author: SCHEB, Judge.

text:
    Calvin E. DAVIDSON et al., Appellants, v. LELY ESTATES, INC. and Mobile Home Dynamics, Inc., Appellees.
    No. 75-1180.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.

      Richard B. Lansdale, Naples, for appellants.
    Edward R. Rumin of Adams & Adams, Fort Lauderdale, for Mobile Home Dynamics, Inc.
    Lawrence D. Martin of Vega, Brown & Nichols, Naples, for Lely Estates, Inc.
   SCHEB, Judge.

The question ,we address on this appeal is whether the complaint filed by appellants/plaintiffs states grounds for equitable relief as a class action. The trial judge held it did not and dismissed it with prejudice. We reverse.

In substance, the plaintiffs’ complaint alleged the appellee/defendant, Lely Estates, Inc., built a recreational area at an advertised cost of $100,000, and as an inducement to prospective purchasers of lots within its subdivision, represented that $400 from the purchase price of each lot would be credited to the cost of the recreational area for the benefit of lot owners in the subdivision, or in the alternative, purchasers would own l/250th of the recreation building and common areas; that when all lots were sold, the recreational area and common areas would either be deeded to them or to a nonprofit association to hold title for their benefit as owners of property in the subdivision. The plaintiffs’ complaint cast the plaintiffs into two classes. Class I consisted of those who allegedly purchased lots in reliance on the aforesaid representations made by Lely, while Class II included those who purchased lots from appellee/defendant, Mobile Home Dynamics, Inc., which acquired some of the lots from Lely and thereby became the successor title holder of the recreational area in question. Plaintiffs also allege Mobile Home Dynamics represented to the Class II plaintiffs that the recreation area and common areas would be deeded to the property owners’ association which would assume maintenance of these projects. Mobile Home Dynamics allegedly has denied the plaintiffs of Class I and Class II of their rights to use the property on grounds that plaintiffs have declined to pay Mobile Home Dynamics the .sum of $150,000, now allegedly demanded by that corporation for conveyance of title.

The trial judge granted a motion to dismiss filed by the defendant Lely, holding:

“1. That an action based on fraud and deceit is inappropriate in a class action. Rosenwasser vs. Frager, [Fla.App.], 307 So.2d 865.
2. That .Plaintiffs cannot aggregate their individual damage claim to meet jurisdictional requirements for circuit court. Curtis Publishing Co. vs. Robert Badger [Bader], 266 So.2d 78, Zahn vs. International Paper Co., [414 U.S. 291, 94 S.Ct. 505], 38 L.Ed.2d 511.
3. The Plaintiff has not alleged sufficient facts to establish a cause of action under resulting trust theory.”

When plaintiffs declined to file an amended complaint, the trial court entered a final order of dismissal with prejudice.

We agree that ordinarily an action based on fraud and deceit is inappropriate as a class action. See, Rosenwasser v. Frager, Fla.App.3d 1975, 307 So.2d 865. In the usual case there will be significant differences in the nature of the fraudulent representations as well as in the degrees of reliance thereon. Arguably there is a distinction here since the representations are alleged to have been uniformly made by the defendant Lely to all Class I plaintiffs and by the defendant Mobile Home Dynamics to all Class II plaintiffs, all of whom were purchasers within the subdivision. Nevertheless, a class action for damages would appear to be improper, since in all probability there will be substantial differences in the amounts of damages to which those aggrieved may be entitled, depending on essential facts which would vary as to each plaintiff. See, Port Royal, Inc. v. Canboy, Fla.App.2d 1963, 154 So.2d 734; Sams v. Winn-Dixie Stores, Inc., Fla.App.3d 1974, 294 So.2d 337.

We hold, however, that the trial court erred in dismissing the plaintiffs’ complaint insofar as it set forth a claim for equitable relief, despite the fact that plaintiffs failed to allege a factual predicate for their prayer that the trial court decree a resulting trust. The facts here were obviously insufficient to allege a resulting trust which depends on the intention of the parties, although perhaps presumed, to create a trust. Smith v. Smith, 1940, 143 Fla. 159, 196 So. 409; Howell v. Fiore, Fla.App.2d 1968, 210 So.2d 253. We think the plaintiffs’ pleading does, however, properly allege the elements of a constructive trust, a device constructed by a court of equity to avoid the imposition of fraud or misrepresentation as a result of a transaction. In the classic case on the subject the Florida Supreme Court stated that a court of equity will impose a constructive trust where one, through actual fraud, abuse of confidence, or other questionable means, gains something for himself that in equity and good conscience he should not be permitted to hold. Quinn v. Phipps, 1927, 93 Fla. 805, 113 So. 419. See also, Hallam v. Gladman, Fla.App.1962, 132 So.2d 198. A promise to convey title, when supported by valuable consideration, may give rise to such a trust. 33 Fla.Jur., Trusts, § 64. Here the allegations that as an inducement to purchasers in the subdivision the defendants made promises to convey the title of the recreation area, yet later chose to disregard those representations, make out a sufficient case for unjust enrichment to invoke the court’s equitable powers to declare a constructive trust.

While the plaintiffs’ pleading was certainly not a model of legal craftsmanship, nevertheless, with liberal rules of pleading, we cannot say it did not furnish a basis for relief. Even though the plaintiffs’ prayer did not pray for establishment of constructive trust, every complaint does pray for general relief, and the exact form of the prayer for relief is not controlling. RCP 1.110(b); Phelps v. Higgins, Fla.App.2d 1960, 120 So.2d 633.

Furthermore, we think that appellants pled a valid class action in seeking equitable relief. In Port Royal, Inc. v. Conboy, supra, we set forth the requirements for a class action:

“It is fundamental that an action is not a class suit merely because the plaintiff designates it as such in the complaint and uses the language of the rule. Whether it is or is not a class suit depends upon the circumstances surrounding the case. However, the complaint should allege facts showing the necessity for bringing the action as a class suit and the plaintiffs right to represent the class. The plaintiff should allege that he brings the suit on behalf of himself and others similarly situated. The complaint should allege the existence of a-class, described with some degree of certainty, and that the members of the class are so numerous as to make it impracticable to bring them all before the court. It should be made clear that the plaintiff adequately represents the class, and whether a party adequately represents the person on whose behalf he sues depends on the facts of the particular case. Generally, the interest of the plaintiff must be co-extensive with the interest of the other members of the class. A class suit is maintainable where the subject of the action presents a question of common or general interest, and where all members of the class have a similar interest in obtaining the relief sought. The common or general interest must be in the object of the action, in the result sought to be accomplished in the proceedings, or in the question involved in the action. There must be a common right of recovery based on the same essential facts.”

Here, there are 254 plaintiffs. The problems of bringing such a large group before the court are obvious. The named plaintiffs, as owners of lots within the subdivision, are described with sufficient certainty and appear to be adequate representatives of the class. All plaintiffs have a common and identical interest in such equitable relief as the court may impose. This is precisely the type of case which our class action rule, RCP 1.220, was designed to facilitate. Indeed, it is difficult to see how plaintiffs could obtain the common relief sought in equity without resorting to a class action.

Finally, we turn to the contention of appellee Mobile Home Dynamics, Inc. that the appellant Riviera Community Association, Inc. has no standing in this action. Ultimately, this may or may not be true. Riviera is a nonprofit corporation created for the obvious purpose of holding title to property for benefit of all subdivision lot owners, if and when conveyed to it by Lely or its successors. While there is no allegation that Riviera is a promisee entitled to performance, its potential function is obvious. Certainly if the trial court were to grant the relief requested by requiring a conveyance, the court could even require the plaintiffs to form an organization such as Riviera to fulfill the intended purpose of such conveyance. We therefore hold that it is premature at this point to rule on the question of standing as to Riviera. Should the trial judge find the plaintiffs are entitled to any relief, then Riviera may well serve a viable purpose.

Finding as we do that plaintiffs’ complaint states grounds for equitable relief on the theory of a constructive trust, the order dismissing the complaint is hereby reversed and remanded to the trial court for further proceedings consistent herewith.

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

      . Of course, plaintiffs would not be precluded from filing individual suits for damages.

      . Since we view the complaint as seeking equitable relief, the second ground for dismissal by the trial court, i. e., aggregation of damages claim to meet jurisdiction requirements, is of no further consequence.

      .Interestingly, plaintiffs in their memo to the trial court in opposition to defendant’s motion to dismiss referred to a “constructive” trust theory as opposed to a “resulting” trust theory.

      . Our decision in Conboy has recently been cited with approval by our Supreme Court in Wilson v. Southern Bell Telephone & Telegraph Co., Fla.1976, 327 So.2d 220.


source: Caselaw Access Project

author: BARKDULL, Chief Judge.

license: Public Domain

text:
    Robert Lee YOUNG, Appellant, v. The STATE of Florida, Appellee.
    No. 75-995.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Jack R. Blumenfeld, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., and Sidney Pertnoy, Legal Intern, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   BARKDULL, Chief Judge.

The appellant was charged with an information containing the following crimes : robbery, in violation of § 813.011, Fla.Stat., and unlawful possession of a firearm while engaged in a criminal offense, in violation of § 813.011, Fla.Stat. During the trial, an investigator (who investigated the robberies that took place at a local supermarket) testified as to a conversation he had with certain purported eye witnesses as to where the purported robber placed his palm on the counter in order that he could instruct the fingerprint technician where to dust for prints. Upon cross-examination, defense counsel was limited by the trial court in that he was not permitted to cross-examine the investigating officer as to the witness’ description to him of the purported robber.

At the charge conference, defense counsel requested the following charges be given in addition to the charge on the crime of robbery, to wit: assault with intent to commit robbery; aggravated assault; simple assault; grand larceny; and petit larceny. The trial court declined to instruct on the foregoing requests. The jury retired, reached a not guilty verdict on the charge of unlawful possession of a firearm while engaged in a criminal offense, and reached a verdict of guilty on the robbery charge. An adjudication of guilt was entered and sentence was entered accordingly. This appeal ensued.

The appellant urges error in the above two rulings by the trial court. We find the appellant’s contentions to be meritorious. The other rulings urged to be error are found to be without merit. State v. Jones, Fla.1967, 204 So.2d 515; Ricks v. State, Fla.App.1971, 242 So.2d 763; Smith v. State, Fla.App.197l, 243 So.2d 602; Henry v. State, Fla.App.1974, 290 So.2d 73; § 924.33, Fla.Stat.

We hold that permitting the investigating officer to relate what the alleged eye witnesses saw, as to where the purported robber placed his palm print, opened up the investigating officer for cross-examination as to what description the alleged eye witnesses gave of tbe purported robber, as this constituted a part of the same “subject matter” testified to by the investigating officer. See: Savage v. State, Fla.1882, 18 Fla. 909; Haager v. State, 83 Fla. 41, 90 So. 812; Elmore v. State, Fla.App.1974, 291 So.2d 617.

Under the latter day Supreme Court decisions, including the most recent of State v. Terry, Fla.1976 (opinion filed February 25, 1976), in a situation where'in a Class 3 category (as described by Justice Thornal in Brown v. State, Fla.1968, 206 So.2d 377) is presented in the evidence, it is incumbent and mandatory that a trial judge charge on all lesser included offenses. We have examined Gilford v. State, Fla.1975, 313 So.2d 729, which the State urges is controlling. However, we do not find Jhe factual situation, as developed, comparable and therefore do not find it applicable in this instance.

Based on the foregoing, the robbery conviction and sentence appealed herein are hereby reversed and the cause is remanded to the trial court for a new trial consistent herewith.

Reversed and remanded for a new trial.


author: PER CURIAM.

text:
    Richard Bennett COULTON, Appellant, v. Diana C. COULTON, Appellee.
    No. 75-1311.
    District Court of Appeal of Florida, Second District.
    April 23, 1976.

      Joseph F. McDermott, of McDermott & Ohle, St. Petersburg, for appellant.
    George S. Saltsman, St. Petersburg, for appellee.
   PER CURIAM.

Appellant-husband, Richard Coulton, appeals from a final judgment of dissolution of marriage wherein appellee-wife was awarded the entire fee interest in the marital home as special equity. We reverse.

The operative facts are these. While married, the parties and their children were injured in an auto accident. As a result, a settlement check was issued payable to appellant and appellee “jointly, individually and on behalf of the children.” Although the settlement agreement provided for a division of the funds as between each child’s separate estate, no similar distinction was made between the estates of each parent. Upon receipt of the check, the childrens’ designated funds were invested in certificates of deposit in the names of each. The parents’ funds were not further segregated but were deposited in a joint savings account to which each had equal rights.

Thereafter, a portion of the settlement award was withdrawn from the account and used to purchase the marital home now at issue. Title to the property was held by the parties as tenants by the entirety. The remaining portion of the account was otherwise spent.

Following dissolution proceedings initiated by the husband, the trial court rendered a final judgment which among other things awarded appellee the entire fee interest in the marital home as a special equity upon a finding that she furnished the entire proceeds for the purchase of the home. This finding was apparently predicated on the assumed fact that the wife was the more seriously injured in the accident and, therefore, the lion’s share of the parents’ settlement was really hers.

Notwithstanding, it is now settled in this state that where one spouse provides the greater portion of the purchase price for the marital property held by the entirety the law will presume a gift by that spouse to the extent of whatever interest is necessary to vest a one-half interest in the purchased property in the other spouse. This presumption of a donative intent may, of course, be rebutted by a showing of a contrary intent.

Undisputedly, here, upon receipt of the settlement, the parties rather than segregating their share of the funds chose to treat the award as joint and co-equal property by putting it into a joint savings account where each had equal rights thereto. Certainly such treatment is indicative of an intention of joint ownership, regardless of the initial source or relative interest therein, and the mutual contributions are presumed to be gifts. This presumption is indeed fortified by the withdrawal from the account and investing in entireties real estate. Nothing rebutted this.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

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

      . See Farris v. Farris (Fla.App. 2d, 1975), 304 So.2d 526; Steinhauer v. Steinhauer (Fla.App. 4th, 1971), 252 So.2d 825.

      . See Hanzelik v. Hanzelik (Fla.App. 4th, 1974), 294 So.2d 116.


author: RAWLS, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Joe Leon BROWN, Appellee.
    No. BB-305.
    District Court of Appeal of Florida, First District.
    April 22, 1976.
    Robert L. Shevin, Atty. Gen., for appellant.
    Louis O. Frost, Jr., Public Defender; and J. Craig Williams, Asst. Public Defender, Jacksonville, for appellee.
   On Motion to Quash

RAWLS, Acting Chief Judge.

The notice of appeal filed in this case recites: “The nature of the Order appealed from is an Order granting Defendant’s Motion of Acquittal Not Withstanding Verdict.” Appellee-defendant Brown contends that the state has no right to appeal a judgment of acquittal in a criminal proceeding, and thus his motion to quash the instant appeal should be granted. We agree.

Appellate review of any order or judgment entered by a trial court is not a right derived from the common law; it is derived from the sovereign. State v. Smith, 260 So.2d 489 (Fla.1972). The state’s right to seek appellate review in a criminal case is purely statutory and is found in Florida Statute 924.07. Whidden v. State, 159 Fla. 691, 32 So.2d 577 (1947). Florida Rule of Criminal Procedure 3.380(c) authorizes a defendant to make or renew a motion for 'judgment of acquittal after a jury has returned a verdict of guilty. The trial judge’s challenged order acquitted the defendant, therefore, the state is seeking to appeal from a final judgment of acquittal in a criminal proceeding.

In oral argument which was directed by this court, the state conceded that the sole statutory language which might be construed to authorize the instant appeal is stated in subsection (1) of Florida Statute 924.07, viz: “An order dismissing an indictment or information or any count thereofand then reasons that the instant order may be construed as being within the purview of the cited rule. We decline to place such a tortuous construction upon the plain language and meaning of “indictment or information”.

Finally, the state urges this court to in the alternative treat the notice of appeal as a petition for writ of common law certiorari and review the controverted order. As stated above, appellate review of a judgment of acquittal entered in a criminal proceeding is not authorized. The state’s ore tenus motion for common law certiorari is denied.

Appellee’s motion to quash this appeal is granted.

MILLS and SMITH, JJ., concur.

      . Also see In Re Florida Appellate Rules 1962 Revision, 142 So.2d 724 (Fla.1962), wherein the Supreme Court stated: “All statutes not superseded hereby or in conflict herewith shall remain in effect as rules promulgated by the Supreme Court.”


author: MILLS, Judge.

text:
    Herbert P. JONES, Appellant (Petitioner), v. June H. JONES, Appellee (Respondent).
    No. Z-42.
    District Court of Appeal of Florida, First District.
    April 20, 1976.

      D. Michael Chesser, Fort Walton Beach, for appellant.
    J. LaDon Dewrell, of Dewrell & Kessler, Fort Walton Beach, for appellee.
   MILLS, Judge.

Mr. Jones sued Mrs. Jones for dissolution of their marriage. He also asked the court to fairly and equitably dispose of property acquired by the parties during their marriage.

Mrs. Jones answered and filed a counterclaim asking that the marriage be dissolved, and that she be awarded custody of the four minor children of the parties, temporary and permanent child support, temporary, permanent and exclusive use of the homeplace, temporary and permanent alimony including the homeplace, and attorney’s fees. A list of the real and personal property acquired by the parties during marriage was set forth in the counterclaim. Mr. Jones denied all of the allegations.

Following the trial, the court dissolved the marriage, awarded custody of the four minor children to Mrs. Jones, ordered Mr. Jones to pay all medical and dental expenses incurred by the children, ordered Mr. Jones to pay all of the financial obligations of the marriage, ordered Mr. Jones to designate his four children as beneficiaries of one-half of the proceeds of certain insurance policies on his life, if he maintained the insurance, awarded Mrs. Jones all of the household furnishings and an automobile, and ordered Mr. Jones to pay the attorney’s fee and costs of Mrs. Jones. Mr. Jones does not contest these parts of the final judgment.

Mr. Jones does contest the following parts of the judgment:

1. the award to Mrs. Jones, as lump sum alimony, of a one-third interest in the homeplace (after this award, Mrs. Jones had an undivided ^ interest and Mr. Jones an undivided 1/3 interest in the homeplace as tenants in common) ;

2. the award to Mrs. Jones of exclusive use of the homeplace for a period of not less than ten years or until all of the children shall become emancipated, whichever comes last;

3. the award of $400.00 a month as child support, to continue until all of the children shall attain 18 years of age, marry, die or become self-supporting, whichever first occurs;

4. the award of additional child support which requires Mr. Jones to pay the mortgage, taxes and insurance on the home-place ;

5. the award to Mrs. Jones of permanent alimony of $200.00 a month for thirty-six months, and thereafter $100.00 a month until Mrs. Jones dies or remarries, whichever first occurs;

6.the requirement that Mr. Jones pay all major expenses of maintenance and upkeep on the homeplace.

The trial court has authority to order a husband to convey to the wife his undivided interest in property they own as tenants in common as lump sum alimony. Reid v. Reid, 68 So.2d 821 (Fla.1953). But lump sum alimony should be awarded only in those instances where some special equities require it, Yandell v. Yandell, 39 So.2d 554 (Fla.1949), and it is justified only where it serves a reasonable purpose, such as rehabilitation, or the award would be advantageous to both parties. Calligarich v. Calligarich, 256 So.2d 60 (Fla.App. 4th, 1971).

In the case before us, the wife was in good health, she had a college degree in home economics, her four minor children were of school age, she was awarded permanent periodic alimony, she was given exclusive use of the homeplace for ten years and the husband was required to pay the mortgage, taxes, insurance, major maintenance and upkeep. She proved no special equity nor was the award rehabilitative or advantageous to both parties. The trial court erred in its award of lump sum alimony.

The award to Mrs. Jones of exclti-sive use of the marital home for not less than ten years or until all of the children become emancipated, whichever comes last, would permit her to occupy the home after remarriage. This was error. Occupancy should not continue if the wife should remarry. Hendricks v. Hendricks, 312 So.2d 792 (Fla.App.3d, 1975).

Mr. Jones contends that in awarding support for the four children the trial court erred in not separately stating the amount awarded for each child, citing this court’s previous opinion in Hardy v. Hardy, 118 So.2d 106 (Fla.App. 1st, 1960). In Hardy, the court was confronted with a lump sum covering both alimony and child support. There the court said:

“Attention is called first to the failure of the decree to award separately the amount allowed for alimony and the amount allowed for support of the three minor children. Separate amounts should be awarded for alimony and for support of each minor child in all cases.
“Our Supreme Court in the case of Zalka v. Zalka, Fla.1958, 100 So.2d 157, has held that an undivided award for alimony and child support is not void, but that each party is entitled to appeal at any time for an allocation of a specific amount for alimony and for child support. See also Katiba v. Katiba, Fla.App., 110 So.2d 693; and Sheppard v. Sheppard, Fla.1950, 45 So.2d 505.”

While this court in requiring a separation between alimony and child support in Hardy did also state that separate amounts should be awarded for support of each minor child in all cases, we now find that it went too far in making such latter requirement and invaded the proper discretion of the chancellor. We know of no legal requirement that such be done other than the statement in Hardy. The authorities cited in support of the ruling in Hardy relate only to the separation of alimony from child support. We recognize in many cases it is helpful and avoids future litigation to make a separate award for each child. There are other cases, however, in which child support awarded for several children is not sufficient in amount but is all that the spouse can afford to pay. To require an equal division for each child and an automatic reduction in the amount upon each child reaching his majority would be inequitable in such cases. Also, as the trial judge pointed out in this case, some expenses pertaining to child support remain constant regardless of the number of children involved. Thus, to automatically reduce the child support upon each child reaching his majority by his portion of the whole could create an inequitable result. Where the chancellor in his discretion deems it advisable to award one periodic sum for support of two or more children, the parties should come back to the court for an adjustment when one of the children reaches majority. If at such time the parties can agree among themselves upon an equitable reduction, such could be accomplished by a simple stipulation to be approved by the court.

In view of the foregoing, we recede from the ruling in Hardy that separate amounts should be awarded for support of each minor child in all cases.

The trial court erred in requiring Mr. Jones to pay the mortgage, taxes and insurance on the homeplace, held by Mr. and Mrs. Jones as tenants in common, as additional child support. To do this would allow Mrs. Jones to obtain a benefit not contemplated by the law. The court had already granted exclusive use of the home-place to Mrs. Jones and the children. Although Mr. Jones could be and was required to pay the mortgage, taxes, insurance, major maintenance and upkeep during the time the homeplace was occupied by the wife and children, the trial court should have provided that Mr. Jones would receive credit for payment of Mrs. Jones’ one-half thereof from the proceeds of the sale of the homeplace (the lump sum alimony award having been reversed, Mr. and Mrs. Jones now have an undivided one-half interest each in the homeplace as tenants in common). Hendricks v. Hendricks, supra. No basis is shown in the record for relieving Mrs. Jones of this obligation. Upon remand, if the trial court, in the exercise of its discretion, concludes that additional child support is warranted by the evidence previously presented to it, on notice to each of the parties, and an opportunity to be heard, it may award additional child support.

The record supports the award of permanent periodic alimony to Mrs. Jones.

The final judgment is affirmed in part and reversed in part, and this case is remanded to the trial court for further action consistent with this opinion.

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


author: PEARSON, Judge.

text:
    Patricia Ann EDEN, as Administratrix of the Estate of Norman Frederick Eden, Jr., Deceased, Appellant, v. FOOD FAIR STORES, INC., etc., Appellee.
    No. 75-353.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.

      Farish & Farish, West Palm Beach, for appellant.
    Horton, Perse & Ginsberg, Hawkesworth & Schmick, Miami, for appellee.
    Before BARDULL, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

Patricia Ann Eden, as administratrix of the estate of her deceased husband, Norman Frederick Eden, Jr., sued Food Fair Stores, Inc., alleging that the negligence of its driver had caused the death of her husband in a collision between a tractor-trailer and a pickup truck. Food Fair Stores, Inc., was the owner of the tractor-trailer involved. The cause was tried before a jury, with a verdict returned for the defendant. Final judgment was entered on the verdict and this appeal has been taken from that judgment.

The collision occurred at approximately 2:00 a. m. when the pickup truck Eden was driving struck the rear-end of the Food Fair truck. There were no eyewitnesses to the collision, Eden having been killed as a result of the collision and the driver of the Food Fair truck having disappeared. From the evidence presented, it appeared that the driver of the Food Fair truck, having proceeded north on Rt. 441 in Broward County, Florida, began to turn his truck through a gap in the median in order to head in the opposite direction. The collision occurred either because Eden was driving in the left, north bound lane and did not see the truck in time to avoid the collision, or because the driver of the Food Fair truck was unable to negotiate the U-turn successfully and backed up in order to complete the turn. Eden’s pickup left no skid marks. He was driving at a speed of between 55 and 70 miles an hour. The Eden vehicle continued down the highway for 0.-3 of a mile destroying two bus benches after the initial impact. An autopsy was performed by the Broward County medical examiner. A blood alcohol test at that time showed an alcohol content of 0.05%.

As a part of defendant’s case, Food Fair presented the testimony of an expert who testified to a test or experiment made with a similar tractor-trailer and a pickup truck similar to that driven by the plaintiff’s deceased.

Patricia Eden, as administratrix, has presented nine points for reversal of the judgment. We have heard argument and have carefully examined the briefs upon each of these points. It will not, however, be necessary to discuss each one separately. We find that the record does not show error as to appellant’s points 2, 3, 4, 5, 6 and 8. On the other hand, we think that appellant’s points 1, 7 and 9 merit some detailed consideration in this opinion.

Point 1 urges that the court erred first in charging the jury upon the traffic regu-ation statute, Fla.Stat. § 316.028 (l), having to do with driving under the influence of alcohol and second in inserting the word “rebuttable” into the court’s instruction concerning the presumption created by Fla.Stat. § 322.262(2) (a).

The instructions were proper under the evidence presented in this case. There was conclusive evidence that the body of the deceased contained 0.05% alcohol content in the blood at the time of his death. There was also testimony that this blood content represented a considerable consumption of alcohol and that it would substantially affect the responses of the deceased prior to his death. Therefore, the instruction on driving under the influence of alcohol was proper.

It is the plaintiff’s position that because of Fla.Stat. § 322.262(2) (a) she was entitled to an instruction in the statutory language without qualification. It would have been preferable for the court to have read the statute as written and then to have instructed the jury that all presumptions are rebuttable. See Locke v. Stuart, Fla.App.1959, 113 So.2d 402. It was not a reversible error, however, under thé circumstances presented for the judge to include the word “rebuttable” in his instruction.

Appellant’s point 7 urges error upon the court’s refusal of a requested instruction on Fla.Stat. § 316.085(2), which imposes restrictions upon a driver changing his lane of travel on a multi-lane highway. It is plaintiff’s contention that the deceased was driving in the left-hand lane, in which the collision occurred and that he may have been limited in his ability to change lanes to avoid the defendant’s truck. There is no direct evidence of decedent’s lane of travel prior to the accident. The record does show that the accident occurred in the left hand lane. It does not show that there was, in fact, a restriction upon decedent’s ability to change lanes. Additionally, the request for an instruction on the change of lane statute was included in one submitted which included instructions on several other traffic regulation statutes. A part of the requested instruction was given. Other parts, which were not applicable to the facts proved, were properly denied. Under these circumstances, and particularly where the jury was fully instructed upon the law pertaining to automobile negligence, the refusal of the instruction on the change of lane regulation was not reversible error. Cf. Winn-Dixie Stores, Inc. v. Nall, Fla.App. 1974, 302 So.2d 781.

The remaining point which we think merits discussion is appellant’s point 9. It is as follows:

“The trial court erred in allowing defendants’ expert witness, Harry Meyer-sohn, to testify over objection concerning an experiment where it was not shown as a prerequisite that the experiment was made under conditions substantially similar to those which prevailed at the time of the accident in question, nor that the nature of the experiment was such that the jury would be enlightened rather than confused.”

The law applicable to experiments has been enunciated by the Supreme Court of Florida in Hisler v. State, 52 Fla. 30, 42 So. 692 (1906):

“Evidence of an experiment whereby to test the truth of testimony that a certain thing occurred is not admissible, where the conditions attending the alleged occurrence and the experiment are not shown to be similar. * * * Evidence of this kind should be received with caution, and only be admitted when it is obvious to the court, from the nature of the experiments, that the jury will be enlightened, rather than confused. In many instances, a slight change in the conditions under which the experiment is made will so distort the result as to wholly destroy its value as evidence, and make it harmful, rather than helpful.”

See also Huff v. Belcastro, Fla.App.1961, 127 So.2d 476; Burgin v. Merritt, Fla.App.1975, 311 So.2d 688.

The testimony of the expert concerning the tests consisted of his opinion of the distance and time that the Food Fair truck would be visible to an occupant of the pickup truck driven by plaintiff’s deceased. Plaintiff’s objections to the testimony at the trial were directed to specific questions, as was proper. Most of these objections were sustained. The grounds of the plaintiff’s objections on those occasions in which plaintiff’s objections were overruled did not raise the same grounds now claimed as error. Nevertheless, we have examined the testimony of the expert in the light of plaintiff’s point 9 and we find that with regard to the matters testified to, the admission of the expert’s recitation of his conclusions from the reconstruction of the accident was not error.

Accordingly, the judgment appealed is affirmed.

      . “316.028 Driving while under the influence of alcoholic "beverages, model glue, or controlled substances

      “(1) It is unlawful and punishable as provided in subsection (2) for any person who is under the influence of alcoholic beverages, model glue, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired, to drive or be in the actual physical control of any vehicle within this state.”

      . “(a) If there was at that time 0.05 percent or less by weight of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of alcoholic beverages to the extent that his normal faculties were impaired.”
      The instruction as given by the court was: “You are instructed that there is a law in Florida which reads as follows:
      “FSA 322.262 Presumption of Intoxication ; testing methods.—
      ‘. . . (2) (a) If there was at that time 0.05 per cent or less by weight of alcohol in the person’s blood, it is a rebuttable presumption that the person was not under the influence of alcoholic beverages to the extent that his normal faculties were impaired.’ ”


text:
    Steven A. SPEAR and Josephine Spear, his wife, Appellants, v. Mark J. MARTIN et al., Appellees.
    No. 75-2002.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1976.
    Rehearing Denied May 5, 1976.

      Joel L. Kirschbaum, of Berryhill, Avery, Schwenke, Williams & Scott, P. A., Fort Lauderdale, for appellants.
    Douglas C. Fulton, of Wearn & Fulton, West Palm Beach, for appellees, Martin and Silc.
   PER CURIAM.

This is an appeal from an interlocutory order partially granting plaintiffs’ motion for summary judgment. We affirm in part and reverse in part.

Plaintiffs sued defendants in a three count complaint, based on the allegation that defendants constructed and used a driveway upon plaintiffs’ land. Count I was an action to recover possession of real property unlawfully detained by defendants. The second count alleged that defendants had trespassed on the plaintiffs’ land and used it without any right or authority. Count III alleged that defendants had taken possession of the plaintiffs’ land and held it without lawful right or title “against the lawful demands for possession by the plaintiffs.”

Plaintiffs demanded damages, exemplary damages and possession of the land.

The defendants denied the allegations and filed affirmative defenses. They affirmatively alleged they had acquired an easement by prescription; that they had acquired the property by adverse possession; and that the plaintiffs’ claim was barred by the Statute of Limitations and laches. The defendants prayed that title to the property be quieted in their names.

Defendants’ motion for summary judgment was denied.

Plaintiffs moved for summary judgment. The trial court entered the appealed order finding for plaintiffs on all accounts except for the issue of intent and damages made by plaintiffs’ complaint.

We have examined the record and agree that the defendants’ affirmative defense of adverse possession was correctly laid to rest, based on defendants’ answers to interrogatories. Thus, the appealed order is affirmed to this extent. However, we feel upon further examination that there clearly remain disputed questions of fact which ban summary disposition as to the other issues drawn by the pleadings. F.R.C.P. 1.510. Simply because both sides move for summary judgment does not mean the court is required to grant one of the motions. Central Investments, Inc. v. Old Southern Golf Utility Corp., 197 So.2d 17 (4th DCA Fla. 1967). The party moving for summary judgment has the burden “to conclusively refute” affirmative defenses raised by the other party. Jenkins v. Graham, 237 So.2d 330 (4th DCA Fla. 1970). Thus, except for the issue of adverse possession the appealed order erroneously entered summary judgment.

The cause is remanded for further proceedings consistent herewith.

AFFIRMED IN PART; REVERSED IN PART and remanded for further proceedings.

WALDEN, C. J., arid CROSS and OWEN, JJ., concur.


text:
    Kenneth E. ANDERSON and Monica T. Anderson, Appellants, v. William J. ZARTA and Tomas J. Zarta, d/b/a Zarta and Son Painting Contractors, Appellees.
    No. 75-1327.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    George E. Gleason of Sullivan, Cockran, Ranaghan, Bailey & Gleason, Pompano Beach, for appellants.
    John Daniel Nyce, Fort Lauderdale, for appellees.
   PER CURIAM.

This action was properly dismissed for lack oif prosecution under F.R.C.P. 1.-420(e). Plaintiffs did not appear at the hearing and did not show good cause in writing why the action should remain pending at least five days prior to the hearing.

Thereafter, plaintiffs moved, with an unverified pleading, to set aside the order and dismissal saying that while the notice of hearing was received by plaintiffs’ law firm, the particular lawyer handling the case did not receive it due to the fact that he was busy at that time concluding his practice and due to possible clerical error.

The trial court reinstated the cause without evidence or testimony being taken. Defendants appeal. We reverse.

At no time have plaintiffs shown good cause in writing under F.R.C.P. 1.420(e) “why the action should remain pending.” Their motion to set aside the dismissal was, at best, a questionable excuse for not appearing at the hearing on defendants’ motion to dismiss so as to entitle the matter to be re-heard. However, there has been, as said, a total failure to show good cause as to why the action should remain pending as contemplated and as required with reference to the one year period of inactivity by F.R.C.P. 1.420(e), e. g. Barrentine v. Vulcan Materials Company, 216 So.2d 57 (1st DCA Fla.App.1st 1968); Laug v. Murphy, 205 So.2d 695 (Fla.App. 4th 1968).

REVERSED AND REMANDED with instructions to dismiss the cause for lack of prosecution.

REVERSED AND REMANDED.

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


text:
    Joe D. MIEURE et al., Appellants (Defendants, Counter-Plaintiffs and Third-Party Plaintiffs), v. Billy Joe MOORE et al., Appellees (Plaintiff and Counter-Defendant, and Third-Party Defendant).
    No. AA-468.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Thomas B. Ingles, Panama City, for appellants.
    Ben L. Holley of Barrow & Holley, Crestview, Harry E. Barr of Timmel & Campbell, Fort Walton Beach, Gregory Anchors, Valparaiso, Charles R. Timmel of Timmel & Campbell, Fort Walton Beach, for appellees.
   MILLS, Judge.

The defendants, as counter-plaintiffs and third party plaintiffs, appeal from an order entered in an automobile personal injury case dismissing their counterclaim and third party complaint which sought contribution from the plaintiff, as counterdefendant, who was the husband and the father of the other plaintiffs and his liability insurance company as third party defendant.

The appeal here was designated as an interlocutory appeal. But it was improperly designated, because the order appealed is not an order that is appealable under the provisions of Rule 4.2a, Florida Appellate Rules. However, the improper designation does not affect the jurisdiction of this court, because the order appealed does support a full appeal. Mendez v. West Flagler Family Ass’n., Inc., 303 So.2d 1 (Fla.1975). Therefore, we will consider this case as a full appeal. Shute v. Keystone State Bank, 159 So.2d 106 (Fla.App. 1st, 1964).

The question raised by this appeal is whether a joint tortfeasor may seek contribution from the other joint tortfeasor who is the spouse and the parent of the injured parties.

While driving an automobile occupied by his wife and three minor children, Billy Joe Moore ran into the rear of defendants’ tractor-trailer which he alleges was negligently parked. Moore and his family seek damages for their injuries. The defendants filed a counterclaim against Moore and a third party complaint against his liability insurance company alleging that Moore was a joint tortfeasor, and seeking contribution from Moore and his insurance company. Moore and his insurance company moved to dismiss the counterclaim and third party complaint, and the trial court granted the motion on the ground that the doctrine of family immunity precluded contribution.

It is well established in Florida, that spouses may not sue each other nor may children sue their parents for tort. Orefice v. Albert, 237 So.2d 142 (Fla. 1970).

Under the provisions of Section 768.31, Florida Statutes, referred to as the Uniform Contribution Among Tortfeasors Act, contribution is permitted when two or more persons become jointly or severally liable in tort for the same injury to a person.

Joint tortfeasors are two or more persons jointly and severally liable in tort for the same injury to a person. 34 A.L.R.2d 1108.

In the majority of jurisdictions where contribution is allowed among joint tortfeasors, contribution is not allowed from a joint tortfeasor who is immune from suit by the injured party, because of the family immunity doctrine. 19 A.L.R.2d 1003.

In the case before us, because Moore’s wife and minor children cannot assert a claim against him, Moore is not a joint tortfeasor with the defendants. Since common liability between Moore and the defendants is lacking, and this is essential to the right of contribution, the defendants have no right of contribution from Moore. The action taken by the trial court was correct.

In view of the recent developments in the tort field, the abrogation of contributory negligence, the adoption of comparative negligence, the enactment of .the Uniform Contribution Among Tortfeasors Act, and others, the time may be ripe for the abrogation of the family immunity doctrine. It appears that this would be consistent with the recent development that a loss should be apportioned among those whose fault contributed to the event, as well as providing for contribution among joint tort-feasors. However, we do not have this authority. Only the Supreme Court may overrule this precedent. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

AFFIRMED.

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


text:
    Joe Henry POTTS, Appellant, v. STATE of Florida, Appellee.
    No. 75-291.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.

      Richard L. Jorandby, Public Defender, and James R. Merola, Special Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, subpoenaed as a witness in a judicial proceeding, refused to testify, as a result of which the court found appellant to be in direct criminal contempt of the court.

There was no error in holding appellant in contempt of court, as his refusal to testify was without legal justification. There is a technical error in the judgment in that it fails to include a recital of those facts upon which the adjudication of guilt is based, as required by Rule 3.830 RCrP. See, Miller v. State, 305 So.2d 826 (Fla.App. 4th 1975).

The record also discloses a discrepancy between the circuit court minutes which reflect a sentence “at hard labor,” and the sentence orally pronounced in court which properly omitted any reference to hard labor. See, McDonald v. State, 321 So.2d 453 (Fla.App. 4th 1975); Miller v. State, supra.

The judgment is reversed and the cause remanded for the purpose of (1) entering a corrected judgment meeting the requirements of Rule 3.830 RCrP., and (2) correcting the circuit court minutes.

REVERSED and REMANDED.

WALDEN, C. J., and OWEN and MA-GER, JJ., concur.


author: McCORD, Judge.

text:
    Clyde W. McARTHUR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Z-265.
    District Court of Appeal of Florida, First District.
    April 22, 1976.

      Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant pled guilty to all four counts of an information. After presentence investigation and report, he was adjudged guilty and sentenced to three years’ imprisonment on the first count. As to the three remaining counts, the trial court announced, “I defer adjudication and sentence from day to day and term to term.” Appellant contends such deferment was in error.

In Baggett v. State, Fla.App. (2d), 302 So.2d 206 (1974), the trial court had adjudicated guilt on two counts, sentenced on one and deferred sentence on the other from “day to day and term to term.” Citing State v. Bateh, Fla., 110 So.2d 7 (1959), our sister court of the Second District held the order in Baggett to be erroneous and reversed stating:

“Apart from the potential consequences inherent in a sentence to a definite term of probation we know of no authority to defer either from day to day or from term to term the imposition of- a sentence of imprisonment.”

We agree and are enable to see that there is any less error in deferring adjudication and sentence from day to day and term to term. As the Supreme Court said in Ba-teh :

“ . . . the power of trial judges to hold in abeyance the passage of sentences and to impose them any time in the future, regardless of probation, is disapproved. For procedural reasons such as the determination of ‘motions and other matters arising between verdict and judgment, [or for the purpose of] gaining information necessary to the- imposition of a just sentence; or during the pendency of other charges, or for other good and valid reasons,’ to quote from Bateh v. State, supra, the language copied in Helton v. State, supra [Fla., 106 So.2d 79], there may be justifiable delay, and when convicts are put on probation the sentences, of course, may be deferred conditioned on obedience to the terms of probation. But it was plainly the view of the district court, and it is now the view of this court, that one convicted of an offense is entitled to know just when in his life, he meanwhile being at liberty, he is no longer subject to the power of the court to translate his liberty to imprisonment.
The upshot of this discussion is that when a person is adjudged guilty of an offense the trial judge should, in the absence of the circumstances outlined, either sentence him or place him on probation. This procedure would obviate for all time the possibility that a convict wandering around because he had not been actually sentenced could be summoned into court at any time, regardless of the march of the years, and sentenced for a term which would long since have expired had it been imposed in the beginning.”

The same reasoning of the Supreme Court in Bateh and the District Court in Baggett as to deferral of sentence would apply equally to deferral of adjudication and sentence. Compare State v. Sweetman, Fla. App. (4th), 302 So.2d 164 (1974). Although the appellant in the case sub judice is not at liberty (he having been sentenced to three years imprisonment on the first count), he is entitled to have all of the charges to which he had pled guilty disposed of expeditiously and not held in a state of limbo.

The judgment and sentence on the first count are affirmed. The deferral of adjudication and sentence as to each of the remaining counts is reversed and the case is remanded with directions to adjudicate said counts and make appropriate disposition thereof.

RAWLS, Acting C. J., and SMITH, J., concur.


author: NATHAN, Judge.

text:
    Charlie VINING and Velma Vining, wife of Charlie Vining, Appellants, v. AVIS RENT-A-CAR SYSTEMS, INC., Appellee.
    No. 75-756.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Papy, Levy, Carruthers & Poole and Sheridan K. Weinstein, Coral Gables, for appellants.
    Richard M. Gale, Robert L. Dube, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by the plaintiffs, Charlie Vining and Velma Vining, his wife, from an order of the trial court dismissing with prejudice the remaining counts of their third amended complaint against defendant Avis Rent-A-Car Systems, Inc.

An Avis rental automobile was stolen from the Avis lot at the Miami International Airport. While driving the rental car, the thief negligently collided with the automobile driven by Charlie Vining. Vining sued Avis for damages for injuries sustained in the collision, charging that Avis left the vehicle unattended with the ignition keys in the ignition and with the door open and the lights burning in such a manner as to attract attention to the vehicle. This negligence was alleged to have proximately caused the plaintiffs’ injuries. Avis filed a motion to dismiss citing this court’s decision in Lingefelt v. Hanner, Fla.App.1960, 125 So.2d 325, which absolved the owner of a car of liability for damages caused by a car thief, despite the fact that the owner negligently left the ignition switch unlocked. The trial court granted Avis’ motion to dismiss with prejudice and this appeal ensued.

The plaintiffs contend that Avis is in violation of § 316.097, Fla.Stat., entitled “Unattended motor vehicle,” which in part provides,

“No person driving or in charge of any motor vehicle . . . shall permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key. . . . ”

Although violation of a state statute is evidence of neglilgence, we follow the reasoning of Lingefelt v. Hanner, supra, wherein it is held that the determinative issue is one of causation. Assuming Avis’ act of leaving the keys in the ignition in violation of the statute was evidence of of negligence, the plaintiffs still could not recover unless such negligent act was the proximate cause of the plaintiffs’ injuries. Proximate cause is defined as, “that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” 23 Fla. Jur., Negligence, § 26, and cases cited therein. The courts of Florida adhere to the general principle that an intervening criminal act breaks the chain of causation. Accordingly, the original negligence of the defendant Avis, in leaving the keys in the ignition, was not the proximate cause of the damages resulting from the intervening criminal act. Lingefelt v. Hanner, supra; Bryant v. Atlantic Car Rental, Inc., Fla.App.1961, 127 So.2d 910.

There can be no recovery for damages where, as here, the injuries were not a reasonably foreseeable consequence such that a person, by prudent human foresight could anticipate that the damages incurred will likely result from the defendant’s negligence. Cone v. Inter County Telephone & Telegraph Company, Fla.1949, 40 So.2d 148. We conclude that there is no reasonable basis upon which a jury could determine that the plaintiffs’ damages were proximately caused by Avis’ negligence.

We regard the question of foreseeability and proximate cause under the facts presented on this appeal to be of such importance that it should be settled by the Supreme Court of Florida. We have determined, therefore, that the decision in this cause will be certified to the Supreme Court of Florida pursuant to the Florida Constitution, Art. V, § 3(b)(3).

The order dismissing the complaint is affirmed.

      . Clark v. Sumner, Fla.1954, 72 So.2d 375; Bryant v. Swarts, Fla.App.1969, 227 So.2d 715.


text:
    Robert PRATT, as Administrator of the Estate of Alfred Pratt, Deceased, Appellant, v. Evelyn Pratt GERBER, Appellee.
    No. 75-831.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied April 26, 1976.
    Carole A. Gardiner, Miami, for appellant.
    Frank M. Marks, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In an action in the Circuit Court of Dade County, for dissolution of marriage, a judgment was entered on November 11, 1971, dissolving the marriage of the appel-lee and Alfred Pratt. The judgment contained a reservation of jurisdiction for the purpose of entering “further orders touching upon the property and financial rights of the parties”. Alfred Pratt died on December 10, 1971, prior to any further hearing in that cause. His son Robert Pratt was appointed administrator of his estate.

During the marriage, the parties thereto purchased certain stocks and bonds which they continued to own until the time of the dissolution of their marriage. The securities were in the names of both parties. Some bore the notations of “JT Ten” and others the notation of “JT with right of survivorship and not as tenants in common”.

In 1974, in the proceeding for probate of the estate of said decedent in the probate division of the circuit court of Dade County, the administrator filed a petition to require the widow to surrender property claimed for the estate representing a one half interest in said securities. The widow refused, and moved in the probate proceeding for summary judgment, claiming full ownership of such securities.

Following a hearing on those motions, a judgment was entered on June 28, 1974, by Judge George E. Schulz, whereby the widow’s motion for summary judgment was denied, and summary judgment was granted in favor of the estate. The effect of that judgment was a determination that the estate was entitled to a one half interest in the said securities.

On July 3, 1974, the widow filed a petition for rehearing, directed to the judgment of June 28, 1974. The petition contained three grounds. First, that there were other matters to be determined in addition to those decided by the court. Second, that the judgment was erroneous, by attempting to remake a written agreement between the parties; and third, that the judgment was “contrary to the facts and the law and is erroneous.”

While the petition for rehearing was pending and undetermined, Judge Schulz retired. Thereafter Judge Joseph Nesbitt, who had succeeded Judge Schulz, held a hearing thereon, granted the petition and entered judgment holding the widow was the sole owner of the securities in question, and that the estate of the decedent had no interest therein. By that judgment the successor judge in fact reversed the judgment of the predecessor judge and rendered a decision to the contrary thereof on the merits of the matter involved. The administrator appealed. Although action on the petition for rehearing by the successor judge appears to have been objected to by the administrator in the trial court, and his action thereon was assigned as error on the appeal, the brief of the appellant did not contain an argument on such an assignment, and argued error on grounds going to the merits of the judgment appealed.

We hold that where the petition for rehearing, which in this instance did not state grounds based on fraud or mistake, or a ground for relief from the prior judgment under Rule 1.540 F.R.C.P., but stated grounds challenging the correctness of the prior judgment, the successor judge was unauthorized to review and reverse on the merits and on the same facts the prior final judgment or order of the predecessor judge and to enter a different judgment. Smith v. Mobley, 95 Fla. 829, 116 So. 760; Lawyers Co-operative Publishing Co. v. Williams, 149 Fla. 390, 5 So.2d 871; Groover v. Walker, Fla.1956, 88 So.2d 312; Epperson v. Epperson, Fla.1958, 101 So.2d 367; Bailey v. Bailey, Fla.App. 1967, 204 So.2d 531, 532; Tingle v. Dade County Board of County Commissioners, Fla.1971, 245 So.2d 76; Barnard v. Overstreet, Fla.App. 1972, 259 So.2d 517; Balfe v. Gulf Oil Company-Latin America, Fla.App.1973, 279 So.2d 94; City of Miami Beach v. Chadderton, Fla.App.1975, 306 So.2d 558; Better Construction, Inc. v. Camacho Enter prises, Inc., Fla.App.1975, 311 So.2d 766. Cf. Deemer v. Hallett Pontiac, Inc., Fla.App.1974, 288 So.2d 526.

As applied to the circumstances of this case, we hold that review of the prior judgment and entry of a contrary judgment by the successor judge on the petition for rehearing constituted fundamental error, for which the judgment or order appealed from must be reversed.

Rule 3.7(i) F.A.R. which provides that assignments of error not argued in briefs will be deemed abandoned, further provides as follows: “However, the Court, in the interest of justice, may notice jurisdictional or fundamental error apparent on the record-on-appeal, whether or not it has been argued in the briefs or made the subject of an assignment of error, or of an objection or exception in the court below.”

In the Florida decisions which have pronounced the prohibition against a successor judge reviewing and reversing a final order or judgment of his predecessor, the action of a successor judge in violation or disregard thereof has been classified “unauthorized”. Such unauthorized action by a successor judge which results in reversal of the prior final order or judgment of a predecessor judge or which reaches a different decision as to the rights of the parties as fixed in the prior judgment, is a matter of sufficient gravity in the judicial process and in due process of law that we are impelled to regard it as fundamental error. Upon disposing of this appeal on that basis, we pretermit discussion of the arguments on this appeal which were submitted on the merits.

Accordingly, the order or judgment appealed from is reversed, and the prior judgment entered by Judge Schulz on June 28, 1974 is reinstated; and the cause is remanded to the circuit court with direction to enter an order denying the petition for rehearing which was directed to the final judgment of June 28, 1974.

      . The order entered by Judge Nesbitt in the probate proceeding, holding with finality that the estate had no interest in the property and that the widow was the sole owner thereof, was an appealable final order or judgment in the probate proceeding. Likewise the prior order of Judge Schulz determining the rights of the parties with reference to ownership of such securities was a final judgment thereon. In re Nolan’s lístate, Fla.App.1954, 114 So.2d 341; In re Hamlin’s Estate, Fla.App.1963, 157 So.2d 844.

      . In some other jurisdictions such action has been held to constitute jurisdictional error. State v. Vanderburg Circuit Court, 1949, 227 Ind. 353, 85 N.E.2d 254, 258 (held to be void) ; St. John v. Archer, Tex.Civ.App.1941, 147 S.W.2d 519 (held the “unauthorized” action was jurisdictional error).

      . The disposition of the timely petition for rehearing of the June 28, 1974 judgment, by entry of an order denying the petition, following remand as above directed will fix the date of rendition of that judgment marking the start of a thirty day period in which an appeal may be filed from the judgment. See Rule 1.3 F.A.R.


author: FUTCH, M. DANIEL, Jr., Associate Judge.

text:
    STATE of Florida, Appellant, v. George OATES et al., Appellees.
    No. 75-195.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.

      Abbott M. Herring, State’s Atty., and Norman A. Tharp, Asst. State’s Atty., Ti-tusville, for appellant.
    Walter T. Rose, Jr. of Rose & Weller, Cocoa Beach, for appellees.
   FUTCH, M. DANIEL, Jr., Associate Judge.

The Trial Court dismissed a four count information count one of which is before us now and which purportedly alleges a conspiracy to commit a felony, to-wit: Grand Larceny. The State appeals. We reverse.

The information is as follows:

"CIRCUIT COURT OF THE EIGH- ISSUE CAPIAS TEENTH JUDICIAL CIRCUIT IN SET BOND AT AND FOR BREVARD COUNTY, $_ FLORIDA FELONY STATUTE NO. 833.04
IN THE CIRCUIT COURT of the Eighteenth Judicial Circuit, in and for Brevard County, Florida, in the year of our Lord, one thousand nine hundred and seventy four.
STATE OF FLORIDA INFORMATION FOR VS GEORGE OATES COUNT I CONSPIRACY TO LOGAN H. FISCHER, COMMIT A FELONY aka 'SKIP FISCHER' TO-WIT: GRAND BERNIE KEENE LARCENY

In the Name and by Authority of the State of Florida:

ABBOTT HERRING, State Attorney of the Eighteenth Judicial Circuit, in and for Brevard County, Florida, prosecuting for the State of Florida, under oath CHARGES that GEORGE OATES, LOGAN H. FISCHER, a/k/a ‘SKIP-FISCHER’, BERNIE KEENE on April 15, 1974, and thereafter to and including May 30, 1974, in the County of Brevard, and State of Florida, did then and there agree, conspire, combine, or confederate with GEORGE OATES, LOGAN H. FISCHER, BERNIE KEENE each with the other, or other persons not charged herein, to commit a felony, to-wit: GRAND LARCENY, to obtain from the true owners money of the value of $100.00 or more lawful currency of the United States of America by color or aid of fraudulent or false representation or pretense; that is, to collect entrance fees for a BASS FISHING CONTEST, offering large cash prizes, and to rig or control said contest by entering fish caught prior to said contest with intent to deprive or defraud said owners, the ENTRANTS, of said money, and in furtherance of said conspiracy the defendants, GEORGE OATES, LOGAN H. FISCHER, BERNIE KEENE and other uncharged co-conspirators committed one or more of the following overt acts:

1. On May 6, 1974, and thereafter to and including May 9, 1974, GEORGE OATES, BERNIE KEENE and uncharged co-conspirators, PHILLIP JAY, ROBERT VARNADORE, caught a number of bass in Osceola County, Florida and brought said fish to 111 West Gadsden Lane, Cocoa Beach, Florida.
2. On May 6, 1974, and thereafter to and including May 9, 1974, GEORGE OATES, BERNIE KEENE, PHILLIP JAY, ROBERT VARNADORE, placed bass caught in Osceola County, Florida in a holding tank set up at 111 West Gadsden Lane, Cocoa Beach, Florida.
3. On the night of May 9, 1974, or early morning hours of May 10, 1974, BERNIE KEENE transported said pre-caught fish to the vicinity of Cler-mont, Florida and delivered said fish to PHILLIP JAY.
4. On May 10, 1974, PHILLIP JAY received said fish from BERNIE KEENE, took said fish into a lake near Clermont, Florida and gave the same to LOGAN FISCHER and ROBERT VARNADORE.
5. On May 10, 1974, LOGAN FISCHER and ROBERT VARNA-DORE turned said fish into the contest officials as being caught in said contest.
6. On May 11, 1974, LOGAN FISCHER and ROBERT VARNA-DORE each won a prize and each received prize money in the form of a check.
7. On or about May 30, 1974, ROBERT VARNADORE gave GEORGE OATES the sum of $250.00, one half of the prize which he received, said payment being made in Brevard County, Florida, contrary to sections 833.04 and 811.021(1)(a), Florida Statutes,”

The issue before us is whether count one of the information properly alleges a crime under Florida Statutes.

F.S. 811.021, F.S.A., provides in part:
“A person who, with intent to deprive or defraud the true owner of his property takes from the possession of the true owner by false representations or pretense . . . any money ... is guilty of larceny.”

One obtaining personal property by trick, device, or fraud, intending to appropriate it, is guilty of larceny on subsequent appropriation. A person is guilty of larceny who gets possession of money of another by means of fraud or trickery with the preconceived purpose to appropriate the money to his own use, on the theory that the fraud vitiates the consent of the owner who is held to retain constructive possession up to the time of conversion by the taker. Casso v. State, 182 So.2d 252 (Fla.App.2d 1966).

One contention submitted by the Appel-lees is that the information fails to identify the victim of the larceny. We do not agree.

“The purpose for allegation and proof of ownership in a larceny prosecution is to show that the property belongs to one other than the accused.”
Wilcox v. State, 183 So.2d 555 (Fla.App. 3d 1966).

The information alleges, and we think sufficiently, that the victims of the larceny would be the entrants in the contest.

The Appellees point out that the sports world, with certain minor exceptions, is free of governmental regulation and argue that no one would indict an automobile racer if he should include an unfair additive in his gasoline or a helmet-slinging football player. While these examples are not before us, and we do not specifically consider these issues, we do, however, feel that the time has come for society to refuse to accept any cheating scheme, such as alleged here, whether or not such scheme is connected with a “sporting” event.

The other points discussed by Appellees have been considered and found to be without merit.

Reversed and remanded to the trial court for further proceedings not inconsistent with this opinion.

CROSS and OWEN, JJ., concur.


author: GRIMES, Judge.

text:
    Gus David HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-428.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.
    Rehearing Denied May 13, 1976.
    Jack O. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was arrested by the Tampa police on a burglary warrant issued at the instance of the Hillsborough County Sheriff’s office. The Tampa police notified Lewis Fisher, the Hillsborough County detective who had been investigating the case. Fisher came to the Tampa Police Department interrogation room where he interviewed the appellant. Fisher first read appellant his Miranda rights. Appellant stated he understood these rights but said he was willing to talk to Fisher. He did not request counsel. Apparently because he had neglected to bring any forms with him, Detective Fisher failed to obtain from appellant a written waiver of counsel. Appellant then confessed to the crime with which he was charged.

Prior to trial, the court held a hearing on the appellant’s motion to suppress the confession. The court found that appellant had freely and voluntarily made the confession and denied the motion. At the trial, Fisher testified concerning appellant’s oral confession. Appellant admitted talking to Fisher but denied having admitted his guilt. The jury found appellant guilty as charged. The sole issue on appeal is whether the confession should have been suppressed.

At the outset we must determine whether appellant knowingly waived his right to retained or appointed counsel. In Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the U. S. Supreme Court said:

“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:
‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
“See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.”

Does this mean that one must expressly waive the right to counsel before his subsequent confession is admissible in evidence? This question has been answered in the negative many times. Thus, in United States v. Montos, 5th Cir. 1970, 421 F.2d 215, the court said:

“ . . . An express statement that the individual does not want a lawyer is not required, however, to show that the individual waived his right to have one present. See Bond v. United States, 10 Cir., 1968, 397 F.2d 162, 165. All that the prosecution must show is that the defendant was effectively advised of his rights and that he then intelligently and understandingly declined to exercise them. See Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962).”

In Hughes v. Swenson, 8th Cir. 1971, 452 F.2d 866, the court stated:

“Having concluded that appellant was not only warned as required by Miranda but that he also asserted that he understood his rights, the legal question remains whether such an assertion constitutes a valid waiver of counsel. In Miranda, the Supreme Court announced that ‘a valid waiver will not be presumed simply from the silence of the accused after warnings were given or simply from the fact that a confession was eventually obtained.’ 384 U.S., at 475, 86 S.Ct., at 1628. The thrust of appellant’s claim is that a valid waiver cannot be effective absent an expressed declaration to that effect. We are cited to no case which supports appellant’s thesis and independent research discloses none. To the contrary, the Fifth, Seventh, Ninth, and Tenth Circuits have held in effect that if the defendant is effectively advised of his rights and intelligently and understandingly declines to exercise them, the waiver is valid.
“It is neither necessary nor desirable to undertake to fashion a per se rule to be applied in all cases presenting the Miranda issue. The crucial question always must be: has the prosecution sustained its heavy burden of demonstrating that the defendant was effectively advised of his rights, and did he knowingly and understandingly decline to exercise them? . . . ”

Accord, United States v. Rogers, 5th Cir. 1974, 504 F.2d 1079; United States v. Guzman-Gusman, 5th Cir. 1974, 488 F.2d 965; United States v. Mix, 5th Cir. 1971, 446 F.2d 615; United States v. Daniel, 5th Cir. 1971, 441 F.2d 374; United States v. Hilliker, 9th Cir. 1970, 436 F.2d 101.

While appellant did not expressly waive the right to counsel, he did more than simply give a confession immediately following the reading of his Miranda rights. He told the officer that he understood these rights. He further stated that he was willing to talk to the officer. There is nothing in the record to suggest any coercion or intimidation, and when appellant testified at the trial, he did not contend that this occurred. The totality of circumstances reflect a knowing waiver of counsel.

Thus, viewed from the standpoint of Miranda, appellant suffered no impairment of any constitutional rights. However, there is nothing to keep the several states from imposing standards more stringent than Miranda. The State of Florida seems to have done this in RCrP 3.111 which provides, in part:

“(a) When Counsel Provided. A person entitled to appointment of counsel as provided herein shall have counsel appointed when he is formally charged with an offense, or as soon as feasible after custodial restraint or upon his first appearance before a committing magistrate, whichever occurs earliest.
“(c) Duty of Booking Officer.
“In addition to any other duty, the officer who commits a defendant to custody has the following duties:
(1) He shall immediately advise the defendant:
(i) of his right to counsel;
(ii) that if the defendant is unable to pay a lawyer, one will be provided immediately at no charge.
“(d) Waiver of Counsel.
(1) The failure of a defendant to request appointment of counsel or his announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any stage of the proceedings.
(4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than two attesting witnesses. Said witnesses shall attest the voluntary execution thereof.”

Appellant had been held by the Tampa Police Department for several hours when he first talked to Detective Fisher. Therefore, he was clearly in custodial restraint as contemplated by RCrP 3.111 (a). Even though he had been advised of his right to counsel and of the fact that if he was unable to pay a lawyer one would be provided for him, appellant did not sign a written waiver of counsel in the presence of two attesting witnesses as required by RCrP 3.111(d)(4).

On the other hand, our Supreme Court has held that the violation of a rule of criminal procedure does not necessitate the reversal of a conviction unless the record discloses that noncompliance with the rule resulted in prejudice or harm to the defendant. Richardson v. State, Fla.1971, 246 So.2d 771. In the instant case, the record amply supports the court’s conclusion that appellant’s confession was freely and voluntarily given after he had been fully advised of his constitutional rights. While a written waiver of counsel attested by two witnesses should have been obtained, appellant has failed to demonstrate any prejudice incident to the violation of the rule.

AFFIRMED.

McNULTY, C. J., and HOBSON, J„ concur.


text:
    STATE of Florida, Appellant, v. Robert Michael COMBS, Appellee.
    No. Z-83.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellant.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellee.
   RAWLS, Acting Chief Judge.

Appellee-defendant Combs was charged by information with the crime of unlawfully selling a controlled substance. By motion to dismiss, Combs contended that his activity in regards to the violation of which he had been accused consisted solely of arranging a meeting between a law enforcement officer and a seller, without payment of any money to him for his part in the transaction. Accordingly, Combs, without any traverse by the state as to his factual allegations, insisted that pursuant to this court’s opinion in Dent v. State, 301 So.2d 475 (Fla.App.1st 1974), his conduct was not within the prohibition of the offense charged. The trial court correctly followed our decision in Dent and dismissed the information. The state now appeals that dismissal.

In' State v. Dent, 322 So.2d 543 (Fla. 1975), the Supreme Court in quashing this court’s opinion, stated:

“The evidence is not in dispute to the effect that respondent took an active part in arranging the sale of narcotics in violation of Florida law. Though he received no compensation from the seller, his active complicity clearly aided and abetted the commission of a criminal offense. In fact, the evidence is undisputed that the sales would not have occurred but for respondent’s arrangements. Under our decision in State v. Roby, 246 So.2d 566 (Fla.1971), respondent’s conviction was proper.”

So, it is settled that the trial judge and this court erred in disposing of the issue involved in the respective cases.

The scholarly brief filed by appellee poses a due process constitutional question based upon the rationale of Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L. Ed.2d 894 (1964). Bouie arose out of a “sit-in” demonstration in a drugstore in Columbia, South Carolina. In reversing the state conviction, the Federal Supreme Court discussed “fair notice” requirements as to penal statutes and concluded that a judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Article I, Section 10, U.S. Constitution.

Here, the admitted facts are that Combs “brought Officer Neal to the Capri Motel on North Main Street where the transaction was consummated between Officer Neal and Mr. Barnard . . . and at no time did the Defendant [Combs] deliver to Officer Neal any drugs whatsoever.” Assuming that the state can prove that Combs took an active part in arranging the sale of narcotics in violation of Florida law, it is our opinion that the rationale of Bouie and other authorities espousing the view therein expressed are not applicable to the instant facts.

Pursuant to State v. Dent, 322 So.2d 543 (Fla.1975), the judgment appealed is REVERSED.

MILLS and SMITH, JJ., concur.


text:
    NORTHWESTERN NATIONAL INSURANCE COMPANY, Appellant, v. Stanley GREENSPUN and Bert Rudick, Individually and on behalf of all other persons similarly situated, Appellees.
    Nos. 75-1927, 75-1944.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.

      Welbaum, Zook, Jones & Williams and Dan B. Guernsey, Miami, for appellant.
    Michael E. Lipsky, Miami Beach, and Albert Wilensky, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

We are presented with an interlocutory appeal and a petition for certiorari directed to an order of the circuit court which denied Northwestern National Insurance Company’s motion to dissolve a temporary injunction and directed that a board of three members be impaneled to hear testimony offered by the parties and make findings. The complaint of the appellees Stanley Greenspun and Bert Rudick was filed by them as representatives of a class. In the complaint it was alleged that the insurance company intended to increase its premiums upon its major medical insurance policies. The complaint further alleged that the real intention of the insurance company in increasing its rates was not to obtain higher premiums but to avoid contracts already written. Based upon these allegations, the plaintiff prayed (1) for a temporary injunction prohibiting a proposed rate increase, (2) for a permanent injunction of the same nature, and (3) for such other relief as the court might find' proper. Based on this complaint and after taking testimony, the court entered a temporary injunction as follows:

“6. That the Defendant, NORTHWESTERN NATIONAL INSURANCE COMPANY, is hereby enjoined from increasing its insurance premiums and is disallowed any further rate increases on the individual comprehensive health protection insurance policies owned by the Plaintiffs and members of that class, which are payable on or after the date of this Order, until further Order of this Court.
“7. That the Court finds that pursuant to Rule 1.610 of the Florida Rules of Civil Procedure it is impracticable for the Plaintiffs to give bond and that said Plaintiffs, due to the size of the class, are unable to give bond at this time.”

The insurance company moved to dissolve the temporary injunction and an evi-dentiary hearing was held. Thereafter, the court entered the order which is now appealed. This order is, in pertinent part, as follows:

“1. The Defendant’s Motion be and the same is hereby denied.
“2. The Court upon its own Motion hereby directs that a board of three members be impaneled to hear testimony offered by the parties and to make its findings known to the Court with respect to those matters in controversy between the parties.
“3. That each of the parties shall submit two appointments of individuals to be considered by the Court as members of the aforesaid board. The respective appointments of the parties shall consist of one accident and health insurance actuarial and one individual knowledgeable and conversant in the field of accident and health insurance.”

In this appeal, it is urged by the insurance company that the purpose of the suit is to have the circuit court set the rate that the company may charge on its policies and that such a purpose is outside the circuit court’s jurisdiction. We readily agree that the circuit court does not have the power to set rates that may be charged upon private contracts of insurance in this state. Cf. Nationwide Mutual Insurance Company v. Williams, Fla.App.1966, 188 So.2d 368, 372. An injunction for this purpose would be improper. See Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 128 So. 821, 82S (1930), holding that an injunction against the breach of a contract is measured by the same rules and practice as that involved in actions for specific performance. Jurisdiction to decree specific performance of a contract is exercised in two classes of cases: (1) where the contract’s subject matter is of such a special nature that damages, when ascertained upon legal rules, would be inadequate; (2) or where damages are impracticable in that no real compensation can be arrived at through an action at law. See 29A Fla.Jur. Specific Performance § 14, and authorities cited thereat.

We cannot agree with the appellant that it conclusively appears from the record presented to us that it is the intent of the complaint to have the circuit court set the rate that may be charged upon plaintiffs’ policies of insurance with the defendant. It is reasonable to interpret the complaint as a prayer for an injunction to prevent fraud upon, and irreparable harm to, the plaintiffs. The record before the court does not contain the insurance contracts and the evidence presented does not substantiate appellant’s contention that this is the purpose that the plaintiffs hoped to achieve by their lawsuit.

It is well-established that the granting of a temporary injunction is a matter within the discretion of the trial court and that it will be reversed upon interlocutory appeal only when it has no basis in the pleadings and evidence before the trial court or is illegal in its nature. See Wakulla-Silver Springs Company v. Smith, Fla.App. 1970, 249 So.2d 738, and authorities noted thereat. We hold that upon this record it does not appear in this instance that the injunction is either without basis or is illegal in its nature. We, therefore, affirm that portion of the order which denied appellant’s motion to dissolve the injunction.

The second portion of the order which directs the impaneling of a board or commission to hear the evidence of the parties and presumably to recommend action to the trial court is beyond the scope of the Florida Rules of Civil Procedure. The impaneling of such a board smacks of an attempt by the court to regulate the insurance company. There is no basis in the Florida Statutes or the law for such regulation pf insurance companies by the circuit courts of this state.

It is true that a circuit judge may, under the provisions of R.C.P. 1.490(b), appoint special masters and that, upon a proper showing, a person other than a member of the bar may be appointed where special expertise is necessary. See Powell v. Weger, Fla.1957, 97 So.2d 617. There is nothing in the order appealed to bring the appointment of a proposed board within the authority of this rule. We, therefore, hold that the portion of the order which directs the appointment of a board and provides for the personnel of that board is beyond the authority of the circuit court, and is hereby reversed.

This cause is remanded to the circuit court with directions to proceed with the cause to determine the rights of the plaintiffs and the defendant under their contracts upon the allegations of the complaint and the answer of the defendant.

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


author: GILLESPIE, Chief Justice.

text:
    MISSISSIPPI STATE PROBATION AND PAROLE BOARD v. Janie Grace HOWELL.
    No. 49077.
    Supreme Court of Mississippi.
    March 16, 1976.
    Rehearing Denied May 4, 1976.
    Stay Denied May 24, 1976.
    See 96 S.Ct. 2199.
    Certiorari Dismissed June 23, 1976.
    See 96 S.Ct. 3184.
    A. F. Summer, Atty. Gen., by Edwin A. Snyder, Sp. Asst. Atty. Gen., Jackson, for appellant.
    Joe M. Ragland, Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   GILLESPIE, Chief Justice.

This is an appeal by the Mississippi State Probation and Parole Board (Board) from an order of the Circuit Court of Hinds County directing the clerk of that court to issue a writ of mandamus commanding the Board to grant Janie Grace Howell, a parolee, “her absolute right to present her defense at any subsequent parole revocation hearing, preliminary, or final state.” The Board demurred to the petition and the writ was issued upon overruling of the demurrer without proof.

The question of whether the writ of mandamus was erroneously issued, as claimed by the Board, has several points of inquiry next to be stated and discussed.

1. Does a prisoner who is on parole have an absolute right to be represented by retained counsel at any revocation hearing, whether preliminary or final?

The United States Constitution does not require counsel in all parole revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The parolee argues that her absolute right to be represented at any hearing is vouchsafed by Mississippi Constitution, Article 3, section 25, which is as follows:

No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.

Parolee further argues that a revocation proceeding is a civil cause and that the parole officer conducting the hearing is a tribunal within the meaning of the cited section of the Mississippi Constitution. We hold that an officer conducting a revocation hearing is performing an administrative act. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, (1972). As suggested in Gagnon, there may be complex cases difficult to develop or present that would require appointment of counsel for an indigent parolee. Likewise, there may be complex cases where assistance of counsel is necessary and where the parole officer should permit the parolee to be represented by retained counsel. But most of the tens of thousands of hearings would not require counsel, and the courts ought not to hold that every parolee is entitled to counsel in every hearing. As said in Gagnon, “the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings.” In that case the Court noted that over 128,000 revocation hearings occur each year.

In Morrissey v. Brewer, supra, the Court said that the preliminary hearing should be held promptly, at or near the place of the alleged parole violation or arrest. The Court also said that the purpose of the preliminary hearing is to determine whether there is probable cause to believe the parolee has committed acts that would constitute a violation of parole conditions. The Court further said:

[T]he State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole. 408 U.S. at 483, 92 S.Ct. at 2601, 33 L.Ed.2d at 495.

In Gagnon the Court was concerned with the requirements of the State to appoint counsel for an indigent parolee, but what was said is applicable to the question whether every parolee has an absolute right to be represented by counsel in every hearing. In Gagnon, the Court said:

The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views. The role of the hearing body itself, aptly described in Morrissey as being “predictive and discretionary” as well as factfinding, may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual probationer or parolee. In the greater self-consciousness of its quasi-judicial role, the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate rather than to continue nonpunitive rehabilitation. Certainly, the decision-making process will be prolonged, and the financial cost to the State — for appointed counsel, counsel for the State, a longer record, and the possibility of judicial review — will not be insubstantial. 411 U.S. at 787, 93 S.Ct. at 1762, 36 L. Ed.2d at 665.

The courts should presume that until the contrary is shown the probation au- . thorities will afford due process and grant the right to be represented by counsel if circumstances so require. If not, the parolee has a remedy other than mandamus. Cf. Ex Parte Laird, Miss., 305 So.2d 357.

2. Was the writ of mandamus improvidently issued because it was to take effect prospectively?

In our opinion, the writ of mandamus issued in this case was improvidently issued for the reason that there was no default in the performance of any duty at the time the writ was issued. Unless and until there has been an actual default in the performance of a duty which the officer has refused to discharge, the mandamus will not lie. Anderson v. Robins, 161 Miss. 604, 137 So. 476 (1931). And the writ will not be granted to take effect prospectively. Wood v. State ex rel. Gillespie, 169 Miss. 790, 142 So. 747 (1932). For this second and independent reason, the writ should not have issued.

REVERSED AND RENDERED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

      . The pleadings in the present case show that Paragraph 3(c) of the rules of . the Board, which was involved in Laird, supra, has been amended so as to permit the parolee who faces a revocation hearing to request the right to be represented by an attorney, but the amended rule does not grant the absolute right to be represented by retained counsel.


author: GILLESPIE, Chief Justice:

text:
    MISSISSIPPI STATE PROBATION AND PAROLE BOARD v. Bobby James BROOKS.
    No. 49078.
    Supreme Court of Mississippi.
    March 16, 1976.
    Rehearing Denied May 4, 1976.
    Stay Denied May 24, 1976.
    See 96 S.Ct. 2199.
    Certiorari Dismissed June 23, 1976.
    See 96 S.Ct. 3184.
    A. F. Summer, Atty. Gen., by Edwin A. Snyder, Sp. Asst. Atty. Gen., Jackson, for appellant.
    Joe M. Ragland, Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   GILLESPIE, Chief Justice:

This case was consolidated with No. 49,-077 for the purpose of argument and consideration. It is controlled by the decision in No. 49,077, Mississippi State Probation and Parole Board v. Howell, Miss., 330 So. 2d 565 this day decided.

REVERSED AND RENDERED.

PATTERSON and INZER, P. JJ. and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


text:
    Nellie M. SORRELLS v. C. H. HICKMAN.
    No. 48641.
    Supreme Court of Mississippi.
    April 20, 1976.
    Rehearing Denied May 11, 1976.
    R. L. Calhoun, Hattiesburg, William E. Andrews, Jr., Purvis, for appellant.
    Gray, Montague & Jáckson, F. Douglas Montague, III, Hattiesburg, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

AFFIRMED.