author: MELVIN, Judge.

text:
    Rufus PETERSON et al., Petitioners, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
    Nos. FF-176—FF-206
    (Consolidated).
    District Court of Appeal of Florida, First District.
    Jan. 10, 1978.
    Selig I. Goldin of Goldin & Cates, Gaines-ville, for petitioners.
    J. E. Hodges, Jacksonville, for respondent.
   MELVIN, Judge.

Petitioners file their Petitions for Certio-rari, which we treat as Petitions for Review of Administrative Orders under the provisions of Chapter 120, Florida Statutes, seeking reversal of petitioners’ reclassification appeals.

Upon review of the record, briefs, and oral argument, the Petitions for Review are denied and the Orders of the Department of Health and Rehabilitative Services entered in each of the above cases are

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bobby Gordon SHEFFIELD, Petitioner, v. The Honorable Erwin FLEET, Circuit Judge, Okaloosa County, Florida, Respondent.
    No. HH-206.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1978.
    Woodburn S. Wesley, Jr. of Cotton & Wesley, Fort Walton Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner, Bobby Gordon Sheffield, filed herein a suggestion for writ of prohibition alleging violation of the “speedy trial rule”, Fla.R.Crim.P. 3.191. We issued Rule Nisi to which respondent has filed his return. We have also carefully considered the briefs filed by able counsel. Petitioner relies heavily upon a recent case from this court, State v. Ansley, 349 So.2d 837 (Fla. 1st DCA 1977). A careful examination of that case reveals that we there only held that mere silence alone on the part of a defendant or his counsel at a proceeding in which trial date is set beyond the speedy trial period is not a waiver pursuant to Fla.R.Crim.P. 3.191(d)(2)(i). In that case, immediately prior to stating our holding, we said:

“The requirements of Fla.R.Crim.P. 3.191(d)(2)(i), requiring that an extension or waiver of the speedy trial time be in writing and be signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, have been modified considerably by judicial interpretation. Waiver has been found without the required writing where defense counsel orally stipulated to the delay in open court and where same was preserved for the record by certified transcript of the proceedings; or where there was either a passive or active acknowledgment on the part of the defense that a stipulation (in court or out, oral or written) had been entered into by which the parties agreed that the trial would be set beyond the speedy trial period; or where there was an acknowledgment by the court or one of the parties of a speedy trial issue followed by the defense’s acquiescence in a trial date set beyond the speedy trial period. State v. Kelley, 322 So.2d 581 (Fla. 1st DCA 1975); Stuart v. State, 339 So.2d 659 (Fla. 3rd DCA 1976); State v. Earnest, 265 So.2d 397 (Fla. 1st DCA 1972); and Eastwood v. Hall, 258 So.2d 269 (Fla. 2nd DCA 1972). However, none of these circumstances has occurred in the instant case.” (349 So.2d 838, 839)

Respondent, on the other hand, heavily relies upon State v. Kelley, 322 So.2d 581 (Fla. 1st DCA 1975) which, it will be noted from the above quotation, was cited and approved by us in State v. Ansley, supra. An examination of the facts of this case reveals them to be more analogous to those in State v. Kelley than in State v. Ansley.

Accordingly, our rule nisi is vacated and the petition for writ of prohibition is denied.

IT IS SO ORDERED.

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


text:
    ANNING-JOHNSON COMPANIES, Appellant, v. SUPERIOR ROOFING, INC., Appellee.
    No. 76-1906.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Preddy, Kutner & Hardy and Michael J. Parenti, III, Miami, for appellant.
    Myron B. Berman, North Miami Beach, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See United Gas Pipeline Company v. Gulf Power Company, 334 So.2d 310 (Fla.App.1976); Lincenberg v. Issen, 318 So.2d 386 (Fla.1975); Sunspan Eng. & Const. Co. v. Spring-Lock Scaffold Co., 310 So.2d 4 (Fla.1975), and Fla.R.Civ.P. 1.510.


text:
    Eugene GATES, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1958.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Eugene Gates, in pro per.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Thomas v. State, 183 So.2d 297 (Fla. 3d DCA 1966); Flagler v. State, 198 So.2d 313 (Fla.1967); Jennings v. State, 248 So.2d 247 (Fla. 3d DCA 1971); Morrison v. State, 283 So.2d 137 (Fla. 3d DCA 1973).


text:
    Felipe Francisco ROGER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2174.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Ernest W. Sardinas, Coral Gables, for appellant.
    Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This is an appeal from an adjudication of guilty of conspiracy, attempted kidnapping, attempted robbery and resisting arrest with violence. The brief and argument of the appellant are addressed only to the convictions for conspiracy and attempted kidnapping.

Appellant’s first point is directed to the constitutionality of Section 787.01, Florida Statutes (1975), which defines the crime of kidnapping. Appellant urges that the statute is overbroad and is in violation of the due process clause and the Fourteenth Amendment. Our review of the record shows that no motion to dismiss the information for attempted kidnapping was made in the trial court. See Fla.R.Crim.P. 3.190. Also, there is no showing that the claim of unconstitutionality was presented to the trial court other than by way of a motion for judgment of acquittal made at the close of the State’s evidence or any showing that such motion was passed upon by that court. We, therefore, hold that it may not be presented for the first time on this appeal. Cf. Caves v. State, 302 So.2d 171 (Fla. 2d DCA 1974).

Appellant’s second point urges that the finding of guilty of conspiracy was not supported by the evidence. Our review of the record shows that this point is without merit.

Affirmed.

      . It should be noted that if the constitutionality had been properly raised, this appeal would be within the jurisdiction of the Supreme Court of Florida. See Art. V, § 3(b)(1), Fla.Const.


text:
    Mildred TOOMBS, Appellant, v. Modesto GIL et al., Appellees.
    No. 76-2188.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, George N. Jahn, Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellant.
    Shutts & Bowen and Antonio R. Zamora, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

In this ejectment action defendant appeals a final judgment finding that the occupational lot lines as set by the developer shall prevail instead of the original recorded subdivision plat lot lines.

Plaintiffs, Modesto and Felicia Gil, are the record title holders to lots 24 and 25 in block 6 of Flagami Subdivision. Defendant-appellant, Mildred Toombs, holds title to adjoining lots 21, 22 and 23, and defendants Pablo and Fidelina Evora (not parties to this appeal) hold title to adjoining lots 26 and 27. All the parties acquired title to their respective parcels by lot and block description according to the recorded plat of Flagami Subdivision and each lot measures 50 feet by 110 feet. It appears that the developer made a 10 foot error in locating the lot line markers and the Gils contend that they were being restricted to 40 feet by 110 feet by virtue of the fact that their neighbor on the left, defendant-appellant Toombs, was claiming the original recorded subdivision plat lines as the true boundary and the neighbors to the right, the Evoras, were claiming the occupational lines as determined by the original lot line marks set by the developer. As a result, the Gils filed the instant ejectment suit against the Evoras and Toombs. As the suit developed, it became clear that should the plat lines be found as the actual boundary, then the houses themselves, some of which had been there for 30 years, would actually be encroaching on the adjoining neighbors’ property. After the cause was tried non-jury, the trial judge entered final judgment as follows:

♦ * * * * *
“IT IS the finding of this Court that: “In this particular consolidated case occupational lines, as determined by the original lot line markers set by the developer and further determined by subsequent surveys based on occupation, shall prevail instead of plat lines.
“IT IS THUS .ORDERED AND ADJUDGED that:
“All parties involved in this action shall conform their respective property boundary lines to occupational lines as established above and remove all encroachments that may exist beyond said boundaries.
“DONE AND ORDERED in Chambers at Miami, Florida this 7th day of June, 1976.”
******

Defendant Toombs appeals therefrom. We are compelled to reverse.

Although the trial judge may have done equity between the parties, the plaintiffs in the case sub judice sought relief in the form of ejectment, an action at law. Both statutory and case law require that the judgment for a plaintiff in ejectment must state the quantity of the plaintiff’s estate and give a description of the land recovered. Section 66.031, Florida Statutes (1975); Lungren v. Brownlie, 22 Fla. 491 (1884); Gibbs v. McCoy, 70 Fla. 245, 70 So. 86 (1915). A judgment which fails to contain the above is fatally defective. Ayers v. Pullan, 68 Fla. 8, 65 So. 869 (1914); Florida Coca-Cola Bottling Company v. Robbins, 81 So.2d 193 (Fla.1955). The judgment appealed is fatally defective in this regard.

Before concluding we wish to point out that because of the developer’s 10 foot error in locating the lot line markers and because the houses appear to be encroaching on the adjoining neighbors’ property, we believe that a suit seeking a declaratory judgment including all parties which may be affected by the outcome, would be the course of action plaintiffs should pursue. See, e. g. Shaw v. Williams, 50 So.2d 125 (Fla.1950); State Bd. of Trustees of Internal Imp. Trust Fund v. Pineta Company, 287 So.2d 126 (Fla. 3d DCA 1973).

Judgment reversed.

      . There is a difference of 10 feet between the occupational and plat lines.


text:
    Michael SOSBY, Appellant, v. ALLSTATE INSURANCE CO., Appellee.
    No. 76-2253.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Brian R. Hersh, Miami, for appellant.
    Spencer & Taylor, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Lawrence v. Florida East Coast Railway Co., 346 So.2d 1012, 1014 (Fla.1977); Griffin v. General Guaranty Insurance Co., 254 So.2d 274 (Fla. 3d DCA 1971); Rubin v. Kapeli, 105 So.2d 28, 32 (Fla. 3d DCA 1958).


text:
    Joseph BAUM, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2275.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Joseph Baum was charged by information with two counts of robbery and one count of unlawful possession of a firearm during the commission of a felony. He was tried by jury, found guilty, convicted and sentenced to consecutive terms of life imprisonment in the state penitentiary for each of the robbery charges, and fifteen years imprisonment for the charge of unlawful possession of a firearm. TWo points are raised on this appeal.

The first point is that the court erred in permitting an expert witness to give an opinion based on latent fingerprints where the original objects from which the latent fingerprints were lifted, were not produced in court. This contention is without merit and directly controlled by our recent decision in Butler v. State, 348 So.2d 627 (Fla. 3d DCA 1977). Also see United States v. Sewar, 468 F.2d 236 (9th Cir. 1972); United States v. Herndon, 536 F.2d 1027 (5th Cir. 1976).

The second point is that the court erred in imposing separate consecutive sentences for robbery and for unlawful possession of a firearm, where both charges arose out of the same transaction. This sentencing question has been resolved adversely to the defendant. See Estevez v. State, 313 So.2d 692 (Fla.1975); Swyers v. State, 334 So.2d 278 (Fla. 3d DCA 1976); Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1976).

No error having been demonstrated by the defendant, the judgment and sentence are

Affirmed.


text:
    Clarence JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2344.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Section 948.06(1), Florida Statutes (1973).


text:
    Carl MORTON, Appellant, v. J. Paul MILLS, Appellee.
    No. 77-68.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Carl V. Morton in pro. per.
    J. Paul Mills in pro. per.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Appellant appeals a summary final judgment in favor of the appellee in an action on a foreign judgment.

The record on appeal discloses that there are genuine issues of material fact which have not been eliminated by the movant for summary judgment. Ratner v. Hensley, 303 So.2d 41 (Fla. 3d DCA 1974).

Reversed and remanded for further proceedings.


text:
    John LANE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-73.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Black & Denaro, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.

      Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See, e. g., Spinkellink v. State, 313 So.2d 666 (Fla.1975); Thomas v. State, 296 So.2d 503 (Fla. 3d DCA 1974); Laytner v. State, 239 So.2d 857 (Fla. 3d DCA 1970); Carroll v. State, 186 So.2d 834 (Fla. 4th DCA 1966); Wright v. State, 182 So.2d 264 (Fla. 3d DCA 1966); and Savage v. State, 156 So.2d 566 (Fla. 1st DCA 1963).


author: HENDRY, Judge.

text:
    Noah Paul SEGAL, Appellant, v. The STATE of Florida, Appellee.
    No. 77-338.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   HENDRY, Judge.

Appellant was charged by information with burglary of a dwelling with intent to commit grand larceny. At arraignment, he entered a plea of not guilty. A motion to suppress physical evidence and a motion to suppress confessions, admissions, and statements were filed. The motion to suppress the statements was granted, however, the motion to supress the physical evidence was denied. Appellant thereupon withdrew his prior plea and entered a plea of nolo con-tendere, reserving the right to appeal the denial of the motion to suppress the physical evidence. The trial court thereupon entered a finding of guilt, withheld adjudication, and ordered that appellant be put on probation. This appeal follows.

A trial court’s ruling on a motion to suppress comes to an appellate court clothed with a presumption of correctness and an appellate court should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in the light most favorable to sustain the trial court’s conclusion. Jester v. State, 339 So.2d 242 (Fla. 3d DCA 1976); Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975).

With the above guidelines in mind, it is our opinion that, after carefully reviewing the record and briefs, there was competent substantial evidence to support the trial judge’s conclusion that the two arresting officers, in furtherance of their investigative duties, viewed and reasonably identified the alleged stolen item (television set) from their lawful vantage point at the entrance to appellant’s residence when, in response to the officers’ knocking, appellant opened his door revealing the television set in “plain view.” Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Bailey v. State, 319 So.2d 22 (Fla.1975); State v. Ashby, 245 So.2d 225 (Fla.1971); see also Moore v. Wainwright, 248 So.2d 262 (Fla. 1st DCA 1971) and State v. O’Steen, 238 So.2d 434 (Fla. 1st DCA 1970).

Accordingly, the judgment of the trial court is hereby affirmed.

Affirmed.


text:
    HERBIN PAINT & BODY WORK, Appellant, v. Irving ISICOFF, Appellee.
    No. 77-428.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Abramson, Scremin, Mendigutia & Lib-man, Miami, for appellant.
    Gerald Silverman, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

This appeal arises out of an action by appellant-tenant against appellee-landlord for wrongful eviction. The issues were tried non-jury in the Circuit Court of Dade County. A judgment for $1,850.00 compensatory damages was entered in favor of appellant. The claim for punitive damages was disallowed.

Appellant contends that the trial court’s award of compensatory damages was inadequate and contrary to the evidence and that it was error to disallow the claim for punitive damages.

We have carefully considered the points on appeal in the light of the record and briefs, and have concluded that no reversible error has been demonstrated. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); American International Land Corporation v. Hanna, 323 So.2d 567 (Fla.1975); Camacho Enterprises, Inc. v. Better Construction, Inc., 343 So.2d 1296 (Fla.3d DCA 1977).

Affirmed.


text:
    Sammie Lee JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-513.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Sammie Lee Jackson, in pro per.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and NATHAN, JJ.
   PER CURIAM.

Defendant, Sammie Lee Jackson, appeals the summary denial of his motion to vacate his conviction for robbery and aggravated assault on the ground of ineffective assistance of counsel.

Upon receipt of a motion to vacate judgment and sentence, the trial court must examine the record and if the record conclusively demonstrates that the movant is not entitled to relief, the motion may be denied without a hearing. State v. Weeks, 166 So.2d 892 (Fla.1964); State v. Barton, 194 So.2d 241 (Fla.1967); Brumley v. State, 224 So.2d 447 (Fla. 4th DCA 1969). Absent a showing that the trial was a mockery or a farce or that defense counsel was necessarily incompetent, a defendant is not entitled to post conviction relief on the claim of inadequate representation by trial counsel. McCrae v. State, 313 So.2d 429 (Fla. 3d DCA 1975); Potts v. State, 242 So.2d 729 (Fla. 2d DCA 1971); Meinsen v. State, 240 So.2d 188 (Fla. 2d DCA 1970). A review of the record absolutely refutes defendant’s contention that he was inadequately represented or his trial was a mockery or a farce. As a matter of fact, at the defendant’s insistence that the public defender’s office could not do the job, the court appointed private counsel as a special public defender. In addition, one of the grounds raised to demonstrate ineffective assistance of counsel was the introduction of a certain photograph of the defendant from which the victim initially identified him. However, we note that the issue was raised in defendant’s direct appeal and disposed adversely to his position. See Jackson v. State, 338 So.2d 231 (Fla. 3d DCA 1976).

Affirmed.


text:
    Glimmert BECKHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 77-765.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    James R. Birkhold, Florida Legal Services, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Thomas v. State, 206 So.2d 475 (Fla. 2d DCA 1968); Brown v. State, 227 So.2d 527 (Fla. 1st DCA 1969); Kish v. State, 253 So.2d 889 (Fla. 3d DCA 1971); Phillips v. State, 313 So.2d 428 (Fla.3d DCA 1975).


text:
    DINER’S CLUB, INC., Appellant, v. Evelio L. PEREZ, Appellee.
    No. 77-912.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Robert Bakerman, Miami, and Kenneth Sandler, Deerfield Beach, for appellant.
    Evelio L. Perez, in pro. per.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff in the trial court, appeals a dismissal with prejudice after failing to comply with several court orders.

We have considered the arguments advanced on behalf of the appellant, but find them not to be well-taken and the order under review to be within the discretion of the trial judge. However, we modify the order of dismissal by striking therefrom “with prejudice”.

Affirmed as modified.


author: KEHOE, Judge.

text:
    FINLEY-GREEN JOINT VENTURE, etc., Appellant, v. STATE of Florida, acting By and Through the DEPARTMENT OF NATURAL RESOURCES, Appellee.
    No. 77-1063.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.

      Goodwin, Ryskamp, Welcher & Carrier and Arthur M. Simon, Miami, for appellant.
    Jack W. Pierce and Wings S. Benton, ■ Tallahassee, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant Finley-Green Joint Venture, etc., plaintiff below, brings this interlocutory appeal from an order dated May 13,1977, entered by the trial court granting appel-lee’s, defendant below, motion to dismiss for improper venue and transferring the cause to the Circuit Court of Leon County. The sole point raised by this appeal is whether the trial court erred by dismissing appellant’s complaint for improper venue and transferring the cause to the Circuit Court of Leon County. We have concluded that, under the facts of this case, the trial court did not err. See, e. g., Larson v. Cooper, 75 So.2d 757 (Fla.1954); McCarty v. Lichtenberg, 67 So.2d 655 (Fla.1953); Flanagan v. Department of Health and Rehabilitative Services, 314 So.2d 235 (Fla. 4th DCA 1975); Ringling Bros.-Barnum and Bailey Combined Shows, Inc., v. State, 295 So.2d 314 (Fla. 1st DCA 1974); and Amelia Island Mosquito Control District v. Tyson, 150 So.2d 246 (Fla. 1st DCA 1963). Therefore, the order appealed is affirmed.

Affirmed.


text:
    Charles Albert MULLINS, Appellant, v. Frank MARKS, Appellee.
    No. 77-1075.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Harold M. Braxton, Miami, for appellant.
    Daniel Mones, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Appellant, defendant below, takes this interlocutory appeal from an “order denying motion to quash process and service of process.” We reverse.

Appellant, a North Carolina resident, was served with process while waiting in the anteroom of a Broward Circuit Court Judge’s chambers to testify. The suit being litigated at the time of service was a post-dissolution of marriage matter between appellant and his former wife. The complaint served on appellant in the courthouse was filed by appellant’s ex-wife’s attorney and was based upon defamation of character.

In that there was no identity of parties and issues between the suit being litigated and the defamation action, appellant was entitled to immunity from service of process while attending court; for a reasonable time both before and after the court proceedings; and while returning to his North Carolina residence. Lienard v. DeWitt, 153 So.2d 302 (Fla.1963); State ex rel Ivey v. Circuit Court of Eleventh Judicial Circuit, 51 So.2d 792 (Fla.1951); Rorick v. Chancey, 130 Fla. 442, 178 So. 112 (1937); Bruner v. Robins, 191 So.2d 567 (Fla. 3d DCA 1966).

Reversed.


text:
    Gaspar NAGYMIHALY and Veronica Nagymihaly, his wife, Appellants, v. Phillip P. ZIPES, Appellee.
    No. 77-1500.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Quinton, Leib & Lummus and W. E. Dun-wody, III, Miami, for appellants.
    Philip A. Holtsberg, Coconut Grove, Abbott and Frumkes, P.A., Miami Beach, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and NATHAN, JJ.
   PER CURIAM.

Defendants, Gaspar Nagymihaly and his wife, Veronica, appeal an adverse final summary judgment in an action for specific performance of a settlement agreement.

Since June 1974 the parties to this appeal have been engaged in extensive litigation involving four lawsuits (case nos. 74-15778, 74-32455, 74-14452 and 75-14486). In case no. 75-14486 a final judgment of foreclosure was entered in favor of Phillip Zipes, plaintiff-appellee, and a foreclosure sale was scheduled for July 17, 1975. Prior to the sale, the attorney for the Nagymihalys and Zipes’ attorney entered into a settlement agreement which specifically provided that cancellation of the foreclosure sale was the consideration therefor. The sale was cancelled, but the Nagymihalys failed to perform their obligations under the agreement. Subsequently, on May 27,1976 Zipes filed the instant suit to enforce the agreement. The Nagymihalys defended on the ground that their attorney acted in excess of his authority in entering into the settlement agreement on their behalf. Thereafter, Zipes moved for summary judgment and after hearing, the trial judge entered summary judgment for Zipes. We affirm.

The court may find as a matter of law that where a party accepts the benefits of a settlement or compromise of his case and he knows or in the exercise of due diligence should have known all the facts concerning that settlement (as in the case at bar), he ratifies that settlement by the acceptance of those benefits whether the settlement in the first instance was unauthorized by him or not and he is thereafter estopped to attack the settlement and the judgment entered thereon. Mungin v. Florida East Coast Railway Co., 318 F.Supp. 720, 735 (M.D.Fla.1970), aff’d 441 F.2d 728 (5th Cir. 1971), cert. den. 404 U.S. 897, 92 S.Ct. 203, 30 L.Ed.2d 175 (1971). See also Branford State Bank v. Howell Co., 88 Fla. 493, 102 So. 649 (1924) and 2 Fla.Jur.2d Agency and Employment §§ 57, 58 (1977) and cases cited therein. It is clear that the Nagymihalys ratified the settlement agreement and accepted the benefit thereunder of cancellation of the foreclosure sale which was the consideration for the agreement. In addition, they did not repudiate the agreement within a reasonable time; not until Zipes filed the instant specific performance action some 10 months after execution of the agreement and cancellation of the foreclosure sale did the Nagymihalys for the first time allege that their attorney acted in excess of his authority in executing the agreement on their behalf.

Judgment affirmed.


text:
    The STATE of Florida, Appellant, v. Peter Henry CLAYTON, Appellee.
    No. 77-1537.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Robert L. Shevin, Atty. Gen., Richard E, Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    A. John Goshgarian and Howard J. Hoch-man, Miami, for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of State v. Dayton, 215 So.2d 87 (Fla.3d DCA 1968); Glasgow v. State, 292 So.2d 370 (Fla.4th DCA 1974); State v. Barnett, 344 So.2d 863 (Fla.2d DCA 1977).


author: ERVIN, Judge.

text:
    PENSACOLA ASSOCIATES, Appellant, v. BIGGS SPORTING GOODS COMPANY, Appellee.
    No. DD-485.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1978.

      Donald A. Gifford and John W. Puffer, III, of Shackleford, Farrior, Stallings & Evans, Tampa, for appellant.
    W. H. F. Wiltshire of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lee.
   ERVIN, Judge.

Pensacola Associates appeals an order dismissing its complaint seeking both specific performance of a certain lease provision entered into between it and Biggs, and damages for violation of the provision. The order stated that section 6.12(iv) of the lease was an unlawful restraint of trade as prohibited by Section 542.12(1), Florida Statutes (1975).

During the first four years after the execution of the lease, Biggs opened a similar store in a shopping center which, the complaint alleged, was within the three mile radius described in the contract. It also alleged that despite repeated demands by Pensacola Associates, Biggs refused to enter into a supplemental agreement to include the gross sales of the store in University Mall with the gross sales of the Biggs store in Cordova Mall as required by section 6.12(iv).

We have found no Florida decisions applying Section 542.12 to covenants within a lease. Both parties agree that 542.12(1) controls the applicable lease provisions. It is necessary for us to determine whether the broad language in Section 542.12(1) providing “[e]very contract by which anyone is restrained from exercising a lawful, profession, trade . . . otherwise than is provided by subsections (2) and (3) hereof, is to that extent void . . . ” permits any reasonable exceptions. Pensacola Associates argues the restraint imposed by the lease should be subjected to a reasonable standard test. Biggs contends subsection (1), allowing no express exceptions, must be construed so that a contract which in any manner restrains trade is void as a matter of law.

There are very few Florida cases interpreting the effect of subsection (1). In Bergh v. Stephens, 175 So.2d 787 (Fla. 1st DCA 1965), we strictly construed the scope of subsection (1) as applied to a restrictive covenant in a doctor’s employment contract which prohibited him from competing within a ten mile radius for five years following termination of his employment. We stated the doctor was not involved in a “business” as referred to in Section 542.12(2), but was instead engaged in a profession as provided by Section 542.12(1). We stated such “contracts are void to the extent of the restrictive provisions unless those contracts are held to fall in the exceptional contracts described in subsection (2).” Id. at 789. We concluded subsection (2) had no application because it made no reference to a profession, as did subsection (l). There being no exceptions under subsection (1), the contract was declared an illegal restraint of trade.

The ruling in Bergh was later modified by the Florida Supreme Court in Akey v. Murphy, 238 So.2d 94 (Fla.1970), holding that subsection (3), pertaining to the dissolution of partnerships, applied to a physician’s profession — not subsection (1) — so that a test of reasonableness would be employed and the contract entered into between the parties was enforced.

A year later the court, construing a pension plan which was alleged violative of Section 542.12(2), invalidated a provision in the plan as unreasonable which permitted the employer to suspend or terminate benefits to any retiree who, following his retirement, engages in a business in competition with the employer. Flammer v. Patton, 245 So.2d 854 (Fla.1971). The opinion was careful to point out that Florida courts have “historically . . . been hostile to contracts of any nature which place restraints upon former employees.” Id. at 857. Since the ease involved a construction of subsection (2), pertaining to employment contracts, it does not control a contract such as here which is subject to the provisions of subsection (1). The court’s opinion in Flam-mer, however, as well as in Akey v. Murphy, supra, is instructive since it states that when a Florida statute is adopted from a statute of another state, we should adopt that state’s judicial construction of the statute. In Murphy the court relied upon cases from California and Oklahoma which have statutes similar to Section 542.12.

Complying with the Florida Supreme Court’s dictates, we consult those states’ decisions which have construed statutes similar to subsection (1). For example, in Great Western Distillery Products, Inc. v. John A. Wathen Distillery Co., 10 Cal.2d 442, 74 P.2d 745 (1937), the supreme court sustained an agreement attacked as viola-tive of the state’s antitrust statute (Section 1673 of the Civil Code), which had given one party the exclusive right to purchase warehouse receipts from the other party. In turn, the buying party could trade in no other distillery warehouse receipts. In applying a reasonableness standard to the restraint, the court stated:

“In our view of the contract, its terms indicate that it was entered into, not for the purpose of restricting any trade or business, but for the purpose of promoting one. It is true the contract makes the plaintiff, except one other, the exclusive purchaser in California of the defendant’s warehouse receipts, but obviously, both the purpose and effect of the contract are, not to restrict the sale of the defendant’s receipts, but to create an instrumentality by which the receipts will be exploited and sold. The contract does not restrain anyone from exercising a trade or business of any kind within the purview of section 1673 of the Civil Code.
Statutes are interpreted in the light of reason and common sense and it may be stated as a general rule that courts will not hold to be in restraint of trade a contract between individuals, the main purpose and effect of which are to promote and increase business in the line affected, merely because its operations might possibly in some theoretical way incidentally and indirectly restrict trade in such line. This view has often been sustained by the Supreme Court of the United States in analogous cases. See numerous cases cited and digested in Ripy & Son v. Art Wall Paper Mills, 41 Okl. 20, 136 P. 1080, 51 L.R.A., N.S., 33.” 74 P.2d at 746. (Emphasis added.)

Upon rehearing, the court cited numerous cases to the effect: “The decisions in this state have recognized and applied the distinction made by authority elsewhere that if the public welfare be not involved and the restraint upon one party be not greater than protection to the other requires, the contract will be sustained though it in some degree be said to restrain trade.” Id. at 748.

Similarly a covenant agreed upon by a store lessee and a shopping center lessor which provided no additional store space would be leased to competitors for the sale of men’s and boys’ ware was held not in violation of the state’s restraint of trade statute (Title 15, Section 217, Oklahoma St.1961). Utica Square, Inc. v. Renberg’s Inc., 390 P.2d 876 (Okl.1964). The court quoted with approval the following language from Keating v. Preston, 42 Cal. App.2d 110, 108 P.2d 479, 486:

“ ‘When a covenant in a lease prohibiting a lessor from demising other property in the same building or vicinity to be used for conducting a competing business tends to create a monopoly in the lessee or constitutes a limitation in restraint of trade, it will be strictly construed against the lessee. . . . The modern trend of authorities, however, is to construe such statutes as Section 1673 of the Civil Code, and contracts between individuals intended to promote rather than to restrict a particular business “in the light of reason and common sense” so as to uphold reasonable limited restrictions.’ ” Id. at 880-881. (Emphasis added.)

Federal courts interpreting section one of the Sherman Antitrust Act (15 U.S.C. § 1) have refused to apply a per se rule voiding all contracts affecting trade but have interpreted the Act as invalidating only those contracts or combinations unreasonably restraining competition. E. g., Northern Pac. Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); Savon Gas Stations No. 6, Inc. v. Shell Oil Company, 309 F.2d 306 (4th Cir. 1962), cert. den., 372 U.S. 911, 83 S.Ct. 725, 9 L.Ed.2d 719 (1963); Goldberg v. Tri-States Theater Corp., 126 F.2d 26 (8th Cir. 1942).

Unquestionably the provisions of section 6.12(iv) of the lease affected Biggs Sporting Goods Company’s trade. Still we reject Biggs’ argument that Section 542.-12(1) must be mechanically applied without considering the circumstances or the reasonableness of the restriction. It is obvious that the purpose of lease clauses such as section 6.12(iv) is to protect the developer’s percentage rentals by insuring that the tenant devotes his best efforts to generating sales within the center. There was no outright prohibition against Biggs operating a similar store within the three miles radius, rather that the gross sales from such store be added to the gross sales of the store within the shopping center for the purpose of computing the percentage rentals. Prima facie this restriction appears reasonable. Restrictive covenants, not involving any application of anti-trust statutes, have been held enforceable covering radii of two miles, Arnold Bros. v. Kreutzer and Wasem, 67 Iowa 214, 25 N.W. 138 (1885); 20 miles, Smith v. Durkee, 166 Mich. 484, 131 N.W. 1116 (1911); in the same city, Massari v. Salciccia, 102 Fla. 847, 136 So. 522 (1931) or county wide, Tobler v. Austin, 22 Tex.Civ.App. 99, 53 S.W. 706 (1899).

There may be here a question of fact whether the restriction affecting similar stores operating within a three mile radius from the center was or was not reasonable insofar as its being necessary to the protection of Pensacola Associate’s rentals. This is a matter which we do not need to make inquiry at this juncture, however. Biggs is free to present evidence bearing upon the question of the reasonableness of the restraint under the circumstances of the case. We simply hold section 6.12(iv) is not viola-tive as a matter of law of Section 542.12(1).

REVERSED.

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

      . “Tenant further covenants and agrees that it will not engage, directly or indirectly, nor through a subsidiary or affiliated corporations, nor through partnerships or other commercial entities, and that no officer or director and no shareholder owning more than five (5%) per cent of the stock of Tenant, if Tenant be a corporation, will engage in the same or in any business similar to that to be conducted on the Demised Premises within a radius of three (3) miles from the extreme limits of Landlord’s Premises during the term of this Lease and all renewals and extensions thereof. The restrictions of this Section shall not apply to any such business of Tenant open and doing business within said radius as of the date of the execution of this Lease. Such restriction shall also not apply to any such business of Tenant opened for business to the public within said radius after the date of the execution of this Lease, provided that Tenant agrees in writing with Landlord that the gross sales made with respect to said business shall be added to the gross sales from Tenant’s business in the Demised Premises for the purpose of computing percentage rental under this Lease; provided further that gross sales shall not be included from any store opened after four (4) years from date hereof within said three (3) mile radius, but the minimum annual rental required in Section 5.10 hereunder shall be increased by an amount equal to thirty-five ($.35) cents per square foot of the floor area in the demised premises (as specified in Article II hereof) commencing on the date said store shall open for business.”

      . At common law, restrictive agreements were sustained if they were (1) ancillary to a valid contract; (2) necessary to protect the covenan-tee’s enjoyment of the contract benefits, and (3) not primarily intended to restrain competition. Mitchel v. Reynolds, 24 Eng.Rep. 347 (Ch. 1711). See United States v. Addyston Pipe & Steel Co., 85 F. 271, 282-83 (6th Cir. 1898), modified and aff’d., 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). This is the modern rule. See cases cited in Annot., 97 A.L. R.2d 4, pp. 14-15 (1964).

      . Later, however, in Citizens National Bank of Orlando v. Shell Oil Co., 232 So.2d 230 (Fla. 4th DCA 1970), the Fourth District Court of Appeal held that Sec. 542.12(1) was not per se violated by a restrictive covenant prohibiting the grant- or from selling or advertising gasoline on or from property then or afterward owned by the grantor.

      . Earlier California cases had construed the statute (§ 1673, Civil Code, now § 16600, California Business and Professions Code) mechanically, so as to void any restraint upon trade. E. g., Vulcan Powder Co. v. Hercules Powder Co., 96 Cal. 510, 31 P. 581 (1892); Merchants’ Ad-Sign Co. v. Sterling, 124 Cal. 429, 57 P. 468 (1899); Chamberlain v. Augustine, 172 Cal. 285, 156 P. 479 (1916).

      . A strong argument has been advanced that lease clauses which restrict tenants in shopping centers from operating competing stores within a certain specified distance from the center should be upheld as reasonable restraints since they protect the developer’s percentage of rentals by insuring that his tenants devote their best efforts to generating sales within the center. The Antitrust Implications of Restrictive Covenants in Shopping Center Leases, 86 Harv. L.Rev. 1201, 1233 (1973) (footnote no. 127). While a second store operated by the same tenant within the same trade area might be at a competitive disadvantage to the store within the center it is still likely to siphon off at least some customers from the center, resulting in decreased sales and decreased income. Ibid. Additionally, it is suggested that instead of an outright ban against the tenant’s operation of a similar store within a given distance from the center, a less restrictive means could be employed for protecting the developer’s rentals by providing “the lessor can add the gross sales of any store within the proscribed area to the gross sales of the leased store within the center for the purpose of computing the lessee’s rental payments.” Id. at 1234. Consequently “it would appear that the restriction is reasonably necessary in order to protect the main leasing transaction.” Ibid.


author: MILLS, Judge.

text:
    Ernest Eugene TILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. GG-24.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1978.

      Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury convicted Tillman of armed robbery. He appeals contending the trial court erred in denying his motion for judgment of acquittal. The motion was based on the State’s failure to prove knowledge on his part.

There was no evidence that Tillman personally committed the crime. The State had to prove Tillman’s knowledge of the actual perpetration of the crime. Hornbeck v. State, 77 So.2d 876 (Fla.1955). This the State did by circumstantial evidence.

There was evidence that Tillman drove the actual participants in the crime to secure a shotgun and shells. He was present when they discussed what they were going to do. He drove them to the trailer park where the victim lived, dropped them off and then drove out to the main road several hundred yards away where he parked the car with the motor running. After commission of the crime, the actual participants returned to the car and Tillman was given a portion of the robbery proceeds. This evidence was sufficient for a jury to infer knowledge.

As stated in Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974):

“. . . the test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or the appellate court, the evidence fails to exclude every reasonable hypothesis but that of guilt but, rather, whether the jury might reasonably so conclude. Vick v. United States, 216 F.2d 228 (5th Cir. 1954). The jury is the pivotal point at which evidence is aimed, not the courts.”

The judgment of guilt is affirmed.

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


author: RYDER, Judge.

text:
    Lorita J. HAGIN, Appellant, v. T. Richard HAGIN, Appellee.
    Nos. 77-153, 77-683.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1978.

      Harry M. Hobbs, Tampa, for appellant.
    D. J. Bradshaw of Bradshaw, Wagner & Mountjoy, Inverness, for appellee.
   RYDER, Judge.

The appellant/wife appeals certain aspects of a final judgment of dissolution of marriage and by way of post-judgment interlocutory appeal attacks an order confirming a partition sale of certain real and personal property. These two appeals were consolidated by order of this court.

Appellant/wife’s contentions relating to the partition sale are without merit and, thus, we affirm the post-judgment order entered by the trial judge with respect to that aspect of these appeals.

However, we do find merit with appellant/wife’s arguments in regards to the final judgment of dissolution of marriage.

On June 25,1976 appellee/husband [hereinafter “husband”] filed a petition for dissolution of marriage. Appellant/wife [hereinafter “wife”] answered and filed a coun-terpetition seeking alimony and attorney’s fees. On July 21, 1976 the trial court entered a final judgment of dissolution reserving and retaining jurisdiction to determine, inter alia, temporary and permanent alimony, attorney’s fees and costs to the wife.

On December 17,1976 a final hearing was held. The parties had made no property settlement. Pursuant to an agreement of the parties the court took testimony for the purpose of determining ownership of numerous items of household goods and other personalty. The husband testified at length as to which items of furniture and other personal property in the marital home were jointly owned and which were owned by him alone. Wife then testified as to her ownership of certain items of personalty and further testified that the household goods were purchased for the joint use of the parties during the marriage.

Wife then attempted to testify as to her need for alimony. Husband’s attorney objected on the grounds that the wife had not filed her financial affidavit as required by R.Civ.P. 1.611(a). The wife’s attorney was sworn and admitted that he did not file the wife’s financial affidavit with the court pri- or to trial. He stated he mailed the wife’s financial affidavit to husband’s attorney some two months before, but admitted the “affidavit” was not signed by the wife, nor was it dated, nor did it bear a notary seal. At this juncture, wife’s attorney requested a continuance in order to comply with said rule but the court denied his motion. The court sustained the husband’s objection and ruled that the wife was precluded from pursuing the matters of alimony and attorney’s fees and would not allow her to testify in that regard.

Thereafter, on December 29, 1976, final judgment was entered dissolving th'e marriage, denying the wife alimony and attorney’s fees, awarding the vast majority of household goods and personalty to the husband, a few such items to the wife, and ordering a partition sale on January 19, 1977 of the jointly owned real property and certain personal property which the court found to be indivisible. From this judgment wife appeals.

The first point on appeal is whether or not the lower court properly awarded to the husband personal property acquired during the marriage primarily because he had paid for these items of personal property. We agree with the wife that this was error and reverse.

Most of the items awarded to the husband were household goods obviously purchased for joint use by both parties duripg the pendency of the marriage such as blenders, pots and pans, beds, television sets, etc. The majority of the items contested were, of course, purchased by the-husband who was the sole wage earner, save for a brief period when the wife was employed as a janitor in the husband’s law office, but it cannot reasonably be argued that all these items were the sole property of the husband. The record patently discloses the only basis on which the trial court could have awarded the bulk of this property to the husband was for the sole reason that he paid for these items, and there the trial judge went astray.

By its very nature, this type of personalty [household goods and furnishings] is owned by the husband and wife during marriage as tenants by the entire-ties, even though there generally is no written evidence of title. When property is acquired with funds of the husband and then taken in the joint names of the husband and wife, creating an estate by the entireties, it has long been presumed that a gift to the wife is intended as to her undivided half interest therein. See Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727 (1941); Lindquist v. Lindquist, 351 So.2d 391 (Fla.2d DCA, filed November 4, 1977). Upon dissolution of marriage, the former spouses automatically become tenants in common as to this personalty by operation of Section 689.15, Florida Statutes (1975). See Cummings v. Cummings, 330 So.2d 134 (Fla.1976). Each then owns an undivided half interest in the whole as a tenant in common, subject to division by a property settlement agreement by them or by partition sale or division in kind by the court when prayed for or agreed to by the parties, as here. Compare Ball v. Ball, 303 So.2d 32 (Fla.2d DCA 1974), and Steinhauer v. Steinhauer, 252 So.2d 825 (Fla.4th DCA 1971), with Ball v. Ball, 335 So.2d 5 (Fla.1976).

In light of the foregoing principles of law, the testimony of husband/appellee that “I paid for it” was entirely incompetent to rebut the aforesaid presumption of a gift and was thus an insufficient basis upon which to predicate an award of a vastly superior share or interest in the items of personalty acquired for the undivided joint use within the marital home.

We now turn to a somewhat more disquieting question, the trial court’s refusal to allow wife to testify regarding alimony. Fla.R.Civ.P. 1.611(a) requires that one who seeks alimony must serve a financial affidavit at least ten days before trial. When wife’s attorney broached the subject of alimony by offering the testimony of the wife, husband’s attorney objected stating the wife had failed to comply with the letter of Rule 1.611(a). The record reflects that approximately two months prior to the final hearing, wife’s attorney had filed a partially completed financial statement with husband’s attorney. Further, when the failure to file the affidavit was disclosed by husband’s attorney, wife’s attorney repeatedly moved for a continuance in order to comply with the rule but the trial court denied these motions, despite the fact that there was no showing of prejudice to husband and that it had earlier offered to husband’s attorney a continuance of the cause in a matter relating to the husband’s interests.

Although the language of the rule is mandatory, the wife’s attorney attempted, in part, to comply. It is obvious from the record that wife’s attorney was under the impression he had complied with the rule and thus his failure to technically comply was not willful. Taking the entire record into account, we believe the trial judge’s denial of wife’s motion to continue was too severe and an abuse of his discretion which resulted in a marked injustice to a woman who had been married to her husband for eighteen years, since she was fourteen years old, with little or no further education or work experience since the ninth grade.

Accordingly, we reverse and remand the final judgment appealed from [Case No. 77-153] for further proceedings not inconsistent with this decision. The post-judgment order appealed from [Case No. 77-683] is affirmed.

BOARDMAN, C. J., and DANAHY, J., concur.

      . These cases deal with real property, rather than personalty, but we perceive no rational basis to distinguish between realty and personalty in this regard. There is a dearth of appellate decisions discussing partition in kind of household personalty, and we consider the above-cited cases involving realty to be both instructive and persuasive. We note also that § 689.15, Fla.Stat. (1975) expressly applies to both real estate and personal property.


author: SCHEB, Acting Chief Judge.

text:
    James COLE, Appellant, v. STATE of Florida, Appellee.
    No. 77-431.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Appellant was convicted of possession of a barbiturate pursuant to Section 893.-13(l)(e), Florida Statutes (1975). The trial court withheld adjudication and placed him on probation for three years. On this appeal appellant contends the trial court erred when it reinstructed the jury on the essential elements of the offense, but refused to include in the reinstruction the requirement that the state must prove knowledge of possession on the part of appellant. We agree with appellant and reverse.

Appellant testified in his own behalf. He said that on the evening of his arrest he had visited a bar with several friends, and that as he left he had picked up some napkins from the table where he had been sitting and drinking. Appellant claimed he was suffering from a cold and intended to ii6e the napkins as handkerchiefs for his runny nose. Shortly after leaving the bar, appellant was arrested for drinking on a public street in violation of a municipal ordinance. Appellant testified that when he - was searched by the police officer the napkins were taken from his pocket, and the capsule was found in the napkins. Appellant denied knowing that the capsule was there, and surmised that it must have been placed there by one of the many visitors'to his table while he was at the bar. Thus, appellant framed his defense as one of unwitting possession of the contraband found on his person.

At the conclusion of the evidence, the trial judge read to the jury the following Standard Jury Instruction on actual possession:

To possess means to have personal charge of or exercise the right of ownership, management or control over the thing possessed. If a thing is in the hand or on the person or in a bag or container in the hand or on a person or is so close as to be within ready reach and is under the control of the person, it is in the actual possession of that person.

Appellant submitted an additional instruction that was intended to inform the jury that it was necessary for the state to prove that he actually knew he possessed the capsule. The trial court declined to give the requested instruction, but did instruct the jury:

[I]n addition, if you find that the defendant actually knew that this pill was on his person, then he did have the necessary knowledge to possess it.

While appellant sought a more amplified instruction on unwitting possession, he recognizes the foregoing was sufficient to instruct the jury on the requirement of scien-ter, /. e., knowledge on appellant’s part of the presence of the contraband on his person.

After commencing its deliberations the jury returned to ask a question, at which time the following dialogue took place:

THE COURT: I understand that you have a question for the Court?
JUROR NUMBER ONE: Yes, we do. It’s a question over the word “control.” Possession, yes, but control, we don’t know exactly what that word means.
THE COURT: All right. I am going to reread the definition to you of possession. You pay strict attention.

The judge then reread the actual possession instruction, but omitted the additional instruction on specific knowledge that he had previously given. Defense counsel objected to this omission, but to no avail. Thereafter, the jury returned a verdict of guilty as charged.

Appellant contends, and we agree, that the added instruction on knowledge originally given by the court was essential to make the instruction on possession com-píete. A literal application of just the standard instruction on actual possession would have allowed the jury to find appellant guilty of possession, even if such possession was unwitting. Such a finding would be unwarranted. See Sindrich v. State, 322 So.2d 589 (Fla. 1st DCA 1975); Schaufele v. State, 269 So.2d 400 (Fla. 4th DCA 1972). The trial court’s additional charge clarified the issue by explaining to the jury that appellant had to have actual knowledge of the capsule’s presence.

In Wilson v. State, 344 So.2d 1315 (Fla. 2d DCA 1977), we emphasized the need, upon request, for a trial judge to instruct on scienter or knowledge where a defendant denies actual knowledge of being in possession of proscribed items. There the defendant, who was tried for carrying a concealed weapon, testified that the gun found under his car seat had been placed there by someone else without his knowledge. The trial court refused defense counsel’s requested instruction to the effect that the state was required to prove that the defendant had knowledge of the presence of the gun. In reversing, Judge Grimes, speaking for this court, opined, “[Pjroof of knowledge of the presence of the firearm was essential to a conviction for carrying a concealed firearm. If it were not so, it would be virtually impossible to sustain the defense of a person who contends he was ‘framed.’ ” 344 So.2d at 1317.

In the instant case the Standard Jury Instruction alone did not adequately explain the necessary element of actual knowledge, as the trial judge recognized. Therefore, it was necessary to give, as the court did, some added instruction to clarify the state’s burden of proof.

Later, when the jury interrupted its deliberations to seek further guidance from the court, the trial judge repeated only the actual possession instruction and not the additional instruction on knowledge. When a jury returns to the courtroom and asks to be reinstructed, the trial court should ordinarily limit its reinstructions to whatever is necessary to answer the jury's specific question. But the additional charge must be complete in respect to the subject on which the jury requests reinstruction; otherwise, a partial instruction can lead to undue emphasis on the part given as against the part omitted. Hedges v. State, 172 So.2d 824 (Fla.1965); Reynolds v. State, 332 So.2d 27 (Fla. 1st DCA 1976); Faulk v. State, 296 So.2d 614 (Fla. 1st DCA 1974).

In our judgment it was essential for the jury, once it was reinstructed on possession, to have had the benefit of the instruction on knowledge; without it, under the circumstances of this case, the instruction on possession was incomplete. We, therefore, hold the trial court erred in refusing to completely reinstruct on the issue of possession as related to appellant’s defense.

The judgment and sentence of the trial court is reversed and appellant is awarded a new trial.

OTT and DANAHY, JJ., concur.

      . The prefatory note to the standard instruction relating to drug abuse offenses explains the impracticality of publishing specific instructions as to all acts proscribed by Section 893.-13, Florida Statutes. This emphasizes the need for the trial bench to fashion additional specific instructions where required.


text:
    Martha B. MILLS, wife, Appellant, v. E. Richard MILLS, Jr., Appellee.
    Nos. GG-166, GG-238.
    District Court of Appeal of Florida, First District.
    Jan. 12, 1978.

      Nat M. Turnbull and Lynn James Hinson of Turnbull, Abner & Daniels, Winter Park, for appellant.
    E. Richard Mills, Jr., in pro per.
   PER CURIAM.

Subsequent to the mandate having issued in Mills v. Mills, 339 So.2d 681 (Fla. 1st DCA 1976), the respondent in the original proceedings, Martha B. Mills, filed a motion to correct the original order granting motion for judgment on the pleadings which had been affirmed in the prior opinion. This motion was filed on March 30, 1977, some thirteen months after the entry of the original judgment on the pleadings, and sought attorney’s fees for defense in the trial court of the original motion to modify final judgment. The trial court held that it had no jurisdiction to grant the relief sought. This is an appeal from that ruling.

The appellant inartfully pled a claim for attorney’s fees in the original proceeding in that she only referred to the fact that she had retained a law firm to represent her and had agreed to pay them a reasonable fee. She made no prayer for an award of attorney’s fees and she did not allege her need or the appellee’s ability to pay. See Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977). When the original petition for modification was under advisement, appellant’s attorney declined the court’s invitation to amend her pleadings but did request the opportunity to be heard on attorney’s fees if the court ruled in her favor. Whether the court’s failure to rule on the question of attorney’s fees or to retain jurisdiction of that subject could have been reversed on appeal is moot because no appeal was taken on this issue.

Thus, appellant’s remedy, if any, must be under Fla.R.Civ.P. 1.540. Subsection (a) of the rule permits clerical mistakes to be corrected at any time, but the failure to include a ruling on attorney’s fees can hardly be said to be a mistake which is clerical in nature when there is no indication that the court ever intended to pass on the issue of attorney’s fees when the original order was entered. See De Baun v. Michael, 333 So.2d 106 (Fla.2d DCA 1976). If a mistake was made, it would have been one which could only be reached under subsection (b)(1), and this portion of the rule provides that the motion must be filed within one year after the entry of the judgment from which the relief is sought. Cf. Wilder v. Wilder, 251 So.2d 311 (Fla. 4th DCA 1971).

Therefore, the order denying the motion relating to attorney’s fees and to correct order, etc. be and the same is hereby affirmed.

AFFIRMED.

BARKDULL, Jr., Acting C. J., and GRIMES and DAUKSCH, JJ., concur.


author: McCORD, Chief Judge.

text:
    Jessie James WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. FF-463.
    District Court of Appeal of Florida, First District.
    Jan. 13, 1978.
    Michael Minerva, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

Appellant was convicted of two counts of armed robbery and appeals the judgment and sentence. We find no error and affirm.

Appellant was charged and found guilty by jury of one count of robbing a Jr. Food Store and one count of robbing a Jax Liquor Store. At trial, the state presented the testimony of eye witnesses to the two robberies, none of whom could positively identify appellant as the robber. They all testified that he was about the same size and walked the same way, though one witness could not say whether he was 5'6" or 6' tall. One of the witnesses of the Jax Liquor Store robbery testified that the robber “semi-disguised” his voice but that the robber’s voice and that of appellant had some likenesses. All of the eye witnesses testified that the robber wore a stocking over his face which prevented their being able to describe his facial features.

The primary question on this appeal is whether or not the court erred in allowing the state to impeach the testimony of state’s witness Maude Leland. She had previously given a detailed statement to investigating officer Brooks in which she declared that appellant had told her he committed the robberies and in which she related the details of the robberies as told to her by appellant. Officer Brooks testified that she came to him with her story while she was at the police station for another purpose — to report that appellant had assaulted her. Brooks also testified that when confronted with Maude’s accusations, appellant orally confessed that he had robbed the stores.

After having given the aforesaid statement to Officer Brooks, Leland contacted the public defender’s office and repudiated her previous statement to Officer Brooks. The public defender had her sign an affidavit declaring that she had lied in that statement and, six days before trial the public defender sent the affidavit to the state attorney. Thereafter, several days before trial and again the morning of the trial, Maude assured the state attorney that she would testify in accordance with her original story as told to Officer Brooks. At trial, however, when the state called her as a witness, she denied the truth of the statement she had made and began to tell a totally inconsistent story. The state attorney claimed surprise and asked the court to declare Maude a hostile witness and allow him to impeach her through the use of her statement made to Brooks. The court granted the request, declared her a hostile witness to the state, and made her a court witness so that both sides could examine her with leading questions. Appellant contends this was error; that the state could not have been surprised by her testimony because it knew of the affidavit given the public defender in which she repudiated the statement. We disagree with the public defender’s contention and find no error in this respect. The witness having assured the state subsequent to the affidavit that she would stick by her original story, her testimony to the contrary upon being called by the state did constitute surprise justifying impeachment by leading questions. See Bogan v. State, 226 So.2d 110 (Fla. 2 DCA 1969); Jones v. State, 273 So.2d 8 (Fla. 3 DCA 1973); McCloud v. State, 335 So.2d 257 (Fla.1976).

When witness Leland was called to the stand by the state and the state requested that she be declared a hostile witness because of its surprise at her testimony, defense counsel asked that he be allowed to proffer testimony that she was coerced by the state into agreeing to testify and adhere to her original statement. The court declined the proffer but allowed the defense to fully question her on cross-examination and to fully question the officers involved as to the alleged coercion. The purpose of a proffer is to put into the record testimony which is excluded from the jury so that on appeal the appellate court can consider the admissibility of such excluded testimony. Here, all of the testimony on the subject was presented to the jury for its consideration in evaluating the credibility of the witness’ testimony. We find no error in the denial of proffer as everything that could have been established on proffer was allowed by the court through the testimony of Leland and Officer Brooks.

We have also considered the other questions raised by appellant on this appeal and find them to be without merit.

AFFIRMED.

BOYER and MILLS, JJ., concur.


text:
    Stephen Patrick CARR, Appellant, v. STATE of Florida, Appellee.
    No. 77-300.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1978.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Stephen Patrick Carr, appellant herein, was charged with possession of a controlled substance and paraphernalia. Appellant filed a motion to suppress evidence which the trial court denied.

Appellant, thereafter, entered a plea of nolo contendere, was sentenced to a year and a day and this appeal ensues.

Appellant contends that the trial court erred in denying his motion to suppress evidence. We agree and reverse.

At the suppression hearing, appellant and the state stipulated to the following statement of facts:

(a) Defendant was approached by Officer Blodgett of the Dunedin Police Department and questioned regarding his presence in a residential area at 10:30 P.M. on August 16, 1976. •
(b) At the time, the defendant was outside his vehicle and explained his presence, giving proper identification, as requested by the officer.
(c) Even though the defendant was outside his vehicle, Officer Blodgett shined his flashlight into the vehicle “to check the interior”, where he observed two hand-rolled cigarettes.
(d) Officer Blodgett went into the vehicle, seized the hand-rolled cigarettes and examined them and their contents.
(e) Officer Blodgett determined the cigarettes appeared to contain marijuana and placed the defendant under arrest for misdemeanor possession of marijuana.
(f) Officer Blodgett then reached back into the vehicle and searched a folded blanket finding what appeared to be “two lids of marijuana” and a rolling device.
(g) Defendant was arrested for felony possession and paraphernalia.
(h) Officer Blodgett requested Officer Mann to help him search the truck at which time additional items of contraband were seized.

The testimony of Officer Blodgett was also offered during the hearing. He stated when he saw the two cigarettes through the window he “knew” they were marijuana cigarettes because they were unevenly rolled and twisted at the end. Actually, he could not really see any marijuana. On the basis of this evidence and the stipulated statement of facts, the trial court found the seizure of the marijuana cigarettes proper. We disagree.

Officer Blodgett did not have a search warrant at the time of the seizure of the cigarettes and the subsequent search of appellant’s vehicle. Therefore, the evidence obtained at that time was inadmissible to prove appellant’s guilt unless one of the exceptions to the warrant requirement was applicable to the situation. Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1975). After extensive review of the record, wé can find no such exception.

The state argues that the search and seizure were valid because they were ‘incident to a lawful arrest. For this exception to apply, the arrest must be justified by facts constituting probable cause to arrest which are within the arresting officer’s knowledge prior to the search. Dixon v. State, supra. However, in this case Officer Blodgett did not have probable cause to arrest appellant and so the exception was not applicable.

The Dixon court noted that,

The test to determine probable cause is whether the facts and circumstances within the officer’s knowledge, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.

The hard facts within Officer Blod-gett’s knowledge do not meet this standard. All he could see at the time he looked into appellant’s vehicle were two cigarettes. As they were twisted shut at both ends, he could not know what material was within the paper.

The state also contends that the plain view exception should apply to this case. We reject that argument because, as noted above, there was no contraband in plain view, merely two cigarettes.

Because we have found that the seizure of the cigarettes was improper, we must find any search and seizure subsequent thereto unreasonable. See State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976).

We reverse the judgment and sentence and remand this case for further proceedings consistent with this opinion.

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


text:
    James R. MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 77-421.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

HOBSON, A. C. J., and SCHEB and OTT, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE, Appellant, v. FIRST NATIONAL CITY BANK (a/k/a Citibank, N. A.), Palmer First National Bank and Trust Company of Sarasota, and Florasota Development Co., Inc., et al., Appellees.
    Nos. 77-889, 77-890.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1978.
    Barbara Pankau of Trenam, Simmons, Kemker, Schraf & Barkin, Tampa, for appellant.
    Jay A. Brett of Sheppard & Woolslair, Fort Myers, for appellee Citibank, N. A.
   BOARDMAN, Chief Judge.

Appellate Case No. 77-889 and Case No. 77-890 were consolidated for the purpose of this appeal. Both were mortgage foreclosure actions filed separately by two mortgagees against Seascape Condominium located in Bonita Beach, Florida. Each case was vigorously contested by the parties. Appellant, First Wisconsin National Bank of Milwaukee, was not made a party to either of these proceedings. On June 3, 1975 a receiver was appointed by the trial court to operate and maintain the condominium.

Point Development Corporation of Naples owned a sewage treatment plant located on the premises of Bonita Beach Club which was adjacent to Seascape Condominium. Seascape Condominium was permitted to tap into and use the sewage facilities for a fee which was never paid. On February 24, 1977 Point Development Corporation assigned to appellant its rights and interests in any claim it had against Seascape Condominium for the sewer services.

On March 22 appellant notified the receiver by letter of its interest in Seascape Condominium requesting him to file a claim for $48,750. No response was received by appellant. On April 7 the receiver filed a petition for disbursement of funds and discharge. Although not formally notified of the proceedings appellant appeared at the hearing on the petition held April 25. The trial court subsequently entered an order approving the receiver’s final accounting, providing for disbursements of certain funds, discharging the receiver, and refusing to allow appellant to present its claim. It is this order which appellant appeals. We reverse.

Attorneys for the respective parties indicated during oral argument before this court that they were unable to find a case in Florida or other jurisdictions precisely on point. We submit that under these circumstances equitable principles necessitate consideration of appellant’s claim. See Am. Jur.2d § 334 (1973). There was no time limit established for filing claims, distribution had not been effected when the claim was filed with the receiver, and appellant timely acted to protect its interest in Seascape Condominium after it arose. Appellant attempted in good faith to file its claim for consideration by the receiver and the court. The door should not have been shut to appellant merely because of impatience or desire to terminate the proceedings. The contention that the period of receivership would be extended by presentation of appellant’s claim is on balance clearly outweighed by principles of fairness and reasonableness.

Reversed and remanded for proceedings consistent with this opinion.

HOBSON and OTT, JJ., concur.


text:
    Chester O. DRAKE and Beacon Mutual Indemnity Company, a Foreign Corporation, Appellants, v. Rosemarie SCHARLAU and Karen Scharlau, Appellees.
    No. 77-895.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1978.

      Charles P. Schropp of Shackleford, Farri- or, Stallings & Evans, P. A., Tampa, for appellants.
    B. Lee Elam, Brandon, for appellees.
   RYDER, Judge.

Appellants/defendants challenge by way of this interlocutory appeal an order determining that appellees/plaintiffs have obtained jurisdiction over the persons of appellants. We reverse.

Appellees filed a personal injury action alleging that appellant Drake negligently operated his motor vehicle so that it struck a vehicle owned by appellee Rosemary Scharlau and driven by appellee Karen Scharlau in Zephyrhills, Florida on June 30, 1975. The complaint also alleged that appellant Beacon Mutual Indemnity Company [hereinafter “Beacon”] had issued an automobile liability insurance policy to appellant Drake and, further, that at all times pertinent herein Beacon was engaged in the automobile liability insurance business in the State of Ohio. The complaint made no allegations as to the residence of Drake.

Appellees unsuccessfully attempted personal service on appellant Drake by the Sheriff of Pasco County in late June 1976. Appellees then attempted substituted service of process on Drake by serving the Secretary of State under Section 48.171, Florida Statutes (1975) and on Beacon by serving the Insurance Commissioner under Section 626.907(1), Florida Statutes (1975).

Appellants then moved to quash process and service of process. On December 6, 1976 an order was entered granting these motions.

Thereafter, appellees again tried to effect substituted service of their original complaint, without any amendment, on appellants Drake and Beacon. Appellants again “specially appeared” and moved to quash process and service of process. Drake’s motion summarily alleged that the process and service thereof were insufficient as a matter of law. Beacon’s motion averred that it is an Ohio corporation not authorized to do, and not doing, business in Florida; that the policy allegedly issued to Drake was written in Ohio for a resident of Ohio and was issued and delivered in Ohio; and that ap-pellees’ complaint contained no allegations of any kind connecting Beacon with Florida. Attached to Beacon’s motion to quash was a supporting affidavit of one Metzger, claim representative of Beacon, declaring that Beacon is an Ohio corporation that does not do Business in Florida; that Beacon did not issue or deliver any policy of insurance to Drake in the State of Florida; and that Beacon has no contacts with the State of Florida.

Thereafter, appellees filed a motion seeking an order determining that they had obtained jurisdiction over appellants. Hearing was had on this motion and on March 25, 1977 an order was entered ordering appellees to file an amended complaint alleging that at the time of the accident appellant Drake was a resident of Florida. The order further provided, “This allegation is necessary in order to obtain jurisdiction by substituted service under the Florida Statutes. Plaintiff will not be required to perfect service by mailing either to the Secretary of State or to defendant, Beacon Mutual Indemnity Company, because compliance with the substituted service statute has already been accomplished.” The order further declared that a copy of the amended complaint should be served on the attorney for appellants.

Appellees subsequently filed an amended complaint which differed from their original complaint only in that it alleged that appellant Drake was a resident of the State of Florida at the time of the accident and that appellant Beacon was engaged in the automobile liability insurance business in the State of Florida at all times pertinent herein. The amended complaint was not served by personal or substituted service on either appellant, but was merely hand delivered to the attorney of record for appellants.

Thereafter, appellants filed a motion to clarify or correct the order dated March 25, 1977, along with a supporting affidavit of their attorney of record stating that he was not authorized to accept service of process on either appellant.

Appellants’ motion was heard, and an amended order dated May 4, 1977 resulted. The amended order incorporated the above-mentioned order of March 25, 1977; denied Beacon’s motion to quash process and service of process [no express denial of Drake’s similar motion was made]; granted appel-lees’ motion to determine that they had obtained jurisdiction over appellants; and ordered appellants to answer within twenty days. This interlocutory appeal ensued.

To support substituted service of process on a defendant, the complaint must allege the jurisdictional requirements prescribed by statute. If it fails to do so, then a motion to quash process and service of process should be granted. Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla. 2d DCA 1976); Henschel-Steinau Company v. Harry Schorr, Inc., 302 So.2d 198 (Fla. 4th DCA 1974).

Appellees’ original complaint made no allegation concerning the residence of Drake and thus did not contain the jurisdictional allegations necessary to constitute the Secretary of State as Drake’s agent for substituted service of process, i. e., that Drake was a nonresident, a resident of Florida who subsequently became a nonresident, or a resident of Florida concealing his whereabouts. See Section 48.171, Florida Statutes (1975).

Likewise, the amended complaint does not contain the necessary jurisdictional allegations as to Drake. It alleges that Drake was a resident of the State of Florida at the time of the accident, and nothing more. This allegation, standing alone, defeats substituted service under the statute and case law cited above. On the face of appellees’ amended complaint, appellant Drake is only amenable to personal service, if and when he may be found within the State of Florida.

Since the record discloses that appellees have not validly served appellant Drake by personal service, substituted service, or otherwise as provided by law, the trial court erred in the amended order adjudging that it had jurisdiction over the person of appellant Drake.

Before we turn our attention to appellant Beacon, it is necessary to comment that merely hand delivering a copy of the amended complaint in this case to the attorney of record for appellant Drake would not have constituted lawful service upon Drake, even if we assume, arguendo, that the amendment to the original complaint cured the jurisdictional deficiencies of the original complaint’s allegations (which it, in fact, did not, for the above-stated reasons). A defendant is entitled to service of valid original process and a copy of the initial pleading upon him by personal service or upon his statutory agent by substituted service in accordance with the Florida Statutes and the Rules of Civil Procedure. This must be done for the court to have jurisdiction over the person of the defendant. It was not done here. Only when the paper served is a pleading subsequent to service of the original process and initial pleading may valid service be made upon a party’s attorney. Compare Fla.R. Civ.P. 1.070 with Fla.R.Civ.P. 1.080.

Now, with respect to appellant Beacon, it is equally clear that again appellees’ original complaint did not contain the jurisdictional allegations necessary to constitute the Insurance Commissioner as Beacon’s agent for substituted service of process pursuant to Sections 626.906 and 626.907(1), Florida Statutes (1975). The complaint did not allege any activities whatsoever by Beacon within the State of Florida. On the contrary, the complaint affirmatively alleged that Beacon was engaged in the automobile liability insurance business in the State of Ohio at all times pertinent.

Thus, the trial court properly granted appellant Beacon’s first motion to quash by its order entered December 6, 1976. Esberger v. First Florida Business Consultants, Inc., supra. However, the trial court then proceeded to go seriously astray in its rulings in this case. After appellees again attempted substituted service of their complaint, without amendment, appellant Beacon again moved to quash and, significantly, attached the above-mentioned supporting affidavit of Metzger, its claims representative, stating in sum that Beacon did not issue or deliver any policy of insurance to Drake in the State of Florida and has no contacts with the State of Florida.

When jurisdiction has been adequately challenged by the defendant by affidavit or other competent evidence, the plaintiff must then sustain its claims by affidavit or other proof and not just by reiteration of the unsworn allegations of the complaint. In other words, if the defendant establishes a prima facie showing by way of affidavit that the defendant’s conduct and actions did not make it amenable to service of process, then the burden shifts to the plaintiff to support the allegations of its complaint by way of evidence in opposition to the defendant’s affidavit.' See Dublin Company v. Peninsular Supply Company, 309 So.2d 207 (Fla. 4th DCA 1975) and the cases cited therein; see also Elmex Corporation v. Atlantic Federal Savings and Loan Association of Fort Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976).

Here, appellant Beacon adequately challenged the jurisdiction of the court by affidavit and made a prima facie showing that it had not engaged in any of the requisite acts required by Section 626.-906 to render it amenable to substituted service of process on the Insurance Commissioner. In response thereto, appellees amended their complaint only to include a mere conclusory allegation that Beacon was engaged in the automobile liability insurance business in Florida at all pertinent times. First, we do not think that a conclu-sory allegation that a foreign insurer is engaging in the insurance business in Florida, without allegations of any of the particular acts specified in Section 626.906, is sufficient even to carry the plaintiffs initial burden of pleading facts to clearly justify, as a matter of law, the applicability of the substituted service statute. Elmex Corporation, supra. Secondly, in view of appellant Beacon’s aforesaid affidavit establishing a prima facie case, it is patent that appellees’ unsworn amended complaint in no way met their burden of proving the necessary allegations to support substituted service, and, therefore, appellant Beacon’s motion to quash should have been granted.

In this regard, Parliament Life Insurance Company v. Eglin National Bank, 333 So.2d 517 (Fla. 1st DCA 1976) appears dispositive in favor of Beacon as to any contention that appellees’ allegation in their amended complaint that Drake was a resident of Florida at the time of the accident is sufficient to confer personal jurisdiction over Beacon by way of substituted service. The Parliament court followed Parmalee v. Iowa State Traveling Men’s Association, 206 F.2d 518 (5th Cir. 1953) in construing Section 626.906 to apply only to policies of insurance issued or delivered in Florida to Florida residents by an unauthorized foreign insurer. In Parliament the insured was a resident of Florida at the time the policy was issued, but the issuance and delivery of the policy occurred in Pennsylvania and not in Florida. Further, Parliament had never done business in Florida. Thus, the fact that the insured was a resident of Florida, standing alone, was not sufficient to bring Parliament within the purview of Section 626.906.

We concur with the reasoning of Parliament, supra, and Parmalee, supra, and consider them applicable and controlling herein. Indeed, it appears from the record that Beacon does not have the requisite minimum contacts with Florida to subject it to the jurisdiction of the Florida courts without offending the fundamental due process guarantees of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Parmalee v. Iowa State Traveling Men’s Association, supra.

Accordingly, the amended order determining that appellees had obtained jurisdiction over the person of appellant Drake is hereby reversed and the cause remanded to the trial court with the direction to enter an order quashing process and service of process as to appellant Drake, with leave given to appellees to take such other action by pleading as deemed appropriate. Further, the amended order determining that appel-lees had obtained jurisdiction over the person of appellant Beacon is hereby reversed and the cause remanded to the trial court with the direction to enter an order quashing process and service of process as to appellant Beacon.

HOBSON, A. C. J., and GRIMES, J., concur.

      . Appellees state in their brief that they also subsequently attempted constructive service on Drake pursuant to Chapter 49, Fla.Stat. (1975). We summarily reject any contention that constructive service of process could confer jurisdiction over the person of a defendant in an in personam tort action like the instant one. See Section 49.011, Fla.Stat. (1975). See also, e. g., Ake v. Chancey, 152 Fla. 677, 13 So.2d 6 (1943); Coodotel Bahamas, Ltd. v. Leavell Bahamas, Ltd., 276 So.2d 189 (Fla. 4th DCA 1973).

      . After appellants’ motion was filed, but before it was heard, appellees unsuccessfully attempted to serve Drake in Ohio pursuant to the long-arm statute, Sections 48.193 and 48.194, Fla.Stat. (1975). The Sheriff of Sandusky County, Ohio returned the summons unserved, stating that service had not been made because Drake has moved without leaving a forwarding address.

      . These observations apply with equal force to the hand delivery of the amended complaint to the attorney of record for appellant Beacon. This, too, could not constitute lawful service.


text:
    John Franklin HICKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1221.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed. We agree, however, with appellant that there is an imperfection in his sentence. The phrase “at hard labor” is improper. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Accordingly we remand this ease for correction of the sentence. Appellant need not be present at resentencing.

HOBSON, A. C. J., and SCHEB and OTT, JJ., concur.


text:
    Jerome G. CUNDY, Sr., Petitioner, v. DIVISION OF RETIREMENT, Florida DEPARTMENT OF ADMINISTRATION, et al., Respondents.
    No. EE-372.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1978.
    Richard A. Sicking and Joseph C. Segor of Kaplan, Dorsey, Sicking & Hessen, P.A., Miami, for petitioner.
    L. Keith Pafford, Dept, of Administration, Div. of Retirement, and Nancy G. Lin-nan, State Retirement Commission, Tallahassee, for respondents.
   PER CURIAM.

The petition for review is GRANTED, the order of the Retirement Commission is QUASHED, and the case is REMANDED to the Commission for further proceedings giving appropriate effect to the presumption accorded by Section 112.18(1), Florida Statutes (1975). Caldwell v. Division of Retirement, 344 So.2d 923 (Fla.lst DCA 1977).

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


text:
    Bernard DORFMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1173.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1978.
    Bennett H. Brummer, Public Defender, and Elliott H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before ' PEARSON, HENDRY and BARKDULL, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on May 25,1976 (333 So.2d 481) affirmed and reversed in part and remanded the judgment and sentence of the circuit court for Dade County, Florida in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 351 So.2d 954, by its opinion and judgment filed July 28, 1977 and mandate now lodged in this court affirmed this court’s judgment and sentence except to remand the cause for resentencing.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on July 14, 1976 is withdrawn, the judgment of this court filed in this cause on May 25,1976 except as is affirmed by the judgment of the Supreme Court of Florida dated July 28, 1977 is vacated and said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the judgment and sentence appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court for resentencing consistent with the views expressed herein. Costs allowed shall be taxed in the trial court (Rule 3.16 b Florida Appellate Rules).


text:
    Douglas Franklin WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1545.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., HENDRY, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

Appellant, defendant below, was charged with and convicted of first degree murder, assault with intent to commit murder, and breaking and entering a dwelling with intent to commit petit larceny. He appeals his convictions and sentences. We affirm.

Appellant has raised three points on appeal. The first two points claim that the trial court erred in denying appellant’s motion to suppress various statements made by him, both prior to and after his arrest in that said statements were made (1) involuntarily, (2) pursuant to illegal detention by the police and (3) without the benefit of proper Miranda warnings. The third point claims error on the part of the trial judge in restricting a psychologist-defense witness from testifying as to certain self-serving facts elicited from appellant during examination which formed a partial basis for the psychologist’s expert opinion as to the vol-untariness of appellant’s statements and confession given to the police during interrogation.

After carefully reviewing the record, briefs and argument of counsel in the light of the controlling principles of law, it is our opinion that appellant’s contentions are without merit and that his convictions and sentences must be affirmed.

Affirmed.


author: PER CURIAM. PER CURIAM.

text:
    STATE of Louisiana v. Otho H. LINNER.
    No. 59941.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Rehearings Denied Jan. 27, 1978.
    Nesib Nader, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Roland V. McKneely, Jr., Asst. Dist. Atty., for plaintiff-appel-lee. •
   PER CURIAM.

Affirmed.

PER CURIAM.

Rehearing denied. Defendant’s contention of ineffective counsel may be raised through application for habeas corpus relief filed in the district court. State v. Collins, 350 So.2d 590 (La.1977).


text:
    STATE of Louisiana v. Clifton JONES.
    No. 60107.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
    Rehearing Denied Jan. 27, 1978.
    Miriam G. Waltzer, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.