text:
    Oscar SAMBRINE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1319.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Rehearing Denied March 22, 1978.
    Philip Carlton, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The appellant was charged with two counts of manslaughter for operating a vehicle while intoxicated, which resulted in the deaths of two people. He was found guilty, non-jury, and given ten years’ probation, one year to be served in the County Jail.

On appeal, he urges error in the taking of a blood sample against his verbal objection and in the introduction of the lab report that showed he was under the influence of alcohol. He also urges error in the sufficiency of the evidence and, for the first time on appeal, alleges that the implied consent statute is unconstitutional. We find no error and affirm. Clowney v. State, 102 So.2d 619 (Fla.1958); Eizenman v. State, 132 So.2d 763 (Fla. 3d DCA 1961); Lemming v. State, 159 So.2d 486 (Fla. 2d DCA 1964); Crum v. State, 172 So.2d 24 (Fla. 3d DCA 1965); Silver v. State, 188 So.2d 300 (Fla.1966); State v. Fitzpatrick, 294 So.2d 708 (Fla. 4th DCA 1974); Gillman v. State, 346 So.2d 586 (Fla. 1st DCA 1977); Miranda v. State, 354 So.2d 411 (Fla. 3d DCA 1978).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Seaborn H. WADE, Jr., Appellant, v. Worth E. JOHNSON and Nancy A. Johnson, his wife, Appellees.
    No. 76-2169.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Rehearing Denied March 22, 1978.
    Lane & Lane, Miami, for appellant.
    Bond & Woitesek and William E. Davis, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the defendant and a cross-appeal by the plaintiffs as to damages from a summary final judgment entered by the trial court for the plaintiffs in an action by the plaintiffs against the defendant wherein it was alleged that the defendant breached the terms of a deposit receipt agreement executed by the parties in connection with the purchase and sale of a coin laundry.

The record on appeal discloses that there are genuine issues of fact which have not been eliminated by the movants for summary judgment.

Reversed and remanded for further proceedings as to the issues of liability and damages.

Reversed.


author: SMITH, Acting Chief Judge.

text:
    Ronald Lee ROWE, Appellant, v. STATE of Florida, Appellee.
    No. GG-408.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1978.
    Rehearing Denied March 23, 1978.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace Albritton, Asst. Atty. Gen., for appel-lee.
   SMITH, Acting Chief Judge.

Appellant pleaded nolo contendere to a charge of possession of more than five grams of marijuana, reserving his right to appeal and to urge that the trial court erroneously denied his motion to suppress evidence. The contraband was seized from the Appellant’s motel room after a search pursuant to a warrant. Appellant challenges the sufficiency of the affidavit for search warrant, urging that the affiant’s reasons for regarding his informant as reliable are not sufficiently stated. Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977).

The law enforcement officer’s affidavit recites:

“Your affiant has been informed by Charles Crawford, well known to your affiant to be a responsible citizen of the community and an employee of Days Inn of Orange Park, the location of the above-described premises.
“That said Charles Crawford has been on the premises in question within the past four (4) hours of the making of this affidavit and has there personally seen a large quantity of vegetable matter believed by the said Charles Crawford to be marijuana. Your affiant is further informed by the said Charles Crawford that the said vegetable matter is contained in a large yard and leaf plastic bag in which it is subdivided into smaller quantities contained in 16 ounce zip-lock plastic bags, the total quantity being an amount in excess of 20 pounds.
“Your affiant is further informed by the said Charles Crawford that he has on numerous occasions in the past seen similar vegetable matter known to him to be marijuana and that the vegetable matter here referred to is of the same matter. Further your affiant is familiar by training and experience with the current practices regarding storage and transportation of marijuana and the facts related by the above named informant are consistent with those practices.”

The affidavit is sufficient. It describes some of the underlying circumstances from which the informant concluded that the marijuana was where he claimed it was and it describes some of the circumstances from which the officer concluded that the informant was credible and his information reliable. The circumstances are stated in sufficient detail to have permitted a neutral and detached magistrate to determine that there was probable cause for a search. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Appellant urges particularly that the affidavit is defective because it does not establish the credibility of the informant, Charles Crawford, as by reciting the affi-ant’s previous dealings with the informant or by listing other credentials. We would agree that an affidavit simply naming the informant of an otherwise unverified crime is an insufficient predicate for a search warrant. Although it has been suggested that the Aguiiar-Spinelli standard requiring demonstration of the informant’s credibility is applicable only when the informant is unidentified, see United States v. Harris, 403 U.S. 573, 576, 91 S.Ct. 2075, 2078, 29 L.Ed.2d 723, 729 (1971) (plurality opinion); United States v. Bell, 457 F.2d 1231 (5th Cir. 1972); United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975); United States v. Burke, 517 F.2d 337 (2d Cir. 1975), merely naming the informant in the affidavit does not obviate the concern for his credibility, especially where, as here, the criminal activity he reports is otherwise unverified. But indiscriminately requiring a recital in all cases of the informant’s past record for reliability would undercut affidavits based on reliable statements by victims and witnesses not previously known to the police. Burke, 517 F.2d at 380. The Aguilar-Spi-nelli standard tests the unidentified informant’s credibility because it is ultimately concerned with the probable reliability of his information. Thus, whether the informant was an identified victim or bystander, or an unidentified professional informant on the fringes of the illegal activity reported, or, as here, an identified witness to an offense not otherwise verified, the central question remains whether his information is shown by the recited circumstance to be reliable. Darensbourg, 520 F.2d at 989, et seq. (Godbold, J., dissenting).

Credibility of the informant is in all cases an element of the reliability of his information; but it need not be evidenced in any particular way. In this ease Crawford’s credibility and the reliability of his information are established by facts recited, and by inferences reasonably drawn from those facts. We disregard as ^flotsam the affiant’s unexplicated evaluation of informant Crawford as “a responsible citizen of the community.” The characterization is not irrelevant; it is simply unsupported by any reference to facts which would lead a disinterested magistrate to agree that, yes, Crawford is a responsible citizen of the community. But other recited facts lend reliability to Crawford’s hearsay: he is an identified employee of an Orange Park motel; he personally observed the marijuana; he saw it on the motel premises where, as an employee, he had reason to be observant and to report truthfully what he saw; his description of the marijuana observed was detailed and in that detail was consistent with the officer’s knowledge of the appearance of marijuana and the common forms in which it is packaged. All in all, the hearsay bears hallmarks of reliability.

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


author: RYDER, Judge.

text:
    Diane G. HOEMKE, Appellant, v. Herbert HOEMKE and Esther Hoemke, his wife, Appellees.
    No. 77-837.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1978.
    Rehearing Denied March 23, 1978.

      John T. Blakely of Johnson, Blakely, Pope & Bokor, P. A., Clearwater, for appellant.
    Norman Bie, Jr., Largo, for appellees.
   RYDER, Judge.

Appellant, defendant below, appeals a final summary judgment of partition and argues the trial court erred in ordering a sale of alleged homestead property which was the subject of a prior divorce decree and by issuing a judgment upon a matter entirely outside the issues made by the pleadings.

While we believe partition of property under these circumstances may be proper and is not, in fact, barred by the Constitution, [see, Tullis v. Tullis, 342 So.2d 88 (Fla. 1st DCA 1977)], it is fundamental that a summary judgment based on matters entirely outside of the issues made by the pleadings cannot stand. Chandler v. Chandler, 330 So.2d 778 (Fla. 1st DCA 1976), Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974), and Cortina v. Cortina, 98 So.2d 334 (Fla.1957). The trial court did, in fact, include in its final summary judgment a finding that subject property was encumbered by a mortgage and that such property should be sold subject to same. The mortgage had not been pleaded, thus, clearly the judgment cannot stand, therefore. The final judgment entered is reversed and the cause remanded to the trial court, without prejudice to the parties, for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    PUSSYCAT THEATRE d/b/a Pussycat Theatre, William Finigan and Leroy C. Griffith, and a motion picture entity Deep Throat and the Gayety Theatre, Inc., Appellants, v. The STATE of Florida, Appellee.
    No. 76-1940.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 22, 1978.

      Weinstein & Krasnow, Miami Beach, for appellants.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the defendants, Gayety Theatres, Inc., d/b/a Pussycat Theatre, and Leroy Griffith, from an order adjudicating them to be in contempt of court

“ . . . for their willful failure to comply with this Court’s February 14, 1975 order by failing to advertise the film ‘DEEP THROAT’ with the legends ‘REVISED VERSION’ or ‘EDITED VERSION’ in type at least one-half as large as the largest type in their advertisements.”

The defendants were sentenced to pay a fine of $3,000.00. In default of payment of the fine, defendant- Griffith is to serve 5 days in the Dade County jail.

The record reflects that these proceedings were commenced in 1973, culminating in a restraining order on March 15,1974, enjoining the showing of the motion picture “Deep Throat” at any of the defendants’ places of business in Dade County, Florida. Subsequently, it was brought to the attention of the trial court that the defendants were, in fact, showing the film. Upon the representation of defendants’ counsel that the film being shown was a simulated version and that the explicit sexual scenes had been deleted, an agreed order was entered on February 14,1975, and signed by counsel for the defense and for the prosecution. That order provided:

“Upon such representation and with consent of counsel, accordingly, it is Ordered that on all advertisements, bill boards, placards, Marquees and all other advertising matter that there be included therein the legend ‘REVISED VERSION’ or ‘EDITED VERSION’ and that the letters of said legend be at least one half as high as the highest print in any such advertising material.”

In September of 1976, the State filed a petition for rule to show cause alleging that the defendants’ advertisements were in violation of the February 14, 1975, order in that:

“a. From August 4-August 9; August 11-August 17; and August 20-Septem-ber 3, 1976, advertisements appeared in the Miami Herald for the PUSSYCAT THEATER (sic) for the showing of the film ‘DEEP THROAT’ with no legends in the advertisements indicating either ‘REVISED EDITION’ or ‘EDITED EDITION.’
b. From September 5-September 11, 1976, advertisements appeared in the Miami Herald for the PUSSYCAT THEATER (sic) for the showing of the film ‘DEEP THROAT’ with the legend ‘REVISED’ appearing at the bottom of the advertisements, below the title of a second film, and in letters less than one-half as high as the highest print in the advertisements.”

The court issued a rule to show cause. Following an evidentiary hearing, the defendants were adjudicated to be in contempt of the order of the court, and were sentenced. This appeal ensued.

As their first point on appeal, the defendants contend that the court erred in finding them in contempt in the absence of evidence showing a willful or intentional violation of the court order. Our review of the record indicates that there was evidence that on numerous occasions during the months of August and September, 1976, defendants’ advertisements appeared in the Miami Herald, a newspaper of general circulation in the community, with only the word “revised” added, or without any reference at all to the legends “revised version” or “edited version” as specifically required by the court order.

In our opinion, the defendants’ argument that there was no showing of willful disregard for the order is without merit. They claim that they instructed the Miami Herald to include the word “revised” in their advertisements, and that they were unaware that the Herald was printing their advertisements without the addition of the word “revised;” and further, that as soon as they were put on notice of the noncompliance by the office of the State Attorney, that they again instructed the Miami Herald to correct the advertisements by inserting the word “revised.” The addition of the word “revised” is not what the order requires. Moreover, the defendants were under an obligation to continuously check their advertisements to be certain that the required language appeared in each one. If the legend had been omitted, the advertisement should have been corrected immediately or else discontinued. Therefore, the trial court did not err in finding that the defendants did willfully disobey the order of February 14, 1975, and in entering an adjudication of contempt.

From the record in this case, the defendants were guilty of an indirect criminal contempt. However, it does appear that the fine imposed on the defendants is excessive and must be reduced. The maxi-

mum penalty for criminal contempt is one year imprisonment and a fine of $500.00. Aaron v. State, 284 So.2d 673 (Fla.1973); Miami Health Studios, Inc. v. State ex rel. Gerstein, 294 So.2d 365 (Fla. 3rd DCA 1974); Section 775.02, Florida Statutes (1975). Therefore, the adjudication of contempt is affirmed and the cause is remanded to the trial court to modify the sentence, reducing the fine to no more than $500.00.

The remaining points on appeal are without merit and will not be discussed.

Affirmed and remanded for modification.


author: DREW (Ret.), Associate Judge.

text:
    Dale James KING, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2093.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 22, 1978.

      Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender and Larry Bessen, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   DREW (Ret.), Associate Judge.

During the early morning in September, 1974, a shotgun was fired into a crowd of people on N.W. 96th Street in Miami. Two people were killed, two injured. April 1975 appellant Dale James King was apprehended in Minnesota, placed under arrest there and subsequently extradited to face trial in Dade County. King and two others, Phillip Brannon Courtney and James Randolph Jacobs, were indicted jointly by the Grand Jury on the 4th of May for the murders of the two individuals and for the attempted murder of the two who were wounded. King was tried separately, found guilty on all four charges and, upon recommendation of the jury and the concurrence of the trial judge, sentenced to life imprisonment on the murder charges and to 15 years imprisonment on the attempted murder charges. This appeal is from that sentence and judgment.

Appellant argues five points on this appeal. The first point is that the court erred in excusing the State’s failure to comply with the discovery demands of the defendant with respect to two witnesses and a photograph.

Fla.R.Crim.P. Rule 3.220, provides:

“(a) Prosecutor’s Obligation.
(1) After the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel and permit him to inspect, copy, test and photograph, the following information and material within the State’s possession or control:
(i) The names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.
* * * * * *
(xi) Any tangible papers or objects which the prosecuting attorney intends to use in the hearing or trial and which were not obtained from or belonged to the accused.”

The violation of this rule, for obvious reasons, does not in itself require a reversal of a conviction by an appellate court. Harm or prejudice to the defendant which results from a violation of the rule by the State, or a failure of the State to furnish the name of a witness or witnesses known by the State to have information relative to the offense charged, or to any defense of the defendant with respect thereto, which results in harm or prejudice to the defendant does require a reversal.

While the trial court has discretion to make the determination of harm or prejudice, such discretion can be exercised only after it has made an adequate inquiry into all of the surrounding circumstances and this fact must appear in the record to enable the appellate court to properly assess the correctness of the trial court’s ruling. The Richardson case sets forth the factors which the trial court must consider in exercising its discretion with respect to a violation of such rule, as follows:

. . [wjhether the [state’s] violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.” Richardson, supra, at 775.

King, on May 10,1976, pleaded not guilty and invoked discovery under the rule. Written demands for discovery were filed May 13th and June 1st. Five weeks later the State filed its response. The trial commenced the following October 5th. In his opening argument, the attorney for the State said it would prove that King, with two other people, drove by the location of the homicide and that King fired the fatal shot from the car. The defense, in its opening statement, said the shot was not fired by King but probably by two named individuals who, earlier in the evening, fought with and threatened to kill some of the people at the party.

The State presented two witnesses, Ms. Davis and Mr. Jorge Barragan, whose names did not appear on the list of witnesses furnished by the State. Their testimony placed King in a white car with others at or near the scene of the shooting on the evening of the homicide. After objection by the defense because of the failure of the State to furnish their names as witnesses prior to trial, and a short interruption of the trial to allow defense counsel to confer with the witnesses, such objections were overruled and they were permitted to testify. King argues here that the only “inquiry” as set forth in Richardson (supra, note 1) was the following statement when the objection to Barragan’s testimony was made, viz:

“THE COURT: But I find none that I have heard about,, the delay has been prejudice (sic) to you, but it doesn’t do me any good to discuss outside of the presence of the reporter how we stand on witnesses, you know, and you make me think we are in good shape to go.”

We hold that the inquiry by the trial judge was adequate under the circumstances to meet the requirement of Richardson. Failure to comply with the rule should not result in the exclusion of relevant evidence from the jury unless no other remedy suffices. Here the trial was interrupted and defense allowed to interview these witnesses. After interviewing the witnesses, defense counsel did not request any additional remedy nor did he demonstrate any prejudice from the failure to list the witnesses originally. Moreover, as to Ms. Davis, the record shows that the defense knew she was an eye witness who claimed to be able to identify King as one of the perpetrators of the crime some three months before the trial at a lineup.

“Once again the state may have violated a Rule. But when that fact was discovered, the trial judge properly denied the request to exclude the witness or to recess the trial to enable defense counsel to obtain a ballistics expert of his own. Seeking a less drastic remedy, he recessed the court to allow the defense counsel to depose the expert before he was called to the stand. Since the defense should have been aware of the state’s proposed proof by reason of information already known to it, the trial judge acted within the scope of his discretion to remedy whatever prejudice might have resulted from the state’s breach.” Cooper v. State, supra at 1138-1139.
“The reason behind the rule requiring exchange of witness lists incident to discovery is to prevent prejudicial surprise, [citations omitted]
“Certainly the rule has a laudable purpose, and should be complied with. However, when, as here, the opposing party is fully acquainted with the witness and with his anticipated testimony, thus where there can be no surprise, and where the necessity for calling the witness occurs as a result of unforeseen circumstances which developed during the trial (or immediately preceding the trial, Bell v. State, [(Fla. 2d DCA 1974) 287 So.2d 717,] supra) and where it is apparent that no prejudice can result as a result of the failure to list the witness, then, under such circumstances, the rule should not be blindly followed. The purpose of the rules, indeed the purpose of the law, is to achieve justice not frustrate it.” C. A. W. v. State, 295 So.2d 329 (Fla. 1st DCA 1974), at 330-331.

We also hold that the trial court did conduct a sufficient inquiry concerning the failure to list Barragan. The inquiry revealed the failure was inadvertent, that this witness had been interviewed by the defense shortly before. The claim of prejudice was that the defense desired a deposition and the opportunity to investigate what the witness would testify about. This was, in effect, a motion for a continuance of the trial and the court was justified in denying it. Moreover, the record establishes that the defendant suffered no prejudice from being precluded from conducting a further investigation of this witness. His testimony was that he had heard two shotgun blasts on the evening in question and saw a white car in the vicinity of the crime. He did not witness the crime and could make no positive identification of the car and could not identify the occupants. At best, his testimony was cumulative to other evidence and added little, if anything, to the facts contained in the statement made by King to the officers in Minnesota to which we shall refer more fully hereafter.

During the course of the trial the State desired to introduce a photograph of the defendant which was taken in Minnesota by Minnesota authorities several hours after the defendant had given his formal statement when the defendant was being booked into the Elk River Minnesota jail. Prior to its admission into evidence an inquiry was conducted by the trial court. The trial court’s inquiry revealed that the State had not obtained this photograph from the police until the day of the trial. It is clear, therefore that Criminal Rule of Procedure 3.220(f)’s requirement of prompt production of additional new material at best resulted in a technical violation of lack of promptness measured by hours, as opposed to days. . . failure to obey the Rule should be remedied in a manner consistent with the seriousness of the breach. Relevant evidence should not be excluded from the jury unless no other remedy suffices.” The trial court obtained an admission from the defendant that this photograph was one of the defendant and, predicated upon its knowledge of the law and the defense’s defense as revealed by the defense’s opening statement, determined that this photograph should not be excluded from evidence. This photograph was an item of demonstrative evidence merely supportive of oral testimony. Of the various potential sanctions available to the trial judge pursuant to Rule 3.220(j), the only sanctions in fact available in a situation where the violation is the failure to display a physical exhibit, as opposed to revealing a witness, were exclusion of this photograph, a sanction which Cooper v. State, supra, pronounced to be a last resort, or the granting of a continuance. The trial court’s ruling was in keeping with the Supreme Court’s decision.

In summary, we hold that, a proper inquiry having been made by the trial judge concerning the unlisted witnesses, Davis and Barragan, and the unlisted photograph, and the trial court having determined that such failure did not prejudice the defendant in his defense, the holding of the Supreme Court in Cumbie that a reversal is required where the trial court fails to apprise itself of all the circumstances surrounding a breach of the discovery rule, is inapplicable. This case is controlled by Richardson, supra, which was reaffirmed and especially recognized in Cumbie and the rulings of the trial court in each instance are affirmed under the authority of the Richardson decision.

The third point on appeal is that the trial court erred in allowing the prosecutor to elicit testimony from a police officer, that the defendant, while in custody and in the face of accusation, exercised his right to remain silent, and allowing the prosecutor to cross-examine the defendant as to his pre-trial exercise of his right to remain silent while in custody and in the face of accusation, thereby violating the defendant’s right to be free from self-incrimination.

When King was arrested in Minnesota, he made a full and complete confession of the murders. The voluntariness of the confession was proven by two Minnesota officers, the Minnesota court reporter and two Miami officers who had journeyed to Minnesota to secure King. The facts of the arrest, the subsequent questioning by the officers after a full and detailed reading of and discussion with King of his rights under Miranda, his narration of the events of the evening of the murders which were transcribed by the reporter, but not signed by King, convinced the trial judge and the jury that the confession was made freely and voluntarily by King. Our study of this evidence, the statement of King and the supporting proof of other witnesses establishes, even beyond a reasonable doubt, that this confession was the voluntary, un-coerced product of the mind of King and correctly related the tragic and callous actions of this defendant and his two confederates on that tragic night. It is a story that shocks the mind. In the words of King, this is what occurred:

“A Yes, we were riding along and we wanted to shoot the shotgun off again and Brannon wanted to shoot some niggers with it.
Q Do you recall his exact statement?
A ‘Let’s go shoot some niggers.’
Q And what was your reply to that?
A ‘No.’
Q And do you recall Jim Jacobs’ reply?
A ‘No.’
Q What then occurred?
A Then he said ‘Oh, what is the matter. You guys scared?’, and pretty soon he had us talked into it and we were all for it. Each one of us wanted to shoot it and it ended up Brannon drove while I shot it and Jim was in the back seat.
Q And just how did you come by this area? I believe you stated between 96 and 98 on to 26th Avenue?
A We were going up 103rd Street, I think, towards 26th Avenue from 35th Court, and Brannon made a right on 26th Avenue and we were driving by and seen a bunch of people in the front yard, so Brannon said, ‘There you go, shoot them.’
Q These bunch of people you referred to in the front yard, were they white or black?
A Black.
Q Did they appear to be doing anything there?
A Just standing there talking, I think.
Q How many would you say approximately were standing there?
A Maybe six, I think. I don’t know.
Q You stated you drove by and observed them. Do you recall what direction you were travelling in?
A Going from One Hundred Third Street towards 95th Street.
Q When you reached 95th Street, what, if anything, did you do?
A We made a U-turn.
Q You then returned north on 26th Avenue?
A Right.
Q Do you recall, were the lights on or off on the vehicle when you were turned?
A Brannon turned the lights off after we turned around.
Q At the time the shotgun was handed to you, I believe you stated by Bran-non—
A Yes.
Q —to your knowledge was it loaded, or did you load it?
A It was loaded, I think.
Q As you passed the area where these blacks were standing, what, if anything, did you do?
A I just pointed the gun and pulled the trigger. I pointed it into the crowd.
Q How many shots did you fire?
A Just one.”

The State’s case was primarily predicated on King’s confession, and the issue of its voluntariness was raised from the inception, it being King’s contention that he was threatened with the electric chair but that if he cooperated he would get off with second degree murder; that he was physically mistreated by slamming his head on a table and that he was refused an attorney.

King bases his third point on the following question and answer which was asked and received at the extradition hearing in Minnesota, viz:

“Q [By Mr. Graves] At any time after these statements were given to the police officers and prior to the defendant leaving Elk River, Minnesota, did you hear him make any other comments about the case?
We are speaking of the charges that were against him.
A No.”

Appellant also alleges the prosecutor continued this incursion upon appellant’s fifth and fourteenth amendment rights during his cross-examination of the defendant in the trial, as follows:

“Q Now when you got in there before the judge and the judge explained your rights concerning extradition, certainly you told the judge the statement the police had taken from you was taken because they had beaten you and threatened you with the electric chair, didn’t you?
A No.”
* * * * * *
“Q Well, did you say anything about the statement?
A No, I did not.
Q You knew that you had been forced into giving this confession on a first degree murder case for which you could get the electric chair and you didn’t tell the judge in Minnesota, ‘Judge, they are framing me’? You didn’t tell him that?
A No, I did not.
Q Were your parents with you at the extradition proceedings?
A No.
Q Was anybody from your family at the extradition proceedings?
A No.
Q Did anybody go up to the judge and say, ‘Judge, they are framing my son’? Your parents, did any of them, to your knowledge, do that?
MR. YEDLIN: Objection.
THE COURT: Sustained. He already answered they weren’t there.
Q [By Mr. Graves] I am asking outside of the hearing, did your parents ever go to the judge either prior to the hearing or after the hearing saying ‘They forced my son to make this statement. Please don’t let them extradite him’?
A Not that I know of.
Q Did you or your parents ever call the Governor of the State of Minnesota and say ‘Governor, the police officers from the State of Florida have forced me,’ or your parents say, ‘have forced my son, implicating him in a first degree murder case for which he could get the death penalty’?
A No.
Q Do you know the governor of your state has to approve any extradition of you to the State of Florida?
A No.
Q You didn’t think the governor would do anything for you either?
A No.
Q How about this lawyer that your parents were getting you? Why wasn’t he at the extradition hearing?
A I don’t know.
Q Did you have your lawyer present a petition to the judge saying, ‘Your Honor,’ whatever this judge’s name is, ‘The State of Florida has forced my client to give a statement against his will without an attorney being present and we are going to fight the extradition proceedings’?
s(i * * * # sk
Q During that period of time that you were afraid, were you just afraid of Detective Goedecke or the charge of first degree murder?
A I don’t know. I was afraid. That is all I can tell you.
Q Just afraid of everything; is that right?
A I was afraid for my life.
Q But you never told that Judge up in Minnesota, did you?
A No, I didn’t.”

It will be noted that the critical questions asserted by King to violate his right to remain silent under the Constitution did not occur during the trial. And, the State says the challenged testimony in the total context of the preceding and subsequent testimony shows that the State was directing its inquiry solely to the issue of the voluntariness of the confession which was the central theme of the interrogation. In each instance, the question related to a time after King had confessed. It is highly illogical to assume that the State was using, or had any reason to use, King’s silence as any proof of guilt after he had made a full and complete confession of the crime. Silence to show a state of mind proving that a confession is voluntary is not the same as silence to show, or tend to show, guilt of the substantive event.

In Greenfield v. State, 337 So.2d 1021 (Fla. 2d DCA 1976) the State sought to use a defendant’s silence to meet its burden of proving that the defendant was not insane at the time he committed the crime. The State did so by eliciting testimony as to what the defendant did and said when he was arrested shortly after the commission of the crime. This testimony included the fact that after being given Miranda warnings, the defendant said that he understood them but did not desire to speak to the police until after he consulted an attorney. In rejecting a claim that this testimony ran afoul of the general law that the State cannot utilize the fact that a defendant exercised his right to remain silent after being given Miranda warnings, the Second District stated:

“While we do agree that, at least in the face of an objection, testimony or prose-cutorial comment relating to a defendant’s insistence on the right to remain silent generally constitutes reversible error, we are of the view that under the circumstances of this case the general rule ought not apply.
“When insanity is raised by plea as a defense, and evidence thereof is forthcoming prima facie sufficient to raise a reasonable doubt, the state no longer can travel on the presumption of sanity; it must establish sanity beyond a reasonable doubt as with every element of the offense charged. Certainly, evidence of the conduct and apparent state of mind and awareness of an accused, particularly where, as here, it is connected closely in point of time to the crime charged, is relevant to this issue; and it would be manifestly unfair to permit a defendant prima facie to establish a defense and then preclude the state from meeting it by barring relevant evidence to the contrary because of the ‘Miranda’ rationale. “Here, for example, the evidence relied upon by the state was perhaps the most competent evidence on appellant’s mental capacity at the time of the offense available, being so closely connected to the res gestae. It was neither unfair to introduce it nor improper to comment upon it in summation; . .

The confession of King, his admission of guilt to the witness Rodriguez, Davis’ eyewitness identification of the defendant and the other facts proven in this case overwhelmingly establish the defendant’s guilt beyond any reasonable doubt. He had the aid of highly qualified and diligent counsel and received every protection the law provides to assure a fair trial to one accused of crime. A trial like this, covering several days and producing thousands of pages of testimony and exhibits cannot be conducted with computer precision. The defendant is not entitled to a perfect trial. He is entitled to a fair one. The harmless error statute of this and every other jurisdiction we are aware of is in recognition of the fact that human institutions are fallible. It is only where an error in a trial is of such a nature as to be harmful or prejudicial to a defendant that he is entitled to be discharged or tried anew. We find no such error in the proceedings which we have discussed in detail, nor in points two, four and five which we have carefully considered.

Affirmed.

      . Richardson v. State, 246 So.2d 771 (Fla.1971). Also see Anderson v. State, 314 So.2d 803 (Fla. 3rd DCA 1975); Carnivale v. State, 271 So.2d 793 (Fla. 3rd DCA 1973).

      . Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970).

      . Footnote 1, supra.

      . Cooper v. State, 336 So.2d 1133 (Fla. 3rd DCA 1976).

      . Cooper v. State, supra, footnote 4.

      . Cumbie v. State, 345 So.2d 1061 (Fla.1977).

      . Compare Bordenkircher v. Hays, U.S. Supreme Court, -U.S. -, 98 S.Ct. 663, 54 L.Ed.2d 604, in which it was held that the Due Process Clause of the U.S. Constitution is not violated when a state prosecutor carries out a threat made during plea negotiations to have the accused re-indicted on a more serious charge on which he is plainly subject to prosecution if he does not plead guilty to the offense with which he was originally charged.

      . Miller v. State, 343 So.2d 1292 (Fla. 3rd DCA 1977).


text:
    Christopher E. MORRIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 76-2178.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 22, 1978.

      Alfred D. Bieley, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant seeks reversal of the trial court’s declaratory order dismissing his amended complaint because P. I. P. benefits are not allowed under the Florida “No Fault” Act to occupants of motorcycles.

We have concluded that no reversible error has been demonstrated, therefore the order appealed is affirmed. Garcia v. Allstate Insurance Company, 327 So.2d 784 (Fla. 3d DCA 1976); Brandal v. State Farm Mutual Automobile Insurance Company, 327 So.2d 867 (Fla. 1st DCA 1976); Long Island Insurance Co. v. Frank, 328 So.2d 542 (Fla. 3d DCA 1976).

Affirmed.


text:
    George R. WALDECK, Appellant, v. Myron MARKS, Appellee.
    No. 77-34.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 22, 1978.
    Kenworthy & Gifford, for appellant.
    Bretan & Marks, Miami, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

The trial court did not err in entering its order of amended accounting construing the opinion and mandate of this court in Waldeck v. Marks, 328 So.2d 490 (Fla. 3d DCA 1976).

Affirmed.


text:
    James W. INGRAM, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-128.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 22, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   PER CURIAM.

Affirmed. See North v. State, 65 So.2d 77 (Fla.1953); Thomas v. State, 326 So.2d 413 (Fla.1975); Johnson v. State, 348 So.2d 646 (Fla. 3d DCA 1977), and Ellison v. State, 349 So.2d 731 (Fla. 3d DCA 1977).


author: SMITH, Acting Chief Judge. BOOTH, Judge,

text:
    CONTINENTAL INS. CO. and County of Volusia, Appellants, v. J. B. BELFLOWER, Appellee.
    No. GG-443.
    District Court of Appeal of Florida, First District.
    Feb. 22, 1978.
    Rehearing Denied March 27, 1978.
    Robert K. Rouse, Jr. of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Day-tona Beach, for appellants.
    Sylvan A. Wells of Stern, LaRue & Wells, P.A., Daytona Beach, for appellee.
   SMITH, Acting Chief Judge.

Volusia County and its insurer appeal from a money judgment entered on a jury verdict that appellee Belflower was damaged to the extent of $50,000 when he was injured as his car struck a concrete slab off the surface of a narrow dirt road near Edgewater. The judgment was for $10,000, reflecting the jury’s finding that Belflower’s negligence was 80 percent responsible for the accident and the County’s negligence was 20 percent responsible.

The evidence was insufficient to submit to the jury the issue of the County’s asserted negligence in failing to clear obstacles from the grassy area adjoining the road and in failing to post signs warning of such obstacles. There is no evidence of formal dedication of the road. Belflower’s case rests entirely on Section 95.361, Florida Statutes (1975), which presumes dedication from county maintenance and repair “continuously and uninterruptedly for four years.” There was evidence that a county commissioner caused the road to be cut many years ago and that twice since then other commissioners caused shell to be placed on portions of the road for the convenience of hunters. But there was an entire absence of evidence that even these desultory activities occurred within a four year period, or that the county performed any inspection or repair “continuously and uninterruptedly for four years” on what otherwise must be regarded as a private road. The judgment will be reversed and the cause remanded for entry of judgment for appellants.

REVERSED.

ERVIN, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

A jury question was presented as to whether the road where the accident occurred was a county road under Florida Statute § 95.361. The evidence presented here was substantially similar to that in Pasco County v. Johnson, 67 So.2d 639 (Fla.1953) wherein the court held that the county’s cleaning up of bush, stumps and trees and filling up of holes and ruts in an unpaved rural road satisfies the statutory requirements of a presumed dedication. Accord, Lovey v. Escambia County, 141 So.2d 761 (1st DCA 1962), findings of trial court and testimony quoted at 141 So.2d 770-771.

A closer question, but still one for the jury, was presented as to the county’s negligence in failing to warn of, or to remove, the hidden concrete abutment, an unexpected and unnatural obstacle, immediately adjacent to the edge of the narrow roadway.

I would affirm the judgment below.


author: MILLS, Judge.

text:
    Myrtle I. BRYANT, Wiley W. Bryant and Cargo Gasoline Company, Inc., Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION and City of Jacksonville, Appellees.
    No. BB-250.
    District Court of Appeal of Florida, First District.
    March 1, 1978.
    David W. Foerster of Foerster & Hodge, Jacksonville, for appellants.
    Donald R. Hazouri, Jacksonville, Winifred Sheridan Smallwood, Tallahassee, for appel-lees.
   MILLS, Judge.

The Bryants and Cargo appeal from a final judgment entered in an eminent domain action following a jury trial. The Bryants and Cargo contend the trial court erred in permitting the Department and the City to implement the construction plans at trial by adducing evidence of the Department’s turnout and dropped curb policy. Cargo contends the court erred in denying its motion for a directed verdict on the issue of business damages and erred in instructing the jury that in order to award business damages the jury had to first award severance damages.

The Department and the City filed a copy of the construction plans with the clerk at the time they filed their petition for condemnation. The plans called for a six-inch raised curb around the property of the Bryants and Cargo. Prior to the first pretrial conference the Bryants and Cargo directed a motion for more definite statement to the Department and the City seeking to determine whether six-inch curbs would be constructed around the property as shown by the construction plans. The court granted the motion and ordered the Department to file amended construction plans showing the precise location, design and type of construction of any and all ingress and egress from the roads to the remaining land of the owners after the taking. The Department was to indicate the width of the access points and their distance from the intersection but the specific location was to be designated by the Bryants and Cargo. The order further provided that if the Department failed to comply with the order, the trial would proceed on the basis of the construction plans originally filed with the clerk. Neither the Department nor the Bryants and Cargo complied with the order. At the trial, the district right-of-way engineer of the Department, over the objection of the Bryants and Cargo, testified to the precise location where dropped curbs would be permitted should the Bryants and Cargo desire.

The Bryants adduced evidence of damage to the remainder. The Department and City adduced evidence that there was no damage to the remainder and no adverse effect to the portion left by the taking.

Cargo adduced evidence that its business damages were $58,300. The Department and City did not offer rebuttal testimony. Cargo’s motion for a directed verdict on this issue was denied.

The court instructed the jury, without objection, that it was required to first find there were severance damages before an award of business damages could be allowed.

The construction plans filed by the Department and the City with the clerk at the time they filed their petition for condemnation were not required to be fully and finally prepared at that time. Once the plans were introduced into evidence, however, the Department and the City were bound by them, subject to explanation by an authorized engineer of the way in which the public project would be constructed. Central & South Florida Flood Control District v. Wye River Farms, Inc., 297 So.2d 323 (Fla. 4th DCA 1974). In the case before us, the court had ordered the Department to file amended construction plans showing the precise location, design and type of construction of all ingress and egress from the roads to the remaining land, indicating the width of the access points and their distance from the intersection. The court, however, also ordered the Bryants and Cargo to designate the specific location of the points. None of the parties complied with the order. Under these circumstances the court did not err in permitting the Department’s district right-of-way engineer to implement the construction plans by testifying to where dropped curbs would be permitted if the Bryants and Cargo desired.

The only evidence presented on the issue of business damages was testimony by Cargo’s expert witness. He testified that Cargo’s business damages were $58,300. No rebuttal testimony was offered by the Department and the City. Cargo moved for a directed verdict on this issue. The court denied the motion and properly denied it. Our Supreme Court has recently stated, under circumstances similar to those in the case before us, that:

“ . . . the property owners’ expert testimony was the maximum amount requested, not a minimum amount admitted. .
“In considering an expert’s testimony the jury must be guided by the greater weight of the evidence, and it remains the jury’s province to determine the weight and credibility to be given an expert’s testimony. . . . Compensation in an eminent domain case is by our constitution committed for final determination to the jury, not to an expert.” Behm v. Division of Admin., State of Fla. Dept. of Trans., 336 So.2d 579 (Fla.1976).

Cargo’s contention that the court erred in instructing the jury that in order to award business damages the jury had to first award severance damages is without merit. The point has not been preserved for appeal because the record reflects no objection on Cargo’s part to the charge given the jury. But even so, under the peculiar facts of this case it was not error to give the charge. Severance damages and business damages were predicated on difficulty of getting onto and off of the remaining land. If the jury found the remaining land was not damaged by this alleged difficulty, then logically no business damage could result from the same alleged difficulty.

The judgment appealed is affirmed.

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


author: GRIMES, Acting Chief Judge.

text:
    Leander CARROLL and Jessie J. Carroll, Appellants, v. Tom K. DOUGHERTY and Valentine S. Dougherty, Appellees.
    No. 77-1002.
    District Court of Appeal of Florida, Second District.
    March 3, 1978.
    Rehearing Denied March 20, 1978.

      Jack P. Brandon and Lee G. Schmudde of Peterson, Myers, Curtis, Craig & Crews, Lake Wales, for appellants.
    R. Dewey Burnsed of MeLin, Burnsed & Cyrus, P. A., Leesburg, for appellees.
   GRIMES, Acting Chief Judge.

This case squarely presents the question of whether, since the adoption of our 1968 Constitution, there is any longer a requirement that a contract to sell homestead property be executed in the presence of two subscribing witnesses.

The appellants signed a contract to sell their home. The contract was signed only in the presence of a real estate broker. The broker then brought the contract to the appellees to sign as purchasers. One of them noticed that the contract bore the signature of only one witness and called this to the attention of the broker. The broker took the contract and later brought it back to the appellees showing the signature of the broker’s wife as a second witness. The appellees then signed the contract. When the appellants later refused to go through with the contract, the appellees brought suit for specific performance. The court entered a summary judgment for the appellees on the estoppel theory set forth in Cox v. LaPota, 76 So.2d 662 (Fla.1954). On appeal, this court reversed because there were genuine issues of fact and conflicting inferences to be drawn therefrom with respect to the estoppel. Carroll v. Dougherty, 302 So.2d 439 (Fla. 2d DCA 1974).

Upon remand, in the course of a pretrial conference, the court concluded that it was unnecessary to try the estoppel issue because by virtue of the adoption of our new constitution there was no longer any requirement to have two subscribing witnesses to a contract to sell homestead. Thereupon, the court entered a new summary judgment for the appellees, from which the appellants have filed this appeal.

The court below predicated its ruling upon our decision in Wickes Corp. v. Moxley, 342 So.2d 839 (Fla. 2d DCA 1977), which was rendered after the reversal of the first summary judgment. In Wickes we held that there was no longer any requirement for two subscribing witnesses on a mortgage of homestead realty because the language of Article X, Section 4(c) of the 1968 Constitution eliminated the requirement that deeds and mortgages of homestead be “duly executed.” We explained that the words “duly executed” as contained in the old constitution had been construed to mean that a mortgage had to be executed with the formality of a deed as required by Section 689.01 of our statutes and that this section called for two witnesses. In view of the fact that there was no statutory requirement for witnesses on a mortgage, we concluded that the elimination of the words “duly executed” had. the effect of rendering the previous decisions on homestead mortgages no longer applicable. We must now decide whether the rationale of Wickes is applicable to contracts to sell homestead realty.

Section 689.01, Florida Statutes (1975), provides that no real estate shall be transferred except by an instrument in writing signed in the presence of two subscribing witnesses. This statute does not apply to contracts for the transfer of real estate even though one can become legally bound to execute a deed by virtue of having signed the contract. Zimmerman v. Diedrich, 97 So.2d 120 (Fla.1957); Dolan v. Wright, 289 So.2d 777 (Fla. 4th DCA 1974); Kroner v. Esteves, 245 So.2d 141 (Fla. 3d DCA 1971). Since there is nothing in Section 689.01 to differentiate homestead realty, the requirement for witnesses on a contract to convey homestead had to come from another source. A study of the evolution of this requirement demonstrates that it was grounded upon the “duly executed” provision of the old constitution relating to homesteads and that Section 689.01 was only pertinent for the purpose of determining what these words meant. Zimmerman v. Diedrich, supra; Hutchinson v. Stone, 79 Fla. 157, 84 So. 151 (1920). Thus, by virtue of the deletion of the words “duly executed” from the new constitution, we are drawn to the inescapable conclusion that contracts to convey homestead realty fall into the same category as contracts to convey any other kind of real estate.

Superficially, our holding appears to conflict with Koplon v. Smith, 271 So.2d 762 (Fla.1972); Shedd v. Luke, 299 So.2d 58 (Fla. 1st DCA 1974), and even our prior opinion in the instant case. However, in none of these opinions was the effect of the deletion of the words “duly executed” from the old constitution discussed. Thus, it appears that in each of these cases the court was simply reciting the well-established rule which existed prior to the adoption of the new constitution. Since our reasoning in Wickes has now been adopted by the supreme court, we believe that court would now hold that the elimination of these words also dispensed with the requirement of two witnesses on a contract to convey homestead.

The appellants make some plausible arguments for differentiating between a contract to convey homestead and a mortgage on homestead. They point out that in the case of a mortgage the transaction has been fully executed and the mortgagee has already advanced the money, whereas a contract to convey is still in the executory stage when less harm is likely to result if the transaction is not consummated. They also suggest that more formality should be required where one agrees to sell his home, because once the contract is signed it is subject to specific enforcement. We suggest that these are arguments which should be directed to the legislature. We believe we would be overstepping our bounds to decide for policy reasons that Section 689.01 should be interpreted to require two witnesses on a contract to convey homestead realty when the same statute has always been construed as not requiring two witnesses on a contract to convey nonhome-stead realty.

AFFIRMED.

SCHEB and OTT, JJ., concur.

      . The Zimmerman case also held that by virtue of Section 708.07, Florida Statutes (1955), two witnesses were required on any contract which had the result of requiring the conveyance of the separate property of a married woman or the relinquishment of dower. The effect of this statute need no longer be considered because it was repealed in 1970. See Dolan v. Wright, supra.

      . Moxley v. Wickes Corp., 356 So.2d 785 (Fla., filed January 26, 1978).


text:
    William G. SHAW and Bill Shaw Lincoln Mercury, Inc., Appellants, v. PALM BEACH LINCOLN MERCURY, INC., Appellee.
    No. 77-2727.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1978.
    Donald J. Beuttenmuller, Jr., of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellants.
    J. Brian Brennan, of Brennan, Brown & Avery, West Palm Beach, for appellee.
   PER CURIAM.

This is an interlocutory appeal from an order denying a motion to dismiss for failure to prosecute. Appellee in its brief agrees that appellants are correct and joins in appellants’ request that the order of the trial court be reversed.

REVERSED and REMANDED.

ALDERMAN, C. J., and CROSS arid DAUKSCH, JJ., concur.


text:
    Augustas CABRE, Appellant, v. Douglas BROWN, Betty L. Brown, and M. G. I. C. Indemnity Corporation, Appellees.
    No. GG-368.
    District Court of Appeal of Florida, First District.
    March 7, 1978.
    David E. Bembry, Madison, for appellant.
    Frank M. Gafford, Lake City, for appel-lees.
   PER CURIAM.

We are asked to determine the priority of two liens, one a landlord’s lien and the other a lien filed pursuant to Section 319.27(2), Florida Statutes (1975), securing a conditional sales contract on a mobile home. We reverse the final judgment and find the landlord’s lien the superior lien.

On November 30, 1973, appellant Augustus Cabré purchased two acres of land from Douglas and Betty Brown. The Browns had a mobile home located on the property which they agreed would be removed within two weeks. This was never done. The trailer remained on the property for almost three years, and Cabré filed an action in September, 1976, asking distress for rent and seeking a lien under Section 83.08, Florida Statutes (1975), for the fair market rental value of the two acre plot.

First Federal Savings and Loan of Gainesville held a lien on the trailer at the time it was abandoned by the Browns. When payments were not made by the Browns, First Federal looked to appellee M.G.I.C., its credit insurer, for payment. M.G.I.C. paid the outstanding amount of the loan but First Federal, rather than assigning its lien to M.G.I.C., filed a satisfaction of the lien on August 22, 1974. It was not until almost two years later, in June, 1976, that the assignment of First Federal’s ■interest in the mobile home to M.G.I.C. was completed. When distress for rent was sought by the landlord, Cabré, M.G.I.C. counter-claimed asserting its prior possesso-ry right to the mobile home.

The trial judge incorrectly granted judgment to M.G.I.C. for possession of the mobile home. The Browns, upon abandoning the trailer on the property, became tenants at sufferance, and Cabré properly asserted a landlord’s lien against the personalty. Pillans & Smith Co., Inc. v. Lowe, 117 Fla. 249, 157 So. 649 (1934); West’s Drug Stores, Inc. v. Allen Inv. Co., 125 Fla. 823, 170 So. 447 (1936). That lien came into existence not when the action in distress for rent was brought, but when the tenancy came into being. Section 83.08(2) allows a lien to a landlord for rent:

“Upon all other property of the lessee or his sub-lessee or assigns, usually kept on the premises. This lien shall be superior to any lien acquired subsequent to the bringing of such property on the premises leased.”

See Lovett v. Lee, 141 Fla. 395, 193 So. 538 (1940); G.M.C.A. Corp. v. Noni, Inc., 227 So.2d 891 (Fla. 3d DCA 1969). Because M.G.I.C.’s lien was not perfected until long after the abandonment of the trailer on the property of Cabré, it is clear the landlord’s lien is superior.

The final judgment is REVERSED with directions judgment be entered for Cabré.

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


text:
    Johnnie THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. HH-90.
    District Court of Appeal of Florida, First District.
    March 7, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The trial court properly denied the appellant’s motion for judgment of acquittal made at the close of all the evidence. We have examined the remaining point on appeal and find it to be without merit. However, the cause is remanded to the trial court for entry of a judgment and sentence for the offense of aggravated battery in accordance with the verdict of the jury. The defendant need not be present for this purpose.

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


author: PER CURIAM. NATHAN, Judge,

text:
    James PILAFIAN and Shocky Pilafian, his wife, Appellants, v. Robert L. CHERRY and Mary H. Cherry, his wife, Appellees.
    No. 76-1944.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.

      Jack R. Rice, Jr., Miami, for appellants.
    Kenneth H. Smith, Tavernier, for appel-lees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

The trial judge has given us the benefit of extensive findings of fact in the final judgment, which is as follows:

******

“1. The Court has jurisdiction of the subject matter and the parties.
“2. Plaintiffs and Defendant ROBERT L. CHERRY own adjacent lots in a subdivision known as First Addition to Pirates’ Cove, recorded in Plat Book 3 at Page 87 of the Public Records of Monroe County. Their common boundary line is located at the southeast corner of a body of water known as Bara-taría Lake.
“3. Plaintiffs and Defendant ROBERT L. CHERRY purchased their respective lots subject to restrictions common to all properties therein, including paragraph 10, which provides:
‘10. No dock, wharf or other projection shall be constructed or erected on, along or over lots fronting on any channel, which shall project into the channel beyond the water front line of said lot or lots as shown and delineated on the recorded plat . . .’
“4. That sometime during the summer of 1973 Defendant ROBERT L. CHERRY commenced construction of a seawall and dock on his lot, lot 23, block 19, and that prior to construction he knew that his platted boundary line was landward of the navigable water adjacent to his lot.
“5. After initial efforts to excavate the area between navigable water and the property line failed because of large boulders and bedrock which could not be readily removed, Defendant ROBERT CHERRY had a seawall constructed which was seaward of his lot line 1.55 feet at the southern end (the end adjacent to the parties common boundary) decreasing along a 40 foot line to .5 feet at the northern end. A dock was constructed on top of the seawall which extends seaward from the seawall an additional 1.4 feet at the southern end to 1.45 feet at the northern end. (See Plaintiffs’ Exhibit No. 10)
“6. No part of Defendant’s dock or seawall extends over the projection of the parties’ common boundary line. (See Plaintiffs’ Exhibit No. 10)
“7. Sometime in January 1972 (pri- or to the time Defendant’s dock was built) while Plaintiffs were negotiating to purchase their lot, lot 24, block 19, a dock was constructed on Plaintiffs’ lot which extends seaward from the platted boundary line approximately 12 inches on the east end decreasing along a 20 foot line to approximately 5 inches at the west end. Said dock is still existing. (See Defendant’s Exhibit No. 3)
“8. The deed restrictions as set forth in paragraph 3 hereinabove apply to the Plaintiffs and Defendant ROBERT L. CHERRY.

“Having found that the Plaintiffs and Defendant ROBERT L. CHERRY are bound by the restrictive covenants as set forth in paragraph No. 3 above and understanding that the law of Florida is that injunctive relief is available to enforce restrictive covenants (see Stephl v. Moore (Fla.1927) [94 Fla. 313] 144 So. 455 and City of Miami v. Kline (Fla.App.1966) 189 So.2d 503, this Court must also recognize the doctrines of ‘balance of conveniences’ and ‘clean hands’:

‘Although the doctrine of balancing the relative conveniences of the parties has been applied most generally in cases involving encroachments, the rationale of the decisions make application of the doctrine equally applicable to cases involving violation of restrictive covenants. Ortega Company v. Justiss (Fla.App.1965) 175 So.2d 554. Also see 17 Florida Jurisprudence, Injunctions, Sections 24 and 25, pages 389 and 390.
‘One who seeks the aid of equity must do so with clean hands. 12 Florida Jurisprudence, Equity, Section 54, p. 211.’
“In the instant case Plaintiffs do not allege that they own the bottom land adjacent to their lot but that Defendant ROBERT L. CHERRY’s dock deprives them of the use of a portion of 2.95 feet of the surface water seaward from the northeastern corner of their lot and because there is now a dock where previously rocks had protruded from the water 3 to 9 inches, their view is less pleasing. Plaintiff JAMES PILAFIAN testified he would like to purchase a 30 to 50 foot sail boat and moor it to his dock, but the evidence shows that because of the protruding rocks in the area over which the dock was constructed, the water was not navigable prior to the construction of Defendant’s dock nor would it be navigable if the dock is removed. Plaintiffs also presented testimony concerning the value of their lot, but considering all of the evidence presented on that point, Plaintiffs have failed to establish that their property has diminished in value because of Defendant’s acts. On the contrary, rather convincing testimony was presented which suggests that Defendant’s dock increased the value of Plaintiffs’ lot as well as Defendant ROBERT L. CHERRY’s lot.
“On the other hand, the evidence indicates Defendant ROBERT L. CHERRY would suffer injury and inconvenience if a mandatory injunction were issued. The parties have stipulated that the cost of removal of Defendant’s 40 foot dock would be $75.00 per foot. In addition, the practical result would be that Defendant ROBERT L. CHERRY’S lot would end approximately one to three feet short of navigable water, which would greatly diminish the value of his property as well as effectively deny him what was intended by the restrictions — to permit riparian property owners in the subdivisions access to the waterways for fishing and boating in a manner which would not interfere with the same .rights of other riparian owners.
“Therefore this Court finds that to grant the mandatory injunction sought by Plaintiffs would result in little apparent benefit to Plaintiffs but considerable cost and diminution of property value for the Defendant ROBERT L. CHERRY.
“Last, the Court must consider the doctrine of clean hands.
‘If the Plaintiff has previously violated the same restriction which he now seeks to enforce against the Defendant, the equitable doctrine of unclean hands is applicable and injunctive relief is usually denied.
‘Difficulties are found in applying this doctrine, when the complainants’ breach was not as significant as the violation of the provision by the Defendant. If the violation by the Plaintiff was insignificant, he may still secure equitable relief so long as the Defendant’s breach was substantial and defeats the main object of the restriction. If, however, the complainants’ breach was substantial, even though not as pronounced as the Defendant’s, the defense is normally good . For the equitable defense to be effective, the complainant’s violation must be one that exists when the relief is sought. Powell on Real Property, Volume 5, Section 683, pp. 226-7. Also see Babcock v. Red Cattle Co. (Cir.Ct.1953) 6 Fla.Supp. 113, where the Court denied a complaint for mandatory injunction to prevent Defendant from obstructing surface waters where Plaintiff had done the same thing. Also Crowl v. McDuffie (Fla.App.1961) 134 So.2d 542.’
“It is therefore

“ORDERED and ADJUDGED that Plaintiffs’ prayer for mandatory injunction and Defendants’ Amended Counterclaim for mandatory injunction are hereby denied.”

We have considered each of the points addressed to the judgment and find that the judgment is well supported by the evidence. Therefore, we cannot substitute our judgment for that of the trial judge. No error of law appears.

Affirmed.

NATHAN, Judge,

concurring in part, dissenting in part:

I concur with the holding of the majority opinion only in the result regarding the denial of relief by way of issuance of mandatory injunctions.

The record reflects that in spite of appellants’ admonitions, appellee wilfully and deliberately violated, the restrictions by extending the dock and bulkhead, thus, at least, marring the view of the appellants. I would, therefore, reverse the finding and judgment of the trial court as to damages, and remand for reconsideration even though such damages may be measured by aesthetic values.


author: KEHOE, Judge.

text:
    Emanuel Ash BEY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2076.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.

      Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, appeals a judgment of conviction entered pursuant to a jury verdict to the charge of resisting an officer with violence to his person. After a consideration of the points raised on appeal by appellant, we have concluded that they are without merit; therefore, the judgment appealed is affirmed.

Appellant raises the following three points on appeal: (1) whether the trial court erred in denying his challenge for cause of juror Charles Stubbs; (2) whether the trial court erred in failing to direct a judgment of acquittal when the State (ap-pellee herein) failed to prove an essential element of the offense of resisting an officer with violence to his person; and (3) whether the trial court erred in ruling that there was sufficient evidence to establish his arrest where there was no actual or constructive detention.

Section 843.01, Florida Statutes (1975), provides, among other things, that whoever knowingly and willfully resists, obstructs, or opposes any deputy sheriff or municipal police officer in the lawful execution of any legal duty by doing violence to the person of such officer shall be guilty of a felony of the third degree. In the instant case, appellant contends that he could not be guilty of a violation of this Section because the police officer, whom appellant resisted with violence, was acting outside the scope of his legal duty at the time the resistance took place.

The records shows that the officer observed appellant driving in a reckless manner and followed him to the front yard of his home. The officer then approached appellant and asked to see his driver’s license. Appellant refused to produce the license and proceeded toward his home. The officer then stated to appellant that he was under arrest for reckless driving and ordered him to halt. Appellant acknowledged this statement by saying, “You can’t arrest me,” and then attempted to escape into his home. The officer immediately followed appellant onto the premises where the act of violence occurred.

Section 901.22, Florida Statutes (1975) provides that “[i]f a person lawfully arrested escapes or is rescued, the person from whose custody he escapes or was rescued or any other officer may immediately pursue and retake the person arrested without a warrant at any time and in any place.” Appellant admits that, if he was under arrest at the time he escaped into his home, the officer would have been authorized to pursue and retake him. However, appellant contends that, at the time he fled into his home, he had not been arrested because the officer had not actually or constructively detained him.

The elements of an arrest are well settled in Florida and are as follows:

(a) a purpose or intention to effect an arrest under real or pretended authority;
(b) an actual or constructive seizure or detention of one person by another having present power to control the person arrested;
(c) a communication by the person making the arrest to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and
(d) an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

See, e. g., State v. Parnell, 221 So.2d 129 (Fla.1969); Melton v. State, 75 So.2d 291 (Fla.1954); Chance v. State, 202 So.2d 825 (Fla. 2d DCA 1967); and Fla.Jur.2d, Arrest § 2 (Interim Topics Cum.Supp.1978). The record in this case clearly reflects that elements (a), (c), and (d) were satisfied. However, the determination of whether element (b) was also satisfied is dispositive of appellant’s second and third points on appeal.

We are of the opinion that under modern day conditions, if all of the other elements of an arrest are present, when a police officer confronts and tells a person that he is under arrest and the officer has the present power to control the person, although he may not actually do so, a constructive arrest has been effected. Based on this opinion and the facts of this case, we have concluded that the officer had effected a constructive arrest of appellant who then attempted to escape. Thereafter, when the officer pursued appellant onto the premises for the purpose of retaking him, the officer was acting within the scope of his legal duty pursuant to Section 901.22, Florida Statutes (1975). Accordingly, when appellant did violence to the officer, as found by the jury, appellant was guilty of violating Section 843.01, Florida Statutes (1975).

In our opinion, the jury verdict was supported by competent substantial evidence and all the essential elements of the offense of resisting an officer with violence to his person were present. Based on this opinion, we have determined that appellant’s second and third points on appeal are without merit. Further, we have considered appellant’s other point on appeal and have also concluded that it is meritless. Therefore, based on the authorities and for the reasons set forth above, the judgment of conviction appealed should be affirmed.

Affirmed.


text:
    W. Charles BECKER, Appellant, v. Joseph KODEL, Appellee.
    No. 77-54.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.

      A. John Goshgarian and Howard J. Hoch-man, Miami, for appellant.
    Reginald M. Hayden, Jr. and Ira M. Wit-lin and Myra F. Bennett, Miami, for appel-lee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellant, Third Party Plaintiff, seeks review of a final summary judgment entered in favor of the appellee, Third Party Defendant. Appellant’s Third Party claim against appellee arises out of a financial transaction between the parties.

The burden of proving the absence of a genuine issue of material fact was upon the appellee, movant. The record does not support a finding that he has successfully met his burden. Absent such showing, appellant was under no obligation to show that issues remain. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Therefore the judgment appealed is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: HENDRY, Judge.

text:
    CONSOLIDATED ELECTRIC SUPPLY, INC., Appellant, v. CONSOLIDATED ELECTRICAL DISTRIBUTORS SOUTHEAST, INC., Appellee.
    No. 77-55.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Harold Rosen and Paul S. Berger, Miami Beach, for appellant.
    Fleming, O’Bryan & Fleming and William D. Ricker, Jr., Fort Lauderdale, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, Consolidated Electric Supply, Inc., plaintiff below, appeals from an order denying its motion for rehearing. The motion for rehearing was filed in response to the trial court’s dismissal of appellant’s amended complaint which sought both in-junctive relief and damages for deceptive trade name infringement against appellee, Consolidated Electrical Distributors Southeast, Inc., defendant below.

After carefully reviewing appellant’s amended complaint and attached exhibits, in light of the applicable case law, it is our opinion that no cause of action for deceptive trade name infringement was established. Firstly, the names Consolidated Electric Supply, Inc., and Consolidated Electrical Distributors Southeast, Inc. are not so similar as to establish the prior registrant with common law trade name protection. See United Life Ins. Co. v. United Ins. Co., 70 So.2d 310 (Fla.1954); Richard Store Co. v. Richard’s Warehouse Sales & Auction Gallery, Inc., 63 So.2d 502 (Fla.1953). Secondly, in apparent realization of the aforementioned dissimilarity, appellant alleged that both corporations had acquired a secondary trade name, “Consolidated,” which caused confusion among the parties’ suppliers and customers. Assuming such allegation as true, the word “consolidated,” being generic in nature, could not be appropriated for trade name purposes. Miller Brewing Company v. G. Heileman Brewing Company, Inc., 561 F.2d 75 (C.A. 7th 1977).

Accordingly, appellant having failed, as a matter of law, in establishing a cause of action for deceptive trade name infringement, the order appealed from is hereby affirmed.

Affirmed.


text:
    Dorothy GRILLO, Appellant, v. Alvin A. GRILLO, Appellee.
    No. 77-100.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Jeffrey M. Mart, Miami, for appellant. Fine & Brownstein, Miami, for appellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Koeppel v. Koeppel, 351 So.2d 766, 768 (Fla. 3d DCA 1977); Pfohl v. Pfohl, 345 So.2d 371, 375 (Fla.3d DCA 1977).


text:
    LEHIGH PORTLAND CEMENT COMPANY, Appellant, v. Sidney T. BOGARDUS et al., Appellees.
    No. 77-195.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Theodore R. Bayer, Miami, for appellant.
    Mahoney, Hadlow & Adams and Paul C. Huck, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Merritt v. Unkefer, 223 So.2d 723 (Fla.1969); and Gancedo Lumber Company, Inc. v. Flagship First National Bank of Miami Beach, 340 So.2d 486 (Fla. 3d DCA 1976). Cf. Chase Manhattan Bank v. S/D Enterprises, Inc., 353 So.2d 131 (Fla. 3d DCA 1977); and J. G. Plumbing Service, Inc. v. Coastal Mortgage Company, 329 So.2d 393 (Fla. 2d DCA 1976).


text:
    Cordelia WALLACE, Appellant, v. P. L. DODGE MEMORIAL HOSPITAL et al., Appellees.
    No. 77-207.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Podhurst, Orseck & Parks and Michael S. Olin, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Thomas F. Martin, Miami, for appellees.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

The plaintiff Cordelia Wallace appeals a final summary judgment in a negligence action in favor of the defendant P. L. Dodge Memorial Hospital and its insurer Appalachian Insurance Company and contends that the entry of such judgment was error because inter alia there was a genuine issue of material fact as to the alleged negligence of the defendant hospital in failing to provide adequate attendants to protect the plaintiff as an invitee of the hospital against a violent attack by one of its mental patients. We agree and reverse the judgment appealed from for further proceedings solely as to that issue. No other genuine issue of material fact exists in this case. Holl v. Talcott, 191 So.2d 40 (Fla.1966); North Broward Hospital District v. Adams, 143 So.2d 355, 356 (Fla.2d DCA 1962).


text:
    John ALLEN d/b/a B. J. Nursery, Appellant, v. FAR WEST BOTANICALS, INC., a Florida Corporation, Appellee.
    No. 77-224.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.

      Horton, Perse & Ginsberg, Miami, for appellant.
    Rosenberg, Rosenberg, Reisman & Glass, Miami, for appellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Paul v. Kanter, 155 So.2d 402, 403 (Fla. 3d DCA 1963).


text:
    Sam William ELLIOT, Appellant, v. The STATE of Florida, Appellee.
    No. 77-293.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Appellant was charged with both possession and sale of a controlled substance (heroin). He was convicted by a jury of possession only. By this appeal, appellant contends that the trial court committed reversible error when it admitted into evidence marked money allegedly paid for heroin purchased from him by an undercover policeman, since that evidence was illegally seized.

Even assuming, arguendo, that the challenged evidence should have been excluded, a point we do not reach, we find that any error in its admission was harmless for two reasons. First, its primary relevance was to the charge of sale, a charge of which appellant was acquitted. Second, even if such evidence might have tended to reinforce the jury’s belief in his guilt on the charge of possession, there was overwhelming, competent and unchallenged evidence of possession before the jury so that admission of the contested evidence was harmless beyond any reasonable doubt. See Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); State v. Young, 283 So.2d 58 (Fla. 1st DCA 1973); Nevels v. State, 351 So.2d 762 (Fla.1st DCA 1977).

Affirmed.


author: PEARSON, Judge.

text:
    Danny Demar JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-340.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PEARSON, Judge.

The single point to be determined on this appeal is whether a trial judge may refuse to consider a pre-sentence investigation report mandated by Section 921.231, Florida Statutes (1975), and Fla.R.Crim.P. 3.710. We hold that a trial judge’s announcement, prior to sentencing and submission of the presentenee investigation report, that “. . . the Court is going to impose the same sentence regardless of the result of the presentence investigation” is a clear violation of the statute and rule, rendering the sentence illegal. We further hold that a defendant’s waiver of presentence investigation after the announcement by the trial judge that he will disregard the report is not a waiver of the illegality of the sentence.

Johnson was charged by information with two counts of attempted first degree murder and two counts of attempted second degree murder. He entered not guilty pleas and was tried before a jury.

At the conclusion of trial, the jury returned with a verdict of (1) guilty of the reckless display of a firearm as a lesser included offense under the charges of attempted first degree murder, (2) guilty of aggravated battery as a lesser included offense under one charge of attempted second degree murder and (3) not guilty of the other charge of attempted second degree murder.

Johnson, a first time offender, made a timely request for a presentence investigation. When the trial court announced that it would impose the same sentence regardless of the results of the presentence report, Johnson chose to be sentenced without the presentenee investigation report.

The trial court sentenced him to fifteen years imprisonment on the aggravated battery charge with a minimum three years to be served before becoming eligible for parole. Johnson was also sentenced to two consecutive one year terms on the charges of the reckless display of a firearm. He now takes this belated appeal.

A reading of the language of the statute and rule reveals a clear intention that first offenders should have the benefit of a pre-sentence investigation and that trial judges should consider the report prior to sentencing. Therefore, a trial judge is not empowered to frustrate such intention by a prior announcement that he will not follow the statute and rule. See Nordone v. State, 307 So.2d 907 (Fla. 3d DCA 1975); Angel v. State, 305 So.2d 283 (Fla. 1st DCA 1974); and Harden v. State, 290 So.2d 551 (Fla. 1st DCA 1974). See also Neal v. Bryant, 149 So.2d 529 (Fla.1962).

Accordingly, the judgment of conviction is affirmed and the cause is remanded with directions to the trial court to order the preparation of a presentence investigation according to the statute and to consider the report prior to sentencing.

Reversed and remanded.


text:
    Rosemarie KLEBER and Esther C. Kleber, Appellants, v. BISCAYNE FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 77-482.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Jeffrey M. Mart, Miami, for appellants.
    Pallot, Poppell, Goodman & Slotnick and Arvin Peltz, Miami, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment of foreclosure. The trial judge has fully set forth the circumstances and his decision thereon in the following excerpt from the final judgment:

“At the hearing on the 27th day of January, 1977, Defendants, ESTHER C. KLEBER and ROSEMARIE KLEBER, argued that if the mortgage which is the subject matter of this foreclosure action resulted in a judgment and public sale, an illegal subdividing would result as to Lot 13 of Block .3, of OMNI ESTATES SECOND ADDITION, thereby violating Chapter 28 of the Dade County Municipal Code governing subdivisions and plats. Subject mortgage encumbers not only Lot 14, Block 3, of OMNI ESTATES SECOND ADDITION, but also a ten-foot strip of Lot 13 of Block 3 of OMNI ESTATES SECOND ADDITION, said strip being adjacent to the dividing lot line. It was conceded by both counsel for Plaintiff and counsel for Defendants KLEBER at that hearing that when subject mortgage was executed and placed of record, Defendants W. P. UHLER and ANGELIA UHLER, his wife, were the titleholders to both Lots 13 and 14, and that subsequently, Lot 13 was conveyed by the UHLERS to Defendants, ESTHER C. KLEBER and ROSEMARIE KLEBER. No issues of material fact were raised by counsel and no affidavits were filed in this cause by any Defendants controverting the affidavit filed by Plaintiff. Furthermore, no facts were proffered at the hearing which would constitute a material issue of fact. After reviewing the applicability of Chapter 28 of the Dade County Municipal Code, this Court is of the opinion that the Affirmative Defenses raised by said ESTHER C. KLEBER and ROSEMARIE KLEBER are not well taken and are without legal merit.”

We affirm. See Garvin v. Baker, 59 So.2d 360 (Fla.1952); and Kass v. Lewin, 104 So.2d 572 (Fla.1958).

Affirmed.


author: NATHAN, Judge.

text:
    Bryan Allen SMITH and American Bankers Insurance Company of Florida, Appellants, v. Edward CONLON, Geraldine Conlon and Allstate Insurance Company, Appellees.
    No. 77-1986.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Helliwell, Melrose & DeWolf and William E. Sadowski, Miami, for appellants.
    Weissenborn, Hyman & Burr, Miami, for appellees.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   NATHAN, Judge.

This is an interlocutory appeal by Bryan Allen Smith and American Bankers Insurance Company of Florida, defendants/cross-plaintiffs, from an order denying a motion for attorneys fees against defendants/cross-defendants Edward Conlon, Geraldine Conlon and Allstate Insurance Company, in an action stemming from an automobile accident.

A complaint was filed by Randy Reyes, not a party to this appeal, seeking damages for personal injuries against the defendants, Bryan Allen Smith, the driver of the car; American Bankers Insurance Company of Florida, Smith’s insurer; Edward Con-lon, the owner of the car; Geraldine Con-lon, Edward’s wife, who allegedly gave Smith permission to drive the car; and Allstate Insurance Company, the Conlons’ insurer. Allstate denied liability on the grounds that Smith did not have permission to drive the Conlons’ car. Smith and American Bankers filed a cross-claim seeking a declaratory judgment that Smith was covered by the Allstate policy and that Allstate should defend the case. The cross-claim included a demand for attorneys fees.

Following a one and one-half day jury trial on the cross-claim, the jury rendered a verdict finding that Smith did have permission to drive the Conlons’ car, and that Smith is covered under the Conlons’ Allstate policy. Smith and American Bankers renewed their demand for attorneys fees by motion. Subsequently, the trial judge entered final judgment on the verdict declaring that Smith was a covered insured under the Allstate policy and that Allstate was obligated to defend Smith. Jurisdiction to determine entitlement to and amount of attorneys fees was reserved. Following another hearing, the judge entered an order denying the motion for attorneys fees, ruling that Smith and American Bankers

“. . . are not entitled to Attorney’s Fees against the Crossdefendants, EDWARD CONLON, GERALDINE CON-LON and ALLSTATE INSURANCE COMPANY and the Motion for Attorney’s Fees is hereby denied.” (emphasis added)

This interlocutory appeal ensued.

The record reflects that the claim for attorneys fees in the trial court was predicated upon Section 627.428, Florida Statutes (1975), which provides that,

“Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court . . . shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.”

Pursuant to this statute, then, Smith would be “entitled” to attorneys fees since a judgment had been entered against Allstate and in favor of Smith as an insured under the policy issued by Allstate to the Conlons. Therefore, we hold that the trial court erred in ruling that Smith was not entitled to attorneys fees, and we reverse the final judgment in that respect.

However, we find that the trial court was correct in ruling that American Bankers is not entitled to attorneys fees as it is neither an insured, nor a beneficiary as contemplated by Section 627.428, supra. Central Mutual Insurance Company v. Michigan Mutual Liability Company, 285 So.2d 684 (Fla.3d DCA 1973).

Accordingly, the order on motion for attorneys fees is affirmed in part and reversed in part. The cause is remanded to the trial court with instructions to modify the order to reflect that Smith is “entitled” to attorneys fees, and for a determination of the amount of fees incurred by him, if any.

Affirmed in part, reversed in part and remanded.


text:
    Raul CARABEO, Jr., a minor, by and through his parents, Raul Carabeo, Sr., and Aida Carabeo and Raul Carabeo, Sr., and Aida Carabeo, Individually, Plaintiffs, v. METROPOLITAN DADE COUNTY, etc., et al., Defendants.
    No. 77-2358.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.

      Horton, Perse & Ginsberg, Miami, Bernard H. Butts, Jr., Hialeah, for plaintiffs.
    Stuart Simon, Dade County Atty. and Mark A. Dresnick, Asst. County Atty., for defendants.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The following question has been certified from the Circuit Court of Dade County pursuant to Fla.App. Rule 4.6. The question is:

Whether under the provisions of extant Section 768.28, Florida Statutes (regarding waiver of sovereign immunity, recognizing the State and its subdivisions have the same tort liability as a private person) a tort claimant must allege and prove a special duty (owed to a special class of persons rather than to the public in general) in order to prevail and recover?

In our opinion, there appears to be controlling precedent in this State on which the decision of the trial judge could be based. Therefore, because the requirement of Fla. App. Rule 4.6, i. e., that the question must be one without controlling precedent in this State, is not met, we respectfully decline to answer the question as certified. The trial court, under Article V, Section 6, Florida Constitution, has the power to adjudicate the question, the answer to which may be reviewed on appeal, if desired,

Denied.


text:
    LUTHERAN SENIOR CITIZENS’ FOUNDATION, INC., Appellant, v. B. F. SCHUMACHER et al., Appellees.
    Nos. 76-1589 and 76-1654.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.

      Horton, Perse & Ginsberg, Hyzer, Knight & Lund and Eric C. Van Enter, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson, Paul & Thomson, Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wright and Woodrow M. Melvin, Jr., Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant/plaintiff brings this consolidated appeal from an order of the trial court which dismissed with prejudice its second amended complaint. The second amended complaint alleged, inter alia, that appellant had suffered damages by virtue of various acts of appellees/defendants committed during their tenure as officers and directors of appellant corporation.

A detailed accounting of the facts would serve no useful purpose, but would instead, cloud the sole point on appeal which we state as follows:

“Whether the trial judge abused his discretion in dismissing appellant’s second amended complaint for failure to comply

with a prior order of the court.” Therefore, only so much of the facts that is pertinent to a resolution of the above issue will be set forth.

Suffice it to say that in December of 1973, the former officers and directors of appellant, a non-profit corporation created to provide care, maintenance and living quarters for aged people, were sued in a class action by residents of the East Ridge Lutheran Retirement Village on behalf of themselves and all the residents of East Ridge and for the interest of appellant. The complaint, itself, was grounded upon four separate counts.

Pursuant to various defense motions, an amended and supplemental complaint was filed in December of 1974. The amended complaint added both appellant as a party plaintiff and a fifth and sixth cause of action, in addition to realleging all the claims asserted in the original complaint.

Defensive motions were again filed and by order of the trial court, dated April 4, 1975, dismissal without prejudice was granted as to counts one through four. The order reserved ruling upon the fifth and sixth causes of action but required the only remaining plaintiff (appellant), to eliminate the claims rendered moot by the passage of time and by virtue of certain proceedings held in Federal Bankruptcy Court.

On June 6, 1975, appellant filed a second amended complaint which, in addition to new matters, set forth almost verbatim all of the allegations of its amended and supplemental complaint. Appellees thereupon filed motions to strike or dismiss for appellant’s failure to comply with the court’s order of April 4, 1975.

On July 20, 1976, the trial court entered its “Order Striking the Second Amended Complaint” for failure to comply with the court’s prior order. After a rather lengthy and detailed factual accounting, said order concluded as follows:

“From the foregoing history of proceedings herein, it is apparent that the Second Amended Complaint while alleging the bankruptcy costs, expenses and other charges allegedly caused by negligent acts of the defendants as directors and officers of the plaintiff, also repeats substantially all of the original claims which have been rendered moot by the passage of time and by plaintiff’s own agreements, confirmed and approved by the Bankruptcy Court. Obviously plaintiff cannot recover again those claims against the Lutheran Medical Center, Inc. which have been or are being paid under the United States District Court Orders. Accordingly, it is
“ORDERED AND ADJUDGED THAT:
“1. To simplify and clarify the issues on claims which the plaintiff may presently have against the defendants and to eliminate all claims of plaintiff for moneys advanced or expended in behalf of the Lutheran Medical Center, Inc. or in connection with other matters which have been settled or agreed to be settled through the proceedings in the Bankruptcy Court, the defendants’ Motions to Strike the Second Amended Complaint (with the exception of the severed Seventh Cause of Action) should be, and are, hereby granted, and
“2. The plaintiff shall have thirty (30) days from the date of this Order within which to file its Third Amended Complaint which shall include only those claims referred to in paragraph 1 of this order and shall eliminate all others stricken or 'dismissed thereby.
“DONE AND ORDERED in Miami, Florida this July 20, 1976.”

Appellant thereupon filed a notice of interlocutory appeal from the above order. On August 11, 1976, however, appellant served appellees with a motion for entry of final judgment, electing not to file a third amended complaint. In accordance with appellant’s motion, a final judgment was entered from which appellant filed its notice of appeal. By this court’s order, both appeals have been consolidated.

After carefully reviewing the record, briefs and arguments of counsel, in light of the controlling principles of law, it is our opinion that no error has been committed. Accordingly, for the following reason, the final judgment appealed from is hereby affirmed.

The second amended complaint contained counts and allegations that were both moot and prolix, in contravention of Fla.R.Civ.P. 1.110(b)(2). In addition, appellant not only failed to eliminate those lengthy and superfluous matters from the second amended complaint, as required by the prior order of the court dated April 4, 1975, but in fact, added additional allegations.

Florida courts have long held that a plaintiff may be required to amend or recast a complaint, disposing of burdensome allegations. L. C. Morris, Inc. v. Allison, 277 So.2d 28 (Fla. 3d DCA 1973); Cook v. Katiba, 152 So.2d 504 (Fla. 1st DCA 1963). In that appellant was ordered to streamline his pleading and failed to do so, the trial court, upon its discretion, had the authority to dismiss the second amended complaint. See City of Miami Beach v. Chadderton, 306 So.2d 558 (Fla. 3d DCA 1975); and Fla.R. Civ.P. 1.420(b). The trial judge having exercised his discretion, and appellant having failed to demonstrate an abuse of that discretion, the order of dismissal is hereby affirmed.

Affirmed.