author: ADKINS, Chief Justice. ENGLAND, Justice

text:
    Gary Eldon ALVORD, Appellant, v. STATE of Florida, Appellee.
    No. 45542.
    Supreme Court of Florida.
    Sept. 17, 1975.
    Rehearing Denied Dec. 15, 1975.

      James A. Gardner, Public Defender, and Richard W. Seymour, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   ADKINS, Chief Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death.

An indictment, containing three counts of murder in the first degree, charged that, on June 17, 1973, the appellant (hereinafter referred to as defendant) murdered Georgia Tully (hereinafter referred to as Georgia), Ann Herrman (hereinafter referred to as Ann), and Lynn Herrmann (hereinafter referred to as Lynn). The defendant was alleged to have committed each of the murders by strangling the named victim to death by means unknown to the Grand Jury.

In the early afternoon of June 18, 1973, the bodies of Georgia, Ann and Lynn were discovered in a home in Tampa, Florida. The home was owned by Ann, who was the daughter of Georgia. Lynn, eighteen years of age, was the daughter of Ann and lived at home with her mother.

Each of the three women was found in a separate room in the house and each had been strangled with a piece of cord. A vaginal test on Lynn showed the presence of semen and there was a slight abrasion on the right side of her head. The front door of the house had been kicked open and the condition of the house tended to indicate that the murderer burglarized the house either before or after the three women had been murdered. The time of death was tentatively established as occurring between 11:00 a. m., Saturday, June 16, 1973, and 1:30 p. m., Monday, June 18, 1973.

At the trial the jury returned a verdict finding the defendant “guilty as charged in the indictment.” After the trial of the penalty phase, the jury recommended to the court that it impose the death penalty upon defendant under each count of the indictment. The trial judge then imposed the death sentence in conformity with the recommendation of the jury and filed an order setting out his finding of facts in support thereof. Upon denial of the motion for new trial, defendant filed a timely notice of appeal.

Defendant first makes a three-pronged attack upon the constitutionality of Fla.Stat. §§ 775.082, 782.04 and 921.141, F.S.A., saying that

(a) The present capital sentencing procedures are unconstitutionally discretionary ;
(b) The statutory distinction between first and second degree felony murder is unconstitutionally vague;
(c) The death sentence is per se cruel and unusual.

Fie requests that we reconsider State v. Dixon, 283 So.2d 1 (Fla.1973). Once again we hold the statutes to be constitutional and reaffirm State v. Dixon, supra. See Sullivan v. State, 303 So.2d 632 (Fla.1974) and Alford v. State, 307 So.2d 433 (Fla.1975).

Defendant contends that the provisions of the Florida Statute allowing a jury to render an advisory opinion on the question of the sentence to be imposed in a capital case by a simple majority vote violates the defendant’s right to a trial by jury guaranteed by the Florida and United States Constitution. The defendant recognizes that Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152, upheld a statute which allowed a conviction to be entered in certain felony cases upon a nine-three plurality verdict of the jury, but says that the court based its decision upon the fact that the Louisiana statute required the concurrence of a “substantial majority” of the jurors. The contention advanced by defendant in the case sub judice was rejected by the United States Supreme Court in the Johnson case when the Court said:

“We note at the outset that this Court has never held jury unanimity to be a requisite of due process of law. Indeed, the Court has more than once expressly said that ‘[i]n criminal cases due process of law is not denied by a state law . which dispenses with the necessity of a jury of twelve, or unanimity in the verdict.’ Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 56 L.Ed. 1038, 1042 (1912) (dictum). Accord, Maxwell v. Dow, 176 U.S. 581, 602, 605, 20 S.Ct. 448, 44 L.Ed. 597, 605, 606 (1900) (dictum).” 406 U.S. at 359, 92 S.Ct. at 1623, 32 L.Ed.2d at 157, 158.

The argument of defendant on unanimous v. majority recommendations was specifically met by this Court in Watson v. State, 190 So.2d 161 (Fla.1967), when it stated:

“The provisions of F.S. Sections 794.-01 and 919.23, F.S.A., authorizing a jury by a majority vote to recommend mercy for a defendant it has found guilty in a capital case are beneficial to the defendant. Requirement of a unanimous vote would lessen defendant’s chance for mercy. Without these provisions said statutes would result in a defendant found guilty thereunder being automatically sentenced to death. It lies within the province of the Legislature to prescribe the punishment to be imposed upon a person who is found guilty or pleads guilty to an offense as well as the method or manner of its imposition. The power to define what acts shall constitute criminal offenses and what penalties shall be inflicted on offenders is legislative. 14 Am.Jur., Criminal Law, § 16. The legislature may authorize a jury to assess punishment. 15 Am.Jur., Criminal Law, § 510. It is not necessary in the sentencing phase of a criminal case that the jury’s verdict be unanimous where the legislature provides otherwise. The cases cited by the Appellants from other jurisdictions do not construe statutes similar to F.S. Sections 794.01 and 919.-23, F.S.A., which require only a majority vote for a recommendation of mercy. There is no provision in our Constitution requiring a unanimous verdict in respect to a recommendation of mercy.” (pp. 166, 167)

The State, as part of its direct case’J called Detective Donald Dufour, of the Lansing Police Department, who had arrested the defendant in Lansing, Michigan, about three weeks after the murder^. Du-four originally arrested defendant in .connection with a burglary which had occurred in the Lansing area. . Dufour took defendant from the jail section of the Police Department to the office of Detective Bureau and gave him the following advice as to his rights:

“A First of all I advised him that, who I was. I advised him who I was and that I was a detective with the Police Department in Lansing. I advised him that he didn’t have to talk to me, that anything he said will be used in court against him. I advised him that he had to, he had a right to have an attorney. He had a right to have an attorney present before he answered any questions or made any statement.
“Q All right. Did he request to have an attorney?
“A No, sir, he did not.
“Q Did he request to remain silent?
“A No, sir, he did not.
“Q Did you or anyone in your presence promise him anything in order for him to make a statement ?
“A No, sir.
“Q Did you or anyone in your presence threaten him to make a statement?
“A No, sir.
“Q Did you promise him immunity if he made a statement ?
“A No, sir.
“Q Did you coerce him in any way to make a statement ?
“A No, sir.
“Q Did he indicate whether or not he understood his rights ?
“A Yes, sir. He told me he was aware of his rights.” (Tr. pp. 689, 690)

When Dufour advised defendant that he wanted to talk to him about a “safe job,” the defendant looked at him and said, “I am a rapist, not a God-damn thief.” When Dufour asked defendant what was meant by that, the defendant told him he was wanted for three murders in Florida. Dufour then said, “I thought it was two” and defendant replied, “Maybe they forgot one.” When Dufour asked, “Did you do it?” defendant responded, “They will have to prove it.”

Before permitting Detective Dufour to give this testimony, the trial judge excluded the jury and heard the State’s proffer. The trial judge determined that the statement had been made freely and voluntarily and ruled it to be admissible, but cautioned Detective Dufour not to mention to the jury the nature of the offenses he was investigating (the burglary and the safe job). Over objection of defendant, the statement, “I am a rapist, not a God-damn thief” was admitted into evidence.

Defendant says that Dufour failed to advise him that an attorney would be appointed to represent him if he were an indigent. This deficiency in the warning, says defendant, violates the principles set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and the resulting statements should have been excluded.

Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), recognizes that the Miranda decision on custodial statements by defendants was not intended to create a constitutional straightjacket, but rather to provide practical reinforcement for the right against compulsory self-incrimination. In that case, the defendant received all of the Miranda rights with the exception that, if he could not afford counsel, the State would provide him one free of charge. The United States Supreme Court held that the police conduct did not abridge the defendant’s constitutional privilege against self-incrimination but only departed from the prophylactic standards enunciated in Miranda. In its opinion the Court said:

“Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.
<< * * *
“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least, negligent conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care towards the right of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.” Michigan v. Tucker, 94 S.Ct. at 2365.

Defendant’s statement that he was a rapist, not a thief, was relevant in view of evidence showing that the underwear of one of the victims was found in a room separate from her body, and her pubic area was exposed. Also, there was evidence of male sperm in her vagina, and testimony that defendant, on the morning after he described the murder to his girl friend, had nail scratches on his chest.

The trial court complied with the United States and Florida constitutional standards pertaining to the admissibility of the custodial statements by defendant.

Contrary to the contention of defendant, the trial judge committed no error in permitting Dr. William G. Gibson to testify that he found sperm from a male when he conducted a vaginal smear on the victim, Lynn.

Defendant complains because the trial judge allowed testimony that defendant owned a gun at the time the murders were committed. Defendant says the evidence was irrelevant as there was no showing that defendant took the gun with him. Defendant’s girl friend testified that on the evening after defendant had committed the murder, he stated to her, “I had to rub out three people last night, Zelma,” and in response to her question as to whom: “Ann, Lynn and her Mom.” Defendant told her he had strangled them after placing them in separate rooms. Defendant told his girl friend that he could not shoot them because it would make too much noise, and that was why he had to strangle them. The trial judge did not commit error in allowing testimony to be given concerning the gun, as great latitude should be allowed in the reception of indirect or circumstantial evidence. See Astrachan v. State, 158 Fla. 457, 28 So.2d 874 (1947). Evidence of the defendant’s ownership of a gun was a circumstance lending credence to the testimony of the girl friend.

Defendant contends that error was committed when Dr. Ames Robey was permitted to testify in the penalty phase of the trial that defendant was sane at the time he had committed a rape in the State of Michigan.

Defendant had been charged with the rape of a ten-year-old girl in Michigan and upon trial, a verdict of not guilty by reason of insanity was entered. Dr. Robey examined defendant in connection with the Michigan proceeding in 1969 and 1970. At that time the Doctor saw “evidence of incipient or latent or underlying mental illness” but, in his opinion, defendant understood the charges and was competent to stand trial. Even though defendant was mentally ill “to a minimal degree, he was aware of the wrongfulness of his act at that time.”

The test for criminal insanity in Michigan was broader than the test in Florida. Under Michigan law a person was not held responsible for his act if the act was the result of an irresistible impulse due to mental illness.

In the penalty proceedings certain types of evidence which may be inadmissible in a trial on guilt may be admissible and relevant to enable the jury to make an informed recommendation based on the aggravating and mitigating circumstances concerning the acts committed. In fact, one of the statutory mitigating circumstances is the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Fla.Stat. § 921.141 (6) (f), F.S.A. There should not be a narrow application or interpretation of the rules of evidence in the penalty hearing, whether in regard to relevance or to any other matter except illegally seized evidence. State v. Dixon, supra. See also Sullivan v. State, 303 So.2d 632 (Fla.1974), and Smith v. State, 303 So.2d 694 (Fla.App.1st, 1974). This testimony was properly allowed into evidence.

Defendant says that the testimony relative to the Michigan prosecution for rape should have been barred under the doctrine of collateral estoppel as announced in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). “Collateral estoppel” means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit. Where a previous judgment of acquittal was based upon a general verdict, the federal rule of collateral estoppel requires the Court to examine the record of the prior proceeding and to conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. The United States Constitution’s Fifth Amendment guaranty against double jeopardy protects a man who has been acquitted from having to “run the gauntlet” a second time. A Michigan verdict of “not guilty” would trigger the doctrine of collateral estoppel, so that evidence of the offense would not have been admissible in any phase of the trial.

But the Michigan verdict was “not guilty by reason of insanity.” Although any evidence concerning the Michigan case was inadmissible during the trial upon the guilt or innocence of defendant in connection with the Florida offenses, this evidence was admissible in the hearing on the penalty phase after the determination of guilt. The penalty hearing is geared to consider any facts or opinions which may be relevant in determining the statutory mitigating and aggravating circumstances. The Michigan Court determined that defendant either (1) did not have the minimal capacity to distinguish right from wrong, or (2) was suffering from a mental illness which caused an irresistible impulse to commit the act. The doctor who examined the defendant at that time, and again during the Florida trial, was certainly competent to testify as to the mental condition of defendant. This matter was relevant to the question of mitigating or aggravating circumstances during the penalty phase of the proceeding. The latter issue involved in the penalty phase was not determined by any final judgment of the Michigan court, so the doctrine of collateral estoppel is not applicable.

The evidence was sufficient to sustain the verdict of guilt. In addition to the evidence discussed above, there was testimony that defendant had possession of some of Ann’s jewelry after the murder; the police found a short piece of rope in a dresser drawer in defendant’s apartment which was the same type of rope used to strangle all three of the victims; one of defendant’s shirts had blood on it; a witness testified that on the morning after the murder defendant had over $100; one of the victim’s purses used to store large quantities of money was found to be empty; defendant told his girl friend he had to kick the door in to get into the house and the evidence showed that. this was done.

The evidence corroborated the testimony of the girl friend, Zelma Hurley. She testified that on Saturday night, June 16, 1973, defendant left her about 1:30 a. m. and was gone until 6:30 a. m. When Zelma arose she observed the money in possession of defendant. That night defendant told her, “I had to rub out three people last night,” and identified them as Ann, Lynn and Georgia. Defendant then told her the details of the murder.

The jury is charged with the responsibility of resolving factual conflicts. When it is shown that the jurors have performed that duty faithfully and honestly and reached a conclusion that squares with reason, it takes more than a difference in opinion as to what the evidence shows for this Court to reverse them. The conflicts were resolved in favor of the State and the evidence was sufficient as a matter of law to sustain the verdicts. See State v. Smith, 249 So.2d 16 (Fla.1971).

It is our responsibility to review the sentence in the light of the facts presented in the evidence, as well as other decisions, and determine whether or not the punishment is too great. See State v. Dixon, supra. Three murders were committed while the perpetrator was engaged in the commission of the felony offense of burglary. Each of the murders was especially heinous, atrocious and cruel in that the homicides were committed through strangulation by use of a rope. This could only be accomplished through a cold, calculated design to kill, as distinguished by a single shot from a firearm during an outburst of anger. The great risk of serious bodily harm by death to other persons is apparent, in that defendant obviously murdered two of the victims in order to avoid a surviving witness to the murder of the other victim. The murders were not committed under circumstances which defendant believed to provide a moral justification or extenuation for his conduct and his capacity to conform his conduct to the requirements of law was not impaired. His age, 26 years, had no particular significance. These aggravating circumstances outweigh any circumstances which would mitigate the sentence in this case.

There is no way that the Legislature could program a judicial computer with all of the possible aggravating factors and all of the possible mitigating factors in each case. See State v. Dixon, supra. The law does not require that capital punishment be imposed in every conviction in which a particular state of facts occur. The statute properly allows some discretion, but requires that this discretion be reasonable and controlled. No defendant can be sentenced to capital punishment unless the aggravating factors outweigh the mitigating factors. However, this does not mean that in every instance under a set state of facts the defendant must suffer capital punishment.

The statute contemplates that the trial jury, the trial judge and this Court will exercise reasoned judgment as to what factual situations require the imposition of death and which factual situations can be satisfied by life imprisonment in light of the totality of the circumstances present in the evidence. Certain factual situations may warrant the infliction of capital punishment, but, nevertheless, would not prevent either the trial jury, the trial judge, or this Court from exercising reasoned judgment in reducing the sentence to life imprisonment. Such an exercise of mercy on behalf of the defendant in one case does not prevent the imposition of death by capital punishment in the other case.

Sullivan v. State, supra, involved a death sentence which was held to be appropriate by this Court. During the course of a robbery defendant abducted the victim, struck him with a tire iron, and shot him with both barrels of a shotgun in the back of the head. The defendant reloaded and discharged both barrels again into the victim’s head. Just as in Sullivan, this case involves the commission of a burglary and the murder of the victim. The deliberate actions of Sullivan in repeatedly shooting the victim is no less heinous and atrocious than the actions of defendant Alvord in deliberately strangling three women with a rope.

Gardner v. State, 313 So.2d 675 (Fla.1975), was an appeal from a death sentence for the murder of a female. The murder was accomplished by the use of a blunt instrument, the victim’s body containing at least 100 bruises, abrasions and contusions. There was a massive hemorrhage of the pubic area. The victim was beaten so badly that the murder was looked upon as being especially heinous, atrocious and cruel. These aggravating circumstances outweighed any mitigating circumstances and the death penalty was upheld. Certainly, the atrocious manner in which Gardner murdered his victim is no more atrocious or heinous than the atrocious manner in which Alvord coldly strangled three females while committing his burglary-

A female victim was involved in Hallman v. State, 305 So.2d 180 (Fla.1974). The defendant committed the crime of robbery, cut the victim about the throat and neck with broken glass, slitting her throat and causing her death. Hallman had been convicted of two previous crimes involving an assault upon a young woman with a dangerous weapon. Alvord had been involved with the rape of a young girl in Michigan, and the evidence indicated that an assau/t was made upon the deceased Lynn, who was 18 years of age. The act of Hallman in cutting the victim with broken glass is no more heinous than the strangulation of three women by Alvord. Comparing the aggravating and mitigating circumstances with those shown in other capital cases and weighing the evidence in the case sub judiee, our judgment is that death is the proper sentence.

Pursuant to Rule 6.16(b), Florida Appellate Rules, we have reviewed the evidence to determine whether the interest of justice requires a new trial. No reversible error is made to appear and the evidence does not reveal that the ends of justice require that a new trial be awarded. We find that the judgment and sentence of the trial court in this cause is in accordance with the justice of the cause.

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

It is so ordered.

ROBERTS and OVERTON, JJ., and AGNER and PATTERSON, Circuit Judges, concur.

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

ENGLAND, Justice

(concurring in part and dissenting in part).

I concur with the majority’s decision that defendant had a fair trial and that his conviction for first degree murder was amply warranted by the evidence. I do not agree, however, that any valid death sentence can be imposed under Florida’s death sentence statute (Section 921.141, Florida Statutes (1973)).

Under the multiple views expressed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the selective, arbitrary imposition of the death penalty is prohibited by the Eighth and Fourteenth Amendments to the United States Constitution. I believe our death sentence statute fosters rather than avoids the proscribed unbridled discretion. I share the views of our statute which were expressed by Mr. Justice Ervin and Mr. Justice Boyd in State v. Dixon, 283 So.2d 1, 11, 23 (Fla.1973) (dissenting). I can now add to their analyses that Florida’s experience under the statute proves their perceptions correct.

Since the sentencing statute was enacted, we have reviewed several capital felony cases in which the death sentence could have been imposed. These cases range from love triangle deaths to execution-type slayings. In two decided cases a jury recommended life, the judge imposed a death sentence, and we affirmed his sentence. In four decided cases a jury recommended death, the judge concurred, and we affirmed. In one decided case the defendant entered a guilty plea, no jury recommendation was received (for which deficiency we reversed), and the judge imposed a sentence of death. In another case a jury recommended and the judge sentenced life imprisonment. In still another, a jury recommended, the judge sentenced and we affirmed a death sentence, while an accomplice was allowed a life sentence on the basis of a plea bargain for his testimony.

Perhaps it would be possible to analyze each of these cases, together with those life sentences we have never reviewed, and conclude that Florida’s trifurcated sentence procedure exhibits a non-discriminatory pattern consistent with the dictates of Fur-man. I cannot, however. I believe our statute will produce Fwwan-prohibited arbitrariness so long as human discretion is injected into one, let alone three, stages of the sentencing process. Until such vagaries are sanctioned by the United States Supreme Court, I cannot reconcile this legislation with the United States Constitution.

I would affirm defendant’s conviction, but I would reduce his sentence to life imprisonment.

      . Defendant has challenged the applicable statute on the ground that the statutory distinction between first and second degree murder is unconstitutionally vague. I share Justice Boyd’s doubts that any juror of common intelligence, or most judges, can comprehend the distinction. See State v. Discon, 283 So.2d 1, 26-27 (Fla.1973) (Boyd, J., dissenting). The statute has recently been held constitutional by a majority of this Court, however, in Dixon and in Alford v. State, 307 So.2d 433 (Fla.1975). I do not perceive my legal duties to include a refusal to follow fundamental jurisprudential concepts such as stare decisis (“let the decision stand”) and judicial restraint. In the absence of intervening events of compelling legal significance, and none are presented with respect to the verbal vagueness between first and second degree murder, the Court should not overturn contemporaneous case law merely because there have been personnel changes in the Court.

      . Since we do not have jurisdiction to review capital cases resulting in a sentence of life imprisonment (absent some other basis for our jurisdiction), we have no idea how many persons convicted of capital crimes have avoided a judge’s sentence of death. Nor do we know what the juries recommended in those cases.

      . Dorminey v. State, 314 So.2d 134 (Fla., filed Apr. 16, 1975).

      . Sullivan v. State, 303 So.2d 632 (Fla.1974); Alford v. State, 307 So.2d 433 (Fla.1975).

      . Sawyer v. State, 313 So.2d 680 (Fla., filed Feb. 19, 1975); Gardner v. State, 313 So.2d 675 (Fla., filed Feb. 26, 1975).

      . Alford v. State, 307 So.2d 433 (Fla.1975); Hallman v. State, 305 So.2d 180 (Fla.1975); Spinkellink v. State, 313 So.2d 666 (Fla., filed Feb. 19, 1975); Proffitt v. State, 315 So.2d 461 (Fla., filed May 28, 1975).

      . Lamadline v. State, 303 So.2d 17 (Fla.1974).

      . Dorminey v. State, supra. We affirmed the conviction and sentence in the course of reviewing an independent constitutional question.

      . Sullivan v. State, 303 So.2d 632 (Fla.1974).

      . The sentence procedures set out in the act are usually described as “bifurcated”. In reality, however, the statute creates three tiers in the sentencing process — the jury, the judge, and this Court.

      . The statute defies uniformity at the outset by limiting our review to only the capital cases where the judge imposes death.

      . In Furman, Justice Douglas traced the origins of the Eighth Amendment to the United States Constitution, suggesting that it was rooted in part in earlier but familiar discretionary prejudices applied against minorities, the poor and the unpopular. 408 U.S. at 240-57, 92 S.Ct. 2726. Even if those evils can be said to be overcome by the inclusion on juries of a representative societal mix, the Florida death sentence statute operates to destroy, not preserve, that saving feature. No one could seriously contend that a similar societal mix is evident on either the trial or appellate benches of this state, and in the only two cases brought to us for review in which there has- been a jury-judge disagreement under the statute, the jury’s recommendation has been discarded. Sawyer v. State, 313 So.2d 680 (Fla., filed Feb. 19, 1975); Gardner v. State, 313 So.2d 675 (Fla., filed Feb. 26, 1975).

      . Anderson v. State, 267 So.2d 8 (Fla.1972).


source: Caselaw Access Project

author: ENGLAND, Justice.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Walter Devere DENT, Respondent.
    No. 46383.
    Supreme Court of Florida.
    Sept. 24, 1975.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for petitioner.
    Stewart E. Parsons, Parsons & Warren, Tallahassee, for respondent.
   ENGLAND, Justice.

By petition for certiorari we are asked to review a decision of the First District Court of Appeal, reported at 301 So.2d 475, which directly conflicts with Jacobs v. State, 184 So.2d 711 (1st DCA Fla.1966). We have jurisdiction.

The state asks us to reinstate respondent’s conviction following a jury trial on two counts of selling cocaine. The events leading to respondent’s conviction began with general conversations between respondent and an undercover agent relative to the purchase of drugs, subsequent to which the agent on two occasions in fact bought cocaine in respondent’s presence from persons met through respondent. For arranging the transactions, respondent received compensation from the agent. A more complete recitation of the events appears in the district court’s opinion, but it is unnecessary here.

On appeal from his convictions, the district court held that respondent was improperly convicted of “selling” because a third person, not respondent, effected the sale in each instance and respondent’s only compensation was received from the buyer for services as a middleman. The district court’s majority did not expressly address the view of the dissenting judge that respondent was properly convicted as a principal in the first degree, even if he did not personally, or as an agent, sell drugs in violation of the applicable statute. In Jacobs the district court had reached a contrary conclusion, stating that under the same “principal” statute “a person is a principal in the first degree whether he actually commits the crime or merely aids, abets, or procures its commission.”

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

The decision of the First District Court of Appeal is quashed, and respondent’s conviction is affirmed. This cause is remanded to the district court for action consistent with this opinion.

ROBERTS, BOYD and OVERTON, JJ., concur.

ADKINS, C. J., dissents.

      . Article V of the Florida Constitution, as revised in 1972, extends our jurisdiction to conflicts between decisions of the same district court of appeal. Conflicts of this type should be rare, however. We would expect the chief judge of each district court to assure uniformity within the district, as a part of his constitutional responsibility under Article V, § 2(c) of the Florida Constitution (1972).

      . Respondent’s defense of entrapment was raised and resolved below. It is not before us.

      . “Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, is a principal in the first degree . . . .” Section 776.011, Fla.Stat. (1973).

      . Section 398.02(9), Fla.Stat. (1971). This statute has been repealed and replaced by a new drug offense statute which does not define the term “sale”. See Section 893.13, Fla.Stat. (1973).

      . 184 So.2d at 715

      . We express no opinion on tlie issue of respondent’s sentence, which was raised by the district court on its own motion and discussed in the opinion below, but which was not made the subject of review here. Additionally, our disposition of this case on the basis of the “principal” statute makes it unnecessary to deal with the “procuring agent” theory, new to Florida, which respondent presents.


author: PER CURIAM. BOYD, Justice

text:
    STATE of Florida ex rel. MIAMI HERALD PUBLISHING COMPANY, etc., et al., Relators, v. Russell H. McINTOSH, Circuit Court Judge, Respondent.
    No. 48264.
    Supremo Court of Florida.
    Nov. 5, 1975.

      Parker D. Thomson, Susan W. Diner and Dan P. S. Paul, Paul & Thomson, Miami, for relators.
    Joseph P. Metzger, Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for respondent.
   PER CURIAM.

This cause is before us on petition for writ of prohibition, writ of mandamus, and for other constitutional writs necessary to the complete exercise of this Court’s jurisdiction. From the facts asserted in the pleadings we glean that :

Three mortgage brokers and three corporate brokerage firms are charged with “ . . . selling unregistered securities, selling securities while not registered as a securities salesman, securities fraud, grand larceny and conspiracy to sell unregistered securities and to commit grand larceny. . ” These charges are the first to emerge from the Comptroller’s statewide investigation into what he terms a mammoth securities and mortgage fraud within the State. Since this investigation has been the subject of widespread coverage by state and national press, the six criminal defendants joined in a Motion to Control Prejudicial Publicity, which motion was served only on counsel for the State and for the defendants and was heard along with other pretrial motions. Upon consideration of the motion, argument of counsel, a file of press clippings and the authorities presented by the parties to the criminal action, Respondent entered his first order in which he ordered:

“1. The defendant’s Motion to Control Prejudicial Publicity, in order to afford a fair trial of this cause, is hereby granted and the Court orders as follows:
“A. Members of the news media shall not report any testimony presented and/or evidence exhibited in the absence of the jury unless same shall have been admitted in evidence by the Court, or is a public record, or is presented in open court in the presence of the jury; .
“B. Defense counsel, all members hnd employees of the Palm Beach County State Attorney’s Office, all members and employees of the Attorney General’s office, members and employees of the Division of Securities, and members 'and employees of the Office of the Comptroller, and all officials of the State of Florida, including the Comptroller and the Attorney General of the State of Florida, law enforcement officers, subpoenaed witnesses, bailiffs, clerks and other officials in attendance to this Court, shall not give or authorize any extrajudicial statement or interview relating to the trial of this cause or the parties or issues in the trial for dissemination by any means of public communication during the course of this trial, except they may quote from or refer without comment to public records, or testimony or evidence that has been admitted in evidence during the course of this trial.
“2. The intendement [Sic] of this Order is to prevent publicity of a nature that would tend to adversely affect the rights of the defendants to a fair trial.”

On his morning arrival at the courtroom Relator Schwartz, a reporter for Relator newspaper, was instructed to pick up a copy of this order, which he did. That afternoon, Realtors sought revocation of Respondent’s first order; a hearing was scheduled for the following morning. At that hearing, Relators filed a Motion to Vacate Respondent’s first order, supporting their Motion with a memorandum of law. No additional factual support for the first order was submitted. At the conclusion of the hearing, Respondent entered his second order in which he not only denied Relators’ Motion on the ground that they had no standing to challenge the first order but he also made the following gratuitous “findings of fact”:

“That there has been a considerable amount of publicity by news media throughout the State, some of which quotes high government officials on the subject matter of this prosecution;
“That it is reasonable to expect that this publicity will continue during the course of this trial; and
“That the continuance of this publicity if it is permitted to include preferred testimony and/or documents or other physical evidence which are inadmissible against the defendants or opinions of public officials, attorneys, court personnel, and other restrained by the contested order constitutes a ‘clear and present danger’ that the defendants in this prosecution will not receive a fair trial unless the order entered herein be enforced.”

Immediately, on October IS, 1975, after the denial of their Motion, Relators sought expedited review in the District Court of Appeal, Fourth District, by filing a Suggestion for Writ of Prohibition, which Suggestion was denied Per Curiam, with a dissenting opinion on October 17, 1975. Jury selection began October 14, 1975, and concluded on Friday, October 17, 1975. The taking of testimony commenced on Monday, October 20, 1975. Thereafter, on October 28th, some eleven days after the decision of the District Court, Petitioners filed for relief in this Court, seeking, among other things, a Stay Order suspending operation of the trial judge’s orders. An emergency hearing was set and oral argument heard on Monday, November 3, 1975. After careful review of the record, we make the following determinations.

Since the District Court of Appeal, Fourth District, has rendered its decision on the same matters presented to this Court, we deem it inappropriate to entertain the Petition for Prohibition, and Mandamus is not available as a remedy in this case. See State ex rel. Dykeman v. Petteway, 96 Fla. 74, 117 So. 696 (1928) and its progeny. Relief, therefore, is denied.

Section 2(a), Article V, Constitution of Florida, provides, among other things, that “no cause shall be dismissed because an improper remedy has been sought.” Pursuant to that authority, the Court has elected to treat the Petition filed in this cause as a Petition for Conflict Certiorari, recognizing therein an apparent conflict between the decisions of the District Courts because of the decision in the instant case and the case of State ex rel. Miami Herald Publishing Co. v. Rose, 271 So.2d 483 (Fla.App. 2, 1972). Noting that the two decisions may be in conflict, the Court deems there to be colorable jurisdiction for the purpose of making a determination at an appropriate time on the question of jurisdiction, and, if the Court determines that it has conflict jurisdiction, to render a decision on the merits under rules relating to Conflict Certiorari.

We realize that this temporary delay will be little comfort to the Relators as to the trial now pending, but believe all parties understand that this is an important issue both as to how the Stay Order might affect the present trial in progress and future criminal trials of public interest and that, therefore, this Court should not rule in a summary manner without full briefing and the record in this cause. Because of the importance of the question of law involved, we expect that this cause will proceed to final determination even after disposition of the pending criminal trial. Furthermore, we observe that Relators initially chose as their forum the Fourth District Court of Appeal, rather than this Court, within which to seek prohibition of the enforcement of the orders involved and that the matter arrives here when the criminal trial is in its third week. We have received a brief on the merits from only one side in this cause. Naturally, we deem it inappropriate to discuss the merits of this controversy without the benefit of argument or briefs by both sides.

Accordingly, it is the opinion of the Court and we hold:

1. That the Petition for Prohibition, Mandamus and Stay Order is denied.

2. Pursuant to Section 2(a), Article V, Constitution of Florida, the Court has classified the Petition as a Petition for Conflict Certiorari governed by Section 3(b)(3), Article V, Constitution of Florida, and rules relating to Conflict Certiorari. Relief requested for any other constitutional relief is denied.

3. Petitioners shall file their briefs on jurisdiction and merits on or before noon, Monday, November 10th, and Respondent is directed to file brief on jurisdiction and merits on or before Friday, November 14th, with oral argument, thirty minutes to the side, to be heard on jurisdiction and merits on November 17th. Parties shall file such supplements to the record as they deem appropriate with their respective briefs.

It is so ordered.

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

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

BOYD, Justice

(concurring in part and dissenting in part).

I concur in that part of the majority opinion which permits Relators to proceed in this Court on conflict certiorari, but I dissent from that portion of the opinion which denies the petition to stay the orders of the trial court limiting Relators’ right to report that which occurs in open court, even though the jury may not be present.

I would deny Respondent’s Motion to Quash or Dismiss the Relators’ petition, inasmuch as any form of prior restraint of expression comes to a reviewing court bearing a heavy presumption against its constitutional validity; the party who seeks to have such a restraint upheld carries a heavy burden of showing justification for the imposition of such a restraint (New York Times Company v. U. S. and U. S. v. The Washington Post Company, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822; Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963)). In my view, Respondent has not carried that burden. Due to the nature of this proceeding while a highly publicized criminal court trial is in progress, I do not think that this Court should delay its decision for the period required under conflict certiorari jurisdiction. I believe that under the all writs provision of the Florida Constitution an appropriate order should be issued now to require that any order restricting news coverage in that trial meet standards set by the United States Supreme Court in cases cited herein.

In my view the two orders of the trial court presently being considered are substantially similar to the order reviewed in Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 95 S.Ct. 1, 42 L.Ed.2d 17. In that case the order imposed a total ban on reporting of testimony given in hearings on pretrial motions until after selection of a jury and placed other selective restrictions on reporting before and during the trial, including prohibitions against publishing interviews with subpoenaed witnesses, the defendants’ criminal records or confessions unless allowed in evidence, and editorial comments tending to influence the court, jury or witnesses. A review of the first order entered below shows remarkable similiarity. In Schuling-kamp Justice Powell granted an application by a newspaper owner for a stay, pending review on certiorari, of the state court order; in my view I feel this same action should be taken in this case.

I recognize that a court is legitimately concerned with preventing prejudicial publicity from poisoning the impartial atmosphere essential to a fair trial. Nevertheless, the court’s action in restricting the media must relate to the danger sought to be avoided and it must not be unconstitutionally overbroad (U. S. v. C.B.S. Inc., 497 F.2d 102 (5th Circuit 1974)). In C.B.S. Inc. v. Young, 522 F.2d 234 (6th Circuit, Opinion filed July 2, 1975) the court held that prior direct restraints must pose a “clear and present danger” or a “serious or imminent” threat to a protected interest and that restraint cannot be upheld if reasonable alternatives are available. In Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Circuit, Opinion filed August 4, 1975) the court held that the proscribed comments must pose a “serious and imminent threat” of interference with fair administration of justice. In U. S. v. Dickinson, 465 F.2d 496 (5th Circuit 1972) the court observed that before First Amendment freedoms can be abridged, substantive evil must be extremely serious and the degree of imminence extremely high. The standard to be met is that the expression by the press must constitute “an immediate, not merely likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” (See Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); see, also, U. S. v. C.B.S. Inc., supra.)

It has been recognized that the news media, even though not a party to litigation below, has standing to question the validity of an order because its ability to gather news is directly impaired or curtailed (see C.B.S. Inc. v. Young, supra, and State ex rel. Gore Newspaper Company v. Tyson, 313 So.2d 777 (Fla.App.1975)). This is so, because the public and press have a right to know what goes on in a courtroom whether the proceeding be criminal or civil. A member of the press or newspaper corporation may be properly considered as a representative of the public insofar as enforcement of public right of access to the court is concerned. Public and press have a fundamental right of access to all judicial proceedings. In determining restrictions to be placed upon access to judicial proceedings, the court must balance the rights and interests of the parties to litigation with those of the public and press (State ex rel. Gore Newspaper Company v. Tyson, supra). Reporters are plainly free to report whatever occurs in open court through their respective media (Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, reh. den., 382 U.S. 875, 15 L.Ed.2d 118, 86 S.Ct. 18; Pennekamp v. Florida, 328 U.S. 331, 90 L.Ed. 1295, 66 S.Ct. 1029 (1946)).

I recognize that a trial court has the inherent power to control the conduct of the proceeding before it (State ex rel. Gore Newspaper Company v. Tyson, supra). I further recognize that it is the trial court’s responsibility to protect a defendant in a criminal prosecution from inherently prejudicial influences which threaten fairness of his trial and the abrogation of his constitutional rights (see Dickinson, supra). However, I feél that, through admonition to jurors and through sequestration of the jury, a trial judge has ample power to insure a fair trial for a criminal defendant without suppressing First Amendment rights of the news media as regards reporting proceedings (Rose, supra). Trial is a public event, there is no special perquisite of the judiciary which enables it to suppress, edit or censor events which transpire in proceedings before it, and those who see and hear what transpired may report it with immunity (Dickinson, supra).

It is my opinion that the first order presently under consideration is unconstitutionally vague on the matter of the extent of news suppression, that the court failed to give notice to the news media who are the parties affected thereby and that the first order is overbroad in that it enjoins the reporting of opinions of public officials, attorneys, and court personnel. Gagging a public official who has pertinent information is as detrimental to the First Amendment as drying up the reporter’s pen. As stated in C.B.S. Inc. v. Young, supra, the protected right to publish news would be of little value in the absence of sources from which to obtain it.

In its first order the court states its purpose to be “to prevent publicity that would tend to adversely affect the rights of the defendants to a fair trial;” however, its second order states that continued publicity would constitute a “clear and present danger” that the defendants will not receive a fair trial. The court does not explain this latter finding, and evidence thereof is not present in the record before us now.

Therefore, under the all necessary writs provision of the «Florida Constitution we should quash both trial court orders subject to the right of the trial court to issue further appropriate orders in accordance with the above-mentioned federal standards. Such orders should be entered only after statement in open court announcing time for a hearing on matters with the right of interested news media to be heard on the law and the facts. Any such order which might be entered should contain a clear statement of facts demonstrating the basis of any finding that there exists clear and imminent danger to the rights of the criminal defendants to a fair trial.

It is clear that censorship in any form, including judicial censorship, is incompatible with dictates of' the Constitution and the concept of free press (Dickinson, supra). State judges have the same obligation as those in the federal system to follow constitutional interpretations enunciated by the Supreme Court of the United States. In the views expressed here relating to free press and fair trial I have sought to accomplish that purpose. If, indeed, the Relators have a right to publish the restricted information, failure of this Court to give timely relief will effectively deny Relators the opportunity to publish certain matters pertaining to this trial.


author: OVERTON, Justice. ENGLAND, Justice

text:
    PAN-AMERICAN LIFE INSURANCE COMPANY, a Louisiana Corporation, Petitioner, v. Angel Fernando Tamargo Y DIAZ, Respondent.
    No. 45973.
    Supreme Court of Florida.
    Nov. 5, 1975.

      Sam Daniels, Miami, for petitioner.
    Edward A. Perse, of Horton, Perse & Ginsberg, and Acosta & Duran, Miami, for respondent.
   OVERTON, Justice.

This is a petition for conflict certiorari to review a decision of the Third District Court of Appeal reported as Diaz v. Pan-American Life Insurance Company, 296 So.2d 534 (Fla.App.3d 1974). It concerns a life insurance policy which the petitioner, a Louisiana corporation, issued in 1943 at its New Orleans office, delivering that policy to the respondent who was then a citizen and resident of Havana, Cuba. The respondent, after becoming a resident of Miami, Florida, brought an action in 1973 to recover the cash value of the policy. The petitioner defended on the grounds that the statute of limitations barred recovery and further disputed the method of computing the value of the policy.

The trial court held the statute of limitations barred recovery under the facts of this case and entered a summary final judgment in favor of the petitioner insurance company. The action of the trial court was reversed by the Third District Court of Appeal, which directed the trial court to enter a summary judgment in the respondent insured’s favor as to liability and try the issue of “whether the proceeds of the policy were to be paid at a hundred cents on the dollar or in a lesser amount upon and equivalent to the value of Cuban pesos.” Upon filing its opinion, the District Court in a separate order granted respondent’s motion for attorney’s fees and ordered the petitioner to pay the attorneys for the respondent the sum of $750.00 as compensation for their services before that court.

We have no conflict jurisdiction over the opinion of the District Court on the merits of this cause, and it is not appropriate for us to comment further thereon.

The respondent concedes that the order awarding attorney’s fees by the Third District Court of Appeal is in direct conflict with the opinion of the Fourth District Court of Appeal in Pan-American Life Insurance Company v. Fuentes, 258 So.2d 8, 11 (Fla.App.4th 1971). We agree and take jurisdiction. Fla.Const., Art. V, § 3(b)(3). We hold that attorney’s fees are not recoverable under tfie circumstances of this cause, and we adopt the holding of the Fourth District Court of Appeal in Pan- American Life Insurance Company v. Fuentes, supra, in which that court said:

. . With certain exceptions not pertinent here, Section 627.0127, F.S. 1969, F.S.A., does not apply to an insurance contract which like the one here involved was neither issued for delivery in Florida nor delivered in this state..."

The petition for certiorari is discharged as it concerns the opinion of the Third District on the merits of the cause. The petition is granted with reference to the order awarding attorney’s fees and the order is hereby quashed.

It is so ordered.

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

ENGLAND, J., concurs with an opinion, with which ADKINS, C. J., and OVER-TON, J., concur.

ENGLAND, Justice

(concurring).

I concur with Justice OVERTON’S opinion in all respects. The action of the Court in reviewing by certiorari only the order on which our jurisdiction is based, and not another district court order which would not be reviewable independently, comports with my understanding of the scope of our jurisdiction. Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34, 38 (Fla.1975) (England, J., concurring).

I concur specially, as I did in Bennett v. State, 316 So.2d 41, Fla.1975, to note what I perceive to be the effect of our decision on other Florida precedents. I believe our decision today necessarily overrules General Ins. Co. of America v. Roth, 233 So.2d 662 (3d DCA Fla.1970).

ADKINS, C. J., and OVERTON, J., concur.


author: KLEIN, EDWARD S., Circuit Judge: OVERTON, Justice

text:
    Nadene SINGLETARY, Appellant, v. STATE of Florida, Appellee. Lillian EADY, Appellant, v. STATE of Florida, Appellee.
    Nos. 46175, 46173.
    Supreme Court of Florida.
    Oct. 29, 1975.

      Louis O. Frost, Jr., Public Defender, and Steven E. Rohan, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   KLEIN, EDWARD S., Circuit Judge:

The two cases consolidated herein are direct appeals from the County Court of Duval County which held that Fla.Stat. 409.325 is constitutional, and that appellants were not denied a speedy trial. We have jurisdiction pursuant to Fla.Const. Article V, §3 (b)(1).

Although this Court acquires jurisdiction by virtue of the trial court’s ruling that Fla.Stat. 409.325 is constitutional, we adhere to the settled principle of constitutional law that courts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds. Peoples v. State, 287 So.2d 63 (Fla.1973); Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973); Walsingham v. State, 250 So.2d 857 (Fla.1971); Mounier v. State, 178 So.2d 714 (Fla.1965). Because of our holding herein that appellants should be forever discharged due to the denial of their right to a speedy trial, we refrain from deciding the constitutionality of Fla.Stat. 409.325.

On April 1, 1974, appellant Singletary was served with a summons to appear on May 6, 1974, on the charge of welfare fraud, a violation of Fla.Stat. 409.325. On April 10, 1974, a summons was served upon appellant Eady to appear on May 6, 1974, in the same court as appellant Singletary to respond to the same charges as appellant Singletary.

Both appellants appeared in court on May 6, 1974, but the court on its own motion passed both cases until May 14, 1974, for the appointment of the Public Defender. On May 14, 1974, appellants were adjudged insolvent and the Public Defender was appointed to represent them. Both cases were then continued until May 28, 1974, for the filing of an information. Appellants appeared in court on May 28, 1974, but once again the cases were continued since no information had been filed. On May 30, 1974, the State Attorney filed two informations charging each appellant with violating Fla.Stat. 409.325.

On June 11, 1974, both appellants appeared in court and entered pleas of not guilty to the charges filed in the informa-tions, and the cases were continued until July 8, 1974, for hearing on motions. On July 8, 1974, the appellants appeared in court, the court denied the appellants’ motions for statement of particulars, and set the cases for jury trial on August 6, 1974. On August 2, 1974, both appellants filed motions to discharge under the speedy trial rule, Florida Rules of Criminal Procedure 3.191(a)(1). On August 6, 1974, the appellants again appeared in court at which time the county judge denied their motions to discharge. The appellants then entered pleas of nolo contendere, preserving the right to appeal the denial of their motions to discharge.

The pertinent provision of Rule 3.-191(a)(1), Rules of Criminal Procedure, reads as follows:

. . every person charged with a crime by indictment or information shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor . . . The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.” (Emphasis added)

Since the time period commences when the accused is taken into custody, the question presented herein is when were the appellants taken into custody ?

While there are a number of cases that have been decided in this State dealing with the question of what amounts to the denial of a speedy trial after arrest, this is the first application of Florida’s speedy trial rule to a situation where the accused was served by summons, but was never formally “arrested”.

Appellants argue they were taken into custody on April 1st and April 10th, respectively, the date the summonses were served upon them. Alternatively, appellants argue they were taken into custody on May 6th, the date they appeared in court in accordance with the summonses. The State contends that the appellants were not taken into custody until May 14th, the date the Public Defender was appointed to represent the appellants. If the ninety-day time period commenced on May 6th (the date of the appellants’ first appearance in court in response to the summonses) or prior thereto, Rule 3.191(a)(1) mandates that the appellants “be forever discharged from the crime.”

The purpose of the speedy trial rule is to implement the practice and procedure by which the defendant may seek to be guaranteed his fundamental right to a speedy trial. The rule was promulgated and its specific time limits established with a view toward expediting the administration of criminal justice. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974).

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), Justice Powell stated :

“. . . even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.” 407 U.S. at 533, 92 S.Ct. at 2193.

Recognizing this Rule 3.191(a)(1) provides :

“A person charged with a crime is entitled to the benefits of this Rule . whether such person is in custody awaiting trial or is at liberty on bail or recognizance.” (Emphasis added)

The failure to appear as commanded by a summons without good cause constitutes an indirect criminal contempt of court, punishable by fine. Fla.Stat. 901.-11. It follows that a person served with a summons commanding him to appear in court on a date and time certain stands in a position similar to one at liberty on bail or recognizance.

In U. S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), Justice Douglas, in a concurring opinion, declared:

“At least some of these values served by the right to a speedy trial are not unique to any particular stage of the criminal proceeding. See Note, 43 N.Y.U.L.Rev. 722, 725-726 (1968); Note, 77 Yale L.J. 767, 780-783 (1968); Comment, 11 Ariz.L.Rev. 770, 774-776 (1969). Undue delay may be as offensive to the right to a speedy trial before as after an indictment or information. The anxiety and concern attendant on public accusation may weigh more heavily upon an individual who has not yet been formally indicted or arrested for, to him, exoneration by a jury of his peers may be only a vague possibility lurking in the distant future. Indeed, the protection underlying the right to a speedy trial may be denied when a citizen is damned by clandestine innuendo and never given the chance promptly to defend himself in a court of law.” 404 U.S. at 331, 92 S.Ct. at 468. (Emphasis added)

One served with a summons to answer a criminal charge is no less an accused charged with a crime than one formally placed under arrest by warrant. The anxiety and concern attendant on public accusation commence at that point. The individual’s freedom is restricted to the extent that he is required, under threat of arrest for non-compliance, to appear in court on the time and date specified in the summons. Fla.Stat. 901.11. Upon being served with a summons, an accused comes within the jurisdiction of the court.

Fla.Stat. 901.09(2) provides that:

“(2) When the complaint is for a misdemeanor that the magistrate is not empowered to try summarily, he shall issue a summons instead of a warrant if he reasonably believes that the person against whom the complaint was made will appear upon a summons.”

Where a person is arrested pursuant to a warrant issued by a magistrate, numerous cases have held that the person is in “custody” within the meaning of the speedy trial rule. We see no reason why a person served pursuant to Fla.Stat. 901.-09(2) with a summons, as contrasted with an arrest pursuant to a warrant, should not likewise be considered as being “in custody” within the meaning of the speedy trial rule. Should such person fail to appear in response to the summons, the provisions of the speedy trial rule relating to Availability for Trial and Exceptional Circumstances would toll the running of the time period. Rule 3.191(e) and (f). Procedural rules should be given a construction calculated to further justice, not to frustrate it. Eastwood v. Hall, 258 So.2d 269 (Fla.App. 2d 1972).

This Court, on December 9, 1974, promulgated the Florida Traffic Rules. 306 So.2d 489 (Fla. 1974). Florida Traffic Rule 6.220 states that:

“Rule 3.191, Rules of Criminal Procedure, shall be applicable to criminal traffic offenses. A person shall he considered ‘taken into custody’ when he is arrested or when a traffic citation or notice to appear is served upon him.” (Emphasis added)

Certainly an individual served with a summons to answer criminal charges faces greater anxiety and concern than a person served with a notice to appear in a traffic offense. If a person served with a notice to appear to answer for a traffic offense is deemed to have been “taken into custody”, then logic dictates that a person served with a summons to answer for a more serious criminal offense should likewise be deemed to have been “taken into custody”.

We reject appellants’ alternative argument that the time period in the rule does not commence until the date specified for the accused to appear in court. The anxiety and concern of the accused are not delayed until such time as the accused first appears in court. Since Fla.Stat. 901.09(2) provides that the summons is to be issued by a magistrate, an official of the court, the accused is within the “custody” of the court the moment he receives the summons. From that point onward, his freedoms are restricted.

Based on the position we have taken herein, no words are needed to explain our rejection of appellee’s argument that the time period did not commence until the date the appellants were appointed a Public Defender.

In summary, we hold that an accused has been “taken into custody” within the meaning of rule 3.191(a)(1) when the individual has been served with a summons to answer for a crime for which he has been accused of having committed. Since the appellants were not brought to trial within ninety days of their having been taken into custody, their right to a speedy trial has been violated, and they should be discharged.

It is so ordered.

ADKINS, C. J., and BOYD and SUND-BERG, JJ., concur.

OVERTON, J., concurs specially with an opinion, with which ENGLAND, J., concurs.

ROBERTS, J., dissents.

OVERTON, Justice

(concurring specially).

I agree with the discharge; however, I do not agree that receiving a summons is “custody” under the terms of Rule of Criminal Procedure 3.191(a) (1).

My construction of our present rule would commence the computation of the speedy trial period involving a summons on the date the defendant submits himself to the court. In this instance, that was on May 6, 1974. Computing ninety days from May 6, 1974, still entitles the appellants to discharge. We should specifically set forth in the rule when the time period begins to run for a criminal action commenced by a summons.

I agree in the result, but not for the reasons expressed in the majority opinion.

ENGLAND, J., concurs.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. E. Paul BRIGMAN, Respondent.
    No. 46177.
    Supreme Court of Florida.
    Oct. 29, 1975.
    Norman A. Faulkner, David G. Mc-Gunegle, Tallahassee, Ronald A. Harbert and F. Hartzelle Baker, Orlando, for The Florida Bar, complainant.
    Paul E. Brigman, in pro. per.
   PER CURIAM.

This supplemental proceeding has been brought by The Florida Bar to enforce our suspension order of January IS, 1975. In that order we approved the recommendation of the Referee and suspended Mr. Brigman from the practice of law for “ ‘a period of six (6) months and thereafter until he shall satisfactorily prove his rehabilitation in a reinstatement proceeding.’ ”

On motion of The Florida Bar, we issued an order to Mr. Brigman on June 3, 1975, commanding him to show cause why he should not be held in contempt of this Court for violation of our suspension order.

Response has been filed, and we find the respondent Brigman admittedly has violated the terms of the suspension order in that he (1) failed to remove a sign lettered “E. PAUL BRIGMAN, Attorney at Law” from his office building following his suspension, (2) failed to give notice to his clients of his suspension from the practice of law, and evidence of such action to staff counsel of The Florida Bar, a violation of Integration Rule 11.10(6) of The Florida Bar, and (3) failed to discontinue the use of letterhead stationery identifying himself as an attorney-at-law following his ■ suspension.

The respondent Brigman pleads ignorance of these requirements, asserting that he admittedly failed to read the Court’s suspension order, the applicable Integration Rules of The Florida Bar referred to therein, and correspondence from the disciplinary staff of The Florida Bar seeking compliance with the suspension order. To establish this lack of knowledge, the respondent’s response to our order to show cause attaches as an exhibit an unopened certified mail letter from staff counsel of The Florida Bar, which the respondent admits was received in his office but not opened. Respondent claims that he first read the suspension order after we issued an order to show cause in this supplemental proceeding.

We find the respondent Brigman has ignored and failed to comply with this Court’s suspension order, and we hereby adjudicate him to be in contempt of this Court.

We reconsider the disciplinary portion of our initial suspension order because of the contemptuous conduct of the respondent. We hereby supplement its provisions by suspending respondent Brigman from the practice of law for one year from the date of this opinion and thereafter until he shall prove his rehabilitation in reinstatement proceedings.

Respondent is further directed to pay all costs necessary for this supplemental proceeding, and we reserve jurisdiction to establish the amount of the costs therefor.

We further direct that a copy of this order be personally served on the respondent by an officer authorized by law to serve process.

It is so ordered.

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

      . Florida Bar v. Brigman, 307 So.2d 161 (Fla.1975).

      . Id. at 162.


author: OVERTON, Justice.

text:
    Lt. Edward G. LITTLE, District Supervisor of District 9 of Florida Marine Patrol, Appellant, v. REO HILL FISHERIES, INCORPORATED, a Florida Corporation, Appellee.
    No. 45630.
    Supreme Court of Florida.
    Nov. 5, 1975.
    Robert L. Shevin, Atty. Gen., and Raymond W. Gearey, Asst. Atty. Gen., for appellant.
    David Paul Horan, Key West, for appel-lee.
   OVERTON, Justice.

This is an appeal from a circuit court decision declaring unconstitutional Section 370.151, Florida Statutes, as it existed on March 5, 1973.

The statute prohibited shrimping in a certain alleged area. The legal description defining the prohibited area was defective by the use of “north longitude” instead of “west longitude.” The Department of Natural Resources recognized the mistake and corrected the description in its regulation 16B-2.13.

The appellee, who is the owner of the shrimp boat “Captain Mike Hill,” was arrested on March S, 1973, by the Florida Marine Patrol and charged with shrimping in a prohibited area in violation of said regulation 16B-2.13. The appellee’s shrimp nets and doors were confiscated from the vessel by reason of the charged offense.

In an action for declaratory judgment brought by appellee, the trial judge declared that Section 370.151(2), Florida Statutes, was so vague and indefinite as to be unenforceable and enjoined the Department of Natural Resources from enforcing said statute. The trial judge, in his findings, stated:

“. . . The legislature provided a penalty but it did not define the area in which such alleged violation could occur. This is further shown by the fact that the testimony before the Court conclusively shows, without dispute, that the three buoys, A. B. and C., referred to in both the statute, Section 370.151(2) and the administrative rule 16(b) — 2.13 are not and were not at the time of the arrests in position so as to assist anyone in determining if they were near or in the prohibited area.
% ‡ * sji &
“. . . [T]he Department of Natural Resources has no legislative authority to define an area prohibiting the taking of shrimp. That was a legislative function and since the legislature had mistakenly failed to adequately describe the prohibited area, it follows that the Department of Natural Resources had no such authority. ...”

The trial judge further held that the confiscation and holding of nets and shrimp doors belonging to the appellee were without legislative authority and null and void.

We affirm the holding of the trial judge.

The trial judge properly brought the statutory defect to the attention of the legislature, which corrected the defective description in Section 370.151(2) by Chapter 74-1, Laws of Florida 1974. Our affirmance of the trial judge’s decision in this cause has no effect on this new statute.

Affirmed.

It is so ordered.

ADKINS, C. J., ROBERTS and DREW (Retired), JJ., and ANDERSON and SIE-GENDORF, Circuit Judges, concur.

      . We have jurisdiction. Art. V, § 3(b) (1), Fla.Const.


author: PEARSON, Judge.

text:
    Maria CABRERA, Petitioner, v. James A. EVANS et al., Respondents.
    No. 75-736.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
    Podhurst, Orseck & Parks, Spence, Payne & Masington, Miami, for petitioner.
    Prunty, Ross, De Loach & Olsen and Lawrence Fuller; Stephens, Thornton & Schwartz, Miami, for respondents.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

Maria Cabrera filed a complaint in the circuit court claiming personal injuries resulting from an automobile collision allegedly caused by defendants. The defendants in proper time initiated discovery by serving and filing a set of form interrogatories consisting of 37 pages of typed material. The questions and their various subdivisions constitute many more than the 79 numbered interrogatories. The plaintiff objected to the interrogatories and moved to quash them as being so burdensome as to be oppressive. The trial court denied the motion. The plaintiff has sought relief in this court by petition for certiorari upon the ground that the trial court departed from the essential requirements of law by so ruling. After response and oral argument, we hold that the court’s order requiring an answer to the unnecessary discovery constituted a prejudicial burden upon access to the courts.

We acknowledge the rule that the trial court has a wide discretion in the treatment of discovery problems and that its rulings will not • ordinarily be disturbed by an appellate court. See Charles Sales Corp. v. Rovenger, Fla.1956, 88 So.2d 551; Cristol v. City of Miami Beach, Fla.App. 1971, 245 So.2d 132. Nevertheless, there are limits to the trial court’s discretion in his orders as to discovery procedure. See Orlowitz v. Orlowitz, Fla.1967, 199 So.2d 97; and Carson v. City of Fort Lauderdale, Fla.App.1965, 173 So.2d 743. In Dade County v. Jordan Marsh Company, Fla.App.1969, 219 So.2d 756, we were presented with a case where the trial jtidge exercised his discretion by sustaining a general objection to burdensome form interrogatories. We approved a statement that: “Under the rules, interrogatories are not intended to be utilized for the purpose of exploring all minute details of a controversy and delving into immaterial and un-consequential matters, under the guise of discovery.” Although the case is not authority for a limitation of the trial judge’s discretion in our present case, it does show that there has been an instance where this court has recognized the limit upon the use of discovery in a somewhat similar case.

The use of interrogatories to narrow the issues and to preclude the necessity for more expensive methods of discovery should be encouraged. The real question is whether or not the form interrogatories used in this case are unduly burdensome or oppressive when viewed with relation to the case itself. The plaintiff here claims to have sustained personal injuries as the result of an automobile collision in which it is alleged that the defendant’s automobile failed to stop at a stop sign. The form interrogatories are obviously designed to cover many different types of cases. As Judge Holtzoff pointed out in Aktiebolaget Vargos v. Clark, 8 F.R.D. 635 (D.D.C.1949), a litigant may not use interrogatories to compel his adversary to investigate the case for him.

Our examination of these form interrogatories conclusively shows that they are inappropriate to this case. They are so burdensome as to be oppressive and as such the hours to be spent in answering them ought not be a requirement for the plaintiff’s progress of her cause.

For the reasons set forth, we conclude that the trial court departed from the essential requirements of law in overruling plaintiff’s objections to the form interrogatories in this case. The order is quashed.

It is so ordered.

      . From 1945 to the time of his death in 1969, Alexander Holtzoff served as a member of the United States District Court for the District of Columbia. He had previous extensive experience in federal practice and served as a Special Assistant to the Attorney General of the United States. Through his various works, he has become recognized as an authority on federal practice and procedure. He helped to write the Federal Rules of Civil Procedure and the revised Federal Rules of Criminal Procedure.


text:
    In re ESTATE of Alek G. LUNGA, Deceased. Maria LUNGA, Appellant, v. Mallory HORTON and Samuel J. Hannon, Appellees.
    No. 74-1599.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.

      Robert S. Korschun, Miami, for appellant.
    Horton, Perse & Ginsberg, Samuel J. Hannon, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Maria Lunga, individually and as admin-istratrix of the estate of Alek G. Lunga, appeals from an order awarding attorneys fees in the amount of $45,000 to appellees, Mallory Horton and Samuel J. Hannon, for services rendered by them to Maria Lunga and the estate.

This case has been before this court on three prior occasions. Suffice it to say, the factual background giving rise to this litigation is outlined in Lungu v. Walters, Fla.App.1967, 198 So.2d 99; In re Estate of Lunga, Fla.App.1974, 298 So.2d 420; Lungu v. Horton, Fla.App.1974, 298 So.2d 423. In Lungu v. Horton, supra, this court held with reference to Horton and Hannon, that, “they will be entitled to receive from the estate fees for such ordinary and extraordinary services as may be fixed by the probate judge, upon appropriate petition and proceedings thereunder.” Pursuant and subsequent thereto, a petition for attorneys fees was filed by appellees. Hearing was held by the trial court, at which time evidence was presented by ap-pellees only, which resulted in the order awarding attorneys fees herein appealed. Appellant presents two points on appeal. (1) That the trial court erred in awarding appellee, Horton, a fee for representing appellant because there was no proof of an employment relationship between Horton and appellant. (2) That the awarding of attorneys fees to appellees, Horton and Hannon, was excessive and an abuse of discretion in view of the evidence and testimony.

Appellant’s first point is without merit because this court has previously determined, in its opinion in Lungu v. Horton, supra, that Horton and Hannon were entitled to receive attorneys fees from the estate for representing Maria Lunga. Also, there is ample competent evidence that Horton was employed to represent appellant, Maria Lunga, by her guardian during the period of her incompetency and thereafter, and performed services for her as well as the estate, for which he is entitled to compensation. Addressing ourselves to appellant’s contention that the award of attorneys fees was excessive, the record reflects that the award was supported by competent testimony that the attorneys were successful in probating a will which made Maria Lunga, who was a non-heir at law of the decedent, the legatee of the entire substantial estate of more than $280,000 and performed 250 to 300 hours of work over several years in so doing. It is important to note that the appellant adduced no testimony as to the reasonableness of the attorneys fees and that appellees had expert testimony well within the ambit of the fee allowed. We hold that the court did not abuse its discretion in the award of attorneys fees. See Johnson v. Kruglak, Fla.App.1971, 246 So.2d 617, 620; Lodding v. Dunn, Fla.App.1971, 251 So.2d 560.

Affirmed.


text:
    Rogelio PEREZ, Sr., Individually and as father and next friend of Rogelio Perez, Jr., a minor, Appellants, v. Jose MILTON et al., Appellees.
    No. 74-1629.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Samuel Sheradsky, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and John M. Brumbaugh, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellants seek reversal of a summary final judgment rendered in favor of appel-lees, owners of an apartment complex, in an action arising from injuries sustained by nine year old Rogelio Perez, Jr., when he was hit in the eye by a shot from a B. B. rifle fired by Mark Mura, an eleven year old friend, and the son of appellees’ managers, Mr. and Mrs. Bruno Mura.

Mark’s mother directed him to go to a vacant apartment in the complex and get a B.B. rifle that had been left by a former tenant. Rogelio, Jr., who lived with his parents in the complex went with his friend Mark to the apartment where the rifle was found and taken to the office of the managers, Mr. and Mrs. Mura. Sometime thereafter, as Rogelio, Jr. was leaving from .that vicinity, he was shot in the eye by Mark with the B.B. rifle which he had brought to the office at the request of his mother.

The trial court, upon consideration of the pleadings, depositions and admissions on file, found that there was no genuine issue of material fact to be tried and that the appellees were entitled to a summary final judgment as a matter of law.

We do not agree. In our view the record on appeal discloses that there are genuine issues of material fact which have not been eliminated by the movants for the summary judgment. Carter v. Parker, Fla.App.1966, 183 So.2d 3.

Reversed.

BARKDULL, C. J., dissents.


text:
    Richard CASTILLO and Sandra Castillo, his wife, Appellants, v. COUNTY WIDE COMMERCIAL LAUNDRIES, INC., a Florida Corporation, Appellee.
    No. 75-218.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    R. Stuart Huff, Miami, for appellants.
    Benson & Lipcon, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

This appeal is from a partial summary final judgment entered against appellants in their action against appellee wherein appellants alleged that appellee exacted usurious interest from appellants.

We have carefully considered the record on appeal, briefs and arguments of counsel and have concluded that it clearly appears that there are no genuine issues of material fact to be tried and that appellee is entitled to judgment as a matter of law.

No reversible error having been made to appear the judgment appealed is affirmed.

Affirmed.


author: NATHAN, Judge.

text:
    MODERN AIR TRANSPORT, INC., a Foreign Corporation and GAC Corporation, a Delaware Corporation, Appellants, v. Morten S. BEYER, Appellee.
    No. 74-1774.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Samuel R. Danziger, Miami, for appellants.
    Podhurst, Orseck & Parks, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   NATHAN, Judge.

Modern Air Transport, Inc., and GAC Corporation, defendants in the trial court, appeal a final money judgment for the plaintiff, Morten S. Beyer, pursuant to a jury verdict awarding Beyer monetary benefits as provided in an agreement he made with the defendants upon termination of his employment with them.

The sole and only issue raised on appeal is whether the trial court abused its discretion in not granting the defendants’ motion for new trial where the manifest weight of the evidence is contrary to the findings of the jury. We note that the point argued in the appellants’ brief was not preserved on appeal as no motion for a directed verdict was made at any time in the trial court, nor do the assignments of error challenge or designate any act of the trial judge as being error.

Notwithstanding these procedural deficiencies, we have carefully examined the entire record presented on this appeal, and we find there to be sufficient, competent evidence to support the verdict of the jury and the judgment rendered thereon. Therefore, the judgment herein appealed is affirmed on the authority of Winn-Dixie Stores, Inc. v. Sellers, Fla.App.1964, 161 So.2d 251.

Affirmed.


text:
    COMMERCIAL BANK OF KENDALL, a Florida Banking Corporation, Appellant, v. Alana G. HEIMAN, Appellee.
    No. 75-294.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Richard C. Carter, Jr., Miami, for appellant.
    Marx & Squitero, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

By this appeal, we are called upon to review the propriety of a summary judgment for a defendant in an action to recover over-drafts in a bank account.

We reverse on the state of the record, as it was premature for the trial court to award the defendant a summary judgment when the plaintiff, through no fault of its own, had not completed its discovery. Lovelace v. Sobrino, Fla.App.1973, 280 So.2d 514; Campbell v. Hartford Fire & Casualty Company, Fla.App.1975, 309 So.2d 624.

This opinion is not to be construed as passing on the merits of any of the counts of the plaintiff’s complaint.

The matter is returned to the trial court for further proceedings, which may include subsequent motions for summary judgment by either side after all discovery is completed.

Reversed and remanded, with directions.


author: HENDRY, Judge.

text:
    MANUFACTURERS NATIONAL BANK OF HIALEAH, a national banking corporation, Appellant, v. CANMONT INTERNATIONAL, INC., a Florida Corporation, Appellee.
    No. 75-107.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Smathers & Thompson and Shepherd D. Johnston, Miami, for appellant.
    Richard H. W. Maloy and Richard J. Burton, Coral Gables, Kevin A. Anderson, Hialeah, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, defendant below, brings this appeal from a final judgment of the circuit court granting specific performance of a contract to appellee, plaintiff below.

In July, 1968, appellant purchased a parcel of land from appellee. The property was approximately one-half acre and was located at the southwest corner of the Flamingo Shopping Plaza in Hialeah, Florida. Appellant and appellee also entered into an agreement dated July 24, 1975, relating to a sign which was on the purchased property. Paragraph four of this agreement provided that appellee would convey the sign to appellant which agreed to maintain it and to provide adequate illuminated space on the sign to identify Flamingo Plaza Shopping Center. This part of the agreement contained no terms as to duration.

As contemplated by the agreement, appellant proceeded with the construction of a bank building on the property. During construction, it became necessary to take the sign down because it was in the way of construction. Thereafter, the parties were unable to agree on a replacement sign and appellee filed a complaint, as amended, seeking specific performance and money damages.

On December 19, 1974, the trial court entered a final judgment which ordered appellant to re-erect an identical sign in the exact location where it was previously located prior to its removal and to specifically comply with the July 24, 1968 agreement by maintaining the sign and providing adequate illuminated space on the sign identifying the Flamingo Plaza Shopping Center. From this judgment, appellant brings its appeal.

Appellant’s basic contentions on appeal are that the trial court erred in entering its judgment because the disagreement over the sign was settled by a written compromise and settlement between the parties and because the remedy of specific performance was improperly granted.

Generally, an appellate court is limited in its review to the correction of errors of law and is not authorized to review questions of fact. While the question as to the sufficiency of the evidence as a matter of law may be presented to the appellate court, its duty in this regard ceases when it has determined that there is some substantial evidence to support the judgment. Vincent v. Lawson, Fla.App.1973, 272 So.2d 162; and 2 Fla.Jur., Appeals, §§ 340-344, and § 347 with the cases cited therein. Since the record in this appeal discloses substantial evidence upon which the chancellor found that a compromise and settlement did not exist, we find no error relating to that determination.

Appellant cites several grounds in support of its contention that the trial court erred in granting specific performance. Among these are that money damages were adequate, the judgment is in perpetuity, there was no duty to build an identical sign, construction contracts are not enforceable in equity, and that the judgment unjustly enriches appellee.

Since the granting of a decree of specific performance is recognized as being largely discretionary with the chancellor, see 29A Fla.Jur., Specific Performance, §§ 11-13, it follows, as a general rule, that the chancellor’s order or decree will not be disturbed on appeal unless it is clearly shown to be erroneous or to constitute an abuse of judicial discretion. Thus, where a suit for specific performance is brought and judgment is rendered by the chancellor in favor of the plaintiff, the judgment will be affirmed on appeal if the appellate court considers that the chancellor’s findings have ample support in the record. Cramer v. Pringle, Fla.App.1962, 136 So.2d 653; Wimbish v. Douglass, 92 Fla. 224, 109 So. 306 (1926); and see 29A Fla.Jur., Specific Performance § 165. Applying this principle to the instant appeal, we find that the judgment was not arbitrary or contrary to law. However, to the extent that the judgment orders appellant “to re-erect an identical sign in the exact location where it was previously located,” we hold that the judgment should be modified to order appellant “to re-erect a sign as nearly identical as is reasonably possible where it was previously located.”

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no other harmful error has been demonstrated.

Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is affirmed in part and reversed in part with directions for modification.


text:
    Ronald M. GOULD, Appellant, v. Henry C. RUZAKOWSKI, Appellee.
    No. 75-219.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Lionel Barnet, Miami Beach, for appellant.
    James A. Baccus, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant tenant seeks review of a final default judgment for his removal from the leased premises and a $2,349.98 landlord’s lien for rent past due.

Plaintiff landlord, Henry Ruzakowski, filed a complaint for removal of tenant and other relief in county court. Defendant, Ronald Gould, filed a motion to transfer the cause to circuit court which was granted.

Thereafter plaintiff moved, pursuant to RCP 1.500(b), Florida Statutes Chapter 83 and § 51.011, Fla.Stat., for the failure of the defendant to file any pleadings for entry of a default judgment for immediate possession of the leased premises, a money judgment for rent due of $2,349.98 plus costs, and an injunction enjoining defendant from removing his personal property from the leased premises until such time as he pays the past due rent. The court entered an order granting plaintiff’s motion for default judgment and final judgment granting the relief sought above.

On appeal defendant contends the trial court erred in entering the order and final default judgment when the record clearly showed that the appellant, prior thereto, filed and served papers in the action, but was not served notice of the application for default. We agree.

RCP 1.500(b) clearly provides that the party against whom a motion for default judgment has been filed must be served with a notice if such party has filed or served any paper in the action. The record reflects that although defendant filed a motion to transfer, he was not served with notice of the application for default or of any hearing thereon. Hence, we conclude the trial judge erred in entering his order granting default and final judgment. See Freedman v. Freedman, Fla.App. 1970, 235 So.2d 544.

The order and final judgment are reversed, and the cause is remanded to the trial court for further proceedings not inconsistent herewith.

■ It is so ordered.


text:
    Willie F. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1076.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Willie F. Johnson, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, 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.


text:
    Kostas METALLIDES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-451.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Joel Hirschhorn and Yale T. Freeman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State’s Atty., and John Lipinski, Asst. State’s Atty., for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The only point presented and argued on this appeal is that the trial court erred in failing to tax as costs for an acquitted defendant the premium for a bond paid to secure his pretrial release. This point has been decided adversely to the position of the appellant. See Holton v. State, Fla. App.1975, 311 So.2d 711.

Affirmed.


text:
    Lloyd Donald GREESON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-369.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Lloyd Donald Greeson, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Brown v. State, Fla. App.1969, 227 So.2d 527.


text:
    Terry Lynn NORRIS and Terry Lynn Dauphine, Appellants (Defendants), v. STATE of Florida, Appellee (State).
    No. X-437.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
    Hugh T. Handley, Fort Walton, for appellants.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Upon considering the briefs, record and oral argument, the judgments and sentences are affirmed.

MILLS, Acting C. J., SMITH, J., and SACK, MARTIN, Associate Judge, concur.


text:
    Carlton Owen CURTIS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    Nos. X-514, Z-102.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Having considered the briefs and record, we affirm on authority of Rule 8.110(b), Rules of Juvenile Procedure; Davis v. State, 297 So.2d 289 (Fla,1974) and Williams v. State, 316 So.2d 267 (Fla. 1975).

BOYER, C. J., and-MILLS and Mc-CORD, JJ., concur.


text:
    Jimmie BROWN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-48.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
    Jimmie Brown, in pro. per.
    Robert L. Shevm, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Robert Austin ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. Y-224.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
    Richard W. Ervin, III, Public Defender; and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Affirmed. Lewis v. State, 298 So.2d 540 (Fla.App.4th, 1974); Hults v. State, 307 So.2d 489 (Fla.App.2nd, 1975).

BOYER, C. J., SMITH, J., and SACK, MARTIN F., Associate Judge, concur.


text:
    James T. REED, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION, DEPARTMENT OF COMMERCE, State of Florida, Respondent.
    No. Y-229.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
    Brian T. Hayes, Monticello, for petitioner.
    Leonard A. Carson, North Miami, Kenneth H. Hart, Jr., and Luther C- Smith, Tallahassee, for respondent.
   PER CURIAM.

Upon considering the briefs and record, certiorari is denied.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.