author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Robert Leslie HETLAND, Jr., Appellee.
    No. 78-165.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 1979.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and Ellen Irene Hoffenberg, Asst. Public Defender, Clearwater, for appellee.
   DANAHY, Judge.

Can an anonymous tip provide the basis for a valid stop and frisk? That question was answered in the negative by this court in State v. Hendry, 309 So.2d 61 (Fla.2d DCA 1975). In the Hendry case, law enforcement officers received information from an unidentified passing motorist that some people in an automobile in Old Bridge Square had marijuana in their possession. A description of the car and the license tag number was given. A short time later law enforcement officers located a vehicle in Old Bridge Square matching the description which had been given. When the officers approached the vehicle, the defendant and other individuals got out of the vehicle and walked toward the officers. The officers advised them that they were to be detained because they were suspected of being in possession of marijuana. We disapproved that detention.

The facts in the instant case prompted us to re-examine our position in Hendry. We have concluded that a stop should not be found invalid solely because it is based on information received from an anonymous informant. Therefore, we recede from the decision in Hendry. We hold that the stop in the case before us was proper.

Pinellas County sheriff’s deputies McClarren and Beymer were informed by their dispatcher via car radio that an anonymous phone call from an unknown female had been received, advising that a man named Robert Hetland was on his way to Cherry’s Bar to shoot someone. The anonymous caller described Hetland as a white male, six feet tall, with dirty shoulder-length blonde hair, full beard and mustache, wearing a tank shirt, denim pants and a blue denim jacket. He was said to be carrying a silver revolver with a black handle.

The deputies proceeded at once to Cherry’s Bar and entered. There was no commotion; all was quiet. Appellee was the only person sitting at the bar and there was nothing in his manner or actions which was suspicious. His appearance, however, was identical to the description which had been given by the anonymous informant.

Deputy McClarren approached appellee and asked him his name. He responded that his name was Robert Hetland. Deputy McClarren then asked appellee to stand up. As appellee proceeded to do so, Deputy McClarren saw the butt of a gun protruding from appellee’s waistband just above the belt buckle. McClarren then asked ap-pellee to place his hands on the bar, which he did. Thereupon, McClarren reached under appellee’s shirt and removed a nickel plated revolver with five live rounds, wrapped in a brown paper towel. Appellee was promptly placed under arrest for carrying a concealed firearm.

Appellee moved to suppress the revolver as evidence against him on the ground that it was obtained from him by an unlawful search and seizure, in violation of the Florida Stop and Frisk Law and in contravention of appellee’s constitutional rights. Understandably, in view of our decision in Hendry, the trial judge granted the motion to suppress. The state appealed, urging that this court follow the recent decision of the Third District Court of Appeal in State v. Francois, 355 So.2d 127 (Fla.3d DCA 1978).

In Francois, an unidentified individual told a police officer that a man inside a nearby bar was threatening to kill someone. The officer entered the bar, where the defendant was pointed out to him as the person making the threat. The officer asked the defendant to step outside the bar and then requested identification. During the questioning, the officer noticed a bulge on the defendant’s leg. The officer reached down and removed a revolver. He then arrested the defendant for carrying a concealed firearm. The trial court suppressed the revolver as evidence on the ground that the search and seizure were unreasonable. The Third District Court of Appeal reversed. We agree with that decision insofar as the propriety of the stop is concerned.

In the instant case, the state put to us the question: “In a situation like this, what is a policeman supposed to do? He has information that a violent crime may take place which will result in serious injury or death. A response less than a stop and frisk would be no response at all. Must he ignore the information given?” Struck by that question, we determined to re-examine the issue. Our initial thought was that the decision in Hendry should simply not be extended to a situation in which the anonymous tip concerns the possession of a firearm. It seemed to us that a stop and frisk in such a situation, though based on an anonymous tip, might be justified by the danger posed by persons carrying concealed firearms. Our research was undertaken to determine whether there is authority supporting such a conclusion. We have found authority for the proposition that an anonymous tip can provide the basis for a valid stop not only where the criminal activity involved is dangerous to public safety, but also in other situations where the criminal activity is less threatening, such as in the case of a posses-sory offense.

“Stop and frisk” are words of art which first acquired meaning nonjudicially in the development of law enforcement procedures. In law enforcement parlance, a “stop” meant a temporary investigative detention of an individual short of arrest. A “frisk” meant the pat-down of an individual’s outer clothing to determine whether he was carrying a weapon, a procedure not amounting to a complete search. As a matter of constitutional law, the validity of the initial stop is crucial in determining whether evidence seized as a result of the stop is admissible in a subsequent prosecution of the person stopped. Such evidence may be obtained as the result of a frisk following the.stop, or as the result of the officer’s-observation upon making the stop, as in the instant case. Either circumstance may provide probable cause for an arrest followed by a search, or a search followed by arrest. Evidence may be seized as a result of such an ensuing search. Again, the admissibility of that evidence depends on the validity of the initial stop.

In 1967 the Court of Appeals of New York approved a stop and the seizure of a gun under circumstances very similar to those in the ease now before us, based upon a New York “stop and frisk” law which that court had previously found constitutional. People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 229 N.E.2d 581 (1967). An appeal in that case to the United States Supreme Court was dismissed because the notice of appeal was not timely filed. Taggart v. People, 392 U.S. 667, 88 S.Ct. 2317, 20 L.Ed.2d 1360 (1968).

In another case in 1968, however, the United States Supreme Court had occasion to consider and sanction the “stop and frisk” concept. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court ruled in Terry that, without a warrant and without probable cause to arrest or search, a law enforcement officer may nevertheless, under proper circumstances, forcefully restrain an individual’s freedom to leave (a stop) and may conduct a protective search for weapons (a frisk). The Court held that a stop and frisk is not per se an unreasonable search and seizure forbidden by the Fourth Amendment to the United States Constitution. The basic Terry principle is that a stop is permissible if based on a reasonable suspicion that criminal activity is afoot, and a frisk of the person stopped is permissible if the officer has reason to believe that the person stopped is armed and dangerous. Thus, under Terry, a frisk following a stop is not automatically permissible. The validity of a stop and the validity of a frisk are assessed separately, but a frisk can never be upheld if the initial stop was improper.

We pause to note that there was not actually a frisk of appellee Hetland in this case, although we feel confident that Deputy McClarren intended to conduct a frisk; it so happened, however, that he observed the gun in appellee’s waistband rather than discovering it in the course of a frisk. Our focus in this ease is on the question whether the stop was valid and we believe it was. For future application of our holding here, we feel it appropriate to observe that for the same reason the stop was valid, a frisk would have been justified.

Our conclusion in this case was reached after a careful study of the development in the courts of the principle expressed by the Supreme Court in Terry. Therefore, a summary of the subsequent history of Terry will explain the basis for our decision. We have also, of course, considered the effect of Florida law.

Following the decision in Terry, one writer raised the question whether an anonymous tip could be the basis for a valid stop and frisk. Referring to and approving the decision in People v. Taggart, supra, he suggested that action on the basis of anonymous information should be allowed only in cases involving the risk of serious personal injury or grave irreparable property damage and should not be undertaken for the enforcement of sumptuary laws, such as gambling, and laws of limited public consequence, such as narcotics violations. Under that reasoning, the reasonableness of a stop would be measured at least in part by the nature of the criminal activity involved. But as developed by the United States Supreme Court and other courts, the validity of a stop has not been measured in terms of the nature of the criminal activity involved, but rather on the information and circumstances known to the law enforcement officer.

The Terry case involved the personal observation by a law enforcement officer of conduct indicating that a crime of violence (armed robbery) was about to be committed. An early question, then, was whether a constitutionally valid stop was limited to situations in which a police officer personally observes suspicious conduct and the suspected criminal activity is threatening to public safety.

In its later decision in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Supreme Court made it clear that the Terry principle was not to be so restricted. In Adams, the court upheld the validity of a stop prompted by a tip from a known informant alleging that a man in a nearby parked car possessed narcotics and carried a gun at his waist. The Court expressly stated that the circumstances justifying a valid stop need not be based on an officer’s personal observation. On the contrary, it held that the information received by the officer carried enough indicia of reliability to justify the stop.

In 1969, after the decision in Terry, but before the decision in Adams, the Florida legislature enacted the Florida Stop and Frisk Law. That law sets forth circumstances under which a law enforcement officer of this state may temporarily detain a person and, additionally, make a limited search of a person so detained for the purpose of disclosing the presence of a weapon. The wording of the law clearly implies that the circumstances giving rise to a stop must be personally observed by the officer. We disapproved the stop in Hendry because there were no suspicious circumstances observable to the officers in that case; their only information was that given by the anonymous informant.

Therefore, it is necessary to determine what standard is to be used to measure the validity of a stop in Florida. Is it to be the standard of constitutionality under the Fourth Amendment to the United States Constitution, as expressed in Terry and its progeny, or is it to be the standard as set forth in the Florida Stop and Frisk Law? Before answering that question, we should at least consider whether a higher or different standard is imposed by the prohibition against unreasonable searches and seizures in the Florida Constitution.

The prohibition against unreasonable searches and seizures in the Florida Constitution has appeared in all our constitutions in basically the same language. In an early case our supreme court noted that the provision has the same meaning and uses almost identically the same language as the Fourth Amendment to the Federal Constitution. Thurman v. State, 116 Fla. 426, 156 So. 484 (1934). In assessing the validity under the Florida Constitution of the search and seizure involved in that case, the court referred to decisions of the United States Supreme Court construing the Fourth Amendment. At that time, it had not yet been held that the Fourth Amendment applies to the states under the Fourteenth Amendment. In Houston v. State, 113 So.2d 582 (Fla. 1st DCA 1959) it was observed that rulings of United States courts on reasonable searches were generally accepted as authority for similar rulings in Florida under the Florida Constitution. We have no difficulty in concluding that the search and seizure provision of the Florida Constitution imposes no higher standard than that of the Fourth Amendment to the United States Constitution.

We now hold that the Florida Stop and Frisk Law was not intended to, and does not, impose any higher standard than that of the Fourth Amendment. This being so, it is of little consequence whether a particular stop is within the parameters set forth in the Florida Stop and Frisk Law. Assuming that it were, the question would remain whether the stop was constitutional. And if it were not within the parameters of the statute, the stop would nevertheless be valid if constitutionally permissible. Just as a stop authorized by a state law may be unreasonable under the Fourth Amendment, so may a stop not expressly authorized by state law be justified as a constitutionally reasonable one. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

Our inquiry, then, has been directed solely to the question whether the stop involved in the instant case meets the requirements of the Fourth Amendment to the United States Constitution as expressed in Terry v. Ohio, supra, Adams v. Williams, supra, and cases following those decisions.

In its opinion in Adams, the Supreme Court noted that the informant was known personally to the officer and had provided him with information in the past. The Court remarked that “[t]his is a stronger case than obtains in the case of an anonymous telephone tip.” The last quoted sentence has caused particular difficulty to courts considering the validity of a stop based on an anonymous tip. Indeed, it was apparently influential in the decision reached by this court in Hendry.

But prior to the decision in Adams, there had been significant developments in lower federal courts in situations involving stops based on anonymous tips. In Ballou v. Commonwealth, 403 F.2d 982 (1st Cir. 1968), an unidentified informant called police headquarters and advised that certain named individuals were at a cafe and that they all had guns. One of the named individuals had been imprisoned on a gun carrying charge and another one was known to carry a gun. Police officers located the cafe, found the named individuals there, stopped them, and conducted a limited frisk for weapons. One of the individuals was found to be carrying a concealed revolver and was prosecuted for that offense. The state trial court denied his motion to suppress the revolver as evidence and that denial was affirmed on appeal. Commonwealth v. Ballou, 350 Mass. 751, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967). In a habe-as corpus proceeding, the United States Court of Appeals held that the stop and frisk was proper, basing its reasoning on the holding in Terry. Again, the United States Supreme Court denied certiorari. Ballou v. Commonwealth, 394 U.S. 909, 89 S.Ct. 1024, 22 L.Ed.2d 222 (1969).

A few months later the United States Court of Appeals for the Eighth Circuit upheld a stop and frisk based on an anonymous tip. United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970). In that case the United States postal inspectors received a telephone call from a person who gave a name but was unknown to them and never located. This person informed the inspectors that a named individual was attempting to sell postal money orders in a particular bar. He was described as 5'7" to 5'9" in height, weighing 150 to 160 pounds, with a fresh scar on his forehead. Acting on the basis of that information, the inspectors proceeded to the named bar, and were told by the bartender that a person meeting the description given was in the men’s washroom and that the bartender thought the man had a gun. The inspectors then ordered the suspect to come out of the washroom and raise his hands. When he did so he revealed a revolver, which was taken from him. He was then placed against the wall and searched. As a result of that search, the inspectors seized a quantity of postal money orders. The individual was then tried and convicted on the charge of receiving, concealing, and retaining stolen money orders. He filed a motion to suppress the use of the money orders as evidence on the ground that they were seized in violation of his rights under the Fourth Amendment. That motion was overruled and, on appeal, the Court of Appeals affirmed.

In its opinion in Adams, decided two years following United States v. Unverzagt, the United States Supreme Court cited the decision in that case with approval. It is this little noted aspect of the opinion in Adams which first caused us to reconsider the result reached in Hendry.

Our research reveals that, since Adams, five more United States Courts of Appeals have had occasion to consider the propriety of investigatory police action based on information received from an anonymous source. In each case the action of the law enforcement officers was approved. United States v. Preston, 468 F.2d 1007 (6th Cir. 1972) (guns); United States v. Hernandez, 486 F.2d 614 (7th Cir. 1973), cert. denied, 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974) (unlawful transportation of aliens); United States v. Legato, 480 F.2d 408 (5th Cir. 1973), cert. denied, 414 U.S. 979, 94 S.Ct. 295, 38 L.Ed.2d 223 (1973) (bomb at an airport); United States v. Cage, 494 F.2d 740 (10th Cir. 1973) (gun); United States v. Gorin, 564 F.2d 159 (4th Cir. 1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978) (gun). But cf. United States v. Robinson, 536 F.2d 1298 (9th Cir. 1976) (stop based on police dispatch invalid where source of dispatch unknown).

As best we can determine, since the decision in Adams, the appellate court of the District of Columbia and appellate courts in eleven states other than Florida have considered the validity of stops based on information from anonymous sources. In ten cases, such stops were found to be valid. (These include decisions in New York and Massachusetts in accord with their earlier opinions in cases we have previously mentioned). United States v. Walker, 294 A.2d 376 (D.C.1972), cert. denied, 414 U.S. 1007, 94 S.Ct. 368, 38 L.Ed.2d 245 (1973) (gun); People v. Jeffries, 39 Mich.App. 506, 197 N.W.2d 903 (1972) (gun); State v. Chatmon, 9 Wash.App. 741, 515 P.2d 530 (1973) (drugs); State v. Hobson, 95 Idaho 920, 523 P.2d 523 (1974) (drugs); Commonwealth v. Anderson, 366 Mass. 394, 318 N.E.2d 834 (1974) (gun and drugs); People v. Lopez, 52 Cal.App.3d 263, 123 Cal.Rptr. 855 (1974) (drugs); People v. McElroy, 44 Ill.App.3d 1047, 3 Ill.Dec. 495, 358 N.E.2d 1180 (1976) (gun); State in the Interest of H. B., 75 N.J. 243, 381 A.2d 759 (1977) (gun); People v. Kinlock, 43 N.Y.2d 832, 402 N.Y.S.2d 573, 373 N.E.2d 372 (1977) (gun); People v. Tooks, 403 Mich. 568, 271 N.W.2d 503 (1978) (gun).

Two state courts have disapproved stops based on anonymous tips. Jackson v. State, 157 Ind.App. 662, 301 N.E.2d 370 (1973); Commonwealth v. Anderson, Pa., 392 A.2d 1298 (1978). We note that in both cases the information given was vague. Indeed, the Pennsylvania court seemed to reach its conclusion because of the general nature of the description, which it noted could fit any number of individuals.

Two state decisions have disapproved stops based on information received from a police dispatcher, the source of which could not be traced. State v. Benson, 198 Neb. 14, 251 N.W.2d 659 (1977), cert. denied, 434 U.S. 833, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977); Price v. State, 37 Md.App. 248, 376 A.2d 1158 (1977). We note that the Fourth District Court of Appeal has recently so held, citing our decision in Hendry. St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978).

We are impressed by the number of jurisdictions, both state and federal, which have approved stops based on information received from anonymous sources. We consider such decisions persuasive in view of the fact that the United States Supreme Court has not addressed the issue since the decision in Adams. On the contrary, the Court declined to review several of the cases which we have cited.

Most significantly of all, however, is the fact that Adams cited with approval a case upholding a stop based on information from an anonymous telephone tip, where the criminal activity involved was not violent in nature. Although the tipster in that case gave a name, he was unknown and never located.

We, therefore, hold that an anonymous tip can provide the basis for a valid stop. We specifically do not hold, however, that a stop based on an anonymous tip is valid in all cases. In Adams v. Williams, the Supreme Court found that the information given by the known informant in that case carried enough indicia of reliability to justify the stop. Our holding here is that such indicia of reliability can attach to an anonymous tip. Therefore, the fact alone that information is received from an anonymous source does not in and of itself invalidate a stop based on that information.

What are the indicia of reliability which can be found in an anonymous tip? We believe that one such indicium is the specificity of the information given, as in the instant case. Such detail carries a strong indication that the information is based on the personal observation of the informant. Moreover, the information is corroborated when officers act promptly and find an individual in the named location who exactly fits the description, as in this case.

We find that the anonymous tip concerning appellee Hetland justified the action taken by Deputies McClarren and Beymer. Therefore, we hold that the stop of appellee Hetland in this case was valid. Accordingly, when Deputy McClarren observed the butt of a gun protruding from appellee’s-waistband, his seizure of that gun was valid. We reverse the order of the trial court granting appellee’s motion to suppress.

Some further remarks are appropriate. In its Adams opinion, the Supreme Court observed that “[¡Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation.” In our view, a vague description simply would not justify a law enforcement officer in stopping every individual who, or every vehicle which, might possibly meet that description. In Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976) this court disapproved a stop based on information describing only a red Volkswagen carrying two white males who were selling drugs, where a car meeting that description was stopped a considerable distance from the scene of the alleged drug sale. We believe that result was correct. Similarly, the United States Court of Appeals for the Fifth Circuit recently found an anonymous tip insufficient to support a stop where the few facts provided did not reasonably suggest personal knowledge on the part of the informant and thus did not justify the belief that the informant was “relying on something more substantial than a casual rumor.” United States v. McLeroy, 584 F.2d 746 (5th Cir. 1978).

As a matter of caution, we make two further points. First, the anonymous tip’s vulnerability to attack, and resulting litigation, emphasizes the need for law enforcement personnel to record the identity of an informant whenever possible. Information given on the street, of course, may require such quick action that no time is available for recording the informant’s name and address, but whenever practicable under the circumstances, that information should be obtained and noted. This will enable the officer to later locate and identify the person who gave the information and thereby go far to remove from subsequent prosecutions the troublesome factor of anonymity. United States v. Frye, 271 A.2d 788 (D.C.1970).

Second, a verbatim record of the information given is the best way to support the position that a tip bore indicia of reliability despite the anonymity of the informer. Our opinion in this case shows the importance of the details given. Only an officer on the street whose need for immediate action leaves no time for making notes is justified in relying solely on his memory to report what his informant said. A contemporaneous record of every tip relayed by telephone should be standard procedure in every law enforcement office.

We mention these matters not to diminish the impact of our decision in this case, but to suggest procedures which will lighten the burden of troubling questions for both law enforcement personnel and the courts.

Reversed and remanded for further proceedings not inconsistent with this opinion.

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

      . § 901.151, Fla.Stat. (1977).

      . It seems to us that unless the bulge obviously indicated that it was caused by the presence of a weapon (which may have been the case), the officer should have first conducted a pat-down. The opinion makes it unclear whether he did so.

      . Evidence obtained by a search and seizure in violation of the Fourth Amendment is inadmissible in state courts under the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . LaFave, “Street Encounters” and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich.L.Rev. 40 (1968).

      . Id at 78.

      . § 901.151, Fla.Stat. (1977). The statute, which has not been amended since its enactment, reads as follows:
      901.151 Stop and Frisk Law.—
      (1) This section may be known and cited as the “Florida stop and frisk law.”
      (2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
      (3) No person shall be temporarily detained under the provisions of subsection (2) longer than is reasonably necessary to effect the purposes of that subsection. Such temporary detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof.
      (4) If at any time after the onset of the temporary detention authorized by subsection (2), probable cause for arrest of person shall appear, the person shall be arrested. If, after an inquiry into the circumstances which prompted the temporary detention, no probable cause for the arrest of the person shall appear, he shall be released.
      (5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.
      (6) No evidence seized by a law enforcement officer in any search under this section shall be admissible against any person in any court of this state or political subdivision thereof unless the search which disclosed its existence was authorized by and conducted in compliance with the provisions of subsections (2)-(5).

      . Art. I, § 12, Fla.Const. provides:
      Searches and seizures. — The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

      . The Fourth Amendment reads as follows:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . Mapp v. Ohio, supra, note 3.

      . The statute apparently was intended to do no more than announce the Terry decision as the law in Florida. An explanation of the statute prepared by the Florida Legislative Service Bureau pointed out that authority for an investigative stop and frisk already existed under case law:
      Senate Bill 125, Chapter 69-73, reiterates the circumstances under which a law enforcement officer may reasonably temporarily detain a person suspected of breaking the law or about to break the law as enunciated in the case of Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and is given the short title “Florida Stop and Frisk Law.” While this statute does nothing more than set forth the circumstances under which a reasonable stopping, detaining and searching of a suspect may be carried out by a law enforcement officer as they now exist under case law, it will serve as a guideline to better inform lawmen how to successfully start a preliminary investigation into a crime that is being committed or is about to be committed. This act is effective October 1, 1969. Florida Legislative Service Bureau, 1969 Digest of General Legislation (July 1969).

      . 407 U.S. at 146, 92 S.Ct. at 1923, 32 L.Ed.2d at 617.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas James SCHERER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1625.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1979.
    Jack 0. Johnson, Public Defender, and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged with violating three conditions of his probation: (1) he failed to file one of the required monthly reports; (2) he was convicted of a crime committed after he was placed on probation; and (3) he had failed to pay any money toward the costs of his supervision. Appellant admitted the first two charged violations, but denied the third, explaining that he had not paid any money because he had no job. Appellant was indigent at the time of the revocation hearing. No other evidence concerning appellant’s financial condition was before the trial court. This evidence is insufficient to support a finding that appellant violated his probation by failing to pay his supervision fee. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979). Nevertheless, appellant’s revocation is supported by his admissions of the other two charged violations, which are substantial violations and are sufficient to support the revocation order and judgment and sentence, so we will not remand for reconsideration of the revocation order by the trial judge. Coxon v. State, supra.

In addition, the judgment and sentence of the court, while indicating that appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1977). Smith v. State, 310 So.2d 770 (Fla.2d DGA 1975).

Accordingly, the finding of a violation of the condition requiring payment of a monthly fee for supervision is stricken from the probation order, and the cause is remanded for correction of the sentence. Appellant need not be present for this purpose. The revocation order, judgment, and sentence are affirmed in all other respects.

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


author: McCORD, Chief Judge.

text:
    David SYKES, Appellant, v. STATE of Florida, Appellee.
    No. DD-470.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1979.
    Rehearing Denied March 12, 1979.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

This is an appeal from convictions and sentences of appellant for three offenses which will be described below. We affirm.

Appellant was tried by jury and found guilty of conspiring with Jeffery Whitehead, James Franklin Smith a/k/a “J. B.”, David Ross and Jane Doe a/k/a “Vickie” in the period beginning on September 17,1975, and continuing to October 2,1975, to unlawfully sell cocaine (Case No. 76-801 below). Following judgment of guilt, he pled guilty to conspiring with Stanley Scott, beginning on September 17, 1975 and continuing to September 27, 1975, to unlawfully sell cannabis (Case No. 76-799 below). He further pled guilty at that time to the first count of an information charging that he did conspire with Carlton Hamilton, a/k/a “Carl,” beginning on the 6th day of October, 1975, and continuing to the 8th day of October, 1975, to unlawfully sell cocaine (Case No. 76-805 below). He was sentenced to five years in the state prison in Case No. 76-799; to five years in the state prison in Case No. 76-805 to run consecutively with the sentence pronounced in Case No. 76-799; and to five years in the state prison in Case No. 76-801 to run concurrently with the sentence in Case No. 76-805.

Among other points raised on appeal, appellant contends that the state failed to establish a sufficient factual predicate for his guilty pleas in Case Nos. 76-799 and 76-805. These guilty pleas were entered by appellant following his conviction after jury trial in Case No. 76-801, the evidence against him having been obtained and presented primarily through wiretaps. Although the state, in relating on the record a factual basis for the guilty pleas, recited only the allegations of the charges in the informations, appellant has not shown that he was prejudiced thereby. Furthermore, the trial court fully advised appellant of his constitutional rights and by its questions ascertained that the pleas were completely voluntary. The statement of the factual bases of the pleas was supplemented by statements of appellant’s privately retained trial counsel, who is known by this Court to be a lawyer of many years’ experience in the defense of criminal cases. Appellant’s trial counsel stated on the record as follows:

“Your Honor, this is the case that was set before Your Honor for trial today.
I have had an opportunity to discuss with my client and one or two members of his family the case, this case, and other cases pending against Mr. Sykes.
I have advised Mr. Sykes that he has a right to go to a jury trial on each of these cases, as he did last week.
I have also advised him that he has a right to confront his accusers and a right to remain silent as we did last week.
Your Honor, I have advised him that if convicted on each of the counts, or any of the counts for which he is charged, I have advised Mr. Sykes that he could be sentenced to a term of five years on each count for which the conviction was brought and had.
I have attempted to advise Mr. Sykes of any possible defenses that we might have and might present to the jury in connection with these charges.
He has had the benefit of listening to the tapes last week and to the tapes to be played in this case. I have at my own expense, or out of my retainer, purchased tapes and I have heard the tapes in the other cases and I have advised him that the tapes are similar to those which he has heard.
I have further advised him that in my opinion that the same officers who testified last week and who identified his voice would be able to do so again, and that the witnesses who appeared against him, with particularity Officer McClain, who was qualified by the Court as an expert in the use of street language, would be called by the State as a witness to each of the conversations.
I have advised him that in my opinion that if we try all these cases that the Court would be in position by reason of convictions thereon to sentence him to no less than — to a term of no less than 50 years, and that on one of the cases there is a 13 count information, and that if convicted on each of those he could be sentenced to a term of 65 years on that case alone.
I have attempted to give Mr. Sykes a broad understanding of the nature of these other charges and the defenses to them, and I have advised him what he was giving up, and I have advised him of certain plea negotiations that I have had with the State through the Assistant State Attorney, Mr. DuBray.
Your Honor, at this time based upon the plea negotiations with the State, which I would like to outline, Mr. Sykes has instructed me to enter a plea of guilty to this charge, that is, 76-799, guilty as charged.
I am also instructed by him to enter a plea in Case Number 76-805 as to count one, to withdraw the plea of not guilty previously entered, as I meant to do in Case Number 76-700, and enter a plea of guilty to that first count.
Your Honor, it’s my understanding that the State will abandon all other charges in this cause against Mr. Sykes and that the State will recommend to the Court that if the Court is inclined to sentence Mr. Sykes to a full term of five years on each of the counts upon which he would be convicted,’that their recommendation would be that five years of that 15 run concurrent with another five, making a total amount of time of 10 years.”

The trial court accepted the plea bargain and sentenced appellant pursuant to it, and the state nol prossed numerous other charges pending against appellant. When we consider the fact that appellant and his counsel, of course, heard all of the evidence in the case which went to jury trial and were fully acquainted with the evidence to be presented on the two charges to which appellant pled guilty, it is apparent that appellant, in pleading guilty to the three offenses, recognized that each charged a separate conspiracy. This is further borne out by the fact that each charged a conspiracy with a different individual. Also, although two of the offenses were conspiracies to sell cocaine, one was a conspiracy to sell a different substance — cannabis. We find no reversible error.

We have considered the other points raised by appellant and find them to be without merit. See Mitchell and Ryder v. State (Fla. 1 DCA 1979), Case Nos. JJ-54 and JJ-55, opinion filed January 16, 1979; Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); Slater v. State, 356 So.2d 69 (Fla. 1 DCA 1978); Clark v. State, 363 So.2d 331 (Fla.1978).

AFFIRMED.

BOYER and SMITH, JJ., concur.


text:
    Gregory George GRANT, Appellant, v. STATE of Florida, Appellee.
    No. KK-395.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1979.
    William R. Slaughter, II of Slaughter & Slaughter, Live Oak, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant seeks review of his judgment and sentence for resisting arrest with violence. The stipulated record reveals that appellant’s violent activities occurred well after he had been arrested (for a no-longer existent crime) and peacefully placed in the back seat of a patrol car. Whatever other offenses he. may have been guilty of subsequently, we cannot on the record presented find that appellant was guilty of resisting arrest with violence. See English v. State, 293 So.2d 105 (Fla. 1st DCA 1974).

REVERSED.

MILLS, Acting C. J., SMITH, J. and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.


text:
    George FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. KK-75.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1979.

      Michael J. Minerva, Public Defender, Kathleen F. Dekker, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from a revocation of probation. Appellant argues that the revocation was based on conduct not charged in the affidavit of violation of probation.

It is important that even a criminal be assured that the justice system works fairly and impartially. The State should make every effort to assure that it does. Here, the activities which the Court forbade were initiated by the State and, regardless of how commendable the motive and results might have been, the State should not have engaged in those activities under the circumstances. It appears these forbidden activities influenced the Court in the revocation of appellant’s probation.

Under the totality of the circumstances in this case, probation was improperly revoked. Accordingly, we reverse the revocation and order that appellant be reinstated to probation.

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


text:
    Lymon O’STEEN, Appellant, v. STATE of Florida, Appellee.
    No. II-498.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1979.

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

O’Steen was adjudged to be a mentally disordered sex offender pursuant to Chapter 917, Florida Statutes (1975), on December 7, 1976. The committing court was notified by the clinical director of the North Florida Evaluation and Treatment Center that O’Steen had undergone complete evaluation and treatment and that, as reported in the clinical summary, he had reached full benefits and was ready for return to the court’s jurisdiction. At the hearing on January 20, 1978, the court relied upon the letter and the clinical summary as concluding that' treatment had been exhausted. However, the clinical summary recommended that O’Steen be transferred to South Florida State Hospital and be placed in a particular program which would be more suitable for treating O’Steen. Therefore, we find this case is controlled by Washington v. State, 355 So.2d 464 (Fla. 1st DCA 1978) wherein this court stated:

The testimony at the hearing clearly revealed that treatment which might be beneficial to the appellant was available within the Department of Health and Rehabilitative Services, although such treatment would require the transfer of the appellant to another facility. Thus the testimony showed that the department had not exhausted all treatment for the appellant, and therefore the appellant did not meet the statutory criteria for discharge. Under these circumstances, the court was required to recommit the appellant pursuant to Section 917.20, Florida Statutes.

Therefore, the sentence imposed by the trial court is vacated and the cause is remanded for further proceedings consistent with this opinion.

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


text:
    Rodney D. TUCKER, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, Division of Employment Security and Alachua County Commissioners, Respondents.
    No. KK-322.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1979.

      W. Douglas Campbell, of Douglass, Powell & Davey, Tallahassee, for petitioner.
    Peter Skoro, Asst. County Atty., for respondents, Alachua County Commissioners.
   PER CURIAM.

This is a petition for certiorari to the Industrial Relations Commission following the entry of its order affirming a denial of unemployment compensation benefits.

Tucker was an ambulance driver for Emergency Medical Services of Alachua County. His supervisor had heard that Tucker might have a heart problem and put Tucker on two weeks leave with pay on June 3, 1977, with directions that Tucker get a medical examination and report the results by the 17th. The supervisor verbally directed Tucker to report back to him on June 13th; On June 3d Tucker contacted his physician to try to schedule an appointment before June 17th, but was told that the doctor would be going on vacation and that the earliest date for an appointment would be June 21st. Tucker requested that the doctor send a letter to his employer explaining this situation and was told that a letter would be sent. Tucker stated that he thought that the letter from the doctor would cover the situation and that he did not go to see his employer on June 13th; however, the letter was never received by the employer.

On June 16th Tucker went to the office to pick up a pay check and met with his employer, explaining the problem with the doctor’s appointment. He was told that no letter had been received, that the supervisor needed a letter, and that he would be suspended without pay pending the physical examination and the report. Tucker called the doctor that day and asked for a letter and was assured one would be sent, but no letter was ever received. Before Tucker’s appointment with the doctor for the 21st, his daughter became critically ill and was in the hospital for over a week. Tucker was at the hospital with his daughter and called to reschedule the doctor’s appointment, but never called to inform his employer.

The supervisor testified that he tried repeatedly to contact Tucker, but had no success until June 24th when Tucker was located at the hospital. Tucker called his employer that date and explained the situation. Tucker got the physical examination on June 27th and went to see his employer that date, whereupon he was informed that he was terminated. The doctor prepared a letter on that date, but it was not received by Tucker or his employer until a later date. A letter from the doctor subsequently verified all of Tucker’s attempts to schedule appointments and to secure letters from the doctor’s office.

The claims adjudicator found no willful or intentional disobedience and the employer appealed that decision. The appeals referee determined that Tucker was disqualified from receiving benefits on the grounds that his actions were “a substantial disregard of his employer’s interests and a substantial disregard of his duties and responsibilities to the employer.” The Industrial Relations Commission reviewed the decision of the appeals referee, found that his decision was in accord with the essential requirements of law, and affirmed it.

On petition for certiorari to review the denial of unemployment compensation benefits, the standard for review is whether the findings are supported by substantial competent evidence. Hammett v. Florida Department of Commerce, 352 So.2d 948 (Fla. 2d DCA 1977).

Benefits may be denied for work-related misconduct. For purposes of unemployment compensation misconduct is defined as follows:

“ ‘Misconduct’ * * * is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of 'behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inad-vertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.” Fredericks v. Florida Department of Commerce, IRC, 323 So.2d 286, 288 (Fla. 2d DCA 1975).

In Fredericks, a hotel cook had called work and told another hotel employee that he was ready to return to work, but that the employee did not deliver the message and the employer understood the cook was still sick and unavailable. The Second District Court of Appeal reversed the denial of benefits holding that it was not misconduct to vest good faith reliance on a third party. In the instant case, Tucker relied on his doctor and his staff to send the letters they agreed to send. Such behavior does not amount to misconduct.

Another decision of the Industrial Relations Commission was reversed by this court in Williams v. State, Department of Commerce, 260 So.2d 233 (Fla. 1st DCA 1972) where a painter who relied on a weather report predicting that it would rain all week left town on the assumption that he would not need to report to work that week. As it happened, it did not rain on Friday; and when he was not at work, he was fired. We stated that such conduct might be bad judgmént but that it was not intentional conduct of a nature to disqualify him from benefits. Similarly, though it might have been bad judgment for Tucker to fail to personally keep his supervisor informed of the circumstances, it was r.ot misconduct as defined in Fredericks.

In addition, Williams v. Florida Industrial Commission, 135 So.2d 435 (Fla. 3d DCA 1961), held that the existence of a family emergency would excuse the failure to report to work for purposes of unemployment compensation. Thus, Tucker’s failure to call the employer when his daughter was in the hospital in critical condition should not result in his disqualification from benefits.

Finally, there was no substantial disregard of the employer’s interests because it is evident from the record that the supervisor ordered Tucker to have the physical examination before returning to work and replacement personnel were available. Hammett, supra.

For the reasons stated, we hold that the decision of the Industrial Relations Commission affirming the decision of the appeals referee is not based on substantial competent evidence. Accordingly, the decision is quashed and the cause is remanded with directions to enter an order allowing unemployment compensation benefits.

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


author: ERVIN, Acting Chief Judge.

text:
    L. S. HARTZOG, Appellant, v. James E. DIXON and Evelyn F. Dixon, his wife, and Bache, Halsey, Stuart, Inc., Appellees.
    No. JJ-169.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1979.
    James E. Miller, Jere D. McWinn, Raymond E. Makowski, Jacksonville, for appellant.

      Raymond E. Watson, of Webb, Swain & Watson, Charles P. Pillans, III, of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for appellees.
   ERVIN, Acting Chief Judge.

Hartzog appeals the entry of partial summary judgment which held the Dixons had the right to possession of 100 shares of stock free from any interest of Hartzog.

A summary of the pertinent pleadings and affidavits reveals the following: The Dixons filed an action in conversion seeking damages against Bache, a registered stockbroker, alleging that Bache, acting as the Dixons’ agent, purchased on their behalf 100 shares of Wendy’s International, Inc., and that after the Dixons had paid for the stock, they were informed in October or November, 1976, that Bache had wrongfully delivered the stock to some other person. Bache answered, stating that at the time the Dixons made demand upon it for delivery of the 100 shares, it informed the Dix-ons that the stock had been delivered to James E. Miller, attorney on behalf of Hartzog, pursuant to an agreement between the Dixons and Hartzog which sought to reach a settlement of a dispute between them regarding an entitlement to the stock. It alleged also that the Dixons, through their conduct, ratified the delivery of the stock to Hartzog’s agent. In the same pleading, Bache sought to interplead the interests of Hartzog and Dixon to the stock by alleging that Hartzog loaned to Dixon the money to purchase the stock, with the intent that the anticipated profits from the sale of the stock would be a bonus to James E. Dixon, an employee in Hart-zog’s business.

The court never ruled upon the propriety of the interpleader action. Hartzog admitted the allegations stated in Bache’s interpleader counterclaim and filed also a cross-claim against Dixon on a promissory note dated November 15,1976, which, Hart-zog alleged, Dixon never repaid. The Dix-ons responded by filing motions to dismiss Hartzog’s cross-claim and for summary judgment. The latter motion was supported by an affidavit of James Dixon which stated that “no written agreement” of any kind ever existed giving anyone an interest in the stock, including Hartzog and his representatives. The attorney for Hart-zog filed an opposing affidavit alleging that Hartzog claimed an interest in the stock resulting from a loan of $5,000 to James Dixon in order to enable him to purchase the stock. Attached to the affidavit was a copy of a check made payable to James Dixon, dated June 23, 1976, in the amount of $5,000 from Hartzog as evidence of the loan. Also attached was a customer confirmation slip with the trade date of June 23, 1976, representing that the Dixons had purchased 100 shares of Wendy’s International, Inc. in the total sum of $4,980.40. The court on January 16, 1978, entered two orders: (1) granting Dixon’s motion to dismiss the cross-claim of Hartzog without prejudice to Hartzog to file an amended cross-claim, and (2) granting partial summary final judgment holding that the Dixons had the right to possess the stock free from any interest of either Bache or Hartzog.

We conclude that the pleadings and affidavits on file raise a genuine issue of material fact as to Hartzog’s entitlement to the stock, thus precluding summary judgment in the Dixons’ favor. The primary issue is whether Hartzog established a security interest in the stock. A security interest is broadly defined as “an interest in personal property . . . which secures payment or performance of an obligation. . The term also includes any interest of a buyer of accounts, chattel paper, or contract rights which is subject to Chapter 679.” Section 671.201(37), Fla.Stat. (1975). The three requisites to the existence of a security interest are (1) an agreement, (2) the giving of value and (3) the debtor’s rights in the collateral. See Uniform Commercial Code comment to § 679.204. Genuine issues of material fact remain unresolved as to the question whether the three requisites were established. Prima facie, it appears there can be little question as to the Dixons’ rights to the stock or that Hart-zog gave value for it. The only remaining question is whether there existed an agreement between the parties entitling Hartzog to an interest in it.

Bache’s answer stated that at the time the Dixons requested return of the stock, it understood there was an “agreement” between the Dixons and Hartzog in an attempt to facilitate a “settlement between them regarding an entitlement to the stock. . ” “ ‘Agreement’ means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance . .” Section 671.201(3). Moreover § 671.206(2) specifically provides that the Code’s Statute of Frauds does not apply to the enforceability of security agreements as set forth under § 679.203. Section 679.203 permits enforcement of a security interest if (1) the collateral is in the possession of the secured party, or (2) the debtor has signed a security agreement containing a description of the collateral. As to the alternative requirement of the agreement’s reduction to writing, the U.C.C. comment to § 679.203 states:

One purpose of the formal requisites stated in subsection (l)(b) is evidentiary. The requirement of written record minimizes the possibility of future dispute as to the terms of a security agreement and as to what property stands as collateral for the obligation secured. Where the collateral is in the possession of the secured party, the evidentiary need for a written record is much less than where the collateral is in the debtor’s possession; customarily, of course, as a matter of business practice the written record will be kept, but in this Article as at common law, the writing is not a formal requisite. Subsection (l)(a), therefore, dispenses with the written agreement — and thus with signature and description — if the collateral is in the secured party’s possession.

The above statutes and comments clearly obviate any necessity that the parties’ agreement be reduced to writing. Thus, the fact that a promissory note was executed by Dixon in November, 1976, following the purchase of the stock in June, 1976, is not relevant to the question whether Hartzog had a creditor’s interest in the stock.

Furthermore, proof of possession in the putative secured party’s agent, Hart-zog’s attorney, is proof of possession in the secured party for purposes of § 679.-203(l)(a). Compare § 679.305 and comments thereunder. Additionally, the pleadings show that Hartzog’s return of the stock to Bache was only for the purpose of determining by interpleader the respective rights of the parties in the stock. Finally, the stock was not returned to Dixon, but was placed in the registry of the court awaiting determination by the court of which party was entitled to its possession.

Aside from any provision of the U.C.C., a genuine issue of material fact exists as to the allegations contained in Bache’s answer whether the Dixons, by their actions, had ratified Bache’s delivery to Hartzog’s agent. A customer may ratify a stockbroker’s failure to obey instructions provided he has, or is chargeable with, knowledge of the material facts at the time of his acts or conduct relied upon as ratification. 12 Am.Jur.2d, Brokers, § 155 (1964). And, according to some authorities, the customer is deemed to have ratified the broker’s unauthorized act unless, within a proper time, he repudiates it. Id.

The partial summary judgment is reversed and remanded for further proceedings consistent herewith.

MASON, ERNEST E., Associate Judge, concurs.

MELVIN, J., dissents without opinion.

      . Normally the court determines first whether interpleader is appropriate before ruling on other matters. If interpleader is considered proper, the plaintiff is dismissed from the proceeding and the remaining parties should litigate among themselves the matter in dispute. 18A Fla.Jur., Interpleader, § 17 (1958).

      . Observe that § 671.103 provides that unless there is a specific contrary provision of the U.C.C., general principles of law and equity “shall supplement its provisions.” To the same effect, see also Lewis State Bank v. Advance Mortg. Corp., 362 So.2d 406, 410 (Fla. 1st DCA 1978).


author: SCHWARTZ, Judge.

text:
    Ostene FRANCOIS, Appellant, v. Dorothy HARRIS and Patrick Harris, Appellees.
    No. 78-779.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Anthony Capodilupo, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Joan S. Buckley, Miami, for appellees.
    Before BARKDULL, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Immediately after the plaintiff had testified as the first witness on his own behalf, the trial judge dismissed his personal injury action with prejudice on the ground that the case involved a scheme to perpetrate a fraud on the defendants’ insurance company and on the court. We reverse.

The plaintiff was involved in an automobile accident, for which the defendants admitted liability, on Friday, July 30, 1976. According to his testimony at the abbreviated trial on damages only, he felt pain in his knee and back immediately after the accident. Although he told the investigating officer about the pain, he did not then go for treatment. Instead, he caught a ride home with a random passer-by who happened to give him the card of an attorney “if” he wanted to hire a lawyer. At home over the weekend the pain in his knee and back increased and his neck began to hurt and swell. On Monday, he contacted the lawyer whose card he had been given, was advised to secure medical care, and did so. He spent four days in the hospital. After-wards, he was treated on numerous occasions by a chiropractor, until he was discharged in December, 1976, because he wgs “feeling fine.” In the interim, he had sustained several hundred dollars in lost earnings and incurred hospital and medical bills, which were introduced into evidence,. of more than $1,000.00.

At the trial in February, 1978, he stated that the medical treatment had been successful, and that he had no complaints in the injured areas and had had none since his discharge from the chiropractor. On cross-examination, however, he admitted that on November 30,1977, he had sworn to and signed without reading, answers to interrogatories as prepared by his lawyer which stated that, at that time, he was still suffering from recurrent backaches which interfered with his work. Attached to the answers was a final report of the chiropractor dated December 28, 1976, which assigned a 5% permanent partial disability based upon the presence of “bilateral residual muscle spasm” in the plaintiffs cervical spine.

While we indeed understand and sympathize with the concerns of the trial judge, we hold that this record does not support his action in denying, in effect, the plaintiff his right to have a jury pass upon the merits of his claim. As we said in Young v. Curgil, 358 So.2d 58, 59 (Fla. 3d DCA 1978):

“The law is clear that a trial court has the inherent authority to dismiss actions based on fraud and collusion as well as to strike sham pleadings. Such a power is indispensible to the proper administration of justice because no litigant has a right to trifle with the courts. It is a power, however, which should be cautiously and sparingly exercised and only upon the most blatant showing of fraud, pretense, collusion or other similar wrongdoing . ” [emphasis supplied]

As in Young, the record may well give rise to an inference of fraud or collusion. But since the facts in Young, if anything, more strongly supported the conclusion that the plaintiff’s injuries were feigned than do those involved in this case, it is therefore all the more clear that, as stated at 358 So.2d 60:

“. . . The facts herein do not rise to the level of fraud or collusion as to require the court to dismiss the plaintiffs’ claims as an outrageous misuse of the system of justice.”

The defendants rely heavily upon Horjales v. Loeb, 291 So.2d 92 (Fla. 3d DCA 1974). That ease is not controlling. There, the plaintiff had admittedly changed prior sworn testimony specifically to permit him to recover against an insured defendant. In this case, the only “change” in testimony from the answers to interrogatories was a frank admission that the plaintiff had recovered, which acted to the benefit of the defendants. While the practice of signing answers to interrogatories under oath without reading them is scarcely to be approved, that action does not warrant the outright forfeiture of the plaintiff’s right to recover. See Parham v. Kohler, 134 So.2d 274 (Fla. 3d DCA 1961).

In all but the most extreme cases, our system entrusts juries with the ultimate decisions as to whether claimed injuries are genuine or not. Our experience has demonstrated that juries deserve this trust and that they are well able to discern the truth and to render judgment accordingly. At the time that the court acted, there was no basis for declining to permit the jury to pass upon the issues in this case as well. The final judgment below is therefore reversed and the cause remanded for trial.

Reversed and remanded.

      . The action was filed under the no-fault law. proof of a permanent injury or $1,000.00 in reasonable medical expenses was therefore required for recovery.

      . The answers also reflected a smaller claim for lost earnings than the amount to which he testified at trial.

      . The trial judge in this case did not have the benefit of the Young decision, which was rendered after the trial below.

      . The apparent use of a “runner” by the plaintiffs initial lawyer, and the preparation of answers to interrogatories by an attorney’s office without consultation with the party executing them are likewise to be condemned. Improprieties of counsel (or of physicians), however, should not act to deprive the party of his right to damages which he himself has sustained.

      . This decision is not to be read as interfering in any way with the court’s rulings, at appropriate stages of the proceedings, on motions for directed verdict or for new trial.


text:
    Seymour PAUL, Petitioner, v. Mary PAUL, Respondent.
    No. 78-1178.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Robert Bakerman and Ira B. Price, Miami, for petitioner.
    Michael H. Weisser, North Miami Beach, for respondent.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Petitioner seeks our writ of common law certiorari to review an order of the circuit court, entered in a dissolution of marriage proceeding requiring the petitioner to submit to a mental and physical examination.

The sole question presented for our consideration is whether the record reflects that the two essential prerequisites have been satisfied regarding compulsory mental and physical examination.

Pursuant to Florida Rule of Civil Procedure 1.360(a) and the case law authority interpreting same, the mental condition of the party against whom the order is sought must be “in controversy,” i. e., directly involved in some material element of the cause of action or defense and that “good cause” be shown, i. e., that the mental state of the party, even though in controversy, could not adequately be evidenced without assistance of expert medical testimony. Gasparino v. Murphy, 352 So.2d 933 (Fla.2d DCA 1977).

Petitioner/husband instituted the action seeking dissolution of marriage, partition of the parties’ residence, and the establishment of a special equity in the wife’s separate property; wife timely served an answer and counterclaim, containing admissions and denials and seeking dissolution and establishment of a special equity in the husband’s separate property. Thereafter wife filed affirmative defenses to husband’s special equity claim, and the husband filed his answer, affirmative defenses to wife’s counterclaim, as well as a motion to require the wife to submit to a physical examination. Wife subsequently filed a motion to require the husband to submit to a physical and mental examination. After hearing on the motions, the trial court granted both motions for examinations of the respective parties. Wife has not sought review of the order with regard to her physical examination, but husband has and the order compelling him to submit to a physical and mental examination is the subject of this common-law writ of certiorari.

The wife’s unverified and unsupported motion to require petitioner to submit to a physical and mental examination recites as grounds for the examinations: “. that on information and belief the petitioner is a person of unstable neurological background, is incompetent and mentally deranged . . . it is essential in the prosecution of this case that the petitioner’s mental powers be adjudicated. That it is necessary to appoint an impartial physician or physicians to examine the petitioner and render an opinion as to petitioner’s state of mind.” The issue of the physical and/or mental condition of the husband had not been raised in any prior pleadings in the cause and, clearly, the wife’s motion did not adequately fulfill the required showing that the husband’s mental or physical condition was “in controversy” and that there was “good cause” for the examinations. See Gasparino v. Murphy, supra; Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed. 152 (1964), and Gordon v. Davis, 267 So.2d 874 (Fla.3d DCA 1972), which, in discussing Federal Rule of Civil Procedure 25, from which Florida Rule of Civil Procedure 1.360 is derived, sets forth the guidelines for compulsory mental and physical examinations.

Since the wife as the moving party has failed to make an affirmative showing that the husband’s mental or physical condition was in controversy and that there was good cause for the examinations requested, the petition for certiorari is granted and the order of the circuit court be and is hereby quashed.

It is so ordered.

      . Although not the subject of review, the record reflects that the wife’s physical condition was, in fact, raised early in the cause as the basis for wife’s claims for support; that is, her “frail health.”


text:
    Manuel QUINONES, Petitioner, v. FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, and Paul S. Guglietta and Mary Primeuara, Respondents. Paul S. GUGLIETTA and Mary Primeuara Guglietta, his wife, Petitioners, v. FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY and Manuel Quinones, Respondents.
    Nos. 78-1734, 78-1962.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.

      Sally Weintraub, Miami, for Guglietta.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for Quinones.
    Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for Farm Bureau.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

We are presented with two petitions for writs of certiorari which, in essence, allege that the trial court has failed to follow this court’s directive in Indiana Insurance Company v. Collins, 359 So.2d 916 (Fla.3d DCA 1978). The situation here is identical in all essential respects to that in Collins.

Petitioner Quinones sued Florida Farm Bureau for uninsured motorist benefits, a suit for such benefits being required by his contract with the insurer. Florida Farm Bureau filed a third party complaint claiming entitlement to subrogation against Paul S. Guglietta and Mary Primeuara Guglietta, his wife, as the tortfeasors in the collision out of which Quinones is claiming uninsured motorist coverage. Quinones moved to strike the third party complaint for failure to state a cause of action and the Gugliettas moved for dismissal of the third party complaint. The trial court entered orders denying each of these motions.

It is clear from the Collins case and cases cited therein that the insurer does not, at this stage of the proceedings, have a cause of action against the Gugliettas. Thereupon, the writ of certiorari is granted and the orders denying the motions to dismiss and to strike for failure to state a cause of action are quashed. Pursuant to the procedure set forth in Collins, the trial court is required to dismiss the third party complaint without prejudice to renew the same at a subsequent stage in this proceeding if it shall appear at that time that the insurer has settled, or been held liable, on the plaintiff’s claim.

It is so ordered.


text:
    SOUTHERN SHIPPING COMPANY, Constantine G. Nomikos, Mrs. C. G. Nomikos and Thomas K. Skordas, Appellants, v. FLAGSHIP FIRST NATIONAL BANK OF MIAMI BEACH, a National Banking Association, Appellee.
    No. 78-856.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.

      Richard F. Ralph and Leonard Lubart, Miami, for appellants.
    Therrel, Baisden, Stanton, Stillman, Brown & Wood and Allen R. Roman, Miami Beach, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The defendants appeal a summary final judgment for the plaintiff Bank in an action on a promissory note and the guarantees thereon. The defendants urge that a genuine issue of material fact exists precluding summary judgment, or that the defendants were entitled to a judgment forfeiting interest charges as a matter of law upon the issue of usury. Defendants did not appear at the hearing on the motion for summary judgment and offered no affidavits in opposition thereto. On this appeal, it is urged that the answers of the plaintiff to certain interrogatories propounded by the defendants and the subsequent amendment of the complaint constituted an admission that the note was usurious on its face with regard to the individual guarantors.

Our review of the record in the light of the briefs and oral argument shows that for the note to be usurious with regard to the guarantors, it is necessary that it be read in an unnatural and unusual manner, and inasmuch as the defendants failed to come forward with any particularization of their defense of usury, we hold that the trial court correctly granted summary final judgment for the plaintiff on the usury issue. See Garris v. Robeison, 146 So.2d 388, 389 (Fla.2d DCA 1962).

A second problem arises from the fact that at the summary judgment hearing, the trial judge entered a judgment for attorney’s fees and assessed costs according to affidavits submitted to him at that time, the affidavits having been served on the defendants only on the day of the hearing. The effect of this procedure was to deprive the defendants of an opportunity to object to the entitlement to attorney’s fees or to the amount thereof, or to present evidence and argument in contravention of the items claimed as costs. See Fla.R.Civ.P. 1.090(d).

Accordingly, the summary final judgment is affirmed, except that the portions thereof referring to attorney’s fees and costs is stricken therefrom and upon remand a separate order may be entered on costs and attorney’s fees.

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


text:
    Beatrice PUENTE, etc., et al., Appellants, v. Anna Amparo ARROYO, etc., et al., Appellees.
    Nos. 78-451, 78-459.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, P. J. Carroll & Associates, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appel-lees.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The issue in this case is whether a child visiting and staying with a relative for a short period during her summer vacation is a “resident” of the relative’s household under the terms of a homeowner’s insurance policy. We hold, as a matter of law, that she is not and therefore affirm the determination of the trial judge who, in entering summary judgment for the insurance company, reached the same conclusion below.

The facts are undisputed. Mr. and Mrs. Cossio owned a home in southwest Dade County. For five or six days before the accident, which occurred on June 15, 1976, Mrs. Cossio’s cousin, nine-year-old Anna Arroyo, and Anna’s grandmother, Mrs. Cos-sio’s aunt, had been visiting the Cossios, sleeping and taking their meals at their home. Anna lived in Puerto Rico and was in Miami for approximately a month’s vacation. After their week’s stay with Mr. and Mrs. Cossio, she and her grandmother stayed for successive periods in the homes of two other Miami relatives and then returned to Puerto Rico. On the day in question, Anna’s bicycle collided with another ridden by Beatrice Puente.

At the time, Mr. Cossio was the named insured under a homeowner’s policy issued by U.S.F.&G. The policy defined “insured” as the named insured and

“. . . if residents of the named insured’s household, his spouse, the relatives of either, and any other person under the age of 21 in the care of any insured . . . ”

Ms. Puente and her mother sued Anna Arroyo for her injuries. They also alleged that Anna was a “resident” of the Cossio household at the time and that she was therefore insured by U.S.F.&G. for the accident. The trial judge held to the contrary, entered summary judgment for the company that the policy afforded no coverage to Anna Arroyo, and the Puentes appealed.

Our affirmance of that judgment is based upon the conclusion that Anna was conclusively established to have been no more than a visitor or guest, and not a resident, in the Cossio household. In General Guaranty Ins. Co. v. Broxsie, 239 So.2d 595, 597 (Fla. 1st DCA 1970), and Becklin v. Travelers Indemnity Co., 263 So.2d 629, 630 (Fla. 1st DCA 1972), the court pointed out the essential distinction between one who is a “resident” for coverage purposes and one who is not:

“. . . The resident is more than a mere visitor or transient, but lives at a place with additional attachments of such significance as to render that person a more or less consistent part of the community.”

Anna simply does not qualify as a “resident” under this definition. While it is of course true that the term must be “considered in its most inclusive sense,” General Guaranty Ins. Co. v. Broxsie, supra, at 239 So.2d 597, even that sense requires that there be a significant and substantial relationship between the “resident” and the home. Although the precise nature of the attachment may vary, each of the cases which have held one to be a “resident” of a particular household for insurance purposes has involved just such a relationship. State Farm Mutual Automobile Ins. Co. v. Holland, 296 So.2d 100 (Fla. 1st DCA 1974) (family home of married son); Becklin v. Travelers Indemnity Co., supra, (same); General Guaranty Ins. Co. v. Broxsie, supra, (15-year home of out-of-state student); Simpson v. Motorists’ Mutual Ins. Co., 494 F.2d 850 (7th Cir. 1973) (only, although short-term, home of Navy enlistee); Crossett v. St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 269 So.2d 869 (1972) (family home of college student); American Universal Insurance Co. v. Thompson, 62 Wash.2d 595, 384 P.2d 367 (1963) (family home of Army member); Fonvielle v. South Carolina Ins. Co., 245 S.E.2d 736 (N.C.App.1978) (family home); State Farm Mutual Ins. Co. v. Elkins, 52 Cal.App.3d 534, 125 Cal.Rptr. 139 (1975); (family home); Travelers Ins. Co. v. Mixon, 118 Ga.App. 31, 162 S.E.2d 830 (1968) (family home of college student).

When, on the other hand, and as in this case, no significant connection exists between the person and the household in question, no coverage is afforded. See Hamilton v. State Farm Mutual Automobile Ins. Co., 364 So.2d 215 (La.App.1978); Indemnity Ins. Co. of North America v. Sanders, 169 Old. 378, 36 P.2d 271 (1934). In Stadelmann v. Glen Falls Ins. Co., 5 Mich. App. 536, 147 N.W.2d 460 (1967), the court, interpreting identical policy language, held, as a matter of law and reversing a finding below to the contrary, that a sister from West Germany visiting her brother for a six-to-eight week period was not a “resident” of his household. The court stated at 147 N.W.2d 463:

. . In the case at hand, the facts being undisputed, the question of whether plaintiff was a resident of her brothers household was and is one of law. Gersten v. Western Assurance Co. (1933), 265 Mich. 122, 251 N.W. 310. We rule that the term ‘resident of household’ is not ambiguous, and as applied to the facts of this case, does not include a relative who is a part of another household and a resident of a foreign country. Relatives such as plaintiff are temporary guests when visiting for definite periods of time, and living in the same dwelling under these circumstances does not qualify her as an insured under the terms of the policy.”

We agree with this holding and find it directly applicable to this case. See also Country Mutual Ins. Co. v. Watson, 1 Ill.App.3d 667, 274 N.E.2d 136 (1971); Great American Ins. Co. v. Marshall, 266 F.Supp. 208 (D.S.C.1967).

Of course, as the appellants argue, this “ambiguous” term of an insurance policy, General Guaranty Ins. Co. v. Broxsie, supra, at 239 So.2d 597; but see Allstate Ins. Co. v. Gordon, 364 So.2d 44, 46 (Fla. 3d DCA 1978), must be given the broadest definition possible to provide coverage. St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla.1973). But while an expansive definition of the perhaps ambiguous term “cat” may include a lion, it cannot include a dog. Anna Arroyo was not a resident of the Cossio household when the accident occurred.

Affirmed.


text:
    NEW YORK LIFE INSURANCE COMPANY, Appellant, v. Roberto NESPEREIRA, Appellee.
    No. 77-1896.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Shutts & Bowen and William J. Gallwey, III, Miami, for appellant.
    Samuel J. Hannon and Howard Mark Furmon, Miami, for appellee.
    Before HENDRY, J., and CHARLES CARROLL (Ret.), and TYSON, Jr., ROBERT W., Associate Judges.
   PER CURIAM.

This appeal concerns the correctness of a final judgment entered in favor of appel-lee/plaintiff on a counterclaim filed by appellant/defendant for the cancellation and rescission of an .insurance policy issued to appellee by appellant.

Stated very briefly, appellant sought to rescind a disability income policy of insurance it had issued to appellee because of “material misrepresentations made by plaintiff which were false and known by plaintiff to be false.” In particular, it was alleged that appellee had failed to inform appellant (by way of responses to questions on the application for insurance) that he had been treated by a certain physician for almost three years prior to his application for coverage. This treating physician testified that appellee had been suffering from “reactive depression and mild hypertension.” He further testified that he had prescribed various diuretics and an antidepressant as medication for appellee. In addition, the record reveals that appellee complained to his physician of heart palpitations, shortness of breath and back pain during this period.

In sum, appellee visited his physician sixteen times within the above three year period preceding his application for insurance. In fact, appellee saw his physician for the seventeenth time just two days following his application for insurance. Neither the sixteen visits nor the prescribed drugs were mentioned by appellee in the application. When appellee sought compensation arising from a work-related back injury, appellant routinely investigated the claim and discovered the aforementioned visits to the physician. The policy was then rescinded and the premiums returned to appellee.

It is uncontradicted that appellee failed to report his visits to the physician in his responses to the questions on the application for insurance and equally failed to mention that he had been taking anti-depression medication. It is also uncontra-dicted that appellant would not have issued the policy had it been aware of appellee’s condition, or, if it would have issued the policy, would have done so at a higher premium.

The trial court, following argument of counsel, ruled for appellee in “. . . not rescinding the contract.” As its findings of fact and conclusion of law, the trial judge stated:

“I do find that the insured, whatever his background was, did make a false representation to the insurance company on his application. However, the false knowledge dealt with a point, to-wit: his obesity, that was easily discernible by the testimony of the doctor put on by the insurance company. They were then under a duty to make further inquiry as to whether they would insure him or not.”

The applicable statute which controls this appeal is Section 627.409(1), Florida Statutes (1977), which provides:

“(1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
“(a) Fraudulent; or
“(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
“(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued it at the same premium rate, or would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.”

Clearly, appellee made false representations to appellant. The trial judge so found and we concur. The trial court, however, limited the finding to a false representation of obesity which was “easily discernible” by the insurer and, as such, placed the insurer under a duty to make further inquiry.

Appellee’s misrepresentation was far more extensive than “obesity.” Appellee failed to truthfully respond to such general questions as whether, in the past five years, appellee had “consulted any physician or practitioner for any reason, including routine or checkup examination.” Further, even if appellee’s obesity was easily discernible, it is our opinion that appellant had the right to rely on appellee’s representation of his weight, and thus, was not under a duty to further inquire. New York Life Insurance Company v. Kay, 251 So.2d 544 (Fla. 3d DCA 1971); 12 Appelman, Insurance and Practice, § 7292; see also State Farm Mutual Automobile Insurance Co. v. Riffe, 325 F.Supp. 190 (S.D.W.Va.1971). In addition, appellee’s obesity was not the basis for appellant’s rescission of the policy. Rather, appellant rescinded the policy of insurance because of appellee’s false representation as to his history of depression.

The law is well settled that if the misrepresentation of the insured were material to the acceptance of the risk by the insurer or, if the insurer in good faith would not have issued the policy under the same terms and premium, then rescission of the policy by the insurer is proper. Travelers Insurance Company v. Zimmerman, 309 So.2d 569 (Fla. 3d DCA 1975); Section 627.409(1), Florida Statutes (1977).

After a careful review of the record, it is our opinion that appellee’s material misrepresentations provided appellant with the grounds to rescind the policy. Accordingly, the judgment appealed from is reversed and the cause remanded with directions to enter judgment in favor of appellant.

Reversed and remanded with directions.

      . The second amended complaint of appell not part of this appeal. was dismissed for lack of prosecution and is

      . Appellee, who was approximately six feet in height, did not appear in court. Appellant’s agent did testify, however, that when appellee applied for the policy, he represented that he weighed one hundred, ninety-four pounds. This figure was approximately thirty pounds less than appellee’s actual weight. The agent further testified that, even though appellee underestimated his weight by some thirty pounds, appellee did not look overweight.


text:
    Donald SCHAEFFER, Appellant, v. Jack A. ATWILL, C.P.A., P.A., Jack A. Atwill and Continental Casualty Company, etc., Appellees.
    No. 78-887.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Shupack & Weisser and Mark R. Stark-man, North Miami Beach, for appellant.
    Knight, Peters, Pickle, Niemoeller & Flynn and Stephen A. Stieglitz, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Investment Corporation of Florida v. Buchman, 208 So.2d 291 (Fla. 3d DCA 1968); and Canaveral Capital Corporation v. Bruce, 214 So.2d 505 (Fla. 3d DCA 1968).


text:
    Barbara M. BESS, Appellant, v. Kenneth B. BESS, Jr., Kathleene C. Pelt and Frank C. Pelt, Appellees.
    No. 78-936.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Quinton, Lummus, Dunwody & Adams, Miami, for appellant.
    Joseph I. Davis, Miami, Hendricks & Hendricks and Robert A. Hendricks, Coral Gables, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Wadlington v. Edwards, 92 So.2d 629 (Fla.1957).


text:
    RHEIN, MAAS UND SEE SCHIFFAHRTSKONTOR GMBH, Appellant, v. INTEGRATED CONTAINER SERVICE, INC., Appellee.
    No. 78-1753.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Smathers & Thompson and James W. Crabtree, Miami, for appellant.
    Reginald M. Hayden, Jr., Law Offices of Reginald M. Hayden, P.A., Miami, for ap-pellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See Electro Engineering Products Co. v. Lewis, 352 So.2d 862 (Fla.1977); Dublin Co. v. Peninsular Supply Co., 309 So.2d 207 (Fla. 4th DCA 1975).


text:
    WESLEY CONSTRUCTION COMPANY, a Florida Corporation, Appellant, v. BISCAYNE CONSTRUCTION, INC., a Florida Corporation, Appellee.
    No. 75-1992.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Edward C. Vining, Jr., Miami, for appellant.
    Goethel & Garcia-Vidal and Richard Karl Goethel, Coral Gables, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965); Higbee v. Dorigo, 66 So.2d 684 (Fla.1953); Biscayne Construction, Inc. v. Wesley Construction Co., 276 So.2d 524 (Fla. 3d DCA 1973); United Bonding Insurance Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971); Coral Plaza Corp. v. Hersman, 220 So.2d 672 (Fla. 3d DCA 1969).


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    WASHINGTON MACK TRUCKS, INC., a Maryland Corporation, Appellant, v. Ruben RODRIGUEZ, Appellee.
    No. 78-766.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Male, Bloom, Bodne, Kuperstein & Eisen-berg and Sheldon Evans, Miami, for appellant.
    Prunty, Ross & Olsen and William Bruce Israel, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: DeVaney v. Rumsch, 228 So.2d 904 (Fla.1969); Harvey Building, Inc. v. Haley, 175 So.2d 780, 782-83 (Fla.1965); Font v. Lazarus Homes Corp., 339 So.2d 258 (Fla. 3d DCA 1976); Sayet v. Interstate Blood Bank, Inc., 245 So.2d 142 (Fla. 3d DCA 1971); Page v. Staley, 226 So.2d 129 (Fla. 4th DCA 1969).


author: DOWNEY, Chief Judge. ANSTEAD, Judge,

text:
    Robert PERCZNSKI, a/k/a Robert Morgan, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-1746, 77-1747.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Robert Perczynski, in pro. per.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Although appellant states seven points for consideration on appeal only one deserves discussion. That point involves the failure of the trial court to grant appellant’s motion for a continuance.

Appellant and Rubin Lopez were arrested in conjunction with the burglary of a dwelling. On April 14, 1977, Appellant moved for a speedy trial and to produce Lopez at appellant’s trial, Lopez then being incarcerated in the State prison system. The motion to produce was granted and dated April 13, 1977; the motion for speedy trial was granted and dated April 14, 1977, and trial was set for April 19, 1977. One day before trial appellant moved orally for a continuance because the State had been unable in the time allowed to obtain the presence of Lopez. The trial judge denied the motion for continuance on the ground that when appellant requested the speedy trial that meant he was unconditionally ready to go to trial as of that time. Appellant argued that in the context of this case it meant he was ready to go to trial if the State produced Lopez.

Appellant may be correct in his analysis of the speedy trial rule as applied to the circumstances of this case. However, rulings upon motions for continuances involve the exercise of the trial court’s discretion and if the court is correct for any reason he should be affirmed. Stated another way, the burden is upon the appellant to demonstrate reversible error, and he has failed to do so.

Appellant’s motion for continuance made the day before trial was made orally. Rule 3.190(a), Florida Rules of Criminal Procedure, requires all pretrial motions to be in writing unless waived by the court. Rule 3.190(g)(4), Florida Rules of Criminal Procedure, requires a motion for continuance to be certified by counsel to have been made in good faith. ' No showing was made even orally that the witness would testify to facts which would assist appellant in his defense and that those facts could not be proven by another witness. Yet it has long been the rule in this jurisdiction that a motion for continuance on the ground of an absent witness must show the subject matter of the expected testimony and that it will not be cumulative. Smith v. State, 59 So.2d 625 (Fla.1952); Andrews v. State, 134 Fla. 450, 184 So. 88 (1938).

Having failed to meet the procedural requirements for a continuance, appellant is not in a position to fault the trial judge for denying his motion therefor. Accordingly, the judgment appealed from is affirmed.

LETTS, J., concurs.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

I believe the trial court erred in denying the appellant’s motion for a continuance. The appellant and Rubin John Lopez were charged with burglary. Lopez pleaded guilty and was sentenced to ten years imprisonment. Appellant claimed Lopez was solely responsible for the burglary and that he, appellant, was along to assist Lopez only because Lopez told him he was picking up a television set from a friend’s apartment. Appellant filed a motion to compel the state to deliver Lopez from prison to court so he could be called as a witness on behalf of appellant. The motion was granted and the state was ordered to produce Lopez at trial. Appellant also filed a motion for speedy trial which was granted the day after the state was ordered to produce Lopez. The court directed that trial commence five days later, on April 19, 1977. The day before trial appellant moved for a continuance on the grounds that the state had informed him that due to transportation problems, Lopez could not be produced from prison in time for trial. This was confirmed by the state. The trial court refused to grant a continuance on the basis that appellant had waived his right to have Lopez appear by moving for a speedy trial thereby representing that he was “absolutely ready” to commence trial. Appellant contended that he had a right to rely on the order granting his motion to produce Lopez in moving for speedy trial. I agree. Appellant, by subsequently moving for continuance, was waiving his right to speedy trial but he did not lose his right to have Lopez produced when his motion for speedy trial was granted after an order had been entered compelling the state to produce Lopez for trial. It is true that appellant’s version of the facts presented in his testimony at trial was contradicted by the state’s proof and rejected by the jury. However, this has no effect on his right to call witnesses in his own behalf, a right which was originally recognized by the court in granting the motion to produce Lopez.


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    ALLSTATE INSURANCE COMPANY, Appellant, v. Jose A. (Tony) PEREIRA, Jr., etc., et al., Appellees.
    No. 77-1932.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Edna L. Caruso and Louisa Smith-Adam of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.

      Edward A. Perse of Horton, Perse & Ginsberg, and P. J. Carrol & Associates, P. A., Miami, for appellees.
   PER CURIAM.

The summary judgment in favor of ap-pellees is reversed on the authority of Dewberry v. Auto-Owners Insurance Company, 363 So. 1077 (Fla.1978).

REVERSED and REMANDED.

CROSS and DAUKSCH, JJ„ and LEF-FLER, KENNETH L., Associate Judge, concur.