author: HOBSON, Judge.

text:
    Jeanne Khoyi NELSON, Supervisor of Elections, Appellant, v. PINELLAS COUNTY, A Political Subdivision of The State of Florida, Appellee.
    No. 76-376.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1977.
    Rehearing Denied March 31, 1977.

      Edmund S. Whitson, Jr., of Whitson & Whitson, Clearwater, for appellant.
    Gerald A. Figurski, Asst. County Atty., Clearwater, for appellee.
   HOBSON, Judge.

Appellant/plaintiff appeals a summary final judgment in favor of the appel-lee/defendant. Plaintiff filed her complaint for declaratory judgment alleging that she was the duly elected and qualified holder of the office of Supervisor of Elections of Pinellas County, Florida, thereby making her a constitutional officer; that she submitted her requested budget for the fiscal year 1975-76 to the defendant board for its approval; that the defendant board unanimously deleted from her requested budget items totaling $77,500 and transferred such sum into the county’s contingency fund.

It was further alleged that these funds were necessary for the essential operations of her office and the performance of her constitutional and statutory duties; that the deletion of these funds from her requested budget by the board was illegal and requested the court to declare the rights and duties of the parties.

The underlying facts as shown by the record concern mainly the necessary funds to maintain a system of automation in the processing of registration data by the use of computers and data processing equipment.

Plaintiff is the official custodian of the books of registration with the exclusive control of matters pertaining to registration of electors. The duties of the supervisor are set forth in Chapter 98, Florida Statutes. Florida Statute 98.131(2) provides:

“The board of county commissioners shall pay any expenses incurred by the supervisor in putting this permanent registration system into operation including extra clerical help or assistants required, provided such expense shall be subject to approval by the board of county commissioners.”

The supervisor’s authority for employing and adopting a system of automation in the processing of registration data is found in Florida Statute 98.391.

It is plaintiff’s contention that her budget request was both necessary and reasonable and therefore the board’s action in deleting her request was illegal in that it was arbitrary and capricious.

The board contends, and the trial court so held, that it was authorized by Chapter 129, Florida Statutes, to take the action it did without a determination as to the necessity and reasonableness of the plaintiff’s request.

The plaintiff had the authority under Florida Statute 98.391 to employ and adopt a system of automation in the processing of registration data. The board had the duty under Florida Statute 98.131(2) to pay for any expenses incurred by the plaintiff in putting in a permanent registration system unless the board found that^ the plaintiff’s use of the automation system was arbitrary or capricious and therefore unreasonable and not necessary. This issue of whether the plaintiffs request was arbitrary or capricious has not been determined by the trial court. The trial court held that the board was authorized under Chapter 129, Florida Statutes, to delete from the plaintiff’s requested budget the monies in dispute whether or not the request was arbitrary or capricious.

Plaintiff’s Point VII as to whether or not she may expend monies available in her gross budget for employment of her attorney was not ruled on by the trial court and, therefore, we do not entertain that question.

REVERSED and REMANDED for further proceedings consistent with this opinion.

BOARDMAN, C. J., and McNULTY, J., concur.

      . § 98.161(3), Fla.Stat.

      . § 98.391, Fla.Stat.:

        “Registration; automation in processing. —For the purpose of providing a supplemental and alternative procedure for the registration of electors and for conducting elections at the precinct level, in those counties of the state where voting machines are used in the conduct of elections, the supervisor of elections and the officials lawfully charged with conducting elections may employ and adopt a system of automation in the processing of registration data, and make use of computers and data processing equipment and records adaptable for efficiency in conducting elections in such counties. The forms to be used in the system herein provided for shall be submitted to the department of state for approval.”

      . Orange County v. Allie, 238 So.2d 662 (Fla. 4th DCA 1970).


source: Caselaw Access Project

author: BOARDMAN, Chief Judge,

license: Public Domain

text:
    Robert MUNFORD, Appellant, v. STATE of Florida, Appellee.
    No. 76-520.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1977.
    Rehearing Denied March 31, 1977.
    Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and Greg A. Johnson, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge,

Appellant, Robert Munford, timely appeals the judgments and sentences entered on conviction of felony possession of marijuana and sale of a controlled substance in violation of Section 893.13, Florida Statutes (1975). Appellant filed a pre-trial motion to compel disclosure of the confidential informant which was denied. Appellant then pled nolo contendere to both offenses specifically reserving the right to appeal. The plea was accepted, and appellant was adjudicated guilty by the trial court. Appellant was sentenced to two concurrent three-year terms of probation upon the condition that he serve one year in the county jail, pay a fine and make restitution of money used for the drug buy.

On appeal appellant alleges that the trial court erred (1) in denying his motion to compel disclosure of the informer and (2) in imposing two separate sentences for the offenses charged which constituted a single transaction.

The motion to compel stated in pertinent part that:

1. Det. Gene E. Persinger of the Bra-denton Police Department was deposed on February 17, 1976. In that depositional statement he testified that the confidential informant used in the instant case not only was physically present at the time of the alleged sale of the marijuana to Det. Pascoe, but also that on several occasions prior to the sale, the same confidential informant had approached the Defendant regarding potential deliveries of controlled substances. Det. Persinger refused to disclose to the defense the name and address of this confidential informant.
3. The accused has no way of knowing or obtaining the name or learning the whereabouts of the confidential informant.
4. It is the position of the defense that the testimony of the informant is necessary and relevant to substantiate the claim of entrapment.

At the hearing on the motion the following colloquy took place.

THE COURT: ....
You have a Motion to Compel?
MR. PLEWS [assistant public defender]: It depends on if the State will concede to the accuracy of my factual allegations.
THE COURT: Let’s hear them.
MR. PLEWS: They are contained in the motion.
THE COURT: Is this yours, Mr. Buckle [assistant state attorney]?
MR. PLEWS: The allegations are roughly stated that the Cl, the informant in this case hasn’t been revealed to us yet, that he was present during the alleged sale, and that he was used by the officers and particularly I believe it was Gene Persinger and the Cl who set the sale up and that is what we expect to prove at the evidentiary hearing, which we have legal argument based on those facts. If the State would concede those facts we will proceed into legal argument.
THE COURT: Mr. Buckle?
MR. BUCKLE: I will concede to the facts, but I will not reveal the name of the CI. . . (Bracketed material supplied; emphasis added).

There were no witnesses called by either party at the hearing, and the court after hearing the arguments of the respective counsel denied the motion.

The Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), established certain criteria to be weighed to determine when disclosure is required.

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

See also Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965).

From the sparse record before us we believe that the facts alleged by appellant in his motion to compel discovery and the arguments presented at the hearing on the motion are sufficient to suggest to the court that nondisclosure of the informant’s identity would have hindered appellant’s preparation of a defense, similar to the circumstances in Gilmore v. United States, 256 F.2d 565 (5th Cir. 1958). It appears from appellant’s motion and Detective Per-singer’s deposition that the informant was more than a mere tipster but was the sole moving force in arranging the buy by the officer. If this were true the informant would be valuable and material to appellant’s defense. Appellant could use the informant’s testimony to establish the defense of entrapment or to corroborate evidence of entrapment appellant may wish to testify to himself. See English v. State, 301 So.2d 813 (Fla.2d DCA 1975).

Nonetheless in attempting to apply the Roviaro test to the case before us we are in the same position as confronted the United States Court of Appeals, Fifth Circuit, in United States v. Fischer, 531 F.2d 783 (5th Cir. 1976), wherein the court said:

[W]e are unable to conclude from this record that the informer’s participation was such that fairness to the defendant would require disclosure and production regardless of any showing the government could make in opposition. We can only guess as to the substance of the testimony which this informer would give. Also, the record is silent about the interests which the government may have in resisting disclosure and production.

The best procedure to insure that appellant’s right to a fair trial is not abrogated while at the same time considering the state’s interest in nondisclosure is to hold an in camera hearing as suggested in Fischer.

Under the circumstances, we feel that an in camera hearing will best accommodate the competing governmental and individual interests in this case. See United States v. Doe, 525 F.2d 878 (5th Cir.1976); United States v. Freund, 525 F.2d 873 (5th Cir.1976). Upon remand, the district judge should question the informer in camera to ascertain whether his testimony might be helpful to the defendants. The informer and government counsel should also be questioned concerning the interests which the government may have in resisting disclosure and production. .

In camera proceedings would not be required in all situations where a defendant seeks discovery of a confidential informer’s identity but only where, as here, an initial showing is made that nondisclosure would hamper his defense.

Appellant’s second point on appeal is not meritorious. Under Section 775.021(4), Florida Statutes (Supp.1976) the two concurrent sentences imposed by the trial court are correct and proper. In view of our decision the judgments and sentences are vacated and set aside, and appellant is to be afforded an opportunity to withdraw his plea of nolo contendere and proceed to trial.

REVERSED and REMANDED for proceedings consistent with this opinion.

GRIMES and OTT, JJ., concur.

      . United States v. Doe, 525 F.2d 878 (5th Cir.1976) held that this procedure is not violative of a defendant’s Sixth Amendment rights.

      . Sec. 775.021(4), Fla.Stat. (Supp.1976) reads:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, [committed] during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
      It became effective on October 1, 1975. Appellant committed the offense charged in this case on November 3, 1975.


author: PER CURIAM.

text:
    TOMORROW’S CHOICE, INC., a Florida Corporation, Appellant, v. BASSING CO., INC., a Florida Corporation, Appellee.
    No. 75-1583.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Joe N. Unger, Miami, Smith, Mandler, Smith, Parker & Werner, Miami Beach, for appellant.
    J. Victor Africano, Live Oak, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

The appellant was the defendant and a counterclaimant in an action by the plaintiff-counterdefendant to foreclose a mechanic’s lien upon defendant’s building. The plaintiff had been the building contractor; the defendant was the owner. The counterclaim was for the allegedly defective and unworkman-like performance of the building contract. The trial resulted in a judgment (1) for the plaintiff contractor in the amount of $10,460.00 upon his claim and (2) for the defendant-counterclaimant owner in the amount of $1,066.00 as a set-off.

On this appeal, the owner contends that the court lacked subject matter jurisdiction because the contractor furnished the contractor’s lien affidavit required by Section 713.06(3)(d)(l), Florida Statutes (1975), four days before filing suit, instead of five days, as required by the statute. See Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla.3d DCA 1975); and Falovitch v. Gunn and Gunn Construction Co., (Fla. 3d DCA 1976) released this date. We need not decide whether the use of the word “jurisdictional” in the cited cases means lack of subject matter jurisdiction, as the appellant contends, because the point was not presented to the trial court by a motion to dismiss. Instead, the owner admitted service of the affidavit “pursuant to the statute” and counterclaimed in the suit. The claim of “lack of jurisdiction” was not presented until plaintiff completed his case. Under these circumstances, we hold that the court had jurisdiction to complete the cause. Cf. Fleming v. Ossinsky, 117 Fla. 348, 158 So. 116 (1934).

The second point presented claims the judgment was against the manifest weight of the evidence. No error appears because the court properly allowed amendment of all pleadings to conform to the evidence and the amount found due on the contract is supported by the evidence.

The third point presented claims error because the trial judge sustained objection to an item of claimed damages on the counterclaim. The basis for the objection was that the damages claimed were special' damages and were not pleaded. Nevertheless, the court later ruled:

“That where any pleading in this case did not conform to the evidence submitted at trial, such pleadings were amended to conform to such evidence and proof so that all claims of both parties could be determined on their merits.”

We hold, therefore, that the court erred in failing to consider and rule upon the evidence as to damages which was objected to and subsequently tendered at the trial.

Affirmed in part, reversed in part and remanded for a new trial on the issue of damages upon the counterclaim.


text:
    GUARANTEE TRUST LIFE INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Carlos FUNDORA, Appellee.
    No. 76-647.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.

      Tripp & Niles and Howard L. Conklin, Fort Lauderdale, for appellant.
    Philip M. Gerson, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

A petition for rehearing having been granted and after argument thereon, the original opinion filed in this cause is withdrawn and the following is substituted therefor.

The defendant, Guarantee Trust Life Insurance Company, appeals a summary final judgment for the insured in an action for medical expenses provided by the policy. Defendant does not claim that the undisputed facts present a genuine issue of material fact.

The decision in this case turns upon whether the trial court correctly held that the five year statute of limitations contained in Section 95.11(2), Florida Statutes (1975), is governing in this case. The defendant insurance company urges that a three year period of limitation contained in its policy is a bar to plaintiff’s action. The following provision of the policy tracks Section 627.616, Florida Statutes (1975):

“10. No action at law or in equity shall be brought to recover on this Policy prior to the expiration of sixty (60) days after proof of loss has been filed in accordance with the requirements of this Policy, nor shall such action be brought at all unless brought within three years from the expiration of the time which proof of loss is required by the Policy.”

The question then is: May this group insurance policy prescribe a period shorter than that allowed by the general limitations statute? Section 95.03, Florida Statutes (1975), provides as follows:

“95.03 Contracts shortening time. Any provision in a contract fixing the period of time within which an action arising out of the contract may be begun at a time less than that provided by the applicable statute of limitations is void.”

Appellant urges, however, that authority for the shorter period of limitation arises from Section 627.616, Florida Statutes (1975), which applies only to disability policies delivered to a person. That statute is as follows:

“627.616 Legal actions. — There shall be a provision as follows:
“ ‘Legal Actions: No action at law or in equity shall be brought to recover on this policy prior to the expiration of 60 days after written proof of loss has been furnished in accordance with the requirements of this policy. No such action shall be brought after the expiration of 3 years after the written proof of loss is required to be furnished.’ ”

Appellant recognizes that this statute alone could not authorize a shorter period than five years. But it claims the right to incorporate the provisions of that section by virtue of Section 627.660(3)(4), Florida Statutes (1975), which is applicable to group disability insurance policies and provides as follows:

“(3) No such policy shall contain any provision relative to notice or proof of loss, or to the time for paying benefits, or to the time within which suit may be brought on the policy, which is less favorable to the individuals insured than would be permitted by the comparable provisions required for individual disability insurance policies.
“(4) The provisions of part VI of chapter 627 shall not apply to blanket disability insurance policies, but no such policy shall contain any provision relative to notice or proof of loss, or to the time for paying benefits, or to the time within which suit may be brought on the policy, which is less favorable to the individuals insured than would be permitted by the comparable provisions required for individual disability insurance policies.”

The insurance company urges that since the provisions of the insurance code applicable to it allow it to write a policy which is not less restrictive than a policy written under Part IV which pertains to individual policies, then it is by implication given the same benefit conferred by Section 627.616, Florida Statutes (1975), upon policies of individual insurance and which allows for a three year statute of limitations. The construction of a statute is aided by the principle that statutes should be construed in pari materia. See Willis v. Morgan, 176 So.2d 73 (Fla.1965); and Lanier v. Bronson, 215 So.2d 776 (Fla. 4th DCA 1968). A corollary of this rule is the principle that statutes should be construed so as not to create a conflict. See State v. Putnam County Development Authority, 249 So.2d 6 (Fla.1971); and Woodley Lane, Inc. v. Nolen, 147 So.2d 569 (Fla. 2d DCA 1962). Further, in construing a statute, the court should endeavor to ascertain from the language of the statute the intention of the legislature. See Lanier v. Bronson, 215 So.2d 776 (Fla. 4th DCA 1968); and Grade v. Deming, 213 So.2d 294 (Fla. 2d DCA 1968). We conclude from the sections quoted that it was the intention of the legislature to allow to group insurance policies the right to include a limitation period less than that provided by the general five year statute but not more restrictive than the period allowed for individual disability insurance policies. Therefore, it is in keeping with the intention of the legislature that group disability policies may provide a three year statute of limitations.

Under the facts of the instant case, the injury occurred on September 4, 1970, and suit was filed on March 5, 1975. The answer of the defendant affirmatively pleads as follows:

“7. That any cause of action that Plaintiff may have had is barred by Plaintiff’s failure to bring an action to recover on the policy within three years and ninety (90) days of the date of the alleged accident as required by the policy.”

We conclude that under the facts of this case the defendant, and not the plaintiff, was entitled to a summary final judgment because the action was not brought within the time limit in the policy. Having found that this judgment must be reversed on the above basis, it is not necessary for us to consider other points presented. The cause is remanded with directions to enter a judgment for the defendant.

Reversed and remanded.


text:
    The STATE of Florida, Petitioner, v. Robert SOBIE, Respondent.
    No. 76-1428.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.

      Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State’s Atty. and John Lipinski, Asst State’s Atty., for petitioner.
    Pollack, Tunkey, Robbins, Roth & Weiner and Robert M. Leen, Miami, for respondent.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This petition for certiorari by the State seeks review of an order of the trial court expunging the record of defendant’s arrest for public drunkenness, unlawful possession of marijuana and unlawful possession of barbiturates, to which he entered a plea of nolo contendere.

It affirmatively appears that the trial court departed from the essential requirements of law in its order dated June 23, 1976, where it found that the defendant was entitled to the statutory right of ex-pungement inasmuch as it affirmatively appears from the record in this case that the defendant, Robert Sobie, had previously been convicted of a violation of a municipal ordinance against public drunkenness. Section 901.33, Florida Statutes, provides that “. . .a person who has never previously been convicted of a criminal offense or municipal ordinance violation may file a motion with the court wherein the charge was brought to expunge the record of arrest from the official records of the arresting authority.”

We conclude that the trial court departed from the essential requirements of law in that it failed to follow the explicit wording of the statute in this case. Therefore, the order of June 22, 1976, and the order of June 23, 1976, each of which purports to expunge the record of defendant Robert Sobie’s arrest upon the charges of (1) public intoxication, (2) possession of marijuana, and (3) possession of barbiturates, are each of them hereby quashed.

It is so ordered.

      . The Supreme Court of Florida in Johnson v. State, 336 So.2d 93 (Fla.1976) has considered the constitutionality of this statute. The Supreme Court dealt with that portion of the statute which required that the records be “expunged.” The court upheld the substantive right of a defendant under the statute, but found that the judicial branch of government, and not the legislative branch, had the power and responsibility to deal with the destruction of records. Therefore, the statute, without the offending provision, still governs the rights of the respondent here.


author: OTT, Judge.

text:
    Harry H. HOLLINGER, Appellant, v. Joan M. HOLLINGER, Appellee.
    No. 76-737.
    District Court of Appeal of Florida, Second District.
    March 2, 1977.
    Rehearing Denied March 30, 1977.

      Robert J. Norton, Punta Gorda, for appellant.
    Allen J. Levin, Port Charlotte, for appel-lee.
   OTT, Judge.

This appeal is from a postjudgment order of the trial court construing and applying a provision of the Settlement Agreement that was incorporated into the earlier final judgment of divorce. The provision related to responsibility of the husband (appellant here) for certain limited medical expenses of the wife (appellee here). In his order the trial judge ordered the appellant to pay the medical expenses of the appellee thus far incurred. In this we agree, although on different grounds. The trial court further ordered the appellant to pay “. . . all of the wife’s future medical bills . until said injuries have been corrected or until such time as she has reached maximum medical improvement for same.” In this we do not agree for the reasons hereinafter given.

The pertinent provision of the Settlement Agreement reads as follows:

5. The husband will pay for the wife’s doctor or dentist bills for the repair of damage to the left side of her jaw and teeth. This obligation will cease if treatment is not now commenced.”

The case was tried below and argued here on the premise that the “damage” referred to is that resulting from a blow the appellant had struck the appellee shortly before the institution of the original dissolution proceeding. The single issue, therefore, is what portion if any of the medical expenses of the appellee incurred since the agreement or indicated in the future related to damage then under treatment.

The parties stipulated to the use of certain medical reports from various doctors and dentists involved in lieu of direct testimony (either by deposition or in person at the hearing). All of the doctors and dentists were either selected by the wife or were specialists to whom her own choices had referred her. We have carefully examined all the evidence in the light most favorable to the appellee.

At the time of the agreement and final judgment of divorce on October 3, 1974, the appellee had only been seen by a Dr. Goggin in the emergency room of the hospital on the night of the altercation and by her family dentist, Dr. Watters. Dr'. Watters, however, had referred her to Dr. Young, an oral surgeon, who saw’the appel-lee about a week after the final judgment. Subsequent to the final judgment of divorce Dr. Young wrote his report to Dr. Watters in which he reported two problems:

1. Diffused nerve paresthesia related to the blow. He felt sensation should return in 6 to 12 months. No specific treatment was recommended for this condition or “damage.”

2. Pain Dysfunction Syndrome and related difficulties produced by emotional strain and occlusal imbalance independent of the blow. This condition would require immediate conservative treatment (moist heat, soft diet, muscle relaxant and tranquilizers) to relieve the muscle spasm and tenderness. Thereafter more extensive dental procedures would be required to correct the basic deficiencies underlying this problem.

Parenthetically we note that Dr. Young did not suggest that either of the two conditions had any connection with or effect upon the other.

Some seven (7) months later the appellee consulted a Dr. Benson, a D. 0. Appellee had not followed through with further dental care because there had been no material improvement in the conditions described by Dr. Young. Apparently Dr. Benson could not or did not specifically diagnose or treat the jaw. He immediately referred the ap-pellee to Watson Clinic in Lakeland, Florida. There she was hospitalized for several days for extensive diagnostic procedures by Dr. Lopez and a dental surgeon, Dr. Brzo-zowski. They found it difficult to assess the cause and extent of the persistent acute difficulties of the appellee and therefore referred the appellee and all of her records to Dr. Greer, a specialist at the J. Hillis Miller Health Center at the University of Florida for a final diagnosis.

Dr. Greer’s detailed report eliminates any neurological or organic condition and suggests that the appellee’s present complaints and difficulties were of psychogenic origin. He concludes: “. . .1 could not at the present time attribute the severe disability . described ... to the trauma she had undergone.”

The trial court directed the appellant to pay the above described medical expenses. We agree. The above evidence supports the conclusion that until the opinion of Dr. Greer it could not be said that the damage under treatment had ever concluded.

The trial court further directed that the appellant pay all future ^medical expenses of the appellee until all of her problems were resolved regardless of cause. There is no evidence even suggesting that the damage inflicted by the appellant requires further medical attention of any kind.

The trial court erroneously based his holding on the requirement that the tort-feasor “take his victim as he finds him.”

Quite clearly this is not a damage action in tort. It involves the provision of the contract or agreement entered into after the tort and for the purpose of delineating the responsibility of appellant in connection therewith. Tort law has no application or bearing.

The appellee’s own evidence fails to bring her continuing or future problems under the limited responsibility of the appellant for the damage his blow inflicted.

We, therefore, affirm that portion of the trial court’s order directing the appellant to pay the unpaid expenses thus far incurred in the amount of $967.73. We also affirm the award of appellee’s attorneys fees against the appellant.

We reverse that portion of the trial court’s order directing the appellant to pay any further or future medical expenses of the appellee.

Remanded for entry of an order consistent with the foregoing.

BOARDMAN, C. J., and McNULTY, J., concur.


author: SCHEB, Judge.

text:
    Delores Faye WARD, Appellant, v. STATE of Florida, Appellee.
    No. 76-875.
    District Court of Appeal of Florida, Second District.
    March 2, 1977.
    Rehearing Denied March 29, 1977.
    F. Shields McManus of McManus & Kennedy, Stuart, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Is it permissible for defense counsel to cross-examine a witness as to a prior perjury conviction even though that conviction may be remote in time? In this case the trial court refused to allow the defense to inquire concerning a perjury conviction of a key prosecution witness. Defendant appeals. We reverse.

Defendant was convicted of larceny and aggravated battery. The only eyewitness to the alleged crimes was the victim, Fritz Surrency. Defense counsel sought to cross-examine Surrency as to a conviction for perjury. When the state objected, defense counsel, outside the presence of the jury, proffered that Surrency had been convicted of perjury. The trial judge sustained the state’s objection on the ground that the defense questioning related to a specific crime. Subsequently, on motion for new trial, the trial court conceded the basis of his ruling was incorrect. Nevertheless, he held that since the victim’s conviction had occurred more than 20 years prior to this trial, it was too remote in time to have any probative value.

Section 90.08, Florida Statutes provides:

No person shall be disqualified to testify as a witness in any court of this state by reason of conviction of any crime, but his testimony shall be received in evidence under the rules, as any other testimony. Evidence of such conviction, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility of the said witness, and such conviction may be proved by questioning the proposed witness or, if he deny it, by producing a record of his conviction. Testimony of the general reputation of said witness may likewise be given in evidence to affect his credibility.

The trial court was correct in its basic premise that the proffered question was not improper even though it related to a specific conviction. The statute specifically sets forth perjury as an exception to the rule that ordinarily the nature of the conviction used to impeach will not be disclosed to the jury. Cf. Fulton v. State, 335 So.2d 280 (Fla.1976).

However, we do not agree with the trial court’s exclusion of the question on the grounds of remoteness. The statute is clear. There are no time restrictions limiting when the perjury conviction can be used for impeachment. We are aware of only one Florida case which holds that impeachment evidence-of a conviction can be excluded on grounds of remoteness. In that ease, Braswell v. State, 306 So.2d 609 (Fla. 1st DCA 1975), the conviction occurred in a summary court martial proceeding which had occurred twenty-four years previously. There, the court, with Judge McCord dissenting, held that the witness had not been convicted of a “crime” within the meaning of Section 90.08, and further that a conviction used to impeach under this section must not be too remote in time. In passing, we note that there is no statutory authority which entitles a service man to be furnished counsel in a summary court martial proceeding. At the present time, service personnel are frequently furnished counsel in summary court martial proceedings; however, in Braswell, the defendant-witness did not have the benefit of counsel.

Even assuming that it might be proper to exclude evidence of a conviction of a crime on the grounds of remoteness, we think perjury falls in a special category. Such a conviction has greater weight against the credibility of a witness than any other crime. Cf. People v. Allocca, 183 App.Div. 571, 170 N.Y.S. 881 (1918).

It is interesting to note that prior to amendment of Section 90.08 by the 1971 Legislature, any person who had been convicted of perjury was barred from testifying as a witness in any court proceeding. In light of this history and the unqualified language of the present version of Section 90.08, we believe the legislature intended to allow perjury to remain in a unique category. The legislature must have determined that a prior perjury conviction particularly affected the credibility of a witness and should be revealed to the jury.

Even though it was error for the trial judge to disallow defense counsel’s questioning, was it harmless? This case was based on circumstantial evidence with the exception of the testimony of Surrency, the only eyewitness to the crimes. It was crucial to the defense to have the right to impeach him with his prior perjury conviction. Regardless of the trial court’s thinking as to the probative value of the evidence, this was a judgment which only the jury was entitled to make.

In light of our ruling on the question discussed, it is unnecessary to review the other points raised on appeal by the defendant.

Accordingly, the judgment of the trial court is reversed and the cause is remanded for a new trial.

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

      . We note that the new Evidence Code, Ch. 76-237, effective July 1, 1977, provides in Section 90.610:
      (1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime involving dishonesty or a false statement, with the following exceptions:
      (a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness. The Sponsors’ Note indicates that the exclusion for remote convictions applies only in civil cases. We also note that while Federal Rule of Evidence 609 provides a general 10-year cutoff date for remoteness, unless the interests of justice require otherwise, one court has suggested that crimes involving false statement or dishonesty can nfever be excluded as remote. U. S. v. Dixon, 547 F.2d 1079 (9th Cir. 1976).


author: McCORD, Judge.

text:
    HARFRED AUTO IMPORTS, INC., a Florida Corporation and Hartford Accident and Indemnity Company, an Insurance Corporation, Appellants, v. Richard YAXLEY, Sr., et al., Appellees.
    No. BB-146.
    District Court of Appeal of Florida, First District.
    March 3, 1977.
    Rehearing Denied March 30, 1977.
    Richard T. Jones of Jones & Langdon, R. Franklin Ritch, of Ritch & Graves, Gaines-ville, for appellants.

      James S. Quincey, Gainesville, William M. Howell and Robert L. Cowles, of Howell, Howell, Liles & Braddock, Jacksonville, Louisa Smith, of Adam, Montgomery, Ly-tal, Reiter, Denney & Searcy, West Palm Beach, for appellees.
   McCORD, Judge.

This is an appeal from a final judgment against appellants (defendants) Harfred Auto Imports, Inc., (hereafter called Harfred) and Hartford Accident and Indemnity Company (hereafter called Hartford) and appellees (defendants) James Paul Crown, individually and as partner d/b/a Crown-Owen Fleet Service (hereafter called Crown-Owen) and Security Insurance Company (hereafter called Security) and in favor of appellees (plaintiffs) Richard Yax-ley, Sr., and Dorothy Yaxley, his wife. Appellants (Harfred and its insurance carrier, Hartford) contend they are not liable for damages to the Yaxleys which resulted from a collision between the Yaxleys’ automobile and an automobile owned by appellant Harfred and driven by a partner of appellee Crown-Owen, because at the time of the accident, Crown-Owen, as an independent contractor, had the automobile in its possession and control to make repairs upon it. We agree and reverse.

Harfred is an automobile dealer in new and used cars. The car involved in this accident was taken by Harfred in trade and was inoperable, it having been towed to its place of business. Crown-Owen serviced automobiles for both automobile dealerships and general businesses. Harfred had the car towed to Crown-Owen’s place of business to get it running so it could be shown on the used car lot. After putting the engine in running condition, Mr. Crown drove the car on the public thoroughfares to road test it and to take his partner, Mr. Owen, to another place of business to repair a vehicle there. While on this joint mission, Crown approached a stop sign and applied the brakes, but they did not hold and the car slid through the stop sign coming to rest in a lane of traffic in which the Yaxleys were traveling. The Yaxley vehicle struck the Harfred vehicle being driven by Crown, and Mrs. Yaxley sustained injuries. The record does not show that either Harfred or Crown-Owen had knowledge of the defective brakes.

Prior to trial, the court entered summary final judgment in favor of appellants Harfred and Hartford, but thereafter entered an order quashing the judgment because it found that the two cases relied upon were not controlling—Patrick v. Faircloth Buick Company, 185 So.2d 522 (Fla. 2 DCA 1966), and Fry v. Robinson Printers, Inc., 155 So.2d 645 (Fla. 2 DCA 1963). These two cases are exceptions to the dangerous instrumentality doctrine, involving accidents on the premises of an alleged independent contractor. The trial court considered that the accident in the case sub judice did not fall within the ambit of the two eases because it occurred on the public highways.

Subsequently, on trial of the case, the court denied appellant’s motions for directed verdict made at the close of the plaintiffs’ case and again at the end of the defendants’ case. Appellants contend that the trial court erred in quashing the summary final judgment previously entered in their favor; in refusing to grant appellants’ motions for directed verdict and in refusing to give appellants’ requested Standard Jury Instruction 3.3(b) regarding an independent contractor. Appellants also contend the trial court erred in dismissing their cross-claim against Crown-Owen, but that point is moot in view of the ruling which we here make. The central determinative question on this appeal is whether or not appellants are liable to the Yaxleys under the dangerous instrumentality doctrine. It is our ruling that they are not.

In Southern Cotton Oil Company v. Anderson, 80 Fla. 441, 86 So. 629 (1920), the Supreme Court originally applied the dangerous instrumentality doctrine to automobiles. There, the doctrine was grounded upon respondeat superior — the master servant relationship. In Southern the negligent driver of the automobile was the employee of the owner. Subsequently, the doctrine has been extended to cover situations which go beyond the master-servant relationship. In Weber v. Porco, 100 So.2d 146 (Fla.1958), the Supreme Court said:

“Consistently we have announced that this rule of liability rests on an application of the principle of respondeat superi- or. In other words, as a matter of law the relationship of principal and agent is raised out of the factual situation. When one permits another to operate his automobile under his license, he becomes as a matter of law the principal and the driver becomes his agent for [that] purpose.”

The Supreme Court of Florida has not ruled on the applicability of the independent contractor exception to the dangerous instrumentality doctrine in the situation here presented.

In Fry, supra, the District Court of Appeal, Second District, ruled that the owner of an automobile was not liable in an action brought against him by a service station employee for injuries sustained as a result of his being struck by an automobile on the premises of the service station while it was operated by another service station employee. There the court said:

“Indeed, we find nothing in the decisions applying the ‘dangerous instrumentality doctrine’ to justify a holding that where an owner leaves his automobile at a service station for repairs or servicing he is liable solely by reason of ownership for the negligent operation thereof by one employee resulting in injury to another employee of the service station, both being engaged in performing duties in connection with servicing or repairing the automobile at the time of the injury.”

In Patrick, supra, the defendant-owner’s wife took his automobile to Faircloth Buick Company for service, and at her request, an employee drove her home and then returned the automobile to Faircloth. Upon returning, the driver-employee of Faircloth drove the car into the Faircloth Building where the plaintiff was struck by the car. The court there ruled that the owner of the automobile was not liable through the dangerous instrumentality doctrine because the company was an independent contractor and the plaintiff was injured on its premises.

In Petitte v. Welch, 167 So.2d 20 (Fla. 3 DCA 1964), the District Court of Appeal, Third District, in a case similar to Fry, supra, held that the owner of an automobile left in the possession of a service station was not liable when it was negligently driven on the premises of the service station by a third person causing injury to the plaintiff. There, the court pointed out that the dangerous instrumentality doctrine has always been grounded on respondeat superior and in that case the car was not being operated by an agent or servant of the owner but was under the direction and control of the filling station operator.

In Jordan v. Kelson, 299 So.2d 109 (Fla. 4 DCA 1974), cert. den. 308 So.2d 537 (Fla.), the District Court of Appeal, Fourth District, considered a case in which a plaintiff was injured by the alleged negligent operation of an automobile on a public highway by an automobile repair shop employee who was delivering the car to the owner at the owner’s request. The court there held that the owner who allows another to operate his vehicle with his knowledge and consent, implied or expressed, is liable for an injury to a third person occurring on a public highway as the result of the operator’s negligence. The court stated that this form of vicarious liability is not based on respondeat superior or an agency concept, but on the practical fact that the owner of a dangerous instrumentality should answer for misuse thereof by anyone operating it with his knowledge and consent.

In Dixie Automobile Insurance Corporation v. Mason, 155 So.2d 172 (Fla. 1 DCA 1963), this court, while not confronted with or ruling upon the specific question here before us, in construing the term “insured” in an automobile owner’s insurance policy, ruled that an automobile sales agency or repair shop was not included therein stating:

“When • the named insured places his automobile in the custody of any person or organization operating an automobile sales agency, repair shop, service station, storage garage or public parking place, the insured has no knowledge as to who will be entrusted with the operation of his automobile while it is in the control of such person or organization.”

In examining authority outside of Florida, we find from an Annotation in 35 A.L.R.2d 804 “Liability of owner of motor vehicle for negligence of garageman or mechanic” (1954), and the later case service for that citation, that the majority rule on this question appears to be as follows: where the owner of an automobile is not guilty of direct negligence, he is not liable to a person injured by the negligence of a garage-man or mechanic with whom the owner has left the car, regardless of whether or not the injured person is an employee of the independent contractor — provided, the car owner exercised no control over the repair or testing of the car. Liability in such cases is denied because the relationship between the owner and the mechanic is that of an independent contractor and bailee, rather than that of master-servant. Therefore, in most jurisdictions, the vicarious liability of the owner of a dangerous instrumentality is defeated by the negligence of a true independent contractor.

We agree with the majority rule. As this court said in Dixie Automobile Insurance Corporation v. Mason, supra, the owner of a vehicle who places his automobile in the custody of a repair shop for repairs has no knowledge of or control over the operation of the vehicle during that time. In the absence of negligence on the part of the owner, an independent contractor should be solely liable for negligent operation of the automobile during the period in which it has custody and control of it. We find no proper basis for a limitation of this ruling to cases in which the accident occurs on the premises of the independent contractor.

Reversed and remanded with directions to vacate the final judgment as to Harfred and Hartford.

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


text:
    DELCON-LONG BAYOU CO., INC., a Florida Corporation, and Allstate Insurance Company, a Foreign Corporation authorized to do business in the State of Florida, Appellants, v. Philip TROW and Irving E. Koltun, d/b/a Clauden Contracting, Appellees.
    No. 76-1034.
    District Court of Appeal of Florida, Second District.
    March 4, 1977.
    Rehearing Denied March 30, 1977.
    Michael L. Hastings of Battaglia, Ross & Stolba, St. Petersburg, for appellants.
    Dennis A. Koltun of Koltun & Tobias, Coral Gables, for appellees.
   PER CURIAM.

We have reviewed the several points raised by both parties, and except as noted below find no reversible error.

Appellees filed a claim of lien against real property owned by Delcon-Long Bayou Co., Inc. Delcon-Long had the lien transferred from the realty to a surety bond pursuant to Section 713.24, Florida Statutes (1975). A judgment for mechanic’s lien was finally entered against Delcon-Long and its surety, Allstate Insurance Company, in the sum of $19,018.40 plus costs of $1,906.14. That portion of the judgment against the surety relating to costs must be reduced to $100 because the bond specified by Section 713.24 is only required to be conditioned upon the satisfaction of the lien and the payment of costs not to exceed $100.

Accordingly, the judgment is affirmed, but the case is remanded with directions to reduce the total of the final judgment entered against Allstate Insurance Company by $1,806.14.

McNULTY, Acting C. J., and GRIMES and SCHEB, JJ., concur.


author: GRIMES, Judge.

text:
    COUNTY OF PASCO, a political subdivision of the State of Florida, Appellant, v. J. DICO, INC., et al., Appellees.
    No. 76-1429.
    District Court of Appeal of Florida, Second District.
    March 4, 1977.
    Rehearing Denied March 31, 1977.
    David W. Rynders, County Atty., Port Richey, for appellant.
    Jack B. McPherson and Norman Johnson Stewart, Jr. of Allgood, McPherson, Stewart & Bray, New Port Richey, for appellees.
   GRIMES, Judge.

Appellant enacted a zoning ordinance pursuant to Chapter 163, Florida Statutes (1975), and adopted zoning maps for property within Pasco County. Appellees own acreage located in Pasco County which was zoned by the ordinance and maps as agricultural/residential.

Appellees filed a multi-count third amended complaint through which they sought to have the zoning ordinance declared void and to have Pasco County enjoined from enforcing it against their property. This is an interlocutory appeal from an order denying a motion to dismiss (strike) count III.

The third count initially realleged the allegations of the first two counts. The appellees then alleged that the zoning was unconstitutional because the zoning maps adopted by the planning commission portrayed certain property differently than had been decided by the planning commission at an earlier date. Appellees based this allegation upon the fact that a 1200 acre parcel of land, not owned by appellees, had had its “zoning altered” in this manner.

Appellant contends that the court erred in denying the motion to dismiss because appellees could not contest the constitutional validity of the zoning ordinance on the ground that other property which was not owned by them was improperly zoned. We agree.

The appellees are simply saying that since a mistake was made in the zoning classification of someone else’s land, their property was probably zoned wrong too. This is not enough to stay in court.

The adoption of a zoning ordinance and zoning maps is a legislative act. City of Miami Beach v. Weiss, 217 So.2d 836 (Fla.1969). The constitutionality of a legislative act may be challenged only by one whose rights are, or will be, adversely affected by it. Acme Moving & Storage Co. of Jacksonville v. Mason, 167 So.2d 555 (Fla.1964); Lykes Bros., Inc. v. Board of Com’rs. of Everglades Dr. Dist., 41 So.2d 898 (Fla.1949); City of Cape Canaveral v. Chesnick, 227 So.2d 502 (Fla. 4th DCA 1969); Hodges v. Buckeye Cellulose Corporation, 174 So.2d 565 (Fla. 1st DCA 1965). We do not believe that the allegations of the third count are sufficient to show the necessary interest required to attack the zoning.

The order denying the motion to dismiss count III is reversed.

BOARDMAN, C. J., and SCHEB, J., concur.

      . The first count alleged that the ordinance was enacted prior to the adoption of a comprehensive plan in violation of Chapter 163. The second count alleged that Pasco County violated certain procedural requirements of the authorizing statute.

      . Count III of the Amended Complaint said in part:
      “That before the preparation of the Final Report by the Northeast Pasco Planning Commission, the members thereof had reached a decision on the Zoning classifications for the various real properties, including the Plaintiffs’ real property, which are located within the Northeast area of Pasco County. That said Zoning Classifications were then ordered by said planning commission to be drawn on the Zoning Maps so that said maps would portray the zoning classifications of said properties. That between the date that said decision was reached by the planning commission and the date when said zoning maps were adopted by the planning commission or the date of February 17, 1976 when said zoning maps were adopted by the Defendant the Zoning Maps were altered or were prepared in a manner that portrayed certain property thereon of a different zoning classification than had been decided by the planning commission at an earlier date.
      “That the Plaintiffs do not know and, therefore, cannot allege how the inconsistency occurred between the decision of the planning commission and the final adoption of the zoning maps; nor do the Plaintiffs know, at this time, if any alterations were made prior to the time of the adoption of said zoning maps, by the planning commission, or whether the alterations werq, made, thereafter, but prior to the final adoption of the zoning maps on February 17, 1976 by the Defendant. That the Plaintiffs do know and allege that there was at least one (1) such alteration which created an inconsistency between the decision of the planning commission and the final Zoning Maps; that this inconsistency involved a parcel of property of approximately 1200 acres, and the Defendant knew of said inconsistency prior to their final adoption of the Zoning Maps for the Northeast area of the County because they were expressly notified thereof by the Chairman of the said planning commission.
      “That due to said inconsistencies the comprehensive plan and the County Zoning District Maps are unconstitutional, void and of no effect.”


text:
    Dorothy J. WILFORK, Appellant, v. ASSOCIATED GROCERS OF FLORIDA, INC., and Travelers Insurance Company, Appellees.
    No. 75-1796.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.

      Mark J. Feldman, Miami, for appellant.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff below, appeals from a final judgment, dated September 22, 1975, which granted appellees’, defendants below, motion for directed verdict and from an order denying appellant’s motion for new trial.

On May 7, 1974, appellant was injured in an intersectional automobile accident when the car which she was driving collided with an automobile driven by one Denise Brown. The accident allegedly occurred as a result of appellee’s negligence in parking its tractor trailer at one of the entrances to the intersection, thereby blocking appellant’s view as to oncoming traffic.

Extensive discovery was taken by appellant and the cause proceeded to trial. After the jury had been selected, the trial judge held a “pretrial” conference with the respective attorneys in his chambers. As per the trial judge’s request, appellant’s counsel thereupon presented what amounted to his opening statement. At the conclusion of said remarks, the court directed a verdict for appellees. Final judgment was thereafter entered pursuant to the directed verdict and a subsequent motion for new trial was denied. This appeal follows.

It is appellant’s contention that the trial judge erred in directing the verdict against her after opening statement, without allowing her to present her case before the jury. We agree.

Though, as a matter of law, it is not prima facie error to direct a verdict in favor of a defendant prior to the completion of the plaintiff’s case, Floyd v. Ott, 221 So.2d 163 (Fla. 2d DCA 1969), we do not believe such practice is proper. This is especially true when the direction of the verdict is based solely upon a plaintiff’s opening statement. Akdoruk v. Advanced Jet Systems, Inc., 296 So.2d 656 (Fla. 3d DCA 1974); see also Southern Wood Industries v. Florida Carolina Lumber Company, 84 So.2d 589 (Fla.1956).

Even assuming the above procedure was proper, after reviewing the quasi-opening statement of appellant’s counsel in conjunction with the deposition of appellant, we cannot say that, viewing the evidence and all inferences reasonably drawn therefrom in the light most favorable to the non-moving party, Levine v. Frank, 311 So.2d 708 (Fla. 3d DCA 1975), a jury could not have reasonably found that, though appellees’ tractor trailer was stationary, said vehicle was nevertheless the proximate cause of the ensuing accident. See McCabe v. Watson, 225 So.2d 346 (Fla. 3d DCA 1969).

In light of the above, and after having considered the record, briefs and arguments of counsel, we conclude that the trial judge erred in directing a verdict in favor of appellees. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is reversed and remanded with directions to grant appellant a trial on the merits.

Reversed and remanded with directions.

      . Prior to trial, appellant took a voluntary dismissal as to Ms. Brown and her insurance carrier.


text:
    DAVID & DASH, INC., a Florida Corporation, Appellant, v. UNIGARD MUTUAL INSURANCE COMPANY, etc., et al., Appellees.
    No. 75-1960.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Horton, Perse & Ginsberg, Joseph B. Merlin, Miami, for appellant.
    Smathers & Thompson and Linwood Anderson, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiff appeals a summary final judgment entered in favor of defendant Uni-gard Insurance Company.

Plaintiff-appellant, David & Dash, Inc., is a wholesaler of fabrics and wall coverings and for several years previous to 1973 obtained its insurance coverage through defendant Titan Agencies, Inc., a Miami insurance agency. Effective October 15, 1973, a casualty insurance policy issued by Unigard Mutual Insurance Company was obtained by Titan through Inram Corporation, a New York insurance broker. The policy covered, inter alia, plaintiff’s personal property against fire losses at three specified Miami locations. In the latter part of October, representatives of Titan met with representatives of plaintiff to confer on the matter of coverage for personal property located at various places other than the three Miami locations specified in the policy. Here deposition testimony is conflicting. Plaintiff’s witnesses claimed that Titan’s representatives told them that there already was coverage for off-premises personal property losses, or that Titan would obtain such coverage to be effective as of the date of the meeting. In his deposition Titan’s representative testified he never made a statement that plaintiff was so covered, but rather that Titan would try to obtain such coverage for which an additional premium would be charged. Titan requested a quotation on the additional coverage from Inram Corporation and effective February 27, 1974 off-premises coverage was obtained by Titan through Inram Corporation. In the meantime, plaintiff suffered the loss of off-premises personal property in two fires — one in Freeport, New York on November 10, 1978; the other at Hallandale, Florida on January 15, 1974. Unigard denied coverage and plaintiff filed several complaints against Unigard and Titan alleging that the property lost in the fires was represented by Titan as being insured under the Unigard policy. Following pretrial discovery, Unigard was granted final summary judgment. Plaintiff appeals and argues that there is a genuine issue of fact as to whether Titan had the apparent authority to bind coverage on behalf of Unigard. We cannot agree.

First, Titan had no actual authority to bind Unigard to the risk. Second, assuming arguendo that Titan at the meeting in October 1973 advised plaintiff that it was immediately covered for off-premises losses, there is no evidence that Titan had the apparent authority to so bind Unigard. Titan did not have in its possession the indicia of authority to bind Unigard, i. e. application forms, literature, letterheads, calling cards, etc. Plaintiff did not sign an application form for the insurance and the record nowhere reflects that Titan held itself out to be an agent of Unigard. See Centennial Insurance Company v. Parnell, 83 So.2d 688 (Fla.1955). Any misunderstanding as to the effective date of off-premises coverage is between plaintiff and Titan. Thus, Unigard would not be involved. See Peddy v. Pacific Employers Insurance Company, 246 F.2d 306 (5th Cir.1957) and Centennial, supra.

Affirmed.


text:
    Harold BERKE and Mary Berke, his wife, Appellants, v. Arthur BERKE and Berke Displays, Inc., Appellees.
    No. 76-101.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.

      Stanley H. Spieler, Miami, for appellants.
    Aronovitz & Weksler, Miami, for appel-lees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Appellants, plaintiffs below, appeal a final judgment rendered in favor of appel-lees, defendants below, pursuant to appel-lees’ motion for directed verdict made at the close of appellants’ presentation of their case.

This case involves the cancellation and rescission of a written lease. As succinctly as possible, the facts, as revealed through appellants’ third amended complaint are as follows: Appellants, Harold and Mary Berke, are husband and wife. Appellee, Arthur Berke, is Harold’s brother and president and principal stockholder of appellee, Berke Displays, Inc. (hereinafter referred to as the corporation).

The complaint alleged that appellee-Ar-thur “secretly and surreptitiously and without the knowledge, approval or consent” of appellants, entered into a lease agreement with the corporation, the provisions of which were concealed from appellants. Appellants further alleged that Arthur, who owned the property leased by the corporation along with appellants, entered into the lease at a rental rate substantially lower than the fair market value of the property for the sole benefit of the corporation and its stockholders, to-wit: Arthur. Said act allegedly constituted an unlawful and unconscionable overreaching and fraud upon appellants warranting recission and cancellation of the lease plus an award of substantial damages for the loss of rents' occasioned by the one-sided lease.

At the close of appellants’ case, pursuant to appellees’ motion, the chancellor determined that appellants had failed to present a prima facie case of fraud warranting the remedy of rescission and/or cancellation and directed a verdict in appellees’ favor. A final judgment was thereupon entered and this appeal follows.

After carefully reviewing the record, briefs and arguments of counsel, we are of the opinion that appellants have failed to present a prima facie case entitling them to the relief prayed for, and thus, the final judgment is affirmed. Tillman v. Baskin, 260 So.2d 509 (Fla.1972); Buchanan Construction, Inc. v. City of Tallahassee, 308 So.2d 613 (Fla. 1st DCA 1975).

Affirmed.

      . The case was tried non-jury and thus the proper motion would have been one for involuntary dismissal, pursuant to Rule 1.420(b), Fla.R.Civ.P. We shall treat it as such. Gibson v. Gibson, 180 So.2d 388 (Fla. 1st DCA 1965).

      . The lease was signed by Arthur Berke on behalf of Berke Realty, a partnership. The chancellor held that a partnership existed between the parties and thus, Arthur’s signature bound appellants to the lease. See Section 620.60, Florida Statutes (1975).


text:
    Charles Richard GLANTZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-175.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.

      S. L. Gaer, Miami, Jack R. Nageley, Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, Charles Richard Glantz, was convicted by jury of buying, receiving or aiding in the concealment of stolen property, knowing the same to be stolen, and was thereafter sentenced by the trial court.

We reverse the conviction and sentence and remand for a new trial because of the prosecutor’s highly prejudicial comments and questioning of witnesses during the trial.

Appellant, a jeweler, at one time had a retail store, but at the time of the alleged incident, he was working as a jeweler from his home. James McGuire, a witness for the State, admitted having stolen the jewelry and taken it to appellant’s home. Acting pursuant to a search warrant, stolen jewelry was recovered from appellant’s home; in addition, jewelry was taken from appellant’s car. Evidence relating to the jewelry taken from the car was suppressed following hearing on motion therefor.

McGuire testified at trial that he did not tell, nor did Glantz ask, whether the jewelry was stolen. Glantz denied knowing that the jewelry was stolen.-

Despite the trial judge’s many admonitions and rebukes to the prosecutor relating to improper questioning and remarks by him, the prosecutor elicited testimony from the appellant relative to the suppressed evidence. Moreover, the prosecutor through his questions repeatedly referred to appellant as a “fence,” suggesting that appellant’s home was just a front for fencing stolen property. The prosecutor also asked two witnesses who were present at the time of the search of appellant’s home whether there had been any conversations regarding cocaine dealings between McGuire and David Olds, one of the defense witnesses. These questions were not relevant to the case.

The prosecutor’s improper remarks and questions could serve no other purpose than to bring to the jury’s attention allegations of felony wrongdoing which were beyond the scope of the issues being tried. These allegations were highly prejudicial to the appellant. While the State urges harmless error, we are of the opinion that the conduct complained of was so prejudicial as to deprive appellant of the right to a fair trial, especially where there is a reasonable doubt in this reviewing court’s mind as to whether this error contributed to appellant’s conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Reversed and remanded.


author: HUBBART, Judge.

text:
    Earl STEFFENS, as Chief of Police, City of Miami Springs, Dade County, Florida, and Honorable William Fann, as Judge of the Municipal Court, City of Miami Springs, Dade County, Florida, Appellants, v. The STATE of Florida ex rel. Elsa Iris LUGO, Appellee.
    No. 76-393.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Weintraub & Weintraub, Miami, for appellants.
    Jerome M. Rosenblum, Leonard Robbins, Hollywood, Robert L. Shevin, Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This case is a petition for a writ of habeas corpus in which the petitioner was discharged from arrest and prosecution under a municipal ordinance. The respondents appeal.

The issue presented for review is whether a municipal ordinance which prohibits female waitresses, entertainers or other employees of a public business to expose themselves above the waist to the extent that the breasts are bare or so thinly covered by mesh, transparent net or lawn skin tight materials which are flesh colored and worn skin tight so as to appear uncovered is unconstitutional as being void for vagueness under the due process clause of the 14th Amendment to the United States Constitution and of Article I, Section 9, of the Florida Constitution (1968). We hold that such an ordinance is unconstitutional as being void for vagueness under the aforesaid federal and state constitutional provisions and affirm.

The petitioner-appellee [Elsa Iris Lugo] was arrested and charged with a violation of Section 16-14.01 of the City of Miami Springs Municipal Code. After having been released on bail, she was detained in the constructive custody of the respondent-appellant Chief of Police of the City of Miami Springs [Earl Steffens]. The petitioner thereafter filed a petition for a writ of habeas corpus in the Dade County Circuit Court against the respondent chief of police contending that her constructive custody was unlawful since it was accomplished under the above municipal ordinance which she alleged was unconstitutional. The learned circuit judge below conducted a full hearing and entered a final order of discharge in favor of the petitioner on the ground that the above municipal ordinance was unconstitutional as being void for vagueness. We entirely agree.

The law is well-settled that a penal statute or ordinance which forbids the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application violates the due process clause of the 14th Amendment to the United States Constitution and Article I, Section 9, of the Florida Constitution (1968). Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla. 1966). It is fundamental that such laws must be sufficiently definite in describing the conduct prohibited in order that the ordinary person may know how to comply with its provisions. McCall v. State ex rel. Daniels, 156 Fla. 437, 23 So.2d 492 (1945).

In view of the scanty female apparel which is now socially acceptable in public particularly on beaches, the description of the type of clothing forbidden by this ordinance is extremely unclear. Moreover, the ordinance does not limit the proscribed acts as to place. A female waitress might very well be in violation of this ordinance if she bared her breasts while taking a shower in her home or in a public shower stall.

The learned circuit judge was eminently correct in declaring this ordinance unconstitutional as being void for vagueness. The final order of discharge in habeas corpus is therefore affirmed.

      . “It shall be unlawful for female waitresses, entertainers, or other employees of any public business to expose themselves above the waist to the extent that the breasts are bare or so thinly covered by mesh, transparent net, lawn skin tight materials which are flesh colored and worn skin tight, so as to appear uncovered.
      It shall also be unlawful for any owner, manager or other employees of such an establishment to permit that described immediately above.
      Any persons, firm or corporation violating any provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be punished by fine not exceeding $500.00 or by a jail sentence not exceeding 60 days or both in the discretion of the Municipal Court. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such.”

      . The petitioner also filed a suggestion for a writ of prohibition against the respondent-appellant Judge of the Miami Springs Municipal Court [William Fann] seeking to prohibit the petitioner’s trial in which she was charged with violating the said municipal ordinance. This suggestion was dismissed as moot when the habeas corpus petition was granted and is not the subject of this appeal.


text:
    Earlie BROWN, Appellant, v. GULF LIFE INSURANCE COMPANY, Appellee.
    No. 76-552.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.

      Vernis & Bowling and Ronald J. Raffony, Coconut Grove, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Manuel A. Cua-drado, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiff, Earlie Brown, is appealing a final summary judgment for the defendant, Gulf Life Insurance Company, in this action to recover benefits under his group health insurance policy.

Earlie Brown through his employer, Florida Power & Light Company, was insured under a group health insurance policy issued by Gulf Life Insurance Company. This policy provided in pertinent part;

“SPECIAL EFFECT OF NO-FAULT AUTO INSURANCE
“No benefits are payable under any section of the Group Policy for any expenses incurred with respect to injury or illness for which medical benefits are payable in accordance with the Florida Automobile Reparations Reform Act (sometimes referred to as the ‘No-Fault’ Auto Insurance Law). In the event the total of benefits as defined as medical under the ‘No-Fault’ Auto Insurance Law exceeds $5,000, the amount of benefits which otherwise would have been payable under the Group Policy shall be payable up to the amount of such excess.”

On December 8, 1973 Brown was involved in an automobile accident and sustained personal injuries. He made a claim for $4,222.40 for these injuries against his automobile insurance carrier, Gateway Insurance Company, and received a partial payment of $1,582.40 under the “no-fault” benefits provision of Gateway’s policy. Gateway subsequent!'' became insolvent and Brown claimed the balance against the Florida Insurance Guaranty Association, which refused payment. Thereupon, Brown filed a claim against Gulf Life for benefits in the amount of $4,222.40. Gulf Life under the special effect of no-fault auto insurance provision of its group policy denied the claim and Brown filed the instant action against Gulf Life. He contended that the above provision renders the policy “excess insurance” within the purview of Section 627.635, Florida Statutes (1975) and that Gulf Life failed to comply with section (2) thereof by failing to stamp conspicuously upon the face of the policy the designation “excess insurance” thereby rendering this provision void. Gulf Life answered and denied its policy came within the purview of this statute. Pretrial discovery ensued and both parties moved for summary judgment. After a hearing, the trial judge entered summary judgment for Gulf Life. We affirm.

Where the language of the insurance contract is clear and unambiguous it does not require construction and must be given effect as written. See Midwest Mutual Insurance Company v. Santiesteban; 287 So.2d 665 (Fla.1973); Ranger Insurance Company v. Harrell, 286 So.2d 261 (Fla.2d DCA 1973). The special effect of the no-fault auto insurance provision of Gulf Life’s policy plainly excludes payment of benefits arising out of the no-fault type injury, unless that injury exceeds $5,000. In other words, this exclusion is merely a $5,000 deductible for this type of injury and is not excess insurance within the purview of Section 627.635(1), Florida Statutes (1975). Earlie Brown’s claim for $4,222.40 against Gulf Life having arisen out of injuries which are payable under no-fault benefits, the trial judge was eminently correct in entering summary judgment for Gulf Life.

We have considered appellant’s remaining point on appeal and find it without merit.

Affirmed.

      . “627.635 Excess Insurance
      “(1) No provision of this chapter shall be deemed to prohibit an insurer from issuing a policy as, or including in a policy a provision providing for, excess insurance; that is, to the effect that the insurer’s liability for benefits payable on account of expense incurred for any hospitalization, medical, surgical and other service resulting from covered sickness or injury of the insured, shall be limited to that part of such expenses, if any, which is in excess of all benefits payable on account thereof by the same insurer under any other policy or policies covering the same insured and by all other insurers and service organizations by whom benefits are payable as to the same such expense.
      “(2) Any such policy, or any policy containing any such provision, shall have imprinted or stamped conspicuously upon the face thereof the designation ‘excess insurance’ or appropriate words of similar import approved by the department.”


text:
    James BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 76-597.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    William J. Brown, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.

      Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Appellant, James Butler, was charged in a four-count information as follows: conspiracy to commit robbery, Count One; aggravated assault, Count Two; robbery, Count Three; and unlawful possession of a firearm while engaged in a criminal transaction, Count Four.

A jury found him guilty as to all counts of the information. The court sentenced him to consecutive prison terms of fifteen (15) years, fifteen (15) years, and ninety-nine (99) years on Counts One, Two and Three, respectively; as to Count Four, he was sentenced to fifteen (15) years to run concurrently with the sentence imposed as to Count Three. This appeal is from the judgment and sentences.

We have carefully considered the record on appeal, briefs and arguments of counsel and are of the opinion that the judgment appealed is substantially free of error and should be affirmed. We note, however, that aggravated assault, Section 784.021, Florida Statutes (1975) is a felony of the third degree carrying a sentence not exceeding five (5) years. Section 775.082, Florida Statutes (1975).

In exceeding the maximum sentence allowed for that particular crime, we believe the trial judge committed fundamental error which should be corrected, notwithstanding the failure of appellant to raise the illegality of his sentence in the trial court. Williams v. State, 280 So.2d 518 (Fla.3d DCA 1973).

As pertains to Count Two, aggravated assault, the sentence imposed is reversed and remanded with directions to re-sentence appellant in accordance with the applicable statutory limitations. In all other respects, the judgment and sentences are affirmed.

Affirmed in part; reversed and remanded in part.


text:
    Peter RINALDI, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-693, 76-694.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Mark R. Baer, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

On March 15, 1973, Peter Rinaldi was charged by information with conspiracy to commit robbery and carrying a concealed weapon. He was tried by jury on May 9, 1973, found guilty, convicted and sentenced on both charges. On or about March 11, 1976, Rinaldi filed a motion for new trial pursuant to Fla.R.Crim.P.' 3.850, alleging two grounds: newly discovered exculpatory evidence, and denial of pre-sentence investigation in violation of Fla.R.Crim.P. 3.710. The motion for new trial was denied and this appeal ensued.

The record in this case reflects that Ri-naldi, through his privately retained counsel, expressly withdrew his request for a pre-sentence investigation in open court, and requested immediate sentencing. We hold that under these circumstances, a pre-sentence investigation can be waived. See Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974).

The record further reflects that Rinaldi has failed to demonstrate grounds to reverse the trial court’s finding that the alleged exculpatory information was insufficient to warrant granting the motion for new trial on the basis of newly discovered evidence.

For the foregoing reasons, the order denying motion for new trial is affirmed.


text:
    Robert James McDUFFIE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-774.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Pollack, Tunkey, Robbins & Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.

      Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Robert James McDuffie, appeals his conviction for grand larceny.

On the day in question the victim, James Johnson, had approximately $165 in his pocket when he fell asleep on a park bench. At this time a Mr. Outler observed the defendant walk up to Johnson and remove his money and watch. Mr. Outler notified the police of the incident and the defendant was arrested. An information was filed charging the defendant with grand larceny of the $165. A trial ensued and during the prosecutor’s closing argument to the jury, wherein he was explaining the elements of the crime charged, the trial judge interrupted with the following remark:

“THE COURT: As a matter of fact, so the record is straight, you do not have to consider that at all. Through stipulation of counsel at side-bar, you need not make any decision where it occurred or the date that it was alleged- to have occurred on. The only question that you have to decide on is whether or not this defendant was the one who was involved. Proceed, Counsel.”

The jury returned a verdict of guilty of grand larceny.

Defendant contends the above remark was improper and amounted to a comment upon a very significant issue in question, whether the money taken was in excess of $100. By this remark, the defendant argues, the court indirectly commented that there was no question as to whether or not the amount of money taken exceeded $100, requiring a new trial. We cannot agree.

First, defense counsel did not object to this remark, made no motion for a curative instruction and did not raise this remark as one of the grounds in his motion for new trial. We, therefore, find this remark is not subject to review in this forum. See Foreman v. State, 47 So.2d 308 (Fla.1950); McCrea v. State, 210 So.2d 724 (Fla.3d DCA 1968).

Furthermore, we are unconvinced that the remark constituted fundamental error as the error did not reach down into the legality of the trial itself to such an extent that a verdict of guilty could not have been obtained without the assistance of the above remark. See Hamilton v. State, 88 So.2d 606 (Fla.1956); Sanford v. Rubin, 237 So.2d 134 (Fla.1970). The record reflects that the trial judge repeatedly instructed the jury that it could return a verdict for petit larceny as a lesser included offense of grand larceny. In addition, the victim’s testimony as to the amount of money taken went unchallenged. Cf. Rembert v. State, 311 So.2d 199 (Fla.3d DCA 1975).

Affirmed.


text:
    Lonnie BROOKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-994.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.

      Pollack, Tunkey, Robbins & Rosenfield, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The appellant, Lonnie Brookins, was convicted for possession of a controlled substance (heroin). His contention on this ap-. peal is that the trial court erred in denying his motion for a new trial, based on the fact that the only testimony against him was that of the arresting police officer, who was the same police officer who bought the heroin. It is the appellant’s contention that he was not the one who sold the heroin to the police officer but that, in fact, it was his cousin who made the sale. The arresting officer testified that the appellant, whom he identified in court, was the same person who made the sale of narcotics to him. The officer’s testimony was buttressed by the testimony of another police officer who had carried out a surveillance in front of the appellant’s residence at the time of the sale. Based on the record before us, we find that the appellant’s arguments are without merit. See State v. Sebastian, 171 So.2d 893 (Fla.1965). See also Singleton v. State, 315 So.2d 506 (Fla.3d DCA 1975); Dilberth v. State, 267 So.2d 661 (Fla.3d DCA 1972); and Hargrett v. State, 255 So.2d 298 (Fla. 3d DCA 1971).

Affirmed.


author: HENDRY, Chief Judge.

text:
    JOYCE BROS. STORAGE & VAN COMPANY, Appellant, v. John PIECHALAK and Frances Piechalak, his wife, Appellees.
    No. 76-1576.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.

      Horton, Perse & Ginsberg, Hawkesworth, Schmick, Ponzoli & Wassenberg, Miami, for appellant.
    Andrew W. Horn, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   HENDRY, Chief Judge.

This is an interlocutory appeal seeking review of an order of the trial court denying appellant’s motion to dismiss appellees’ complaint for lack of jurisdiction over the person.

Appellees, plaintiffs below, entered into a contract with appellant, one of four defendants below, as booking agent for Allied Van Lines, Inc., to have their goods shipped from Chicago, Illinois, to Dade County, Florida. Sometime after the goods were delivered to a warehouse in Dade County, and while still in Allied’s van awaiting delivery, a fire occurred in said warehouse, destroying appellees’ property. Once notified of the loss, appellees sought reimbursement from appellant and the other defendants, not parties to this appeal.

Upon reading the aforementioned contract, however, appellees realized that the value of their goods had been grossly underestimated by appellant. Correspondence was to no avail as appellant denied any excess liability over the amount stated in the contract. Appellees thereupon filed suit, alleging that appellant willfully and consciously misstated the value of appellees’ goods without first consulting appellees as to the correct value of said property, as required by the terms of the contract, resulting in noncompensable damages. In addition, appellees alleged-that said misstatement was made by appellant in a conspiratorial effort with Allied to limit their liability in the event appellees’ goods were destroyed.

Appellees caused summons and complaint to be served on appellant, by having the sheriff of Cook County, Illinois, serve same on the resident agent of appellant at his place of business in Chicago, pursuant to Sections 48.193 and 48.194, Florida Statutes (1975). Appellant, by way of motion to dismiss, argued that it had no contact with the State of Florida and was therefore not subject to the jurisdiction of its courts. The motion was denied and this appeal follows.

Appellant contends that the court erred in denying its motion to dismiss for lack of jurisdiction over the person in that appel-lees have failed to allege any facts which would subject appellant to the jurisdiction of Florida courts, pursuant to Section 48.-193, Florida Statute (1975), the long-arm statute. We agree.

In order to invoke the aid of the long-arm statute, a party must allege in his complaint all requisite jurisdictional facts which have a bearing on the applicability of said statute. Henschel—Steinau Company v. Harry Schorr, Inc., 302 So.2d 198 (Fla. 4th DCA 1974).

In the case at bar, appellees have failed to allege a cause of action against appellant arising from any acts or omissions enumerated within the text of Section 48.193. Such an allegation is a prerequisite to the availability of long-arm jurisdiction and insures the due process requirement of “minimum contacts.” See Section 48.193(3), Florida Statutes (1975) and Dublin Company v. Peninsular Supply Company, 309 So.2d 207 (Fla. 4th DCA 1975).

Accepting appellees’ allegations as true, the facts would reveal that (1) appellant and appellee executed a contract in the State of Illinois, (2) and thereafter breached and/or conspired to breach said contract in the State of Illinois, (3) resulting in damages to appellees in the State of Florida. It is uncontradicted that appellant neither maintained a resident agent or business office within this state, nor conducted business activities here or solicited same. With that in mind, we are of the opinion that-appellant did not have the requisite contacts with the State of Florida, as provided by our statute, and was thus beyond our jurisdiction. See Lewis v. Cues, Inc., 338 So.2d 241 (Fla. 4th DCA 1976) and Section 48.193(1)(f)1., Florida Statutes (1975).

Accordingly, the order denying appellant’s motion to dismiss is reversed and the cause is hereby remanded for further proceedings consistent herewith.

Reversed and remanded.


author: PER CURIAM. RAWLS, Judge

text:
    Danny Dean YOST, Appellant, v. STATE of Florida, Appellee.
    No. CC-336.
    District Court of Appeal of Florida, First District.
    March 9, 1977.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Once again a prisoner seeks to challenge the constitutionality of Florida Rule of Criminal Procedure 3.191 upon the ground that, as applied, it denies him equal protection pursuant to the provisions of the Fourteenth Amendment to the United States Constitution. Appellant Yost reasons that the subject rule, in establishing a one year time frame of speedy trial for prisoners, when weighed against a 180-day time frame for non-prisoners presents a classic “on the face” deprivation of a fundamental right, and that such classification may withstand an equal protection challenge only if the state can demonstrate a “compelling Interest”. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Yost then argues that such a “compelling state interest cannot be shown”. The identical question was presented to the Supreme Court of Florida in State v. Lott, 286 So.2d 565 (Fla.1973), cert. den. Lott v. Florida, 417 U.S. 913, 94 S.Ct. 2613, 41 L.Ed.2d 217 (1974), which resolved same contrary to Yost’s contention here.

AFFIRMED.

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

RAWLS, J., specially concurs.

RAWLS, Judge

(specially concurring).

I concur. However, although neither party has raised any procedural point, I feel compelled to comment upon this aspect of the cause. In State v. Lott, supra, the Florida Supreme Court entertained a direct appeal from an order of a circuit court which held the subject rule unconstitutional. Although the opinion of the Supreme Court in Lott did not apprise the reader upon what jurisdictional ground that court entertained the appeal, I must assume it was by “inherent authority”. Article V, Section 3(b)(1), Florida Constitution (1972), provides:

“(b) JURISDICTION. — The supreme court:
(1) Shall hear appeals . . . from orders of trial courts . . . initially and directly passing on the validity of a state statute or a federal statute or treaty, or construing a provision of the state or federal constitutions.”

It is elementary that a rule is not a state statute or a federal statute or treaty.

The real gist of the Supreme Court’s opinion in Lott is that a trial court is not empowered to “nullify” a rule promulgated by the Supreme Court. Since the Supreme Court is not a court of original trial jurisdiction, the query immediately comes to mind of how can the constitutional validity of a rule be challenged? On the other hand, if a trial court is empowered with the authority to construe a rule promulgated by the Supreme Court to be unconstitutional, and if review of same is confined to the constitutional jurisdictional perimeters as prescribed in Article Y, appellate review of a trial court’s order would be lodged in the appropriate district court of appeal. The journey’s end of the last procedural route would be to vest in such district court of appeal final jurisdiction to construe the constitutionality of a rule promulgated by the Supreme Court, or in their verbiage to nullify such rule. Such a result would be untenable. “Catch 22” might well be the name of this procedural nightmare.

Here, the trial court, contrary to the dictates of Lott, did entertain and pass upon the constitutional application of Fla.R. Crim.P. 3.191. The parties did not question the propriety of the circuit court to entertain the instant question, so I am not inclined to further pursue this apparent procedural quagmire.

      . Fla.R.Crim.P. 3.191(b)(1) states in part:
      “. . Except as otherwise provided, a person who is imprisoned in a penal or correctional institution of this State or a subdivision thereof and who is charged by indictment or information, whether or not a detainer has been filed against such person, shall without demand be brought to trial within one year if the crime charged be a misdemeanor or felony not involving violence . . .