author: BURNSTEIN, MIETTE K., Associate Judge.

text:
    Roger Dean HILL, Appellant, v. STATE of Florida, Appellee.
    No. 76-2503.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1978.
    Rehearing Denied March 7, 1978.
    Richard L. Jorandby, Public Defender, and Stuart A. Young, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   BURNSTEIN, MIETTE K., Associate Judge.

This was an appeal from a conviction of appellant for a rape which allegedly occurred on March 3, 1974. Alan Carl McDonald, who was present at the scene during the incident was called as a court’s witness. During the examination of McDonald, the witness stated that he had absolutely no recollection of the incident in question and that he did not remember seeing appellant at the scene on the date in question.

The prosecutor, over strenuous objection by defense counsel, attempted to refresh the recollection of the witness by playing a tape recorded statement made by the witness in September, 1974. The tape was played in the full presence of the jury. The court subsequently instructed the jury that: “The tape itself was not introduced into evidence. The conversation on the tape was presented to refresh the memory of the court witness, and it should be so considered.” Defense counsel moved the trial court for a mistrial which motion was denied. This appeal followed.

A witness’ memory may be jogged by reference to prior statements and a prior statement may be considered for impeachment purposes and not as substantive evidence. Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976). However, prejudicial error may be committed when the contents of a statement are introduced as evidence where a court witness stated that he did not recall making the statement. Rankin v. State, 143 So.2d 193 (Fla.1962). Furthermore, in Oliver v. State, 239 So.2d 637 (Fla. 1st DCA 1970), the court held that error was committed where the court’s witness testified to having no memory of the incident and where the prosecution, under the guise of refreshing his recollection, read questions and answers to the witness from a prior statement. Although in Oliver, the error was felt to be harmless, this record does not so reflect. Prosecutor’s closing statements indicate reliance upon the evidence adduced only through the playing of the tape.

Many courts have indicated that the playing of such tapes can be permitted to refresh a witness’ memory — but that such procedure should be utilized outside the presence of the jury. U. S. v. McKeever, 271 F.2d 669 (2d Cir. 1959); State v. Gonya, 107 R.I. 594, 268 A.2d 729 (1970); Breeding v. Reed, 253 Iowa 129, 110 N.W.2d 552 (1961).

Accordingly, we REVERSE and REMAND for new trial consistent with this opinion.

DOWNEY and DAUKSCH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Annette MATHIS, Appellant, v. NATIONAL LABORATORIES et al., Appellees. INTERNATIONAL PLAYTEX CORP., Appellant, v. Annette MATHIS et al., Appellees.
    Nos. 76-1368, 76-1641, 76-1394.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 23, 1978.
    Rentz, McClellan & Haggard, Miami, for Mathis.
    Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn, Jeanne Heyward, Miami, for International Playtex.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for National Laboratories.
    Before HENDRY, NATHAN and HUB-BART, JJ.
   PER CURIAM.

These consolidated appeals are taken from a summary final judgment rendered in favor of appellee, co-defendant below, National Laboratories and Lehn & Fink Industrial Products Division of Sterling Drug, Inc. (hereinafter referred to as National Laboratories) and against appellant, plaintiff below, Annette Mathis, on a complaint which alleged, inter alia, the negligent labeling of a commercial disinfectant detergent manufactured and produced by National Laboratories. Appellant, co-defendant below, International Playtex Corporation (hereinafter referred to as Playtex), likewise appeals from that same summary final judgment.

Stated as succinctly as possible, the salient facts are as follows: Ms. Mathis, a thirty-six year old black woman of limited education, was employed as a maid by Miami Central Senior High School. Her job primarily consisted of cleaning the school’s lavatories and locker room area. During the course of her employment, the school furnished Ms. Mathis with a liquid cleaning product, manufactured by National Laboratories called O-SYL. While wearing new rubber gloves manufactured by Playtex, Mathis applied O-SYL to a cleaning cloth without first diluting the product. A short time later, appellant’s hands began to burn and itch. Subsequently, her hands turned white, a condition medically diagnosed as hypopigmentation.

Mathis filed suit against National Laboratories alleging, inter alia, that the manufacturer’s label on the outside of the container of the O-SYL was inadequate to warn her that the product was highly concentrated, containing carbolic acid, and required dilution with water. Mathis also joined in the lawsuit Playtex, alleging that it had negligently manufactured and tested its rubber gloves, resulting in the gloves being placed on the market for use by the general public in an unfit and unsafe condition.

After the complaint was answered by both defendants, cross-claim filed by Playtex against National Laboratories for indemnity and/or contribution, and extensive discovery taken, National Laboratories moved for summary judgment, relying, in great part, on this court’s opinion in Wickham v. Baltimore Copper Paint Company, 327 So.2d 826 (Fla. 3d DCA 1976). Summary final judgment was entered by the trial court in favor of National Laboratories and against Mathis. From that judgment, both Mathis and Playtex have appealed.

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that summary final judgment was erroneously entered, as there were genuine issues of material fact left unresolved by the trial court. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Among the various issues still to be determined is the adequacy of the manufacturer’s label on the container of O-SYL in warning a user of the potential damages associated with the product’s use. Another issue that must be dealt with is whether or not the label adequately instructed users of the product to dilute the concentration according to the particular strength desired. The above issues dealing with the adequacy of a warning and instruction on a product’s label are questions of fact, not law, and are properly vested with the trier of fact, in this case, the jury, and thus, determination of said issues by way of summary judgment is not proper. Tampa Drug Company v. Wait, 103 So.2d 603 (Fla.1958); Edwards v. California Chemical Company, 245 So.2d 259 (Fla. 4th DCA 1971), cert. den. 247 So.2d 440 (Fla.).

The-trial court’s reliance upon our decision in Wickham v. Baltimore Copper Paint Company, supra, is misplaced, as there, “the issue of the adequacy of the warning on the label was not a material issue” in that both the injured party and his employer read and understood the warning label on the product and actually took precautions against the known danger involved with the product’s use. Unlike the facts sub judice, the alleged inadequacy of the label in Wickham was not the proximate cause of the damages sustained by the injured employee.

Accordingly, the final summary judgment is hereby reversed and remanded for further proceedings.

Reversed and remanded.

      . A question not raised by the parties, but not overlooked by us, concerns Playtex’s standing to appeal the judgment rendered in favor of its co-defendant. In that a viable appeal was filed from that judgment by Mathis, pursuant to Fla.App. Rule 3.11, we shall elect to treat the Playtex appeal as a “joinder in appeal.” Cf. North Shore Hospital v. Martin, 344 So.2d 256 (Fla. 3d DCA 1977).


author: ALDERMAN, Chief Judge. LETTS, Judge,

text:
    Effie Sharon BROOKS and Richard L. Brooks, her husband, Appellants, v. Walter A. CERRATO, M.D., C. M. Aker, Curtis G. Wherry, James A. Sasser and Walter A. Cerrato, P. A., St. Paul Fire & Marine Insurance Company, a Foreign Corporation, and Ben C. Storey, M.D., Appellees.
    No. 76-2158.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    Rehearings Denied March 9, 1978.
    Larry Sands of Larry Sands, P. A., Day-tona Beach, for appellants.
    Michael P. Falkowski of Hoffman, Hen-dry, Parker & Smith, Orlando, for appel-lees-Cerrato, Aker, Wherry, Sasser, and St. Paul.
    Charles Abbott and Carl D. Motes of Ma-guire, Yoorhis & Wells, P. A., Orlando, for appellee-Storey.
   ALDERMAN, Chief Judge.

The patient in a medical malpractice case appeals from a summary final judgment in favor of two doctors and other related defendants. The trial court found that there was no genuine issue as to any material fact and held as a matter of law that the plaintiff’s claim was barred by the statute of limitations. We must determine first which of two statutes of limitations is applicable and then whether the record supports the trial court’s conclusion. We hold that the applicable statute is Section 95.11(6), Florida Statutes (1973), and find that there are genuine issues of fact which preclude summary judgment.

The plaintiff suffers from nerve-tissue tumors known as neurofibromas. While living in South Carolina in 1965 the plaintiff had two masses of neurofibromas removed from the back of her neck and another from her left leg. Later in South Carolina she had neurofibromas removed from various parts of her body on three other occasions. Several months before the medical incident in question she moved to Florida. While in Florida she noticed that two masses on each side of her neck were growing. She became concerned and con-suited the defendant Dr. Storey. After examination of the plaintiff and review of her medical history from South Carolina, Dr. Storey had her admitted to the hospital. At the request of Dr. Storey the plaintiff was seen by the defendant Dr. Cerrato. Both doctors concluded that the tumor masses should be removed surgically. The operation was performed by Dr. Cerrato. During the course of the operation a portion of the deltoid nerve in plaintiff’s neck was damaged. As a result plaintiff no longer has the full use of her right arm.

The operation was performed on February 8, 1973, and this suit was filed on June 27, 1975. At that time Section 95.11(6), Florida Statutes (1973), provided that actions for medical malpractice could be commenced only within two years, and that the cause of action in such cases is not deemed to have occurred until the plaintiff discovers, or through use of reasonable care should have discovered, the “injury”. The effective date of this statute was July 1, 1972. It replaced the four-year statute of limitation which formerly governed in medical malpractice cases. Foley v. Morris, 339 So.2d 215 (Fla.1976). The statute was amended effective January 1, 1975, to provide a two-year period of limitation in malpractice cases to run from the time the “cause of action” is discovered or should have been discovered with the exercise of due diligence. Section 95.11(4), Florida Statutes (Supp.1974). The 1974 statute contains a “saving clause” which provides that any action barred when the act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976. Section 95.022, Florida Statutes (Supp.1974).

The plaintiff contends that Section 95.11(4) should be applied retroactively and is the operative statute in this case. Before a statute of limitations can be applied retroactively there must be a clear manifestation of legislative intent that it be given retroactive effect. Foley v. Morris, supra. The plaintiff attempts to find such an intent in the savings clause; however, the grace period allowed clearly pertains to causes of action which were shortened by the amended statute. The limitation period for malpractice remained the same. Therefore, in the absence of any express, clear or manifest legislative intent to apply Section 95.11(4) retroactively, we conclude that it does not apply to causes of action occurring prior to its effective date. We hold that the applicable statute of limitations in this case is Section 95.11(6), Florida Statutes (1973).

Since this suit was filed on June 27, 1975, we must determine if there is any genuine issue of fact as to whether the plaintiff discovered, or through use of reasonable care should have discovered, the injury prior to June 27, 1973. When the plaintiff woke up from the operation on February 8, 1973, her arm hurt and she could not lift it, but she thought that it would improve and she attributed the paralysis to an expected general physical weakness after surgery. It is undisputed that the plaintiff had actual knowledge of her injury in August 1973, when she was told by another doctor that she could not use her arm because of a damaged nerve in her neck. However, the record is not clear and the defendants have not conclusively shown that the plaintiff discovered, or through use of reasonable care should have discovered, prior to June 27, 1973, that an injury (as opposed to a mere temporary post operative symptom) had occurred. Compare: Salvaggio v. Austin, 336 So.2d 1282 (Fla.2d DCA 1976). There are disputes as to what explanations, if any, the defendants gave concerning the paralyzed arm. Both Dr. Sto-rey and Dr. Cerrato knew that the plaintiffs deltoid nerve had been damaged, but the evidence is conflicting as to whether they ever told the plaintiff. It has been held that the fiduciary, confidential relationship of physician-patient imposes on the physician a duty to disclose known facts. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). Failure to perform this duty may toll the statute of limitations. There is also some indication of affirmative misrepresentation by Dr. Cerrato. We conclude that genuine issues of fact exist as to when the statute of limitations started to run and that summary judgment should not have been entered.

REVERSED and REMANDED.

DOWNEY, J., concurs.

LETTS, J., concurs specially.

LETTS, Judge,

concurring specially.

I agree with Judge Alderman but think it worth while to explain Dr. Storey’s involvement. Dr. Storey did not perform, or assist in, the operation complained of, and my first inclination was to affirm the trial court as to him. However, a reading of Dr. Storey’s own testimony indicates that he had more than one discussion with the patient, after the operation, and told her, for example: “I explained to her that she would probably end up with a permanent paralysis.”

The patient appellee denies that any conversation regarding permanent paralysis took place. Notwithstanding, the fact issue thus raised bears on the question of whether Dr. Storey would have a duty to disclose his knowledge of the cut nerve and as to whether he did, or did not.


author: DREW, E. HARRIS, Associate Judge.

text:
    In re ESTATE of Ben MARDEN, Deceased. Alma DuPuy MARDEN, Appellant, v. Gertrude BACON, Jay Marden and Jon Marden, as the Personal Representatives of the Estate of Ben Marden, Deceased, Appellees.
    No. 76-1529.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied March 6, 1978.

      Dale & Stevens, Fort Lauderdale, Heller & Kaplan, Miami, for appellant.
    Ferrero, Middlebrooks & Houston, Fort Lauderdale, Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   DREW, E. HARRIS, Associate Judge.

The controversy between Ben Marden and Alma DuPuy (Marden) (hereafter referred to as Ben and Alma) began shortly before Alma sued Ben in January of 1971 seeking alimony on the basis of an alleged common law marriage between them. A summary final judgment in favor of Ben was the subject of an appeal and resulted in a decision of the District Court that “there are substantial conflicts in the evidence and different interpretations and inferences that can be gained. These center upon the ingredients of a common law marriage and particularly the matter of a present assent to become man and wife. However, it cannot be said as a matter of law that the marriage existed or not.” The judgment was that the summary judgment “was premature and that the issues should be fully explored in a regular trial.”

This decision decided only that on the record before the trial judge he should not have entered a final summary judgment. The decision adjudicates nothing else. It decides nothing that we are concerned with in the case sub judice — nor is there anything to be found in the record of that litigation that is either probative here or dispositive of any issue here. The District Court simply said — and properly — (certiora-ri was denied without comment by the Supreme Court) to go back and litigate the issues.

We now turn to the present litigation.

The trial judge personally heard 21 days of testimony, much of which was in hopeless conflict, examined some 320 exhibits and had the benefit of personal observation of witnesses. He is charged with the duty of making findings of fact and when such are made, they will not be disturbed on appeal where there is competent, substantial evidence to support them- — and, his judgment entered thereon will not be disturbed unless it is contrary to the legal effect of the evidence so found to exist.

The well considered and carefully prepared final judgment, with its thorough discussion and analysis of the facts and the law as applied thereto, is (omitting the formal parts) as follows:

“FINDINGS OF FACT
“In this Order, the claimant, ALMA MARDEN a/k/a ALMA SLOCUM DuPUY will be referred to as ALMA or Claimant. The Estate of BEN MARDEN, deceased, will be referred to as Estate or BEN.

ALMA and BEN met in New York City in 1944 at which time they were married to other' parties. Shortly thereafter, they commenced a meretricious relationship. ALMA was divorced in 1954. In that proceeding she became the beneficiary of two trusts; one vested in her completely and the other was terminable upon condition of her re-marriage. ALMA has continued to receive the proceeds from the conditional trust from its inception and throughout o these proceedings.

By reason of his wealth and due to his previous ownership in the Riviera Club in New Jersey, BEN was a person of considerable notoriety. In 1955, shortly after ALMA’s divorce, he gave her an engagement ring. At that time it seemed that ALMA was desirous of marrying BEN but if he was interested in marriage he nonetheless successfully eluded her because of his then-existing second marriage and until the sale of the Key West property. BEN was divorced from his second wife in 1959.

BEN was a domineering and aggressive man but nonetheless he was a charming and generous individual. He was an inveterate philanderer. This undisputed fact is also established by a succession of ladies whom he courted throughout his relationship with ALMA. He lavished them with gifts and remembered them in his wills, both ambulatory and final. His enduring affection, however, was for his second wife and together they continued their parental devotion to their children in their times of need. During BEN’s claimed marriage to ALMA, the former wife decorated two of his Miami Beach apartments.

ALMA is a beautiful, charming and fascinating woman. Her first marriage was to a socialite which became her entree into the cafe society of New York and its jet set environs. Throughout her claimed marriage with BEN it is quite apparent that a substantial amount of her own private and personal life was spent in the company of her private friends where she was known almost exclusively as ALMA SLOCUM Du-PUY. She was seen and escorted by male escorts other than BEN. She maintained her private apartment in New York City and a home on Miami Beach. She took title to land and other personal property in her individual name. She was known in her own peer society by' her former married name of DuPUY and was referred to as such by the press and various newspaper columnists. She made applications to social and private clubs by her former name and was admitted to membership in those clubs as such. She maintained separate banking and savings accounts. She filed separate income tax returns. She made applications for passport and homestead exemption utilizing her former married name and indicating her status therein as either divorced or single. All of these actions which were generated by her own hand occurred during her claimed marriage to BEN and following its alleged breakup. This documentary evidence generated by ALMA alone, and at a time when there was no motive to fabricate is much more credible evidence than that assumed by her present posture and testimony. In addition it is entirely consistent with the vast amount of documentary evidence also generated by BEN during a similar period of time and is consistent with his own deposition testimony admitted into evidence.

If BEN was welcome or acceptable into the cafe society where ALMA pursued her own separate existence and identity, it is very clear that BEN did not care for it or enjoy that society for he seldom if ever escorted her to any of her social engagements. ALMA was seen in BEN’s company at fashionable restaurants, hotels and clubs and accompanied him on various trips both abroad and in this country where they registered as husband and wife. Undoubtedly she spent some time at his apartment in New York City in the 1960’s and on various occasions enjoyed trips with him at apartments owned by him in Miami, Miami Beach and Fort Lauderdale. During various times she had some items of clothing and personal effects in his apartments. Undoubtedly BEN and ALMA had a mutual affection for one another and enjoyed one another’s company on isolated sojourns and trips for a considerable span of years. The manifest weight of the evidence, however, demonstrates that this relationship was sporadic, intermittent and infrequent. An overview of the evidence demonstrates a lack of continuity and completeness to establish a common-law marriage by cohabitation and repute. From the great mass of evidence produced in rebuttal by the Estate showing the separate identities and separate pursuits of their individual lives, it is apparent that neither ALMA nor BEN had any real intention of sealing or completing an actual common-law marriage with the other. The evidence is simply to the contrary. In rebuttal, ALMA concedes her own separate, independent existence from that of BEN but sought to avoid the impact of it by claiming that it was BEN who entreated her to shun publicity, avoid senseless mail and other trivial matters and for this reason only she maintained her separate identity and at his request in order to protect him. If this were true, then over the years of their relationship there would be some vital and indelible clue but there is none., It is incredible to suppose that ALMA or BEN would not recognize one another in times of great personal stress as for instance when they were admitted to hospitals or when ALMA gave a police record when she was mugged in New Jersey. There are only two occasions1 where BEN “1 Execution of the so-called ‘Carriage House Lease’ is largely impeached or explained away by ALMA’s deposition.” referred to ALMA as his wife at a time when there was no motivation for him to fabricate but both of these occasions occurred in Florida and after the Florida Legislature had prohibited common-law marriages. It is incredible to suppose that a mature, sophisticated person would continue to file applications under oath to enjoy a particular status like obtaining a passport, homestead exemption or filing an income tax return. There is nothing protective about perjuring oneself.

ALMA claims that a common-law marriage was contracted with BEN on February 29, 1960 in New York City which marriage was thereafter celebrated by a round-the-world tour. Countess De Morelos and Ruth Mytton, long-time personal friends of ALMA were offered to prove the re-publication of this marriage, both in Paris and at the Mona Lisa Room of the Eden Roc Hotel following the cruise. Each of these witnesses knew of ALMA’s relationship with BEN over the span of many years. After the alleged marriage was announced in their presence, however, they failed to inquire at any time as to where the marriage took place, who performed the marriage or otherwise inquire as to how ALMA finally managed to get this irresistible prize to the altar. Consequently when their testimony is gauged by human knowledge, reason, insight and judgment it falls short of credibility.

BEN’s brother was offered to prove the re-publication or holding out of the common-law marriage in Florida. It is clear, however, that this brother hated BEN likely because of the animosity generated in a lawsuit prior to BEN’s death.

There is some evidence of a marriage by cohabitation and repute in Florida. The only direct statements attributable to BEN are either incredible or occurred after Florida had prohibited common-law marriages from occurring. There is evidence of divided repute both in Florida and New York which is strong and persuasive. The evidence of this divided repute emanates as strongly from ALMA as it does from any other source. It is true that she has used the name MARDEN but there is a strong tendency for this usage to have occurred after the common-law marriages were prohibited in Florida or after their ‘breakup’ and is therefore self-serving. Her,use of the name DuPUY is not sufficiently explained away by her stage career since she reported taxable earnings from acting in only one year.

Undoubtedly ALMA had high hopes of marrying BEN in the 1950’s and BEN placated that desire by giving her a ring and putting her off because of his then-existing marriage and his other business commitments. ALMA’s tiff with BEN apparently did not have the psychological effect that she had desired. She took him back on the same footing they had enjoyed for years because by that point in her life ALMA needed the financial freedom which her relationship with BEN provided in order for her to live separately as she was accustomed. This arrangement was very convenient for BEN because it afforded him the opportunity he needed to philander with his other ladies. On this record, the Court can only conclude that ALMA was one of the many ladies that BEN sincerely enjoyed and had genuine affection for over a number of years but there was never any present intent for either to be married to the other. This case can be paraphrased in one line and typically come from ALMA, where she stated to BEN’s long-time friend, Judge Marovitz, ‘I know he’ll never marry me — but he needs me.’

In a case such as this the most reliable and credible index which aims unerringly to the truth is the great mass of documentary evidence generated by the parties themselves. In particular, those documents executed by the Claimant herself through the years convincingly evince a lack of present intent or asset to contract a marriage, either per verba de praesenti or by cohabitation and repute. The decedent’s own documentary testimony is consistent with his own deposition testimony and the strong evidence of divided repute which has been presented on behalf of the Estate.

Upon the entire record, the Court reaches the following:

CONCLUSIONS OF LAW
The Claimant must establish the existence of a common-law marriage on or between February 29, 1960 and January 1, 1968. The presumption of the continuance of a meretricious relationship has been dispelled and replaced by evidence of a ‘matrimonial relationship’ and has created a presumption of a valid marriage. The Estate has rebutted that presumption by clear and convincing proof that there was no agreement to contract a common-law marriage per verba de praesenti or by cohabitation and repute. The evidence is clear and convincing that neither of the parties and in particular the Claimant ever evinced an intention or present assent or the necessary mutuality to contract a marriage by agreement, assent or conduct, either in the State of Florida or in the State of New York. The same evidence demonstrates that no incipient marriage from either jurisdiction was ever domesticated or ratified in the other jurisdiction. From the totality of the evidence presented in this case, the Court finds and concludes that it has been established by evidence that no common-law marriage exists between ALMA SLOCUM DuPUY and BEN MARDEN.

FINAL JUDGMENT

Upon the foregoing record, Findings of Fact and Conclusions of Law, it is the judgment of this Court that:

1. The objection to the election to take dower filed by and on behalf of JON ROBERT MARDEN, JAY WILLIAM MARDEN and GERTRUDE M. BACON, as Personal Representatives of the Estate of BEN MARDEN, deceased be and the same is hereby sustained; and

2. That ALMA MARDEN a/k/a ALMA SLOCUM DuPUY take nothing by her petition for election to take dower and in respect thereto, the above Personal Representatives of the Estate of BEN MARDEN, deceased, go henceforth without day; and

3. That jurisdiction of the parties hereto is retained for the purpose of taxing costs and entry of judgment therefor.”

Appellant’s principal contention is that the Court erred in its conclusion, as a matter of law, that

“The Claimant must establish the existence of a common law marriage.”

This language comes from the opening paragraph of the trial judge’s “Conclusions of Law”. Taken by itself, and apart from the language which follows, appellant’s argument would have merit. We understand the trial judge is saying the common law marriage must be shown to have taken place between February 29, 1960 and January 1, 1968. He referred to the admitted meretricious relationship prior to February 29, 1960 between the parties and held that such meretricious relationship “had been dispelled and replaced by evidence of a matrimonial relationship and has created a presumption of a valid marriage”. Then, the Court said “The Estate has rebutted that presumption (of a valid marriage) by clear and convincing proof that there was no agreement to contract a common law marriage per verba de praesenti or by cohabitation and repute.

The “presumption” of the existence of a valid marriage, recognized as one of the strongest of all legal presumptions, arises out of the concern of all civilized societies over the legitimacy of children, the descent and distribution of property and the sanctity of marriage as the keystone of Christian governments. But this presumption grows out of long and continuous cohabitation, the establishment and maintenance of a home and family, recognition by the public generally — and the friends and associates that the man and woman are husband and wife. In the probate of estates, the surviving spouse is not required to go to the courthouse with her marriage license in hand to be recognized as the surviving spouse. -Nor does the law require evidence of marriage when deeds are executed as husband and wife, nor to establish that a child is the lawful heir of his father. The law presumes in each and many other similar situations that a valid marriage does exist and he who properly raises such issue has a great burden to carry — even—some courts have held — of proving a negative. The strength of the presumption increases with the lapse of time through which the parties are cohabiting as husband and wife. Ergo, the presumption should diminish in cases where the parties observed so few of the .basic customs of marriage, and exhibited such a nebulous attitude toward the basic customs of marriage, as the record here illustrates. Whether the trial court erred in his finding that a long meretricious relationship admitted by the parties had been replaced by a prima facie showing of marriage is of no great moment now because, having so ruled, the Estate proceeded with the introduction of evidence which, along with all the other evidence in the case, established to his satisfaction that the one crucial issue — a valid common law marriage — never existed between these parties. And, he said, and we agree, that “from the totality of the evidence presented in this case”, he found no such marriage ever existed. In a nutshell that’s what this litigation is all about. We find no instance in which' the trial court misapplied the law to these facts.

We have carefully considered the assignments of error concerning the attorney client privilege. We hold that the waiver of such alleged privilege by the Estate as to the New York attorney who drafted and witnessed Ben’s prior Wills did not constitute a waiver of Ben’s attorney-client privilege as to his Florida attorneys whom he consulted about altercations with Alma when there was no connection between the two attorneys.

An attorney’s testimony about a Will drafted by him, after the death of the testator, is not ordinarily privileged. Even if it was, a waiver is limited to the communications or subjects in question. It is analogous to the rule that limits cross-examination to the matters brought out on direct. We find this assignment of error to be without merit.

The judgment is affirmed.

      . Marden v. Marden, 276 So.2d 493 (Fla. 4th DCA 1973), cert. denied 283 So.2d 365 (Fla. 1973).

      . The Court was referring to the depositions and affidavits before it at that time.

      . Ben Marden died a few days before the release of the District Court’s decision. The estate of Ben Marden was substituted in his stead.

      .On Ben’s death and subsequent to denial of certiorari by the Supreme Court (supra, note 1), Alma filed her notice of election to take dower in the estate. Objections thereto were filed by the estate. The final judgment here on review is the result of the extended litigation on the controlling question of whether there was a valid common law marriage between Alma and Ben at the time of his death.

      . In Jordan v. Jordan, 89 So.2d 22 (Fla.1956), the Supreme Court said “appellant has an additional burden to carry of showing the transition, if any, from concubinage to marriage, since the relationship was conceived meretriciously”.

      . Marshall v. Sarar, 118 So.2d 258, 259 (Fla. 3d DCA 1960); Jordan v. Jordan, supra, footnote 5; Duey v. Duey, 343 So.2d 896 (Fla. 3d DCA 1977).

      . See 1 J. Bishop, Marriage and Divorce, § 457 (6th Ed. 1881).

      . Bishop, supra.

      . Such ruling was assigned as error by appel-lees but has not been argued. Instead appel-lees observe in their brief, and we agree . it doesn’t really matter what route the trial judge travelled as long as he arrived at the correct decision.

      . 8 Wigmore on Evidence, Para. 2314, pages 613, 615. Also see 66 A.L.R.2d 1310, Para. 7.

      . 81 Am.Jur.2d, Paras. 228, 229, page 260; People of Gerold, 265 Ill. 448, 107 N.E. 165 at 178 (1914); Drayton v. Industrial Life and Health Ins. Co., 205 S.Ct. 98, 31 S.E.2d 148, 153 (1944).


author: PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Marvin FRANCOIS, Appellee.
    No. 76-1836.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied March 3, 1978.
    Janet Reno, State’s Atty., and George Volsky, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PEARSON, Judge.

The State appeals an order suppressing evidence on the ground that the search and seizure were unreasonable. An information was filed charging the defendant Marvin Francois with carrying a concealed firearm. Defendant filed a motion to suppress the evidence (that is, the firearm) on the grounds that the defendant was detained and questioned by an officer at which time the officer patted down the defendant and seized a revolver and that the defendant was not known to have a dangerous reputation, nor was he under arrest at the time the search took place.

The motion came on for a hearing before the court at which the officer testified that at around one o’clock in the morning, he was approached by an unknown informant who told him that a man inside a nearby bar was threatening to kill a person identified as “Big Duke.” The officer did not know the informant and he had no reason to regard him as a reliable informant. However, the officer went into the bar where Francois was pointed out to him as the person making the threat. The officer asked Francois to step outside the bar with him and then asked Francois for identification. While questioning Francois, the officer noticed a bulge on Francois’ leg and reached down and removed a revolver. Francois was then arrested for carrying a concealed firearm.

The trial court sustained the motion to dismiss and this appeal is from that order. We reverse.

Section 901.151, Florida Statutes (1975), provides in part as follows:

“(5) Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) of this section has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.”

It is apparent from the facts recited that the arresting officer acted reasonably in being willing to investigate a complaint of a citizen of a threat of violence inside a bar. The officer may have been braver than necessary in entering the bar to investigate but it certainly was not unreasonable for him to be willing to do so. Having entered the bar and identified the person against whom the complaint was lodged, the officer did not act unreasonably in asking Francois to step outside the bar in order to minimize the possibility of a disturbance inside the bar and in order for the officer to protect himself. See the principle of law in Common wealth of Pennsylvania v. Mimms,-U.S. -, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Having observed the bulge and having received a warning that Francois might be armed, the officer did not act unreasonably in protecting himself by patting down the .defendant. See State v. Brooks, 281 So.2d 55 (Fla.2d DCA 1973); Ingram v. State, 264 So.2d 109 (Fla.4th DCA 1972); and Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971). We believe that it is not unreasonable to allow police officers to take actions necessary to protect themselves and if a crime is revealed in the taking of such action, that crime ought not to be insulated from prosecution upon the basis of an unreasonable search.

The order appealed is reversed and the cause is remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.


text:
    Nathan BATES, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2365.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied March 3, 1978.

      Mark King Leban, Alfonso C. Sepe, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before ' PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The point presented on this appeal urges that the court erred in denying defendant’s motion to suppress evidence seized in the execution of a search warrant. It is argued that the affidavit in support of the search warrant was insufficient in that it failed to establish probable cause for the issuance of the warrant. The defendant was charged with possession of controlled substances (two counts: heroin and cocaine); unlawful possession of cannabis in an amount of more than five grams; intentionally receiving, retaining, disposing or aiding in the concealment of stolen property, well knowing the same to be stolen (nine counts). Upon the denial of his motion to suppress, the defendant pleaded nolo contendere and reserved the right to appeal the denial of his motion to suppress.

The affidavit for search warrant states the following as the reason for the affiant’s belief that the laws of the State of Florida were being violated: On the night of August 20,1976, affiant Harris in the company of other officers and an unnamed confidential informant went to the vicinity of 3164 New York Street at which time the confidential informant was searched and found to have no narcotics and no money on his person. He was given ten dollars “buy money.” Affiant Harris and the informant approached the house and affiant stopped outside while the confidential informant entered the house and stayed there for one to two minutes. The informant then exited and returned to the location of the other officers where the informant was again searched and found to be in possession of a packet of powder which tested to be heroin; the informant did not have the ten dollars. The document then stated:

“The informant then related to your affi-ant Harris, that inside the above-described house were three Black Males and one Black Female. One of the Black Males was Nathan Bates. The confidential informant stated that these four people were playing cards at a table on which there was a record album on top of which was what appeared to be narcotics. The informant said that he purchased the tinfoil packet from one of the Black Males for $10.00 (TEN DOLLARS).”

The thrust of appellant’s argument is that the affidavit for search warrant failed to establish sufficient probable cause for issuance of the search warrant because it is based entirely upon hearsay from an unidentified and untested confidential informant; that is, it did not disclose either underlying circumstances by which the informant concluded his information was accurate, or the underlying circumstances from which the officer concluded that the informant was credible or his information was reliable, and that it failed to set forth sufficient corroborative circumstances by which the affiant could independently establish probable cause to believe that the defendant sold anything to anyone, had possession of any narcotics, or that there were narcotics on the defendant’s premises.

We conclude that the test to be applied is not the test of admissibility into evidence, but is whether a prudent man, knowing all the facts revealed by the affidavit, would conclude that there were narcotics in the premises sought to be searched. Perez v. State, 81 So.2d 201 (Fla.1955); State v. Lewis, 225 So.2d 170 (Fla. 2d DCA 1969); Paula v. State, 188 So.2d 388 (Fla. 2d DCA 1966).

The references to hearsay testimony may be eliminated and the affidavit is still sufficient to meet the test above quoted. Cf. State v. Gieseke, 328 So.2d 16 (Fla.1976).

Affirmed.


text:
    Joyce Aldan DEAN, Appellant, v. STATE of Florida, Appellee.
    No. HH-38.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1978.
    Rehearing Denied March 13, 1978.
    Michael J. Minerva, Public Defender, and David J. Busch and Gary M. Delohery, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Information charged that the Appellant committed aggravated child abuse, Section 827.03(2), Florida Statutes (1975), upon her five year old granddaughter. Following a jury trial, Appellant was convicted of battery, a lesser included offense of the crime charged. Appellant appeals the judgment of conviction and sentence.

A material witness at the trial was the five year old victim. After an extensive voir dire of the child by the court, the State and the Appellant, the court, within the bounds of his discretion, determined that the child was competent to testify, noting that the child understood the obligation to tell the truth.

Appellant raises the objection that the child testified without being administered the witness oath. We find this objection cannot be raised for the first time on appeal where such fact was known to the Appellant early enough so that a timely objection could have been made. Beausoliel v. United States, 71 U.S.App.D.C. 111, 107 F.2d 292 (1939).

Finding no other reversible error, we affirm the judgment and sentence.

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

      . We recognize that § 90.605(2), Fla.Stat. (Supp.1976), effective July 1, 1978, Ch. 77-77, Laws of Florida (1977), specifically provides that: “In the court’s discretion, a young child may testify without taking the oath if the court determines the child understands the duty to tell the truth.”


author: BOYER, Judge.

text:
    James COLLINS, Petitioner, v. FLORIDA DEPARTMENT OF OFFENDER REHABILITATION, and Florida Career Service Commission, Respondents.
    No. GG-364.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1978.
    Rehearing Denied March 9, 1978.
    Jerry G. Traynham of Patterson & Traynham, Tallahassee, for petitioner.
    Raymond W. Gearey, Tallahassee, for respondent.
   BOYER, Judge.

Petitioner Collins, an employee of the Florida Department of Offender Rehabilitation (DOR) seeks review of an order of the Career Service Commission sustaining a 30 day suspension without pay.

Petitioner was charged by DOR with conduct unbecoming a public employee and willful violation of rules, regulations, directions or policy statements governing behavior of employees of DOR and Sumter Correctional Institution. That charge led to the subject suspension. Petitioner then requested an administrative hearing. A hearing officer of the Division of Administrative Hearings conducted a hearing and submitted a recommended order containing findings of fact, conclusions of law and a recommendation that DOR “withdraw the penalty of suspension without pay and substitute a written reprimand”.

The Career Service Commission thereupon entered the following order:

“This cause came on to be heard by the Career Service Commission on May 11, 1977, in Tallahassee, Florida. The Commission has considered the Recommended Order by Hearing Officer Delphene C. Strickland and the record of this appeal. The Commission hereby accepts, adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order, dated April 11,1977. The Commission must reject, however, the Conclusion of Law and Recommended Penalty and submits the following conclusions.
“While the Hearing Officer did not conclusively find that Collins was intoxicated, the facts presented do support the Agency’s charge of conduct unbecoming a public employee. The Hearing Officer concluded that the Appellant was guilty of this general charge, based on the evidence brought out at the hearing, and recommended altering the suspension to a written reprimand. Inasmuch as the designated Hearing Officer is vested only with such authority as the Commission possesses, the Hearing Officer’s recommendation to alter the penalty is impermissible.
“The Agency’s disciplinary action of a 30-day suspension being within its authority was supported by the evidence and as set forth in the Hearing Officer’s Findings of Fact.
“Wherefore, it is
. “ORDERED that the action of the Agency be, and the same is, hereby sustained. * * * »

Petitioner argues that the findings of the hearing officer have been misconstrued by the Commission. We cannot agree. As stated by the Commission: “While the Hearing Officer did not conclusively find that Collins was intoxicated, the facts presented do support the Agency’s charge of conduct unbecoming a public employee.” Without such a finding there would have been no basis for the hearing officer’s recommendation of the disciplinary action of a written reprimand.

Rule 22A-10.03 Disciplinary Actions, Florida Administrative Code, provides in part:

“(4) Each agency’s program for handling disciplinary problems shall provide for the following types of disciplinary actions:
(a) Oral Reprimand
(b) Written Reprimand
(c) Change in Assignment
(d) Reduction in Pay
(e) Demotion
(f) Suspension
(g) Discharge”

We also agree that the Commission was correct in determining and stating that the designated hearing officer is vested only with such authority as the Commission possesses. In Florida A & M University v. Lewis, 327 So.2d 862 (Fla. 1st DCA 1976) Judge Mills, speaking for this court, said:

“ * * * The grounds for dismissal and suspension are the same. There is no guideline for determining whether an agency must dismiss rather than suspend. Therefore, the agency has sole discretion to determine whether to dismiss or to suspend an employee, subject only to just cause. On appeal, the Commission may only determine whether there was competent substantial evidence to sustain the agency action or whether the facts establish just cause. * * * ” (327 So.2d 862)

It appearing that the findings of fact set forth in the hearing officer’s recommended order were sufficient to establish just cause, viz: Were sufficient to establish a finding of conduct unbecoming a public employee, and it further appearing that just cause having been established it was the prerogative of the agency (DOR), and neither the hearing officer nor the Commission, to determine the disciplinary action to be taken pursuant to Rule 22A.10(03) above quoted, the action of the agency and the order of the Career Service Commission sustaining that action is

AFFIRMED.

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


author: SMITH, Acting Chief Judge.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. SAN MARCO CONTRACTING CO., Appellee.
    No. HH-472.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1978.
    Rehearing Denied March 7, 1978.

      H. Reynolds Sampson, Gen. Counsel and Margaret-Ray Kemper and Larry K. White, Tallahassee, for appellant.
    Frank D. Upchurch, Jr., of Upchurch & Upchurch, St. Augustine and A. G. Condon, Jr., of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellee.
   SMITH, Acting Chief Judge.

The Department of Transportation appeals from an interlocutory order of the Escambia County Circuit Court denying DOT’s motion for change of venue on appel-lee San Marco’s third party complaint against DOT for indemnity. Fla.R.App.P. 4.2. San Marco, prime contractor on a DOT job in Walton County, was sued by appellee Noonan, a subcontractor, for damages allegedly sustained by Noonan because San Marco improperly delayed the work. San Marco denies liability to Noonan but alleges in its third party complaint for indemnity that any delay was caused by DOT, which allegedly imposed erosion and pollution control requirements beyond those specified in the contract. The trial court sustained Noonan’s choice of venue of the main action in Escambia, over San Marco’s objection, because San Marco was considered as having an obligation to satisfy any liability to Noonan in Noonan’s home county, Escam-bia. This interlocutory appeal presents no issue concerning the trial court’s venue order on Noonan’s claim.

The issue is whether San Marco’s indemnity claim against DOT may be asserted, over DOT’s venue objection, in Noonan’s Escambia County action against San Marco. Section 337.19(1), Florida Statutes (1975), provides that actions may be maintained against DOT “on any claim under contract for work done . . .and Section 337.-19(3) provides that suit may be brought “in the county or counties where the cause of action accrued or in Leon County.” DOT urges that San Marco’s cause of action for indemnity cannot have arisen in Escambia County because no part of the work contracted for was to have been performed in Escambia County and because, if DOT becomes obliged to indemnify San Marco on account of its potential liability and loss to Noonan, DOT would be obligated to pay San Marco in the county of San Marco’s residence, St. Johns, and not in Escambia.

It is commonly understood that, for venue purposes, a cause of action accrues where the injury or default occurs, and that a default on a contract for the payment of money occurs where the money was to have been paid or, if no place of payment is specified, where the creditor resides. E. g., Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); Baruch v. W. B. Haggerty, Inc., 137 Fla. 799, 188 So. 797 (1939). On that premise DOT insists that, irrespective of the merits of Noonan’s claim against San Marco, DOT will never have an obligation to pay indemnity in Escambia County to a St. Johns County resident under a construction contract performed wholly in Walton County. Indemnity arises from contract, it is argued, and as in other contract cases the place of payment establishes where the cause of action accrues. Sentry Indemnity Co. v. Angel & Son, Inc., 332 So.2d 83 (Fla. 4th DCA 1976). See also Duggan v. Tomlinson, 174 So.2d 393 (Fla.1965), to the effect that an action on an implied contract for the payment of money may be maintained in the county of plaintiff’s residence.

When one party sues another on account of a matured and unfulfilled obligation arising by express or implied contract for the payment of money, the principles relied on by DOT are of practical value in meeting the necessity for laying venue someplace having a nexus to the unfulfilled obligation. But here, where DOT’s asserted obligation is neither matured nor unfulfilled and is characterized as contractual only for convenience, those principles have an alien sound. If San Marco successfully defends against Noonan’s claim in Escam-bia County, the question of DOT’s indemnity obligation will never arise. If following a judgment for Noonan it is found that DOT must indemnify San Marco, that obligation may be grounded not strictly on contract terms but on “operation of law” which, for the benefit of one secondarily liable to an injured party, imposes indemnity liability on another who is primarily liable. Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla. 2d DCA 1969), cert. denied, 234 So.2d 122 (Fla.1969); Chappel v. Scarborough, 224 So.2d 791 (Fla. 1st DCA 1969); Stuart v. Hertz Corp., 302 So.2d 187 (Fla. 4th DCA 1974).

For the convenient disposition of contingent third party claims, and to avoid multiple actions, Rule 1.180, Fla.R.Civ.P., permits the defendant to join a third party “who is or may be liable to [defendant] for all or part of the plaintiff’s claim against him.” Rule 1.180 rationalizes that defendant’s immature claim against the third party has been “accelerated,” Mims, 226 So.2d at 842, and disregards at the pleading stage the circumstance that a third party defendant has no present obligation to deliver an indemnity check to defendant.

Other courts have held that an ancillary third party claim, such as San Marco’s against DOT, may in the trial court’s discretion be maintained with the principal action in a county where it is properly pending, regardless of venue privileges available to the third party defendant in an independent action by the third party plaintiff. Dorr-Oliver, Inc. v. Linder Industrial Machinery Co., 263 So.2d 237 (Fla. 3d DCA 1972); Keller Building Prod. of Sarasota, Inc. v. Pan American Aluminum Corp., 347 So.2d 728 (Fla. 2d DCA 1977); Mosby & Russell Engineering Assoc., Inc. v. Hudson Co. of Florida, 299 So.2d 53 (Fla. 4th DCA 1974). This court, considering the issue in Metropolitan Dade County v. Kelly, 348 So.2d 49 (Fla. 1st DCA 1977), held otherwise and sustained a county’s venue privilege to be sued at home notwithstanding that the third party claim against the county was ancillary to the main action properly maintained elsewhere. Our Kelly decision followed the general rule that a subdivision or agency of the state has a right to be sued in the county where its headquarters are located irrespective of where the cause of action against it arises. See also, Amelia Island Mosquito Control Dist. v. Tyson, 150 So.2d 246 (Fla. 1st DCA 1963); Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362 (Fla.1977), reh. pending.

This case is different from Kelly in that the legislature has in part waived DOT’s privilege to be sued at home. DOT may be sued “in the county or counties where the cause of action accrued.” § 337.-19(3), Fla.Stat. (1975). When as here the legislature has waived a government agency’s common law privilege to be sued at its headquarters, requiring DOT to defend claims wherever in Florida they may arise, we conceive that the spirit of Rule 1.180 requires DOT to defend, absent manifest inconvenience, wherever in Florida a third party claim may properly arise. The prospect that a judgment may be entered against a third party plaintiff in the forum county underlies the indemnity claim and is a sufficient nexus to the cause of action against DOT to sustain venue there. But because venue could not be laid in Escambia County in an independent action by San Marco against DOT, the trial court may dismiss or transfer the third party claim if defense in Escambia County would be greatly inconvenient to DOT. Keller, 347 So.2d at 729; Dorr-Oliver, 263 So.2d at 239.

We consider that we have not overruled our recent decision in Kelly, but that we have declined to enlarge its holding for the benefit of a state agency which is not privileged to be sued exclusively at its headquarters. In further proceedings DOT may demonstrate to the trial court any great inconvenience of defending in Escambia County which may require dismissal or transfer to another county.

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


text:
    Ernest PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 76-1987.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.
    Thomas J. Hanlon, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, \ and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). The appellant need not be present at resen-tencing.

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Roy J. LOONEY, Appellant, v. Robbie Speed LOONEY, Appellee.
    No. 76-2236.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Rehearing Denied March 3, 1978.
    Starr W. Horton, Miami, for appellant.
    Alan M. Sandler, Philip M. Gerson, Miami, Phillip A. Holtsberg, Coconut Grove, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See, e. g., Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Cook v. Cook, 305 So.2d 12 (Fla.1st DCA 1974); Mufson v. Mufson, 245 So.2d 110 (Fla.3d DCA 1971); Bildner v. Bildner, 219 So.2d 749 (Fla.3d DCA 1969); and Huwer v. Huwer, 175 So.2d 242 (Fla.2d DCA 1965).


text:
    Irving FINEBERG, Appellant, v. Sandra FINEBERG, Appellee.
    Nos. 76-2268, 77-326 and 77-675.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Rehearing Denied March 8, 1978.
    Sinclair, Louis, Siegel & Heath and John L. Zavertnik, Miami, for appellant.
    Joseph Teichman, Hollywood, for appel-lee.

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

These appeals were filed by Irving Fine-berg from a judgment of dissolution of his marriage to the appellee Sandra Fineberg (No. 76-2268) and from subsequent orders requiring payments by the appellant of certain attorney fees and costs (No. 77-326) and determining the rights of the parties in certain personal property (No. 77-675). On the appeal from the judgment it is contended by the appellant that the trial court erred in granting dissolution of the marriage, and that the awards of alimony and orders relating to fees and division of personal property represented abuse of discretion. On consideration of the record, briefs and argument, we hold no reversible error has been shown.

Affirmed.


text:
    Eddie JACKSON, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-212.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Rehearing Denied March 8, 1978.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Appellant, Eddie Jackson, was charged with robbery and at trial requested that the jury be instructed upon the lesser included offenses of grand larceny, petit larceny, aggravated assault and simple assault. The court instructed on robbery, grand larceny and petit larceny and the jury found Jackson ghilty of robbery.

The issue raised on appeal as reversible error is the refusal of the court to give the requested instructions on aggravated and simple assault. We find this point meritorious.

If requested by the defendant instructions must be given on all lesser in-eluded offenses which are necessarily included in the offense charged and those which may be included in the offense charged by virtue of their presence in the accusatory pleading and the evidence at trial. Brown v. State, 206 So.2d 377 (Fla. 1968); State v. Terry, 336 So.2d 65 (Fla. 1976). The failure to instruct on such offenses constitutes prejudicial error and is reversible per se without regard to the harmless error doctrine. Lomax v. State, 345 So.2d 719 (Fla.1977); Abreau v. State, 347 So.2d 819 (Fla.3d DCA 1977).

The information against Jackson in the instant case reads in part:

. . did unlawfully by force, violence, assault or putting in fear, take certain property, to-wit: CASH, good and lawful MONEY of the United States of America, the property of GRACE KENYON as owner or custodian, from the person or custody of GRACE KENYON and in the course of committing said Robbery, (used a deadly weapon) carried a firearm, to-wit: A PISTOL, in violation of 812.13 Florida Statutes, contrary to the . . . ”

This pleading coupled with the evidence introduced at trial unquestionably supported the requested assault instructions. Cf. Moore v. State, 341 So.2d 814 (Fla.2d DCA 1977). We reverse Jackson’s robbery conviction and sentence and remand the cause to the trial court for a new trial. See Young v. State, 330 So.2d 532 (Fla.3d DCA 1976).

Reversed and remanded.


author: HUBBART, Judge.

text:
    Edward J. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 77-432.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Rehearing Denied March 6, 1978.

      Tobias Simon and Theodore L. Tripp, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before HUBBART and KEHOE, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an appeal from a criminal conviction for unlawful possession of marijuana based upon a nolo contendere plea entered before the Dade County Circuit Court. The controlling issue presented for appeal is whether the denial of a pre-trial motion to suppress which raises solely a question of a law may be specifically preserved for appeal by the defendant upon the entry of a nolo contendere plea in a criminal case. We hold that the denial of such a pre-trial motion may be so preserved for appellate review if acceptable to the court only where the record clearly shows that the state’s case could not succeed without use of the evidence sought to be suppressed. Accordingly, we affirm.

The defendant Edward J. Brown was charged by information with unlawful possession of marijuana as a felony before the Dade County Circuit Court. The defendant entered a plea of not guilty and filed a pre-trial motion to suppress his confession given to the police. No motion to suppress the marijuana with which the defendant was charged with unlawfully possessing was ever filed. Upon stipulation of the parties, the trial court considered a series of pre-trial discovery depositions taken by the defendant as the sole testimony offered by both parties on the motion to suppress. There is no showing in the record that this deposition testimony represented the full extent of the state’s case against the defendant.

The deposition testimony revealed that certain marijuana was seized by the police from a motel room which the defendant had registered for and rented. The defendant was subsequently arrested upon return to the room after making an unsuccessful attempt to flee from the police. Other people were also present in the motel room at the time of the marijuana seizure and they too were arrested.

The trial court denied the motion to suppress after reviewing the above depositions and hearing argument of counsel. The defendant thereupon changed his plea of not guilty to a plea of nolo contendere to the information as charged upon the condition that he be allowed to seek appellate review of the denial of the motion to suppress. The trial court accepted the plea as so conditioned, withheld adjudication of guilt and placed the defendant on two years probation. The defendant now appeals his conviction to this court and assigns as error the denial of the motion to suppress.

The law is well-settled that the defendant cannot appeal a pre-trial order denying a motion to suppress in a criminal case. Mitchell v. State, 282 So.2d 648 (Fla.2d DCA 1973). Under very narrow circumstances, however, he may enter a nolo contendere plea after the denial of a pre-trial motion to suppress on the specifically stated condition that he is preserving for appeal the denial of the motion to suppress — providing the record clearly shows that the state’s case against the accused could not succeed without use of the evidence sought to be suppressed. If this conditional nolo contendere plea is acceptable to the court and the question preserved is one of law as opposed to fact, the defendant may appeal the judgment of conviction and sentence and properly assign as error the denial of the motion to suppress. If the appeal is successful for the defendant, the judgment of conviction is reversed with directions to afford the defendant an opportunity to withdraw his nolo contendere plea. State v. Ashby, 245 So.2d 225, 228 (Fla.1971); Nast v. State, 333 So.2d 103 (Fla.2d DCA 1976); Tiller v. State, 330 So.2d 792 (Fla.1st DCA 1976); Stanley v. State, 327 So.2d 243 (Fla.2d DCA 1976); Wallace v. State, 321 So.2d 97 (Fla.4th DCA 1975); Perry v. State, 296 So.2d 505 (Fla.3d DCA 1974); Jackson v. State, 294 So.2d 114 (Fla.4th DCA 1974).

There is one essential limitation to the Ashby nolo rule applicable herein and that is the rule cannot be used by a defendant when the legal question on which he seeks appellate review is not dispositive of the case. With regard to a motion to suppress, the record at the time of the tender of the plea of nolo contendere must clearly show that the state’s case against the accused cannot succeed without use of the evidence sought to be suppressed. Gibbs v. State, 344 So.2d 621 (Fla.3d DCA 1977); Tiller v. State, 330 So.2d 792, 793 (Fla.1st DCA 1976).

It is clear that where the defendant is charged with unlawfully possessing the evidence he seeks to suppress, the state’s case against the accused cannot succeed without use of the evidence sought to be suppressed. A different case is presented, however, where the defendant seeks to suppress a confession which may or may not be essential to the state’s case. In such cases, it is incumbent upon the defendant to establish that the state’s case could not succeed without use of the confession which the defendant seeks to suppress. To hold otherwise would be to sanction in effect interlocutory appeals in criminal cases upon the entry of nolo contendere pleas, a practice not approved by the Florida Rules of Criminal Procedure.

In the instant case, the record fails to clearly show that the state’s case against the defendant could not succeed without use of the confession sought to be suppressed. There is no showing that the evidence and testimony contained in the pretrial discovery depositions used on the motion to suppress constitutes the sum and substance of the state’s case in chief against the defendant. Even with the depositions which were reviewed by the trial court solely on the motion to suppress, it is clear that the defendant had registered for and rented the room where the marijuana was located and subsequently fled from the motel room upon his discovery that the police were there waiting to arrest him. To say the least, this constitutes highly incriminating evidence in support of the instant charge notwithstanding the presence of other people in the motel room in question. In the absence of a clear showing by the defendant at the time of the hearing on the motion to suppress that the state’s case could not succeed without use of the defendant’s confession, we cannot presume same to be the case and are not disposed to entertain the defendant’s appeal herein.

Sound policy reasons support the result reached in this case. The Ashby nolo rule is not the criminal counterpart of the civil interlocutory appeal rule. The purpose of the Ashby rule is to expedite criminal litigation by permitting defendants to plead nolo contendere while preserving a legal question for appeal only where the question is entirely dispositive of the case. That purpose is thwarted when a defendant is permitted to appeal pre-trial rulings of a trial court which are in no way dispositive of the case. Instead of expediting criminal litigation, such a procedure unnecessarily prolongs such cases.

We have no alternative but to affirm the conviction herein because the sole question raised by the defendant’s assignment of error is not properly before us.

Affirmed.


text:
    Antonio FERNANDEZ et ux., Appellants, v. Leonard VALIDO, Appellee.
    No. 77-1576.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Rehearing Denied March 3, 1978.

      Horton, Perse & Ginsberg, Brunier, Moss, Cohen & Rodgers, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn and John E. Salmon, Miami, for ap-pellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed. Youngblood v. Citrus Associates of the New York Cotton Exchange, Inc., 276 So.2d 505 (Fla. 4th DCA 1973).


author: McCORD, Chief Judge.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. William W. DOLAN, Appellee.
    No. DD-450.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1978.
    Rehearing Denied March 13, 1978.
    Emory P. Cain of Proctor & Cain, Jacksonville, for appellant.
    Raymond E. Watson of Webb, Swain & Watson, Jacksonville, for appellee.
   McCORD, Chief Judge.

This appeal is from a final judgment for $70,000 entered in an action brought by appellee Dolan against appellant, Florida Insurance Guaranty Association, Jnc. (hereafter sometimes referred to as FIGA). This action arose from an injury received by Dolan in Gatlinburg, Tennessee, on the premises of Gatlinburg Ski Corporation (hereafter sometimes referred to as GSG). Dolan brought suit against GSC in federal court and the suit was defended by GSC’s insurer, Financial Fire and Casualty Company (hereafter sometimes referred to as Financial Fire), a now insolvent insurer who was authorized to do business ift Flóri-da. The suit resulted in a $70,000 judgment in favor of Dolan and against GSC. Financial Fire then negotiated a settlement with Dolan and issued a draft for the settlement amount, but the draft did not clear because of insufficient funds. Financial Fire had become and was declared insolvent pursuant to § 631.011(5), Florida Statutes (1975). Pursuant to federal court rules, Dolan then obtained an order that he recover the judgment against GSC. Thereafter, Dolan entered into an agreement with one Anders, operator/lessee of GSC, not to levy execution on the premises of GSC in return for a guarantee of the unconditional receipt of $70,000, the amount of the judgment. Do-lan now, by this action against FIGA, contends that the claim is covered by the Florida Insurance Guaranty Association Act, § 631.50, et seq., Florida Statutes (1975). The trial court agreed and entered the judgment which is here appealed.

While other facts were brought out in the trial court which pertained to one of the issues raised by appellant — whether or not GSC’s policy issued by Financial Fire was antedated to cover the existing loss and is void and ultra vires — it is unnecessary to set forth such facts here as our decision is based upon other grounds.

FIGA is a nonprofit association created by statute [§ 631.51, et seq., Florida Statutes (1975)] composed of all insurers licensed to transact insurance in Florida who write direct insurance except life, title, surety, disability, credit, mortgage, guaranty, and wet marine insurance. § 631.55 and § 631.53. The purposes of this statute, as stated in § 631.51 are as follows:

“(1) Provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer;”

§ 631.54(4) provides:

“ ‘Covered claim’ means an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage, and not in excess of, the applicable limits of an insurance policy to which this part applies, issued by an insurer, if such insurer becomes an insolvent insurer after October 1, 1970, and the claimant 'or insured is a resident of this state at the time of the insured event or the property from which the claim arises is permanently located in this state. ‘Covered claim’ shall not include any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise.”

The obvious statutory purpose of requiring that the claimant or policyholder be a resident of this state is to require that FIGA only guarantee payment to Florida residents who would otherwise suffer loss through the insolvency of an insurer authorized to transact business in this state. See § 631.54(5). Here the claimant Dolan qualifies under § 631.54(4), above quoted, as a resident of this state but his claim is not a covered claim because it is not an unpaid claim. Claude Anders, the operator/lessee of GSC, entered into an agreement which provides for absolute, unconditional payment of $70,000 plus accrued interest to Dolan, the same being secured by cashiers check under an escrow agreement. Anders entered into such agreement to avoid Do-lan’s levy upon GSC’s property to satisfy the judgment.

Reversed with directions to enter judgment in favor of FIGA.

SMITH and MELVIN, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Sam JACKSON, Respondent.
    No. 77-2089.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.

      Michael J. Satz, State’s Atty., and William W. Herring, Asst. State’s Atty., Fort Lauderdale, for petitioner.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari is denied.

ALDERMAN, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    Franklin CAREY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2125.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    Rehearing Denied March 10, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. Robinson v. State, 145 So.2d 561 (Fla.3d DCA 1962); Kelly v. State, 202 So.2d 901 (Fla.2d DCA 1967).


text:
    Roderick E. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-396.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    Rehearing Denied March 10, 1978.

      Max P. Engel and Don Cohen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A., Jr., and CHARLES CARROLL (Ret.), Associate Judges.
   PER CURIAM.

This appeal by a defendant below, Roderick E. Johnson who was tried with a co-defendant before a jury, from conviction of the offenses of murder in the first degree, robbery, kidnapping, and unlawful possession of a firearm while engaged in a criminal offense. On the first of said offenses he was sentenced to life imprisonment without eligibility for parole for 25 years. He was sentenced to life imprisonment on each of the second and third offenses, with provision for the three sentences to be served consecutively. On the fourth offense sentence was stayed and withheld. In seeking reversal appellant presents a number of grounds. On consideration thereof in the light of the record, briefs and argument, we hold no reversible error has been shown.

Appellant’s first contention is that the court committed reversible error in denying his motions for severance.

Implication of the defendant in the confession of the co-defendant Stanley, which was introduced, did not require severance, where the co-defendant testified at the trial and was available for cross-examination. Bruton v. United States, (1968) 391 U.S. 123 at pp. 132 and 137-138, 88 S.Ct. 1620, 20 L.Ed.2d 476. The same applies to inculpatory statements implicating Johnson made by Stanley to police officers prior to the above-mentioned confession, which were related at trial.

Another feature which appellant argues was such as to require severance was that during the testimony of a witness with whom the defendants had conversed regarding the criminal episode after it occurred, in seeking to impeach the witness the attorney for the codefendant inquired if, in a deposition given by him, he had not stated: “ * * * and the last time we got into some trouble about a rape and Bobby and Ricky was with me he got out and I didn’t tell on them that time so Ricky said, T can trust you’ * * * The court instructed the jury to disregard. The injection of that statement into the case did not impel severance. Elias v. State, 301 So.2d 111 (Fla.2d DCA 1974). In the matter of severance, the court has a measure of discretion. Here the denial of severance was not shown to be a clear or palpable abuse of discretion. Manson v. State, 88 So.2d 272 (Fla.1956); Ballard v. State, 323 So.2d 297 (Fla.3d DCA 1975).

An inculpatory statement made by this defendant to investigating officers, which was introduced at trial, was made by the defendant voluntarily after he was informed of his constitutional rights.

As to the photographs of the deceased which were admitted in evidence, their relevancy supported their admission. Bauldree v. State, 284 So.2d 196 (Fla.1973); Garmise v. State, 311 So.2d 747 (Fla.3d DCA 1975). With reference to that matter, also, there was discretion in the court, and a ruling as to admissibility of such photographs will not be disturbed in absence of a showing that the admission thereof constituted an abuse of discretion under the circumstances. Allen v. State, 340 So.2d 536 (Fla.3d DCA 1976); Mack v. State, 346 So.2d 1229 (Fla.3d DCA 1977).

No error was committed by the trial court in acceding to the State’s request to require the appellant-defendant to submit examples of his handwriting when, on the fourth day of the five-day trial, the defendant stated he could not recognize as his own the signature of his name on the written waiver of Miranda rights, which the State had presented. See: Fla.R.Crim.P. 3.220(b)(l)(viii). The State then produced a handwriting expert who testified that in his opinion the signature on the waiver was that of the defendant. Motion was made by the defendant for the trial to be interrupted for a two-day continuance in order to permit the defendant to obtain and present the testimony of a handwriting expert regarding the questioned signature. The court denied the motion for continuance. Appellant contends that ruling operated to deny him due process and a fair trial, for which a new trial should be granted. We cannot agree. We hold the ruling denying continuance was not an abuse of discretion. At most, if the defendant had presented a handwriting expert who should testify the signature on the waiver was not that of the defendant in his opinion, that would not have established a lack of genuineness, but only a conflict in the evidence of the experts. The State had presented direct testimony that the waiver was signed by the defendant. The conduct of the defendant, in making an inculpatory statement to the officers after the time it was testified the waiver was signed, was action by him consistent with the existence of the waiver, and inconsistent with an absence thereof. The error, if any, in regard to the last mentioned ruling of the trial court, was harmless. Section 924.33, Florida Statutes (1975).

Affirmed.


text:
    Jorge SALAZAR, Appellant, v. Hon. Jack R. SANDSTROM, as Director of the Dade County Department of Corrections and Rehabilitation, and the Hon. E. Wilson Purdy, as Director of the Public Safety Department of Dade County, Florida, Appellees.
    Nos. 77-1425, 77-1973.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    Rehearing Denied March 10, 1978.

      Orr, Nathan & Williams, Miami, for appellant.
    Janet Reno, State’s Atty. and Bayard W. Heath, Asst. State’s Atty., for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

By these consolidated appeals, Jorge Salazar challenges an order denying writ of habeas corpus and ordering him remanded for extradition to the state of Michigan.

The record reflects that a governor’s warrant of extradition was issued by the Governor of Florida authorizing the arrest of Jorge Salazar and his surrender to proper authorities of the state of Michigan. The warrant was issued, pursuant to Sections 941.03 and 941.06, Florida Statutes (1975), upon the requisition of the Governor of Michigan. The basis for the requisition was a duly authenticated complaint affidavit, together with warrant issued thereon, charging Salazar with a criminal violation of Section 565.827, Mich.Comp.L. (1970), a part of the Michigan Land Sales Act, Sections 565.801, et seq., Mich.Comp.L. (1970).

The thrust of the charge is that Salazar, without physically being in the state of Michigan, placed a telephone call from Florida to a Michigan resident, during which Salazar made various false misrepresentations concerning real estate located in Florida, with the intent of soliciting a sale of the real estate to the Michigan complainant. These actions, it is charged, exposed Salazar to penal liability in Michigan under the Michigan Land Sales Act, supra, which applies to land “wherever located . which is divided . . . into 25 or more lots.” See Section 565.802, Mich.Comp.L. (1970), n. 2, supra.

Salazar filed a petition for writ of habeas corpus in the circuit court for Dade County, Florida. He did not complain that he was charged under the laws of Michigan. Rather, he attacked the power of Michigan to enact legislation regulating the alienation of realty not located in Michigan by a person who never physically entered Michigan. He contends that it is unconstitutional to permit extradition of persons who have never been physically present in the demanding state. While this does present an interesting legal question, it has no bearing on this court’s determination of whether or not Salazar should be extradited to Michigan, as that state, by legislation, has proscribed Salazar’s actions and made them a crime. Having been charged with a crime under the laws of Michigan, Salazar is not entitled to have this court construe Michigan’s laws. It would be improper for this court to make a determination in these proceedings as to whether the Michigan statute under which he is charged, violates principles of constitutional due process, as Salazar would have us do.

Generally, the state and Federal courts and executive officers in the asylum state should not otherwise concern themselves with the legality of the criminal prosecution pending against the fugitive in the demanding state. It is not for courts in the asylum state to inquire into the constitutionality of a sister state’s criminal justice system; the constitutional rights of the accused are sure to be safeguarded by the state and Federal courts of the demanding jurisdiction. See Sweeney v. Woodall, 344 U.S. 86, 73 S.Ct. 139, 97 L.Ed. 139 (1952); Garrison v. Smith, 413 F.Supp. 747 (N.D.Miss.1976).

In the order denying writ of habe-as corpus, the court found that the demand of the Governor of Michigan and all attached documents were sufficient to charge Salazar with an extraditable crime under the laws of Michigan and were a sufficient basis for the extradition of Salazar to Michigan. We agree that Salazar was sufficiently charged with a violation of Michigan law to entitle that state to extradite him. A crime under the laws of the state of Michigan is extraditable in the state of Florida. See Ennist v. Baden, 158 Fla. 141, 28 So.2d 160 (1946); Section 941.06, Florida Statutes (1975).

Affirmed.

      . Section 565.827, Mich.Comp.L. (1970), provides:
      Every developer or agent of a developer who authorizes, directs, or aids in the publication, advertisement, distribution, or circu-larization of a false statement or misrepresentation, made with knowledge of its falsity concerning a subdivision offered for disposition or who knowingly fails to comply with the terms of a final cease and desist order and every person with knowledge that an advertisement, pamphlet, prospectus, or letter concerning a subdivision contains any written statement that is false or fraudulent, who issues, circulates, publishes, or distributes the same or causes the same to be issued, circulated, published, or distributed, or who knowingly fails to comply with the terms of a final cease and desist order, is guilty of a felony, and may be fined not more than $25,000.00 or imprisoned not more than 10 years or both. Each violation constitutes a separate offense.

      . Other pertinent portions of the Michigan Land Sales Act, Sections 565.801, et seq., Mich. Comp.L. (1970), provide:
      .802(n) “Subdivision” and “subdivided land” means any land, wherever located, improved or unimproved, which is divided or proposed to be divided for the purpose of disposition into 25 or more lots, parcels, units or interest, and includes any portion thereof. Subdivided lands include land located outside of the state which is promoted by mail, telephone calls, solicitation or advertisements within or directed into the state.

        .832(c) Any offer of disposition of subdivided lands is made in this state, whether or not the offeror or offeree is then present in this state, if the offer originates within this state or is directed by the offeror to a person or place in this state, and received by the person or at the place to which it is directed.


text:
    GULF POWER COMPANY, Appellant, v. Robert GLASS and Pauline Glass, Appellees.
    No. GG-360.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1978.
    Rehearing Denied March 7, 1978.

      Robert P. Gaines of Beggs & Lane, Pensacola, for appellant.
    Charles Friend, Tallahassee, for appellees.
   PER CURIAM.

Gulf Power bought an easement for transmission lines and poles 100 feet wide through the Glass’ property. The easement included “all rights and privileges necessary or convenient for the full enjoyment or use thereof . . . including the right of ingress and egress from said strip and the right to . keep clear all . obstruction on said strip . . . and the right to install, maintain and use anchors and guy wires on land adjacent to said strip.” The grantors retained “the right to cultivate and use said strip of land for any purpose not inconsistent with the rights which the grantee may from time to time exercise hereunder.” Subsequently, Mr. Glass went into the used car parts business and placed more than 50 wrecked cars in close rows on the easement property. Gulf Power requested Glass to clear the easement and, when he did not do so, Gulf Power brought an action for a mandatory injunction requiring that he do so.

Gulf Power appeals from the trial court’s judgment which denied the injunction because:

“2. These automobiles are readily removable and the defendants have agreed to remove them when reasonably requested for the necessity of servicing and maintaining the plaintiff’s wires and structures.
“3. The court further finds that the defendants’ use of said easement is not inconsistent with the rights of the plaintiff.”

We reverse. A mandatory injunction is proper where a clear legal right is at stake, irreparable harm is threatened, and the remedy at law is inadequate. Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625 (1925); Kellerman v. Chase & Co., 101 Fla. 785, 135 So. 127 (1931). Gulf Power’s legal right to have the area free of obstruction is shown here in the plain terms of the easement grant. Moreover, the undisputed evidence shows that Gulf Power and its customers would suffer a two- to four-hour delay in the repair of the transmission lines on this property in an emergency because of the need to clear away the cars. The trial court’s finding that Appellees’ storage of this automotive junk on the land is not inconsistent with Gulf Power’s rights is predicated on the assumption that Appel-lees would at all times be ready, willing and able to remove the cars promptly. This holding rests Gulf Power’s enjoyment of its easement on too conjectural a base. The case is remanded with instructions that the trial court grant the injunction.

REVERSED and REMANDED.

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


text:
    Kenneth Edward MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. GG-215.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1978.
    Rehearing Denied March 9, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

Appellant (hereinafter defendant) seeks reversal of a final judgment adjudicating him guilty of attempted burglary. An examination of the record reveals that defendant accompanied co-defendant Harold Luke to a warehouse which Luke admittedly broke into. Defendant was apprehended running from the scene with two pliers and a screwdriver in his pocket. There was no evidence that defendant entered the building, attempted to enter the building, or encouraged, aided or abetted Luke in doing so. The law is well settled that a person may be convicted on circumstantial evidence if such evidence is consistent with his guilt and also inconsistent with any reasonable hypothesis of innocence. Mere suspicion, probabilities or suppositions are insufficient. Driggers v. State, 164 So.2d 200 (Fla.1964); Lyons v. State, 47 So.2d 541 (Fla.1950). The circumstantial evidence in this case does not meet that standard.

Accordingly, we hold the learned trial judge erred in denying defendant’s motion for discharge made at the close of the state’s case and again at the close of all of the evidence.

The judgment of guilt is reversed and defendant is discharged from the conviction and sentence here appealed.

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


text:
    Michael L. EVANS, Petitioner, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, a corporation, Respondent.
    No. HH-418.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1978.
    Rehearing Denied March 8, 1978.

      John F. Roscow, III and James L. Tom-linson of Scruggs, Carmichael, Long, Tom-linson, Roscow, Pridgeon, Helpling & Young, Gainesville, for petitioner.
    Milton H. Baxley, II, Gainesville, for respondent.
   PER CURIAM.

Petitioner, by common law writ of certio-rari, seeks reversal of the trial court’s interlocutory order entitling Florida Farm to a set-off for personal injury protection benefits paid against the underinsured motorist coverage provided. We find no departure from the essential requirements of law since opinions from two other district courts of appeal have held contrary to petitioner’s position.

The petition is DENIED.

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

      . Stuyvesant Insurance Company v. Johnson, 307 So.2d 229 (Fla. 4th DCA 1977), cert. den. Fla., 316 So.2d 290; Fidelity and Casualty Co. of New York v. Moreno, 350 So.2d 38 (Fla. 3rd DCA 1977).