited to minor criminal offenses, as defined in this instruction, and those of a purely military character, when the offense involves only Navy or Marine Corps personnel or dependents, and investigation is confined to a ship or station. Off-base investigative activities, with the exception of normal liaison with local law enforcement agencies, shall be restricted to a minimum and to the immediate area surrounding the installation.” (e. s.)

      . Department of Navy, SECNAVINST 5520.3, OP-009C, 16 July 1975:
      “Major Criminal Offense (1) The NIS is the agency within the Department of the Navy responsible for the investigation of actual, suspected, or alleged major criminal offenses committed against a person, the United States government or its property, and certain classes of private property, including attempt or conspiracy to commit such offenses. A major criminal offense is defined for purposes of this instruction as one punishable under the Uniform Code of Military Justice by confinement for a term of more than 1 year, or similarly framed by federal statutes, state, local or foreign laws or regulations. Incidents of actual, suspected or alleged major criminal offenses coming to command attention (with the exception of those which are purely military in nature) must be immediately referred to the NIS.
      ******
      (3) In addition to referral [by command to NIS] of major criminal offenses, when any of the following circumstances occur, command shall promptly provide available information to the NIS for preliminary inquiry to determine if a request for full investigation is warranted:
      * * * * * *
      (d) When aspects surrounding a nominally minor incident which are of a potentially sensitive nature. Such considerations might include, but are not limited to, incidents involving . . . narcotics, dangerous drugs or controlled substances. .

      ******
      (4) A major criminal offense, as defined, may constitute a violation of both military and civil law, and may involve both military personnel and civilians. Sole or concurrent jurisdiction may also rest with another agency outside the Department of Navy. The NIS is responsible for making investigative referrals in behalf of command in these instances.” (e. s.)

      .Ibid.

      . Hatchett, Discovering the Identity of the Informer, 46 Fla. Bar Journal 644, 647 (1972):
      “In order to force disclosure of the identity of the informer, an accused must show that such disclosure is relevant to the defense of his case on the merits. The request for disclosure cannot be merely in furtherance of a motion to suppress. The defense must affirmatively show that the informer played a part in the transaction with which the defendant is charged. . . ”

      . See, U. S. v. Echols, 577 F.2d 308, 311 (C.A. 5th 1978):
      “The sole issue presented is whether the federal agent could lawfully be present during the proper execution of that [state] warrant. This Court has previously answered this question in the affirmative, and we have emphasized that we do not in any way wish to discourage cooperation between federal and state law enforcement officers.” (e. s.)

      . Accord, U. S. v. Sellers, 483 F.2d 37 (C.A. 5th 1973). Motion to suppress denied in federal gambling prosecution even though the gambling apparatus was seized under a warrant issued on information supplied by State officer’s “confidential informer.”

      . Fla.R.Crim.P., Rule 3.220(a):
      “(1) [T]he prosecution shall disclose to defense counsel . . . the following information and material within the State’s possession or control:

      (i) The names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged and to any defense with respect thereto.” (e. s.)


author: RYDER, Judge.

text:
    Barry D. VARON, Petitioner, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and Mental Health Program Office, Respondents.
    No. 78-938.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.
    Barry D. Varón, pro se.
    Anthony N. Deluccia, Jr., Fort Myers, for respondents.
   RYDER, Judge.

Petitioner Barry D. Varón is a staff psychologist at a state hospital administered by the Department of Health and Rehabilitative Services. Mr. Varón was suspended for “insubordination” without pay for two weeks because he refused to administer a psychological test, the Vineland Social Maturity Scale, which he considered unreliable and detrimental to the subject patients’ interests. Mr. Varón contends that the agency did not carry its burden of showing that the suspension was for just cause. We agree, grant the petition for review, and reverse.

After Varón returned to work, he appealed his suspension to the Career Service Commission pursuant to Section 110.061, Florida Statutes (1977). The applicable rules provide that the Commission hear such appeals. Fla.Admin.Code Rule 22A-10.06. However, the Commission was unable to do so because of a case backlog caused by the death of several Commission members. The appeal was therefore heard, at the request of the Commission, by a hearing officer of the Division of Administrative Hearings. See Section 120.65, Florida Statutes (1977); Fla.Admin.Code Rule 221-3.01.

In his recommended order, the hearing officer found as a matter of fact that while the Vineland Scale was overwhelmingly the most commonly used instrument to determine eligibility for treatment as a retarded person, it is always used in conjunction with other tests, and that Varón was not informed that other tests had been administered to the patients. As petitioner had not been aware of the other tests, his objections to the reliability of the Vineland Scale were valid. Therefore, the hearing officer concluded that the Department of Health and Rehabilitative Services had not established sufficient cause for suspending Mr. Varón for insubordination. He recommended that Mr. Varón be paid the salary he would have earned if he had worked during the period of his suspension.

The Career Service Commission reviewed the recommended order and accepted the conclusions of fact, but rejected the conclusions of law and final recommendation.

We reverse this action as the findings of fact, which the Commission accepted, demonstrated that Mr. Varon’s objections were valid. The Commission’s affirmance of Mr. Varon’s suspension was therefore not based •upon substantial evidence. See Section 110.061(4), Florida Statutes (1977). The Career Service Commission is therefore ordered to reinstate the original recommended order.

Petition for review granted, reversed with instructions.

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


author: OTT, Judge.

text:
    Frank GULEWICZ, Individually and Frank Gulewicz, as Personal Representative of the Estate of Emily Gulewicz, deceased, Appellant, v. Peter CZIESLA and Bridgette Cziesla, his wife, Security Insurance Company of Hartford, and the City of St. Petersburg, Florida, Appellees.
    No. 78-364.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.
    Philip W. Dann, of Baird, Robinson & Dann, St. Petersburg, for appellant.
    Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellee City of St. Pe-tersburg.
   OTT, Judge.

Appellant appeals from the lower court’s order granting summary judgment to ap-pellee and the lower court’s order denying appellant’s motion for rehearing. We affirm.

Appellant filed a complaint for personal injury and for the wrongful death of his wife which arose out of a fire in their apartment building. The appellee/City of St. Petersburg was named as a defendant due to an allegation that a city safety inspector had negligently allowed the apartment building to meet city safety codes. Appellant alleged that the building was allowed to have installed smoke detectors rather than being required to enclose the stairwells with fire resistant doors.

The lower court granted the city’s motion for summary judgment on the basis that the city was permitted a certain amount of discretion in the enforcement of safety codes and that the substitution of smoke detectors was not shown to be an improper or negligent exercise of that discretion.

Thereafter, appellant filed a motion to rehear the city’s motion for summary judgment.

Attached to appellant’s motion for rehearing was an affidavit of a qualified expert in fire safety. The affidavit was to the effect that the city had improperly or negligently exercised its discretion because the use of smoke detectors in lieu of fire resistant doors was contrary to accepted practices in the field of fire safety. The lower court denied appellant’s motion for rehearing for failure to assert exigent circumstances excusing the failure to submit the expert’s affidavit at or prior to the original hearing on the motion for summary judgment. The court cited as authority for this proposition this court’s holding in Willis v. L. W. Foster Sportswear Co., Inc., 352 So.2d 922 (Fla. 2d DCA 1977).

Appellant contends that a Fourth District case, namely, Hatmaker v. Advance Mortgage Corp., 351 So.2d 728 (Fla. 4th DCA 1977) is a better reasoned opinion on the same point of law. Our examination of Hatmaker does not, in our opinion, necessarily indicate conflict, but even if there is we are not persuaded to recede from our decision in Willis under the statement of facts presented in this case.

In the absence of the late affidavit we find no error in the original summary judgment nor do we find any abuse of discretion in the order denying the motion for rehearing.

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

      . By this stage, appellant had retained new counsel.

      . An affidavit by the same expert to like effect had been filed in a companion case prior to the date of the hearing on the city’s motion for summary judgment.