author: ADKINS, Chief Justice. OVERTON, Justice ENGLAND, Justice WILLIAMS, Circuit Judge

text:
    Edward F. BOARDMAN, Petitioner, v. Henry ESTEVA, Respondent.
    No. 46282.
    Supreme Court of Florida.
    Sept. 30, 1975.
    Rehearing Denied Jan. 6, 1976.

      J. Michael Hayes, Gregory, Cours, Pan-iello, Johnson & Hayes, Tampa, and Joseph C. Jacobs and Robert J. Angerer, Er-vin, Varn, Jacobs & Odom, Tallahassee, for petitioner.
    Leo Foster, Tallahassee, and Henry Es-teva, in pro. per., for respondent.
   ADKINS, Chief Justice.

On petition for certiorari, we have for review a decision of the First District Court of Appeal in Esteva v. Hindman, 299 So.2d 633 (Fla.App.1st, 1974), which allegedly conflicts with this Court’s decision in State ex rel. Hutchins v. Tucker, 106 Fla. 905, 143 So. 754 (1932). The source of our jurisdiction is Fla.Const., art. V, § 3(b) (3), F.S.A.

This is a contest of the October 3, 1972, election for a seat on the Second District Court of Appeal, in which the petitioner, Boardman, was declared winner over respondent, Esteva. Although Esteva received 404 more machine or regular votes than did Boardman, the latter received 653 more absentee ballots, for an overall majority of 249 votes. This dispute solely involves the validity of the 3,389 absentee ballots cast in the election.

Esteva brought suit in the Circuit Court for the Second Judicial Circuit seeking to have the court declare him the winner of the election on the basis of the machine vote only, and to have the election declared illegal in respect to the absentee ballots cast. Although no fraud or wrongdoing was charged, Esteva alleged that there were some 1450 irregularities or errors in the absentee ballots. Therefore, since 250 votes for Esteva could change the result of the election and it was impossible to identify for whom the illegal ballots had been cast, the ballots being commingled, the absentee ballots should be thrown out. The trial judge, after considering the pleadings, admissions, affidavits and other matters on file, together with arguments of counsel for the respective parties and their briefs, granted summary judgment for Boardman, finding that of the 1450 alleged flaws, only 88 set forth a real basis to conclude that the ballots were illegal. Among these were 13 in which the application was not signed by the applicant, 17 in which return envelopes were not signed across the flap, 39 in which the official title of the subscribing witness was not indicated and 19 in which the names of the electors were not on record.

The trial court concluded that the remainder of the alleged irregularities involved a number of “clerical misprisions or omissions, most of which are of so little real significance as to be fairly classified as unsubstantial.” For example, the court found:

“(d) There are shown 16 in which the reason for voting absentee was not specifically indicated on the application and 79 in which such reason was not indicated on the return envelope. Each of these forms contains the five categories of persons who may vote absentee with instructions to ‘check appropriate reason’. Failure to put a check mark into one or more of those designations is not deemed fatal to the validity of the ballot. The signature of the elector is adequate to at least certify that one or more of the reasons is applicable and in the case of the certificate on the return envelope it is under oath. Even if these are to be counted illegal they would not change the results.
“(e) The other irregularities, such as address of attesting witness omitted, post office cancellation stamp not affixed, vague identification of witnesses, failure of deputies to record oath, and the other discrepancies are not of vital consequence and may be attributed more logically to human misunderstanding of minute technicalities than to lack of diligence to comply with essential requirements. Fraud, corruption or gross negligence are completely absent.
“(f) The plaintiff urges that all absentee votes of Hillsborough County, of which Esteva received 133 and Board-man 320, must be suppressed because they were counted and returns made in accordance with an injunction order of the Circuit Court of Hillsborough County in the case of Levine, et al. v. Fal-sone, et al., constituting the Canvass Board, Case No. 213299. It is contended that such procedure ordered by the Court violated F.S. 101.68 and other statutes and breached the fundamental requirement of secrecy. This Court does not interpret the Hillsborough Circuit Court order as having that effect and has not overlooked Papy v. Englander, Fla.App. (Third) 267 So.2d 111. However, in any event this Court has no appellate supervision of the circuit court which rendered the injunctive order, and will make no judgment except to approve the obedience of the election officials to its commands and to accept their returns pursuant thereto.”

On appeal, the District Court reversed, declaring Esteva the winner of the election. After concluding that the “Florida courts have long maintained and restated the principle that strict compliance with the statutory requirements for absentee voting is mandatory,” the District Court held:

“Thus far, we have shown irregularities sufficient to invalidate 612 absentee votes cast in this election. These include the 88 found by the trial court, the 16 in which no reason for voting absentee was indicated on the application, the 79 in which no such reason was indicated on the return envelope, and the 429 in which the envelopes were lost in Polk, Hendry and Glades counties. There are numerous other errors and omissions shown by appellant, such as vague identification of witnesses and omission of post office cancellation stamps and addresses of witnesses. Furthermore we have grave doubts as to the validity of the Hillsborough County Canvass of absentee ballots which numbers 453, with regard to the fundamental requirement of the secrecy of the ballot. However, we do not deem it necessary to rule on these other alleged irregularities in light of our conclusion that the irregularities found are sufficient in number to affect the results of this election.”

At issué is whether the absentee voting law requires absolute strict compliance with all its provisions, or whether substantial compliance is sufficient to give validity to the ballot.

We first take note that the real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and of utmost importance to the people, thus subordinating their interests to that of the people. Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right.

Notably existent in this dispute is the complete absence of any allegation of fraud, gross negligence or even the hint of intentional wrongdoing, either on the part of the voters or of the election officials Assuming that the absentee ballots counted in the election were cast by qualified, registered electors, who were otherwise entitled to vote absentee, notwithstanding the alleged defects, a majority of the voters in the Second District preferred Mr. Board-man over 'Mr. Esteva in October, 1973. This must not be overlooked. If we are to countenance a different • result, one contrary to the apparent will of the people, then we must do so on the basis that the sanctity of the ballot and the integrity of the election were not maintained, and not merely on the theory that the absentee ballots cast were in technical violation of the law.

In 1932 we first considered the construction of the absentee voting law. In State ex rel. Hutchins v. Tucker, supra, we held that several ballots had been illegally rejected and should have been counted where there had been a substantial compliance with the provisions of the absent voting statute.

Tucker was apparently overlooked seven years later when we made the statement in State ex rel. Whitley v. Rinehart, 140 Fla. 645, 192 So. 819 (1939), that the rigidity of its (absent voting statute, Ch. 16986, Acts of 1935) enforcement is an open question in this State. We held in Rinehart that, being in derogation of the common law, the absentee voting laws should be strictly construed. At issue in Rinehart, was the validity of certain absentee ballots allegedly cast by electors who were in the city on election day and other ballots cast by unregistered and unqualified citizens of some other state. These alleged defects directly affected the sanctity of the ballot, and would indeed have been held invalid under Tucker’s substantial compliance test.

Frink v. State ex rel. Turk, 160 Fla. 394, 35 So.2d 10 (1948), held that the absentee voting statute must have a strict interpretation. We said that the failure to comply with the clear language of the statute to the effect that the elector must swear in his application for absentee ballot that he expected to be absent from the county and not just the city on election day rendered the ballot of no effect. We. also said that the Legislature did not merely suggest a form of affidavit, but specifically stated in detail the substance and manner of its execution in Fla.Stat. § 101.07, 1941, F.S.A.

The strict interpretation rule was reaffirmed in the subsequent cases before this Court, however, not without exceptions. In State ex rel. Titus v. Peacock, 125 Fla. 810, 170 So. 309 (1936), decided after Hutchins but before Frink, we held that an erroneous or unlawful handling of otherwise valid absentee ballots by election officials will not void the ballots, provided the votes were legal in their inception and still capable of being given proper effect as such. This principle was reaffirmed in Jolley, supra, in 1952, thus etching an exception to the general rule of strict interpretation of absentee voting laws.

Without further analysis of the case law, and realizing as we do that strict compliance has been required by this Court in other cases, we now recede from that rule and hereby reaffirm the rule adopted in Tucker to the effect that substantial compliance with the absentee voting laws is all that is required to give legality to the ballot. We offer no opinion as to the validity of the ballots found to be invalid in the prior decisions had they been measured by the substantial compliance standard.

Originally absentee voting statutes were directed at making the voting privilege available to those engaged in military service. Rinehart, supra. Therefore, absentee voting was considered a privilege granted to electors, not an absolute right. Frink, supra. The purpose of the enactment of absentee voter statutes, therefore, was to enable a qualified voter to vote at a general election in the precinct of his domicile were he temporarily absent therefrom. Times obviously have changed, however, since the absentee voting laws were first enacted in Florida in 1917. We are no longer in the horse and buggy age. Society is much more mobile today and in fact depends to a great extent upon its mobility for survival. Regardless of the original reasons for the enactment of the absentee voter laws, they must be interpreted in light of modern conditions. This does not require a full scale re-enactment of the law. That is for the Legislature to do, and in fact the statute has been amended several times over the years. But the mere fact that a statute was enacted in 1917 does not require us to interpret it with a turn-of-the-century perspective. Although the convenience of the voter may not have been one of the considerations for the enactment of the absentee voting law {Rinehart), it would be naive of us to fail to recognize that the accommodation of the public has become the primary basis for the privilege of voting absentee. The Legislature of Florida recognized this when it amended the statute to provide absentee voting for persons who may be absent from the county on election day or who are physically unable to make it to the polls, or who may be prevented by their religious beliefs from voting on a particular day. See Fla.Stat. § 101.62(3), F.S.A.

In developing a rule regarding how far irregularities in absentee ballots will affect the result of the election, a fundamental inquiry should be whether or not the irregularity complained of has prevented a full, fair and free expression of the public will. Unless the absentee voting laws which have been violated in the casting of the vote expressly declare that the particular act is essential to the validity of the ballot, or that its omission will cause the ballot not to be counted, the statute should be treated as directory, not mandatory, provided such irregularity is not calculated to affect the integrity of the ballot or election. Fla.Stat. § 101.67(3), F.S.A., for example, declares that the absentee ballot shall be counted only where the “application for absentee elector’s ballot” is properly executed and placed in an envelope separate from the absentee ballot. It is clear, therefore, that the Legislature intended that any application not so properly executed and separated from the ballot must not be counted. This does not mean, however, that insignificant omissions or irregularities appearing on the application form suggested in Fla.Stat. § 101.62, F.S.A., must void the ballot where the information that does appear on the application is sufficient to determine the qualifications of the applicant to vote absentee, and the omissions or irregularities are not essential to the sanctity of the ballot. The Legislature did not define what it meant by the term “properly executed,” nor did it say that the application form suggested in Fla. Stat. § 101.62, F.S.A., had to be strictly complied with. To the contrary, Fla. Stat. § 101.62, F.S.A., states that the application shall be in substantially the same form as that found in the statute. On the other hand, the Legislature has clearly mandated that if the absent elector’s ballot is not placed in an envelope separate from the absentee ballot, as required by Fla.Stat. § 101.67(3), F.S.A., the ballot will in no event be counted.

Absolute strict compliance, even with mandatory provisions in every case, however, could reach absurd proportions. For example, under a former version o'f Fla. Stat. § 101.64, F.S.A., an elector who certified that he would be absent from the State on election day would not have strictly complied with the statutory requirement that the elector certify his intention to be absent from the county on election day. Could it seriously be doubted that such an elector failed to state his intention to be absent from the county? Yet, his ballot would have been void under the strict compliance rule. Frink, supra.

It is true that the absentee voting statutes are in derogation of the common law and therefore must be strictly construed. Strict construction, however, does not necessarily mean strict compliance. In Brown v. Grzeskowiak, 230 Ind. 110, 101 N.E.2d 639 (1951), the Supreme Court of Indiana agreed .that absentee voting laws are generally strictly construed. The Court then said:

“Even though such statutes do, under certain circumstances, extend a special privilege to those who may be away from their voting place on election day, it must be kept in mind, even when applying the rules of strict construction, in ascertaining the meaning of the language used together with the intent of the Legislature, that the will of the majority of those who have legally voted is the thing to he most desired. (Emphasis ours.)
“ ‘The purpose of the law and the efforts of the court are to secure to the elector an opportunity to freely and fairly cast his ballot, and to uphold the will of the electorate and prevent disenfranchisement. In the absence of fraud, actual or suggested, statutes will be liberally construed to accomplish this purpose.’ ” State ex rel. Harry v. Ice, 207 Ind. 65 at 71, 191 N.E. 155, at 157 (1934). (Emphasis theirs.)
“Since the Legislature has extended the privilege to certain voters who may be absent from their voting places on election day, to cast their ballots, even though absent from the polling place, the same effort must be made to extend to them an opportunity to freely and fairly cast their ballots and to prevent their disfranchisement as is made to protect the ballots and prevent the disfranchisement of those voters who are present at their voting place and cast their vote in person.
“The ultimate question for determination in an election contest is, who has received the highest number of legal votes? (citation omitted.)” 101 N.E.2d at 647.

In applying a liberal interpretation to the absentee voter law, the Indiana Court noted that the intention of the Legislature, as ascertained from a consideration of the Act as a whole, would prevail over the literal meaning of any of the terms used in the statute. We agree. Consistent with the Indiana Court’s reasoning is our decision in Wilson v. Revels, 61 So.2d 491 (Fla.1952), where we considered the legality of certain machine votes and a group of absentee ballots. The contested machine votes were not signed by the electors as required by law, but their names were written on the ballot stubs by the election officials, and the absentee ballots had been mistakenly placed in the wrong ballot box, although they were easily distinguishable from the other absentee ballots. Justice Terrell wrote for the Court:

“There is no charge of fraud or intended wrong in handling the ballots. The ground of appellant’s contention is, that the absentee ballots were void because of irregularities pointed out in handling them, and that the regular ballots were void because the electors failed to sign stub number 1. The chancellor found, and the record discloses, that Liberty is a small county, that at least one of the electors (sic) knew personally each elector whose vote is challenged; that the names of the electors were written on the stub by members of the election Board after the elector was identified, and that the registration of all electors was checked before the ballot was delivered. No elector asked to sign stub number 1 and both the electors and the Canvassing Board acted without fraud, deception or purpose to conduct other than a fair election.
“It is not suggested or contended that the result of the election would have been different if the law had been tracked to the letter, nor is it suggested that the integrity of the election was affected by the way the ballots were handled. It is contended that to permit such practice to go unchallenged, opens the door for fraud and corruption of the ballot. This court is not unmindful of the truth of this contention, and, if there were any suggestion whatever of fraud or that the irregularities were purposely done to foul the election or corrupt the ballot, it would not be permitted to stand.” 61 So.2d 491, at 492.

This result was reasonable and proper. The facts are similar in some degree to the situation sub judice. Here we are dealing with several small counties in which the record shows that the election officials personally knew many of the voters whose ballots were allegedly invalid because of complained irregularities, such as lack of complete address of the voter on the application or return envelope, or lack of a precinct number. The record also shows that in many cases the voter simultaneously made application for the absentee ballot and cast his vote while in the office of the election officials, and that many of the voters were well known to the election officials. Although we recognize that we were dealing primarily with regular machine votes in Wilson, it would be stretching the law to unreasonable lengths to conclude that the result should be different in this case simply because we are dealing with absentee ballots. What is important in both cases is the absence of fraud or any wrong suffered from the irregularities complained of, and the fact that the will of the people was effected. Wilson, supra.

In expanding the privilege of voting to those citizens who may not be able to vote in person on election day, the Florida Legislature has prescribed statutory requirements which are intended to insure that those who vote are qualified and registered to vote and that they do so in a proper manner. There is no magic in the statutory requirements. If they are complied with to the extent that the duly responsible election officials can ascertain that the electors whose votes are being canvassed are qualified and registered to vote, and that they do so in a proper manner, then who can be heard to complain that the statute has not been literally and absolutely complied with? Strict compliance is not some sacred formula nothing short of which can guarantee the purity of the ballot. See reference to the case of Attorney General ex rel. Miller v. Miller, 266 Mich. 127, 253 N.W. 241, quoted with approval by this Court in Jolley, supra. See also, Anderson v. Budzien, 12 Wis.2d 530, 107 N.W.2d 496 (1961), where the Wisconsin Supreme Court, holding that the legislative intent in enacting the absentee voter statutes is to encourage and assist qualified voters to cast their ballots for candidates of their choice, recognized that in order to prevent fraud the Legislature specifically stated that in some instances there must be strict compliance with the statute or a ballot cannot be counted. However, the Court said that where the Legislature has not so expressly provided for strict compliance, any provisions are directory and strict compliance therewith is not required. Accord, McMaster v. Wilkinson, 145 Neb. 39, 15 N.W.2d 348 (1944), where the court cited our decision in Rine-hart, supra, for the rule of strict construction of absentee voting laws, and then held:

“It is the policy of the law to prevent as far as possible the disfranchisement of electors who have cast their ballots in good faith, and while the technical requirements set forth in the absentee voting law are mandatory, yet in meeting these requirements laws are construed so that a substantial compliance therewith is all that is required.” 15 N.W.2d, at 353.

Some of the errors alleged in McMaster were similar to some of those alleged here. Although some of the ballots were invalidated as a result of the errors, in other cases the court held that although the statute had not been strictly complied with, where there had been substantial compliance the absentee ballots were valid. For example, 21 ballots were held to be valid although the title of the election officer did not appear on the ballot next to the officer’s signature as required by law. However, a ballot was declared void where the notary failed to fill out the elector’s certificate identifying the voter.

Having decided that substantial compliance with the requirements of the absentee voting statute is all that is required to give legality to the absentee ballots, we now turn to the remaining issues. First, there is the question of the 429 missing outer envelopes containing the statutorily required absentee voters’ affidavits, which were either lost or destroyed by the canvassing boards in Glades, Hendry and Polk counties. It is not alleged that any of the ballots were in fact defective, rather it is contended that since the return envelopes containing the ballots cast by the voters were not preserved by the election officials as required-by Fla.Stat. § 101.68(1), F.S.A., thus defeating any judicial review of the ballots, then all the ballots should be thrown out. But even if we agreed with this contention and required all the ballots to be thrown out, it would not necessitate the invalidation of all the absentee ballots cast, even though the number (429) would be more than enough to change the result of the election. The general .rule is that where the number of invalid absentee ballots is more than enough to change the result of the election, then the election shall be determined solely upon the basis of the machine vote. Frink, supra,. The reason for the rule is that since all the ballots have been commingled and it is impossible to distinguish the good ballots from the bad, because all ballots are required by law to be unidentifiable, then in fairness all the. ballots must be thrown out. In other words, it is impossible to tell for whom the invalid ballots were cast since they were commingled with the valid ballots. The rule is not applicable here because the outer envelopes for all of the absentee ballots in these three counties were lost. Therefore, assuming that all the ballots were invalid due to the missing envelopes, there is no problem with distinguishing the good ballots from the bad because they all would be bad. Therefore, even if we invalidated all 429 ballots because of missing envelopes, we would only be required to reduce the total number of votes cast for petitioner and respondent rather than throw out all the absentee ballots cast. These 429 have not been commingled with ballots from other counties. The result would be that the 292 votes Boardman received in those three counties would be subtracted from his total and the 137 votes Esteva received from those three counties would also be deducted from his total, still leaving Boardman with an overall majority of 94 votes.

As to the actual validity of the ballots whose return envelopes are missing, we first point out that as a general rule elected officials are presumed to perform their duties in a proper and lawful manner in the absence of a sufficient showing to the contrary, City of Miami Beach v. Kaiser, 213 So.2d 449, 453 (Fla.App.3d, 1958), and also that there is a presumption that returns certified by election officials are presumed to be correct. Burke v. Beasley, 75 So.2d 7 (Fla.1954). This is because the canvassing of returns, including absentee ballots, is vested in canvassing boards in the respective counties who make judgments on the validity of the ballots. When the voters have done all that the statute has required them to do, they will not be disfranchised solely on the basis of the failure of the election officials to observe directory statutory instructions. Titus v. Peacock, supra. It is not contended by respondent that the absentee ballots in question were illegally cast or that they were cast by voters who were unqualified to vote absentee. The burden is clearly on the contestor to establish that the ballots have been irregularly cast. Burke, supra. There is nothing in the record to indicate that the absentee ballots in question were not cast by qualified registered voters who were entitled to vote absentee, therefore, the presumption of the correctness of the election officials’ returns stands.

Turning to the question whether the procedure utilized in canvassing and counting the absentee ballots in Hillsbor-ough County violates the requirement of secrecy, thus invalidating all the absentee ballots cast in that county, we hold that it does not. It has long been recognized in this State that by voting absentee the elector waives the secrecy of his ballot. Hutchins, supra. Likewise in McDonald v. Miller, supra, we held that the privilege of secrecy is personal to the voter, and if he so desires may waive it. Although we do not suggest that there has been a personal waiver of an individual voter’s right to secrecy here, we make the following two observations. First, it is not contended that the privilege of secrecy was violated in the actual casting of the ballots by the voters. Rather, it is contended that the order entered by the Hillsborough County Circuit Court in Levine, et al. v. Falsone, et al., Case No. 213299, opinion filed October 7, 1972, requiring the Hillsborough County Canvassing Board to assign a number to each absentee elector for purposes of maintaining the integrity of the ballots and votes for purposes of judicial review, which order was entered subsequent to the actual casting of the absentee ballots on October 3, 1972, enabled the election officials to determine which voter voted for which candidate. We emphasize that it has not been contended that the voters were in any way influenced in their voting by the order in question or that they even were aware of it. Nor is there any allegation that a violation of secrecy has actually occurred. This was nothing more than an honest attempt to preserve the integrity of the ballot in case the election was contested. Our second observation is that we are not at all convinced that either petitioner or respondent has standing to raise the issue of violation of secrecy of the ballot. Being personal to the voter, the right of secrecy may be waived by the voter and it would appear that the voter himself is the only party who has standing to protest a violation of the right to vote in secret. We therefore conclude that the absentee ballots cast. in Hillsborough County were not invalidated by reason of a violation of the right of secrecy of the ballot.

In summary, we hold that the primary consideration in an election contest is whether the will of the people has been effected. In determining the effect of irregularities on the' validity of absentee ballots cast, the following factors shall be considered:

(a) the presence or absence of fraud, gross negligence, or intentional wrongdoing;
(b) whether there has been substantial compliance with the essential requirements of the absentee voting law; and
(c) whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election.

The underlying concern of the election officials in making the initial determination as to the validity of the absentee ballots is whether they were cast by qualified, registered voters, who were entitled to vote absentee and who did so in a proper manner. The substantial compliance test used by the trial judge comports with our conclusion that strict compliance with the statutory requirements for absentee balloting is not required to validate the ballots. Since the trial court found only 88 ballots to be invalid, petitioner Edward F. Boardman is hereby declared the winner of the October 3, 1972, election for the Second District Court of Appeal by a total of 161 votes.

Therefore, the decision of the District Court of Appeal, First District, is quashed. This cause is remanded to the District Court of Appeal with instructions to reinstate and affirm the judgment of the trial court.

It is so ordered.

ROBERTS, J., and CHAPPELL, Circuit Judge, concur.

OVERTON, J., concurs with an opinion.

ENGLAND, J., concurs specially to conclusion with an opinion.

WILLIAMS, Circuit Judge, concurs specially with an opinion.

OVERTON, Justice

(concurring).

I have been strict in the exercise of our conflict jurisdiction. A reading of the election contest cases concerning absentee ballots reveals a maze of confusing doctrines and rules. There are cases to sustain the position of both sides. The following are cases which may be asserted to sustain the validity of the critical absentee ballots: McDonald v. Miller, 90 So.2d 124 (Fla.1956); Burke v. Beasley, 75 So.2d 7 (Fla.1954); Jolley v. Whatley, 60 So.2d 762 (Fla.1952); State ex rel. Hutchins v. Tucker, 106 Fla. 905, 143 So. 754 (1932). On the other hand, the following cases may be asserted to invalidate the absentee ballots: Parra v. Harvey, 89 So.2d 870 (Fla.1956) Wood v. Diefenbach, 81 So. 2d 777 (Fla.1955); Griffin v. Knoth, 67 So.2d 431 (Fla.1953); Frink v. State ex rel. Turk, 35 So.2d 10 (Fla.1948); State ex rel. Whitley v. Rinehart, 140 Fla. 645, 192 So. 819 (1940); Spradley v. Bailey, 292 So. 2d 27 (Fla.App.1st 1974); Papy v. Englander, 267 So.2d 111 (Fla.App.3d 1972).

Our role in conflict jurisdiction is to stabilize the law by a review of decisions which form patently irreconcilable precedents. Florida Power & Light Co. v. Bell, 113 So.2d 697 (Fla.1959). The aforementioned cases are impossible to reconcile.

In my opinion, we also have jurisdiction because the instant decision of the District Court accepts earlier decisions of this Court as controlling precedent in a situation which is materially at variance with the instant case. See McBurnette v. Playground Equipment Corp., 137 So.2d 563 (Fla.1962). The instant case concerns an 18-county election. The District Court decision invalidates all absentee ballots in all 18 counties by applying the rule that: “. . . [Wjhere the number of illegal absentee ballots cast is sufficient to change the result of an election, none of the absentee ballots cast in the election will be accepted and counted. . . . ”

In all the cases cited for this rule, invalid ballots were commingled with valid absentee ballots and the elections concerned only a single county or municipality. Neither of these facts is present in the instant case. In my opinion, this is a material variance.

The strict application of the District Court’s decision could have a devastating effect on the inclusion of absentee ballots in close statewide races.- I am deeply concerned, as is Judge Williams, that the practical application of the District Court’s decision would void all absentee ballots in every close multi-county election which had the result changed by absentee ballots. A candidate who won a close election on the machine vote but lost when absentee ballots were counted would only have to find defective election procedures in one or two counties involving enough total ballots to change the result in order to void all absentee ballots.

In conclusion, I agree with the trial judge that common sense and a reasonable application of the statute requirements in absentee ballots must be applied. It is important to recognize that in the instant case there is no allegation or suggestion of any fraud, corruption, or other intentional misconduct on the part of either candidate or the election officials in the several counties and districts involved. Purity of the ballot must be maintained, and opportunities for fraud and interference with the ballot must be discouraged. Strict application of the rule adopted by the District Court might well encourage absentee ballot interference.

I concur in the majority opinion.

ENGLAND, Justice

(concurring specially) =

I agree with Chief Justice Adkins that the trial court’s judgment should be affirmed.

WILLIAMS, Circuit Judge

(concurring specially).

In the consideration of this cause, I was concerned to find that the most recent decisions in Florida appeared to resolve the law on questioned absentee ballots in favor of strict compliance of the statutes, even on some insignificant details, and further in favor of discounting all absentee ballots where the number of illegal ballots are sufficient to change an election, even in a large multi-county or multi-district election where the various counties’ ballots are kept separately and not commingled. I agree with the observations of the trial judge in this case wherein he observed in Paragraph 5 of his judgment that if the pronouncements in the Woods and Parra cases are to be applied without regard to the particular facts in those cases it is doubtful that any close election which is decided by absentee votes in an area equal to or larger than the Second District could be sustained.

I am particularly concerned that if the decision of the First District Court of Appeal in this case were to stand as the law of Florida in elections, corruption might be encouraged. Fortunately, in this case there is no hint of corruption or evil intent on the part of any one involved in this case. I only speak of possibilities in the future. Almost all elections, to all intents and purposes, are decided by the machine vote which is usually counted on the evening of the election or in the early hours of the following morning. The absentee ballots are not counted until at least many hours after the machine vote has been counted and announced. Therefore, the counting of the absentee ballots usually becomes a mere formality. Only in close elections may the absentee ballots make the difference in the election results, and then as a kind of proceeding after the fact of the “regular” election.

Let us consider a hypothetical situation as follows: in which there is an election for a judgeship in a district or circuit encompassing several counties; in which an election worker or official is involved in processing or counting votes; in which such official or worker is interested in one of the candidates in the election either through friendship, politics, or other close relationship; in which such official or worker’s candidate appears to be the winner by a close vote after the count of the precinct or machine ballots. In such a situation it would appear to me that it might be very easy for such an official or worker to immediately destroy a sufficient number of ballots, destroy the outer envelopes of a sufficient number of ballots, or do any one of a number of acts which would involve a number of absentee ballots; such number comprising more than the margin by which his favorite candidate has apparently won- the machine count. Thereby, without even knowing the contents of the ballots or caring, he immediately makes certain that his candidate has won the election. He has thus, personally and at very little risk, disenfranchised all persons who voted by absentee ballots and has thereby possibly himself decided the outcome of the election. It is bad enough that one such person is 'able to disenfranchise the voters in his particular county, but being able thereby to disenfranchise the voters in all of the counties in the election is unconscionable.

In the case before us there were 3,389 absentee ballots counted and returned by the Canvassing Boards of 18 counties. In each of 4 counties there were enough absentee ballots that, if invalidated, could invalidate all absentee ballots in all the counties, under the decision of the District Court of Appeal, and some prior decisions upon which its ruling was based. Such interpretation of law should be repudiated by this Court.

On one point I disagree with the trial judge and agree with the District Court of Appeal. I am not in favor of going too far in the substantial compliance application. Certain of the statutory requirements must be complied with and to be too generous in the application of the substantial compliance theory would again encourage corruption by inclusion of bad ballots. In adddition to the 88 ballots found to be illegal by the trial court, I would agree with the District Court of Appeal, that all of those ballots in which the reason for voting absentee was not specifically indicated either on the application or on the return envelope should be barred.

Such a requirement goes to the very eligibility of the voter to cast an absentee ballot, and, if deemed reasonable to the legislature, should not be vetoed by us, which we in effect would do by overlooking the omission of the voter. These ballots add up to at most 95. (The record does not indicate whether or not the reason for voting absentee was indicated on one but not the other. It would be sufficient if the reasons were indicated in either place.)

For reasons stated by the trial judge and by Justice Adkins in his Opinion, I agree that the 453 absentee ballots of Hillsbor-ough County and the 429 absentee ballots from Glades, Hendry and Polk Counties, are valid. The substantial compliance rule is even more applicable to actions of public officials than to the errors or omissions of the voters themselves. Voters should not be disenfranchised by the actions of public officials after proper count and certification and before a contest of the election. The improper ruling of the court in Hills-borough County which resulted in a breach of the secrecy of the ballots should not disenfranchise the electors of Hillsborough County even though instigated by one of the parties who, for ought that appears in the record, did so in good faith, in attempting to protect his interest and to preserve a true count of ballots.

      . It is interesting to note that Fla.Stat. § 101.07, 1941, F.S.A., strictly interpreted in Frink, was amended in the legislative session immediately following our rendering of Frink. See § 1, Ch. 25385, 1949 Laws of Florida. At the time Frink was decided § 101.07 required the county clerks to furnish a ballot which, inter alia, included an oath to be taken and subscribed to by the elector. The oath was spelled out in the text of the statute. The amended version, § 1, Ch. 25386, 1949, in addition to other changes in the statute, prescribed a new form of oath for the application. However, instead of requiring the specific oath prescribed in the statute, as we determined was the legislative intent in Frink, the new version simply required the execution of an oath in substantially the same form prescribed therein. This part of the statute remains unchanged.

      . Jolley v. Whatley, 60 So.2d 762 (Fla.1952); Griffith v. Knoth, 67 So.2d 431 (Fla.1953); Wood v. Diefenbach, 81 So.2d 777 (Fla.1955); Parra v. Harvey, 89 So.2d 870 (Fla.1956); McDonald v. Miller, 90 So.2d 124 (Fla.1956).

      . In Titus, we cited 9 R.C.L. § 102, pp. 1093-1095, as well as Hutchins, for support of the exception we mention here. Although the cited paragraph does not refer to absentee ballots or statutes, it does make the pertinent observation that:
      “In short, a fair election and honest return should be considered as paramount in importance to minor requirements which prescribe the formal steps to reach that end, and the law should be so construed as to remedy the evil against which its provisions are directed and at the same time not to disenfranchise voters further than is necessary to attain that object.” 9 R.C.L. § 102, pp. 1093-1095.

      . Although not controlling here, we note that in the Legislative session subsequent to this contested election, Fla.Stat, § 101.67, F.S.A., was amended in two interesting particulars. First, the elector is no longer required to restate on the elector’s certificate his reason for voting absentee, although the elector must state that he or she is voting absentee for the reason stated in the application for absentee ballot. Second, no longer is the elector required to fill in the number of the precinct in which he or she is registered to vote on the elector’s certificate. That is now the duty of the election official. At the very least the Legislature has by these amendments recognized the repetitiousness of the information appearing on the two forms for the application and elector’s certificate. We feel that the Legislature has also recognized that certain items previously required to be complied with are not essential to the sanctity of the ballot.

      . We agree with the trial court’s observations that:
      “ . . . The election process is subject to legislative prescription and constitutional command and is committed to the executive branch of government through duly designated officials all charged with specific duties. The canvassing of returns, including absentee ballots, is vested in canvassing boards in the respective counties who make judgments on the validity of the ballots. Those judgments are entitled to be regarded by the courts as presumptively correct and if rational and not clearly outside legal requirements should be upheld rather than substituted by the impression a particular judge or panel of judges might deem more appropriate. It is certainly the intent of the constitution and the legislature that the results of elections are to be efficiently, honestly and promptly ascertained by election officials to whom some latitude of judgment is accorded, and that courts are to overturn such determinations only for compelling reasons when there are clear, substantial departures from essential requirements of law. Such is not the case here and this Court deems action by it to change the result which the proper officers have reached would be meddlesome interference not sanctioned by proper judicial functions.” Final Summary Judgment, Esteva v. Hindman, Case No. 72-1481, opinion filed October 2, 1973, Second Judicial Circuit.

      . Esteva v. Hindman, 299 So.2d 633, 637 (Pla.App.1st 1974).


source: Caselaw Access Project

license: Public Domain

text:
    Robert Thomas WHISNANT et al., Petitioners, v. STATE of Florida, Respondent.
    No. 46662.
    Supreme Court of Florida.
    April 30, 1975.
    Rehearing Denied Dec. 17, 1975.
   Certiorari denied. 303 So.2d 397.

ROBERTS, Acting C. J., and BOYD, McCAIN, OVERTON and ENGLAND, JJ., concur.


text:
    Bob GRIFFIN, Petitioner, v. Honorable David U. STRAWN et al, Respondents.
    No. 46263.
    Supreme Court of Florida.
    Oct. 13, 1975.
    Rehearing Denied Dec. 1, 1975.
   Certiorari denied. 299 So.2d 672.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    Thomas F. BOUCHARD, Petitioner, v. STATE of Florida, Respondent.
    No. 47279.
    Supreme Court of Florida.
    Oct. 13, 1975.
    Rehearing Denied Dec. 17, 1975.
   Certiorari denied. 310 So.2d 71.

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


text:
    Alphonso WRIGHT, Petitioner, Appellant, v. STATE of Florida, Respondent, Appellee.
    Nos. 47233, 47199.
    Supreme Court of Florida.
    Oct. 14, 1975.
    Rehearing Denied Dec. 17, 1975.
   Certiorari denied. 309 So.2d 215.

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


text:
    Harry JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 47554.
    Supreme Court of Florida.
    Oct. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
   Certiorari denied. 312 So.2d 483.

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

BOYD, J., dissents.


text:
    Jorge CLAVIJO and Mary Camacho Clavijo, his wife, Petitioners, v. Frank KEREKES and Edith Kerekes, his wife, Respondents.
    No. 47842.
    Supreme Court of Florida.
    Oct. 22, 1975.
   Certiorari denied. 315 So.2d 21.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


author: GRIMES, Judge.

text:
    Harold M. HODGES and Helen Hodges, his wife, Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida, DEPARTMENT OF TRANSPORTATION and Sarasota County, Appellees.
    No. 75-60.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1975.

      John Patterson, Icard, Merrill, Cullis, Timm & Furen, Sarasota, for appellants.
    Stanley W. Moore, Andy Schuster and Geoffrey B. Dobson, Tallahassee, for appel-lee Dept, of Transp.
   GRIMES, Judge.

This appeal involves the interpretation of the statute providing for the recovery of business damages in condemnation proceedings.

The Department of Transportation condemned part of a parcel of land owned by the Hodges’ on which they operated a motel and marina complex known as the Play-more Resort. At the trial, the Hodges’ attempted to introduce the testimony of an expert witness pertaining to business damages. The court refused to allow this witness to testify until the predicate was shown that the motel and marina was an established business of more than five years’ standing pursuant to Fla.Stat. § 73.071(3) (b) (1973). After hearing the evidence directed to this point, the court concluded that the Hodges’ had failed to establish the necessary predicate and refused to permit the jury to consider business damages.

The items for which an owner may be compensated when his property is condemned are set forth in Fla.Stat. § 73.071(3) (1973). Among these, under certain circumstances, are business damages. Thus, subsection (b) provides that compensation shall include:

“Where less than the entire property is sought to be appropriated and the effect of the taking may damage or destroy an established business of more than five years’ standing . . . the probable damages to such business . . . .”

A motel and marina, including a family bar and grille, was first operated on the subject property in 1956. The property changed hands several times, but the operation < was continued under the name Playmore Resort. However, in 1971, the motel and marina went out of business because the Internal Revenue Service placed a lien against the property for nonpayment of taxes by its then owner. The property was vacant for a period of about five months. A prior owner, who held a mortgage on the property, finally regained title and paid off the IRS. He then sold the property to the Hodges’.

The Hodges’ took possession of the property in November of 1971. The beds, bar equipment, some of the linens and certain supplies came with the property, but the Hodges’ had to acquire boats and motors and other supplies in order to commence the operation. No accounts receivable were purchased and no liabilities were assumed. The Hodges’ had to obtain a new beer license in their own name. Some of the old customers who used to frequent the Playmore before it was closed came back when the Hodges’ reopened. Since the property was condemned less than five years after the Hodges’ began to operate, the question of whether this was an established business of five years’ standing comes into sharp focus.

At the outset, it must be observed that a mere change of ownership in the business during the five year period would not prevent the new owner from recovering business damages under Fla.Stat. § 73.071 (3)(b) (1973). Hooper v. State Road Department, Fla.App.2d, 1958, 105 So.2d 515. While the statute implies a continuous operation for the five years immediately preceding the date of taking, we do not construe "continuous” to mean that the business must be operated without any interruption whatsoever, so long as it can be reasonably said that the business was an ongoing operation for the five year period. For example, the fact that a business customarily closed for a month each summer would not mean that such a business could not qualify as an established business of five years’ standing.

In this case we believe the Hodges’ acquired only a business place and not an established business as contemplated by the statute. “ ‘Business, . . . does not, generally speaking, mean property. It means the activity, the energy, the capacity, the opportunities by which results are reached — a condition rather than fixed tangible objects from which conditions arise.’ ” Atlanta Realty Company v. Sloan, 1955, 91 Ga.App. 370, 85 S.E.2d 635. On the other hand, a place of business is simply a location where business is transacted. McCall v. State ex rel. Daniels, 1945, 156 Fla. 437, 23 So.2d 492.

When the Hodges’ acquired the property, there was no going concern. They purchased only the property and paid nothing for good will. Mr. Hodges, himself, admitted that he had not purchased a going business. In his own words, he said he “bought a business place.” Therefore, the court properly refused to permit an award of compensation based on business damages, and the judgment with respect to the amount of compensation to be paid for the property is affirmed.

A secondary point on appeal relates to the refusal of the court to tax costs for the expert witnesses the Hodges’ intended to use to prove business damages and the Hodges’ contention that the court improperly reduced the award of their attorneys’ fees to the extent that the attorneys had expended time on the issue of business damages.

Fla.Stat. § 73.091 (1973) requires the condemning authority to pay all reasonable costs and attorneys’ fees incurred by the property owner. The purpose of this statute is to permit the owner to contest the value placed on his property by the condemning authority and at the same time come out whole. In City of Miami Beach v. Liflans Corporation, Fla.App. 3d, 1972, 259 So.2d 515, the court held that the property owner in a condemnation action was entitled to an award of attorneys’ fees even though the jury returned a verdict of zero compensation. Here, the question of business damages was close, and the issue was only resolved at the trial of the case. In fact, the Department’s motion for summary judgment on this issue had been denied just a few days before the trial. Under the circumstances, it was reasonable for the Hodges’ to line up expert witnesses to testify on business damages and to have their attorneys make the preparations necessary to try to recover these damages.

Accordingly, that portion of the judgment pertaining to attorneys’ fees and costs is reversed, and the case is hereby remanded to tax the reasonable costs of expert witnesses relating to the attempted proof of business damages and to award reasonable attorneys’ fees for the service of the Hodges’ attorneys including their services on the issue of business damages.

Affirmed in part and reversed in part.

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

      . Since no transcript of the hearing on attorneys’ fees was made, we cannot tell for certain whether the court reduced the award below the figure set forth in the only affidavit on file because of the time the attorneys spent on the business damage issue or because of other factors. Therefore, our opinion should not be construed as requiring the award of attorneys’ fees to be increased in the event the prior award included compensation for the attorneys’ efforts on the issue of business damages.


author: SCHEB, Judge. BOARDMAN, Judge

text:
    Amos John SLOAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-287.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1975.
    John C. Lenderman, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The defendant, Amos John Sloan, was convicted of robbery and two counts of aggravated assault. He was sentenced to life imprisonment on the conviction of robbery and to five years imprisonment on each of the aggravated assault charges, with all sentences to run consecutively.

We have examined the record and briefs and find the only question on appeal which merits discussion is whether the trial court erred in sentencing the defendant on the convictions of aggravated assault in addition to the sentence for the crime of robbery.

The victim of the robbery was one Guinevere Bulatowicz. She was assaulted by the defendant with a baseball bat during the commission of the robbery. This assault being the force involved in the robbery merged into and became part of the offense of robbery. Hernandez v. State, Fla.App.2d 1973, 278 So.2d 307. Not so as to the assault upon Richard Mitchell who was at the scene of the robbery and was also assaulted by the defendant with the baseball bat. This assault having been perpetrated against a different victim obviously did not merge into the robbery, nor was it part of the same transaction as the robbery merely because the two crimes were committed contemporaneously. Ellis v. State, Fla.App.2d 1974, 298 So.2d 527; Harris v. State, Fla.App.2d 1973, 286 So.2d 32.

Accordingly, the judgment and sentence of the defendant for robbery are affirmed. The judgment and sentence for aggravated assault upon Guinevere Bulatowicz are vacated; and the judgment and sentence for aggravated assault on Robert Mitchell are affirmed.

McNULTY, C. J., concurs.

BOARDMAN, J., dissents in part with opinion.

BOARDMAN, Judge

(dissenting in part).

For the reasons stated herein, I respectfully dissent from that part of the majority opinion pertaining to the disposition of the aggravated assault committed upon Guinevere Bulatowicz holding that said offense merges into the robbery under the rationale of Hernandez v. State, Fla.App.2d, 1973, 278 So.2d 307; for, as I read the record, the aggravated assault was a separate and distinct crime from that of the robbery.

Admittedly, a close question is presented; but I find that there was competent substantial evidence in the record disclosing that the aggravated assault occurred after the money had been taken. Further, a co-participant in the crime testified that the appellant remained behind for approximately five minutes with the baseball bat in his possession while the others waited for him outside the store in the getaway car. The testimony further shows that both victims and a dog were severely beaten. Upon consideration of all of these facts, I reach the unalterable conclusion that the assault was a separate and distinct crime from the robbery.

In all other aspects I agree with the majority opinion, but would affirm the sen-tente of aggravated assault upon Guinevere Bulatowicz.


author: HOBSON, Judge.

text:
    Sally DUDLEY, Individually and as next friend and parent of Clifford Johnston, a minor, Appellant, v. MAE’S DISCOUNT FABRICS, a Division of ABC Fabric of Tampa, Inc., a Florida Corporation, Appellee.
    No. 74-1400.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.

      John B. Cechman, of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    Michael J. Freedman of Levine, Freedman & Hirsch, Tampa, for appellee.
   HOBSON, Judge.

This appeal is from a final judgment dismissing the complaint of appellant. The complaint was in four counts against the appellee who is the retailer of the product which is alleged to be inherently dangerous. The first count alleges that the ap-pellee was negligent in that it sold the inherently dangerous fabric while in a defective and dangerous condition. The second count realleges the same matter but in addition thereto alleges the appellee was negligent in failing to warn the appellant of the dangerous and defective characteristics of the product. This count states the derivative claim of the mother. The third count alleged a breach of implied warranty of fitness of the product and alleges it to be a dangerous instrumentality. The fourth count alleges the same matter but states the derivative claim of the mother.

The allegedly dangerous product was a certain piece of fabric which was used as a kitchen drapery and that when the minor child was attempting to put some hot paraffin wax in the sink, the drapery exploded and burst into flames, severely injuring the minor.

There is no question but what the injured minor was not in privity with the ap-pellee. The ground upon which the trial court dismissed the complaint was stated by the court to be that it was not shown that the injured minor was in privity with the appellee.

All four counts of the complaint are based upon the premise that the fabric involved was in fact a dangerous instrumentality and that the appellant should prevail on both the breach of implied warranty and upon the negligence of the appellee even though appellant was not in privity with the appellee retailer.

It is well settled that one need not be in privity with the retailer in order to have an action against him for breach of an implied warranty if the plaintiff can prove that the product in question is inherently dangerous. Toombs v. Fort Pierce Gas Company, Fla.1968, 208 So.2d 615; Keller v. Eagle Army-Navy Department Stores, Inc., Fla.App.4th 1971, 256 So.2d 248 and Keller v. Eagle Army-Navy Department Stores, Inc., Fla.App.4th 1974, 291 So.2d 58.

Although the complaint could have been more artfully drawn, it was at least adequate to state a cause of action for breach of implied warranty and for negligence on the part of the appellee. Keller, supra; Keller, supra.

At this stage of the case we must take all of the well-pled allegations of the complaint as being true and our holding herein is only based on the fact that the trial court’s dismissal of the complaint was premature. The appellant should have the opportunity to adduce evidence as to whether or not the material involved was in fact a dangerous instrumentality.

For the foregoing reasons the final judgment is reversed and the cause remanded.

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


author: PER CURIAM.

text:
    Annie B. CULBERTH, Appellant, v. Iola KEITH and William Keith, her husband, and any and all persons claiming by or through them, Appellees.
    No. 75-542.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Ralph L. Flowers, Fort Pierce, for appellant.
    No appearance for appellees.
   PER CURIAM.

Appellant takes a plenary appeal from a trial court order denying appellant’s motion for a judgment on the pleadings in an action to quiet title. The order appealed is an interlocutory order and the appeal should have been designated an interlocutory appeal as provided by Rule 4.2 F.A.R. (1975). However, we shall treat the appeal as an interlocutory appeal. DeWitt v. Seaboard Coast Line Railroad Company, 268 So.2d 177 (Fla.App.1972).

Upon review of the record on appeal and after consideration of the brief of appellant's counsel, counsel for appellee having failed to file a brief, we determine that the appellee’s answer to appellant’s complaint raises issues of fact to be determined by the trial court upon presentation of evidence by the parties. Therefore, the trial court’s order denying appellant’s motion for a judgment on the pleadings is affirmed.

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


text:
    SOUTHERN AIRWAYS, INC., et al., Appellants, v. JACKSONVILLE PORT AUTHORITY, a body politic and corporate, Appellee.
    No. X-354.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1975.
    James E. Hodge, Foerster & Hodge, Jacksonville, for appellants.

      William Lee Allen, Jacksonville, for ap-pellee.
   PER CURIAM.

From our examination of the record and briefs in this cause and our consideration of the oral arguments of counsel, we find no error in the comprehensive final judgment entered by the trial judge.

Affirmed.

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


text:
    Louis C. CORBIN, as the Administrative County Court Judge of Duval County, Florida, Appellant, v. Charles Buddy CROW, Appellee.
    No. Z-175.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1975.
    Lacy Mahon, Jr., Mahon, Farley & Vick-ers, Jacksonville, for appellant.
    Harry L. Shorstein, William Lee Allen, Jacksonville, and Don A. Romanello, Gainesville, for appellee.
   PER CURIAM.

Appeal dismissed. See King v. Brown, 55 So.2d 187 (Fla.1951), and Buchanan v. Jimenez, 155 So.2d 724 (3 Fla.App.1963).

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


author: McNULTY, Chief Judge.

text:
    The DELTONA CORPORATION, by and through its division, Imperial Lumber, Appellant, v. INDIAN PALMS, INC., Appellee.
    No. 74-1460.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.

      William S. Blakeman, Campbell, Dunlap, Coward & Blakeman, Lakeland, for appellant.
    Wayne Thomas, Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for ap-pellee.
   McNULTY, Chief Judge.

Appellant-materialman’s duly filed mechanic’s lien was transferred from appel-lee-owner’s real property to a surety deposit bond fully covering the lien pursuant to § 713.24(1), F.S.1973. In this suit subsequently filed to foreclose the lien, the trial court dismissed appellee-owner and ordered joinder of New Hampshire Insurance Company, the surety on the aforesaid bond, on the grounds that appellee-owner was no longer a proper party to the action. We agree and affirm.

Appellant’s complaint filed herein alleges that it furnished materials to Total Sales, Inc., the general contractor, for the construction of improvements on appellee’s lands. Privity with the owner was not alleged. It follows, therefore, that absent the provisions of the mechanic’s lien law appellant would have no cause of action directly against appellee-owner. Moreover, the express remedy afforded one in its position under the mechanic’s lien law is to allow him to impress a lien on the improved real property to the extent of the value of the improvements. In a suit to foreclose such a lien, then, the owner is a necessary and proper party only to satisfy due process as to him since his property, the res securing the lien, is in jeopardy.

Now obviously the purpose of § 713.24, supra, is to permit any owner, whether or not he is in privity with a lien- or, to remove the cloud of a lien from his property against which the lien is impressed; and he may do so either before or after suit. But with respect to a lienor not in privity with the owner, his entitlement to the benefits of his lien is dependent not upon any rights or equities flowing as between him and the owner but, rather, those as between him and the parties with whom he was in privity, in this case the general contractor. Thus if the benefits of the lien are fully secured by the bond provided for under § 713.24, supra, and they are here, then we think, and so hold, that the owner is no longer a necessary party nor is he a proper party, at his option, if he chooses not to contest the amount of the lien.

The decision of our sister court in the Fourth District in the similar case of Schleifer v. All-Shores Construction and Supply Company cited by appellee is consistent with our holding this day but not controlling. That court did not consider nor did it decide the question of whether an owner with whom a lienor is not in privity is a necessary and proper party against whom a foreclosure judgment must be obtained as a condition precedent to proceeding against a transfer bond filed pursuant to § 713.24, supra. We are directly faced with that question and think not.

In view whereof, the judgment appealed from should be, and it is hereby, affirmed.

HOBSON and SCHEB, JJ., concur.

      . Chapter 713, F.S.1973.

      . Our answer would be different, of course, if the owner was in privity with the lienor for the reason that should he fail in establishing all or part of his lien he would still have a viable in personam claim against the owner. Cf. Emery v. International Glass & Mfg., Inc. (Fla.App.2d, 1971), 249 So.2d 496.

      .(Fla.App. 4th, 1972), 260 So.2d 270.


text:
    Michael ROLLE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-651.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247; and Terrell v. State, Fla.App. 1973, 282 So.2d 34.


text:
    Andrew WILSON, Appellant, v. STATE of Florida, Appellee.
    No. Y-103.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.
    Richard W. Ervin, III, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed. See Estes v. State, 294 So.2d 122 (Fla.App. 1st, 1974), 316 So.2d 276 (Fla.1975); Williams v. State, 316 So.2d 267 (Fla.1975).

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


text:
    John Phillip BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. Y-149.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See Lowman v. State, 303 So.2d 667 (Fla.App. 4th, 1974); Burns v. State, 300 So.2d 317 (Fla.App. 2d, 1974).

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


text:
    Sal V. BURNETTI, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and E-Cono Lodges, Inc., Respondents.
    No. Y-435.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.
    George A. Pierce, Jr., Jacksonville, for petitioner.
    Luther C. Smith and Kenneth H. Hart, Jr., Tallahassee, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is denied.

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


text:
    Robert JONES, a/k/a Charles Roberts, Appellant, v. STATE of Florida, Appellee.
    No. X-430.
    District Court of Appeal of Florida, First District,
    Dec. 16, 1975.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed. See Shiver v. State, 103 Fla. 871, 138 So. 502 (1931); Cortes v. State, 135 Fla. 589, 185 So. 323 (1938).

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


text:
    Danna ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. Y-42.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1975.
    L. Haldane Taylor, of Taylor & Brecher, Jacksonville, for appellant.
    Robert L.CShevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Affirmed. See Spigner v. State, 304 So. 2d 496 (Fla.App. 1st, 1974).

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


text:
    Donald WILLIS and Ronald Willis, Appellants, v. The STATE of Florida, Appellee.
    No. 75-676.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Phillip A. Hubbart, Public Defender, Paul Morris, Asst. Public Defender and Thomas Murray, Legal Intern, for appellants.
    Robert L. Shevin, Atty. Gen., Arthur Joel Berger, Asst. Atty. Gen., and Diane Leeds, Legal Intern, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Cleare v. State, Fla.App.1975, 321 So.2d 122.


text:
    Charles R. FREDERICKS, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and Riverside Hilton Inn, Respondents.
    No. 75-867.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.
    Julius L. Williams of Law, Inc. of Hills-borough County, Tampa, for petitioner.
    Alex D. Littlefield, Jr., Tallahassee, for respondent, Florida Dept, of Commerce, Industrial Relations Comm.
   GRIMES, Judge.

This is a petition for certiorari to the Industrial Relations Commission following the entry of an order affirming the denial of petitioner’s application for unemployment compensation.

Testimony was taken before the appeals referee, and the pertinent portion of his decision is set forth below:

“FINDINGS OF FACT: The claimant was employed as a cook for a hotel in Tampa, Florida, on or about September 24, 1974. Claimant worked six days per week from 3:00 PM to 11:00 PM and had Monday’s as his day off. Claimant became ill from October 27, 1974, through October 31, 1974, because of internal bleeding. He was not under doctor’s care during this period of illness. His wife called in several times during claimant’s period of illness. On November 1, 1974, claimant called in himself and talked to the bar porter to report that he was feeling better and was ready to return to work. Claimant did not report for work on November 2, 1974, and did not report to employer until November 6, 1974. On November 6, 1974, claimant was informed that he had been terminated effective November 1, 1974, as he had failed to report for work after informing the employer that he was again able to work as of November 1, 1974. Claimed [sic] reopened his claim effective February 16, 1975. Since reopening his claim, claimant has been actively seeking full-time employment.
“Claimant was discharged for misconduct connected with his work within the meaning of the Florida Unemployment Compensation Law.
“REASONS FOR DECISION: .The Florida Unemployment Compensation Law provides that an individual shall be disqualified for benefits if he has voluntarily left his employment without good cause attributable to his employer, or was discharged for misconduct connected with his work.
“The record and evidence presented in this case reveal that claimant was terminated from his employment when he failed to report for work after reporting that he was again able to resume his duties, and his failure to report his continued absence. Claimant could not say what caused his internal bleeding. He stated this happened once before four or five years ago, and that a doctor at that time stated that it was nothing to worry about, and for this reasons, [sic] he did not consult a physician. His reason for not reporting to work until November 6, 1974, after he felt that he was able to work on November 1, 1974, was the fact that he assumed the employer would call him and advise him when he could return to work. The claimant’s actions and circumstances presented in this case constitute a material breach of his duties and obligations arising out of his contract of employment and were tantamount to an intentional disregard of the employer’s interest. Such actions constitute ‘misconduct connected with work’ within the meaning of the Law. Accordingly, it must be concluded that claimant was discharged for misconduct connected with his work within the meaning of the Law.”

The record supports the findings of fact except in one respect. The purpose of pe-petitioner’s telephone call on November 1 was to notify his employer he was ready to go back to work. Since petitioner didn’t have a telephone, he left his wife’s number at work so that he could be told when to come back. Apparently the person who received the call in the absence of petitioner’s supervisor misunderstood the message, because the supervisor was advised that petitioner was still sick and would not be back to work. When asked why he didn’t come in between November 1 and November 6, petitioner said that work schedules were prepared several days in advance, and he assumed that he would be notified when to report for work.

The decision of the appeals referee was predicated upon “misconduct connected with work” within the meaning of Fla.Stat. § 443.06(1) (1973). Both this court and the Third District Court of Appeal appear to have approved the definition of “misconduct” for purposes of unemployment compensation law as set forth by the Wisconsin Supreme Court, to wit:

“ ‘Misconduct’ * * * is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to mainfest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.”

Petitioner’s failure to make sure his supervisor understood that he was available to go back to work and the fact that he failed to report for work from November 1 to November 6 after he was physically able to do so may have demonstrated such a negligent lack of initiative as to justify his being fired. But was it carelessness of such a degree as to be equivalent to an intentional and substantial disregard of his duties and obligations to his employer ? The petitioner did not have a history of absence from work. Petitioner did keep his employer advised when he was sick, and he did make an effort to let his employer know when he could come back to work. From petitioner s standpoint, it was not his fault that the person with whom he talked on November 1 didn’t convey the proper message. The petitioner’s statement that work was scheduled in advance was not refuted and lends some credence to his failure to physically report to the job at his earliest opportunity. Since the Unemployment Compensation Law is to be liberally construed in favor of the claimant, we hold that petitioner’s conduct was not of the type contemplated to disqualify him for benefits.

Accordingly, the decision of the Industrial Relations Commission adopting the decision of the appeals referee is quashed, and the cause is remanded with directions to enter an appropriate order which is consistent with this opinion.

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

      . Castillo v. Florida Department of Commerce, Fla.App.2d, 1971, 253 So.2d 162.

      . Spaulding v. Florida Industrial Commission, Fla.App.3d, 1963, 154 So.2d 334.

      . Boynton Cab Co. v. Neubeck, 1941, 237 Wis. 249, 296 N.W. 636.

      . Woskoff v. Desta Enterprises, Inc., Fla.App.3d, 1966, 187 So.2d 101.


text:
    Howard BYROM, Appellant, v. BON FLEUR TIRE COMPANY, a Florida Corporation, and George Bon Fleur, Appellees.
    No. X-344.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.
    Charles Tindell, of Elliott & Tindell, Daytona Beach, for appellant.
    Walter B. Dunagan, of Becks & Becks, Daytona Beach, for appellees.
   PER CURIAM.

On review of this summary judgment entered for appellee, we find that the deposition of appellant raises a genuine issue as to material facts pertaining to the purpose of the transfer of 125 shares of the common stock of the appellee corporation to appellant. Accordingly, the summary judgment must be reversed and the case remanded for trial.

Reversed.

' BOYER, C. J., and MILLS and SMITH, JJ., concur.


text:
    Jorge DIAZ and Felix Mellan, Appellants, v. The STATE of Florida, Appellee.
    Nos. 74-1482, 74-1491.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Harold F. Keefe; Miguel Suarez, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed on the authority of Redditt v. State, Fla.1955, 84 So.2d 317; Tennant v. State, Fla.App. 1967, 205 So.2d 324; Farrington v. State, Fla.App.1968, 207 So.2d 513; Carter v. State, Fla.App.1968, 212 So.2d 805; Costantino v. State, Fla.App.1969, 224 So.2d 341; Wingate v. State, Fla.App.1970, 232 So.2d 44; Ricks v. State, Fla.App.1970, 242 So.2d 763; Reis v. State, Fla.App.1971, 248 So.2d 666; Hemmerle v. City of Wilton Manors, Fla.App.1971, 251 So.2d 146; Starling v. State, Fla.App.1972, 263 So.2d 645; Oatman v. State, Fla.App.1974, 289 So.2d 431; Gray v. State, Fla. App.1974, 296 So.2d 612; McNeal v. State, Fla.App.1974, 303 So.2d 698; Rule 6.7(g), F.A.R.; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Neil v. Riggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. See also: David v. State, Fla.App.1973, 277 So.2d 69.


text:
    Willie James MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1107.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Willie James Mack, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings, we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: SMITH, Judge.

text:
    GULFSTREAM PARK RACING ASSOCIATION, INC., a Florida Corporation, Petitioner, v. BOARD OF BUSINESS REGULATION OF the DEPARTMENT OF BUSINESS REGULATION, a state agency, et al., Respondents.
    No. AA-12.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
    Leonard Romanik, of Landefeld & Ro-manik, Hollywood, for petitioner.
    William D. Moore, Board of Business Regulation, Tallahassee, and Marion E. Sibley, of Sibley, Giblin, Levenson & Ward, Miami Beach, and Wilbur E. Brew-ton of Taylor, Brian, Beeker & Greene, Tallahassee, for respondents.
   SMITH, Judge.

Following our decision in Gulfstream Park Racing Ass’n, Inc. v. Board of Business Reg., 318 So.2d 458 (Fla.App. 1st, 1975), cert. den. 322 So.2d 919 (Fla.1975), the Board, after notice and hearing, extended the 1975-76 winter racing season and the racing periods awarded by the Board’s order dated May 21, 1975, by the extra racing days provided by the legislature in chapter 75-43, Fla.Laws, effective May 29, 1975. The effect of the Board’s amended order was to extend the first winter racing period, previously awarded to Tropical Park, by 10 days, to extend the middle period previously awarded to Hialeah by 4 days and to extend the spring period previously awarded to Gulfstream by 10 days. Gulfstream’s petition for expedited review of the Board’s amended order has been briefed, argued, and considered on the merits. The petition is

Denied.

BOYER, C. J. and RAWLS, J., concur.


text:
    Wayland T. COPPEDGE, Jr., Appellant, v. Ruth Pauline HURLBERT, Appellee.
    No. X-339.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1975.
    Herman Ulmer, Jr. and Gary B. Tullís, of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellant.
    Thomas M. Donahoo, of Donahoo, Rowe & Donahoo, Jacksonville, for appellee.
   PER CURIAM.

We have studied the briefs, received oral argument and examined the record in this case, which was tried by the court without a jury. We find that the court’s decision is supported by substantial competent evidence and that there was no error.

Affirmed.

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


text:
    Tanya VAN ZANDT NEFF, Appellant, v. VAN ZANDT, INC., etc., et al., Appellees.
    No. 75-1654.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    F. Kendall Slinkman, Farish & Farish, West Palm Beach, for appellant.
    Wallis E. Schulle, Simpson, Anstead & Brodbeck, West Palm Beach, for appellees.
   PER CURIAM.

Upon review and consideration of the record we are of the opinion that the defendant-appellant has failed to demonstrate an abuse of discretion in the entering of an order granting plaintiff-appellee temporary possession of the subject premises. However, we are of the opinion that the trial court erred in refusing to allow the defendant to present evidence on the issues of consideration for the assignment of the lease in question, breach of representations, failure of compliance and fraud surrounding the transaction. Accordingly, the cause is remanded for further proceedings consistent therewith.

Nothing herein is intended to prevent the trial court, after hearing and review of further evidence, from reconsidering prior orders or from entering such other orders as are consistent with the justice of the cause.

Affirmed, as modified, with directions.

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


text:
    Homer W. MURRAY, Appellant, v. Cecil A. MURRAY, Appellee.
    No. 74-1532.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
    Michael A. Linsky and Ira Weinstein, Tampa, for appellant.
    No appearance for appellee.
   PER CURIAM.

The record on appeal does not support a lack of donative intent; however, it does establish that the appellee is entitled to the property in question as a special equity. Therefore, the final judgment is

Affirmed.

HOBSON, Acting C. J., and BOARD-MAN and GRIMES, JJ., concur.


text:
    D. S. H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-338.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Phillip A. Hubbart, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance Stelzer, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

By petition for delinquency, D.S.H., a juvenile, was charged with petit larcency, in violation of § 811.021, Fla.Stat. A non-jury hearing was held, and D.S.H. was found to have committed the delinquent act described in the petition. Adjudication of delinquency was withheld and the juvenile was placed on probation in the custody of his parents under the supervision of the Division of Youth Services.

The sole point presented on appeal is that the evidence was insufficient to support a finding of delinquency.

A judgment of conviction comes to the appellate court with a presumption of correctness; a claim of insufficiency of the evidence will not prevail where examination of the record reveals that there was substantial competent evidence to support the verdict and judgment, with due regard given to the quantum of proof required in such a case; and in so considering the evidence the appellate court is entitled to accept, in favor of the judgment, inferences reasonably to be drawn from the evidence which support the charge. Crum v. State, Fla.App.1965, 172 So.2d 24, 25. Conflicts in evidence and that it may have been susceptible of differing inferences and presented to the trier of facts with questions as to credibility of witnesses and weight to be given to testimony and other evidence presented, will not establish insufficiency of the evidence to sustain a judgment of conviction when the record discloses there was competent substantial evidence sufficient in law for its support. Wetherinqton v. State, Fla.App. 1972, 263 So.2d 294.

We have examined the record and we find that the judgment is supported by competent substantial evidence.

Affirmed.


text:
    Fred LAWRENCE, Appellant, v. Robert J. VALENTINE et al., Appellees.
    No. 75-484.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Gregory A. Presnell and Nicholas Yon-clas, Akerman, Senterfitt, Eidson & Wharton, Orlando, for appellant.
    Frank E. Maloney, Jr., Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

We affirm the transferral of the instant cause from Orange County to Broward County upon the authority of Enfinger v. Baxley, 96 So.2d 538 (Fla.1957); Allen v. Summers, 273 So.2d 13 (3d D.C.A.Fla.1973); King v. King, 188 So.2d 857 (4th D.C.A.Fla.1966).

Affirmed.

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


text:
    James C. EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-406.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, James Evans, appeals his conviction and sentence entered pursuant to a jury verdict finding him guilty of possession of cocaine. He was sentenced to five years in the state penitentiary.

The sole issue presented to us for consideration in this case is whether the arrest and search were based on probable cause. We have carefully considered Evans’ argument on appeal and have concluded that no reversible error has been shown. See State v. Profera, Fla.App.1970, 239 So.2d 867 and State v. Knapp, Fla.App. 1974, 294 So.2d 338.

Affirmed.


text:
    Raymond McCLUSTER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-558.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Phillip A. Hubbart, Public Defender, Paul Morris, Asst. Public Defender and John Coleman, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Linda C. Hertz, Asst. Atty. Gen., and Joseph F. Ir-acki, Legal Intern, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, Raymond McCluster, was indicted on a charge of first degree murder. Upon trial, a jury found him guilty of second degree murder. The trial court entered judgment and sentenced appellant to life imprisonment.

Appellant seeks review of his conviction and sentence. The several grounds relied on by him for reversal have been carefully considered in the light of the record and briefs and we find no reversible error has been shown. The record discloses that the case was fully and fairly tried, that the verdict is supported by the evidence, and that the several rulings of the trial court challenged by appellant did not, on the record, and under the law constitute reversible error.

Therefore the judgment and sentence appealed are affirmed.

Affirmed.


text:
    Robert Edward DANIEL, Appellant, v. The STATE of Florida, Appellee.
    No. 75-588.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant was convicted of possession of heroin and sentenced to a term of five years in the state penitentiary.

Appellant seeks reversal on the ground that the trial court erred in restricting the cross-examination of a witness for the state.

The ground relied on for reversal has been carefully considered in the light of the record and briefs, and we have concluded that no reversible error has been shown. Harris v. State, Fla.App.1969, 229 So.2d 670; Maycock v. State, Fla.App. 1973, 284 So.2d 411; patera v. State, Fla.App.1969, 218 So.2d 180.

Affirmed.


text:
    Chris ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1296.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Chris Anderson, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: PER CURIAN.

text:
    Lonnie RAINEY, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1576.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Diane Leeds, Legal Intern, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAN.

Affirmed. See Walker v. State, Fla. 1974, 296 So.2d 27; O’Donnell v. State, Fla.1975, 326 So.2d 4 and Anderson v. State, Fla.1973, 276 So.2d 17.


text:
    Lovon PONDER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-671.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before PEARSON and NATHAN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Lovon Ponder, defendant in the trial court, appeals his judgment of conviction and sentence to 20 years in the state penitentiary following a jury trial on the charge of robbery.

The pertinent facts are that on October 25, 1974, Ponder entered the shop of watchmaker Jerome Murrary to inquire about having a watch movement placed inside a locket. Shortly after he left, four black men entered the shop, pointed a gun at Murrary, advised him that it was a holdup, and proceeded to take watches, rings and cash from the shop. Police officers in the neighborhood heard a burglar alarm and began to follow a moving car with four black men inside. When the car came to a stop, the four black men were apprehended. Ponder, the defendant, was the driver of the car. The missing items of jewelry and cash were found in the car. One of the police officers testified at trial that Ponder confessed to the robbery during questioning at the police station. Ponder denied confessing and claimed, in effect, that the robbers jumped in and commandeered his car at gunpoint. The jury found Ponder guilty of robbery. The trial judge adjudged him guilty and sentenced him to 20 years in the state penitentiary.

Ponder raises two points on appeal. First, that the trial court erred in denying his motion for a judgment of acquittal in that the State failed to prove the requisite element of intent to aid, abet or assist in the perpetration of the robbery. Second, that the trial court erred in denying the motion to suppress statements allegedly made to a police officer during a custodial interrogation, in that the State failed to sustain its burden of proving that the defendant made a knowing and intelligent waiver of his right against self incrimination and his right to have counsel present during questioning as guaranteed by the Constitution.

From the record, it appears that Ponder was advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. A resolution of the issues as to the voluntariness of a confession is for the trial court, whose province it is to judge the credibility of the witnesses and the weight of the evidence. Reynolds v. State, Fla.App. 1969, 222 So.2d 246. The trial court’s ruling on a motion to suppress comes to this court with a presumption of correctness and, in testing the accuracy of the trial court’s conclusions we should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain these conclusions. Rodriquez v. State, Fla.App. 1966, 189 So.2d 656, 660. The fact that the confession was not written or recorded but was oral goes only to the weight to be given to it, first by the trial judge in determining its voluntariness and then by the jury in determining its evidentiary weight. Ashley v. State, Fla. 1972, 265 So.2d 685, 690.

The record contains other evidence in addition to the confession which is competent to establish Ponder’s intent. This court will not substitute its judgment of such matters for that of the jury nor pit its judgment against that of the jury in the determination of factual issues presented at trial. Jefferson v State, Fla.App. 1974, 298 So.2d 465.

For the reasons above stated, the trial court is affirmed in all respects.

Affirmed