text:
    James Dupree HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 46105.
    Supreme Court of Florida.
    Feb. 25, 1976.
    Rehearing Denied April 21, 1976.
    Richard L. Jorandby, Public Defender, and Richard Lubin and Martin H. Colin, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen.; and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Having been transferred to this Court by the District Court of Appeal, Fourth District, this cause is before us on direct appeal from a conviction of murder in the first degree and a sentence of death imposed on appellant by the Circuit Court in and for Orange County, Florida. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida (1973).

Appellant was indicted for murder in the first degree in that he did with premeditated design kill and murder Z. L. Riley by suffocating him with a gag, and was found guilty. The majority of the jury recommended that the death penalty be imposed and the trial judge, having considered the mitigating and aggravating circumstances, sentenced appellant to death.

The victim was found in the bedroom of his home bound and gagged with his throat cut. Two double edge razor blades were lying near his body covered with dried blood. The pockets of the deceased’s pants were turned inside out, but no wallet, money or personal effects were found. Appellant’s thumb print was found in the victim’s bedroom. In performing an autopsy on the body of the deceased, Dr. Hegert found extensive head and facial wounds, including two fractures of the jaw and mild to moderate brain hemorrhaging caused by “blunt force,” cuts on the hands, two deep cuts four and five inches long and several more cuts about the neck consistent with the use of a razor blade. The doctor determined that the actual cause of death was a gag placed tighly under the tongue of the deceased so as to force the tongue back into the throat, cutting off the airway and suffocating the victim.

At the time of the murder, appellant lived next door to the victim. When Officer Ferguson went to arrest appellant at his residence, several days after the murder appellant jumped Ferguson, took his gun, shot Ferguson twice and then fled. He was found an hour later hiding behind a dryer machine, arrested, taken to the Orlando Police Station and advised of his rights. Before interrogation, he was fully advised of his rights, he signed a waiver card, and he advised the officers that he would talk to them. During the course of this interrogation, he confessed that he had killed the deceased, and gave the officers full details of the murder. The officers present testified that no promises or threats were made, and that appellant was not offered any hope of leniency or other reward to induce his statements.

Four days before the trial, he filed a motion to suppress his confession. Before trial, the trial judge conducted a lengthy hearing on the voluntariness of the confession, after which the trial judge denied the motion to suppress. At the conclusion of the state’s case, defense counsel moved for a directed verdict of acquittal which was denied. Relying solely upon the defense of insufficient evidence, appellant did not testify nor call other witnesses. After deliberation for one hour, the jury returned a verdict of guilty. The sentence advisory hearing was then conducted, after which, the jury returned a recommendation of the death penalty. In support of the death sentence, the trial judge entered the following “Findings in Support of the Verdict:”

“The Court has considered the itemized points for consideration in aggravation and in mitigation set forth in Florida Statute Section 921.141 and has also considered the jury’s recommendation of death and has for the reasons set forth in open court at the time of sentencing and now made a part of the record together with the following reasons, exercised its discretion, and notwithstanding the recommendation of a majority of the jury, has imposed a sentence of death upon the defendant.
“The defendant has a lengthy history of violence of an extremely serious nature which has been demonstrated by the defendant having been charged on a previous occasion with Assault with Intent to Commit a Felony and having been allowed to plead guilty to the lesser included offense of Aggravated Assault, and having also been charged on a prior occasion with Aggravated Assault and allowed to plead guilty to a lesser included offense in that instance, and having also demonstrated his viciousness and callous indifference to human life when he assaulted Officer Ferguson with the Officer’s own pistol at the time of his arrest for the charges in this case, at which time he shot the police officer three times, the last time while the Officer was on his knees begging not to be shot any more. The facts in this case in themselves are atrocious, horrible and cruel almost beyond belief. The defendant has clearly demonstrated that he cannot live in a civilized society in a trustworthy fashion and shortly after his release from prison committed the act charged in this case. The act herein was for pecuniary gain' and for no other motive other than perhaps to eliminate a witness.
“This Court found absolutely nothing of a mitigating nature to prevent this Court from imposing the death penalty.
“It is, therefore, for the above stated reasons and for those reasons stated in open court subsequently transcribed and now attached to these findings, that the death penalty is imposed.”

The trial judge, in open court, further described in great detail the reasons for imposing the death penalty which he incorporated by reference in his abovestated findings.

We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed, and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence in the record before us does not reveal that the ends of justice require that a new trial be awarded. Cf. State v. Dixon, 283 So.2d 1 (Fla.1973); Alford v. State, 307 So.2d 433 (Fla.1974) ; Wilson v. State, 304 So.2d 119 (Fla.1974); Williams v. State, 228 So.2d 377 (Fla.1969), and Reddish v. State, 167 So.2d 858 (Fla.1964).

The jury recommended and the trial judge, upon considering all the mitigating and aggravating circumstances, agreed that the death penalty be imposed for the commission of this atrocious and heinous crime. We find that the judgment and sentence of the lower court in this cause is in accordance with the justice of the cause.

Accordingly, the judgment and sentence of the trial court are hereby affirmed.

It is so ordered.

ADKINS, C. J., ROBERTS, OVER-TON and DREW (Retired), JJ., and MELVIN, Circuit Court Judge, concur.

ENGLAND, J., and HENSLEY, Circuit Court Judge, dissent.

      . For modification of McDole v. State, 283 So.2d 553 (Fla.1973), see: Wilson v. State, 304 So.2d 119 (Fla.1974).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR. In re Herbert N. CASEBIER.
    No. 48548.
    Supreme Court of Florida.
    March 10, 1976.
    Herbert N. Casebier, in pro. per.
    Michael D. Martin, Lakeland, Bar Counsel, and James P. Hollaway, Asst. Staff Counsel, for The Florida Bar, respondent.
   PER CURIAM.

This case is here on Petition for Leave to Resign from The Florida Bar filed pursuant to Integration Rule 11.08. The Florida Bar filed its Response to the petition, submitting, inter alia:

The disciplinary proceeding pending against petitioner concerns his failure to complete the administration of an estate despite direct order to do so from the appropriate probate court. The probate court has removed petitioner as attorney of record in the estate proceeding.
With the exception of the above proceeding there are no disciplinary actions pending against the petitioner by The Florida Bar. Petitioner has not been disciplined by The Florida Bar in the past for any misconduct.

The Court has determined that the Petition for Leave to Resign from The Florida Bar be granted in lieu of disciplinary proceedings and it is, therefore, ordered that said resignation be and is effective nunc pro tunc March 1, 1976.

Costs in the amount of One Hundred Fifty-Six Dollars and Thirty-Five cents ($156.35) are hereby taxed against the petitioner.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND and HATCH-ETT, JJ., concur.


author: PER CURIAM. BOYD, Justice OVERTON, Justice ENGLAND, Justice

text:
    Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 45558.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Rehearing Denied April 5, 1976.

      Louis O. Frost, Jr., Public Defender, James O. Brecher and Steven E. Rohan, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., Harry L. Shorstein, Sp. Asst. Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant was indicted on two counts of murder in the first degree and two counts of child torture in that he did commit various assaults upon Kelly Ann Dobbert including kicking, choking, and torturing her with his hands and feet and by use of other instruments and weapons and that from a premeditated design to effect death, he inflicted mortal injuries upon Kelly Ann which resulted in her death; in that he committed various assaults upon Ryder Scott Dobbert and from premeditated design to effect Ryder Scott’s death, he inflicted mortal injuries resulting in Ryder Scott’s death; in that he willfully tortured, mutilated, cruelly, wantonly and maliciously punished and tormented Honoré Elizabeth Dobbert, a child, five years of age, and in committing battery upon her did intentionally and knowingly cause great bodily harm, permanent disability and permanent disfigurement to Honoré; and in that he willfully tortured, mutilated, cruelly, wantonly, maliciously, and unlawfully punished and tormented Ernest John Dobbert, III, which caused serious bodily harm, permanent disability and permanent disfigurement to Ernest John, III, a child of eleven years of age. Appellant moved to dismiss the indictment which motion was denied as to counts one and two charging murder in the first degree but was granted as to counts three and four charging child torture. Subsequently, the Grand Jury returned an amended indictment charging two counts of murder in the first degree and two counts of child torture. A motion by appellant to sever counts one and two from the indictment was denied. Appellant filed a motion and affidavit for change of venue which alleged, inter alia, that defendant stands accused of acts inherently odious and subject to inflammatory exploitation by the press and that as a consequence of extensive publicity, the possibility of prejudice to him was great. The trial court, before ruling on a change of venue, entered an order which he stated was binding upon everyone occupying an official position having to do with this case including the State Attorney, and all of his assistants and employees, the Sheriff and all of his deputies and employees, the Clerk of the Circuit Court and all of his deputies and employees, the public defender and all of his assistants and employees, the defendant, all of the officers of this court, the witnesses for the State and the defense and anyone else connected with this case. Thereby, he ordered that none of the named persons will release any statement about this case to any news media at any time before or during this trial until it shall have been completed and disposed of. After hearing, he then took the motion for change of venue under advisement until after jury selection was attempted.

Pursuant to Rule 3.152(a) (2) (i), F.Cr. P.R., appellant moved to sever each of the four counts of the indictment, which motion was denied. The jury was selected, after which the judge denied the motion for change of venue. A lengthy trial was held, after which the jury returned verdicts of guilty of murder in the first degree of Kelly Ann Dobbert, guilty of murder in the second degree of Ryder Scott Dobbert, guilty of child torture of Ernest John Dobbert, III, and guilty of child abuse of Honoré Elizabeth Dobbert. The jury returned an advisory sentence finding that sufficient aggravating circumstances did not exist to justify a sentence of death and that sufficient mitigating circumstances exist to warrant imposition of a life sentence. Motion for new trial was denied and defendant was adjudicated guilty of each of the four counts of which he was found guilty.

The trial court imposed the maximum penalties for the crimes of murder in the second degree, child torture, and child abuse, which sentences are to run consecutively and total forty-six years; and after closely examining and writing extensive findings as to each of the elements of aggravation and/or mitigation set out by law, the trial judge imposed the sentence of death for the first degree murder. He analyzed each individual mitigating and aggravating factor in detail and gave full explanation for his decision to impose the death penalty. Because of their importance to the decision of this cause, the findings enumerated by the trial judge must be set out herein. Relative to the mitigating circumstance of whether the defendant has no significant history of prior criminal activity, the trial court found as follows:

“FACT-:
That on 9-20-65 the Police of St. Francis, Wisconsin, arrested the defendant for ‘Battery — Child’, in that he ‘struck Ernest John Dobbert, III, age 5 years, several times causing a black eye, a large bruise on the upper forehand and red swollen cheeks and nose.’
“The Judge of that Court sent the defendant to a Hospital for mental observation and placed him on one year probation.
“FACT:
“That on 11-17-67 the Police of St. Francis, Wisconsin, arrested the defendant on the charge of ‘Assault’, in that instance the report states that the defendant ‘disciplined his son, Ernest John Dobbert, III, for poor grades by burning his hands over an open flame on a gas range.’
“The defendant was found guilty and incomprehensibly the Judge of that Court only fined the defendant $50.00 and imposed no further punishment. This was only two years after he had been placed on probation for battery on Little John in 1965.
“FACT:
“The evidence and testimony of John III and neighbors at the trial and the defendant’s own written statement was that he was constantly beating the children with fists, boards and other objects and was seen kicking, choking and beating Kelly Ann Dobbert, Ryder Scott Dob-bert, Ernest John Dobbert, III and Ho-noré Elizabeth Dobbert. The neighbors made their complaints to the Police and Social Welfare Agencies, but the defendant was able to avoid a thorough investigation of the charges by deceit, lies and by the murder of Kelly Ann and Ryder Scott Dobbert.
“CONCLUSION:
“There is no mitigating circumstance under this paragraph because there was a significant history of prior criminal activity towards the children in both Wisconsin and Jacksonville, Florida.”

Relative to the mitigating circumstance of whether the murder was committed while defendant was under the influence of extreme mental or emotional disturbance, the trial judge determined:

“FACT:
The defendant did not testify, however, his written statement did indicate that he thought he was under an emotional strain. However, that statement was more of a recitation of torture of the children than the establishment of any emotional strain.
“FACT:
The defendant was examined by two psychiatrists and a psychologist prior to trial and found to be sane and competent at the time of examination and at the time of the time of the crimes. The psychiatrists both stated that at the time oí the crime he understood the nature, quality and wrongfulness of his acts, and knew right from wrong and was able to adhere to the right. Neither the psychiatrists or psychologist found or reported that he was under the influence of extreme mental or emotional disturbance at the time of the crimes.”

and concluded that there is no mitigating circumstance under this paragraph. The trial judge determined that the mitigating factor of whether the victim was a participant in the defendant’s conduct or consented to the act did not exist since “The defendant murdered his own nine year old daughter, Kelly Ann Dobbert by continuous beatings, kicking, hitting with fist and other objects, choking, sewing up her cuts with needle and thread and other torture and depriving her of medical care and finally murdered her, placed her body in a plastic garbage bag and buried her in an unknown and unmarked grave.” As to the mitigating circumstance of whether the defendant was an accomplice in the murder committed by another person, the trial judge found:

“FACT:
“The evidence at the trial showed that defendant alone did the murder. It showed that his wife was in jail in Wisconsin and his Mother was also in Wisconsin and that he was the only adult living in the home. The facts also proved that defendant locked the children inside the home during his absence and confined them to the house when he was present with them and that he actively prevented outsiders, by lies, and subterfuge, from entering the home. The only evidence of torture, beatings and murder were those done by the defendant alone.”

As to question of whether defendant acted under extreme duress or under the substantial domination of another, the trial court determined:

“FACT:
“No element of duress was ascertained by the psychiatrists as set forth in paragraph B. above. There is absolutely no testimony of duress in any degree which would justify the hideous crimes of which he was convicted. If, he suffered duress over the care and welfare of the children, there was help available but he turned away both Police and Family Services Workers before the murder of Kelly Ann and Ryder Scott Dobbert by lies and deception and by pretending all in the home were well and normal.
“FACT:
“There was no evidence that defendant was under substantial domination of another person. His wife was alternately in jail in Jacksonville, and Wisconsin for worthless checks and his mother was also in Wisconsin and he had no other relative in Jacksonville. While his wife was in the City Prison Farm in Jacksonville she caused the police to visit the Dobbert home to see to the welfare of the children because on a visit the defendant told her of the injuries suffered by the children and his punishment of them. Her influence, if any, was for him to look after and protect the children.
“From a reading of the pre-sentence investigation report which is attached hereto as EXHIBIT # 1. it appears that his wife was under his domination to do criminal acts (cash worthless checks) for which she was later jailed.”

After extensive written evaluation of the testimony of the psychiatrists, and as supported thereby, the trial judge concluded that defendant was mentally competent and able to understand the nature, quality and wrongfulness at the time of the crimes and had average intelligence. The trial court found no mitigating factor in defendant’s age; he was a man of mature physical and mental years and of average intelligence. In general, the trial court concluded that there were no mitigating circumstances. The trial judge then proceeded to analyze each of the statutorily enumerated aggravating circumstances as they applied to this cause. In particular, as to the especially heinous, atrocious, and cruel nature of the murder of which defendant has been convicted, the trial court found, as follows:

“FACT:
“The defendant stands convicted of first degree murder of his 9 year old daughter, Kelly Ann Dobbert, second degree murder of his 7 year old son, Ryder Scott Dobbert, torture of his then 11 year old son, Ernest John Dobbert, III, and child abuse of his then 5 year old daughter, Honoré Elizabeth Dobbert.
“FACT:
“The evidence and testimony showed premeditated and continuous torture, brutality, sadism and unspeakable horrors committed against all of the children over a period of time. The crimes were committed against the children con-
stantly and it is difficult to separate the specific acts against the individual child. What was done to one — short of causing blindness and murder — was done to all. However, the Court has set forth below some of the cruel and brutal acts against Kelly Ann — in so far as trial notes and memory of testimony serve me correctly.
“Over the period of time of the latter portion of Kelly Ann’s short, tortuous life the defendant did these things to her on one or many occasions:
1. Beat her in the head until it was swollen.
2. Burned her hands.
3. Poked his fingers in her eyes.
4. Beat her in the abodmen until ‘it was swollen like she was pregnant.’
5. Knocked her against a wall and ‘when she fell, kicked her in the lower part of the body.’
6. Held her under water in both the bath tub and toilet.
7. Kicked her against a table which cut her head — then defendant sewed up her wound with needle and thread.
8. Scarred her head and body by beating her with a belt and board— causing marks from her cheek, across the neck and down her back — which injuries worsened without treatment ‘until the body juices came out’.
9. On one occasion beat her continuously for 45 minutes.
10. On many occasions kicked her in the stomach with his shoes on, and on the night she died he kicked her a number of times.
11. Kept her out of school so that the many scars, cuts and bruises on her body would not be seen by others.
12. Defendant made no effort to get professional medical care and attention for the child and in fact actively prevented any outsiders from discovering her condition.
13. Choked her on the night she died and when she stopped breathing he placed her body in a plastic garbage bag and buried her in an unmarked and unknown grave.”

and found that the aggravating circumstances were sufficient and great to warrant the imposition of the death penalty.

Appellant initially claims reversible error in that the trial court denied his request that instructions on attempts be given pursuant to Rule 3.510, F.Cr.P.R. To this request, the trial judge responded:

“I will not give those. I don’t consider there to be any attempt on a homicide. I am familiar with the rule. I don’t really think that it says that you have to do that. I have read it over a number of times. On a homicide you either have a homicide or you don’t have a homicide.”

Rule 3.510, F.Cr.P.R., provides:

“Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.”

Relative to instructions as to attempts to commit charged offenses, this Court in Brown v. State, 206 So.2d 377 (Fla.1968), explained:

“ATTEMPTS. Under § 919.16, a jury is empowered to convict a defendant of an attempt to commit the offense charged in the accusatory pleading, if such an attempt is itself an offense. Attempts generally are proscribed by § 776.04, supra. In limited situations attempts to commit described acts are defined as separate substantive offenses. For example, Fla.Stat. § 806.04, F.S.A. defines fourth degree arson in terms of an attempt to burn certain property.
“Section 919.16, simply requires that in every case, the trial judge must determine as a matter of law whether an attempt to commit the crime charged would itself constitute an offense under Florida law. If he determines that it does, either under § 776.04, or under a separate statute, then he must instruct the jury on the subject of such attempt, and the jury may find guilt accordingly. In this situation it is immaterial whether the accusatory pleading specifically charges an attempt. Further, the charge must be given, even though, in the opinion of the trial judge, the proofs establish guilt of the crime charged rather than a mere attempt to commit it.”

Accord: State v. Washington, 268 So.2d 901 (Fla.1972), and Rayner v. State, 273 So.2d 759 (Fla. 1973).

Appellee posits that the failure of the trial court to instruct on law of attempt, in the instant case, does not constitute reversible error. Citing this Court’s decision in DeLaine v. State, 262 So.2d 655 (Fla. 1972), as authority for its position, appellee submits and we agree that the trial court’s noncompliance with Brown, supra, and Rule 3.510, F.Cr.P.R., was error but was harmless error. In DeLaine, supra, the defendants had been charged, tried and convicted of rape. Therein, this Court found that the trial court erred in refusing to give the requested charge on assault and battery which under the language of Brown, supra, constitutes a necessarily included offense; however, this Court in DeLaine, supra, applied the harmless error statute, explicitly opining:

“It is apparent that we have not foreclosed, under appropriate circumstances, the invocation of Fla.Stat. § 924.33, F.S. A., which reads:
“ ‘No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.’
“In the case sub judiee, the trial judge did instruct the jury on the lesser included crime of assault with intent to commit rape, and the jury had before it an opportunity to convict the petitioners thereunder. This the jury did not do, but chose to convict petitioners under the greater charge of rape, obviously because the jury had before it overwhelming evidence of force and repeated penetration with prosecutrix, together with evidence of her utmost resistance. The record and transcript of this trial demonstrates that great force was used upon the prosecutrix and that she was raped repeatedly against her will and that throughout she fought and resisted to the best of her ability.
“We hesitate to invoke the harmless error statute quoted above in a case of this magnitude, but we have determined that the petitioners received a fair trial and justice dictates an affirmance rather than a reversal. As a matter of common sense and logic, if the jury did not convict the petitioners of assault with intent to commit rape, the same jury would not convict them of assault and battery, which is two steps removed from the crime of which petitioners were convicted. Under the circumstances of this case, the failure to give the requested charge on assault and battery was harmless error.”

Cf. North v. State, 65 So.2d 77 (Fla. 1963), application of harmless error to death cases.

The record, sub judice, shows that the jury was instructed on murder in the first degree, murder in the second degree, murder in the third degree, manslaughter, and justifiable and excusable homicide, and was further instructed:

“If you return a verdict of guilty, it should be for the highest offense which has been proved beyond a reasonable doubt.”

We agree with Justice Drew’s rationale in Spigner v. State, 304 So.2d 496 (Fla.App. 1, 1974), and find its application most appropriate to the instant cause. Therein, he held, in pertinent part, as follows:

“The record here shows that the trial judge charged the jury on: 1) murder in the second degree; 2) murder in the third degree; and 3) manslaughter, and defined these offenses to the jury with the admonition: ‘If you return a verdict of guilty, it should be for the highest offense which has been proven beyond a reasonable doubt.’ The conviction of appellant by this jury of the offense of murder in the second degree brings the failure of the trial judge to charge on attempt squarely within the scope of the harmless error statute, and the holding of the Supreme Court in DeLaine v. State. This Court should not reverse a judgment of conviction unless the error committed ‘injuriously affected the substantial rights of the appellant’. The statute contemplates the commission of error by the trial judge, and we think it was error not to charge the jury as requested. The result reached by the jury, however, in finding the appellant guilty of murder in the second degree when it was empowered to find him guilty of two lesser offenses, presents the exact situation meant to be covered by the statute. The error clearly did not injuriously affect the substantial rights of appellant.”

The trial judge did not commit reversible error in failing to instruct on attempt.

Relative to appellant’s argument that the trial court erred in not allowing a change of venue, we find from the record that the trial judge did everything possible to insure an impartial trial for the defendant. The jurors, carefully and extensively examined by defense counsel to determine that they could be fair and impartial, were sequestered and comprehensive gag order was placed on all participants of the trial. As further evidenced by the record, seventy-eight prospective jurors were interviewed ; allowed thirty-two peremptory challenges, the . defense only exercised twenty-seven. Upon the selection of twelve persons, the trial judge denied the motion for change of venue with the following analysis:

“Both the State and the defendant have challenges left. We have selected the jury.
“Most times the jurors have heard about the case in some fashion from the media. However, a number of them did not hear about it. Some of them that did not hear about it are on the jury. Some are not.
“As I said those that were selected, in the main, if I recall correctly, at least I was satisfied. I’m sure counsel for both sides have different ideas. I’m satisfied some of them had no opinions. If they had opinions they said that it would not affect their decisions. Some had impressions about the nature of the case. So I deny the motion for a change of venue.”

Appellant has failed to show that he did not receive a fair and impartial trial, that the setting of his trial was inherently prejudicial. Cf. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) opinion filed June 16, 1975. The trial judge did not abuse his discretion in denying the motion for change of venue. Most recently in Murphy v. Florida, supra, the Supreme Court of the United States enunciated :

“The constitutional standard of fairness requires that a defendant have ‘a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, supra, 366 U.S., at 722, 81 S. Ct. [1639], at 1642, 6 L.Ed.2d 751. Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
“ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ Id., at 723, 81 'S.Ct. [1639] at 1642.
“At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ Ibid.
“The voir dire in this case indicates no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside. Some of the jurors had a vague recollection of the robbery with which petitioner was charged and each had some knowledge of petitioner’s past crimes, but none betrayed any belief in the relevance of petitioner’s past to the present case. Indeed, four of the six jurors volunteered their views of its irrelevance, and one suggested that people who have been in trouble before are too often singled out for suspicion of each new crime — a predisposition that could only operate in petitioner’s favor.” 421 U.S. at 800, 95 S.Ct. at 2036 (footnotes omitted).

Cf. Hawkins v. State, 206 So.2d 5 (Fla. 1968).

Appellant raises several other points on appeal, none of which we find meritorious so as to constitute reversible error.

We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence in the record, sub judice, does not reveal that the ends of justice require that a new trial be awarded.

Upon considering all the mitigating and aggravating circumstances and upon careful review of the entire record in the cause, the trial court properly imposed the death penalty for the murder conviction. The trial judge stated in the conclusion of his sentencing statement:

“I am not easily shocked or affected by tragedy or cruelty — but this murder of a helpless defenseless and innocent child is the most cruel, atrocious, and heinous crime I have every [sic] personally known of — and it is deserving of no sentence but death.”

We agree.

Accordingly, no reversible error appearing, the judgments and sentences of the Circuit Court appealed from are hereby affirmed.

It is so ordered.

ADKINS, C. J., ROBERTS, J., and KLEIN, Circuit Judge, concur.

BOYD, J., dissents with an opinion.

OVERTON, J., concurs specially with an opinion.

ENGLAND, J., concurs in part and dissents in part with an opinion.

BOYD, Justice

(dissenting).

I Dissent.

This cause is before us on direct appeal from the Circuit Court of Duval County which entered a conviction of first degree murder based on a jury verdict, thereafter sentencing Appellant to death by electrocution. Although we are not here reviewing these additional matters, Appellant was simultaneously convicted of both second degree murder of his small son and child abuse in connection with the torturing of two of his other children, which led to the almost total blindness of his eldest son who was approximately thirteen years of age at the time of the murder being considered.

The only eyewitness to the murder was Appellant’s son, John Dobbert, mentioned above, whose eyesight was twenty over two hundred (20/200). John testified that his father had brutally beaten his daughter Kelly Ann and, subsequently, had choked her; whereupon Appellant called John into the room to determine whether Kelly Ann had actually died. John testified that there were no signs of life and that it was his opinion that his sister was dead. Thereafter, Appellant dressed his daughter in her finest clothing, kept her lying on the bed for approximately two hours, placed her in a plastic bag and carried her to the attic. John testified that he did not see the body of his sister again and that he knew nothing of what was done with her body thereafter. There was inconsequential testimony that experts found some material in the attic which possibly could have been human blood, but this was not clearly established. The Appellant made rambling remarks concerning the possible whereabouts of his two dead children but never clearly admitted murder.

On appeal, Appellant relies in part upon the alleged error of the trial court in refusing to instruct the jury on certain lesser included offenses and argues that the Judge also erred when he refused to instruct the jury that they were authorized to convict the Appellant of attempted murder. Rule 3.510, Rules of Criminal Procedure, provides that whenever a person is tried for a crime and the criminal statutes provide that an attempt to commit such a crime is also a crime, it is mandatory that the court instruct the jury that it is entitled to find the accused person guilty of an attempt to commit the crime in the same manner as the jury is entitled to find the defendant guilty of a lesser included offense.

In this case the Appellant, through his attorney, moved the court not only to charge on the lesser included offenses but also specifically to charge on attempted murder.

This Court in Hand v. State, held that defendants, upon request, were entitled to a charge on larceny when charged with robbery. In Brown v. State, this Court held it was mandatory not only to instruct on necessarily included offenses if requested to do so but also to instruct on attempts to commit the crime charged if such attempts constituted crimes. In State v. Washington, and in Rayner v. State, this Court held it was reversible error not to instruct on lesser included offenses even though a defendant requested the court not to give them.

In Lewis v. State the District Court of Appeal, Fourth District, held that failure to charge on attempt to receive stolen property when the defendant was charged with receiving stolen property was reversible error. In Herman v. State that same court held it reversible error not to instruct on lesser included offenses of manslaughter and aggravated assault when requested by defendant. In Ward v. State, the Fourth District ruled that failure to charge on attempts to commit the crime charged, when such attempts are crimes, constitutes error in a case where defendant was charged with breaking and entering. In Elmore v. State the defendant was tried for murder and convicted of manslaughter ; the Fourth District reversed the conviction for failure of the trial judge to instruct the jury on aggravated assault as requested by the defendant. In Levi v. State that District held that failure to instruct the jury that it could find defendant guilty of attempting to deal in credit cards belonging to another when charged with dealing with credit cards of another was reversible error. In Bracy v. State the Fourth District decided that failure of the trial court to instruct on attempted murder, attempted robbery, and assault with intent to commit murder was reversible error, although the judge believed evidence clearly established murder; it was also held that a failure by the trial judge to give a requested instruction on the lesser included offense of assault with intent to commit robbery was reversible error.

The above holdings become acutely important with respect to any case in which the body of the alleged victim cannot be found. In this particular cause, the testimony of the victim’s brother John was that the Appellant had severely beaten her and was choking her shortly before he decided that she was dead. Testimony in the record justified the jury in finding the Appellant guilty of murder in the first degree, and my observations herein should not be construed otherwise. Since the body of the deceased could not be found, however, the jury should have been instructed not only on lesser included offenses established by the testimony of the victim’s 'brother John, but it should have been instructed also on attempted murder. It is remotely possible that the Appellant attempted to murder his daughter and that after removing her from the bed to the attic, considering her dead, she might have become conscious and fled. I make no such finding here, but since the statutes and rules of court require instruction on attempted murder, this appears to be a prime case in which the jury should have been instructed that, in its discretion, it could have found the Appellant guilty of attempted murder instead of murder. Human life is too precious to have an individual executed without being afforded all of the safeguards provided by the Constitutions, statutes and rules of court. While we have considered Florida’s harmless error statute, we feel that it is not applicable in this case, as the error was too great to be considered harmless.

The Appellant also argues that he was denied a fair trial by the court’s failure to grant his motion for change of venue. Evidence in the record clearly shows that the cruelty and torture administered by the Appellant to his children became a subject of great interest among the people of the Greater Jacksonville, Florida, area at the time his crimes were made known by the news media. Further, it is apparent that the news media constantly continued to report the gruesome details of the case as they developed. An unusually high percentage of persons called as prospective jurors first informed the court that they were familiar with the case through the news media, and some of them even stated that they had opinions that the Appellant was guilty as charged but that they could remove such prejudice from their minds and could make an objective determination of his guilt or innocence.

The Constitutions of the United States and Florida permit the news media to write extensively about crime and criminals and to discuss the gory details of crime before and during trials. This is a constitutional right that I recognize and respect; however, other constitutional provisions grant persons charged with crime the right to be tried fairly, under due process of law, in an atmosphere of fairness and without prejudice in the minds of the jury. Rarely in the history of Florida has any crime created greater public attention than the activities of the Appellant in the treatment of his children, culminating in two convictions of murder and two convictions of child abuse. It is my opinion that the court should have granted the motion for change of venue in order that the Appellant might be tried in some part of Florida in which the magnitude of his crimes was not so widely known and so freely discussed among the populace.

I have considered other points raised by the Appellant and deem them to be without substantive merit. I feel that the court committed reversible error in not charging the jury that it was authorized by law to find the Appellant guilty of attempted murder or the lesser included offenses of aggravated assault, aggravated battery, and assault and battery. Also, I feel that the court committed reversible error in denying Appellant’s motion for change of venue. For the foregoing reasons I would quash the judgment of the trial court and remand the cause for a new trial at a location substantially away from the City of Jacksonville.

I therefore dissent.

OVERTON, Justice

(concurring specially).

I concur m the majority opinion including the sentence of death. In my opinion, the facts in the record together with the explicit findings by the trial judge meet the test set forth in Tedder v. State, 332 So.2d 908 (Fla.1975), Opinion filed November 19, 1975, concerning a sentence of death after a jury recommendation of life imprisonment.

ENGLAND, Justice

(concurring in part and dissenting in part):

I fully agree with all aspects of the Court’s opinion through its conclusion that the evidence “does not reveal that the ends of justice require that a new trial be awarded.” I dissent from that part of the decision which upholds the trial judge’s imposition of a death penalty.

In Tedder v. State, 332 So.2d 908, opinion filed November 19, 1975, we articulated a sensible standard for reviewing the conflicting sentences of juries and judges in death penalty cases. We there said:

“In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.”

Applying that standard here, I would hold that reasonable persons could disagree with the trial judge, and that the jury’s recommendation of life imprisonment should be adopted.

      . As explanation for the imposition of consecutive sentences, the trial judge stated: “The sentences imposed in the case above of Murder in the Second Degree, Child Torture and Child Abuse are to be served consecutive with the sentence which the court imposes below for the crime of Murder In The First Degree. Ordinarily it would be a useless act to run sentences for Murder in the Second Degree, Child Torture and Child Abuse consecutive to the maximum sentence for Murder In The First Degree. This is done in this case for the reason that there are now before the Courts legal challenges to the maximum penalty in first degree murder cases. Should such chalenges prevail this Court would reimpose the maximum possible sentence for Murder in the First Degree and run the sentences for Murder in the Second Degree, Child Torture and Child Abuse consecutive thereto.”

      . Article Y, Section 3(b)(1), Florida Constitution.

      . Instructions were requested by Appellant on assault and battery, § 784.03, F.S. (1973) ; aggravated assault, § 784.04, F.S. (1973) ; and aggravated battery, § 784.046, F.S. (1973), as lesser included offenses to the charges of first degree murder.

      . Section 776.04, Florida Statutes, states in pertinent part:
      “Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same, shall, when no express provision is made by law for the punishment of such attempt, be punished as follows:
      (1) If the offense attempted is a capital or life felony, the person convicted shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”
      (This seems to indicate that attempts generally contemplate attempts to commit capital crimes such as first degree murder.)

      . Rule 3.510. Conviction of Attempt; Lesser Included Offense

      “Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.”

      . 199 So.2d 100 (Fla.1967).

      . 206 So.2d 377 (Fla.1968).

      . 268 So.2d 901 (Fla.1972).

      . 273 So.2d 759 (Fla.1973).

      . 269 So.2d 692 (Fla.App.1972).

      . 275 So.2d 264 (Fla.App.1973), cert, den., 279 So.2d 308.

      . 287 So.2d 138 (FIa.App.1973) ; see also Clements v. State, 284 So.2d 700 (Fla.App. 1973), cert. den., 294 So.2d 654.

      . 291 So.2d 617 (Fla.App.1974).

      . 297 So.2d 617 (Fla.App.1974).

      . 299 So.2d 126 (Fla.App.1974).

      . Section 924.33, Florida Statutes.

       As the majority observes, by imposing and discussing the basis for consecutive sentences the trial judge anticipated the possibility that reasonable people could differ with him.


author: HATCHETT, Justice.

text:
    GATOR FREIGHTWAYS, INC., et al., Petitioners, v. William T. MAYO et al., Respondents.
    No. 47878.
    Supreme Court of Florida.
    Jan. 8, 1976.

      Lawrence D. Fay, of Glickstein, Cren-shaw, Glickstein, Fay & Block, Jacksonville, for petitioners.
    Prentice P. Pruitt and Jerry M. Johns, Tallahassee, for respondents.
    Ansley Watson, Jr., ■ and David C. G. Kerr, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for Smalley Transp. Co., in-tervener.
   HATCHETT, Justice.

At the conclusion of proceedings before respondent Commission, petitioners sought review of the Commission’s order, by filing a petition for certiorari in this Court. Petitioners also filed directions to the Commission Clerk, specifying papers to be included in the record for transmittal to this Court. By letter to petitioners’ counsel, however, the Commission Clerk advised that he would omit from the record some of the items requested. There is no claim that any of the disputed documents is confidential. In order to require the inclusion of these papers, petitioners have filed a motion to compel, pursuant to Rule 3.9(a), Florida Appellate Rules, 1962 Revision. We now grant this motion, and express no view on any other facet of this cause.

While procedure within administrative agencies is subject to statutory regulation, procedure in all Florida courts is governed by such rules of procedure as have been adopted by this Court. Fla.Const. art. V § 2(a) (1972); In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973). The present proceedings in this Court are governed by the appellate rules, pursuant to Rule 1.1, Florida Appellate Rules, 1962 Revision, and this is expressly recognized in Fla.Stat. § 120.68(2) (1974), which specifies that judicial review of agency action “shall be conducted in accordance with the Florida Appellate Rules.”

Under the appellate rules, the clerk of the Public Service Commission has the same duties as the clerk of a court. These duties are ministerial only. The clerk has no duty or authority to edit the record-on-appeal by selective compliance with directions duly filed by the parties. The Commission Clerk has no discretion to decide which staff memoranda or other materials this Court should see, and which it should not see.

It is no answer to say that an aggrieved party may apply to this Court, as petitioners have done in the present case, to compel the inclusion of materials in the record. Any such approach, as was said in a related context:

. places an unnatural and illogical duty upon the appellate court, which would rarely have before it sufficient information in the file from which to determine what papers are necessary [and] violates the fundamental concept of our court system and the function of a court in relation to the rights and contentions of the parties litigant.
A.N.E. v. State, 167 So.2d 769, 771 (Fla. App. 1st Dist. 1964).

Recent experience has taught that case by case resolution in this Court of such disputes serves only to add an additional, unnecessary step to review of Public Service Commission orders. Exxon Co. et al. v. Florida Public Service Comm’n., Nos. 45, 152-4 (Fla., order entered July 3, 1974); Morgan Drive Away of Florida, Inc. v. Florida Public Service Comm’n., No. 45.-264 (Fla., order entered Sept. 23, 1974). Settling the record is an inappropriate function for this Court, in the first instance, and an unwise use of our resources, if we can do it at all, given the limited information available to the Court in the initial stages of proceedings here.

The Commission advances the argument that:

As the moving party, [petitioner] has the duty to convince the Court that the Commission should be compelled to make the items at issue part of the record on appeal. If the Court has as much trouble locating what moves the movant as the Commission has had from reading the Motion to Compel, we would offer that it should be summarily rejected without further ado. . . .

The claim in essence is that these papers have not yet been shown to be relevant for review purposes. The decision as to relevancy is for this Court to make when it is in a position to do so, namely, when it has before it what the parties, or any of them, directs to be included in the record-on-appeal, in support of their respective theories of the case.

The motion to compel is granted.

ADKINS, C. J., and OVERTON, ENGLAND and SUNDBERG, JJ., concur.

      .The clerk’s letter reads, in part, as follows:
      It is the Commission’s position that neither the minutes of Commission conferences nor staff memoranda are parts of the record in this docket as that term is used in § 120.24(2), Florida Statutes.
      . . . Until otherwise directed by the Supreme Court, the Commission will not make staff memoranda or conference minutes part of the record on appeal.
      The Commission Clerk’s letter shows that he relied on Ch. 61-280, § 2, 1961 Fla.Laws (repealed by Ch. 74-310, § 4 effective Jan. 1, 1975) as authority for making up the record on appeal without the conference minutes and staff memoranda called for by petitioners’ directions. This subsection, until its repeal a provision of the Administrative Procedure Act, was codified as Fla.Stat. § 120.-24(2) in Part II of the Act, styled “Administrative Adjudication Procedure”. The subsection reads as follows:
      The agency shall . . . preserve the testimony and exhibits in the agency proceeding, and the recommended order of the hearing examiner or member of the agency, if any, together with all pleadings, briefs and requests filed in the agency proceeding which shall constitute the exclusive record for any final order. .
      Even though this provision has been repealed, the new Administrative Procedure Act directs that “administrative adjudicative proceedings begun prior to January 1, 1975, shall be continued to a conclusion under the provisions of the Florida Statutes, 1973 . . . ” Fla.Stat. § 120.72(2) (1974).

      .The items which were directed to be included but which were omitted are:
      1. The written Minutes of the Commission Conference dated January 6, 1975.
      2. Written Minutes of the Commission Conference dated Monday, January 20, 1975.
      3. Written Memorandum from the Legal Department of The Florida Public Service Commission addressed to The Administrative Secretary dated March 26, 1974.
      4. Written Memorandum from the Legal Department of The Florida Public Service Commission addressed to Administrative Secretary dated January 3, 1975.
      5. Written Memorandum from the Legal Department of The Florida Public Service Commission addressed to Commission Clerk dated June 30, 1975.

      . There is no claim that any of the documents in controversy is confidential. It is presumably impossible for documents to be specified in the parties’ directions to the clerk, unless they are already known to the parties. Nothing we say today should be construed to authorize discovery of documents by means of assignments of error drawn with any less precision than those set out ante n. 2.


author: BOYER, Chief Judge.

text:
    UNIJAX, INC., a Florida Corporation, Appellant, v. FACTORY INSURANCE ASSOCIATION, etc., et al., Appellees.
    No. X-122.
    District Court of Appeal of Florida, First District.
    March 1, 1976.
    Rehearing Denied April 1, 1976.

      John B. Chandler, Jr. and G. Kenneth Norrie, of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant.
    Delbridge L. Gibbs, of Marks, Gray, Conroy & Gibbs, Jacksonville, John W. Morrison, of Clausen, Miller, Gorman, Caff rey & Witous, Chicago, Ill., for appel-lees.
   BOYER, Chief Judge.

This is an appeal from a Final Summary Judgment, and a subsequent order denying a motion for consideration, entered by the Circuit Court of Duval County. The real issue, though not so framed by any party hereto, is whether appellant (as distinguished from its subsidiaries) sustained an insured loss under a certain policy of insurance issued by appellee, Factory Insurance Association.

It is axiomatic that summary judgment may not be used as a substitute for trial and that if the pleadings, depositions, answers to interrogatories, admissions, affidavits and other evidence in the file raise the slightest doubt upon any issue of material fact then a summary judgment may not be entered. (Connell v. Sledge, Fla.App. 1st 1975, 306 So.2d 194) We must, therefore, in order to resolve the issues presented by this appeal, examine the uncontroverted evidence in the light of those principles of law.

The litigation giving rise to this appeal was commenced, and at all times has been maintained, by appellant (Unijax) on its own behalf, to recover under a business interruption policy issued by appellee (FIA) for a loss Unijax claims to have sustained. In each count of its six count Complaint directed against FIA, (Count VII was later amended as to defendant, Womble, only), appellant alleged an August, 1969, fire loss to a paper mill in Elizabeth, Louisiana, and that it (Unijax) did “own and operate said paper mill through its subsidiaries”. Appellant alleged further that “as a direct result of said fire loss, Unijax sustained a business interruption loss of $4,447,361.00”. The amount claimed to be due from FIA to Unijax, after credit for a prelitigation payment of $3,494,874.00, is $952,487.00.

FIA asserted defenses to each count of the Complaint alleging inter alia, that:

1. Unijax sustained no loss insured against under the policy sued upon; and alternatively,

2. By reason of a coinsurance clause in the policy, FIA’s liability is limited to, and cannot exceed, that amount paid under its policy prior to the commencement of suit.

The Circuit Court entered its summary judgment based upon its finding that Uni-jax has not sustained an insured loss; i. e. that Unijax’s business had not been interrupted by the Louisiana fire.

It is important that we emphasize that the issues raised by the parties, and therefore herein resolved, do not relate to whether the subject policy afforded coverage (except as to the dispute relative to the coinsurance clause) for the fire loss, nor as to whether appellant’s subsidiaries have a viable claim. Since those issues are not raised, we do not address them.

The insurance contract, which forms the basis for this litigation, identifies the insureds as:

“Jacksonville Paper Company and all subsidiary and affiliated companies as normally constituted whether owned or leased, Elizabeth, Louisiana”.

The coverage afforded by the policy, (i. e. the subject of the insurance), is delineated throughout the contract as follows:

“Subject to all its provisions this Policy insures against loss resulting only from the necessary interruption of business conducted by the Insured on premises situated: within the area located on both side of Main Street and westerly of Highway Route No. 112 in Elizabeth, Allen County, Louisiana.”

It is readily apparent from the foregoing provisions of the policy that in order for Unijax (successor to Jacksonville Paper Company) to have a claim under the policy it (Unijax) must have suffered a loss resulting from interruption of its business conducted on the described premises in Louisiana. This is necessarily so because the subsidiaries of Unijax (as well as its affiliated companies) are also insureds and they (not Unijax) are entitled to a claim for their losses, if any, within the coverage of the policy.

The designated insureds under the policy sued upon, their relationship inter se and to the property described in appellee’s policy, are as follows:

Unijax, Inc., a Florida corporation, appellant herein, is the successor to the corporation heretofore known as Jacksonville Paper Company, a Florida corporation. (There is no contention that Unijax does not enjoy the same protection under the policy as that afforded its predecessor.) Unijax is a wholly-owned subsidiary of IU International Corporation and is the parent of Calcasieu Paper Company and Southern Maid Paper Company. (Neither Unijax, nor its predecessor, were ever authorized to do business in Louisiana; the location of the fire which has given rise to this litigation.) Calcasieu Paper Company (Cal-casieu) is a Louisiana corporation not admitted to do business in Florida. It is a subsidiary of Unijax, and was, together with Southern Maid Paper Company, the owner of the property affected by the subject fire. Southern Maid Paper Company (Southern Maid) is a Florida corporation, admitted and doing business in Louisiana. IU International Corp. (IU), formerly International Utilities Corporation, is a Maryland corporation, which, at times relevant, had its offices in Philadelphia, Pennsylvania, its principal place of business being in Wilmington, Delaware. IU has literally hundreds of other subsidiaries. One of those subsidiaries is an operations controlling company, which is known as International Utilities Management and Services Corporation, (Management & Services Company), located in Philadelphia, Pennsylvania. The function of the Management and Services Company was inter alia, to provide consulting assistance and “to see that the subsidiaries were well-run and profitable”.

In 1968, IU acquired Jacksonville Paper Company and all its subsidiaries, including Calcasieu and Southern Maid. Thereafter, IU caused the name of Jacksonville Paper to be changed to Unijax. From December of 1968, up through and including the date of the fire, Management & Services Company, on behalf of the parent IU, had the power to exercise complete control over Unijax (Jacksonville Paper), Calcasieu-and Southern Maid.

In military terms, the “chain of command” between the above-named companies from top to bottom was: IU had the “power” of control over Management & Services Company, which had the power of control over Unijax, which had the power of control over its subsidiaries Calcasieu and Southern Maid, which had the power of control and owned the property damaged by the fire, which was located in Elizabeth, Louisiana. It was that fire which resulted in the business interruption losses, which are the subject of this action by Unijax.

The amount of the policy in force on the date of loss, and at all times prior thereto, was determined by Reports of Values (business interruption work sheets) filed on behalf of Calcasieu and Southern Maid only. No reports of business interruption values were filed prior, or subsequent to, the loss for Unijax or Jacksonville Paper.

Following the fire in August of 1969, at the insured premises in Louisiana, interruption of business losses were incurred. When the parties attempted to adjust the losses a disagreement arose as to the application of a coinsurance provision in the policy. FIA acknowledged, however, notwithstanding the coinsurance penalties, that it did incur obligations on account of the fire. To the end of satisfying its obligations, FIA sought agreement as to the amounts of the losses sustained on the Cal-casieu and Southern Maid properties. Upon agreement as to the extent of the business interruption losses sustained as a result of the fire, the parties agreed that the maximum amount recoverable under the policy was $4,447,361.00. It was then determined that if, as FIA contended, the coinsurance provision was applicable, the recovery would in the aggregate, be reduced by $952,487.00. The sum of the uncompensated loss was arrived at by reducing the recoverable loss of Calcasieu by $695,609.00 and of Southern Maid by $256,878.00. FIA, thereupon, paid $3,494,874.00. The difference between the amount paid ($3,494,874.00) and the maximum agreed to be recoverable ($4,447,361.-00) is the amount claimed by appellant in this lawsuit.

As of the date of the post-loss agreement, August 20, 1970, it was understood by all concerned that the loss and penalty calculations were predicted upon and limited to business interruption losses of Calcasieu and Southern Maid. The source of all dollar amounts referred to in the agreement came from information furnished as to the business interruption losses of Cal-casieu and Southern Maid. Unijax never did business in Louisiana, and it owned no property in Louisiana affected by the fire.

The agreement for payment, which was between FIA and Unijax, hereinabove referred to concluded with the following paragraph:

“4. Except as specifically provided herein, nothing contained in this Agreement is intended to waive or modify the conditions and requirements of the policy or in any manner to change or modify the coverage afforded by the policy, nor shall this Agreement constitute or be construed to constitute a waiver or relinquishment of any of the rights of Factory and its member companies or Unijax under the policy.”

Subject to the payment by FIA pursuant to said agreement of $3,494,874.00, the suit giving rise to this appeal was commenced; followed by motions directed to the pleadings and extensive discovery, which was, among other things, directed to an attempt to determine the intertwining corporate relationships between the super-parent, IU, its intermediaries, its out of state subsidiaries, including Unijax and the Unijax subsidiaries in Louisiana.

On November 12, 1973, an official of IU, one Keber, was deposed in Philadelphia. His deposition was not corrected and filed until December 31, 1973. Within 60 days, thereafter, FIA filed its Amended Answer alleging that Unijax had not sustained an insured loss as a result of the fire in Elizabeth, Louisiana. Consistent with its original pleadings, appellant (Uni-jax) maintained it had sustained a business interruption loss. At no time prior to the motion for summary judgment did appellant allege or otherwise contend that anyone other that it (Unijax) sustained a business interruption loss as a result of the subject fire.

In each count of its Complaint, appellant bottoms the theory of its recovery upon the insurance contract, the occurrence of the August, 1969 fire, and its allegation that it, Unijax, “owned and operated a paper mill in Elizabeth, Louisiana . . . through its subsidiaries, Calcasieu Paper Company, Inc. and Southern Maid Paper Company.” As already observed, the policy afforded coverage to multiple insureds: Unijax (Jacksonville Paper), Calcasieu and Southern Maid, all being separate insureds under the policy. The latter two corporations together with other entities, including IU, fall within the category description “subsidiary and affiliated companies”.

Unijax, Calcasieu and Southern Maid being separate entities, and each separately insured, (though under the same policy) the rights of one under the policy are separate and independent of the rights of the others. In Gordon Chemical Co. v. Aetna C. & S. Co., 358 Mass. 632, 266 N. E.2d 653 (1971), the defendant-insurer issued a business interruption policy naming three corporations as insureds. As a result of fire, one of the insureds (Gordon Chemical) was unable to carry on its manufacturing operations. The business of the three insureds was interrelated and the management functions of Gordon Chemical and that of another corporate insured (Hammond Plastics) were performed by the same persons. In rejecting the contention that the three corporations should be treated as one for insurance purposes, the Court, in language especially applicable to the case at bar, stated:

“The defendant further argues that the three corporations in question should be treated as one single corporation for the purposes of the insurance policy. If this is done, no loss was sustained. The defendant argues that since Hammond, Gordon, and Gordon Realty are owned and controlled by the same persons, operating branches of one business, each of which was interdependent with the other, and insured for one amount under one policy with the defendant, they are one single insured and that their interests appear and are in fact the same. The short answer is while their interests may appear to be, they are not in fact the same. * * *
“Although the corporations had common management, the employees of Gordon otherwise were different persons from the employees of Hammond. Separate books of account for each company were kept by different individuals. Go'rdon lost net profits after the fire. Hammond had an increase in profits after the fire.
‘Ownership of all the stock in several corporations by one person does not create a single unit or justify a disregard of separate corporations. * * * Different corporations usually are distinct entities in law. It is only where the corporation is a sham, or is used to perpetrate deception to defeat a public policy, that it can be disregarded.’ New England Theatres, Inc v. Olympia Theatres, Inc., 287 Mass. 485, 493, 192 N.E. 93, 97. ‘The ownership of all the stock and the absolute control of the affairs of a corporation do not make• that corporation and the individual owner identical, in the absence of a fraudulent purpose in the organization of the corporation.’ M. McDonough Corp. v. Connolly, 313 Mass. 62, 66, 46 N.E.2d 576, 579. Galdi v. Caribbean Sugar Co., 327 Mass. 402, 407-408, 99 N.E.2d 69. My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 233 N.E.2d 748. There is no justification here for disregarding the separate existence of each of the corporations named in the policy. They were as a matter of law separate and distinct legal entities when the policy was entered into, when the fire occurred and thereafter.” 266 N.E.2d 653, 657. (Emphasis supplied)

The holding of the court in Gordon Chemical, supra, that claims of various entities, even though interrelated, must be treated separately, and that the rights of each must be maintained in separate actions, is in accord with Florida law. (Kassner v. Travelers Ind. Co., Fla.App.3rd 1973, 285 So.2d 686) In the latter case, our sister court said:

“The fact that separate independent causes of action under an insurance contract may have arisen and accrued to two different parties or entities from a single wrong or under one contract, does not preclude, but on the contrary requires their bringing separate actions thereon. Atlanta & St. A. B. Ry. Co. v. Thomas, 60 Fla. 412, 53 So. 510.” 285 So.2d 686, 687. (Emphasis supplied)

There being three separate and distinct corporate entities, Unijax, Calcasieu and Southern Maid, each of which must maintain its own action to recover for its own loss, it is manifest, as determined by the trial court, that absent establishment of a transfer of rights by Calcasieu and Southern Maid to Uni-jax, Unijax must establish, in its own right, its own entitlement under the contract sued upon. In derogation of this precept, appellant seeks to recover in its own name on behalf of corporations which did business in Louisiana and from whom it has not received, nor does it claim to assert, any derivative rights. The Court below found, based upon the admissions of appellant appearing in responses to Requests to Admit and in depositions, that Unijax (Jacksonville Paper) did not own property in Elizabeth, Louisiana, on the date of the loss and that it was never authorized to do business in Louisiana. It is thus apparent that the business of Unijax was not “conducted ... on premises situated ... in Elizabeth, Allen County, Louisiana.” Unijax could not, therefore, have sustained a “loss resulting . . . from . . . the necessary interruption of its business” by the fire, which occurred in Elizabeth, Louisiana, in August of 1969.

The record establishes that the only connection between Unijax on the one hand, and Calcasieu and Southern Maid and the fire damaged property on the other, is appellant’s ownership of stock in Calcasieu and Southern Maid. The only manner, therefore, in which appellant was affected by the fire was a “possible” diminution in the value of its stock in its subsidiaries. Nowhere in FIA’s policy is coverage found for a paper loss due to the diminution of an insured’s stock holdings in a subsidiary, or any other corporations.

Appellant’s argument that it was doing business in Louisiana “through its subsidiaries, Calcasieu Paper Company and Southern Maid Paper Company” must also be rejected on the basis of other well settled legal precepts: The relationship of parent and subsidiary is not of itself sufficient to constitute doing business by the parent in the state where the subsidiary functions. Consolidated Textile Co. v. Gregory, 289 U.S. 85, 53 S.Ct. 529, 77 L. Ed. 1047 (1933); Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634 (1925); Edwin Raphael Co. v. Maharam Fabric Corp., 283 F.2d 310 (7th Cir. 1960); Berkman v. Ann Lewis Shops, 246 F.2d 44 (2nd Cir. 1957); Harris v. Deere & Co., 223 F.2d 161 (4th Cir. 1955).

Consistent with the foregoing, courts have uniformly held that a parent company is not liable for the torts of its subsidiaries, unless the subsidiary is operated as a “mere instrumentality” of the parent. Taylor v. Standard Gas and Elec. Co., 96 F.2d 693 (10th Cir. 1938) reversed on other grounds, 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939). The “mere instrumentality” rule is rarely applied and only under special circumstances, for it runs contrary to established principles of corporate identity.

“The instrumentality rule should only be invoked after mature consideration and caution. Indiscriminate application would destroy the purpose of the corporate law.” Brown v. Margrande Compania Naviera, 281 F.Supp. 1004, 1006 (E.D.Va.1968). (Emphasis supplied)

The tests to be applied for the instrumentality rule were set out in Steven v. Roscoe Turner Aeronautical Corp., 324 F.2d 157, 160 (7th Cir. 1963):

“In order to establish that a subsidiary is the mere instrumentality of its parent, three elements must be proved: control by the parent to such a degree that the subsidiary has become its mere instrumentality ; fraud or wrong by the parent through its subsidiary, e. g., torts, violation of a statute or stripping the subsidiary of its assets; and unjust loss or injury to the claimant, such as insolvency of the subsidiary.” 324 F.2d 157, 160.

None of the three elements above referred to have been alleged, much less established, by appellant sub judice. The facts established by the record, even when viewed in the light most favorable to appellant, conclusively show that Calcasieu and Southern Maid are not the “mere instrumentality” of Unijax, as that concept has been defined by law. Neither ownership of all of the stock of a subsidiary, nor common officers and directors, nor both combined, are sufficient per se to justify “Piercing the corporate veil”. (See St. Petersburg Sheraton Corp. v. Stuart, Fla. App.2d 1970, 242 So.2d 185)

Additional facts, which must be present to invoke the Instrumentality Rule, have been variously described “as direct intervention” in the subsidiary’s affairs (Kingston Dry Dock Co. v. Lake Champlain Transportation Co., 31 F.2d 265, 267 (2nd Cir. 1929)); the “act of operation” of the subsidiary’s business (Berkey v. Third Avenue Ry. Co., 244 N.Y. 84, 155 N.E. 58, 61, (1926)); or “the exercise of control, not the opportunity to exercise control”. (Brown v. Margrande Compañía Naviera, supra, at 1006) Nothing of the kind is present in this case.

Appellant’s next argument is founded upon its claim that it is the real party in interest. Clearly, the argument of real party in interest, in the context of this case, has as its necessary predicate the right of a parent corporation to absorb the rights of its subsidiaries with the resulting divestiture in the subsidiaries of any cause of their cause of action. To sustain such a theory, this Court must ignore the separate identities of the corporations and the judicial mandate that their respective rights under appellant’s policy “requires their bringing separate actions thereon”. (Kassner v. Travelers Ind. Co., supra)

Further, even acceptance of appellant’s theory of the law requires rejection of Unijax as the real party in interest: Unijax argues in its brief that it is the real party in interest, as it is the party “ultimately” entitled to the benefits of the insurance; i. e. that the party ultimately entitled to the insurance proceeds is the real party in interest. If Unijax, as parent of Calcasieu and Southern Maid, is a beneficiary of any monies which might be due to its subsidiaries, then it is clear that the parent of Unijax, IU, and “affiliated” company is the “ultimate” beneficiary, and IU, not Unijax, is the real party in interest.

Appellant’s third argument, that ap-pellee is estopped from asserting that Uni-jax did not sustain an insured loss, is necessarily founded upon the proposition that matters of coverage (as distinct from contentions of forfeiture) are subject to the doctrines of waiver and estoppel. This is an erroneous view of the law, which has been rejected by Florida courts. Six L’s Pack. Co., Inc. v. Florida Farm Bur. Mut. Ins. Co., Sup.Ct.Fla.1973, 276 So.2d 37 affirming Fla.App.4th 1972, 268 So.2d 560; Hayston v. Allstate Ins. Co., Fla.App.3rd 1974, 290 So.2d 67; Kaminer v. Franklin Life Ins. Co., 472 F.2d 1073 (5th Cir. 1973); Johnson v. Dawson, Fla.App.3rd 1972, 257 So.2d 282; and see cases collected in 1 A.L.R.3d 1139 and Supplement.

In Six L’s Pack. Co., Inc., supra, the Florida Supreme Court, in considering a value reporting form policy, found for the insurer, and in so doing, adopted as its ruling, the decision of the District Court of Appeal. One of the issues before the courts on review was the same question confronting this Court, to wit: whether the doctrines of waiver or estoppel are applicable to matters of coverage. The Court of Appeal answered this question in the negative stating:

“The general rule is well established that the doctrine of waiver and estoppel based upon the conduct or action of the insurer (or his agent) is not applicable to matters of coverage as distinguished from grounds for forfeiture. 18 Fla.Jur. Insurance § 677, and 43 Am. Jur.2d Insurance § 1184. State Liquor Stores, #1 v. United States Fire Ins. Co., Fla.App.1971, 243 So.2d 228; Johnson v. Dawson, Fla.App.1972, 257 So.2d 282. See also Alaska Foods, Inc. v. American Mfr's Mut. Ins. Co., Alaska 1971, 482 P.2d 842; Commonwealth Ins. Co. of New York v. O. Henry Tent & Awn. Co., 7 Cir. 1961, 287 F.2d 316. In other words, while an insurer may be es-topped by its conduct from seeking a forfeiture of a policy, the insurer’s coverage or restrictions on the coverage cannot be extended by the doctrine of waiver and estoppel.” 268 So.2d 560, 563 (1972). (Court’s emphasis)

To the same effect in Hayston v. Allstate Ins. Co., supra, where the plaintiff claimed that the defendant’s failure to participate in an arbitration proceeding estopped the insurer from asserting lack of coverage as a defense.

The rationale for the rule that waiver and estoppel are not applicable to matters of coverage has been succinctly explained as follows:

“While waiver and estoppel have been held applicable to nearly every area in which an insurer may deny liability, the courts of most jurisdictions agree that these concepts are not available to broaden the coverage of a policy so as to protect the insured against risks not included therein or expressly excluded therefrom. The theory underlying this rule seems to be that the company should not be required by waiver and estoppel to pay a loss for which it charged no premium, and the principle has been announced in scores of cases involving almost every conceivable type of policy or coverage provision thereof.” 1 A.L.R.3d 1139, 1144.

We further note that the agreement for prelitigation payment, which is the touch stone for Unij ax’s waiver and estop-pel argument, provides in paragraphs 3 and 4 as follows:

“3. Factory agrees to pay and Unijax agrees to accept $3,494,874, provided, however, that such payment and acceptance shall not be regarded as a final settlement of the rights of the parties and shall be deemed to be without prejudice to the right of Unijax to contest the applicability to the loss of the 80% co-insurance clause and to the payment of any amount less than $4,447,361, and without prejudice to the rights of Factory to defend against such claim. Unijax may enforce its said rights by an action at law in a court of competent jurisdiction or otherwise as may be advisable, and it is agreed that the time to institute any such action or proceedings be and the same hereby is extended to January 18, 1971.
“4. Except as specifically provided herein, nothing contained in this Agreement is intended to waive or modify the conditions and requirements of the policy or in any manner to change or modify the coverage afforded by the policy, nor shall this Agreement constitute or be construed to constitute a waiver or relinquishment of any of the rights of Factory and its member companies or Unijax under the policy.” (Emphasis supplied)

Upon considering the foregoing provisions of the agreement the learned trial judge concluded as a matter of law:

“The language of the Agreement does not sustain plaintiff’s claim of estoppel, but rather Para. 4 thereof specifically provides that it does not waive or modify any conditions or requirement of the policy or the coverage thereof. Based on the depositions, admissions on file and the admissions of plaintiffs counsel during argument of the motion, all figures in the Agreement relate to losses and expenses sustained by Calcasieu and Southern Maid and do not represent any loss or expense of Unijax.”

In summary, inasmuch as it appears that the subject policy of insurance insures multiple parties and that the interruption of business losses were sustained not by appellant but by separate corporate entities, Calcasieu and Southern Maid, it is clear that appellant Unijax, did not sustain an insured loss as a result of the fire on the properties of its subsidiaries in Louisiana.

Appellant further argues that its stock in its subsidiaries, Calcasieu and Southern Maid, was diminished in value and that therefore appellant sustained the loss. Assuming, without deciding, that such assertion by appellant is accurate, it nevertheless clearly appears that appellees’ policy of insurance does not cover stock losses. As already repeatedly observed, that policy “insures against loss resulting only from the necessary interruption of business conducted” on the described premises in Louisiana. It is therefore abundantly clear that the learned trial judge did not err in entering the summary final judgment in favor of FIA and against Un-ijax.

We next consider appellant’s attack upon the summary judgment in favor of appellee Womble. Count Seven of appellant’s complaint, as amended, alleges that appellee Womble was engaged by Uni-jax as its agent to procure a business interruption insurance policy to adequately protect Unijax and perform certain other functions such as providing expert counsel and advice concerning the business interruption policy. In entering the summary. final judgment, the trial judge found that Womble was entitled to summary judgment on the same ground advanced by FIA, viz: that Unijax suffered no insured loss under the policy. Appellant argues in its brief that “Womble is charged in the complaint as amended with having negligently failed to procure and maintain adequate business interruption insurance for Unijax. If Womble procured a policy upon which Un-ijax could not recover in the event of a loss, such as one in which Unijax had no insurable interest as the trial court found was here the case, the coverage obtained by Womble was hardly ‘adequate’ ”. In so arguing, appellant has missed the point of the controversy. By appellants own argument, as above quoted, Womble was allegedly charged with the responsibility of procuring and maintaining on behalf of Uni-jax adequate business interruption insurance. Inasmuch as any loss sustained by Unijax was a result of diminution of the value of its stock in its subsidiaries and not as a result of any interruption of the business of Unijax then it necessarily follows that since Uni j ax suffered no loss as a result of interruption of its business it suffered no loss as a result of any failure or fault on the part of Womble. The learned trial judge was imminently correct when he entered summary judgment for Womble also.

Affirmed.

RAWLS and SMITH, JJ., concur.


text:
    Lenora JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-560.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The evidence was sufficient to sustain appellant’s conviction of uttering a forgery. As to Point II, the trial court did not err in refusing to instruct the jury on attempting uttering of a forgery. See, King v. State, 317 So.2d 852 (Fla.App. 1st, 1975).

At P IKMJiJL».

CROSS, OWEN and MAGER, JJ., concur.


text:
    Patrick G. DRUMMETT, Appellant, v. STATE of Florida, Appellee.
    No. 75-839.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Lance R. Stelzer and Paul H. Zacks, Asst. Attys. Gen., Miami, for appel-lee.
   PER CURIAM.

The trial court erred in denying defendant’s motion to suppress his statements in that they were clearly induced by improper promises of a police officer. Appellant’s other points are without merit. We reverse and remand upon authority of Jarriel v. State, 317 So.2d 141 (Fla.App. 4th, 1975) and M. D. B. v. State, 311 So.2d 399 (Fla.App. 4th 1975).

Reversed and remanded.

WALDEN, C. J., DOWNEY, J., and MORROW, RUSSELL O., Associate Judge, concur.


author: MORROW, RUSSELL O., Associate Judge.

text:
    Jeff Allen WILSON, Appellant, v. Oscar KANTER, Appellee.
    No. 75-686.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    A1 Frier, West Palm Beach, for appellant.
    Frank W. Weathers, of Weathers & Narkier, P. A., West Palm Beach, for ap-pellee.
   MORROW, RUSSELL O., Associate Judge.

This is a timely appeal by the plaintiff-appellant from a final summary judgment for the defendant-appellee in a personal injury action arising out of a motor vehicle accident which occurred on June 19, 1969. Suit was filed June 20, 1973 one day after the Statute of Limitations had run. The appellee was a resident of Florida at the time of the accident but later became a nonresident.

The question presented is whether the Statute of Limitations was tolled by reason of the absence of the defendant from the State of Florida. The trial court entered final judgment for the defendant, holding the statute was not tolled.

Florida Statute § 95.07 (now repealed) provided,

“ • • • and if after the cause of action shall have accrued he departs from the state, the time of his absence shall not be part of the time limited for the commencement of the action.”

The plaintiff contends said Statute is clear and unambiguous and does toll the time of limitation within which an action may be brought.

When another statute comes into play, the effectiveness of each on the other must be determined. In this case Florida Statute 48.171 “Service on nonresident motor vehicle owners, etc.” is applicable. In Matthews v. Matthews, 177 So.2d 497 (Fla.App.2d, 1965), a fraud action, the court held that the defendant’s absence from the state did not toll the running of the statute of limitations because she was amenable to substituted service of process. Dibble v. Jensen, 129 So.2d 162 (Fla.App. 3d, 1961), holds that when defendant became a nonresident of Florida she was amenable to service of process and the statute of limitations was not tolled. However, the complaint herein was not filed within the statutory time. In an earlier case Roess v. Malsby Co., 69 Fla. 15, 67 So. 226 (1915), the court held that if notice of action can be served on a nonresident person or corporation such person or corporation is not a nonresident as contemplated by the statute in question. The plaintiff did not file suit within the statute of limitations and was barred thereby.

AFFIRMED.

WALDEN, C. J., and DOWNEY, J., concur.


author: OWEN, Judge.

text:
    Randy L. HERDMAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1716.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant was charged by information with obtaining property by means of a worthless check, proscribed by Fla.Stat. § 832.05(3) (1973). Convicted on his own guilty plea, he now contends that the information wholly failed to charge a criminal offense in that it did not specifically allege an intent to defraud. His reliance upon the case of Anderson v. Bryson, 94 Fla. 1165, 115 So. 505 (1927), is mispláced as the statute has been amended subsequent to that decision. In Ennis v. State, 95 So.2d 20 (Fla.1957), cert. den., 355 U.S. 868, 78 S.Ct. 117, 2 L.Ed.2d 74 (1957), which does not at all hold what United States v. Frazier, 444 F.2d 235 (5th Cir. 1971), said it did, an information substantially identical to the one in the case at bar, in which there was no allegation of an intent to defraud, was held to contain every essential element required by the statute.

AFFIRMED.

CROSS and DOWNEY, JJ., concur.


author: HOBSON, Judge.

text:
    R. R. WALDEN, as Tax Assessor of Hillsborough County, Appellant, v. UNIVERSITY OF SOUTH FLORIDA FOUNDATION, HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, and K. C. Bullard, as Tax Collector of Hillsborough County, Florida, Appellees. DEPARTMENT OF REVENUE for the STATE of Florida, Appellant, v. UNIVERSITY OF SOUTH FLORIDA FOUNDATION, HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, and K. C. Bullard, as Tax Collector of Hillsborough County, Florida, Appellees.
    Nos. 74-1427 and 74-1434.
    District Court of Appeal of Florida, Second District.
    March 12, 1976.
    Brooks P. Hoyt, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant Tax Assessor.
    Robert L. Shevin, Atty. Gen., and Stephen E. Mitchell, Asst. Atty. Gen., Tallahassee, for appellant Dept, of Revenue.
    Richard N. Stein, Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellee Foundation.
   HOBSON, Judge.

This appeal is from a final summary judgment wherein the trial court held that the appellee, University of South Florida Foundation, was an educational institution within the purview of Chapter 196, Florida Statutes. The Foundation owned two parcels of property, one of which was immediately adjacent to the University of South Florida campus and improved by two 2-story apartment buildings. As to this parcel the trial court held that it was totally exempt from ad valorem taxation because it was used exclusively for an exempt purpose, to wit, educational. We conclude that the trial court was eminently correct as to this parcel and the final summary judgment as to this parcel is affirmed.

The other parcel was approximately 30 acres situated on Lake Thonotosassa. Included in this parcel was a five-acre orange grove from which the Foundation received approximately $200 a year from the sale of the citrus fruit. The trial court held that the orange grove should be severed from the remaining property as it was not used for educational purposes. He further held that the remaining property was exclusively used for educational purposes and, therefore, was exempt from ad valorem taxation. After severing the orange grove the trial court held that the Foundation was liable for ad valorem taxes on the five-acre grove.

Florida Statute 196.192 states:

“All property used predominantly for exempt purposes shall be exempted from ad valorem taxation to the extent of the ratio that such predominant use bears to the nonexempt use.”

The Lake Thonotosassa property being one tract of land which included the orange grove, the trial court should have applied the above statute as to the predominant use and determined the ratio that such predominant use bears to the nonexempt use.

We have carefully considered the other points on appeal and cross appeal and find them to be without merit.

For the foregoing reasons the final summary judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

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


text:
    Lawrence S. ROBERTS, Appellant, v. Lucy N. ROBERTS, Appellee.
    No. 75-905.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1976.

      George E. Adams, of Adams, Gilman & Cooper, Orlando, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an interlocutory appeal from an order adjudging appellant to be in contempt of court for failure to pay certain alimony and child support payments due under the terms of a final judgment of dissolution of marriage. The order sentenced appellant to a term of imprisonment and provided that appellant could purge himself (speaking generally) by paying the sums of money already accrued and past due and by paying the sums to become due in the future.

We affirm in part and reverse in part with these comments:

A. Appellant being in default, the burden of proving his inability to comply and that his failure was not willful rests upon appellant. Garo v. Garo, 327 So.2d 845 (Fla.App. 4th (1976)).

B. While the order of presentation was confused, the cause for this lay at appellant’s door. It is our opinion from the record that appellant had adequate opportunity to present his testimony and position. Further, the record supports the appealed adjudication of contempt.

C. Without detailing, we disagree with the Court’s action which required appellant to pay sums not yet due, as it is erroneous to require a person to pay amounts not yet due in order to purge himself of contempt. We reverse only that part of the order which requires as a condition of appellant’s purging himself that he pay sums coming due in the future. See Hilson v. Hilson, 145 So.2d 557 (Fla.App. 3rd 1962).

Affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

AFFIRMED IN PART AND REVERSED IN PART.

WALDEN, C. J., DOWNEY, J., and McCAULEY, JAMES A., Associate Judge, concur.