author: BERANEK, Judge.

text:
    Jack Stanley MARINOS, Appellant, v. STATE of Florida, Appellee.
    No. 77-460.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Rehearing Denied June 29, 1979.
    Rehearing Denied July 25, 1979.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This case presents the question of whether the following jury instruction constitutes prejudicial error:

Proof of unexplained possession by the defendant of property recently stolen may justify a conviction of larceny of that property if the evidence of the taking and the circumstances of the possession, when considered in the light of all of the evidence in the case convince you beyond a reasonable doubt that the defendant committed the crime.

The above charge was given over objection in defendant’s trial and conviction of grand larceny. Defendant elected not to take the stand and now asserts this charge to be error. In view of State v. Young, 217 So.2d 567 (Fla.1968), we have no alternative and hold the instruction to be free from error. This Court has previously followed the Young decision in Dixon v. State, 227 So.2d 740 (Fla. 4th DCA 1969).

Were we not bound by the aforementioned Supreme Court decision, we might well reconsider this entire question. The dissent in Young, written by Justice Thor-nal and concurred in by two others expresses a contrary view. This dissent holds that “any possession” rather than “unexplained possession” will support the inference of guilt. This view was based on the “newly recognized constitutional protections,” stated in Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We now have over a dozen years’ experience with these newly recognized principles and would urge reconsideration by modification of the instruction as suggested in the dissent.

The judgment below is affirmed on authority of State v. Young, 217 So.2d 567 (Fla.1968).

AFFIRMED.

DAUKSCH and LETTS, JJ., concur.


source: Caselaw Access Project

author: LETTS, Judge. DAUKSCH, Judge,

license: Public Domain

text:
    Gertrude E. KENNEDY, as Trustee, Appellant, v. Mollie N. WILMOT, Appellee.
    Nos. 77-2252, 77-2253.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Rehearing Denied July 2, 1979.
    Eugene C. Heiman and Judith H. Hayes of Heiman & Heiman, Miami, for appellant.
    Ronald Sales, Palm Beach, for appellee.
   LETTS, Judge.

The seller of a parcel of land here appeals the granting of a summary judgment effectively excusing the buyer from specific performance. We reverse.

We believe there are several questions of fact remaining unresolved in this cause. For example:

1. Was the original delivery to the buyer, of the abstract, timely?

2. Was the original delivery of the abstract made to the purchaser’s attorney?

3. Did the actions of the buyer’s husband bind the buyer so that she was es-topped to deny that Beall was her attorney?

4. Does Beall’s testimony indicate that he was, or was not, the purchaser’s attorney?

5. Did the purchaser have a duty to examine the abstract delivered and notify the seller as to the state of the title?

6. Would the encroachment have been removed prior to the expiration of all time limits set forth in the contract of sale and did the purchaser waive it by not securing a survey?

7. Would the seller have secured the abandonment of the road bisecting the property by the expiration of all time limits set forth in the contract of sale?

8. Was the variation in setback lines from the “approximate” dune line, a substantial breach of the seller’s representations in the contract?

This case has developed into an extraordinary maze of pleadings and allegations. However, there is just no way around several, unresolved, although perhaps unresolvable, issues of fact which preclude summary disposition.

As to the additional problem concerning the operative date on which title deficiencies would have to be cured, by reason of the alleged specification of them as warranties riot defects, we do not agree that a requirement in a sales contract that there be no encroachments, easements, or set back violations would, instanter, vitiate it simply because these shortcomings exist. If the seller can cure any such offending deficiencies within the proper time limits set forth, so that he can timely present the title in acceptable form, then such a course of curative action should suffice. The warranty deed is presented at closing, not on the initial date on which the sales contract is signed.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

DOWNEY, C. J., concurs.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge,

concurring specially:

There are substantial questions of fact which were left unresolved by the summary judgment and the resolution of which might lead to a judgment for either party. For that'reason I concur in the reversal but I do not deem it appropriate for us to comment upon the warranties or defects concerning alleged encroachments, or the characterization of the attorney’s testimony.

      . His testimony comes close to admitting that he was her attorney and certainly raises an issue of fact as to what his relationship was.


author: PER CURIAM.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, a Maryland Corporation, Appellant, v. Fred CURRY, Jr., and Fidelity & Casualty Company of New York, Appellees.
    No. 78-1125.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Rehearing Denied June 25, 1979.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appellant.

      Silverstein & Prichason, Fred G. Pricha-son, Miami Beach, for appellees.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff insurer, United States Fidelity & Guaranty Company (U.S.F.&G.), appeals a final declaratory judgment permitting defendant Fred Curry, Jr. to stack $15,000 in uninsured motorist benefits provided for in the liability policy issued by U.S.F.&G. to Curry’s employer. The following facts are undisputed.

Defendant Curry was an employee of Grand Union Stores, Inc. to which A 1 Truck & Trailer Rentals, Inc. (A- 1) supplied vehicles for business use. On April 1, 1976 Curry, while in the course of his employment and while operating a vehicle owned by A-l, was involved in an automobile accident with Neysa Walsh. The accident occurred as a result of her negligence. Walsh was insured under a policy with liability limits of $30,000. Because of liability payments to other claimants, only $11,000 in liability coverage was available to Curry. Curry was insured under a personal automobile liability insurance policy with limits of $15/30,000 issued by Fidelity & Casualty Company of New York. U.S.F.&G. issued a policy to A-l which provided uninsured motorist coverage in the amount of $15/30,000. Curry made a demand for arbitration against U.S.F.&G. with regard to the $15,-000 uninsured motorist provision as an underinsured pursuant to Section 627.726, Florida Statutes (1975). Thereupon, U.S. F.&G. filed the instant complaint for declaratory judgment against Curry and his personal insurer, Fidelity & Casualty Company of New York, and sought a determination that the uninsured motorist benefits issued by it to A-l were not applicable to any loss sustained by Curry. After a trial, the court entered judgment finding that Curry is entitled to stack the uninsured/underinsured motorist benefits provided by both Fidelity & Casualty Company and U.S.F.&G. (to be set off by the $11,000 settlement from Walsh’s carrier). U.S. F.&G. appeals therefrom.

U.S.F.&G. on appeal claims error in the trial court’s determination and in support thereof cites to Government Emp. Ins. Co. v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977) which holds that a person who is a named insured under a policy (or a member of the same household of the named insured) may stack; but a person who is not related to the policyholder and is a beneficiary of the owner’s policy, by having occupied the vehicle at the time of the accident, is not permitted to stack the uninsured motorist coverage of the owner. We reject the holding of this case because our Supreme Court in Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966) and Allstate Insurance Co. v. Dairyland Insurance Co., 271 So.2d 457 (Fla.1972) held that an insured, like Curry in the instant cause protected by more than one policy of uninsured motorist insurance (by virtue of he or she being a beneficiary of the owner’s policy by having occupied the vehicle at the time of the accident), was entitled to recover under all such policies to the extent of his or her bodily injury by an uninsured motorist. This holding was again reiterated and approved in Tucker v. Government Employees Insurance Company, 288 So.2d 238 (Fla.1974).

Accordingly, the declaratory judgment is affirmed.

Affirmed.


author: KEHOE, Judge.

text:
    Luis STABINSKI, Individually and on behalf of all persons similarly situated, Appellants, v. PIRELLI TIRE CORPORATION, a Foreign Corporation, Appellee.
    No. 78-1669.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Rehearing Denied June 25, 1979.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellants.
    George & Thompson and Charles K. George, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate J udge.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an order entered by the trial court dismissing with prejudice his class action complaint, as amended, seeking compensatory and punitive damages from ap-pellee, defendant below, for the breach of express and implied warranties, negligence, strict liability, and fraudulent concealment involving his, and all other persons similarly situated, purchase of allegedly defective tires from appellee. We,affirm in part and reverse in part.

Appellant’s basic contention on appeal is that his amended complaint was legally sufficient and that its dismissal with prejudice was improper.

In our opinion, that part of the trial' court’s order dismissing with prejudice appellant’s amended complaint as a class action and as an action for breach of express warranty was proper. The only express warranty involved in the pleadings in this cause shows, on its face, that it applies to the use of appellee’s tires on only American automobiles, not foreign cars such as the one used by appellant; therefore, appellant is not within any class or covered by any express warranty alleged or shown in the record. See Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla. 2d DCA 1963); and Fla.R. Civ.P. 1.220. Accordingly, those portions of the trial court’s order dismissing with prejudice appellant’s amended complaint in regard to a class action and for breach of an express warranty are affirmed.

However, in regard to the other allegations in appellant’s amended complaint, we believe that it would serve the best interests of justice for him to be allowed to further amend his complaint to state any cause of action which he may have. See, e. g., Rice v. Walker, 359 So.2d 891 (Fla. 3d DCA 1978). Accordingly, we affirm the remaining portions of the trial court’s order dismissing appellant’s amended complaint, except, other than as provided for above, that portion doing so with prejudice. The cause is remanded for further proceedings.

Affirmed in part, reversed in part, and remanded.


author: SCHWARTZ, Judge.

text:
    Robert G. BARNASON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-578.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Rehearing Denied June 15, 1979.
    Bennett H. Brummer, Public Defender and Robert L. Moore, Special Asst. Public Defender; Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Jim Smith, Atty. Gen. and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The defendant appeals from the judgment and sentence entered after a jury found him guilty of second degree murder. We find that neither of the contentions he advances for reversal has merit.

Barnason, a white non-Latin, first argues, relying almost entirely on Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), that Blacks and Latins were substantially underrepresented on the grand jury which indicted him. We need not reach the merits of this contention because, as the majority opinion in Castaneda itself holds, at 430 U.S. 494, 97 S.Ct. 1280, 51 L.Ed.2d 510:

“ . . .in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial under-representation of his race or of the identifiable group to which he belongs.” [emphasis supplied]

Since the defendant is not a member of the race or group allegedly underrepresented on the grand jury, he clearly lacks standing to assert the claim that its composition denied him equal protection.

In his second point, Barnason claims error in the denial of his motion to suppress the confession he made to a police officer after he had been taken into custody in Vermont. We do not agree. The record demonstrates that, as the trial judge held, the statement was made voluntarily and only after the defendant had been fully informed of his Miranda rights and had specifically waived them both orally and in writing. It is ably argued, however, that the statement was the product of psychological coercion. See 9 Fla.Jur., Criminal Law, § 149 (1972), and cases cited. This contention is founded essentially upon the fact that the methods of interrogation used by the officer, although not involving any of the forbidden elements of force, promise or threat, were so psychologically effective as to break down Barnason’s will and produce the confession. The adoption of this argument would, in effect, render inadmissible every statement by a defendant while under police questioning, as the product of a degree of coercion which is inherent in every such situation. In common with every other court which has considered such a claim, we reject this view. See Paulk v. State, 211 So.2d 591 (Fla. 2d DCA 1968); Ebert v. State, 140 So.2d 63 (Fla. 2d DCA 1962), and cases cited. In a case such as this one, in which a mentally competent and aware defendant has been given appropriate Miranda warnings and has not been placed in “fear of material or physical harm, or [given] hope of material reward . ” Denmark v. State, 95 Fla. 757, 762, 116 So. 757, 759 (1928), his voluntary confession may properly be admitted into evidence. See also Halliwell v. State, 323 So.2d 557 (Fla.1975); State v. Oyarzo, 274 So.2d 519 (Fla.1973); Paramore v. State, 229 So.2d 855 (Fla.1969).

Affirmed.

      . The members of the Dade County grand jury involved in this case were chosen by the circuit judges of the 11th circuit acting as grand jury commissioners pursuant to Fla.Laws Chs. 57-500 and 70-1000. The constitutionality of that system was upheld in Seay v. State, 286 So.2d 532 (Fla.1973) and State v. Dewetree, 213 So.2d 709 (Fla.1968) over challenges which did not involve the contention and the attempted statistical showing of purported discrimination which were presented in this case.
      Fla.Laws Chs. 57-500 and 70-1000 were repealed by Fla.Laws 1978, Ch. 78-455, which initiated the system of random computer selection of the Dade County grand jury from the voters’ registration rolls which is now in effect.

      . The rule as to standing is different when the defendant raises a claim that the petit jury which convicted him does not represent a “fair cross section of the community.” Duren v. Missouri, - U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The reason and constitutional basis for the distinction are explained in Justice Powell’s dissenting opinion in Castaneda, 430 U.S. at 509-510, 97 S.Ct. at 1287, 51 L.Ed.2d at 520.
      Compare also Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) in which the Supreme Court held that a white defendant may challenge’ both his grand jury and petit jury, on the ground that Blacks had been arbitrarily, systematically, and totally excluded solely by reason of race. As is shown by the rationale of Justice White’s separate opinion in Peters, in which Justices Brennan and Powell joined so as to make up a majority of the court concurring in the judgment, 407 U.S. at 505-507, 92 S.Ct. at 2169-2170, 33 L.Ed.2d at 95-96, that situation is to "be distinguished from the claim of grand jury underrepresentation involved in the Castaneda case and in this one.

      .The officer, Fernandez, employed what he called the “agitation and stroking” technique of questioning Barnason in which the interrogator picks at the suspect’s psychological weaknesses and insecurities and at the same time seeks to reassure him with protestations of personal friendship and confidence. We see no constitutional reason for the disapproval of this technique, or any other, merely because it proves to be successful in securing a confession.


author: LETTS, Judge.

text:
    Marie L. PATIN, Appellant, v. Carl A. PATIN, Appellee.
    No. 77-2030.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.
    Royce D. Pipkins and Robert H. Walker, Casselberry, for appellant.
    Robert 0. Marks, Marvin E. Newman and Jon S. Rosenberg & Marks, Orlando, for appellee.
   LETTS, Judge.

The wife here appeals a final judgment of dissolution awarding no periodic alimony for the first 6 years after which, permanent alimony of $25.00 per week is to commence. We reverse in part.

This involves yet another breakup of a long-term marriage of 20 years duration with 4 children, three of them minors, the youngest aged 12. Apart from a small award of lump-sum alimony, which we conclude involved no abuse of discretion, the final judgment awarded custody and $80.00 per week child support. No immediate periodic alimony was awarded except that when the last child became of age, permanent alimony of $25.00 per week was to commence.

Both parties are in their early forties, the wife never having worked since very early on in the marriage (before that she was in the service) and the husband having recently retired from the Navy as a lieutenant commander with a take-home after tax weekly pension of $251. At the time of the final hearing he was studying for his masters degree and also receiving V.A. educational benefits of $440 per month. The wife is unemployed and has virtually no income, but possesses limited clerical skills. Both are in good health although the wife claims some emotional problems.

The state of the law is clear that based on the foregoing facts the wife was entitled to permanent alimony on the day of dissolution, McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977) and McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1978). It also appears that the trial judge himself felt she was so entitled because he did award it, although not to commence until a later date. It is clear that if she is entitled to any alimony, she needs support now. The husband has the present ability to pay alimony, his wife needs it and her former position and circumstance as a lieutenant commander’s wife was considerable, Caracristi v. Caracristi, 324 So.2d 634 (Fla. 2d DCA 1976). The husband is also preparing himself, with generous assistance from the V.A., to earn much much more.

As to the $25.00 awarded, it is admitted that the wife left the husband and went to live with another woman. The wife denies any marital infidelities with her female companion who also gratuitously assists with the wife’s support; but there is considerable circumstantial evidence of a homosexual relationship and we could not conclude that the trier of the fact was in error if he so found. We have seen that evidence of adultery may be considered in any alimony award. Pro v. Pro, 300 So.2d 288 (Fla. 4th DCA 1974), and recognize that the applicable statute so authorizes, Section 61.08(1), Florida Statute (1977). Yet we know of no prior case applying this to a homosexual relationship. Notwithstanding, we find no substantial distinction, because both involve extra-marital sex and therefore marital misconduct.

We note in the case at bar, however, that the trial judge made some findings of fact but made no mention of any such marital misconduct. Accordingly, this cause is remanded in order to determine if the low alimony award was predicated on such a finding even though it is not expressed. If no such finding was intended, then we consider the award of $25.00 to be inadequate and direct the trial court to consider a more appropriate award. On the other hand, if a finding of marital misconduct is confirmed and was a predicate, the trial judge shall be free to reconsider the issue of alimony and the amount thereof (except that if any amount shall be deemed appropriate, it shall commence immediately).

REVERSED IN PART AND REMANDED.

DOWNEY, C. J., and MOORE, J., concur.

      . She does receive $100 per year from her mother’s estate.


text:
    Juan L. NAYA, Appellant, v. Yolanda NAYA, Appellee.
    No. 78-1892.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Rehearing Denied June 25, 1979.
    Juan E. Acosta and Laurence A. Wan-shel, Miami, for appellant.
    Nachwaiter, Christie & Falk and Jay M. Levy, Miami, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

Contrary to the appellant-husband’s sole contention on appeal, the record contains sufficient evidence of the wife’s needs to justify the award of attorney’s fees made to her below. See Josephs v. Josephs, 357 So.2d 206 (Fla. 3d DCA 1978); Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977).

Affirmed.


text:
    Vaughn MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 79-666.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.
   PER CURIAM.

Vaughn Monroe appeals the summary partial denial of his Rule 3.850 motion. We vacate the trial judge’s order disposing of the motion because the motion was not under oath.

Fla.R.Crim.P. 3.850 specifically provides that a motion for postconviction relief, submitted pursuant thereto, “shall be under oath.” We believe this requirement to be an absolute prerequisite to the trial court’s consideration of any such motion as it is the only effective way to prevent the use of false allegations in motions for postconviction relief.

Accordingly, we remand this case to the trial court with instructions to deny the motion without prejudice to appellant to file a sworn motion.

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


text:
    OFFICE OF the PUBLIC DEFENDER OF the NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, Florida, Petitioner, v. Honorable Joseph P. BAKER, Judge of the Circuit Court of the Ninth Judicial Circuit, Juvenile Division, Respondent.
    No. 78-2444.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.
    Rehearing Denied July 2, 1979.

      Harry W. Carls III, Public Defender, and H. Scott Gold, Asst. Public Defender, Orlando, for petitioner.
    Walter Komanski, Legal Aid Society, Orlando, for respondent.
   BERANEK, Judge.

The Office of the Public Defender in Orange County, Florida, seeks a writ of prohibition directed to a Circuit Judge sitting in the Juvenile Division of the Circuit Court. The respondent is Circuit Judge Joseph P. Baker, who is represented by the Legal Aid Society of Orange County. This Circuit Judge appointed the Public Defender’s Office to represent a juvenile in a dependency matter brought under Part III, Dependency Cases, of the 1978 Florida Juvenile Justice Act. The trial judge denied a motion by the Public Defender to withdraw from the representation of this juvenile.

Neither the State of Florida nor the alleged dependent child, nor her parents are parties to this prohibition proceeding.

The dependency petition states as follows:

Your Petitioner, Minnie Lee Grimmage, whose address is 256 W. 15th St., Apopka, Florida, respectfully represents under oath that said child at the age 14 years is a (sic) alleged dependent/ungovernable child within the intent and meaning of Florida Statutes, in that, to-wit:
Persistently disobeys the reasonable and lawful demands of his (sicfparents or other legal custodians and is beyond their control.
Your petitioner, mother of said child, entered Orange Memorial Hospital on July 28, 1978, for surgery after placing said child in the care of my sister, Geraldine Grimmage, Box 1757, South Park Ave., Apopka, Florida. Said child ran from Geraldine Grimmage on July 30, 1978. Various relatives reported that said child was seen in vicinity of several Apopka bars with older and undesirable companions and allegedly has consumed drugs and/or alcohol. Relatives’ at-
tempts to return said child to the care of Geraldine Grimmage failed. Your petitioner reported said child as missing to the Orange County Sheriff’s Department on July 31, 1978. Orange County Sheriff’s Department apprehended said child on August 2, 1978, and transported her to DuRocher House. Said child was returned to your petitioner on August 4, 1978, and agreed to obey your petitioner. On Sunday, August 6, 1978, said child departed for an unknown destination and has not returned. Allegedly, said child has been seen twice on Monday, August 7, 1978, in the Big C Bar, S. Central Avenue, Apopka, Florida, in the company of an unknown man and one Stephanie Toney, age 17 years. In the past, said child has often run away in order to run the streets at will with companions your petitioner deems are an undesirable influence on said child. Said child rarely attended school this last school year despite the inducements of your petitioner, Mrs. Louisa Damon, Attendance Assistant of Orange County Schools and Mrs. Mary Montgomery of Health & Rehabilitative Services. Said child refuses to obey your petitioner’s reasonable demands and is completely out of control and her present exact whereabouts are unknown.
Your petitioner respectfully requests that following a hearing on the evidence, said child be adjudicated and be dealt with according to law.

This charge is within the definitions contained in Section 39.01(9) of the 1978 Florida Juvenile Justice Act. The charge of dependency covers some acts which were formerly characterized as “ungovernable” under previous versions of Chapter 39, Florida Statutes. As of October 1, 1978, the 1978 Florida Juvenile Justice Act became effective. Prior thereto Section 39.01(9) provided that for the second and subsequent adjudications of ungovernability the child could be defined and treated as a delinquent. This statutory provision no longer exists. It was specifically deleted from the 1978 revision which also completely did away with the use of the word, “ungovernable.”

Two Florida Supreme Court decisions must be considered in answering the question posed here which is simply whether the Public Defender’s Office has a statutory duty to represent juveniles charged as being dependent under the 1978 version of Section 39.01(9). These decisions are: In Interest of Hutchins, 345 So.2d 703 (Fla.1977), and In Interest of C. F., 345 So.2d 709 (Fla.1977). Both of these cases dealt with the question of whether the Public Defender’s Office could permissibly represent juveniles charged as ungovernable under the pre-1978 juvenile statutes. In the Hutchins case, the Florida Supreme Court construed In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and held that the first hearing on ungovernability was not necessarily a first step in the adjudication of delinquency. In so holding, the Court specifically stated that in such cases the constitutional right to counsel was not mandatory. Notwithstanding this ruling, the Court considered the practical effect of the pre-1978 statute which provided for a determination of delinquency based on a second conviction of ungovernability. The Court thus reasoned that a first petition for ungo-vernability might well be the first step in the eventual adjudication of delinquency and that in such cases the juvenile had the right to counsel and that the State had a duty to provide counsel to indigent juveniles.

The pre-1978 law defined juveniles generally in the three classes of dependent, ungovernable and delinquent. The first ungovernable determination resulted in treatment as a dependent and the second ungovernable determination resulted in treatment as a delinquent.

The 1978 revision of the juvenile law specifically deleted any possible determination of delinquency based on two or more adjudications of ungovernability or of dependency. Thus, under the applicable statute, a dependency petition cannot form the basis for a later delinquency determination and a dependency hearing is not a critical first step in the delinquency determination.”

In considering the certified question in the case of In Interest of C. F., 345 So.2d 709, at 710 (Fla.1977), the Court stated:

Section 27.51, Florida Statutes, specifies the conditions under which the public defender shall undertake the representation of a juvenile alleged to be a delinquent child. ... It follows, therefore, that if the first ungovernable petition is filed in contemplation of it being the first step in delinquency proceedings, the court must instruct the child as to his right to counsel or provide counsel if the child is indigent, and in such case, the public defender may represent the child as in other delinquency proceedings.

It seems clear that this statutory duty of the Public Defender to represent the child was based solely upon the delinquency aspect of the first ungovernable petition. Section 27.51 Fla.Stat. (1977) defining the duties of Public Defender remains in effect. There is nothing in this statute giving the Public Defender the duty to represent a child alleged to be dependent. There is nothing in Chapter 39 or in Chapter 27 giving the Circuit Court the power to appoint the Public Defender in such cases. We hasten to point out that this decision deals solely, with the Public Defender’s statutory duty to represent. We are not here faced with the question of the constitutional right of counsel of either the child or the parents.

The petition for writ of prohibition is granted. The order appointing the Public Defender is vacated. The matter is remanded to the trial court with directions to grant the motion to withdraw filed by the Public Defender.

PROHIBITION GRANTED.

DOWNEY, C. J., concurs.

CROSS, J., dissents without opinion.

      . § 39.40-39.414 Fla.Stat. (Supp.1978).


author: PER CURIAM. ANSTEAD, Justice,

text:
    David K. MILLER, Jr., a/k/a David Kelly Miller, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1153.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

DAUKSCH, J., and SCHOONOVER, JACK R., Associate Judge, concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Justice,

concurring specially:

One of the errors complained of here was the failure of the trial court to strike the testimony of an identification witness, the victim of the robbery involved, who had conversed with the prosecuting attorney about the identity of the appellant, then present in the courtroom, prior to testifying. The witness had been unable to identify the appellant prior to trial. Before testifying, according to the prosecutor, the witness pointed to the appellant seated in the courtroom and said, “That’s the boy that did it, isn’t it?” The prosecutor confirmed that appellant was indeed “the boy that did it.” According to the appellant, the witness asked the prosecutor, “Is that the guy who did it, right there?” and the prosecutor responded affirmatively. Regardless of which version is true, I think it was error for the prosecutor to have confirmed the identity of the appellant to the witness. However, I believe under the circumstances here that such error was harmless. The conduct of the prosecutor and the failure of the witness, to identify the appellant prior to trial were brought out before the jury. In addition, two alleged accomplices of appellant testified, completely corroborating the victim’s testimony. And although both of the accomplices received favorable treatment from the state in exchange for their testimony, this information was fully disclosed to the jury. Accordingly, I concur in the affirmance of appellant’s conviction.


author:
PER CURIAM.
      ANSTEAD, Justice,

text:
    Russell Wayne KNOTT, a/k/a Rusty Holloway, Appellant, v. STATE of Florida, Appellee.
    No. 77-2673.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.
    Richard L. Jorandby, Public Defender, and Sara Biesky Blumberg, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and BERANEK, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Justice,

dissenting:

The chief witness against the appellant at his robbery trial was a former co-defendant. The trial court permitted the appellant to inquire into the disposition of charges filed against the co-defendant arising out of the same incident. However, in a proffer it was shown that the witness also had other robbery charges pending against him in another division of the circuit court to which he had allegedly agreed to enter a guilty plea to a lesser charge in exchange for the state’s recommendation that any sentence be served concurrently with the sentence received in the case involving appellant. The trial judge refused to allow any inquiry as to the other case. We have previously held that such refusal constitutes prejudicial error mandating a new trial. Lee v. State, 318 So.2d 431 (Fla. 4th DCA 1975). While I realized that the prejudicial effect must be separately determined in each case, I am forced to conclude that the error here cannot be distinguished from that in Lee, supra.


author: PER CURIAM. MILLS, Acting Chief Judge,

text:
    T. L. M., a child, Appellant, v. STATE of Florida, Appellee.
    No. LL-302.
    District Court of Appeal of Florida, First District.
    June 5, 1979.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr. and A. S. Johnston, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This is a timely appeal from a final adjudication of delinquency and commitment to the custody of Children’s Services, Department of Health and Rehabilitative Services, State of Florida. Appellant entered a plea of nolo contendere with express reservation of the right to appeal the denial of the motion to suppress. We reverse.

T.L.M. was a fifteen year old child against whom a petition of delinquency was filed for disorderly conduct and carrying a concealed weapon, to wit: a piece of sawed-off pool cue. The disorderly conduct charge was dismissed by the court after a motion and a hearing and the motion to suppress the portion of the pool sue was denied.

The motion to suppress the pool cue urged that it was illegally seized without a warrant and that the search and seizure was without probable cause. At the hearing on the motion, the police officer involved in the arrest testified that he was called to the local hospital because it was reported that two people were causing a disturbance. When he arrived, the two people involved were standing outside the hospital. He went up and talked to them ascertaining their names and ages. When he found out they were juveniles, he decided to take them to the jail and, following police department policy, he searched them before he put them in the police cruiser. The search of appellant revealed the piece of sawed-off pool cue in the waistband of his pants.

The police officer stated that he asked the juveniles to go down to the station because of their age, the time (about 2 a. m.), and they “smelled of alcoholic beverages and acted to be under the influence of alcoholic beverages at that time.” He stated that it was his practice to detain juveniles he finds in the early hours of the morning to try to find out if their parents know where they are or where they have been and to try to find out why they are out at that time of the morning. They are always searched when they are transported in the car.

Appellant concedes that if the officer had the authority to take appellant to the jail, he had the authority to search appellant before putting him in the police car. The issue, then, is whether the police officer had the authority to take appellant to the jail under the circumstances. Under Section 39.03(1), Florida Statutes (1977), a child may be taken into custody “for a delinquent act, pursuant to the laws of arrest.” There is nothing in the evidence presented to indicate that the officer had probable cause to believe that appellant had committed a felony or that appellant had committed a misdemeanor in the officer’s presence. The state urges on this appeal that the officer did have the authority to arrest appellant for disorderly intoxication because of the officer’s testimony that appellant smelled of alcoholic beverages and acted as if he were under the influence. Section 856.011(1), Florida Statutes (1977) provides:

“No person in the state shall be intoxicated and endanger the safety of another person or property, and no person in the state shall be intoxicated or drink any alcoholic beverage in a public place in or upon any public conveyance and cause a public disturbance.”

In State v. Holden, 299 So.2d 8 (Fla.1974), the Florida Supreme Court held that statute to be constitutional as a valid delegation of authority only if it “is controlled and confined to situations where the public safety is endangered.” There was no testimony by the officer that he had any reason to believe that the public safety was endangered or that he saw appellant creating a disturbance. On the contrary, he testified that when he arrived at the hospital appellant was standing talking to another person. The contention by the state that it- is sufficient for the evidence to show that appellant was intoxicated in a public place and that he caused a disturbance while under the influence even though that disturbance was committed outside the presence of the officer is not supported by case law. When there is an arrest for a misdemeanor, all elements of the offense must occur in the officer’s presence. Kirby v. State, 217 So.2d 619 (Fla. 4th DCA 1969).

Under the circumstances of this case, we hold that the search was unreasonable and the motion to suppress should have been granted. REVERSED.

ROBERT P. SMITH and ERVIN, JJ., concur.

MILLS, Acting Chief Judge,

dissenting:

I dissent.


author: TYSON, ROBERT W., JR., Associate Judge.

text:
    Rosetta DRISDOM, as the mother and natural guardian of Tangela Williams, a minor, Appellant, v. GUARANTEE TRUST LIFE INSURANCE COMPANY, Appellee.
    No. 78-52.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.

      Mark J. Feldman, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.
    Before HENDRY and CHARLES CARROLL (Ret.) and TYSON, ROBERT W., Jr., Associate Judges.
   TYSON, ROBERT W., JR., Associate Judge.

Rosetta Drisdom, plaintiff below and natural mother of Tangela Williams, appeals from a final judgment entered upon a directed verdict in favor of the appellee, Guarantee Trust Life Insurance Company. As a result of the final judgment, appellant was precluded from recovering under a policy of insurance issued by the appellee.

The sole issue on appeal involves whether the trial court was correct in ruling, as a matter of law, that no coverage was afforded the appellant under the applicable policy of insurance. We hold that the appellant presented a prima facie case in favor of coverage and that the trial court erred in directing a verdict for the insurer.

The material facts are not in dispute: Eleven-year old Tangela Williams broke her hip participating in a track event conducted by the YMCA while she was attending its after-school program. The accident occurred in the elementary school playground located across the street from the “Y” building. Although not otherwise connected with the YMCA, this playground was the regular site of various recreational activities sponsored by the YMCA, including softball and track. The playground had been used by the YMCA for its outdoor activities for a number of years prior to Tangela’s accident. All playground events were under the supervision of YMCA counselors and were a regular part of the after-school program.

As a result of these injuries, Tangela’s mother, the appellant herein, incurred medical expenses exceeding $6,000. When she applied for insurance benefits with the Guarantee Trust Life Insurance Company to cover her medical expenses, the insurer denied her application on the ground that her claim did not fall within the scope of the policy. The policy in question was a group insurance policy issued by Guarantee Life to the YMCA covering certain losses caused by accidents to students (and others) in the YMCA program.

Appellant then filed this suit against the insurer for the medical expenses she incurred as a result of her daughter’s accident. She contended that the policy applied to the accident and that she was entitled to recover up to the maximum limits of the policy (i. e., $5,000). Guarantee Trust denied that the policy applied to Tangela’s accident.

The issue of insurance coverage eventually was tried before a jury. At the conclusion of the trial, the jury returned a verdict in favor of the appellant in the amount of $4,000. However, the trial court reserved ruling on the appellee’s motion for a directed verdict and later directed a verdict in its favor. Final judgment was entered pursuant to the directed verdict and this appeal followed.

Guarantee Trust Life Insurance Company issued to the YMCA an insurance policy which insured students enrolled in its after-school program, including Tangela Williams, for certain medical expenses, not to exceed $5,000, caused by an accident while the insured was “attending school during the hours and on the days when school is in regular session.” The policy defined school as “the actual individual school in which the Insured attends classes or is employed.”

Appellee contends that Tangela could recover under the policy only if she had been injured within the confines of the “Y” building or the surrounding property under its control. Since she was injured in an elementary school playground located across the street from the “Y” building, she was not in the actual individual school at the time of the accident, and therefore was not covered by the policy. We cannot agree.

The undisputed facts clearly show that Tangela attended the YMCA after-school program during its regular sessions; that is, she was at “school” during the hours and on the day when the program was in regular session. The YMCA as an integral part of its program, routinely and regularly took the students and walked them across the street to the playground. A variety of sports activities took place on the playground under YMCA auspices, including the track race in which Tangela was injured.

We believe that the term “school” is not defined in the policy in such a way as to effectively preclude recovery in this instance. The “actual individual school” is susceptible to at least two different interpretations: (a) it could mean the physical structure in which the YMCA program is housed, i. e., the “Y” building; or (b) it could mean the school activities sponsored by the YMCA and conducted under its auspices as part of its regular program. This latter meaning could include those activities taking place in a nearby park regularly used as a continuing part of the after-school program.

Our conclusion is supported by the fact that the insurer could easily have defined “school” in such a way as to eliminate any possibility of ambiguity. “School” could have been defined as the property on which the physical structure housing the program was located. We note in this regard that the appellee did restrictively define “residence” as “the property on which the home, dwelling place, or residence is located.”

Clearly, had the playground been a part of the YMCA property, the appellant could recover under the policy. We cannot say that the policy thereby excluded recovery simply because the YMCA chose to conduct its track program across the street, rather than on its own property.

Appellee further contends that the YMCA could have included within the policy a clause which would cover students who were “participating in or attending an activity exclusively organized, sponsored and solely supervised by the school and school employees, including travel directly to or from such an activity in a vehicle furnished by the school and supervised solely by school employees.” Appellee’s position is that the YMCA chose not to obtain this expanded coverage which would have authorized recovery in this instance. Since this provision was expressly deleted from the policy, appellee contends that Tangela’s injury was not covered under the effective policy.

We cannot agree that this provision would necessarily have covered the accident here even if it had been included within the policy. It is apparent to us that this deleted clause was designed to cover other activities outside the scope of our present concern. It would cover field trips and other extracurricular activities not included within the everyday routine conducted by the YMCA. The track race in which Tangela was injured was an everyday routine activity and, therefore, did not fall within the ambit of the deleted clause.

When an ambiguity exists in an insurance policy, any uncertainty must be construed against the insurer and in favor of the insured. See e. g., Stuyvesant Ins. Co. v. Butler, 314 So.2d 567 (Fla.1975); Hartnett v. Southern Ins. Co., 181 So.2d 524 (Fla.1965); American Manufacturers Mut. Ins. Co. v. Horn, 353 So.2d 565 (Fla. 3d DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978).

It is generally for the court and not for the jury to determine the extent of coverage under an insurance policy. State Farm Fire & Casualty v. Lichtman, 227 So.2d 309 (Fla. 3d DCA 1969); United Services Automobile Association v. Porras, 214 So.2d 749 (Fla. 3d DCA 1968). The jury must resolve whether the insured’s loss falls within the terms of the policy. State Farm Fire & Casualty v. Lichtman, supra. Particularly where there is a latent ambiguity in the policy as distinguished from a patent ambiguity, extrinsic evidence such as parol evidence is permissible to explain such ambiguities. Landis v. Mears, 329 So.2d 323 (Fla. 2d DCA 1976); City of St. Petersburg v. Internationa] Assoc. of Firefighters, 317 So.2d 788 (Fla. 2d DCA 1975).

During the trial below, parol evidence was admitted which indicated that the YMCA fully intended that it would be covered for accidents of this nature. The insurance agent who sold the policy to the YMCA testified that he understood the policy to cover children participating in outdoor activities sponsored by the YMCA on the elementary school playground. We approve of the trial court’s action in admitting this evidence where there was at least a latent ambiguity in the policy concerning whether Tangela Williams was attending “school” at the time of her injury.

Our view of the entire record convinces us that the appellant presented sufficient evidence to sustain a jury verdict in her favor. It was, therefore, error for the trial judge to direct a verdict for the appellee.

This case is returned to the trial court with directions to reinstate the jury verdict, enter final judgment for the appellant on the verdict and for such other proceedings as are deemed necessary.

Reversed and remanded.

      . No one disputes that the after-school program itself is covered by the policy and that appellant would have recovered had Tangela been injured upon YMCA property. The policy is apparently a standard one widely used to insure public and private school employees and students. For our purposes, the YMCA after-school program is included within the policy meaning of “school”.

      . A latent ambiguity has been defined as an ambiguity where the language employed in the policy is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings. A patent ambiguity is that which appears on the face of the instrument and arises from the defective, obscure or insensible language used. Ace Electric Supply Co. v. Terra Nova Electric, 288 So.2d 544 (Fla. 1st DCA 1973).

      . We have given the appellee the benefit of the doubt by classifying the ambiguity herein as latent. The term “school” is obscurely defined on the face of the policy.


text:
    Myra BILAMS, as Administratrix of the Estate of Leon Bartley, Deceased, for the benefit of Myra Bilams, Appellant, v. METROPOLITAN TRANSIT AUTHORITY, a Political Subdivision of the State of Florida, and Metropolitan Dade County, Appellees.
    No. 78-1282.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.

      Wolfson & Diamond and J. William Kirkland, Miami Beach, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

In the morning of February 7, 1975, while on his way to school, an 11-year-old boy named Leon Bartley was struck and killed by a Metro bus on West Flagler Street near its intersection with 10th Avenue in Miami.' At the conclusion of the plaintiff-appellant’s case in the wrongful death action arising out of the accident, the trial judge directed a verdict in favor of the defendant-appellee, Metropolitan Dade County. The plaintiff appeals; we reverse.

Viewed, as required, most favorably to the plaintiff, the record shows that the accident occurred as the bus was traveling in one of three west bound lanes on Flagler Street, at an estimated speed of 25-30 m. p. h. The bus operator stated that, from a distance of no less than two bus lengths or 80 feet away, and with no obstructions to his vision, he saw several children standing on the north sidewalk to the west of the 10th Avenue intersection. Shortly thereafter, as Mr. Gwinn, a driver who was traveling east bound stated, three of those children dashed across the street from north to south. A fourth, the decedent Bartley, then began to run across the street. He crossed all three westbound lanes directly in front of the bus, and got into the northernmost east bound lane in which Mr. Gwinn was riding. Gwinn, who stated he was aware of possible danger to the children almost as soon as he saw them and had begun to slow down at that time, was able to bring his car to a complete stop so as to avoid striking the boy. The sound of Gwinn’s brakes, however, apparently star-tied Leon. He suddenly stopped, turned and began to run back towards the north side of the street. At a point between the middle and curb westbound lanes, he slipped, fell backward and was run over by the bus’s right rear wheels. The bus driver testified that he attempted to avoid the accident only by moving his bus to the left when he saw the boy come back across the westbound lanes in which he was traveling. At no time, however, from the point he first saw the children on the north sidewalk until the accident occurred did he apply his brakes or otherwise slow down in any way.

We think it clear that, on this record, a jury question was presented as to the negligence of the defendant’s bus driver. It is established in our jurisdiction that, as stated in Miami Paper Co. v. Johnston, 58 So.2d 869, 870-871 (Fla.1952):

“It is a matter of common knowledge that small children are erratic and unpredictable, that they are liable to take off at any time and in any direction with no concern whatever for their own safety. The drivers of motor vehicles are charged with knowledge of their behavior and are expected to govern themselves accordingly when parking or driving about school grounds, recreation parks, residential communities, trailer parks and other places inhabited by or frequented by children. They are expected to anticipate children about such places and whether or not they exercise reasonable care in doing so is a question for the jury.
The general rule supported by a wealth of authority is that one manipulating a motor vehicle on the highway, whether backing, starting, or proceeding ahead, must exercise reasonable care, circumstances being the guide as to what constitutes reasonable care. If he has reason to think that children may be near, reasonable caution requires that he be on the lookout for them . .”

[emphasis supplied]

Accord, e. g., Winner v. Sharp, 43 So.2d 634 (Fla.1949); Coast Cities Coaches v. Donat, 106 So.2d 593 (Fla. 3d DCA 1958); Budgen v. Brady, 103 So.2d 672 (Fla. 1st DCA 1958), cert. denied, 105 So.2d 793 (Fla.1958). In this case, the driver not only should have seen but did see children both at the edge of the street, and then actually running across it directly in front of him. Under these circumstances, the jury could properly find that (a) the fact he never applied his brakes so as to stop — as Gwinn was able to do — or reduce his speed; and (b) his failure to take any evasive action other than a mere movement of his bus to the left after the boy appeared, for the second time, immediately in his path, constituted breaches of this duty of reasonable care. Among the many cases which support this conclusion, two are especially similar to this one. In Connell v. Petri, 159 Fla. 67, 30 So.2d 922, 923 (1947), the supreme court held:

“. . children were ‘all up and down the highway.’ ”
“This factor alone should have been of sufficient import to place a reasonably prudent driver upon notice to exercise due care in the operation of his vehicle. This condition of fact being true, the speed of the car should have been reduced from that at which it was traveling to meet exigencies that might arise such as the one before us in this case.”

Similarly, the court in Signaigo v. Hennings, 249 So.2d 60, 61 (Fla. 1st DCA 1971), held:

“. .it appears that the appellant while driving his motor vehicle along State Highway # 298, meeting a greyhound bus, ran over the deceased child. It appears that about 600 feet separated the appellant’s car and the greyhound bus, the appellant observed some children playing near the road and that said children ran across the road either before or just after the greyhound bus had passed and that the conduct of the children were so noticeable that the appellant remarked to his minor son who was a passenger in his car that ‘them kids had better move there or they will get run over’. The appellant testified that after he saw the children, he let his foot off the accelerator and placed it on the brake but did not apply the brakes; that as he was coasting about 38 to 40 miles per hour at the time he passed the bus, and at that time he started applying the brakes attempting to stop the car.
According to appellant’s testimony, the deceased child darted across the road to the middle of the road when he seemed to turn back but stopped and at that point had impact with the appellant’s automobile.”
* * * * * *
“It appears to us that these questions were properly submitted to the jury and constituted facts from which the jury could reach the conclusion that the appellant was negligent in the operation of his automobile in view of the fact that he had observed these children darting across the road . . . ”

See also Clark v. Lowe, 261 So.2d 567 (Fla. 4th DCA 1972); Mackey v. Arnold, 242 So.2d 754 (Fla. 4th DCA 1970); cf. McQueen v. Atlantic Truck Service, Inc., 215 So.2d 325 (Fla. 1st DCA 1968).

In this court, the appellant has all but conceded that Leon was guilty of at least some contributory negligence. Since the case is of course governed by the doctrine of comparative negligence, however, a concession or even a finding to that effect does not alter the conclusion that the case must be submitted to a jury. As the court observed in Petroleum Carrier Corp. v. Gates, 330 So.2d 751, 752 (Fla. 1st DCA 1976):

“Because of the very nature of the comparative negligence doctrine, situations in which directed verdicts will be appropriate will occur with even less frequency, particularly in cases where the plaintiff’s own negligence is in issue. We do not here express an opinion as to whether a directed verdict should ever be granted where the negligence of both parties is at issue. We do, however, believe that such cases will be extremely rare.”

See also: Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); St. Martin v. Allstate Ins. Co., 367 So.2d 1077 (Fla. 3d DCA 1979). This is most assuredly not one of those extremely rare cases.

Reversed and remanded.

      . The testimony is in conflict as to which of the three lanes the bus was occupying.

      . The appellee cites such cases as Fernandez v. Kaba, 360 So.2d 34 (Fla. 3d DCA 1978), and Bell v. A.A. Holiday Rent-A-Car, Inc., 304 So.2d 535 (Fla. 3d DCA 1974). These decisions, which involve situations in which a jaywalking pedestrian so suddenly appears in front of a driver that he has no reasonable opportunity to avoid a collision, are plainly inapposite.

      . But see Signaigo v. Hennings, supra.


text:
    Carol McNITT, Appellant, v. Robert Henry OSBORNE, Aukerman-Goughnour Company, f/k/a A. C. Aukerman Company and Northwestern National Insurance Company, Appellees.
    Nos. 78-1455, 78-2195.
    District Court of Appeal of Florida, Third district.
    June 5, 1979.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, P. J. Carroll & Associates, Miami, for Carol McNitt.
    Gerald M. Walsh & Associates and Mark R. Boyd, Fort Lauderdale, for Robert H. Osborne and Aukerman-Goughnour and Northwestern.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

We hold that interest on a final judgment begins to run from the date that it is signed and filed, rather than, as the trial judge held below, only when timely post-trial motions have been disposed of, so as to render the judgment final for the purposes of appeal. There is nothing in the use of the word “rendered” in either the present or the prior version of Section 55.03, Florida Statutes (1977) which indicates in any way an intention by the legislature to incorporate the definition of “rendition” found in Fla.R.App.P. 9.020(g) with the effect of postponing the accrual of the right to interest. To the contrary, the context in which the term is used, see Davis v. Strople, 39 So.2d 468 (Fla.1949), makes it apparent that it is to be given the meaning referred to in Becker v. King, 307 So.2d 855, 858 (Fla. 4th DCA 1975), cert. dism., 317 So.2d 76 (Fla.1975):

“Aside from its definition in the Florida Appellate Rules, rendition of a judgment generally refers to the judicial act of the court in giving, returning, pronouncing, or announcing, orally or in writing, its conclusions and decision on the matter submitted to it for adjudication, and is distinct from the signing of a subsequent formal judgment and from the later recording or filing of the writing or the entry of judgment in the minutes of the court. Aside from the effect of a statute or court rule requiring the judgment to be written for particular purposes, a judgment exists as such when it is thus rendered and is valid and binding as between the parties and their privies, although the only competent evidence of such act is a memorial or record in the form of a written and signed judgment or a clerk’s minute book entry.” [emphasis supplied]

The principle that interest on a judgment runs from the time of its entry is so well-recognized that the point is universally assumed without discussion in the decided Florida cases. E. g., Smith v. Goodpasture, 189 So.2d 265 (Fla. 4th DCA 1966); see Stone v. Jeffres, 208 So.2d 827 (Fla.1968); Skinner v. Ochiltree, 148 Fla. 705, 5 So.2d 605 (1942); Atlantic Coast Line R. Co. v. Watkins, 99 Fla. 395, 126 So. 489 (1930); St. Cloud Utilities v. Moore, 355 So.2d 446, 448 (Fla. 4th DCA 1978); Gilmore v. Morrison, 341 So.2d 779 (Fla. 4th DCA 1976); City of Miami Beach v. Jacobs, 341 So.2d 236, 238 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 945 (Fla.1977) (“interest . . . would accrue from the time of the entry of the judgment . . ”); cf. Comment to Fla. R.App.P. 9.340, referring to former Fla. App. Rule 3.15(a). There seems to be no decision anywhere in which interest has been held to accrue at any point subsequent to the entry of a final judgment, see 45 Am.Jur.2d Interest and Usury §§ 96-97 (1969); Annot., Interest on Judgment, 1 A.L.R.2d 479, 481 (1948), and indeed, no case in which the term “rendered” or “rendition” has, in any context other than the appellate one, been given the meaning for which the appellees contend. Cases collected, 36A Words and Phrases, “Rendition of Judgment,” 621-632 (1962).

For these reasons, the order challenged by petition for certiorari in case no. 78-1455 is quashed; the final order on appeal in case no. 78-2195 is reversed, and the cause is remanded for further proceedings consistent herewith.

Certiorari granted, reversed and remanded.

      . The 1977 Advisory Committee and Court’s Commentary to Fla.R.App.P. 9.020 states:
      “Throughout these rules the defined terms have been used in their technical sense only, and are not intended to alter substantive law.”

      . Under the contrary holding adopted by the trial court, a litigant could suspend the running of interest merely by filing a frivolous post-trial motion. On the other hand, if no such motion were filed, or if one were filed untimely, interest would then run, under Fla.R.App.P. 9.020(g), from the date of the original judgment. Sec. 55.02, Fla.Stat. surely does not mandate the approval of such anomalous and illogical results.


author: PEARSON, Judge.

text:
    Ignacio CRUZ, a minor, by and through his mother, natural guardian and next friend, Gladys Cruz and Gladys Cruz, Individually, Appellants, v. Opie HUNDLEY, Hialeah Church of Christ, a Florida Corporation and Preferred Risk Mutual Insurance Company, a Foreign Corporation, Appellees.
    No. 78-1606.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Deutsch & Blumberg, High, Stack, Lazen-by & Bender and Alan R. Dakan, Miami, for appellants.
    McCormick, Bedford & Backmeyer and Gerald L. Bedford, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PEARSON, Judge.

Plaintiff Ignacio Cruz (a minor) and his mother appeal a final judgment for the appellees, entered on a directed verdict at the conclusion of the plaintiffs’ evidence.

The issue before us is whether the plaintiffs presented evidence which, together with all reasonable inferences thereon, could have formed a basis for a jury finding that the defendants were negligent. We take it that the established law need not be elaborated upon and that it is clear that our decision in this case is based on a holding that the trial court cannot direct a verdict unless it is shown that there is no evidence whatsoever adduced that could support a verdict for the party opposing the motion. See Moore v. Dietrich, 133 Fla. 809, 183 So. 2 (1938); and Paikin v. Beach Cabs, Inc., 187 So.2d 93 (Fla. 3d DCA 1966), and cases cited therein.

Without setting forth all of the factual considerations in this case, we point out that the record, taken in the light most favorable to the plaintiffs, shows that on the Sunday in question, the defendants were operating a vehicle transporting children home from church. The vehicle was an old school-type bus, painted as such, equipped with flasher lights to warn motorists when children were being discharged. On this particular day, the flasher lights were not operating and the driver had knowledge of this defect. The minor plaintiff (10 years of age) was discharged in front of his home where it was necessary for him to cross the street. As was his custom in getting off school buses, he crossed the street in front of the bus. On this occasion, however, he was struck by a passing automobile. There was also evidence that the bus was parked somewhat at an angle so that the child’s vision was partially obscured as he crossed the street.

It is agreed by the parties that the defendants were not common carriers. Nevertheless, as transporters of children, they did owe a duty of reasonable care to the children they transported. See McClure v. Johnson, 50 Ariz. 76, 69 P.2d 572, 578 (1937); and see Jablinsky v. Continental Pacific Lines, Inc., 58 Wash.2d 702, 364 P.2d 793 (1961).

We hold that under the circumstances set out above, there was evidence before the jury upon which a finding of negligence could have been made and, therefore, that the direction of the verdict for the defendants was error.

Defendants argue in their brief that one of the plaintiffs’ witnesses testified that the passing car which struck the minor plaintiff ran a stop sign and behaved in an erratic manner and, therefore, that the directed verdict is sustainable upon the theory that there was an intervening cause to the accident other than the defendants’ negligence, if any. Under the circumstances of this case, the question of intervening cause is for the jury. See Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977).

The judgment is reversed and the cause remanded for further proceedings.

      . See § 316.172, Fla.Stat. (1977).

      . Testimony indicated that on prior Sundays, the bus sometimes stopped in front of the home of the plaintiffs, and sometimes across the street. Testimony also indicated that one of the adults on the bus ordinarily assisted the younger children across the street, but because of his age, the plaintiff had not previously been assisted.


text:
    ROGER PROPERTIES, INC., Appellant, v. LON WORTH CROW REALTY COMPANY, Appellee.
    No. 78-1940.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.

      Knight, Kincaid, Poucher & Harris and Marshall W. Liptak, Jacksonville, for appellant.
    Lyons & Smith and Gary V. Smith, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal from a final summary judgment ordering the appellant Koger Properties, Inc., to pay certain real estate brokerage commissions to the appellee Lon Worth Crow Realty Company. We reverse and remand for further proceedings.

In our view, there is a genuine issue of material fact as to whether “the tenant terminate[d] the subject lease” as such terms are used in the brokerage agreement [thereby terminating the brokerage commissions due thereunder] when the appellant and the tenant herein together terminated the subject lease. Stated differently, we find that an ambiguity exists in the above quoted terms of the brokerage agreement for which the taking of testimony is necessary to determine whether such terms were intended by the parties to cover the lease termination accomplished in this case. If such was the intent of the parties, no brokerage commissions are due under the brokerage agreement; if such was not so intended, the opposite is true and the brokerage commissions sought herein are due under the brokerage agreement.

The final summary judgment appealed from is reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion. Westchester Fire Insurance Co. v. In-Sink-Erator, 252 So.2d 856 (Fla. 4th DCA 1971); Commercial Trading Co. v. Zero Food Storage, Inc., 199 So.2d 109 (Fla. 3d DCA 1967).

Reversed and remanded.


text:
    Idania RIOS, Appellant, v. FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
    No. 78-2268.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.

      Stabinski, Funt, Levine & Vega and Regina G. Zelonker, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Michael J. Murphy, Miami, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

The plaintiff-appellant sought to enforce an insurance policy which had been regularly cancelled for nonpayment of premium. A summary judgment was entered for the appellee insurer.

On this appeal, it is urged (1) that the cancellation was not effective and (2) that the producing agent of the assigned risk upon whose representations the plaintiff relied for reinstatement of the policy was the agent for the company. We affirm.

The plaintiff presents no genuine issue on the cancellation question. The un-controverted facts show an effective cancellation pursuant to Section 627.728, Florida Statutes (1977). It is established that a producing agent does not become the agent of the insurer solely by virtue of the operation of the assigned risk plan. See American Casualty Company of Reading, Pennsylvania v. Castellanos, 203 So.2d 26 (Fla.3d DCA 1967). That case did hold that the insurance company had “clothed” the agent with “apparent authority” when it accepted the benefit of no less than five transactions with the policyholder subsequent to the original issuance of the policy. The present case is devoid of any action subsequent to the issuance of the policy that could be said to clothe the agent with apparent authority to bind the company to a representation of reinstatement.

Affirmed.


text:
    William A. PACETTI, Appellant, v. Rosa PACETTI, Appellee.
    Nos. 79-355, 79-356.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.

      Herman T. Isis, Coral Gables, for appellant.
    Irene Redstone, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

These interlocutory appeals are from an order requiring the respondent husband to pay past due alimony payments under a prior judgment of the trial court. On this appeal, the respondent contends that the trial court erred in not applying a limitation recommended by the general master at the time of the entry of the prior order, which had required the payment of permanent alimony. Because the limitation was not included in that prior order, which established the amount of alimony, it is not effective and may not be raised in subsequent proceedings. Therefore, the husband’s objections on this ground come too late. See Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175, 182 (1943).

Affirmed.

      . See the prior appearance of this case on appeal reported at 332 So.2d 670 (Fla. 3d DCA 1976).


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. James A. DAVIS, II, Appellee.
    No. 79-363.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    George & Thompson and Charles K. George, Miami, for appellant.
    William Huggett, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

The Travelers Insurance Co., plaintiff below, takes this appeal pursuant to Fla.R. App.P. 9.130 from a non-final order quashing its attempted service of process upon the appellee. We reverse and remand for an evidentiary hearing on the issue of sufficient service of process.

Travelers filed suit against the appellee, James A. Davis, II and a co-defendant, alleging fraud and deceit in an effort to obtain money and property from Travelers on certain insurance policies. Travelers was unsuccessful in attempting to personally serve the appellee on several occasions, both in Dade County, Florida, where the incident arose, and in North Carolina, where it was believed that appellee had a summer home and interests in real estate. Travelers then attempted substituted service of process by: (a) serving the appellee’s father at the father’s address in Dade County; and (b) by perfecting service upon the Secretary of State pursuant to Section 48.181, Florida Statutes (1977), after counsel for Travelers filed an affidavit stating that the appellee could not be personally served, despite repeated efforts, because he was believed to be concealing himself.

Appellee, through counsel, made a special appearance and moved to quash on the ground of insufficiency of service of process. The trial court granted the motion and quashed the service of process. The order quashing service also denied Travelers’ request for an evidentiary hearing on the issue of sufficient service of process.

The trial court erred when it failed to accord the parties an evidentiary hearing on the sufficiency of process. An examination of the record persuades us that service of process was not defective on its face. The appellee must be able to demonstrate the invalidity of the service of process by clear and convincing evidence before the motion to quash could be granted. Livingston v. Fein, 359 So.2d 25 (Fla.3d DCA 1978); Winky’s Inc. v. Francis, 229 So.2d 903 (Fla.3d DCA 1969); Rumpf v. Freedman, 118 So.2d 237 (Fla.3d DCA 1960); Mitchell v. Brown, 114 So.2d 178 (Fla.1st DCA 1959); rev’d on other grounds, 119 So.2d 385 (Fla.1960). To insure adequate consideration of the motion, an evidentiary hearing is required in this instance.

The order quashing service of process is reversed and this cause is remanded for an evidentiary hearing on the validity of service of process upon the appellee.

Reversed and remanded.

      . The return of the service of process stated that the appellee’s father was served at appel-lee’s “usual place of abode.” The appellee disputes that this was his usual place of abode.

      . Appellee’s appearance was confined solely to the question of whether the trial court had jurisdiction over him. See 1 Fla.Jur.2d Actions §§ 88 90 (1977).


text:
    David S. TEPERSON, M. D., Drs. Jose & Teperson, P. A., Stephen Z. Gervin, M. D., and Stephen Z. Gervin, M. D., P. A., Petitioners, v. Frank J. DONATO and L. Ann Donato, Respondents.
    No. 79-525.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.

      Preddy, Kutner & Hardy and Robert J. Bogdanoff, Miami, for petitioners.
    Levy & Cohen and Jeffrey M. Mart, Miami, for respondents.
    Before HAVERPIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

David S. Teperson, M.D., et al., defendants in a medical malpractice action, seek, by certiorari, review of an order denying in part their motion for protection and requiring them to produce copies of certain medical records.

The respondents filed a complaint alleging medical malpractice against the petitioners, after the respondents had fully complied with the medical mediation action and received a finding of the medical mediation panel. Petitioners responded to this complaint in the form of a motion to dismiss, stating that the complaint failed to allege any specific deviations from the proper standard of care and, thus, did not state a cause of action for medical malpractice.

The respondents subpoenaed the medical records custodian of the Biscayne Medical Center, directing him to bring to the deposition any and all records in the possession of the hospital indicating all surgeries performed at the hospital by the petitioners and all records showing the petitioners’ patient going from surgery to intensive care. To block this subpoena duces tecum, the petitioners filed a motion for protection requesting that the trial court enter an order quashing the subpoena duces tecum served upon the Biscayne Medical Center. After a hearing, the trial court entered the order under review partially denying the petitioners’ motion for protection and ordering that the Biscayne Medical Center produce copies of the operative notes and intensive care records pertaining to all patients who underwent back operations by the petitioners. However, the trial court ordered that the names of all such patients shall be deleted or otherwise removed from any such records that are produced. From that order, the petitioners now file this petition for certiorari review.

The trial court erred in partially denying the petitioners’ motion for protection. This issue has recently been determined in favor of the petitioners. Argonaut Insurance Co. v. Peralta, 358 So.2d 232 (Fla.3d DCA 1978). In Argonaut, this court held that it was error for the trial court to order the production of medical records of persons not a party to the action: “The question of medical malpractice is whether or not the doctor, in treating the plaintiff, used a standard of care commensurate with that used in the community and that question can be answered by utilizing other methods of proof than the invasion into medical records of strangers.”

Therefore, the order under review requiring production is quashed.


author: DANAHY, Judge.-

text:
    Robert K. BASNETT and Barbara L. Basnett, Appellants, v. Merle E. BESETT, Irene D. Besett and C. Joe Czerwinski, Appellees.
    No. 78-1503.
    District Court of Appeal of Florida, Second District.
    June 6, 1979.
    Michael R. Karp of Wood, Whitesell & Karp, Sarasota, for appellants.
    Leo Wotitzky of Wotitzky, Wotitzky, Johnson, Mandell & Batsel, Punta Gorda, for app'ellee Czerwinski.
    Charles J. Cheves of Cheves & Rapkin, Venice, for appellees Besett.
   DANAHY, Judge.-

After purchasing a fishing lodge for $300,000, appellants brought this suit against the sellers and the real estate agent who handled the transaction (appellees) asking in count one of their complaint for damages based on fraud and misrepresentation, and in count two for reformation of the contract of sale and abatement of the purchase price because of a mutual mistake of fact concerning the size of the property purchased. The trial judge dismissed both counts with prejudice. We reverse.

In count one, appellants alleged that ap-pellees falsely represented certain facts concerning the property, most notably that the size of the property was 5*A acres when in fact its size was 1.44 acres. Appellants alleged that these misrepresentations were knowingly made in order to induce appellants to make the purchase and that appellants relied upon them. However, appellants did not allege that they made efforts to investigate the facts as represented, nor did they allege any circumstances excusing or explaining their failure to investigate.

Appellees argue that appellants’ count one allegations fail to state a cause of action because they reveal that appellants could have learned the truth by the exercise of ordinary care. Appellees point out, for example, the listing of the property described it as 16 specific lots plus Va acre of submerged land, gave book and page number, and advised “see plat.” Had appellants simply consulted the recorded plat and calculated the total square feet of the lots, appellees observe, they could readily have ascertained that the size of the property was much less than the hxh acres it was represented to be.

We reject appellees’ argument on the authority of our recent decision in Upledger v. Vilanor, Incorporated, 369 So.2d 427 (Fla. 2d DCA 1978). In that case we held that when a specific false statement is knowingly made and reasonably relied upon, the representee is not precluded from recovery simply because he failed to make an independent investigation of the veracity of the statement. In this case, as in the Upledger case, it cannot be said as a matter of law that appellants must be denied recovery for failure to ascertain the correct size of the property and the truth of the other facts represented to them. None of the alleged misrepresentations can be described as “puffing,” patently incredible, or obviously false. Appellants were entitled to rely upon them.

Appellants’ count two contains sufficient allegations to state a cause of action for reformation of the contract of sale and abatement of the purchase price. Accordingly, we hold that the trial judge erred in dismissing that count as well as count one.

Reversed and remanded with instructions to reinstate counts one and two of the complaint and for further proceedings not inconsistent with this opinion.

GRIMES, C. J., and OTT, J., concur.


text:
    James NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1472.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Rehearing Denied June 29, 1979.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This appeal comes to us because the trial court failed to include an instruction on excusable homicide. The appellant was convicted of second degree murder. We reverse.

The judge instructed the jury on manslaughter and justifiable homicide but refused to give the instruction on excusable homicide. This was error because manslaughter cannot be adequately defined without it. Robinson v. State, 338 So.2d 1309 (Fla. 4th DCA 1976); Pouk v. State, 359 So.2d 929 (Fla. 2d DCA 1978).

REVERSED AND REMANDED.

DAUKSCH and BERANEK, JJ., concur.


author: MOORE, Judge.

text:
    NATIONAL FINANCING CORPORATION, a corporation, Appellant, v. Charles W. WEICHE, Appellee.
    No. 77-2521.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Richard C. Stoddard of Rumph & Stod-dard, Jacksonville, for appellant.
    Charles M. Harris of Crofton, Holland, Starling, Harris & Severs, Titusville, for appellee.
   MOORE, Judge.

Appellant appeals from an order granting appellee’s motion to dismiss its second amended complaint with prejudice. We reverse.

Appellee executed a personal guarantee agreement the pertinent portion of which stated “. . for and in connection with various aircraft loans that from time to time may be made between J & R Aircraft Sales, Inc. and National Financing Corporation, guarantee the prompt and full payment, to any holder hereof, of any amounts from time to time owing under various chattel mortgages or conditional sales contracts . . .” Appellant was the as-signee and holder of a conditional sales contract pursuant to which J & R Aircraft Sales, Inc. owed it the sum of $17,060.40. J & R Aircraft Sales, Inc. defaulted on the payments required under the contract and appellant brought this suit to recover a deficiency after repossession and sale of the collateral specified in the contract.

The issue before us is whether the complaint stated a cause of action. In ruling on a motion to dismiss a complaint for failure to state a cause of action the trial court must accept as true all well pleaded facts as well as all. reasonable inferences arising therefrom. Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972). The pleadings in the second amended complaint below allege that appellant made a loan to J & R Aircraft Sales, Inc. and that appellee agreed to guarantee that loan. Attached to the second amended complaint is the conditional sale contract evidencing the obligation of J & R Aircraft Sales, Inc. to repay the loan to appellant. The conditional sale contract was security for the obligee’s debt to appellant for the purchase of a used aircraft. Although the contract indicates the president of J & R Aircraft Sales, Inc. as the seller, who thereafter assigned the contract to appellant, it was further alleged that the president was merely a conduit in a simultaneous transaction whereby the loan was made to J & R Aircraft Sales, Inc. in reliance upon the appellee’s guarantee. The second amended complaint also alleges default in payment, repossession and public sale, and a deficiency for which appellee is obligated.

In our opinion, appellant’s second amended complaint sufficiently alleges all of the essential elements of an action on a personal guarantee. Holding that the guarantor is entitled to a strict construction in working out the intent of the parties to the agreement the trial court found that the guarantee established the intent of the ap-pellee to guarantee only those loans between J & R Aircraft Sales, Inc. and National Financing Corporation. That is pre-eisely what is alleged in the second amended complaint. The trial court’s reliance on Peoples Savings Bank and Trust Co. v. Landstreet, 80 Fla. 853, 87 So. 227 (1920) is misplaced. There the court held that in determining the intent of the parties to a guarantee agreement a liberal construction should be applied, and once that intent is determined, a strict construction should be employed in applying it to the facts as proved. Whether the provable facts will support the allegations is a burden of the appellant and should be submitted to the ultimate trier of fact. Appellant should, at least, have an opportunity to carry its burden.

Finding that the second amended complaint states a cause of action the trial court’s order dismissing it with prejudice is hereby reversed and this cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

BERANEK, J., and PACK, WALLACE R., Associate Judge, concur.


text:
    Patricia WOODARD, Appellant, v. STATE of Florida, Appellee.
    No. 78-104.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Richard L. Jorandby, Public Defender, and Rendell Brown, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

For the alleged violation of three conditions, appellant’s probation was revoked. One of the conditions allegedly violated was the provision that appellant fully comply with Section 945.30, Florida Statutes (Supp. 1974), requiring probationers to contribute to the cost of their supervision. In order to revoke probation for failure to comply with said statute the trial court must find that the probationer's financial condition was such that she could make the required payment; there must be a finding of an ability to pay. Coxon v. State, 365 So.2d 1067 (Fla. 2nd DCA 1979). The record in this case contains no adequate finding of the appellant’s ability to comply with the condition in question.

Accordingly, the order revoking appellant’s probation based upon a violation of Condition Four by failing to comply with Section 945.30, Florida Statutes (Supp. 1974), is reversed and that part of said order is stricken. However, the order revoking appellant’s probation based upon the other violations contained in the Amended Affidavit filed December 1, 1977, is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

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


author: ANSTEAD, Judge.

text:
    SOBIK’S SANDWICH SHOPS, INC., and State Farm Mutual Automobile Insurance Company, Appellants, v. Janice S. DAVIS and Kenneth Davis, her husband, and Patricia Buchanan Dunn, et al., Appellees.
    No. 78-505.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Rehearing Denied July 2, 1979.
    James 0. Driscoll of Driscoll, Baugh, Langston, Layton & Kane, P. A., Orlando, for appellants.
    Harry Anderson of Anderson & Leklem, P. A., Orlando, for appellees Bennie Rome Jackson and Cavalier Ins. Corp.
   ANSTEAD, Judge.

This is the second visit of this case to this court. At issue presently is a trial court’s order denying appellants’ motion for contribution against another joint tortfeasor’s insurance carrier.

The injured claimants were awarded judgment in the amount of $83,186.96 against three joint tortfeasors, Sobik’s Sandwich Shops, Inc., Patricia Dunn and Bennie Jackson, and their insurers. Thereafter claimant’s counsel directed the following letter to counsel for the tortfeasors:

As I am sure you will all recall, we took a position following the trial which we felt might tactically inure to the benefit of our clients in precluding an appeal at that time. Our position was that if an appeal were taken, and if we were successful in defending that appeal, we would collect our judgment first from the party which filed the initial Notice of Appeal to the full extent of their insurance coverage. Once this amount were exhausted, we would then attempt to collect the balance from the second party to file an Appeal, to the full extent of their insurance coverage. If any amount then still remained unpaid we would drop down to the third and final party. This was, of course, prior to the Uniform Contribution Among Tortfeasors Act which now may make this position seem somewhat senseless. However, being that we took this position and made you all aware of it, we feel that we must adhere to it in order to keep our word. There are certainly no personal feelings or malice involved in this whatsoever, simply a matter of adhering to and performing in accordance with a position we took several years ago.
Therefore, we would request Sobik’s Sandwich Shops, Inc. and State Farm Mutual Automobile Insurance Company to forward to us their draft in the sum of $50,000. All checks should be made payable jointly to Janice Davis, Kenneth Davis and John C. Briggs.
At the same time, we would like to have Patricia Dunn and Allstate Insurance Company forward their check payable to Janice Davis, Kenneth Davis and John C. Briggs in the sum of $32,893.75.
We certainly have no objection to an alternative method of payment that is mutually agreeable to all defendants. However, outside of any such mutual agreement we would appreciate your compliance with these procedures. I am sure that if either State Farm or Allstate feel they should have this disparity resolved, a motion for contribution in front of Judge Kirkland would adequately take care of this.
I want to again emphasize the fact that there are certainly no personal reasons for asking that this judgment be paid in accordance with the terms of this letter. We are simply attempting to live up to our word and abide by the position that we took and announced to you several years ago, irrespective of the wisdom or merits of it. I hope I will be receiving your checks, along with whatever Satisfaction of Judgments you would like to have executed, in the mail next week.

Thereafter each tortfeasor’s carrier actually paid the following sums to claimants:

Jackson $ 1,000.00
Dunn 31,984.97
Sobik 50,201.99

Claimants then executed a release in favor of Jackson and his carrier. Subsequently, Sobik’s carrier filed a claim for contribution against Jackson’s carrier under the Uniform Contribution Among Joint Tortfeasors Act, Section 768.31 et seq., Florida Statutes (1977), contending that the release given Jackson was not given in good faith pursuant to Section 768.31(5) and that Jackson’s carrier was responsible for a pro rata share of the common liability, instead of the $1,000.00 paid by Jackson to the claimants. Upon hearing, claimant’s attorney testified that the judgment was enforced in accordance with the terms of his letter, supra, except that $1,000.00 had been excepted from Jackson’s carrier at the carrier’s request. The trial court subsequently denied the motion for contribution.

By the passage of the contribution law the legislature intended, at least in part, to more fairly divide the responsibility among joint tortfeasors. Under the current language of the act and subject to certain exceptions, it appears that the legislature intended that among themselves tortfeasors be responsible for damages in direct proportion to their percentage of fault in causing the accident. Notwithstanding this underlying principle, settlements are also encouraged that might ultimately result in one tortfeasor paying less than his share if the settlement is made in “good faith.” Hence, the legislature has provided a means for the sharing of responsibility primarily based upon fault, while still encouraging voluntary settlements.

Under the common law the claimant could place the loss where he chose. This practice was one of the principal reasons for providing for contribution among joint tort-feasors:

[T]he common-law view [is] that the injured person is “lord of his action” and, when injured by the joint and several tort of two or more, may place the loss where and how he sees fit.
This item of private, rather than judicial, control of the distribution of loss arising from a common burden of liability has no doubt been largely responsible for the recent trend toward legislative and judicial repeal or modification of the common-law rule.

Originally, the uniform contribution among tortfeasors act of 1939 provided for a reduction, by the amount of the settling tort-feasor’s prorata share, of any subsequent recoveries by the claimant against the other joint tortfeasors. However, this provision was believed to discourage settlements and in 1955 the uniform act was amended by the commissioners to provide that a release given in good faith completely released the tortfeasor involved from all claims, including contribution claims, and that the amount of the claim would be reduced only by the amount of the settlement. Section 768.31(5) contains similar provisions. In a 1977 comment on the amended provision of 1955 the uniform commissioners noted:

While it theoretically encourages settlements, it may be unfair to the other defendants and if the good-faith requirement is conscientiously enforced settlements may be discouraged.

By settlement and the release granted incident thereto a tortfeasor is relieved of all liability, including liability to another tortfeasor having a contribution claim. Section 768.31(5), supra. The only condition is that the release be given in “good faith.” If that “good faith” condition is to have any meaning at all consistent with the underlying purposes of the contribution act, we believe that it prevents a claimant from arbitrarily deciding how much each tort-feasor will pay on the basis of which tort-feasor has been more cooperative with claimant. There must be some reasonable basis for the amount of the settlement with the tortfeasors beyond the claimant’s express desire to have those who appeal pay and those who do not appeal be relieved of responsibility.

In conclusion, we hold only that a release obtained after judgment under the circumstances presented here is not given in good faith so as to bar the appellant’s claim for contribution. Accordingly, this cause is reversed and remanded for further proceedings consistent herewith.

MOORE and BERANEK, JJ., concur.

      . 330 So.2d 223 (Fla. 4th DCA 1976).

      . When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
      (a) it does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and, (b) It' discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

      . Commissioners’ Prefatory Note, 12 U.L.A., 60-61.

      . Id. at 99.

      . Id. at page 34 of 1979 Cum.Annual Pocket Parts.
      Interestingly in another comment the Uniform Commissioners note that:

        Contribution. The original common law rule was that there is no contribution among joint tortfeasors, no matter what the nature of the tort. Some states, however, have judicially modified this rule, especially in the case of negligence. Many more states have passed statutes of various kinds providing for contribution, with the result that a substantial majority of the states now have contribution in some form and the Restatement (Second) of Torts § 886A, now provides for it.
      The NCCUSL has promulgated two uniform contribution Acts — the first in 1939, superseded by a revised act in 1955. Both of these Acts provide for pro rata contribution, which may be suitable in a state not applying the principle of comparative fault, but is inappropriate in a comparative-fault state apportioning ultimate responsibility on the basis of the proportionate fault of the parties involved. It has therefore been decided not to amend the separate Uniform Contribution Among Tortfeasors Act, 1955, but to leave that Act for possible use by states not adopting the principle of comparative fault. Instead, the present Act contains appropriate sections covering the rights existing between the parties who are jointly and severally liable in tort. The 1955 Act should be replaced by this Act in any state that adopts the comparative fault principle, and would be eventually replaced.
      Florida, of course, has adopted both the principles of comparative fault and contribution. However, the contribution act has been amended to provide that pro rata shares be determined on the basis of the relative degrees of fault of tortfeasors, whereas the 1955 uniform act (and the prior Florida act) provided that relative degrees of fault not be considered in determining pro rata shares.


text:
    Larry BURNS, Petitioner, v. Seymour DERMER and K Audio & T. V., Inc., Respondents.
    No. 79-725.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Ira Marcus, Fort Lauderdale, for petitioner.
    Wayne W. Pomeroy of Pomeroy, Betts, Pomeroy & Moses, Fort Lauderdale, for respondents.
   PER CURIAM.

Certiorari is hereby DENIED.

DOWNEY, C. J'., and LETTS and BERA-NEK, JJ., concur.