text:
    Russell R. LIPPOLD v. STATE.
    7 Div. 598, 7 Div. 598A.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied Dec. 19, 1978.
    David A. Rains and William D. Scruggs, Jr., of Scruggs, Rains & Wilson, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Russell R. Lippold and Patricia Ann Ker-ley Gregg were charged by indictment with the first degree murder of Lester Gordon Mullins by shooting him with a gun. Because the appellant was fourteen years of age at the time of the incident in question, the Circuit Court heard a motion to transfer the cause to the Juvenile Court, and after a determination in that court of incorrigibility the cause was then transferred to the Circuit Court for trial as an adult. The jury found the appellant guilty of murder in the first degree and fixed punishment at life imprisonment in the penitentiary. The trial court then set sentence in accordance with this verdict.

The indictment and ensuing trial arose from an incident which occurred during the early morning hours of May 24, 1977, at an Amoco station, just off Interstate 59, near Collinsville, Alabama, in DeKalb County. There Lester Gordon Mullins, the attendant at the service station, was found dead at about 2:30 or 3:00 a. m. The cash register drawer was open and the proceeds were missing.

The appellant, Russell R. Lippold, age fourteen, and his companion, Patricia Ann Kerley Gregg, age twenty-six, were arrested by Ohio State Trooper Robert K. Sikes shortly after 11:00 on the evening of May 24, 1977, at a rest stop on Interstate 75, near Dayton, Ohio. There Gregg and Lip-pold were found in a brown and beige 1977 pickup truck with a Kentucky license tag, No. FEO-261. Following the arrest of the occupants and the seizure of the items contained in the truck by Trooper Sikes, Lip-pold and Gregg were returned to Alabama for trial. Thereafter, several issues arose during trial which will be set out and discussed in this opinion.

I

THE INVENTORY SEARCH

At trial, Trooper Robert K. Sikes testified that, shortly after 11:00 p. m. on May 24, 1977, he observed a brown and beige Chevrolet pickup truck parked in a rest stop area. He stated that the truck bore a Kentucky license plate, No. FEO-261. Trooper Sikes noted that the rest stop area is designed so that normally a vehicle is pulled in and parked with the rear of the vehicle facing outward. He testified that, on the evening in question, the truck above-described was “backed in” and parked at a point near a drinking fountain where the troopers are required to sign a sheet and register. Trooper Sikes related that it is a requirement of the Ohio State Troopers’ regulations for a routine check to be made of all out-of-state vehicles to determine if any among those reported are stolen or if they contain missing persons.

Upon receipt of information from Headquarters that the truck in question had been reported as stolen in Kentucky, Trooper Sikes radioed for assistance of other officers. Upon arrival of the additional officers, they approached the vehicle and observed the appellant, Russell Lippold, seated on the passenger’s side and his companion, Patricia Gregg, seated under the steering wheel. Trooper Sikes related that he was on the right side of the vehicle and a fellow trooper on the left when they awoke the occupants and directed them to raise their hands and slowly alight from the truck. Gregg and Lippold followed instructions, were handcuffed, and their persons searched. Trooper Sikes stated that he immediately gave a Miranda warning before handcuffing the two individuals. Trooper Sikes then called for a wrecker to tow the truck, and while awaiting arrival of the wrecker, pursuant to Ohio State Troopers’ regulations, he conducted an inventory search of the vehicle as to its contents. Sikes related that both the occupants had been removed from the truck and upon investigation he observed a twelve gauge shotgun lying on the floorboard of the truck with a part of same extending from underneath the front seat. Sikes related that he removed a pocketknife from the appellant’s pocket, then continued to search the truck. The items contained therein were inventoried. Sikes related that he found one shell inside the shotgun and seventeen additional shells in the glove compartment. He stated that these shells were twelve gauge, No. 4, shot. Sikes described the shotgun as having a sawed-off barrel, with part of the handle also sawed-off. He stated that a type of padding was “taped to the handle where the butt was.” Sikes further related that a machete, a knife, some bed clothing, and a type of feed were also found in the truck. Sikes indicated that he kept the sawed-off shotgun and shells in his possession until they were delivered to Alabama Investigator Bethune, who came to the Miami County, Ohio, Sheriff’s Office in Troy on May 26, 1977. Trooper Sikes indicated that all of the items were retained in his possession and under his control until they were delivered to Investigator Bethune.

Investigator Gerald Bethune from the DeKalb County Sheriff’s Office testified that he received the shotgun and other stated items from Ohio State Trooper Sikes on May 26, 1977, in Troy, Ohio, and subsequently delivered the shotgun to Brent Wheeler of the Alabama Toxicology Department in Huntsville, Alabama, as well as the seventeen shells found in the glove compartment of the truck and the one shell found in the chamber of the shotgun. Investigator Bethune also identified the photographs made of the 1977 brown and beige Chevrolet pickup truck, bearing a Kentucky license plate, No. FEO-261, which he had taken off the vehicle. He stated that he had visited with the owner of the truck in Cynthiana, Kentucky, on June 7, 1977, and made photographs of the truck. Bethune indicated that the shotgun shells bore the trade name, “Mohawk,” which is manufactured by Remington.

State Toxicologist Brent Wheeler testified that, on May 31, 1977, he received a “Mariton 12-gauge single barrel shotgun with a I6V4 inch barrel, bearing the serial number 24135” from State Investigator Bethune. He also received some “12-gauge Remington Mohawk # 4 shot, all of which were unfired,” together with two five dollar bills, and a red, white and blue, short sleeved uniform shirt. Mr. Wheeler indicated that he performed certain test for fingerprints, and test-fired the shotgun. He stated that other than that all the items were in the same condition as when he received them from Investigator Bethune. In comparing the wadding removed from the body of the victim with the wadding used in the shells delivered to him by Bethune, Wheeler determined they were made by the same manufacturer and were of the same size as that in the “12-gauge # 4 shot” shells delivered to him by Bethune.

At trial, counsel challenged the admission of the above-listed items as being based upon an illegal search and seizure without probable cause or without a warrant.

The State countered this argument by pointing out that Ohio State Trooper Sikes was following department regulations when making an inventory search of the vehicle after it had been determined to be a stolen vehicle from Kentucky. The initial charge against the two occupants, Lippold and Gregg was car theft.

Moreover, the State pointed out at trial and on appeal that the appellant, Lippold, and his companion, Patricia Gregg, had no standing to challenge the seizures by Trooper Sikes.

The United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), in discussing inventory searches, stated:

“This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are ‘effects’ and thus within the reach of the Fourth Amendment, Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 417 U.S. 583, 589, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, 413 U.S., at 439—440, 93 S.Ct. at 2527; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970). “The reason for this well-settled distinction is twofold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564 (1971). But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, 399 U.S., at 51-52, 90 S.Ct. at 1981; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Cady v. Dombrowski, supra, 413 U.S. at 442, 93 S.Ct. at 2528. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.
“The expectation of privacy as to autos is further diminished by the obviously public nature of automobile travel. Only two Terms ago, the Court noted:
“ ‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view,’ Cardwell v. Lewis, 417 U.S., at 590, 94 S.Ct. at 2469.
“In the interests of public safety and as part of what the Court has called ‘community caretaking functions,’ Cady v. Dombrowski, supra, 413 U.S. at 441, 93 S.Ct. at 2528, automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge. “When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, 386 U.S., at 61-62, 87 S.Ct. at 790. The practice had been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.”

The Court points out in South Dakota v. Opperman, supra, that the caretaking procedures, above discussed, have always uniformly been upheld by state courts, which, because of traffic regulations and similar matters, have determined that such intrusions are reasonable and therefore constitutionally permissible. The authorities are listed in South Dakota v. Opperman, supra.

This Court is clear to the conclusion that the items seized by Trooper Sikes were in accordance with Ohio Troopers’ regulations and were in all respects reasonable under the facts of the case at bar. The seizure of the sawed-off shotgun and the twelve-gauge shells, which were subsequently admitted in evidence at trial, was in all respects proper.

Moreover, Lippold and his companion, Patricia Gregg, being the occupants of a stolen pickup truck, lacked the necessary standing to object to the seizure of the sawed-off shotgun and shells found therein by Trooper Sikes. Hodges v. State, 48 Ala. App. 217, 263 So.2d 518 (1972); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974).

II

STATEMENTS TO INMATES

The appellant’s counsel also challenges the admission into evidence at trial of certain statements of an inculpatory nature made by Russell Lippold to several persons while he was detained at the Juvenile Center in Anniston, Alabama, awaiting trial. In particular, appellant’s counsel challenges Lippold’s statement to Mark Wheeler, age 16; Beth Sizemore, age 13; and Rodney Works, age 15, which statements were made to the three individuals during the Fall of 1977 by Lippold while all of them were in the detention home in Anniston, Alabama. Counsel argues that the appellant had been sent there while his condition was being evaluated pursuant to Court Order, and that he was without the advice or presence of counsel when the challenged statements were made.

There is no suggestion in this record that such young people were placed surreptitiously in or about the whereabouts of Lip-pold for the purpose of obtaining inculpato-ry statements. The record in this cause is to the contrary. The three young people, each, indicated that they first met Lippold while they were at the Juvenile Center in Anniston during the Fall of 1977.

Mark Wheeler stated that he simply engaged Russell Lippold in conversation and inquired why he was being held there, to which Lippold replied, “Robbery and murder.” He stated that Lippold then told of “robbing a gas station at a place called Collinsville, where he said he shot this man with a twelve-gauge shotgun and it was sawed-off and was somewhere between eight and twelve inches long, he used # 4 shot, and was approximately three feet away.” He stated that Lippold told him that “he went in there with this lady, and they were in a pickup truck, that he asked the man for the money and he gave him approximately $130.00, that the man said, ‘Dont shoot,’ but he shot the man in the right side with a shotgun.”

Beth Sizemore stated that the first time she spoke with Lippold, he stated that he did not want to talk with her, but on a second occasion he told her he was charged with murder, that “he killed a man with a sawed-off shotgun, and that his girl friend had been with him.”

Rodney Works stated that, during a conversation with Russell Lippold, after Lip-pold had been in Anniston for some two or three weeks, he stated that “he had just robbed a service station and killed a guy near Collinsville, that a girl was with him, and that he, Lippold, went into the service station and used a sawed-off shotgun.”

We have carefully examined the three inculpatory statements attributed to Lippold, above described. While it is true they were made to fellow inmates at a Juvenile Center, none of these could be described as custodial interrogations, see Truex v. State, 282 Ala. 191, 210 So.2d 424, nor is there any suggestion that such inmates were endeavoring to inquire as to the details of the murder in question. Rather, the voluntariness of such statements was fully established at trial and were therefore not proscribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 9470.

Also, such were properly admitted as “volunteered statements” of an inculpatory nature. They are similar to excited utterances made spontaneously at or near the scene of a given occurrence. See Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408, and authorities cited therein.

Ill

STATEMENT TO PSYCHOLOGIST

At a hearing conducted prior to trial, at which the State of Alabama sought to transfer the proceeding from Juvenile Court back to the Circuit Court for trial, the State presented the testimony of Dr. Steven Bitgood, a doctor of philosophy, who was on the staff of the Coosa Valley Regional Juvenile Center, and who, pursuant to Court Order, interviewed the appellant, Russell Lippold, at the Center during October, 1977. Dr. Bitgood testified that his interviews with the appellant were for the purpose of evaluating Lippold’s condition pursuant to the Court Order. The trial court had directed that Lippold be sent to this Center in Anniston, Alabama, for the purpose of psychiatric testing and observation. In the words of appellant’s counsel, the appellant was “700 to 800 miles away from family or friends, and 80 miles and two counties away from his attorney.”

Dr. Bitgood did inform Lippold that his statements could be used, and would be used, in a report made back to the Circuit Court, but the doctor admitted that he did not know whether Lippold fully understood the implications of his “Miranda” type warning. Without question, no counsel or relative was present during the discussion with Dr. Bitgood by Russell Lippold of the events, which included his activities in his home state of Michigan before he and Patricia Gregg left there and their thefts there and in other states before robbing the service station attendant near Collinsville, and the words of Patricia Gregg to Lippold, “Don’t leave any witnesses,” then Lippold’s subsequent feeling of hostility toward her because of this.

Dr. Bitgood related that he diagnosed Lippold as “an antisocial personality,” who had experienced difficulty with his family and other people, lacked a moral code, and had a history of irresponsible and selfish behavior. Further, Dr. Bitgood stated that Lippold did not appear to have anxiety or remorse over some of the things he had done in the past, and apparently had not benefited in efforts to rehabilitate him in Michigan (Volume II, R. 252, Report of Pretrial Evaluation).

Based upon Dr. Bitgood’s findings, the trial court granted the State’s Order to transfer the cause back to the Circuit Court for trial. This Order is dated December 28, 1977, and directs that Lippold be tried as an adult in the Circuit Court of DeKalb County-

At this same hearing, the Circuit Court also heard the testimony of Investigator Bethune, who told of statements made by Lippold while in the jail, “that he wanted to get an officer.”

Counsel for the appellant challenges the use at the evaluation hearing of the statements to Dr. Bitgood because such evaluation, while done under court order, was made in the absence of counsel.

Appellant’s counsel cites us to the provisions of § 12-15-67, Code of Alabama 1975, which reads as follows:

“Use of statements of children, etc., during custody, preliminary inquiries, predisposition studies, etc., prior to determination of allegations of petition in delinquency or in need of supervision cases or prior to conviction in criminal proceedings.
“Unless advised by counsel, the statements of a child or other information or evidence derived directly or indirectly from such statements made while in custody to police or law enforcement officers or made to the prosecutor or probation officer during the process of the case, including statements made during a preliminary inquiry, predisposition study, informal adjustment or consent decree, shall not be used prior to a determination of the petition’s allegations in a delinquency or in need of supervision case or in a criminal proceeding prior to conviction. (Acts 1975, No. 1205, § 5-125.)”

The inculpatory statement related to Dr. Bitgood by Lippold, following a discussion, and the doctor’s informal type advice that such statement could be used against him, involved the statement by Lippold that they had “stolen a shotgun and a vehicle, robbed a couple of places, and on the day of the murder, pulled into a service station, pulled the shotgun on the attendant, robbed him, and that Patricia Gregg had stated to him, ‘Don’t leave any witnesses,’ at which point Lippold pulled the trigger and shot the victim (Lester Gordon Mullins) in the side” (Volume II, R. 250).

Without question the appellant did not have counsel present at the time the statements were made to Dr. Bitgood.

Had the State of Alabama endeavored to use the statement made to Dr. Bitgood as substantive evidence on trial of this cause before the jury, we would not hesitate to reverse and remand this cause for a new trial, pursuant to the provisions of § 12-15-67, Code of Alabama 1975, above quoted. See also Watts v. State, Ala.Cr.App., 361 So.2d 1200 (1978).

The record in this cause is clear, however, that the State did not use Lippold’s inculpa-tory statements to Dr. Bitgood as evidence on trial.

Rather, these matters were brought out at the evaluation hearing as to whether or not the appellant’s cause should be transferred to the Circuit Court of DeKalb County for trial.

We are of the opinion that this matter was properly handled by the Circuit Court, and that the requirements of Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), and authorities therein cited were here carefully observed.

IV

CLOSING ARGUMENT

Finally, appellant’s counsel contends that the district attorney’s remark during closing argument to the effect, “If you do not convict this defendant, he will be responsible for more murders or crimes,” is grounds for reversal.

Immediately following this comment by the district attorney, the record reflects the following admonition and instructions by the trial judge (Volume I, R. 158-159):

“THE COURT: I’m going to deny the motion for a mistrial. Ladies and gentlemen of the jury, I am going to instruct you to disregard the comment of the District Attorney in that regard. The comments of the District Attorney and the defense counsel, once he argues to you, are not evidence in the case. They are not to be considered by you as evidence. They can argue the evidence and they can argue reasonable inferences to be drawn from the evidence, but I’m going to instruct you to disregard the comment of the District Attorney in regard to any future activity on the part of this defendant. Put that matter outside of your mind and do not consider it as a part of your deliberation in this case. You may proceed.
“MR. MAUNEY: Your Honor, would you ask the jurors if they can disregard that?
“THE COURT: Is there any juror who feels that he or she would have trouble or find it impossible to comply with the Court’s instructions in this regard?
“(No response.)
“You may proceed.
“(Whereupon, Mr. Mauney continued his argument to the jury, followed by Mr. Scruggs on behalf of the defendant, and followed by Mr. Igou on behalf of the state.)”

In reviewing the colloquy above quoted, it is clear that the trial judge immediately instructed the jury that such statement was argument and not to be regarded as evidence on trial. The trial judge then inquired of the jury if there was anyone who could not obey his instructions, to which there was no reply.

In light of the trial judge’s prompt and emphatic instructions to the jury, we are clear to the conclusion that no error resulted in overruling the motion for mistrial. Shadle v. State, 280 Ala. 379, 194 So.2d 538; Adair v. State, 51 Ala.App. 651, 288 So.2d 187; Retowsky v. State, Ala.Cr.App., 333 So.2d 193; Earley v. State, Ala.Cr.App., 358 So.2d 494, cert. denied, 358 So.2d 501 (1978), and authorities therein cited.

We have carefully examined this record, as required by law, and find no error therein. The judgment is therefore

AFFIRMED.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex Parte Russell R. LIPPOLD.
    78-192.
    Supreme Court of Alabama.
    Jan. 19, 1979.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: SUNDBERG, Justice.

text:
    Jules BRIKLOD, Appellant, v. STATE of Florida, Appellee.
    No. 52499.
    Supreme Court of Florida.
    Nov. 9, 1978.
    Rehearing Denied Jan. 24, 1979.
    Joel Hirschhorn of Hirschhorn & Freeman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and James D. Whisenand, Deputy Atty. Gen., Tallahassee and Margarita Esquiroz, Asst. Atty. Gen., Miami, for appellee.
    Talbot D’Alemberte and Donald M. Mid-dlebrooks of Steel, Hector & Davis, Miami, for Post-Newsweek Stations, Florida, Inc., amicus curiae.
   SUNDBERG, Justice.

By way of direct appeal, appellant seeks to review in this Court an order of the trial court denying his Renewed Motion for Judgment of Acquittal. Because that order inherently passed on the validity of Section 811.021(l)(a), Florida Statutes (1973), jurisdiction vests in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution. Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959).

Appellant was charged by information with four counts of grand larceny in violation of Section 811.021, Florida Statutes (1973), and one count of conspiracy to commit grand larceny in violation of Section 833.04, Florida Statutes (1973), the latter count being abandoned by the State before the case went to trial.

Because television cameras were to be present at the trial pursuant to this Court’s decisions in In re Petition of Post-Newsweek Stations, Florida, Inc. for Change in Code of Judicial Conduct, appellant sought by pretrial motion to have them barred. Additionally, he moved to have the jury and the witnesses sequestered. These motions were denied. However, the court did grant appellant’s invocation of the Witness Sequestration Rule.

At the trial, the State attempted to show that one Jose Freire met with appellant, an insurance agent, to make applications for multiple health and accident insurance policies. The State alleged that these two men, together with Lilia. Basallo, Freire’s sister-in-law, conspired to stage accidents in order to receive multiple payments from various insurance companies for fraudulent claims. The record establishes that Freire approached Lilia Basallo with the idea of purchasing certain insurance policies in Basal-lo’s name. Freire then purchased numerous policies from appellant, some of which were issued under Freire’s name, nine of which were issued under the fictitious name of Jose Perez, and eleven others which were issued to Lilia Basallo. The applications for all these policies were filled out by the appellant himself in the presence of Freire who immediately thereafter signed them in the name to which they were issued. Once Freire signed the applications, appellant followed bj signing them himself as the issuer of the policies, although he did not inquire as to why Freire signed Basallo’s name on those applications attributable to her. Further, appellant did not ask about the health of any of the applicants or about the existence of other policies which they might have had at the time.

Lilia Basallo and Jose Freire went to Spain in December, 1974, and fabricated an accident. Upon returning to the United States, they made claims to all of the insurance companies with which Basallo was insured. Approximately five months later at Freire’s instigation, Basallo feigned a second accident in Miami. Finally, also at Freire’s behest, an automobile accident was staged in Miami in February, 1976. Lilia Basallo was hospitalized after each of these accidents. Freire testified that he collected most of the money as a result of the claims under the name of Lilia Basallo. There is no evidence that appellant received policy proceeds derived from any of the fraudulent claims.

Based on these facts, the jury found appellant guilty of the four counts of grand larceny with which he was charged. He was adjudicated guilty and was sentenced to a prison term of eighteen months and three-and-one-half years’ probation on each count, to run concurrently with each other, in addition to a $2,500 fine.

In his appeal to this Court, appellant raises seven points for reversal. Because of our disposition of the case it is necessary only to consider appellant’s Point III on appeal, which is: that the trial court erred in denying appellant’s motion for judgment of acquittal, renewed motion for judgment of acquittal, and motion for new trial, on the ground that the evidence was insufficient to support a finding that he was guilty of the four counts of grand larceny with which he was charged.

We agree the evidence is insufficient to support a conviction of grand larceny and, consequently, find appellant is entitled to a judgment of acquittal. Specifically, appellant argues that the State never proved that he intended to participate in the commission of the crime of grand larceny. Appellant concedes that there was sufficient evidence to convict him of submitting false or misleading applications, which crime is punishable as a misdemeanor by Section 626.984, Florida Statutes (1973). Appellant’s brief p. 41. His interest in falsifying such statements was to receive multiple commissions. However, Briklod argues the record reflects that he was not supposed to receive and did not receive one penny from the false accidents. According to appellant, such evidence weighs heavily against the conclusion that he acted with intent to commit or participate in the commission of grand larceny.

Appellee State rejects this conclusion and submits that the record contains ample evidence to sustain the jury’s finding that appellant possessed the requisite intent to commit grand larceny. However, appellee relies solely on the following hearsay testimony of Freire to link appellant to the conspiracy.

[Prosecutor]: What other conversation did you have — I’m sorry, did you have with Mr. Briklod or Mr. Maero, with Mr. Briklod at that particular meeting, in reference to the policies?
* * * * * *
[Witness Freire]: To buy the insurance in the name of Basallo.
Q Whose idea was that?
A Of Maero.
Q Did he communicate that in your presence, through Mr. Briklod?
A Yes.
Q What did he say, to the best of your recollection, to Mr. Briklod about your buying the policies in the name of Lilia Basallo?
A That it was well, well.
Q Who said that?
A Briklod.
Q That it was well, well?
A Yes.
Q That what was well?
A The policies, to sell the policies for the accident.

Record, vol. V, at 916-917.

Appellee State submits that the words “well, well,” in reality mean “good, good.” Such interpretation is speculative at best. Witness Freire, whose native tongue is Spanish, spoke little English and, for the most part, testified through an interpreter. The quoted testimony was given through an interpreter who stated later in the record that “Ben, Ben,” [sic] in Spanish could be translated either “well, well or good, good, either one.” Record, vol. VI, at 1116.

This ambiguous testimony was insufficient by itself to prove that appellant intended unlawfully to participate in the commission of the crime with which he was charged. However, even if such evidence were sufficient, it should have been held inadmissible. While it is true that a hearsay statement of a defendant’s alleged co-conspirator is admissible against the defendant if the statement is made during the pendency of the conspiracy and in furtherance of its objectives, such testimony of hearsay statements is admissible only if the conspiracy itself has been established by independent evidence, i. e., not adduced from the hearsay testimony. See Damon v. State, 289 So.2d 720 (Fla.1973); Honchell v. State, 257 So.2d 889 (Fla.1971); Duke v. State, 134 Fla. 456, 185 So. 422 (1988). In the case at bar, the only evidence introduced to establish the existence of a conspiracy was the aforesaid hearsay testimony. To allow this testimony alone to support the existence of a conspiracy would permit “hearsay [to] lift itself by its own bootstraps to the level of competent evidence.” Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). We will not sanction the use of hearsay evidence to prove the validity of the premise upon which it was admitted in the first place. To be sure, courts have frequently relaxed the normal requirements for the order of proof, provisionally admitting evidence falling under the coconspirator rule, subject to the later introduction of independent proof of the conspiracy. However, if such independent proof is not forthcoming, a curative instruction will generally be given later by the court to disregard it against all but the declarant. See Parente v. United States, 249 F.2d 752, 754 (9th Cir. 1957). As Justice Jackson stated in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Jackson, J., concurring specially):

When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 257, 92 L.Ed. 154, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 2nd Cir., 167 F.2d 54.

Here, a curative instruction would have been meaningless because without the admissibility of the hearsay testimony, there was insufficient evidence to support a finding of guilt as to the grand larceny charges.

Because we find that the evidence adduced was insufficient to establish appellant’s guilt for grand larceny, we are compelled to reverse his conviction. As a re-suit, we need not consider the constitutional issues raised by appellant. State v. Dye, 346 So.2d 538 (Fla.1977); Singletary v. State, 322 So.2d 551 (Fla.1975); Peoples v. State, 287 So.2d 63 (Fla.1973); Walsingham v. State, 250 So.2d 857 (Fla.1971).

The judgment is reversed and this cause is remanded to the trial court with directions to enter a judgment of acquittal.

It is so ordered.

ENGLAND, C. J, and ADKINS, BOYD, OVERTON, HATCHETT and ALDERMAN, JJ., concur.

      . § 811.021, Fla.Stat. (1973), was transferred and slightly amended by Ch. 74-383, § 40, Laws of Fla., and now appears as § 812.021, Fla.Stat. (1977).

      . This enactment was repealed by Ch. 74-383, § 66, Laws of Fla., effective July 1, 1975, and reenacted in a slightly amended form as § 777.-04(3), Fla.Stat. (1975).

      . 347 So.2d 404 (Fla.1977); 347 So.2d 402 (Fla.1977).

      . We note from the transcript of testimony that witness Freire gave the following hearsay testimony suggesting appellant intended to participate in the conspiracy:
      “Q [Prosecutor] What did Mr. Briklod, with Mr. Maero, say to Mr. Briklod?
      A That my sister-in-law was going to go to Spain and have an accident so that we could fill out the policies.
      Q What do you mean, so that you could fill out the policies?
      A I was going to buy the policies under the name of my sister-in-law.
      Q Did you and Maero have a conversation to that effect? Yes or no?
      A Yes.
      Q Was it prior to the time Mr. Briklod arrived or was it while he was there?
      A I don’t understand the question.
      Q Was the conversation which you had with Mr. Maero, in reference to the accident, during the time that Mr. Briklod was there or — when he was not there?
      A First, Maero told me to do this and then afterwards—
      [Defense counsel]: I object, move to strike anything Maero told him to do, not in the presence of this witness.
      [Prosecutor]: Well, now, wait a minute, Judge—
      THE COURT: Under the exception? [Prosecutor]: Yes.
      [Defense counsel]: Under whose — , what Maero said too, Your Honor, — could we have a side-bar?"
      Record, vol. V, at 911-912.
      The State does not appear to rely on this testimony in its brief apparently recognizing that it is not clear whether appellant was even present when Maero mentioned that Basallo was going to Spain to fabricate the accident.

      . We note that diverse courts have required different quantums of proof of the existence and membership of a conspiracy in order to obtain the admission of hearsay testimony. Some courts have stated that the prosecution need not make the showing beyond a reasonable doubt. See United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969); State v. Nirschl, 208 Kan. 111, 490 P.2d 917 (1971). In Oklahoma only slight evidence is enough. Burns v. State, 72 Okl.Crim. 432, 117 P.2d 155 (Crim.App.1941). Other courts seem to require a prima facie showing. United States v. Cravero, 545 F.2d 406 (5th Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). Regardless of what the test should be in this State, we find that in the instant case there was not even slight admissible independent evidence of the existence of a conspiracy.

      . See e. g., United States v. Sansone, 231 F.2d 887, 893 (2d Cir. 1956), cert. denied, 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956); Sapet v. State, 159 Tex.Crim. 620, 266 S.W.2d 154 (Crim.App.1954).


author: PER CURIAM.

text:
    Dennis Roger McDONALD, Appellant, v. Melba W. McDONALD, Appellee.
    No. II-497.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1978.
    Rehearing Denied Jan. 24, 1979.
    Merritt H. Powell, Daytona Beach, for appellant.
    Nicholas A. Caputo, Holly Hill, for appel-lee.
   PER CURIAM.

AFFIRMED. Appellee’s motion for attorney fees on appeal is PROVISIONALLY GRANTED. Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

SMITH, Acting C. J., BOOTH, J., and KLEIN, HERBERT M., Associate Judge, concur.


text:
    John BOWLES, etc., et al., Appellants, v. D. MITCHELL INVESTMENTS, INC., etc., et al., Appellees.
    No. 77-205.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1978.

      Bailey & Dawes and Guy B. Bailey, Jr., Brown, Malman & Salmon and Philip A. Murphy, Jr., Miami, for appellants.
    Leo Greenfield, North Miami, for appel-lees.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   OPINION ON PETITION FOR REHEARING

PER CURIAM.

This court’s opinion in this appeal was file.d October 3, 1978. Thereafter, the appellants filed within the time allowed for motions for rehearing the following motions:

1. Appellant Trustees of Beneficial Standard Mortgage Investors — Motion for Rehearing;

2. Appellant Trustees of Beneficial Standard Mortgage Investors — Motion for Leave to Submit Argument;

3. Appellant Trustees Cameron Brown Investment Group — Motion to Vacate Appellate Decision as Unconstitutional, Alternative Motion for Rehearing and to Vacate, and Alternative Motion to Certify Questions of Great Public Interest.

The appellees have filed a response and a Motion to Strike Appellants’ Motion to Vacate as Void. Because of the circumstances of this case, we have denied appellees’ Motion to Strike and have granted appellants’ Motion for Leave to Submit Argument.

The principal burden of the motions of appellants is that the decision was not considered by three judges. We cannot agree. The position of the appellants arises out of the circumstances of Judge Nathan’s death after the appeal was heard upon oral argument and before the opinion of the court was filed. The appeal was heard by a full panel. Judge Nathan circulated to the panel a proposed opinion, which was rejected by the majority. After reconference, a majority opinion was prepared in which Judge Nathan did not join. Thereafter, Judge Nathan died and because he had not drafted a dissent, his first opinion was published as a dissent. Upon the filing of appellants’ motion for rehearing, a third judge was assigned to the panel. The appeal was considered by the panel on motion for rehearing. The third judge, after a full consideration of the briefs and the record, joined the majority. It is, therefore, clear that this case was fully considered by three judges. The petition for rehearing is denied.

A second point urged in the motion for rehearing merits comment. The motion urges that because of language in the majority opinion indicating the controlling question to be whether the record supports the trial judge’s finding of usury and the imposition of the penalty, the court has failed to consider the remaining points in the briefs. The panel on the original consideration and the panel on motion for rehearing have fully considered each point presented and determined that the points do not present reversible error. The reference of the court in its majority opinion to a determinative question was an expression of the court’s conclusion that the only points requiring discussion were those involving the issue of usury.

Accordingly, the motion for rehearing is denied and the motion to rehear and vacate is denied. The motion to certify is stricken pursuant to the holding in Lipsius v. Bristol-Myers Company, 269 So.2d 680 (Fla.1972).

It is so ordered.


author: BARKDULL, Judge.

text:
    CITY OF MIAMI SPRINGS, Appellant, v. TRAVELERS INDEMNITY COMPANY, Appellee.
    No. 77-2398.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 22, 1979.
    Weintraub & Weintraub and Albert L. Weintraub, Miami, for appellant.
    Joseph A. McGowan, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   BARKDULL, Judge.

This appeal concerns whether the appellant City had causes of action on insurance issued by the appellee. *

The City was issued an “institutional package policy” by the appellee which provided, among other things, coverage for misappropriations by employees. The limit of liability was $10,000.00 and the policy was good for twelve months, ending April 1, 1975. During the period the policy was in force, unknown to the City, an employee misappropriated negotiable instruments to-talling in excess of $10,000.00. The City asked for bids and again insured with Travelers Indemnity Company under a renewal policy for the insurable year commencing April 1, 1975 and ending April 1, 1976. While this renewal policy was in effect, the same employee again without notice to the City misappropriated additional negotiable instruments in excess of $10,000.00.

When the misappropriation was discovered, the City filed claims and satisfied all conditions precedent as to each of the policies, and filed proofs of loss for each of the misappropriations during each of the policy periods. Although the City demanded payment from Travelers, it has only tendered a check in the amount of $10,000.00 as total payment for all claims under both policies.

The City then filed this suit for its claims under the two policies for the separate losses it sustained. The complaint consisted of three counts, one count for each loss and a third count alleging that the appellee’s tender of only $10,000.00 in payment of claims under both policies constituted a willful refusal of the appellee to pay under the terms of each of the policies. all

The appellee moved to dismiss the amended complaint, on the grounds that it failed to state a cause of action. Travelers maintained that the policies sued upon were a “single policy renewed from year to year” and that the limit of liability available to the City was, in total, $10,000.00 which sum was tendered to the City. The trial court granted the motion to dismiss and this appeal followed. We reverse as to the dismissal of Counts I and II.

Counts I and II of the amended complaint allege separate causes of action on each policy of insurance issued by the appel-lee. Each policy became effective and then terminated on the specific date set forth. This type of policy should be distinguished from a fidelity bond, the term of which begins on a certain date and continues in force over a period of years, but the premium is paid each year. Here, each of the policies contain a clause which provide:

* * * * * *
“Regardless of the number of years Section V shall continue in force and the number of premiums which shall be payable or paid, the limit of the Travelers liability as specified in the Section V Declarations shall not be cumulative from year to year or period to period.”
******

As the Eighth Circuit Court of Appeals has held, in Globe Indemnity Co. v. Wolcott & Lincoln Inc., 152 F.2d 545 (8th Cir. 1945), that specific language stating that liability under two identical consecutive bonds shall not be cumulative, does not allow the insurer to avoid liability for losses incurred during each policy period. The court stated that:

******
“* * * There is no substantial basis for assuming that the appellant intended that the insured should have less coverage during the first year the second bond was in effect than the insured had had during the first year after the first bond was written, or less coverage than its premium payments would purchase. A full premium upon the first bond was paid for each of the bonds. No unearned premium upon the first bond was returned at the time the second bond was written.”
******

It has been held that despite specific language in three successive fidelity bonds, expressly terminating or cancelling the bond previously in effect and despite a limitation clause on cumulative liability, the insurer would still be liable on all three bonds for defalcations committed by an employee of the insured during the term of each bond. White Dairy Company v. St. Paul Fire and Marine Insurance Company, 222 F.Supp. 1014 (U.S. District Court, N.D. Ala.S.D.1963). The court, in the cited case, gave an explicit example of what was meant by cumulative liability when it stated:

******
“* * * assume that the coverage afforded the plaintiff as to Mrs. Chandler in 1958 was $2,500, in 1959, $10,000 and in 1960, $10,000, and that she embezzled the sum of $5,000 in 1958, the sum of $15,000 in 1959 and the sum of $2,500 in 1960. The limitation against cumulative liability under the 1960 bond, if it is not meaningless, would prevent the carry forward of the excess of $2,500 for 1958, and that of $5,000 for 1959 and the aggregation of such amounts with the 1960 loss to claim the full penalty of the 1960 bond. Under the assumed facts the total liability of defendant under its separate and distinct obligations would be $15,000 and not $22,-500.
“The foregoing construction achieves the identical result which would have obtained bad plaintiff placed its fidelity insurance with separate and independent insurers for each of these three years.”

The fact that the insured had rebid its insurance coverage was considered of great significance in the White case, as the court stated:

* * * * * *
“The fact that the Plaintiff carefully reviewed its entire insurance program in the fall of each year and received at least one other bid for a fidelity bond from another insurer, the logic of inferring that defendant employed the critical language of the condition to deter the insured from changing companies from year to year (see: Michigan Law Review, 442, 447; Buffalo Law Review 186) and the intention of the parties drawn from the four corners of the instrument combine to support the court’s construction.” * * * * * *

In Krey Packing Co. v. Employers’ Liability Assur. Corporation of London, England, 127 S.W.2d 780 (Mo.App.1939), it was held that a fidelity bond for a one year term and a certificate continuing the bond for another year constituted two separate contracts and not a mere continuation of the original bond.

* * * * * *
“The rule generally recognized is that a renewal of a fidelity policy or bond constitutes a separate and distinct contract for the period of time covered by such renewal unless it appears to be the intention of the parties as evidenced by the provisions thereof that such policy or bond and the renewal thereof shall constitute one continuous contract. * * *” Krey Packing, supra.
******

We hold that the City pleaded a good cause of action in Counts I and II. We find no merit in the appellant’s contention that the trial judge erred in dismissing the third count of the complaint. See: Griffith v. Shamrock Village, 94 So.2d 854 (Fla.1957); Associated Heavy Equipment Schools, Inc. v. Masiello, 219 So.2d 465 (Fla. 3d DCA 1969); Baxter v. Royal Indemnity Company, 285 So.2d 652 (Fla. 1st DCA 1973); American International Land Corporation v. Hanna, 323 So.2d 567 (Fla.1976); Butchikas v. Travelers Indemnity Company, 343 So.2d 816 (Fla.1977).

Therefore, the order dismissing Counts I and II of the complaint be and the same is hereby reversed, and the order dismissing Count III be and the same is hereby affirmed, and the matter is returned to the trial court for further proceedings consistent herewith.

Affirmed in part; reversed in part, with directions.

      . See and compare: Indemnity Ins. Co. of North America v. Parkinson, 38 So.2d 53 (Fla.1949).


author: HENDRY, Judge.

text:
    DYNAMIC BUILDERS, INC., a Florida Corporation, Appellant, v. Harold TULL & Helyn Tull, his wife, Appellees.
    No. 77-2599.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Rehearing Denied Jan. 22, 1979.

      Maurice Rosen, North Miami Beach, for appellant.
    Kenneth H. Smith, Tavernier, for appel-lees.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant/defendant appeals from an “amended final judgment” and post-judgment “order on all pending motions,” while appellees/plaintiffs have cross-appealed from that same judgment and order.

This litigation centered around a dispute over construction work performed by appellant on a motel owned by appellees. Testimony was disputed over the quality of workmanship and responsibility for alleged defects in the workmanship. Ultimately, the trial judge determined that appellees were entitled to be reimbursed for damages alleged in their complaint to have been incurred by virtue of repairs to their property necessitated by appellant’s faulty construction. Further, the trial judge ruled that such damages should be deducted from the balance of the contract price still due and owing appellant, which was the subject of a counterclaim filed by appellant for foreclosure of its mechanic lien.

We have carefully reviewed all points raised in the appeal and cross-appeal, in light of the record on appeal, and have determined that none of the challenges raised by either appellant or appellees warrant our disturbance of the “amended final judgment,” as there was competent substantial evidence to support the trial judge’s findings. However, pursuant to Section 713.29, Florida Statutes (1977), the trial court erred in denying appellant an award of attorney’s fees in its “order on all pending motions.” The record demonstrates that appellant was the prevailing party on its counterclaim for foreclosure of its mechanics lien, notwithstanding the fact that the trial judge awarded appellant a figure somewhat less than the amount indicated in its “claim of lien.” See Flagala Corporation v. Hamm, 302 So.2d 195 (Fla. 1st DCA 1974); Foxbilt Electric, Inc. v. Belefant, 280 So.2d 28 (Fla. 4th DCA 1973).

Accordingly, the “amended final judgment” is hereby affirmed, while that portion of the “order on all pending motions” which denies appellant attorney’s fees is reversed and remanded with directions to enter an award of attorney’s fees in favor of appellant.

Affirmed in part; reversed and remanded with directions in part.


text:
    Michael H. WEISSER, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, etc., Appellee.
    No. 77-2643.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Rehearing Denied Jan. 25, 1979.
    Robert A. Shupack, North Miami Beach, for appellant.
    Albert J. Zemlock, Miami, for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   PER CURIAM.

Defendant-debtor, Michael Weisser, appeals a final judgment for $42,875.83 entered in favor of the Federal Deposit Insurance Corporation as liquidator of the Franklin National Bank in an action to collect the balance due on a promissory note and guarantee agreement.

In 1969 Michael Weisser executed a promissory note in the amount of $60,000 in favor of Franklin National Bank. Subsequently, he executed a guarantee of a $20,-000 note of M.H.W., Ltd., and on May 11, 1970 further executed an agreement reflecting that there was due and owing Franklin National Bank $52,000 under the promissory note and guarantee. The agreement provided for a schedule of payments to satisfy this indebtedness. Sometime in 1973 Weisser defaulted on these payments. In 1975 Franklin National Bank went into liquidation and was taken over by the plaintiff-appellee, Federal Deposit Insurance Corporation (F.D.I.C.) as liquidator. Thereafter, the F.D.I.C. filed the instant suit to collect the outstanding principal balance due under the note and guarantee plus interest, late charges, and attorney’s fees as provided by these instruments. The cause proceeded to a non-jury trial and Weisser primarily defended on the grounds that the F.D.I.C. lacked standing to sue and there was a novation between the parties. The trial court entered judgment in favor of the F.D.I.C. for $42,875. Weisser appeals.

For his first point on appeal Weisser contends that the F.D.I.C. did not have standing to sue him where the record was devoid of any evidence showing that the F.D.I.C. was a party to or in privy with any of the subject instruments and where the F.D.I.C. failed to meet its burden of proof under Section 92.10, Florida Statutes (1975). We find this point well taken.

At the trial the F.D.I.C. attempted to introduce into evidence a copy of the order of the U.S. District Court for the Eastern District of New York purporting to show that it was appointed as liquidator of the assets of Franklin National Bank. Weisser objected on the ground that the order did not comply with Section 92.10, Florida Statutes (1975). The trial court sustained the objection and the order was not admitted. The court, therefore, could not consider this order. See Bosem v. A.R.A. Corp., 350 So.2d 526 (Fla.3d DCA 1977).

With respect to the issue of standing, all that is contained in the record is the bare, unsupported allegation in the complaint that “Franklin National Bank went into liquidation and was taken over by Federal Deposit Insurance Corporation for the purpose of liquidation and is now being liquidated”. We find this allegation to be insufficient to give the F.D.I.C. standing. Accordingly, the final judgment is reversed and the cause remanded to the trial court with directions to dismiss the complaint with leave to amend so that the F.D.I.C. may have the opportunity to sufficiently allege its standing to sue Weisser.

Reversed and remanded with directions.


author: KEHOE, Judge.

text:
    Jose Miguel BATTLE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-100.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Rehearing Denied Jan. 22, 1979.

      Jack R. Blumenfeld, Miami, Raymond A. Brown, Jersey City, N.J., Alan Silber, East Orange, N.J., for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction and sentence for conspiracy to commit a felony and solicitation of a felony. Appellant was sentenced to thirty years in the State Penitentiary for each crime, the sentences to run concurrently. He was also fined $5000 for each crime. Of the points raised on appeal by appellant from this judgment and conviction, it is our opinion that two of the points require discussion and reversal.

Appellant contends in one of these points that the trial court erred in entering the final judgment and sentence because, under the facts of this case, Florida had no jurisdiction to convict or punish him for the crime of solicitation.

In support of this contention, appellant makes the following argument: The facts adduced by appellee, the prosecution below, to support the charge of solicitation all took place in the State of New Jersey. It is undisputed that the only connection which Florida had with the facts presented is that the victim of the crime was in Florida and that Carlos Hernandez (not a party herein) took a trip to Florida after the solicitation was made, allegedly for the purpose of committing the crime solicited. Appellant argues that this, by itself, was not sufficient to give Florida jurisdiction.

It is appellee’s position that appellant’s conduct outside Florida constituted an attempt to commit an offense within Florida; therefore, appellant was subject to prosecution in Florida, even if the pertinent acts occurred wholly outside Florida. In support of this position, appellee relies upon Section 910.005(l)(b), Florida Statutes (1975).

The record supports the facts asserted in appellant’s argument. From this argument, it appears that the heart of appellant’s defense is that the crime of solicitation is complete after the solicitation is made, and requires no acceptance by the person solicited. The actions of the person solicited are irrelevant to the crime of solicitation. Although neither appellant nor ap-pellee have cited us to any Florida authority directly on point, nor has our research revealed any, this proposition is supported in LaPave and Scott, Criminal Law, 414-22 (1972); and Perkins, Criminal Law, 582 (2d Ed. 1969).

In our opinion, the solicitation was complete after it was made and no element of the crime of solicitation took place in Florida; therefore, Florida was without jurisdiction to try appellant for this offense. In this case, although the acts solicited were to be performed in Florida, the crime charged in the indictment of solicitation was committed wholly outside Florida. Thus, contrary to appellee’s contention, Section 910.005(l)(b), Florida Statutes (1975), did not confer jurisdiction in the Florida courts. See generally Annot., 56 A.L.R.2d 953 (1957).

In another of appellant’s points on appeal, he contends that the trial court erred in denying his pretrial motion to dismiss the conspiracy count of the indictment (Count I) on the grounds that the wording was vague and did not inform him of the charges against him to the extent that he could properly prepare his defense or protect himself against being placed in jeopardy-

The contentious part of the indictment reads as follows:

“. . . (T)hat beginning on the first day of February, 1976, and continuing through the 18th day of June, 1976, . Jose Miguel Battle did unlawfully and feloniously agree, conspire, combine or confederate with one Julio Acuno or Carlos Hernandez or both, or other persons unknown to the Grand Jury at this time, to commit a felony under the laws of the State of Florida, to-wit: Murder in the first degree, . . . and the defendant did meet with the said Julio Acuna or Carlos Hernandez or both, or other persons unknown to the Grand Jury at this time, during the same period of time to discuss and plan details as to the premeditated murder of one Ernesto Torres . . . ”

Among the requirements for the allegations in an indictment to be sufficient are (1) the specificity test, i. e., does the indictment contain all the elements of the offense pleaded in terms sufficient enough to apprise the accused of what he must be prepared to meet, and (2) is the indictment pleaded in such a manner as to enable the defendant to plead prior jeopardy as a defense if additional charges are brought for the same offense. See, e. g., Russell v. U. S., 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); State v. Smith, 240 So.2d 807 (Fla.1970); Victer v. State, 174 So.2d 544 (Fla.1965); and State v. Jones, 312 So.2d 483 (Fla. 4th DCA 1975). Further, our Supreme Court has recently considered the criteria for sufficiency in conspiracy cases in Goldberg v. State, 351 So.2d 332 (Fla.1977), as this court has likewise done in State v. Giardino, 363 So.2d 201 (Fla. 3d DCA 1978). Applying the principles developed in the above cases to the instant cause, we are of the opinion that Count I of the indictment was insufficient. It is impossible to ascertain whether the indictment charges that appellant conspired with Acuna and Hernandez jointly or severally, or whether appellant conspired entirely with persons unknown. Also, it is impossible to tell whether appellant met with Acuna and Hernandez jointly or severally, or whether appellant met with persons unknown to plan the murder of Torres. Because appellant was left to guess who these other conspirators might be and because the vagueness of the allegations did nothing to protect him from further prosecution, we are of the opinion that they were too vague and indefinite to meet the requirements set forth above. Accordingly, in our opinion the trial court erred in failing to dismiss Count I of the indictment for conspiracy against appellant.

Based on our determination of the two points discussed above, we must reverse the judgment and sentence appealed. In regard to the solicitation charge in the indictment, we direct that appellant be discharged; however, in regard to the conspiracy charge in the indictment, we remand the cause to the trial court for further action not inconsistent herewith. Further, in the light of these determinations, it is unnecessary for us to consider the other points raised on appeal by appellant.

Reversed and remanded with directions.


author: SCHWARTZ, Judge.

text:
    Perry ALEXANDER and Marla Alexander, his wife, Appellants, v. Edward KIRKHAM and Federated Mutual Insurance Company, a Foreign Corporation, Appellees.
    No. 78-387.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Rehearing Denied Jan. 22, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, Hawkesworth & Schmick, Miami, for appellants.
    Magill, Sevier & Reid and Kevin P. O’Connor, Miami, for appellees.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The plaintiffs appeal from a final summary judgment against them which upheld as a matter of law the efficacy of a release, given by the plaintiffs to third parties, to bar their claim against the present defendants. We reverse.

On September 23, 1973, the plaintiff Perry Alexander was seriously injured in an accident on 1-95, in which two other drivers, Mohamed Mysorewalla, who was insured by Preferred Risk Insurance Company, and Edward Kirkham, whose liability insurer was Federated Mutual, were allegedly both at fault. Alexander and his wife made claims against both sets of insured and insurer. In April, 1975, following a series of settlement negotiations between their lawyers and the Preferred claims adjuster, Robert Brialmont, the Alexanders agreed to settle their claim, as against My-sorewalla and Preferred, for their policy limits of $10,000. After the insurance company drafts had been received, the plaintiffs forwarded a release, prepared by their counsel, to Preferred. The printed release form which was employed and which was dated July 21, 1975, however, stated that it released, not only Preferred and its insured, but also

“ . . . all other persons, partnerships, firms or corporations of and from any and all actions, causes of actions, damages or demands of whatever name or nature in any manner arisen, arising or to grow out of any and all accidents or matters especially an accident to PERRY D. ALEXANDER claimed by the undersigned to have been sustained on or about the 23rd day of September 1973 at or near State Road 9A and 0.5 miles north of State Road 836, Miami, Dade County, Florida . . .”

On August 29, 1975, the Alexanders sued the present defendants-appellees, Kirkham and Federated, in the Dade County Circuit Court. Their answer raised the affirmative defense that they had been released from liability to the Alexanders by virtue of the language in the release which the plaintiffs had given to Mysorewalla and Preferred.

In counter-response, the Alexanders then filed an independent action for reformation of the release agreement. Naming Mysore-walla and Preferred, as well as Kirkham and Federated, as respondents, the plaintiffs alleged that the release as executed did not correctly express the mutual intent of the parties to it. They claimed that both they, through their counsel, and Brialmont, in negotiating and agreeing to the settlement, had meant to release only the parties who were buying their peace for the $10,000 —Mysorewalla and his insurer — and to preserve their rights to sue the other alleged joint tort-feasor, Kirkham and his company, who had paid nothing. The Alexanders contended, therefore, that since, as actually written, the form did serve to release Kirk-ham, it embodied a mutual mistake as to its legal effect. The complaint sought a reformation of the language of the agreement, so as to provide that it released “only” Preferred and its insured, and to strike the purported release of anyone else. The most significant legal event in this case occurred when, in answer to the reformation complaint, Preferred and Mysorewalla admitted all of its allegations; thus conceding that the release did not accurately express the expectations of the parties ■ concerning its legal effect.

After the reformation proceeding was transferred to the division in which the personal injury action was pending, Kirk-ham and Federated moved for summary judgment in their favor in the tort case, based upon the allegedly binding effect of the unreformed release. The trial judge granted the motion and entered summary judgment for the defendants, rendering, his order said, the reformation proceeding “moot.” Under the perhaps unique factual and legal situation presented by this ease, we hold that the summary judgment should not have been entered.

The basis for this holding is our conclusion that the expressed and admitted mutual intent of the parties to the release should be given effect, so as to preclude reliance upon its mistaken language by the present defendants. Both the releasors, the plaintiffs, and the releasees, Mysorewalla and Preferred, have agreed that they intended the language of their agreement to have the legal effect of preserving the plaintiffs' rights against Kirkham and Preferred; the lower court’s judgment that those rights have nevertheless been extinguished was therefore erroneous. This determination is in entire accordance with the established law as to the effect of a “mutual mistake” such as this one. Whatever the general rule as to the effect of a so-called pure “mistake of law,” see 8 A. Corbin on Contracts § 616 (1960 rev.), it has long been clear in Florida and elsewhere that relief will be granted when, as here, the language employed by the parties fails to have the legal effect or to express what they mutually intended. For example, in Jacobs v. Parodi, 50 Fla. 541, 39 So. 833, 836-837 (1905), the Supreme Court held:

“Where an instrument is drawn and executed which professes or is intended to carry into execution an agreement previously entered into, but which by mistake of the draftsman, either as to fact or to law, does not fulfill that intention or violates it, equity will correct the mistake, so as to produce a conformity to the intention. 1 Story’s Equity ■ Jurisprudence, § 115.
Where the parties, with knowledge of the facts and without any inequitable incidents, have made an agreement, and a writing executed by them for that purpose expresses the agreement as it was understood and designed to be made, equity will not interfere, although one of the parties may have mistaken or misconceived its legal meaning, scope, and effect.
If, on the other hand, after making an agreement, in the process of reducing it to a written form, the instrument, by means of a mistake of law, fails to express the contract which the parties actually entered into, equity will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation, or by reformation, to the same extent as if the failure of the writing to express the real contract was caused by a mistake of fact. In this instance there is no mistake as to the legal import of the contract actually made; but the mistake of law prevents the real contract from being embodied in the written instrument. In short, if a written instrument fails to express the intention which the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing.” [emphasis supplied]

Accord: Heisler v. Florida Mortgage Title & Bonding Co., 105 Fla. 657, 142 So. 242 (1932); Niagara Fire Ins. Co. v. Allied Electrical Co., 319 So.2d 594 (Fla. 3rd DCA 1975); 13 S. Williston, Law of Contracts, § 1585 (3rd ed. 1970); 3 A. Corbin on Contracts, § 619 (1960 rev.). We think this rule is directly applicable to the case before us.

Nor is our conclusion contrary to the cases which hold that a general release such as the one actually executed by the Alexanders does have the legal effect of releasing a joint tort-feasor who is not a party to it. Weatherford v. Ryder Truck Rental & Leasing, 344 So.2d 937 (Fla. 3rd DCA 1977); Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla. 3rd DCA 1976); Hurt v. Leatherby Ins. Co., 354 So.2d 918 (Fla. 4th DCA 1978); Quarterman v. City of Jacksonville, 347 So.2d 1036 (Fla. 1st DCA 1977); Hester v. Gatlin, 332 So.2d 660 (Fla. 2d DCA 1976). Each of these cases is essentially based upon a construction of the intention of the parties. In each of them, there was no sufficient showing that that intention was not the one expressed in the written release itself. Instead, there was, at the most, the bare claim that only the plaintiff had made a mistake in executing the release. Plainly, such a unilateral mistake cannot vary the terms of a written agreement. E. g., Quarterman v. City of Jacksonville, supra. In direct contrast, this case presents an admitted “mutual mistake” which, under familiar contract principles, must be given just that effect. 5 Fla.Jur., Cancellation, Reformation and Recission of Instruments, § 72 et seq., p. 263 et seq.

It must be pointed out that the defendants in this case were neither parties to the release agreement, gave any consideration for it, nor changed their position in any way in reliance upon its terms. Compare, e. g., Barlow v. Stevens, 112 Fla. 57, 150 So. 245 (1033). They simply seek to be the donee beneficiaries of an enormous benefit, freedom from tort liability, gratuitously placed in their laps through the inadvertence of third parties. On these facts there is therefore no legal or equitable reason to interfere with the effectuation of the conceded intention of the parties to the agreement themselves. 66 Am.Jur.2d Reformation of Instruments, § 63, p. 584.

The judgment below is therefore reversed, and the cause remanded with directions to grant the plaintiffs’ prayer for reformation, and for further proceedings consistent with this opinion.

Reversed and remanded.

      . See Weatherford v. Ryder Truck Rental & Leasing, Inc., 344 So.2d 937 (Fla. 3rd DCA 1977); Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla. 3rd DCA 1976); Hurt v. Leath-erby Ins. Co., 354 So.2d 918 (Fla. 4th DCA 1978); Quarterman v. City of Jacksonville, 347 So.2d 1036 (Fla. 1st DCA 1977); Hester v. Gatlin, 332 So.2d 660 (Fla. 2d DCA 1976).

      . The appellees argue that they would be “prejudiced” if the release were reformed because of their inability to secure contribution from My-sorewalla and Preferred under § 768.31(5)(b), Fla.Stat. (1977 Supp.). This contention is, at best, specious, both because their situation would be no different if the original release correctly expressed the parties’ intention, and because their present position is that they are relieved of making any payment to the plaintiffs at all, as to which contribution could be demanded.


text:
    Nathan SIEGEL and Melvin Fisher, Appellants, v. Dorothy Rose GILLMAN, Appellee.
    No. 78-430.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Rehearing Denied Jan. 25, 1979.
    Arthur D. Frishman, Miami Beach, for appellants.
    No appearance for appellee.

      Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellants, who were the plaintiffs below, seek reversal of an adverse judgment, entered following a non-jury trial. Thereby, plaintiffs’ claim for specific performance of a real estate sales contract was denied. We hold no reversible error has been shown, and affirm.

On November 8, 1968, the plaintiffs Nathan Siegel and Melvin Fisher (as purchasers) entered into a written contract with Dorothy Rose Gillman (as seller) joined by her husband, Isidor Gillman, for the sale of certain described improved real property. The contract, which did not state that time should be of the essence, fixed November 1, 1969, as the date for closing the sale. When that time arrived, the seller requested and obtained a stipulation extending the time for closing to January 2, 1970. Thereafter, the seller requested, and obtained from the purchasers, seven further extensions of time for closing. By the last of those extensions, the closing date fixed was October 1, 1975. No closing occurred on or before that date.

More than a year later, on December 17, 1976, the purchaser Fisher sent a letter to the seller referring to the prior extensions which had been made at the seller’s request, and stating as follows:

“If you desire a further extension, sign the enclosed Stipulation of Extension and return to this office within ten days; otherwise we shall assume that you do not desire a further extension and will accordingly set a closing date.”

Replying thereto through an attorney by letter, the seller informed the purchasers that the matter had been in default since October 1,1975, and that she did not intend to sell the property at the 1968 contract price. Thereafter, on February 1, 1977, the purchasers filed this action for specific performance.

Under this land sales contract, where time was not made of the essence, the purchasers who did not close on or before the last fixed closing date, would have been entitled to close thereafter, provided a tender or demand to close would be made by the purchasers promptly, that is, within a reasonable time. Where more than a year elapsed after the closing date of October 1, 1975, before the purchasers took any action, the action they took was not a demand or effort to close the sale. Their first action of that character was later in February of 1977, when they filed a suit to enforce the sales contract. That unreasonable delay by the purchasers, after the closing date, was sound basis for the trial court’s denial of their claim for specific performance. Asia v. Hiser, 38 Fla. 71, 20 So. 796, 798-799 (1896); Hathcock v. Societe Anonyme La Floridienne, 54 Fla. 631, 45 So. 481 (1907); Greenfield v. Bland, 99 So.2d 727 (Fla. 3d DCA 1958); Perry v. Benson, 107 So.2d 213 (Fla. 3d DCA 1958).

Judgment affirmed.


text:
    Johnson CASON and Christine Cason, Individually and as man and wife, Appellants, v. Eugene SMITH and Industrial Fire & Casualty Insurance Company, Appellees.
    No. 77-2160.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1978.

      Pelzner, Schwedock & Finkelstein, Miami, for appellants.
    Goodhart & Rosner, Greene & Cooper and Sharon L. Wolfe, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   ON REHEARING GRANTED

SCHWARTZ, Judge.

The plaintiffs appeal from a judgment entered for the defendants after the jury returned a verdict which revealed that it had found that the plaintiffs had failed to meet the then-applicable no-fault threshold of establishing permanent injury or $1,000.00 in reasonable medical expenses. They claim reversible error, on the authority of Garrett v. Morris Kirschman & Co., Inc., 336 So.2d 566, 571 (Fla.1976), in the trial judge’s refusal to permit the introduction of various hospital and doctors’ bills on the basis of the plaintiffs’ testimony alone and without that of the treating physician that the expenses incurred were reasonable and necessary. The Garrett case does hold that expert testimony to this effect is not necessary to justify the admission of the bills, when, as in Garrett, they have been paid. See cases collected in Annot., Necessity and Sufficiency of Evidence as to Reasonableness of Medical Expenses, 12 A.L. R.3rd 1347, 1376-1384.

At the trial below, however, the plaintiffs’ counsel did not proffer that the bills in question had in fact been paid. Ordinarily, such a failure to make a proffer which would demonstrate that the proposed evidence was improperly excluded would prevent appellate consideration or acceptance of the point. E.g., Stager v. Florida East Coast R. Co., 163 So.2d 15, 17 (Fla. 3rd DCA 1964), cert. disch., 174 So.2d 540 (Fla.1965). In this case, however, this requirement cannot obtain because the record shows, for reasons that need not be detailed, that the trial judge effectively interfered with the plaintiffs’ ability to complete any proffer they wished to make. See Musachia v. Terry, 140 So.2d 605, 607-608 (Fla. 3rd DCA 1962); Jones v. Clark, 418 P.2d 792, 799 (Wyo.1966); Hepp v. Hepp, 420 P.2d 118 (Wyo.1966).

Nevertheless, on this record, we simply cannot tell whether the bills had been paid, in which case the plaintiffs would be entitled to a new trial, or had not, in which case they would not be so entitled. Under these circumstances, we deem it appropriate to vacate the judgment and to remand the cause to the trial court, with directions to determine whether the bills in question had been paid as of the date of the trial, August 24, 1977. See In re Estate of Vallish, 431 Pa. 88, 244 A.2d 745 (1968). If the court so finds, it is directed to order a new trial; if the court finds otherwise, judgment is to be reentered for the defendants.

Vacated and remanded with directions.


text:
    TRAVELERS INDEMNITY COMPANY, Appellant, v. Helen HOWARD et al., Appellees.
    No. 77-320.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Martin J. Sperry and Scott A. DiSalvo of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Fort Lauderdale, for appellant.
    Wilton L. Strickland of Ferrero, Middle-brooks & Houston, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

Reversed on the authority of Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla.1978) and remanded for entry of declaratory judgment in accordance therewith.

REVERSED and REMANDED.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.


author: ANSTEAD, Judge. DAUKSCH, Judge,

text:
    The SCHOOL BOARD OF PALM BEACH COUNTY, INC., Appellant, v. Cynthia TAYLOR, By and Through her father and next friend, George Taylor, and George Taylor, Individually, Appellees. The SCHOOL BOARD OF PALM BEACH COUNTY, INC., Appellant, v. Kathea CLARKE, By and Through her mother and next friend, Kathryn Clarke, and Kathryn Clarke, Individually, Appellees. The SCHOOL BOARD OF PALM BEACH COUNTY, INC., Appellant, v. Patricia O’HARA, By and Through her mother and next friend, Patricia Servis, and Patricia Servis, Individually, Appellees.
    Nos. 77-384 to 77-386.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.

      Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellant.
    Thomas A. Hoadley of Law Offices of Thomas A. Hoadley, P.A., West Palm Beach, for appellees.
   ANSTEAD, Judge.

These are consolidated appeals in which the appellant, The School Board of Palm Beach County, claims that excessive verdicts were rendered on insufficient evidence in favor of the appellees, Cynthia Taylor, Kathea Clarke and Patricia O’Hara and their parents. The three girls were injured in an outburst of student violence while they were attending Boca Raton High School on February 5,1973. All three were assaulted by fellow students after their first period classes let out at 8:00 a. m.

Ms. Taylor was standing in front of her locker when a gang of youths approached and one of them “slapped” her on the face. Cynthia, not immediately aware that she was injured, ran into a nearby classroom where she was told she was bleeding. She subsequently went to a hospital where some 27 stitches were required to close an apparent razor cut on the right side of her face. She has a permanent scar which is readily visible and which, in the opinion of her physician, would remain visible even if recommended cosmetic surgery is done. She testified that she continues to be embarrassed by the scar but has no other effects from the injury, and her physician described her as a well-adjusted young woman who had recovered from the effects of the injury except for the permanent scar. Cynthia’s past medical expenses totaled $269.50 and future medical expenses were estimated to be between $450.00-$650.00. She was a college student at the time of trial.

Ms. Clarke did not appear at trial, and her testimony was received by deposition. She stated that as she was walking down a hallway, she was approached from behind by a gang of youths who were pushing other students out of their way. When they reached her they knocked her down and when she got back up one of the gang walked by and struck her in the neck. She, too, did not realize that she was cut until another student called it to her attention. A razor wound to the back of her neck required 15 stitches, and she was left with a permanent scar at the top of her neck which was usually covered by her hair. She saw a doctor who stitched the wound and later removed the stitches, and her total medical expenses were $95.50. She reported no other effects from the injury other than an aversion to horror movies. No physician testified about her injuries. She was a college student at the time of trial.

Ms. O’Hara was sitting on a bench underneath a stairwell when she was attached by a gang of youths. She was pushed to the floor, stabbed, kicked and knocked unconscious. A counselor took her into a classroom and applied first aid to a laceration on the top of Patricia’s head. Six stitches were required to close the head wound. After the wound healed the scar was covered by her hair. For a year after the accident she had frequent headaches and was referred to a neurologist who administered a brain wave test and took x-rays. These tests produced normal results although Ms. O’Hara was advised she had sustained a slight concussion.- No physician testified as to her injuries, and her total medical expenses were $258.50. She was married and working at the time of trial.

Verdicts were returned in favor of Cynthia Taylor in the amount of $26,000.00 and for Kathea Clarke and Patricia O’Hara in the amount of $25,000.00 for each.

By the first two points on appeal the School Board challenges the sufficiency of the evidence and the trial court’s denial of the Board’s motion for directed verdict on the issue of liability. We have examined the record and reviewed the evidence and find no error in the trial court’s denial of the motions for directed verdict. There is adequate evidence in the record to support a finding against the Board. Next, the Board asserts that the verdicts were excessive and that the amounts thereof were not supported by the evidence.

Recently the Supreme Court has attempted to set out an objective standard for review of damage awards. In the case of Bould v. Touchette, 349 So.2d 1181 (Fla.1977) the court stated:

In determining whether a verdict is excessive, vague expressions by the courts about “conscience shocking amounts” do not furnish the enlightenment that the public should expect from judges about how they arrive at their decisions. The problem of determining whether a verdict is excessive is not so subjective as to prevent the formulation of standards to be used in the exercise of the court’s power. Nor should judges have the unfettered latitude for decision that might be afforded by the imprecision of the rules that they themselves formulated.
Where recovery is sought for a personal tort, or where punitive damages are allowed, we cannot apply fixed rules to a given set of facts and say that a verdict is for more than would be allowable under a correct computation. In tort cases damages are to be measured by the jury’s discretion. The court should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed. The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Lassiter v. International Union of Operating Engineers, 349 So.2d 622, opin. filed May 26, 1977, approving the reasoning in Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970). Id. at 1184.

While criticizing previous “vague expressions by the courts” as to standards of review, the bottom line of the Bould decision appears to be that a reviewing court must first determine what is “a reasonable range within which the jury may properly operate.” Perhaps this is a more accurate reflection of the degree of discretion vested in a jury determining damages. However, this method still leaves it in the hands of the court to decide the minimum and maximum award in a particular case.

What is a reasonable range? That, of course, will vary depending on who answers the question. However, we do not believe that is a valid reason to avoid answering the question. In many other cases courts review the reasonableness of monetary awards based solely on the evidence presented. Reviewing courts constantly decide anew what constitutes reasonable amounts of awards in divorce cases. See McAllister v. McAllister, 345 So.2d 352 (Fla.4th DCA 1977). True, the standards in divorce cases are more fixed than those employed to evaluate personal injuries, but the principle of measuring the reasonableness of an award by the evidence is basically the same. The only alternative, which the courts have come very close to choosing, is to abandon the review entirely and simply leave the award of damages in personal injury cases “peculiarly within the discretion of the jury”, and therefore untouchable. We decline to choose that alternative here.

In this case we feel that the jury awards for Clarke and O’Hara are excessive but that the Taylor award is within a reasonable range. Admittedly the verdict for Cynthia Taylor is substantial, but we do not feel it exceeds a reasonable range. The injury is substantial and permanent, and the award is clearly within a reasonable range when measured against a lengthy life expectancy. We cannot say the same for the other two awards. The evidence has already been reviewed. It is apparent in both the O’Hara and Clarke awards:

1. The consequences of the injuries were neither permanent nor substantial except for scars that were not readily visible.
2. The period of time during which the injuries affected the claimants was not substantial.
3. Medical treatment was limited and successfully completed without the need for future care.
4. Special expenses were limited to the medical bills of $95.50 for Clarke and $258.50 for O’Hara.
5. The similarity of the three awards reflects a lack of individual consideration of the damages in each case.
6. The factual circumstances as to the consequences of the injury present in Taylor’s case are not present in the O’Hara and Clarke cases.

For these reasons we feel the maximum amount of damages which could properly have been awarded O’Hara and Clarke was $10,000.00 each. The evidence will not support a greater award.

There is an additional basis in the record for our conclusion. Counsel argued to the jury that the awards should set an example to prevent future incidents. It was stated that this was the main purpose that the suits were brought. This clearly smacks of a demand for a punitive award rather than compensatory damages. Food Fair Stores, Inc. v. Morgan, 338 So.2d 89 (Fla.2d DCA 1976). There was no claim for punitive damages in this case. Indeed there was no factual basis for such a claim against the School Board. And these were not claims against the actual assailants, against whom an award of punitive damages would be proper. No objection was made to this argument.

Were the awards not clearly outside what this court considers to be a maximum reasonable range of damages, we would not overturn these verdicts solely because of this improper argument. However, the existence of such argument clearly furnished an improper motive for the jury’s award and our conclusion is that, as to the O’Hara and Clarke claims, the jury was influenced by this improper tactic and that influence is reflected in the amount of the awards.

Accordingly, the judgment for Cynthia Taylor is affirmed and the judgments in the O’Hara and Clarke cases are hereby reversed with directions that if the plaintiffs shall enter a remittitur of $15,000.00 each, then a judgment for $10,000.00 plus interest and costs may be entered against the defendant. If the plaintiffs fail to enter such remittitur within ten days after the filing of the mandate of this court, then the trial court shall order a new trial as to damages only.

CROSS, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent and decline to put myself in the shoes of the jury to determine the proper award. The verdict may or may not have been the result of improper argument — no objection was made to that argument so it must have been a tactical decision on the part of the defense attorney to accept the comment. We should decline to consider that “error” just as we did in Clay v. Thomas, 363 So.2d 588, (Fla.4th DCA Opinion filed October 25, 1978). It is difficult, if not almost impossible, for me to second-guess a jury verdict, which was reviewed by the trial judge, when essentially, only numbers are here for my review. Perhaps the verdicts the majority orders remitted are excessive when considered coldly against the verdict for the one not ordered remitted. However, it may be the verdict for Miss Taylor was low when compared to the others. None of the verdicts are so inordinate as to require appellate interference and I decline to interfere. To say that $10,000 is the upper limit of two of the verdicts sounds rather arbitrary to me. By what standards, objective or otherwise, can the majority say it determined $10,000 rather than $12,000 or $8,000 to be the upper limit? The jury system was meant to, and usually does, provide the service of fixing damages. I admit if the award was only for the medical expenses plus a little more I would not have much trouble deciding against the trial court if he refused a new trial. I admit also if the verdicts for the girls were $50,000 or $100,000 I should look closely for prejudicing influences and even consider doing what the majority is wont to do here. But, again, to take verdicts such as these from the trial jury and the trial judge seems to me to be using an appellate court’s discretion in place of a jury’s and a trial judge’s. I'should affirm. Delgado v. Strong, 360 So.2d 73 (Fla.1978); Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (Fla.1977).


author: DAUKSCH, Judge.

text:
    Kenneth Allen RALEIGH, Appellant, v. STATE of Florida, Appellee.
    No. 77-734.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.

      L. Van Stillman of Bass, Stillman & Gold-enberg, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction of possession of more than 100 pounds of marijuana. The question is whether the court erred in refusing to suppress certain of the evidence.

At 1:00 A.M. the police officer was told by another officer the appellant was driving in a manner to make him a suspect intoxicated driver. The police officer stopped appellant and was of the opinion he was intoxicated but smelled no odors usually associated with alcoholic beverages. The officer noticed two other persons in appellant’s car and, after questioning appellant outside his car for a while, walked over to the car and asked the others to get out. After the others exited, the officer leaned into the car and detected an odor of burning marijuana. He arrested appellant for driving under the influence of a narcotic and began a search of the car which turned up burnt residue in the ash tray with a marijuana odor. He questioned appellant about the marijuana and asked for consent to search the trunk of the car. Appellant did not reply. The officer had found a key which appeared to be a Ford trunk key underneath a rubber mat on the driver’s side of the car. He opened the trunk to the appellant’s Ford and found a load of marijuana.

To justify this search it must be either a search pursuant to a warrant, a consent search, a search incident to a lawful arrest, a probable cause without warrant search or an inventory. There was no warrant and there was no consent. Mere acquiescence to apparent authority is not necessarily consent. Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978). Additionally, the officer testified he asked for permission to search the trunk and was not given consent. This is, of course, reasonable to believe since the trunk contained in excess of one hundred pounds of marijuana.

For us to analyze are the initial stop and detention; the officer’s intrusion into the appellant’s car by leaning into it and “sniff-searching;” the search and seizure of items from the interior of the car; and, finally the search and seizure in the trunk.

The officer properly stopped the appellant in his ear and detained him to determine if the errant driving was a risk on the highway. State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978); Bailey v. State, 319 So.2d 22 (Fla.1975).

The intrusion into the car in order to sniff around or otherwise search was a war-rantless and unwarranted intrusion by the officer into a place he had no right to be. St. John v. State, 356 So.2d 32 (Fla. 1st DCA 1978). State v. Ashby, 245 So.2d 225 (Fla.1971). Had he detected the odor of marijuana outside the car and coupled with the unsteady behavior of the appellant together with appellant’s reported erratic driving then we might have reached a different conclusion. The officer did not have a right to go into the vehicle to search for evidence. He did not testify he was conducting an inventory of the car and in fact had not arrested appellant before entering his car.

The seizure of the marijuana cigarette butts was a direct result of the unlawful intrusion and search and that evidence must be suppressed.

The seizure of the key from the interior of the car and the search of the trunk are a direct result of and directly follow the unlawful police actions and must also be disapproved both as “fruit of the poisoned tree” and as a search of the trunk on its own without consent or probable cause. The arrest did not justify the search of the trunk. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1975).

The conviction, sentence and order denying the motion to suppress are reversed and this cause remanded for further proceedings.

REVERSED AND REMANDED.

DOWNEY, C. J., and BURNSTEIN, MIETTE, K., Associate Judge, concur.