text:
    STATE of Florida, Appellant, v. Robert Hugh HARRIS, Appellee.
    No. 77-1896.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert G. Murrell of Sam E. Murrell & Sons, Orlando, for appellee.
   DOWNEY, Judge.

Appellee was arrested on March 20,1977, for aggravated battery, interference with a police officer, aggravated assault, false imprisonment and reckless driving. Subsequently, appellee was charged in one information in the County Court of Orange County with resisting an officer without violence and in another information in the County Court of Orange County he was charged with reckless driving. Pursuant to appellee’s motion, the two County Court cases were consolidated. On May 18, 1977, appellee pleaded guilty to the information for reckless driving and the court dismissed the information relating to resistance of a police officer.

On June 16,1977, appellant filed an information in the circuit court against appellee charging him with aggravated assault. Ap-pellee moved to dismiss that information pursuant to Fla.R.Crim.P. 3.151(c). The trial court’s order granting said motion is the subject of this appeal.

Appellant contends the trial court erred in dismissing the information because the offenses charged in the several informa-tions involved in this case were not “related offenses” as those terms are defined in Fla. R.Crim.P. 3.151(a). The reason they are not related appellant suggests is because they are not “triable in the same court.” Appel-lee’s position is that the offenses were tria-ble in the same court even though some were misdemeanors and some felonies, pursuant to the authority of Fla.R.Crim.P. 3.150(a).

We agree with appellee that the offenses involved are “related offenses” within the definition of Rule 3.151(a). They are based upon the same act or transaction and they could have all been filed in one information and tried in the Circuit Court. However, the fact that they were related offenses did not justify a dismissal of the information in this case.

Paraphrasing subsection 3.151(c) (relied on by the trial court for dismissal) we find it provided that when a defendant has been tried on a charge of one of two or more related offenses the charge of every other related offense shall be dismissed on the defendant’s motion unless certain conditions are met which are not applicable here. Subsection (d) provides that a defendant can plead guilty or nolo contendere to a charge of one offense on condition that other related offenses be dismissed, or that no charges on other related offenses be instituted.

As we will demonstrate hereafter by discussion of the rationale behind Fla.R. Crim.P. 3.151 and the commentary on the ABA Standards Relating to Joinder and Severance, Approved Draft, 1968 , this case is controlled by subsection (d) of the Rule and not by subsection (c) as appellee contends and the trial court held.

The Commentary under ABA Standard 1.3, “Failure to join related offenses,” states that the purpose behind a rule such as our Rule 3.151 is “to protect defendants from ‘successive prosecutions based upon essentially the same conduct.’ ” However, the Commentary points out that the Standard deals separately with cases in which 1) the defendant knows before the first trial that related offenses have been charged, 2) the case in which there is a subsequent attempt to try the defendant for a related offense not charged (or not known by the defendant to have been charged) prior to the first trial, and 3) the case in which there has been a prior plea of guilty or nolo conten-dere to a related offense.

From the foregoing it is apparent that the thrust of subsections (c) and (d) are different. In order for a defendant to rely upon subsection (c) for dismissal of related charges he must first have been subjected to a trial of one of the related offenses. If he pleads guilty or nolo contendere, he falls under subsection (d) and he is not entitled to a dismissal of related charges. As the Commentary states:

“Under the standard proposed here, the plea does not bar subsequent prosecution for a related offense. If the defendant knew that several related offenses were charged, he is of course free to request joinder under subsection (b) of the standard. If he does so but thereafter brings about a disposition as to one of the offenses charged by entry of a plea of guilty or nolo contendere, the defendant has in this way severed the offenses — as far as their disposition is concerned — and is in no position to complain about a subsequent trial of a related offense. Similarly, if he did not request a joinder but merely entered a guilty or nolo con-tendere plea as to one offense, he has no basis for complaint.” ABA Standards Relating to Joinder and Severance, Approved Draft, 1968, pg. 25.

The Commentary recognizes that one might argue that consistency requires that a defendant who pleads guilty should be able also to obtain dismissal of the related charges. But having considered that contention they rejected it:

“Under subsection (c) of the standard, if a defendant is actually tried for one offense he may thereafter move for dismissal of a charge on a related offense if he was unaware of the charge (or there was no such charge) at the time of the first trial. For purposes of consistency, it might be suggested that a defendant who enters a plea of guilty or nolo contendere should likewise be in a position to later move for dismissal of a charge on a related offense if he was unaware of the charge (or there was no such charge) at the time of his plea. In the latter instance, the motion would then be granted unless it was shown that the prosecutor did not have sufficient evidence to warrant trying the second offense at the time of the earlier disposition or that for some other reason the ends of justice would be defeated if the motion were granted. This approach was rejected after careful consideration by the Advisory Committee because it was thought that it might sometimes give the defendant an unfair advantage. For example, a defendant charged with one offense would, in many jurisdictions, be in a position to enter a plea promptly after being charged and thus bar prosecution of other related offenses then being processed (e. g., awaiting grand jury action) by the prosecutor.” (Emphasis supplied.) ABA Standards Relating to Joinder and Severance, Approved Draft, 1968, pg. 25.

In view of the foregoing, appellee’s guilty plea to the information in the County Court misdemeanor prosecution did not entitle him to dismissal of the subsequently filed felony information in the Circuit Court. The time to make sure he was relieved of all pending charges and to preclude the filing of future charges on related offenses was while appellee was negotiating his plea to the County Court misdemeanor charges. As the ABA Commentary suggests, having pleaded guilty without such conditions, ap-pellee effectively severed the related offenses and lost any possible benefit of the rule in that regard.

Accordingly, the order appealed from is reversed and the cause remanded with directions to reinstate the information and for further proceedings.

ANSTEAD and LETTS, JJ., concur.

      . The ABA Standards Relating to Joinder and Severance, Approved Draft, 1968, are specifically referred to in the Committee Notes to Fla.R.Crim.P. 3.150 and 3.151.

      . Commentary to ABA Standards Relating to Joinder and Severance, Approved Draft, 1968, 1.3(c), page 23.


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Stephen Joseph SUDOL, Appellee.
    No. 77-1944.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellee.
   DAUKSCH, Judge.

There was a potential conflict between decisions in our court in regard to the classification of the crime of attempted burglary. This potential conflict was properly resolved in Gray v. State, 356 So.2d 848 (Fla. 4 DCA Case No. 77-221 Opinion filed March 14, 1978). Attempted burglary is a third degree felony notwithstanding the dicta in Bownes v. State, 345 So.2d 787 (Fla. 4 DCA 1977), and the Opin.Atty,Gen. 077-4 (1977).

Therefore, the circuit court order finding it was without jurisdiction to try the appel-lee for the crime of attempted burglary was error and we must reverse and remand for trial.

REVERSED and REMANDED.

MOORE and LETTS, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    ATLANTIC PLAZA PARTNERSHIP, etc., et al., Appellants, v. DAYTONA SANDS, INC., etc., et al., Appellees.
    No. GG-314.
    District Court of Appeal of Florida, First District.
    April 18, 1978.
    Rehearing Denied May 15, 1978.

      Charles Tindell, of Elliott, Tindell & Geh-ris, Daytona Beach, for appellants.
    Jason G. Reynolds, of Coble, McKinnon, Reynolds, Rothert, Bohner & Godbee, Day-tona Beach, for appellees.
   MILLS, Acting Chief Judge.

Appellant Elliott filed a malicious prosecution counterclaim against appellees. The trial court entered a summary judgment in favor of appellees on the ground that there was no genuine issue of material fact as to appellees’ defense of advice of counsel, therefore, appellees were entitled to a judgment as a matter of law. Elliott appeals contending the facts were conflicting and showed that a number of appellees never consulted with their attorney. We affirm.

Initially, appellees filed a suit for declaratory judgment and for injunctive relief against Atlantic Plaza Partnership. This suit was concluded by the entry of a summary judgment in favor of Atlantic. Elliott was not a party to this suit.

The record reflects that a number of the appellees did not consult with the attorney but it also reflects that these appellees did not authorize the attorney to file the suit.

The theory or reason of a trial court in making an order is not controlling. If there is any reason or theory to support the order, the ruling will be affirmed. Deemer v. Hallett Pontiac, Inc., 288 So.2d 526 (Fla.3d DCA 1974).

As to some of the appellees, the reason given by the court for its ruling was correct. As to the remaining appellees, the court correctly entered summary judgment for them because they never authorized the filing of the initial suit. As to all of the appellees, the court was correct in its ruling, because Elliott was not a party to the initial suit which terminated in favor of Atlantic.

The summary judgment appealed is affirmed.

ERVIN and BOOTH, JJ., concur.


author: PER CURIAM.

text:
    Gary SALE, Appellant, v. TOWN COUNCIL OF LEE, Florida, Appellee.
    No. HH-392.
    District Court of Appeal of Florida, First District.
    April 18, 1978.
    Rehearing Denied May 12, 1978.
    John D. Carlson, Tallahassee, for appellant.
    Cary A. Hardee of Davis, Browning & Hardee, Madison, for appellee.
   PER CURIAM.

Inasmuch as the timeliness of the petition for certiorari in the Circuit Court of Madison County is affected by whether the Town of Lee “rendered” its decision on August 15, 1977, F.A.R. 4.5c(l), and this record is unclear in that respect, the judgment of the circuit court dismissing appellant’s petition for certiorari will be REVERSED and the case REMANDED to permit amendment of the petition for writ of certiorari to allege facts which may demonstrate that the Town’s decision was not rendered on August 15, 1977, and that the petition for writ of certiorari was not untimely when filed September 16, 1977. ■

REVERSED.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    Dennis M. O’CONNOR, Appellant, v. Mary Louise O’CONNOR, Appellee.
    No. 77-2010.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 12, 1978.
    Dennis M. O’Connor, in pro per.
    Richard C. Carter, Jr., Angelo P. Demos, Smathers & Thompson, Colson & Hicks, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The marriage of the parties to this appeal was dissolved July 3, 1972. The litigation was prolonged and bitterly contested. We note, however, that the judgment apparently was not appealed.

On July 21, 1977, the former husband filed below a petition for relief from the judgment pursuant to Rule 1.540(b)(4). The burden of the petition was that the judgment was void for want of jurisdiction because the wife did not, in fact, reside in the state for six months before filing the action. See Section 61.021, Florida Statutes (1971). Fraud upon the court is not alleged, nor is it alleged that the husband was without knowledge of the claimed issue at the time of entry of the judgment. The trial judge denied the petition and this appeal is from that order.

The trial court correctly determined that the issue was foreclosed by the final judgment, which was not appealed. See Beaty v. Beaty, 177 So.2d 54, 57 (Fla.2d DCA 1965).

Affirmed.


author: KEHOE, Judge.

text:
    Kimberly Anne POWERS, Petitioner, v. Honorable Alan R. SCHWARTZ, etc., et al., Respondents.
    No. 78-636.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Philip Carlton, Jr. and Sheldon “Skip” Taylor, Miami, for petitioner.
    Janet Reno, State’s Atty. and Richard Katz, Asst. State Atty., for respondents.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Petitioner, defendant below, brings this supplemental petition for a writ of habeas corpus seeking her immediate release from the custody of respondents. For the reasons set forth below, the petition for writ of habeas corpus is treated as a petition for common law writ of certiorari and denied.

This supplemental petition for writ of habeas corpus involves the same parties and the same subject matter as was previously before this court in Powers v. Schwartz, Case No. 78-636 (Fla. 3d DCA, order filed March 31, 1978) [hereinafter referred to as original petition for writ of habeas corpus]. As a result of the original petition for writ of habeas corpus, we entered an order dated March 31,1978, for the respondents to show cause, before the Honorable Alan R. Schwartz, Circuit Judge, Eleventh Judicial Circuit of Florida, why the relief sought should not be granted. As a result of this order, a show cause hearing was held before Judge Schwartz on April 7, 1978. At the conclusion of this hearing, Judge Schwartz entered an order denying the original petition for writ of habeas corpus. Petitioner concedes that the instant supplemental petition for writ of habeas corpus contains no new or additional facts not found in the original petition for writ of habeas corpus.

We have carefully reviewed both the petitioner’s original petition for writ of ha-beas corpus and the instant supplemental petition for writ of habeas corpus. Our review leads us to the conclusion that petitioner’s original petition for writ of habeas corpus and her supplemental petition for writ of habeas corpus are substantially identical. Based upon this conclusion we hold that the defense of res adjudicata is established by the record in regard to the instant supplemental petition for writ of habeas corpus and Section 79.10, Florida Statutes (1977), enjoins this second or successive application for habeas corpus. Scaldeferri v. Sandstrom, 285 So.2d 409 (Fla.1973); and State v. Kelly, 88 So.2d 118 (Fla.1956).

However, pursuant to the Florida Rules of Appellate Procedure, we can and do choose to treat petitioner’s supplemental petition for writ of habeas corpus as a petition for common law writ of certiorari.

The salient facts as alleged in the supplemental petition may be summarized as follows: On March 30, 1978, petitioner filed her original petition for writ of habeas corpus with this court. Thereafter, on March 31,1978, we entered an order to show cause, to be heard before Judge Schwartz, as to why petitioner should not be released from the custody of respondents. On April 7, 1978, the hearing was held at which time petitioner argued the law as set forth in State v. Roberts, 331 So.2d 394 (Fla. 2d DCA 1976), and Andress v. Coleman, 320 So.2d 451 (Fla. 4th DCA 1975). Petitioner argued, basically, that because she had been granted pre-conviction release, pursuant to an order entered by Judge Norman C. Ro-ettger, United States District Court, Southern District of Florida, such release continued to apply after a jury finding of guilt, but prior to the actual adjudication of her guilt and conviction. Petitioner argued that, pursuant to Andress v. Coleman and State v. Roberts, cited above, she was entitled to be released pending “conviction” until she is adjudicated or sentenced. As a result of this hearing, Judge Schwartz entered an order denying the original petition for writ of habeas corpus.

The relevant portions of this order provided as follows:

“THIS CAUSE is before the Court for the State to show cause why the Defendant should not be released pending sentencing and is heard at the direction of the Third District Court of Appeal. The Court, being fully advised in the premises, finds that:
“1. The Defendant was not entitled to bond before the trial in this cause in that it was stipulated that the proof of guilt was evident and the presumption of guilt was great. This Court so held pursuant to Article I, Section 14 of the Florida Constitution, and that decision was affirmed by the Third District Court of Appeal and the Supreme Court of Florida.
“2. Although this Court is aware that Judge Norman C. Roettger, United States District Court, Southern District of Florida, granted pre-trial release, this does not change Florida law as it is made and interpreted by the Courts of the State of Florida. Furthermore, this Court is aware that subsequent to trial Judge Roettger denied the Defendant’s Petition for Writ of Habeas Corpus finding that he would not apply the same pretrial standards for release because the presumption of innocence is gone and the prior equal protection analysis is thus inapplicable.
“3. The decisions in Andress v. Coleman, 320 So.2d 451 (Fla. 4th DCA 1975) and State ex rel. Lickert v. Roberts, 331 So.2d 394 (Fla. 2d DCA 1976) are readily distinguishable and therefore not applicable to the situation in this cause in that those cases involved offenses which were bondable before trial as a matter of right.”

As set forth in Judge Schwartz’s order, petitioner stipulated that the proof of her guilt was evident and the presumption of her guilt was great for the life felonies with which she was charged. Under these circumstances, it is our opinion that the order correctly reflects the applicable law of Florida and that, based upon all the facts in this case, petitioner was not entitled to release on bond. Accordingly, we hold that Judge Schwartz did not depart from the essential requirements of the law in entering the order appealed denying petitioner’s petition for writ of habeas corpus. Therefore, the common law writ of certio-rari is denied.

Denied.

      . Article 1, Section 14, Florida Constitution, provides as follows:
      “Until adjudged guilty, every person charged with a crime .... shall be entitled to release - on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.”
      See also Fla.R.Crim.P. 3.130.

      . We note that the constitutionality of Article 1, Section 14, Florida Constitution, was not at issue before either Judge Schwartz or this court.


author: BOOTH, Judge.

text:
    Albert KIRKLAND, Jr., Appellant, v. STATE of Florida, Appellee.
    No. GG-478.
    District Court of Appeal of Florida, First District.
    April 21, 1978.
    Michael J. Minerva, Public Defender, and Theodore E. Mack and Janice G. Scott, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   BOOTH, Judge.

This cause is before us on appeal from the judgment of conviction and sentence of five years imprisonment entered in the Circuit Court, Washington County, following a jury verdict finding appellant guilty of violating Florida Statute § 812.031, in buying, receiving and/or concealing stolen property of a value of more than $100.

Appellant contends that the verdict was defective, that the evidence was insufficient to support his conviction for the offense charged and that the sentence was defective because it failed to specify the amount of credit allowed for time spent in the county jail.

The information charges “buying, receiving and/or aiding in the concealment of stolen property — Florida Statute § 812.031” and specifies that appellant did:

“intentionally receive, retain, dispose of or aid in the concealment of any stolen property, to wit: assorted jewelry, watches, electric razor, camera, cosmetic items, 8 lamps, centurion clock, AM-FM Radio, cocktail table, the value of $100.00 Dollars or more, property of Watford Drug Store, South Sixth Street, Chipley, Florida, and Chipley Furniture Company, Railroad Avenue, without the consent of the owner or person entitled to possession, knowing that it had been stolen, or under such circumstances as would induce a reasonable man to believe that the property was stolen, in violation of Section 812.031, Florida Statutes.”

The verdict returned by the jury is as follows:

“We, the jury, find the defendant, Albert Kirkland, guilty of buying, receiving, and or concealing of stolen property of the value (sic) more than $100 . . .”

Appellant did not object to the form of the verdict and did not raise the point at trial. The original assignments of error filed in this Court do not make reference to any defect in the verdict, but motion has been filed for leave to file additional assignments of error directed to the verdict.

Appellant correctly points out that the verdict is defective in that it fails to state that defendant had knowledge that the property was stolen at the time he received it. Likewise the judgment which is, as required, the same as the verdict, also fails to state that appellant received the property with knowledge of its stolen character, and is defective. Eagle v. State, 270 So.2d 468 (Fla. 4th DCA 1972); Tadlock v. State, 343 So.2d 961 (Fla. 1st DCA 1977), both cases in which the cause was remanded for entry of a corrected judgment. In Russo v. State, 340 So.2d 1273 (Fla. 4th DCA 1976), the court held that a judgment adjudicating appellant guilty of buying or receiving or aiding in the concealment of stolen property, as charged in the information, was not defective despite its failure to recite knowledge on defendant’s part of the stolen character of the property, because of the reference to the charge in the information which did include a reference to the knowledge on defendant’s part.

In Spurlock v. State, 281 So.2d 586 (Fla. 4th DCA 1973), cert. denied 286 So.2d 207 (Fla.1973), the verdict was defective in that it failed both to state the value of the stolen goods and to allege that defendant knew that the goods were stolen. Defendant failed to object to the verdict, however, and the court held that there was “no reviewable judicial act.” In Spurlock, supra, the judgment, which also failed to recite knowledge on defendant’s part, was corrected on remand, the court holding:

“The jury verdict failed to fix the value of the stolen goods and to allege defendant knew the goods were stolen.
. As defendant concedes he failed to object below to the verdict, he failed to move for a new trial, and never attacked the verdict by a proper motion in arrest of judgment so that there is no re viewable judicial act; ergo, there is no merit to defendant’s first point on appeal .

The cases establish that defects in the form of the verdict, such as in this case, are waived on failure to object at some point during the trial proceedings. Richardson v. State, 345 So.2d 380 (Fla. 3d DCA 1977); McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971); Biesendorfer v. State, 227 So.2d 322 (Fla. 4th DCA 1969); c.f. Anderson v. State, 338 So.2d 209 (Fla. 3d DCA 1976).

Appellant’s point directed to the sufficiency of the evidence is not supported by the record, and, therefore, does not present error. The jury heard the appellant’s version of his lack of knowledge regarding stolen items which were found in the apartment he shared with another individual, and found his testimony not worthy of belief.

Appellant’s third point, failure to specify the amount of time served in the county jail as credit on his sentence, has merit. This defect can be remedied on remand to the trial court.

Accordingly, the judgment below is REVERSED and the cause REMANDED with directions to the trial court to enter a proper judgment, and to correct sentence so as to specify the amount of credit for jail time served. Defendant need not be present.

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


text:
    Nolan PLUNKETT, Appellant, v. Alice RENEAU, etc., Appellee.
    No. HH-402.
    District Court of Appeal of Florida, First District.
    April 21, 1978.
    John E. Crusoe, Tallahassee, for appellant.
    John T. Parnham, of Parnham & Ras-muss, Pensacola, for appellee.
   PER CURIAM.

AFFIRMED. Appellee’s motion for allowance of attorney fees on account of appellate services is provisionally granted. Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: BOYER, Judge.

text:
    AMERICAN FIRE AND CASUALTY COMPANY, Appellant, v. Monica BOYD, Individually and Monica Boyd, as next friend of Christal Knaper, Appellees.
    No. II-51.
    District Court of Appeal of Florida, First District.
    April 21, 1978.

      Robert D. Bell of Fisher & Bell, Pensacola, for appellant.
    James F. McKenzie of Myrick & McKenzie, Pensacola, for appellees.
   BOYER, Judge.

The issue to be resolved on this interlocutory appeal, as phrased by appellant, is: “Whether the trial court erred in determining that the vehicle being operated by James Hansen was an uninsured motorist vehicle and in entering its order of partial summary judgment for the plaintiffs on the issue of coverage.”

Appellee, plaintiff in the trial court, filed a complaint alleging that she and Christal Knaper were members of the household of Henry W. Carlson, who was insured by appellant, American Fire and Casualty Company, and that Boyd and Knaper were, while traveling in the Carlson vehicle in 1972, injured in an automobile accident caused by the negligence of an uninsured motorist, James Hansen; seeking coverage under the uninsured motorist provision of Carlson’s policy. Hansen had, at the time of the accident, a liability insurance policy with GEICO, which policy contained an exclusionary clause excluding coverage while Hansen was traveling on orders of a branch of the military service. At the time of the accident Hansen was traveling under orders of a branch of the military.

Appellant contends that notwithstanding the exclusionary clause in the GEICO policy Hansen’s vehicle nevertheless did not qualify under the statute as an uninsured vehicle because his employer, the United States Government, was liable for his negligence under the Federal Tort Claims Act.

The sole issue is whether the Hansen vehicle was “an uninsured vehicle” within the meaning of that term as used in F.S. 627.727. We hold that it was, and therefore affirm. Although Hansen had procured a policy of insurance, that policy afforded no coverage because of the exclusionary clause; and the mere fact that Hansen was in such a position as to cause to be invoked by his negligence the provisions of the Federal Tort Claims Act does not mean that he is thereby “insured” within the meaning of the statute.

Appellant has represented to the court that appellee has received from the United States a monetary settlement of appellee’s claim against the United States on account of Hansen’s negligence while driving the uninsured vehicle. That representation is not supported by the record presented to this court nor by evidence presented to the trial court. The partial summary judgment on liability was therefore without error as any benefits appellee may have received from the United States may be taken into account in fixing the amount of appellant’s liability. (Government Employees Ins. Co. v. Graff, 327 So.2d 88 (Fla. 1st DCA 1976).)

AFFIRMED.

McCORD, C. J., and SMITH, J., concur.


author: BOARDMAN, Chief Judge.

text:
    In re SPRING TERM (1977), PINELLAS COUNTY GRAND JURY (W. R. Houghton, Movant). In re STATE of Florida, INVESTIGATION (W. R. Houghton, Movant).
    Nos. 77-1639 and 77-1703.
    District Court of Appeal of Florida, Second District.
    April 21, 1978.
    Philip W. Dann of Baird, Robinson & Dann, St. Petersburg, for petitioner W. R. Houghton.
    James T. Russell, State’s Atty., George E. Tragos and D. L. Fugate, Asst. State’s At-tys., Clearwater, for respondent.
   BOARDMAN, Chief Judge.

Petitioner W. R. Houghton filed petitions for writs of certiorari seeking review of the orders of the trial court in Case No. 77-1639 denying his motion to limit scope of a grand jury investigation and denying his motion to quash service of a grand jury subpoena and in Case No. 77-1703 denying his motion to limit scope of the state attorney’s investigation and denying his motion to quash service of the state attorney’s subpoena. The cases were consolidated on appeal.

Petitioner was stopped while traveling in an automobile in Pinellas County by St. Petersburg Police Department officers on August 31, 1976 during a roadblock set up for vehicles departing from the site of an attempted controlled narcotics buy which was part of a drug investigation. A closed cardboard box on the front seat of his automobile was opened by the police without consent from Houghton, and it was discovered to contain a large amount of currency. Houghton was then arrested and charged with conspiracy to possess and/or deliver hashish. On October 1, the state attorney filed a “no information” stating that there was insufficient evidence to file criminal charges at that time. The sum of money was deposited into the court registry pending further investigation and proceedings.

On September 14, 1977 a subpoena from the state attorney for the appearance of Houghton was issued and was served on him September 19. Upon Houghton’s appearance pursuant to that subpoena he was served with a grand jury subpoena for October 11, 1977. It appears from the record that examination of Houghton by the state attorney and by the grand jury has been stayed pending disposition of these appeals.

Petitioner filed motions to quash service of the state attorney’s subpoena and to limit the scope of the state attorney’s examination by prohibiting inquiry into the circumstances relating to the money seized on August 31, 1976 until it was established that it was legally obtained. The motions were heard and denied by the Honorable Philip A. Federico. Petitioner filed similar motions to quash the service of the grand jury subpoena and to limit the scope of the grand jury’s investigation, and following a hearing they were denied by the Honorable B. J. Driver.

Petitioner contends that service of both subpoenas was invalid. We find no merit to his arguments and affirm the trial judges’ rulings denying the motions to quash service of the state attorney and the grand jury subpoenas.

With respect to limitation on the scope of the state attorney and grand jury examinations, petitioner argues that the money was seized in violation of Section 901.151, Florida Statutes, the Florida Stop and Frisk Law, and therefore the seizure was illegal and the matter not subject to investigation by either of these agencies. Petitioner’s position is grounded on analogy to exclusion of illegally intercepted oral communication from grand jury investigation. We do not agree with this analysis and affirm the trial judges’ rulings denying the motions to limit examination by the state attorney and the grand jury.

The only situation where evidence alleged to have been seized illegally has been ruled an improper subject of grand jury inquiry has been where legislation expressly provides that such evidence may not be considered by the grand jury. In Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) the United States Supreme Court held that presentation to a grand jury of evidence derived from illegally intercepted oral communications was prohibited by 18 U.S.C. 2515. That statute provides that “[wjhenever any wire or oral communication has been intercepted, no part of the contents . and no evidence derived therefrom may be received in evidence in any . . . proceeding in or before any . grand jury ... if the disclosure of that information would be in violation of this chapter.” This view was adopted by the Supreme Court of Florida in In re Grand Jury Investigation, 287 So.2d 43 (Fla.1973) which considered the Florida wiretap statute. Section 934.06 specifically states that evidence obtained as a result of violation of Chapter 934, Florida Statutes, may not be presented for a grand jury’s consideration.

Section 901.151(6) of Florida’s stop and frisk statute provides that evidence seized in violation of that statute is not “admissible against any person in any court . .” Grand jury is not expressly included in the prohibition. Petitioner argues that since a grand jury investigation constitutes a judicial proceeding, the statutory exclusion is applicable to a grand jury.

We hold that the legislature did not intend this result. Failure to mention grand jury in the statute at issue in the case before us and inclusion of that term in the statute at issue in In re Grand Jury evidences a clear legislative intent to permit a grand jury to consider evidence obtained illegally from a stop and frisk while prohibiting consideration of evidence gathered from an illegal wiretap. Furthermore, since the general rule is that examination by a grand jury is limited only by the bounds of relevancy, any exception to that rule should be specifically set forth by the legislature.

Petitioner has not demonstrated that any constitutional provision, statute, or rule of criminal procedure has been or will be violated by permitting a full and otherwise lawful examination of a subpoenaed witness by the state attorney or the grand jury. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). If any conduct during examination by either of the state agencies creates a question of intrusion into the rights of petitioner it should be disposed of at that time according to the appropriate procedure.

The petitions for writs of certiorari are DENIED.

OTT and DANAHY, JJ., concur.


author: OTT, Judge.

text:
    Virginia ENFIELD and Kenneth Enfield, her husband, Appellants, v. John HELD, Lykes Memorial Hospital and Argonaut Insurance Company, a Foreign Corporation, Appellees.
    No. 77-1812.
    District Court of Appeal of Florida, Second District.
    April 21, 1978.
    Kenneth R. Cate of Maher & Overchuck, P. A., Orlando, for appellants.
    John D. Shofi of Marlow, Shofi, Ortmayer, Smith & Spangler, Tampa, for ap-pellees/Lykes Memorial Hospital and Argonaut Ins. Co.
   OTT, Judge.

The trial judge dismissed a medical malpractice complaint with prejudice. We affirm the dismissal of the complaint but hold that the dismissal should not have been with prejudice.

Plaintiffs Virginia and Kenneth Enfield, appellants herein, filed a complaint on May 18, 1977 alleging that Mrs. Enfield sustained injuries as a result of malpractice occurring on or about January 2,1975 while she was a patient at defendant Lykes Memorial Hospital, appellee herein. The hospital’s insurer, Argonaut Insurance Company, was joined as a defendant. The complaint failed to allege compliance (either specifically or generally) with the medical mediation procedure prior to filing the complaint in circuit court as required by Section 768.44, Florida Statutes (1976 Supp.). Ap-pellees filed a motion to dismiss the En-fields’ complaint with prejudice. Attached to appellees’ motion was a copy of a claim filed by the Enfields with the medical liability mediation panel. The purpose of attaching the mediation claim was to establish its filing date of April 22, 1976. The jurisdiction of the mediation panel automatically terminated 10 months thereafter on February 22, 1977 under the provisions of Section 768.44(4), Florida Statutes (1976 Supp.). The appellees argued that the circuit court was without jurisdiction to entertain the malpractice action since the complaint was not filed within 60 days after the mediation panel lost jurisdiction. Adopting this rationale the trial judge entered an order dismissing appellants’ complaint with prejudice. From this order appellants appeal.

A plaintiff claiming damages by reason of alleged medical malpractice must first submit that claim to the appropriate medical liability mediation panel as a condition precedent to the filing of the complaint in circuit court. Section 768.44(1)(a), Florida Statutes (1976 Supp.). The record reflects (albeit by a speaking motion) that a claim was in fact filed on April 22, 1976 with the mediation panel, but appellants’ complaint does not so allege. In considering a motion to dismiss the trial judge is confined to the allegations contained within the complaint. See Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977). Since in the present case the complaint fails to allege either a general compliance with all conditions precedent or a specific compliance by the filing of a claim with the appropriate medical mediation panel, the trial court properly dismissed appellant’s complaint. However, the dismissal should have been with leave to amend to correct this deficiency.

Section 768.44(4), Florida Statutes (1976 Supp.) provides as follows:

The filing of the claim shall toll any applicable statute of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any' event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court.

Both parties and the trial judge apparently interpreted this 60 day period as mandating the filing of the complaint within such period. The effect of such an interpretation would further shorten the statute of limitations in medical malpractice actions. We do not agree with this interpretation. We hold the 60 day period operates, under appropriate circumstances, as a saving not a limitation clause. See Ludwig v. Glover, 357 So.2d 233, 1st DCA, Opinion filed April 5, 1978.

Section 95.11(4)(b), Florida Statutes (1975) provides a two year statute of limitations for actions in tort or contract for alleged medical malpractice. This two year period began to run on January 2,1975, the date the alleged malpractice in the present ease is claimed to have occurred. However, Section 768.44(4), Florida Statutes (1976 Supp.) provides that the filing of a claim with the medical mediation panel “tolls any applicable statute of limitations” until the panel decides the case or the jurisdiction of the panel is otherwise terminated. Therefore, the two year statute of limitations was tolled when the Enfields filed their claim with the medical mediation panel on April 22, 1976. Since the mediation panel never decided this case (for reasons not material to this discussion) the jurisdiction of the panel automatically terminated after 10 months, on February 22, 1977. At this time there remained approximately nine months of the original two year statute of limitations. Thus, appellants’ complaint was timely when filed on May 18, 1977. It was therefore error for the trial court to rule that the circuit court was without jurisdiction and to dismiss appellánts’ complaint with prejudice.

That part of the order dismissing appellants’ complaint with prejudice is therefore reversed and the cause remanded to the trial court for proceedings consistent with this- opinion.

REVERSED and REMANDED.

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


text:
    In the Matter of Virginia BLUE et al., Appellants.
    No. II-212.
    District Court of Appeal of Florida, First District.
    April 24, 1978.
    Linsey Moore of Johnson, Moore & Roberts, Jacksonville, for appellants.
    Earl G. Nicholson, Palatka, for appellee Bi-Racial Committee.
   PER CURIAM.

Upon consideration of the final judgment of the Circuit Court of the Seventh Judicial Circuit, in and for Putnam County, entered March 24, 1978, the petition for writ of certiorari or for writ of prohibition directed to the proceedings of the circuit court on December 5, 1977 is

DENIED.

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


text:
    Dallas Grant CLICK, Appellant, v. STATE of Florida, Appellee.
    No. II-241.
    District Court of Appeal of Florida, First District.
    April 24, 1978.
    O. E. Adams, Sr., Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The petition for writ of certiorari is DENIED..

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


author: McCORD, Chief Judge.

text:
    STUYVESANT INSURANCE COMPANY, Appellant, v. STATE of Florida ex rel. J. Edwin LARSON, State Treasurer and ex officio Insurance Commissioner, and McKinley and Company, a Florida Corporation transacting insurance business, Appellees.
    No. FF-103.
    District Court of Appeal of Florida, First District.
    April 25, 1978.

      Ford L. Thompson of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, for appellant.
    John Klein Wigginton of McClure, Wig-ginton, Campbell & Owen, Tallahassee, for appellees.
   McCORD, Chief Judge.

This appeal is from a final judgment construing a contract entered into between various insurance companies for payment of losses and expenses resulting from McKinley & Company, a Florida insurance corporation, having been placed in receivership by the Insurance Commissioner of Florida because a number of the companies for which McKinley had issued and sold policies were unable to pay the claims made against them. The companies operated a marine insurance pool through McKinley. Each of the insurers participating in the pool had Quota Share Agreements by which they shared the premiums, profits and losses on a Quota Share basis according to the percentages assumed by them by the terms of their agreements. Underwriters at Lloyds of London and certain alien insurers were involved heavily in the pool. The receivership of McKinley resulted primarily from a refusal by Lloyds and the alien companies to advance the funds required to cover their share of outstanding losses. Their refusal was precipitated by an audit they had made of the records of McKinley from which they claimed they had been fraudulently induced to enter into the Quota Share Agreements. Because of the chaos that developed, the Insurance Commissioner called all of the participating companies together and told them they must resolve the problem of defaults in payment of claims. This resulted in most of the participating companies entering into a loss fund indenture agreeing to advance the money necessary to commence payment of the claims. Lloyds and the alien insurers refused to take part in the Indenture and filed suit in federal court seeking to rescind their Quota Share Agreement on grounds of fraud. (Ultimately Lloyds and the alien companies agreed to dismiss their suit and to pay their share of all losses. Their agreement was approved by the court in the receivership proceedings. It did not include any agreement to pay any part of the expenses of settling claims.) Other companies who were participants in the pool had become insolvent and thus were not parties to the Indenture.

Some of the companies who were parties to the Indenture were policy issuing companies and others were reinsurers. Appellant, Stuyvesant Insurance Company, was a rein-surer. The loss fund indenture set forth the procedure for contributions from the various companies to fund the payment of the losses and to pay the expenses of settling the claims. It also created a committee to administer the Indenture.

The Indenture made a distinction between contributions for losses to be made by policy issuing companies and those to be made by reinsurers. Appellant, a reinsurer as aforesaid, contends that the committee has imposed upon it a much larger obligation for contribution to the expenses than is its share under the Indenture. The trial court found that the allocations made by the committee were correct and ordered payment by appellant in accordance therewith. We affirm.

By the time McKinley was placed in receivership, it had sold policies of various companies with known claims totalling $8,989,194.68 as shown by Exhibit “A” of the Indenture. Of this amount, appellant’s original net outstanding losses were $276,-886.11 — 6.94% of the total. The Indenture provides in paragraphs 4 and 5 as follows:

“4. Each party hereto further agrees that with respect to all losses subject to this Indenture, and upon which it was the issuing company, it will initially advance the proportionate share which is due or would become due from the Underwriters at Lloyds and the alien insurers under the contracts, agreements, and treaties in effect between said Underwriters and alien insurers and McKinley & Company during the period covered by this Indenture, as reflected by the schedule of outstanding losses attached as Exhibit ‘A’.
5. Insofar as advancements to the Fund hereby created are concerned, the issuing companies hereby agree, solely for the purposes of this Indenture, to advance on the basis and in the manner herein provided, the amounts which now are or hereafter may become due from insolvent participants on the losses covered by this Indenture.” (Emphasis supplied.)

Thus, as to losses, the issuing companies shall be liable for their own losses plus the losses of Lloyds, the alien companies, and the insolvent companies based on a system of proportionate shares; the reinsurers are liable for only their own losses. Appellant is thereby liable for only 6.94% of the total losses.

The dispute here involved concerns not loss allocations but liability among the various companies for expenses. Appellant urges that the Indenture differentiates between issuing companies and reinsurers in computing expenses, as it did in computing liability for losses. After careful consideration of the terms of the Indenture, however, we have found appellant’s position to be erroneous.

Paragraphs 4 and 5 of the Indenture provide for a distinction between the issuing companies and the reinsurers for purposes of determining losses but not for determining shares for expenses. Paragraph 8 of the Indenture sets forth the method of allocation of the expenses among the parties. It provides as follows:

“8. Any expenses in connection with the execution of the terms of this Indenture, other than the payment of the nominee provided for above, shall be borne by the Parties Hereto in the same proportion as their participation in the initial deposit of funds provided herein.” (Emphasis supplied.)

To determine the proportion that each party must pay toward the expenses, we must, therefore, look to the terms of the Indenture relating to the initial deposit. Paragraph 3 of the Indenture provides as follows:

“3. Such fund shall be created by receiving from each of the Parties Hereto, an initial deposit of twenty percent (20%) of their net outstanding losses as shown on Addendum marked Exhibit ‘A’, plus such additional amounts as are hereinafter agreed to, and the funds so deposited shall continue to be the property of the parties depositing same, subject, however, to all of the terms, conditions and provisions of this Indenture.” (Emphasis supplied.)

Thus, from the terms of the Indenture itself, each party contributed to the initial deposit according to its own net outstanding losses. According to paragraph 8, the expenses are to be borne by the parties “in the same proportion as their participation in the initial deposit.” The losses of Lloyds, the alien companies, and the insolvent companies were not considered in assessing the companies’ contributions on the initial deposit. Thus, in determining each party’s liability for the expenses, the losses of Lloyds, the alien companies, and the insolvent companies are not to be taken into consideration. Each party’s contribution to the expenses is to be assessed using the same proportion as that party’s net outstanding losses related to the combined net outstanding losses of all parties participating in the Indenture as the trial court found. Thereby, the expenses of the loss fund indenture are distinguished from the losses assessed under the Indenture.

It is necessary at this point that we address an additional complicating circumstance present in this case that affects the actual amount due from appellant for expenses. While the claims were being settled under the Indenture, several of the participating companies became insolvent leaving the Indenture Committee with the task of determining how those newly insolvent participating companies’ shares of the expenses would be paid. Paragraph 13 of the Indenture provides that the Committee shall have the power and authority to carry out the intent and provisions of the Indenture. The Indenture clearly intends that the expenses be paid by the participating parties. When some of the participants then became insolvent, the Committee, within its authorized discretion, declared that the expenses due to be paid by the newly insolvent companies must be absorbed by the remaining solvent companies, of which appellant was one. Appellant’s share of the expenses under the Indenture, computed by using the initial deposit ratio discussed above, amounted to 21.737% of the total expenses. However, when each solvent participant’s contribution had to be raised to cover the amounts owed by the newly insolvent companies for expenses, appellant was faced with a bill for expenses greater than the amount owed under the “initial deposit” calculation. In the wake of this expansive factual situation, the Committee arrived at the $230,578.48 figure to be paid by appellant. The trial court adopted that calculation. In consideration of the Committee’s paragraph 13 power, which is binding on all parties, to make decisions and take actions which are consistent with the intent of the Indenture, we find no abuse of discretion in the trial court’s endorsement of the Committee’s assessment of expenses to appellant.

Affirmed.

BOYER and MELVIN, JJ., concur.


text:
    Charles Lee HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. HH-391.
    District Court of Appeal of Florida, First District.
    April 25, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant was sentenced to sixty (60) days for attempted petit larceny and five (5) years to run concurrently for burglary of a structure. Further the sentence provided that the appellant pay costs of $2 or serve one (1) day of confinement to run concurrently with the sentence. Since the appellant had been found insolvent, the requirement that he pay costs or serve one day of confinement was error. Smith v. State, 352 So.2d 1276 (Fla. 1st DCA 1977). Judgment and sentence are affirmed except for the assessment of costs and the one day sentence in lieu thereof and the cause is remanded with directions to delete same from the sentence. Such modification may be made without pronouncement in open court and without the necessity of appellant being present.

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


text:
    Frederic VINSON, Appellant, v. GULF LIFE INSURANCE COMPANY et al., Appellees.
    No. II-140.
    District Court of Appeal of Florida, First District.
    April 25, 1978.

      Roderic G. Magie, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Dennis K. Larry, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for appellees.
   BOOTH, Judge.

This cause is before us on interlocutory appeal from the order of the Circuit Court, Escambia County, granting partial summary judgment in favor of Gulf Life on Count II of the complaint.

Appellant filed a complaint for compensatory and punitive damages against Gulf Life Insurance Company, and one Colley, alleging defamation and intentional interference with economic advantages. Count II of the complaint alleged that Colley, acting in the scope of his employment with Gulf Life, made defamatory remarks to certain officials of Pensacola Junior College where appellant was to begin teaching a non-credit course'on insurance. As a result, the course was cancelled.

Colley was employed as a district manager of Gulf Life’s Pensacola, Florida, office. He was also president of the Pensacola Association of Life Underwriters, a local organization affiliated with the State and National Associations of Life Underwriters. Appellant Vinson’s name was included in a complaint made to the Association’s Grievance Committee. By vote of the Association’s Board of Directors, a formal complaint was made to the State Insurance Commission against Vinson and others for alleged violations of the Florida Insurance Replacement statutes and other matters. The Insurance Commission commenced an investigation which concluded with Vinson being asked to stop using misleading business cards.

The deposition before the court established that while the investigation by the Insurance Commission was in progress, the Association’s Board of Directors learned that Vinson was to teach a course at the college on life insurance and, at the direction of the Board, Colley called two college officials to inform them that Vinson was under investigation by the Insurance Commission.. Both officials testified that” Colley told them he was acting as president of the Pensacola Association of Life Underwriters.

The trial court’s order granting partial summary judgment in favor of defendant Gulf Life on Count II, is in part as follows:

“ . ■. [T]he court finds that there is no factual dispute relating to the issue of this defendant’s liability as respondeat superior under Count II of the complaint. The testimony of all witnesses on this issue establishes that defendant Colley was acting as an officer of the Association of Life Insurance Underwriters at the direction of its board of directors. He was not acting as an agent for defendant Gulf Life.”

We have reviewed the record and conclude that the trial court was correct in ruling that no material issue of fact existed as to Gulf Life’s liability in Count II. There was no evidence that Colley was acting other than as president of the Association in communicating with the officials at the college.

Accordingly, the judgment below is AFFIRMED.

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


text:
    Judith Ann KANEFF, Appellant, v. The STATE of Florida, Appellee, (two cases).
    Nos. 76-2097 and 77-1406.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Weiner, Robbins & Tunkey and Alan S. Ross, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Robert Burlington, Legal Intern, Joel Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. State v. Statewright, 300 So.2d 674 (Fla.1974); State v. Matera, 266 So.2d 661 (Fla.1972); Fuller v. Wainwright, 238 So.2d 65 (Fla.1970); Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Leon George McWAIN, Appellant, v. GREYHOUND LINES, INC., Appellee.
    No. 77-57.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Horton, Perse & Ginsberg, Hawkesworth, Schmick, Ponzoli & Wassenberg, Miami, for appellant.
    Preddy, Kutner & Hardy and Michael J. Parenti, III, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a summary final judgment entered in favor of appellee, one of several defendants below. For the reasons set forth below, we reverse.

Appellant was in the Greyhound Bus Station, Miami, Florida, when he became involved in an altercation with an unidentified person. As a result of this altercation, appellant was arrested by David A. Weiss, a police officer for the City of Miami, who, at the time of the arrest, was employed by and acting as a security guard for Greyhound Lines, Inc., one of the defendants below and appellee herein. The City had given its permission for Weiss’s employment with ap-pellee. After Weiss made the arrest, he called for assistance in transporting appellant to jail. Police officers, Raymond Russo and Gwendolyn Davis, on duty for the City of Miami, responded to Weiss’s call. Thereafter, appellant was placed into Russo’s and Davis’s police car for the purpose of transporting him to jail. During the course of the transportation, Weiss followed the police car in his own private car. At some distance from the Station the cars stopped for a red light, Weiss got out of his car, opened the back door of the police car, and allegedly assaulted appellant. As a result of the injuries sustained by this assault, and allegedly another assault at Jackson Memorial Hospital, appellant filed an action seeking to hold appellee responsible for the injuries which he incurred because of Weiss’s conduct. In response to this action, appel-lee filed a motion for summary judgment which the trial court granted. From this adverse summary final judgment, appellant appeals.

Appellant’s basic contention on appeal is that the trial court erred in entering the summary final judgment in favor of appel-lee, because, at the time of its entry, there existed a justiciable issue of fact, i. e., the capacity of Weiss at the time he committed the alleged assaults, which precluded the entry of a summary final judgment.

The importance of determining the capacity of a police officer, under circumstances such as those in the instant case, has been discussed in an Annotation, titled “Liability of private employer of police officer for latter’s negligence or other misconduct,” found in the American Law Reports which reads in part as follows:

“There is little, if any, dissent from the proposition that the mere fact that one in private employment also has a commission from the public as a police officer does not protect his private employer from liability to third persons for acts which are referable to the former’s capacity as private employee, but that the private employer is not responsible for acts or omissions referable to his character as a public officer. Such conflict as there is centers about the question whether at the particular time he was acting in one capacity or the other. As will subsequently appear, that is frequently a close question on the facts, and the same, or substantially the same, situation frequently admits of different inferences in that regard.”
“Where private persons, with the consent of the state, employ its police officers to represent them, and to do special work for them in protecting and preserving their property and maintaining order on their premises, and such officers are engaged in the performance of their duties to their employers, and are acting within the scope of their powers and duties, they become and are servants and employees of such private persons; and for negligent and wanton acts committed by them in the line of their duty, and when engaged in the performance of such duties, to the injury of others, their masters or employers are liable; at least, the private employer is not immune from liability simply because the employee has an official status. (That the question in which capacity the officer-employee was acting in any particular case is generally for the jury, . ..” Annot., 55 A.L.R. 1197, 1198-99 (1928).

This Annotation cites numerous cases from other jurisdictions in support of the proposition that the question in which capacity an officer/employee was acting in any particular case is one for the jury to determine. Id. at 1199-1200. Although we are unaware of any Florida authority dealing directly with this question, we find the reasoning set forth in the quoted portions of the Annotation to be persuasive. Based upon this reasoning, we have concluded that there was a justiciable issue of fact in the instant case, i. e., the capacity of Weiss at the time he committed the alleged assaults, which should have been determined by the jury. Accordingly, the summary final judgment appealed is reversed and the cause is remanded for further proceedings consistent with this opinion. See Fla.R.Civ.P. 1.510.

Reversed and remanded.


text:
    In re ESTATE of George Lee CRIM, Deceased. Mary Ida CASH, Appellant, v. Blanche CRIM, Appellee.
    No. 77-685.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Milton M. Ferrell, Herbert A. Warren, Miami, for appellant.
    John H. Duhig, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

The principal question presented on this appeal is whether the trial judge erred in failing to allow interest to the estate upon sums advanced by the estate to maintain a residence which was later declared to be homestead. The question is presented upon the estate’s appeal from an order for distribution of condemnation proceeds. The trial judge found as follows:

“THIS CAUSE came before the Court upon the Motion of the Executrix for Entry of Order Specifying Sums to be Paid to Estate. This court previously entered its Order on January 11, 1977 providing for repayment to the estate of mortgage payments and taxes made with estate funds on the homestead property together with interest thereon from the date of each such payment. The Court has reconsidered that provision of the former Order of January 11 relating to the accrual of interest chargeable against the spouse on monies advanced by the estate for the protection of the property involved in the condemnation proceedings and the Court is now of the opinion that the spouse should not bear the loss of interest to the estate which could have been avoided by a timely determination of the homestead status of the property.”

The facts relevant to the case are lengthy and we think they need not be set out fully for the basis of our opinion to be understood. The decedent died in 1966. Although a will was filed for probate and admitted, probate of the estate was not promptly carried forward. The attorney for the estate handled all receipts and disbursements of estate funds through his trust account. All through the administration of the estate, it appears that the executrix and the widow were on friendly terms and abided by the decisions of the attorney and that the parties assumed facts and law that were not true. It was agreed that the attorney had paid funds from his trust account belonging to the estate in payment upon the mortgage indebtedness and taxes on the property where decedent resided at the time of his death. It was further agreed that such funds had been paid for the purpose of protecting whatever interest the estate may have had with respect to the subject property. The payments on the mortgage and taxes with estate funds were not controverted. By virtue of the fact that the estate paid the mortgage and taxes, the widow was able to continue to live on the premises for six years and four months after decedent’s death. The subject property was condemned by the State of Florida in eminent domain proceedings in 1975 and $36,700.00 was received by the attorney for the estate, who was ordered by the probate court to deposit such funds in a savings account pending determination of the appropriate method of distribution. No petition for determination of the homestead status of the subject property was filed until the widow filed her Petition to Set Aside Homestead on October 29, 1976.

The appellant relies upon the general principle that a subrogee is entitled to stand in the shoes of the creditor and to enforce every right which the creditor himself could have enforced. See Cuesta, Rey & Co. v. Newsom, 102 Fla. 853, 136 So. 551 (1931). The trial judge properly determined that interest in the subrogation proceeding is governed by equitable principles. See Dantzler Lumber & Export Co. v. Columbia Casualty Co., 115 Fla. 541, 156 So. 116 (1934). In the instant case, the absence of a demand for the payment of the money, and the fact that both parties apparently considered the payment by the estate to be proper, supports the trial judge’s conclusion that interest should not run from the date of the payment of the mortgage and taxes.

The appellant has also presented a procedural point. It is urged that the court's first order on the subject, which stated that interest would be assessed, was a final probate order and, as such, could not be changed by the trial judge. We hold that the first order was not a final, appeala-ble order in that it did not determine the matter.

Affirmed.

      . The order provided:
      ******
      “If counsel are unable to agree, the Court will • conduct a further hearing to determine the exact amount to be paid . . . ”


text:
    MID-OSCEOLA UTILITIES, INC., Appellant, v. CITICORP BUSINESS CREDIT, INC., Appellee.
    No. 77-950.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.

      Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellant.
    Smathers & Thompson and Hugh J. Turner, Jr., Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The summary judgment appealed from is affirmed, on the ground that the trial court correctly held the appellee’s security interest was superior to that of the appellant. See: Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278, 284-285 (1976).


text:
    Bonnie WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1115.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Jose Rodriguez, Asst. Atty. Gen., for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Williams v. State, 294 So.2d 37 (Fla. 3d DCA 1974); Phillips v. State, 284 So.2d 485 (Fla. 3d DCA 1973).


text:
    Ruth Lee ROBINSON, Appellant, v. Rodney VANCE, Appellee.
    No. 77-1356.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.

      Irene Redstone and Bruce M. Boiko, Legal Aid Society, Miami, for appellant.
    Silverstein & Prichason, Miami Beach, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.) Associate Judge.
   PER CURIAM.

This is an appeal from an “order on report of general master of order on petition for custody.” In sum, the order ratified and approved the report of the general master which awarded the custody of a minor child to appellee/respondent, the alleged natural father of the child. Appellant/petitioner, the maternal grandmother of the child, contends that the evidence presented before the general master and chancellor did not sustain an award of custody to appellee; rather, appellant argues, the evidence demonstrated that the interest of the child would best be served by awarding her custody.

Based upon our review of the record, we find merit in appellant’s contentions. Therefore, it is our opinion that the order appealed from must be reversed. In lieu of setting forth the entire facts of this case in detail, we state only those factors which have influenced our decision and have led us to the conclusion that the child’s interest would best be served by giving custody to appellant.

Firstly, we note that the child, age 22 months at the time of the filing of the petition for custody, was born out of wedlock to appellant’s daughter, Shirley Ann Norton, on November 4, 1974. On December 8,1974, Ms. Norton died as a result of a gun shot wound to the head for which ap-pellee was adjudged to be guilty and sentenced to five years in the State Penitentiary.

Secondly, we note that neither the report from the Division of Family Services nor the report from the Domestic Relations Staff of the Circuit Court recommended that appellee be given custody of the child. In fact, the former report concluded with the recommendation that custody of the child be granted to appellant, the child’s maternal grandmother, while the latter report concluded only with the statement that appellee’s “present incarceration should not denigrate his image to the point that he should not be given consideration as a father and future custodian of the child.”

Thirdly, we note that the evidence does not support the finding that appellee is the natural father of the child. An affidavit of one Henry Lee Howell is contained in the record, said affidavit acknowledging the fact that he, rather than appellee, is the father of the child. In addition, a letter written by the deceased to Howell, prior to her marriage to appellee, named Howell as the father. Moreover, it appears from the record that appellee neither had physical “access” to the deceased at the time of the child’s conception, nor, by way of verified pleading, actually claimed that he was the child’s natural father.

Finally, the record reveals that in contrast to the environment of the incarcerated appellee, appellant, who already has custody of the child’s only sister, can provide both a stable and familial surrounding for her grandchild.

In conclusion, based upon appellee’s manslaughter conviction and present incarceration, the uncertainties surrounding his future home environment, the absence of verified pleadings addressed to his paternity and the underwhelming recommendation of the Domestic Relations Staff, it is our opinion that the chancellor abused his discretion in granting appellee custody of the child. In contrast, the record, and in particular, the recommendation of the Division of Family Services, supports the view that appellant will provide a healthy and warm environment for the child. As such, we believe the child’s best interests coincide with appellant’s desire to have custody of the minor. Little v. Franklin, 40 So.2d 768 (Fla.1949); Silvestri v. Silvestri, 309 So.2d 29 (Fla. 3d DCA 1975); Heffernan v. Goldman, 256 So.2d 522 (Fla. 4th DCA 1971).

Accordingly, the order appealed from is hereby reversed and remanded with directions to enter an order awarding appellant custody of her minor grandchild.

Reversed and remanded with directions.


text:
    Sanford R. BURNS et al., Appellants, v. EQUILEASE CORPORATION, etc., Appellee.
    No. 77-1680.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Greene & Cooper, Miami, for appellants.
    Friedman & Britton and Arnold D. Schatzman and J. T. Haley, Miami, for ap-pellee.
    Before HUBBART & KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellants, defendants below, bring this interlocutory appeal from an order dated June 28, 1977, entered by the trial court .granting appellee’s, plaintiff below, motion for partial summary judgment on liability.

Appellants’ basic contention on appeal is that the trial court erred in entering the order appealed because, if the trial court had not improperly stricken certain portions of their answer, there would have existed justiciable issues of material facts which would have precluded the granting of the partial summary judgment on liability.

Appellee’s complaint sought a judgment against appellants for the deficiency which resulted when certain collateral was sold. Appellants’ answer asserted that a deficiency judgment could not be rendered against them because appellee failed to provide adequate notice of the time and place of the sale. Appellee moved to strike this, defense on the ground that it did not constitute a valid defense to the complaint. The trial court granted appellee’s motion to strike; thereafter, it granted partial summary judgment on liability in favor of appellee.

The gist of appellants’ stricken defense is that the “lease” between the parties was intended to create a “security interest” and that it was governed by Article 9 of the Uniform Commercial Code [hereinafter cited as Code], Sections 679.101, et seq., Florida Statutes (1975). Appellants argue that, pursuant to these Sections of the Code, they were entitled to notice of the sale of the collateral, or else appellee was precluded from obtaining a deficiency judgment against them. As authority for this proposition, appellants cite Washington v. First National Bank of Miami, 332 So.2d 644 (Fla. 3d DCA 1976); Turk v. St. Petersburg Bank and Trust Company, 281 So.2d 534 (Fla. 2d DCA 1973); and Sections 679.501(3)(b) and 679.504(3), Florida Statutes (1975).

We agree with the proposition set forth by appellants. If the “lease” between the parties created a “security interest” between them, appellants were entitled to assert the defense of no notice as a bar to appellee’s recovery of a deficiency judgment against them. Whether or n.ot the “lease” did create such a “security interest” under the Code is a question which could not be properly disposed of by a motion to strike. A motion to strike a defense tests only the legal sufficiency of the defense. It is reversible error for a trial court to strike a defense where evidence may be presented to support it. See, e. g., Citizens and Southern Realty Investors v. Lastition, 332 So.2d 357 (Fla. 4th DCA 1976); Stewart v. Gore, 314 So.2d 10 (Fla. 2d DCA 1975); Pentecostal Holiness Church v. Mauney, 270 So.2d 762 (Fla. 4th DCA 1972); and Windle v. Sebold, 241 So.2d 165 (Fla. 4th DCA 1970). In our opinion, the trial court improperly struck appellants’ defense in regard to the failure of appellee to give appellants notice of the sale of the collateral. If this defense had not been improperly stricken, it would have raised justiciable issues of material facts which would have precluded the granting of the partial summary judgment on liability. Fla.R.Civ.P. 1.510. Accordingly, the order appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    The STATE of Florida, Appellant, v. Donald Jack FIRST, Appellee.
    No. 77-1790.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Janet Reno, State’s Atty. and Dennis L. Curran, Asst. State’s Atty., for appellant.
    Pollack, Spain & O’Donnell, John H. Li-pinski, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is a criminal prosecution for possession, sale and conspiracy to sell marijuana before the Circuit Court for the Eleventh Judicial Circuit of Florida. The trial court dismissed the charges against the defendant Donald First upon his motion under.Fla.R. Crim.P. 3.190(c)(4). The state appeals and contends that the motion was improperly granted. Wé agree and reverse. State v. Davis, 243 So.2d 587 (Fla.1971). See: State v. Medlin, 273 So.2d 394 (Fla.1973); State v. Eckroth, 238 So.2d 75 (Fla.1970); Betancourt v. State, 228 So.2d 124 (Fla. 3d DCA 1969); Chariott v. State, 226 So.2d 359 (Fla. 3d DCA 1969); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).

Reversed and remanded to the trial court for further proceedings.


text:
    Arthur SCHOPPAUL, Appellant, v. Grace SCHOPPAUL, Appellee.
    No. 77-2286.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Joseph H. Young and Sidney B. Shapiro, Coral Gables, for appellant.
    Kuvin, Klingensmith & Lewis, Edgar E. Cox, Jr., Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Daughterty v. Daughterty, 308 So.2d 24 (Fla.1975); Adams v. Adams, 340 So.2d 1290 (Fla. 3d DCA 1977).


text:
    Ervin W. HILDERBRAN, Appellant, v. Shirley Faye HILDERBRAN, Appellee.
    No. GG-390.
    District Court of Appeal of Florida, First District.
    April 28, 1978.

      Donald D. Carter, Jr., of Carter & Dun-ham, Gainesville, for appellant.
    Shon A. Saxon, Gainesville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the final judgment of dissolution of marriage, entered in the Circuit Court, Alachua County. The judgment dissolves the marriage “a vinculo matrimonii,” and then provides:

“Neither Ervin H. Hilderbran nor Shirley Faye Hilderbran shall remarry for a period of four (4) years subsequent to the date of this judgment.”

At the outset, we note that the judgment is inconsistent in itself. The dissolution, granted “a vinculo matrimonii” from the bonds of matrimony, or absolutely, is subsequently limited by prohibiting remarriage. A limited divorce, “a mensa et thoro,” from bed and board, is still recognized in some states, but not in Florida. Florida Statute § 61.031 provides:

“No divorce is from bed and board, but is from bonds of matrimony.”

The court is without authority under Florida law to limit the right of the parties to remarry, Mirras v. Mirras, 202 So.2d 887 (Fla.2d DCA 1966); 10A Florida Jurisprudence, Dissolution of Marriage, §§ 2 and 239, and cases cited therein, and that portion of the final judgment below is a nullity-

The husband also appeals that portion of the final judgment which requires he pay $51.40 per week in child support for the eight minor children born of the marriage. The parties previously signed a settlement agreement that he pay $40.00 per week for child support and he is willing to pay that amount. He contests the additional $11.40 weekly, his one-half share of the mortgage payment on the marital home, that the judgment requires he pay.

The husband, a 36-year-old grocery clerk, makes an average of $117.50 per week. The wife, also 36 years old, works as a meat wrapper at an average weekly wage of $94.00. She also receives food stamps of the approximate value of $57.00 per week. The judgment gives the wife the custody of the children and the right to occupy the marital home during the children’s minority. Each spouse is required to pay one-half of the mortgage payments. The court was properly concerned that, given the limited resources of the parties, an adequate shelter be assured for the minor children. There was no abuse of discretion shown.

Accordingly, the judgment below, as modified to delete the prohibition against remarriage, is AFFIRMED.

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


text:
    AIR CANADA, Appellant, v. Sara B. SMITH and Ivan H. Smith, her husband, Appellee.
    No. GG-461.
    District Court of Appeal of Florida, First District.
    April 28, 1978.

      Raymond Ehrlich and Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Go-belman & Cobb, Jacksonville, for appellant.
    Howard C. Coker of Cowles, Coker & Myers, Jacksonville, for appellee.
   MILLS, Acting Chief Judge.

Air Canada appeals from a judgment entered in favor of the Smiths in a suit brought by them for bodily injuries received by Sara Smith when she fell at the Montreal Airport in Canada.

The Smiths left Jacksonville, Florida, for a trip to Quebec, Canada. In compliance with Air Canada routing, they traveled on Eastern Airlines from Jacksonville to Kennedy Airport in New York. There they' transferred to an Air Canada flight bound for Montreal, where they were to board another Air Canada flight to Quebec. When the Air Canada flight got to Montreal, the Smiths deplaned and were instructed by Air Canada’s flight attendants to present themselves, as required by Canadian law, to the immigration authorities. After clearing immigration, they proceeded to a baggage carrousel in the immigration and customs area of the airport to pick up their bags, intending to go through customs as required by Canadian law. On the floor of the customs area, they found a baggage cart upon which they placed one or more bags. While Mrs. Smith was standing near the cart waiting for Mr. Smith to bring the other bags from the carrousel, she turned and tripped over what she described as an extension or appendage on the baggage cart. The area where Mrs. Smith fell was clean and well lighted. There was no impediment to her vision. The area was under the exclusive control of the Ministry of Transport, a branch of the Canadian government, and the Ministry was charged with the maintenance of the area. The carts were owned by the Ministry of Transport and were made available by it to persons in the immigration and customs area. Repairs on the carts, when necessary, were made by the Ministry of Transport. Although some Air Canada personnel might be admitted to the area, they were admitted only if they were identified and if they had some special reason to be there.

The Smiths contended that the baggage cart with its extension or appendage which was eight inches above the floor constituted a dangerous condition and unexpected hazard which was permitted to exist without warning to them. Further, the Smiths contended that Air Canada breached its contract for safe passage by failing to provide a safe place for boarding and alighting passengers on through flights.

At the close of the Smiths’ case, Air Canada moved for a directed verdict and renewed its motion at the end of the trial. Both motions were predicated upon Air Canada’s contention that no evidence was presented to show negligence on its part and that under the circumstances it owed no duty to the Smiths which was breached. Air Canada’s defense was based on the undisputed fact that the area of injury was under the control of the Government of Canada and that Canada owned and maintained the carts. We agree and reverse.

Under the facts of this case, Air Canada is not liable for the injuries received by Mrs. Smith. The airport terminal was owned by the sovereign government of Canada. The area where Mrs. Smith fell was under the exclusive control of the Ministry of Transport, a branch of the Canadian government, which was charged with the maintenance of the area. The baggage carts were owned and maintained by the Ministry of Transport. The Ministry of Transport made the carts available only to persons in the immigration and customs area, and although Mrs. Smith was required to pass through this area after leaving the airplane, this requirement was placed upon her by the sovereign government of Canada, not by Air Canada. Air Canada had neither control over the area where the injury occurred nor the cart which caused the injury.

Air Canada was under no duty to go looking for possible perils on premises exclusively possessed, maintained and controlled by the sovereign government of Canada. It was under no duty to warn Mrs. Smith of conditions which were obvious to her. A passenger in transit must show some fault on the part of a common carrier. The mere occurrence of an injury while in transit is not enough.

The facts of this case show no more than Mrs. Smith stumbled or tripped over a baggage cart with an observable extension located eight inches from floor level in a well lighted, well kept area, for no explainable reason.

The trial court erred when it denied Air Canada’s motions for directed verdicts and we must reverse the judgment appealed.

ERVIN and BOOTH, JJ., concur.


text:
    Ronald W. DOWGUL, Appellant, v. Harold Kelly ADAIR, Appellee.
    No. HH-213.
    District Court of Appeal of Florida, First District.
    April 28, 1978.
    Carroll L. McCauley, Panama City, for appellant.
    Clinton E. Foster, Panama City, for ap-pellee.
   PER CURIAM.

This appeal is from a trial court’s order dismissing appellant’s petition for adoption at the conclusion of appellant’s case. We have reviewed the record and concluded that the appellant did present a prima facie case of abandonment by the natural father. It was error to dismiss the petition; therefore the cause is remanded for further proceedings.

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


text:
    Leo JONES, Appellant, v. STATE of Florida, Appellee.
    No. HH-325.
    District Court of Appeal of Florida, First District.
    April 28, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant entered a plea of guilty to the offense of grand larceny. The circuit court minute book reflects the judgment and sentence of the court that appellant be committed to the custody of the Director of the Department of Offender Rehabilitation of the State of Florida for a period of three years. The minute book further reflects that the appellant was to be given 85 days credit for jail time served in the county jail of Bay County, Florida.

The “Uniform Commitment to Custody of Division of Corrections” reflects that the sentence imposed for the aforementioned offense was three years, without reference to any credit for jail time. The Uniform Commitment to Custody of Division of Corrections is erroneous in that it purports to deprive appellant of the 85 days jail time required under F.S. 921.161. This case is analogous to Duncan v. State, 354 So.2d 451 (Fla. 1st DCA 1978).

Therefore, the judgment and sentence, as reflected in the circuit court minute book are affirmed, and the cause is remanded to the trial court to correct the erroneous sentence which is reflected in the Uniform Commitment to Custody of Division of Corrections. Appellant need not be present for that purpose.

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


author: SMITH, Judge.

text:
    Lucille Harrell Rupert MERRILL, Appellant, v. Lloyd R. MERRILL, Appellee.
    No. HH-332.
    District Court of Appeal of Florida, First District.
    April 28, 1978.

      Ronald A. Nour, Daytona Beach, for appellant.
    Arthur H. Gehris, III, of Elliott, Tindell & Gehris, Daytona Beach, for appellee.
   SMITH, Judge.

The wife appeals from a marriage dissolution judgment which found that the husband has a special equity in certain real and personal property which was wholly acquired and paid for by the husband long before the seven-month marriage, and which during the marriage he transferred into the joint names of his wife and himself. The wife testified that the transfers during coverture were intended by the husband as a gift to the wife; but he testified, apparently with telling effect o,n the chancellor, that no gift was intended and that the transfers were made solely for survivorship purposes during coverture. We cannot read Ball v. Ball, 335 So.2d 5, 7 (Fla.1976), as holding that a word or two of testimony by the recipient spouse, to the effect that the other intended a gift, obliterates the special equity resulting from an unrebutted showing that the grantor spouse acquired the property from sources entirely independent of the marriage. Such a reading of Ball would manipulate its doctrines mechanically if not magically. The question of dona-tive intent is one of a preponderance of the credible evidence; and that question is for the chancellor, not for us.

We recognize the seeming inequity of restoring the husband’s separate property to him and not somehow recompensing the wife for her loss, upon entering the marriage, of a substantial pension which was paid to her as widow of her former husband. Yet that appealing factor cannot be given effect to destroy the husband’s special equity in previously acquired property. Even though the wife’s sacrifice of her pension was a contribution to the marriage, it was not a contribution of material resources to the marriage, nor was it a contribution toward the husband’s acquisition of the subject property. See Ball, 335 So.2d at 7, n. 7.

We recognize also that the Supreme Court in Ball limited its decision to questions of real property, 335 So.2d at 8, n. 11, and that we áre here concerned with common stock as well as with land. We find no basis for treating personal property differently.

No other error appears. The judgment is

AFFIRMED.

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


author: ERVIN, Judge.

text:
    KUSTER ENTERPRISES, INC., Petitioner, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Respondent.
    No. II-137.
    District Court of Appeal of Florida, First District.
    April 28, 1978.
    Carlos Alvarez of Mahoney, Hadlow & Adams, Jacksonville, for petitioner.
    John J. Rimes, III, Tallahassee, for respondent.
   ERVIN, Judge.

Kuster Enterprises is a manufacturer of prefabricated swimming pools and contends DOT has abridged its right to equal protection by denying its petition for proposed rule-making allowing the transport of .its 14-feet wide prefabricated swimming pools. We earlier remanded for the finding of additional facts, Kuster Enterprises, Inc. v. State of Florida, Department of Transportation, 347 So.2d 1092 (Fla. 1st DCA 1977), and the parties have now entered into a stipulation of facts.

DOT has permitted the transportation of 14-feet wide boats since 1967. Mobile homes of the same width have been permitted by DOT since December, 1976, on a trial basis to determine if this movement can be conducted safely in Florida. The parties have agreed there are no significant distinctions as regards safety in the transportation over state roads of 14-feet wide boats and 14-feet wide prefabricated pools. A large majority of states allow for the transportation of both structures. There have been relatively few studies on the effects of 14-feet wide% vehicles on highway safety and traffic patterns and these have generally been inconclusive. The only comprehensive Florida study, made in 1972, recommended against the use of oversize modules on Florida highways.

DOT, in its final order denying the rule-making request, pointed to Section 316.009 (now Section 316.550, Florida Statutes (1977)) as granting discretion to issue special permits for oversized vehicles on Florida roads. Kuster was found not to have shown its proposed rule is in the best interest of the public at large, since the safety of 14-feet wide vehicles has not yet been established.

In treating prefabricated pools differently from boats or mobile homes of the same width, the Department must show its classification is “based upon some difference in the classes having a substantial relation to the purpose for which the legislation was designed.” Hunter v. Flowers, 43 So.3d 435, 437 (Fla.1949); State v. Frick, 150 Fla. 148, 7 So.2d 152 (1942). But here the Department, by its own stipulation, has found no distinction based on highway safety and preservation. From this record we fail to see how it can be rationally argued there is no impediment to the public interest in permitting the transportation of over sized boats but it is not in the public interest to permit the conveyance of extra wide prefabricated pools.

Unknown safety risks cannot be relied upon by the Department since boats have been carried on Florida roads for the last 10 years. Should the safety study currently performed on extra wide mobile homes mandate discontinued permitting for all structures within the class, then a valid basis would exist for the Department’s denial.

The petition for review is GRANTED, the final agency order is QUASHED, and this proceeding REMANDED for further action not inconsistent herewith. Section 120.68(12)(c).

IT IS SO ORDERED.

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


text:
    TRANSPORT INDEMNITY COMPANY, Appellant, v. The TRAVELERS INDEMNITY COMPANY, Appellee.
    No. EE-247.
    District Court of Appeal of Florida, First District.
    April 28, 1978.

      Robert D. Bell of Fisher, Bell & White, Pensacola, for appellant.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellee.
   McCORD, Chief Judge.

This appeal is from a final judgment ruling that an insurance policy of Transport Indemnity Company, appellant, provided primary coverage for damages resulting from an automobile accident and that a policy of Travelers Indemnity Company, ap-pellee, provided excess coverage. Appellant contends the trial court erred in ruling that the policy issued by it affords primary coverage. Appellee by cross-appeal contends that the trial court erred in ruling that the policy issued by it affords any coverage for the accident. We agree with appellee’s contention.

The trial below involved consolidated causes of actions for wrongful death and personal injury arising out of a collision between a tractor (without semi-trailer attached) and an automobile. Defendants in the action were the owner-lessor of the tractor (Paul Elders and/or Chaffee Leasing Corporation), the lessee (Jerry Lipps, Inc.), and the driver (Jerrie Douglas Brown). For purposes of this appeal, counsel for the parties agreed that Paul Elders and Chaffee Leasing Corporation be considered as a single entity. Such lessor will hereafter be referred to as Elders. Lessee Jerry Lipps, Inc., will be referred to as Lipps.

The accident from which this litigation emanated occurred in Escambia County, Florida, between a vehicle in which plaintiffs below were riding and the above mentioned tractor. Appellee Travelers had issued a policy to Elders and appellee Transport had issued a policy to Lipps.

The Elders policy of Travelers contains an endorsement which Transport contends is ambiguous but which we find has a clear meaning in relation to the question of Travelers’ liability for this accident. The pertinent wording of the endorsement is the following:

“It is agreed that such insurance as is afforded by the policy . . . applies only while the automobile is used for personal, pleasure, family and other non-business purposes or while used exclusively in hauling for a charge . . . any property for the concern designated below, subject to the following provisions: * * * >>

The concern “designated below” is Semo Box Company, and we do not find that the provisions subsequently listed have any applicability here. The semi-tractor at the time of the accident was not being used for personal, pleasure, family or other non-business purposes and was not being used in hauling for Semo Box Company. Thus, ap-pellee Travelers was neither primarily nor secondarily liable for damages resulting from this accident.

The Transport policy contains a provision that:

“With respect to a hired automobile or a nonowned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.”

However, in this case no other valid and collectible insurance is available to the insured.

The ruling of the final judgment that the policy issued by Transport Indemnity Company provides primary coverage is affirmed, but the ruling that the policy issued by The Travelers Indemnity Company provides secondary liability is reversed and the cause is remanded to the trial court with directions to modify the final judgment to provide that The Travelers Indemnity Company has no applicable coverage.

BOYER and MELVIN, JJ., concur.


text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. Marisol PEREDA, Appellee.
    No. 77-923.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Goodhart & Rosner, Greene & Cooper, Miami, for appellant.
    Duran, Cantera, Kalish, Schere & Press, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellees having filed a confession of error and no objection having been made to appear, we have concluded that the judgment appealed should be reversed without expressing an opinion as to the errors assigned and the cause remanded to the trial court for such proceedings as are consistent with the law and rules of practice governing such causes.

It is so ordered.