author: HAVERFIELD, Chief Judge. HUBBART, Judge

text:
    Lula M. GORDON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2170.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 19, 1979.

      Bennett H. Brummer, Public Defender, and Paul Morris and Marilyn Ray Smith, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   HAVERFIELD, Chief Judge.

Defendant, Lula M. Gordon, appeals the denial of her motion to suppress certain evidence found by the arresting officers during an inventory search of the automobile which she was driving.

The record reflects that Lula Gordon, driver and the sole occupant of an automobile, was stopped by Officers Fernandez and Livingston for a routine driver’s license check. Officer Livingston had previously issued a ticket to Gordon for driving without a valid driver’s license and believed that she had failed to appear in court for that ticket. Officer Fernandez approached and asked Gordon for her driver’s license. She responded that she had no driver’s license and upon being asked if she had a vehicle registration or any other type of identification, she replied in the negative. Thereupon, she was asked to exit the vehicle and Officer Fernandez placed her under arrest. He also checked her purse for any weapons. At about this time a check run by Officer Livingston revealed that Gordon had outstanding bench warrants. Officer Fernandez then asked her if she would sign a waiver stating she would leave the vehicle parked. Gordon did not sign or give a definite answer and he told her that the car would have to be impounded and towed away. Officer Fernandez then proceeded to search the front seat for weapons and make an inventory search when he discovered twenty-two tinfoil packets containing heroin on the sun visor. After the search but before the arrival of the tow truck, some friends appeared on the scene and offered to drive the car away. Fernandez told them it was too late. Subsequently Gordon was charged with possession of heroin. She pled not guilty and moved to suppress the evidence which she argued was the product of an unreasonable warrantless search. After a hearing, the trial judge denied the motion. Thereupon, Gordon withdrew her not guilty plea and tendered a plea of nolo contendere, specifically reserving the right to appeal the denial of the motion to suppress. The judge accepted the plea, entered a finding of guilty, withheld adjudication and placed Gordon on two years probation. This appeal from the denial of her motion to suppress ensued.

The prime consideration in determining the validity vel non of an inventory search is whether the police acted in good faith and did not use the inventory procedure as a subterfuge for a warrantless search of the vehicle. Altman v. State, 335 So.2d 626 (Fla.2d DCA 1976). As Judge McNulty in Godbee v. State, 224 So.2d 441 (Fla.2d DCA 1969) succinctly explained:

“. . . The reasonableness of any search without a warrant is measured from the standpoint of the conduct of the searchers. If their conduct is in some way reprehensible; or if they precipitate a search and are motivated therein solely by a desire to ‘hunt’ for incriminating evidence; or if they do so without any plausible explanation or justification; the invasion is an unreasonable one . . ” 224 So.2d at 443.

In the case at bar the facts demonstrate that the officers acted in good faith. Lula Gordon was arrested for driving without a valid license. She had no other identification. When given the option of signing a waiver and leaving the vehicle parked, she did not sign the waiver or give a definite answer. The arresting officers then informed her that they had no other alternative but to impound the vehicle and have it towed. She did not object. Pursuant to routine police procedure, an inventory search was made and located in plain view on the visor were the packets of heroin. Thus, we conclude this evidence was not the product of an unreasonable search. Cf. State v. Bastardo, 347 So.2d 463 (Fla.2d DCA 1977); Godbee v. State, 224 So.2d 441 (Fla.2d DCA 1969), supra; Gagnon v. State, 212 So.2d 337 (Fla.3d DCA 1968), and South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the conviction herein and remand the cause to the trial court with directions to allow the defendant to withdraw her plea of nolo contendere and grant her motion to suppress. In my view, the warrantless search of the automobile herein was unjustified by any of the exceptions to the search warrant requirement rule, and was, therefore, unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution.

A

The law is well-settled that a search of private property conducted by state or federal agents without a duly issued search warrant is per se “unreasonable” under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12, of the Florida Constitution — ■ subject only to a few specifically established and well-delineated exceptions justified by absolute necessity. These exceptions have been jealously and carefully drawn, and the burden is upon the state to demonstrate their application in a given case. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Hornblower v. State, 351 So.2d 716 (Fla.1977); Miranda v. State, 354 So.2d 411 (Fla.3d DCA 1978); Taylor v. State, 355 So.2d 180, 183 (Fla.3d DCA 1978).

One of the recognized exceptions to the search warrant requirement rule, and the only exception relied upon by the state to sustain the search herein, is that the police may conduct an inventory of a lawfully impounded motor vehicle for the purpose of protecting the police against claims of lost or stolen property from the vehicle. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Altman v. State, 335 So.2d 626 (Fla.2d DCA 1976); Godbee v. State, 224 So.2d 441 (Fla.2d DCA 1969). This inventory must be conducted in good faith by the police and cannot be used as a subterfuge to conduct a general exploratory search of the vehicle for evidence of crime. Godbee v. State, 224 So.2d 441 (Fla.2d DCA 1969). A search warrant is unnecessary to conduct such an inventory because it is a routine, administrative-type search for safekeeping purposes and is not a search for evidence of crime. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (Powell, J., concurring).

Central to the motor vehicle inventory exception, however, is that the police must first have a lawful necessity for impounding the vehicle before any right to an inventory attaches. Granville v. State, 348 So.2d 641 (Fla.2d DCA 1977); Altman v. State, 335 So.2d 626 (Fla.2d DCA 1976); Annot. 48 A.L.R.3d 537, 551 (1973). The cases recognize that such a necessity is shown where the vehicle represents a traffic hazard and is impeding the uninterrupted flow of traffic, State v. Cook, 358 So.2d 42 (Fla.2d DCA 1978); State v. Deardon, 347 So.2d 462 (Fla.2d DCA 1977); or where the vehicle is stolen, disabled, illegally parked or abandoned, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Godbee v. State, 224 So.2d 441 (Fla.2d DCA 1969); or where the vehicle is being seized for forfeiture purposes, Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); or where the vehicle is exposed to the danger of theft or damage under circumstances which would warrant a reasonable concern for the vehicle’s safety, Mattson v. State, 328 So.2d 246 (Fla. 1st DCA 1976). Absent these factors, the courts have consistently struck down motor vehicle impoundments and subsequent inventories thereof where the only showing of necessity made for impoundment was that the vehicle was left unattended on the streets after the driver of same was lawfully taken into police custody. Granville v. State, 348 So.2d 641 (Fla.2d DCA 1977); G. B. v. State, 339 So.2d 696 (Fla.2d DCA 1976); Benton v. State, 329 So.2d 385, 388 (Fla. 1st DCA 1976); Weed v. Wainwright, 325 So.2d 44 (Fla.4th DCA 1975); In re 1972 Porsche 2-Dr., 307 So.2d 451 (Fla.3d DCA 1975).

B

I part company with the majority in this case because in my view there was no lawful necessity shown on this record for the police to have impounded, or to have initiated any procedures to impound the vehicle in question. As such, both the impoundment and subsequent inventory was unreasonable. There is no showing by the state that the automobile herein was a traffic hazard or was impeding the uninterrupted flow of traffic; or was abandoned, stolen, disabled or illegally parked; or was being seized for forfeiture purposes; or was exposed to the threat of theft or damage under circumstances which would warrant a reasonable concern for the vehicle’s safety. No necessity whatever for seizing the automobile was ever asserted by the police or the prosecutor in the trial court. It was simply assumed that the right to impound a vehicle attaches whenever the driver thereof is lawfully taken into police custody thereby leaving the vehicle unattended on the streets. Such is not the law of this state.

I attach no significance to the failure of the defendant to sign the waiver of liability form and consent to allowing the vehicle to remain in place. There was no necessity for the police to have engaged the defendant in such a conversation in the first place because impoundment of the vehicle was not called for in any event. Nor can I say that this was a good faith inventory in the absence of any prior lawful necessity to impound the vehicle. Finally, the failure of the defendant to produce personal identification or registration of the vehicle cannot, without more, give rise to a reasonable inference that the vehicle was stolen or was being used without the owner’s consent. Indeed, the police made no inquiries and had no suspicions of the defendant along these lines. There being no lawful necessity for the impoundment, the subsequent inventory was unreasonable and the fruits thereof were inadmissible in evidence.

I would reverse.

      . No contention is made or could be made that the search herein was valid under those exceptions to the search warrant requirement rule which permit (1) a warrantless search of a person incident to effecting a lawful arrest of such person, see State v. Gustafson, 258 So.2d 1 (Fla. 1972), or (2) a warrantless search of an automobile based on probable cause to believe that the automobile contains contraband or evidence of crime, see Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), adopted as the law of Florida by Section 933.-19, Florida Statutes (1977); Collins v. State, 65 So.2d 61 (Fla. 1953), or (3) a warrantless search pursuant to consent wherein an accused freely and voluntarily waives his search and seizure rights, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Sagonias v. State, 89 So.2d 252 (Fla.1956). It is clear that the search went beyond the physical scope of that which was necessary to effect the defendant’s arrest, see Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Skrobacki, 331 So.2d 376 (Fla. 1st DCA 1976), that there was no probable cause to believe that the defendant’s automobile contained contraband or evidence of crime prior to the search, see Collins v. State, 65 So.2d 61 (1953), and that the defendant’s failure to object to the search represented an acquiescence to authority rather than a free and voluntary consent to search, see Bailey v. State, 319 So.2d 22, 27 (Fla.1975); Boynton v. State, 64 So.2d 536, 550 (Fla.1953).


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    Lorraine W. BROWN, Individually, and as Personal Representative of the Estate of Andrew G. Brown, Deceased, Appellant, v. Elizabeth HANGER and the Florida National Bank and Trust Company at Miami, Appellees.
    No. 78-217.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 19, 1979.
    Knight, Peters, Pickle, Niemoeller & Flynn and J. T. Blackard, Miami, for appellant.
    Starr W. Horton, Miami, Edmonson S. Couric, Jr., Coral Gables, for appellees.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

This appeal challenges a final judgment which denied a widow’s attempt to reach funds in the hands of a person who had been given them by her husband during his lifetime, the source of which was allegedly property owned by the entireties by the husband and wife. We affirm in part and reverse in part.

The appellant Lorraine W. Brown is the widow of Dr. Andrew G. Brown. They had been married for over 40 years when he died in February, 1975. During the marriage Dr. and Mrs. Brown held several parcels of real property by the entireties. One such parcel, on Biscayne Boulevard in Miami, was sold in 1965 for over $65,000.00 cash. Another was an operating orange grove in Polk County which the couple had owned for many years and was still held by the entireties at Dr. Brown’s death.

From 1959, until his death, the appellee, Elizabeth Hanger, had been Dr. Brown’s medical assistant, secretary and friend. For some years before his death the doctor had been giving Ms. Hanger a great deal of money, well over $150,000.00 in all. These gifts took the form, among other things, of various savings accounts, life insurance, and a $50,000 inter vivos trust of which Ms. Hanger was the beneficiary and Florida National Bank and Trust Company the trustee. The source of these payments was in turn, three checking accounts which were in Dr. Brown’s name alone: a “personal account,” an “office account,” which held the proceeds of his medical practice, and a “grove account,” in which the receipts from the Polk County grove were deposited.

After Dr. Brown died and Mrs. Brown then purportedly first discovered the gifts which had been made to Ms. Hanger, she filed this action against her, seeking money damages and to impose a constructive trust against assets in Ms. Hanger’s name. The basis of the claim was that Ms. Hanger had been “unjustly enriched” by the receipt of property which really belonged to Mrs. Brown, that is, entireties properties which had been owned by Dr. and Mrs. Brown, and to which Mrs. Brown was wholly entitled as the surviving spouse. By the time of trial, Mrs. Brown had narrowed the alleged sources involved to the proceeds of the sale of the Biscayne Boulevard property and the “profits” of the Polk County grove.

In the final judgment rendered after a non-jury trial, the trial judge specifically found that

“ . . . the plaintiff has traced the assets from the sale of a home on Biscayne Boulevard owned as tenants by the entireties by the decedent and plaintiff to [the Florida National Bank and Trust Company] inter vivos trust ultimately modified in favor of the defendant Hanger ...”

Nonetheless the court denied the plaintiff all relief and Mrs. Brown appealed. She claims error (a) in the lower court’s refusal to impose a constructive trust in her favor upon the inter vivos trust established with the proceeds of the Biscayne Boulevard property, and (b) in the denial of her claim for money damages against Ms. Hanger in the amount Dr. Brown paid to her benefit from the “grove account.” We agree with the appellant’s first contention, and disagree with the second.

Since it was demonstrated to the trial court’s satisfaction that the source of the inter vivos trust was the Biscayne Boulevard entireties property, we hold, on the authority of Lerner v. Lerner, 113 So.2d 212 (Fla.2d DCA 1959), that Mrs. Brown must be deemed the equitable owner of that trust. The record demonstrated that Dr. Brown received the proceeds of the sale of the Biscayne Boulevard property and placed them into an individually held account. Under the law of Florida, he is deemed to have held those funds as trustee for himself and his wife, or, more precisely, as trustee for the estate by the entireties. See Merrill v. Adkins, 131 Fla. 478, 180 So. 41 (1938); Sheldon v. Waters, 168 F.2d 483 (5th Cir. 1948). As the supreme court stated in Dodson v. National Title Ins. Co., 159 Fla. 371, 31 So.2d 402, 404 (1947):

“The income from, or the proceeds of, the sale of real estate held by the entirety is equally the property of the husband and the wife. It is held by the unity. Either one taking possession holds for the benefit of both. That is the rationale of our prior decisions.” [emphasis supplied]

When these proceeds were given, in turn, to Ms. Hanger and found their way into the identified res represented by the Florida National inter vivos trust, they retained their trust character. 33 Fla.Jur., Trusts, § 73, p. 75, and cases cited. Florida National thus became the trustee, not for the named beneficiary, Ms. Hanger, who was not a purchaser for value, but rather for the entireties estate. E. g., Sewell v. Sewell Properties, Inc., 159 Fla. 570, 30 So.2d 361 (1947). Finally, when Dr. Brown died, Mrs. Brown became the owner of the entire estate, in this case, the beneficial interest in the inter vivos trust. E. g., Anderson v. Trueman, 100 Fla. 727, 130 So. 12 (1930).

In accordance with this line of analysis, the court, in Lerner v. Lerner, supra, upheld the claim of a widow which was in all material aspects identical to that asserted by Mrs. Brown against Ms. Hanger’s interest in the trust. In that case, both Mr. and Mrs. Lerner joined in the conveyance of real property they owned by the entireties. The consideration for the sale, 46 shares of stock, was issued to the husband alone; he at once assigned them, without the wife’s knowledge, to his brother, Max Lerner. The court held, at 113 So.2d 216:

“ . . Appellee, Lydia E. Lerner, may trace the forty-six shares of stock (Lerner Groves, Inc.) into the hands of appellant, Max Lerner, who received same without paying any consideration therefor; and the estate by the entireties is preserved in said stock, as between the appellee and appellant . . . ”

This holding is determinative of Mrs. Brown’s right to the Florida National trust estate.

As to the separate claim made with respect to the funds allegedly derived from the grove property, we affirm the judgment below. The plaintiff admits that she is unable to trace any such monies to any particular assets now owned by Ms. Hanger. She seeks only a money judgment of over $100,000.00 against the defendant in the total amount of “grove funds” Dr. Brown gave to Ms. Hanger, on the ground that the defendant has to that extent been “unjustly enriched” at the plaintiff’s expense. The appellant has cited no authority, and we have found none, which suggests that such a cause of action exists. Absent the ability to impress a constructive trust upon an identifiable res, cf. 33 Fla.Jur., Trust, § 73, pp. 75-76, we are unwilling to hold an innocent transferee of trust property liable in compensatory damages to the rightful beneficiary.

In addition, the plaintiff did not establish that any funds from the grove were in fact monies to which she was entitled. While each tenant is entitled to a share of the “profits” of entireties property, see Lacker v. Zuern, 109 So.2d 180 (Fla.2d DCA 1959), the plaintiff in this case established only gross amounts which had been received by Dr. Brown from the grove, without any deductions for the expenses required to operate and maintain it, or any showing as to what those expenses were. Since there was thus no demonstration that any “profits” whatever had been derived from the grove, see Innkeepers International, Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 106 (Fla.1976), let alone the amount of those profits, Mrs. Brown’s claim for this sum failed for lack of proof. See Moore v. Moore, 241 Ark. 675, 409 S.W.2d 830 (1966); Pattison v. Pattison, 207 Okl. 46, 247 P.2d 514 (1952); Annot., 51 A.L.R.2d 388 (1957).

The denial of the plaintiff’s claim for the imposition of a constructive trust in her favor upon the Florida National Bank and Trust Company trust is reversed and the cause remanded for further proceedings consistent with this opinion; the judgment under review is otherwise affirmed.

Affirmed in part, reversed in part and remanded.

      . At Dr. Brown’s death, Mrs. Brown became the representative of his estate and, of course, the sole owner of the grove property.

      . We reject each of the arguments advanced by the defendant for affirmance on this issue, (a) Mrs. Brown obviously did not “consent” to a termination of the entireties estate. Compare MacGregor v. MacGregor, 323 So.2d 35 (Fla. 4th DCA 1975). Although, as in Lerner v. Lerner, she did know that the Biscayne Boulevard proceeds had been paid to Dr. Brown, individually, she had every right to assume, and no knowledge to the contrary, that he would properly exercise his duties as trustee for the entire-ties estate, (b) For much the same reason, the doctrine of laches does not apply. The period during which delay is computed for the purpose of applying the doctrine of laches begins to run, in a case such as this, only when the constructive beneficiary acquires or should acquire knowledge of the adverse claim of a constructive trustee. Wadlington v. Edwards, 92 So.2d 629 (Fla. 1957). Despite the fact that, as the trial judge held, Mrs. Brown may well have been on notice that her husband and Ms. Hanger were very good friends, indeed, she did not know that he had given her large gifts of money. Much less, until Dr. Brown’s death, did she know or have reason to know of Ms. Hanger’s “adverse claim” to the trust estate represented by the proceeds of the Biscayne Boulevard property. Moreover, Ms. Hanger gained nothing but benefit, in the form of interest payments from the inter vivos trust, from the delay assertedly involved here, rather than the detriment also required to sustain a laches defense. Florance v. Johnson, 366 So.2d 527 (Fla.3d DCA 1979). (c) The trial court also found that Ms. Hanger did not herself know that a source of Dr. Brown’s largesse was property which both he and his wife owned. Since the defendant did not take the property as a bona fide purchaser for value, however, this fact is irrelevant to the plaintiffs right to recover against traceable trust property in her hands. Sewell v. Sewell Properties, Inc., supra.
      Finally, although “neither party ha[d] called [it] to the court’s attention,” the final judgment relied heavily upon the case of Ball v. Ball, 335 So.2d 5 (Fla.1976). The trial judge stated that the Ball decision left Dr. Brown free to dispose of the entireties property as he saw fit, since the source of all the couple’s assets was his own efforts in his medical practice without any contributions by Mrs. Brown. We think the reliance on Ball was misplaced. (Indeed the appellee herself does not assert its applicability in this court.) Ball was concerned only with a claim by a spouse in a dissolution proceeding to the entire interest in property titled in the entireties. Moreover, by its terms, Ball applied only to “dissolution proceedings instituted” after it became final on June 30, 1976. 335 So.2d, at 8. While it is true that the complaint in this case, which was of course not a dissolution proceeding, was filed thereafter, Dr. Brown had died in 1975, thus fixing the parties’ rights as of that date.

      . The trial judge found that the plaintiff did not establish that Ms. Hanger knew of the entire-ties character of the grove property or of the source of her funds. See n.2, supra. That finding is supported by the evidence.


author: KEHOE, Judge.

text:
    STATE of Florida, Appellant, v. Dove Pharaoh JACKSON and Rozie James Smith, Appellees.
    No. 78-915.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 19, 1979.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Mark King Leban, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, the prosecution below, brings this appeal from an order entered by the trial court suppressing certain evidence obtained pursuant to a warrantless search. We reverse.

The pertinent facts in this case may be summarized as follows: Two persons committed an armed robbery at a Pantry Pride supermarket in South Miami. After committing the robbery, they entered an automobile and fled to a parking lot in a Northwest Miami apartment complex which was approximately 20 miles away. Two of the victims of the robbery got into their automobile and followed the robbers all the way to the parking lot. The victims never lost sight of the robbers’ car.

When the robbers’ car entered the apartment complex and stopped, the pursuers parked their car, went into a nearby service station, and called the police. Upon the arrival of the police, the victims told the police what had happened, led them to the parking lot, and pointed out the robbers’ car. During this time, the whereabouts of the robbers was unknown. At this point, the police searched the robbers’ car and seized $3000 in cash and a firearm. During this search of the car the police found a wallet resting on the visor. From a photograph appearing on a driver’s license in the wallet, the police were able to ascertain that the person shown in the photograph stayed in apartment number 24 of the complex. The police went immediately to apartment 24, knocked, and announced “police.” A woman opened the door, said that she was not dressed, and backed into the apartment followed by the police. The police found appellee Jackson, whose picture appeared on the driver’s license, hiding under a bed. The police then continued their search for the other robber who was not found in the apartment. However, they did see, in plain view, on top of a dresser, a driver’s license containing the photograph of appellee Smith. Appellee Smith was identified at a photograph line-up, and thereafter, arrested. Subsequently, appel-lees filed motions to suppress the evidence. The trial court granted these motions and entered an order suppressing all the evidence because there was no search warrant issued for the original search of the car. From this order of suppression, appellant appeals.

Appellant contends, basically, that the evidence seized was in plain view and that the search which led to its discovery was not unreasonable; therefore, the trial court erred in granting appellees’ motions to suppress.

Our discussion of the law applicable to the facts of the instant ease has been greatly simplified by our Legislature’s adoption of Section 933.19, Florida Statutes (1977) which provides for the search and seizure of vehicles. This Section provides as follows:

“(1) The provisions of the opinion rendered by the supreme court of the United States on March 2, 1925, in that certain cause wherein George Carroll and John Kiro were plaintiffs in error and the United States was defendant in error, reported in 267 United States Reports, beginning at page 132, relative searches and seizures of vehicles carrying contraband or illegal intoxicating liquors or merchandise, and construing the fourth amendment to the constitution of the United States, are adopted as the statute law of the state applicable to searches and seizures under § 12, Art I of the state constitution, when searches and seizures shall be made by any duly authorized and constituted bonded officer of this state exercising police authority in the enforcement of any law of the state relative to the unlawful transportation or hauling of intoxicating liquors or other contraband or illegal drugs or merchandise prohibited or made unlawful or contraband by the laws of the state.
“(2) The same rules as to admissibility of evidence and liability of officers for illegal or unreasonable searches and seizures as were laid down in said case by the supreme court of the United States shall apply to and govern the rights, duties and liabilities of officers and citizens in the state under the provisions of the Florida constitution relating to searches and seizures.
“(3) All points of law decided in the aforesaid case relating to the construction or interpretation of the provisions of the constitution of the United States relative to searches and seizures of vehicles carrying contraband or illegal intoxicating liquors or merchandise shall be taken to be the law of the state enacted by the legislature to govern and control such subject.”

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the United States Supreme Court stated that:

“ . . . the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
“Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made.” 267 U.S. at 153, 45 S.Ct. at 284, 69 L.Ed. at 551.

The Court went on to state:

“ . . . those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”

Our courts, in discussing the probable cause requirement incorporated into Section 933.19, Florida Statutes (1977), have stated, for example, as follows in Beck v. State, 181 So.2d 659 (Fla. 2d DCA 1966):

“The prerequisite for search of a vehicle, not incidental to an arrest, is the officer’s ‘probable cause’ to believe the vehicle contains stolen or illicit merchandise. Cuozzo v. United States, 5th Cir. 1963, 325 F.2d 274. Probable cause can be defined as, ‘where the facts or reasonable inferences deductible therefrom should lead a reasonably prudent and intelligent person to conclude that the law is being [or was] violated.’ Pearson v. United States, 10th Cir. 1945, 150 F.2d 219, 220.
“We must examine the record to determine whether the officers who made the search of the automobile had ‘probable cause’ to believe that appellant’s automobile was the same car that assisted the robber’s ‘get-away’ in order to determine if it contained the articles involved in the robbery.” Id. at 660.

In Miranda v. State, 354 So.2d 411 (Fla. 3d DCA 1978), Judge Hubbart writing for the majority stated:

“ . . . such authority, however, does not carry with it the right to conduct a general exploratory search of the boat or automobile for evidence of crime. In the absence of probable cause or some other recognized exception to the search warrant rule, such warrantless searches are clearly unreasonable.” Id. at 414.

In cases such as this one, the opportunity to search is fleeting because the automobile is readily movable, the occupants may be alerted, and the car’s contents may never be found again if a warrant must be obtained. Under these circumstances, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search. This dilemma and the rationale for its solution were stated by the United States Supreme Court in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969), as follows:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.

We note that, in the instant case, the trial court stated in its order of suppression “[t]hat although probable cause may have existed at the time . . . ” of the search, it went on to find the search illegal. In our opinion, the record clearly shows that the police did have probable cause to search the robbers’ car. Because the police did have probable cause to search the car and because of the application of Section 933.19, Florida Statutes (1977), we believe that the search and seizure in this case was reasonable and that the trial court erred in granting appellees’ motions to suppress. Further, we believe that this result is well within the dictates of both the Florida cases and United States Supreme Court cases setting forth the parameters for warrantless searches of movable vehicles. Accordingly, the order appealed is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

      . We note that, in the light of Rakas v. State, - U.S. -, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the question of standing has not been raised herein; however, for the sake of judicial economy, because we have determined that the search was legal, it is unnecessary for us to consider the question.


author: BARKDULL, Judge.

text:
    Murray RUBIN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1041.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 23, 1979.

      Mark King Leban, Miami, Mechanic & Goldstein, North Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto and Joel D. Rosenblatt, Asst. Attys. Gen., for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   BARKDULL, Judge.

Murray Rubin appeals his conviction (non-jury) on charges of conspiracy to commit a felony, to wit: grand larceny; and petit larceny. He was charged by information with grand larceny, conspiracy, and several counts of forging and uttering uniform air bills.

The first information, filed on June 1, 1977, alleged that the offenses occurred between November 30, 1975 and June 14, 1975. The State filed a second information in open court on November 3, 1977, without objection from defense counsel and with court approval. Later, the defendant moved to dismiss the information on the grounds that it had not been filed within the two-year Statute of Limitations and his motion was denied.

The charges alleged that Rubin, Vice President of Riverside Memorial Chapel, was operating a kickback scheme with a George Dawson who worked for a company that provided air trays and livery service for transporting bodies by plane. Dawson entered a nolo plea to similar charges and turned State’s evidence. At trial, he testified that he made out false air bills with information given to him by Rubin, inflating the shipment costs. After Riverside paid the bill, Dawson claimed that he delivered the excess money to Rubin either in person or through a jointly held safe deposit box.

During trial, the court granted Rubin a judgment of acquittal on the forgery and uttering charges. The trial court found Rubin guilty of conspiracy to commit a felony, to wit: grand larceny; and petit larceny, sentencing him to one year probation, sixty days to be served in jail, and a $500.00 fine. He was sentenced to 60 days in jail on the petit larceny conviction, to run concurrently with the sentence on the conspiracy conviction. This appeal followed.

The appellant contends that the motion to dismiss should have been granted because the two-year Statute of Limitations, in effect at the time of the commission of the crime, was applicable and not the three-year statute at the time of the filing of the last information.

We disagree. Mathis v. State, 31 Fla. 291, 12 So. 681 (1893); Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla.1956); Calder v. Bull, 3 Dall. 386, 3 U.S. 386, 1 L.Ed. 648 (1798). Here the time was extended. Corbett v. General Engineering & Machinery Company, 160 Fla. 879, 37 So.2d 161 (1948); Walter Denson & Son v. Nelson, supra; Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla. 1st DCA 1978). The rule may be different when the Statute of Limitations is shortened, but that is not the case before us. Foley v. Morris, 339 So.2d 215 (Fla.1976). We have examined the count of the information alleging the conspiracy and do not find it vague under the test set forth by the Supreme Court of Florida in Goldberg v. State, 351 So.2d 332 (Fla.1977). However, we think the trial judge was correct in refusing to entertain the motion, because it was untimely. This certainly was within his discretion. Counsel urges that a fundamental constitutional right cannot be waived; with this we do not agree. Jones v. State, 248 So.2d 517 (Fla. 3d DCA 1971); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Ellison v. State, 349 So.2d 731 (Fla. 3d DCA 1977); Pegues v. State, 361 So.2d 433 (Fla. 1st DCA 1978).

The other point, going to the sufficiency of the evidence, we find to be without merit. Wetherington v. State, 263 So.2d 294 (Fla. 3d DCA 1972); Alleman v. State, 279 So.2d 382 (Fla. 3d DCA 1973); Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976).

Therefore, for the reasons above stated, the adjudication of guilt and sentences thereon be and they are hereby affirmed.

Affirmed.


text:
    TROPIGAS S. A., a foreign corporation, and Tropigas International Corporation, a foreign corporation, Appellants, v. Efrain SANCHEZ, etc., et al., Appellees.
    No. 78-2326.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 19, 1979.
    Smathers & Thompson and Jose R. Garcia-Pedrosa, Miami, for appellants.
    Feldman, Abramson, Smith & Magidson and David L. Magidson, Miami, for appel-lees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Houston v. Caldwell, 359 So.2d 858 (Fla.1978); Sempe v. Coordinated Caribbean Transport, Inc., 363 So.2d 194 (Fla. 3d DCA 1978); F.S. § 48.081(5); Crown Colony Club, Ltd. v. Honecker, 307 So.2d 889 (Fla. 3d DCA 1974), cert. denied, 320 So.2d 392 (Fla.1975); Hoffman v. Air India, 393 F.2d 507 (5th Cir. 1968), cert. denied, 393 U.S. 924, 89 S.Ct. 255, 21 L.Ed.2d 260 (1968).


author: RYDER, Judge.

text:
    Ronald Eugene BOAL, Appellant, v. STATE of Florida, Appellee.
    No. 78-1721.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.
    Rehearing Denied May 1, 1979.

      Jack 0. Johnson, Public Defender and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Ronald Eugene Boal appeals judgments and sentences for carrying a concealed firearm and for loitering. We affirm the conviction for carrying a concealed firearm, but we reverse the judgment and sentence on the loitering charge.

The facts underlying appellant’s arrest on both charges are as follows:

On May 5,1978 at about 2:00 a. m., Largo Police Officer Bennett was patrolling an area, the composition of which was described as “mixed business and residence.” Officer Bennett observed appellant and another man walking along the street and stopped them to “check them out and see if they had business in that area,” although the two men did not then appear to be breaking the law or endangering the public safety. Appellant advised the officer that his companion and he were seeking something to drink and that they were staying at the Chapperal Apartments about a mile and a half away. However, appellant could not recall the address of the Chapperal or their apartment number excusing his loss of memory as he had just come down to Florida from Pennsylvania. Bennett ran a computer check on the two men, found nothing and allowed the two individuals to continue their sojourn.

Because of recent burglaries in the area, however, Bennett alerted other officers working that section of town of the presence of the two individuals. Surveillance, the type of which is unknown, of the two men was then maintained. Later, Bennett again had contact with the men but now they were walking in a different area and direction. The officer stopped them again. They then advised Bennett they were looking for a Coke machine. Bennett decided to give them a ride back to their apartment to get them off the street and to verify their story. Since he had a K-9 dog in his car, Bennett called another officer and Patrolman Michael E. Coleman arrived to transport appellant and his companion to their apartment. Coleman advised appellant he was going to conduct a “patdown search” “for my safety” before allowing appellant inside his vehicle and appellant responded, “Okay.” During the patdown, Coleman felt a bulge in appellant’s right front pants pocket which felt like bullets. As he extracted a handful of bullets from appellant’s pocket, Coleman also felt “a hard bulge in the area of the crotch,” and he removed from appellant’s person a .45 caliber pistol, which theretofore had been concealed from view. Appellant was immediately arrested for carrying a concealed firearm. Later, he also was charged with loitering.

During a motion to suppress, appellant testified that he and his companion had been looking for a friend who lived in an apartment, and finding no one at home, the two men set out in search of a cup of coffee. When stopped by Officer Bennett, appellant stated that they asked him if he knew of a place where they could get a cup of coffee, and he informed them that everything was closed. Appellant further stated that after the officer left, the two men decided to forget trying to find any coffee and started back to the apartment. Unfamiliar with the area, according to appellant, they guessed at which route to take and later the same officer stopped them again. Responding to the officer’s new inquiry, appellant testified he explained that their then destination was their apartment. At that juncture, appellant related that Officer Bennett told them to “hold off for a while” and he called Officer Coleman. Thereafter, the “patdown” occurred.

We conclude that there was sufficient basis for both stops of appellant. While the lateness of the hour alone cannot justify a stop, Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976), we observe that there also had been recent burglaries in the area. The officer’s decision, (reached after his second encounter with these same people), to take appellant and his companion back to the apartment in order to verify theirs story was appropriate. See Section 856.021(2), Florida Statutes (1977). Officer Coleman was clearly justified in conducting a patdown search to ensure his personal safety while transporting appellant and his companion. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). We therefore uphold the denial of appellant’s motion to suppress the evidence (the firearm) obtained in the course of the patdown.

We do not believe appellant’s conduct was such as to support an arrest for loitering under Section 856.021, Florida Statutes (1977) and the cases interpreting the statute. See State v. Ecker, 311 So.2d 104 (Fla.1975), cert. den.; Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975); Spears v. State, 302 So.2d 805 (Fla. 2d DCA 1974).

Accordingly, the judgment and sentence for carrying a concealed firearm are affirmed, but the judgment and sentence for loitering are reversed.

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


author: PER CURIAM.

text:
    Joseph Thomas BOMENGO, Appellant, v. The STATE of Florida, Appellee.
    No. 78-256.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 19, 1979.
    Engel, Aronson, Fried & Cohn and Don S. Cohn, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See U. S. v. Bomengo, 580 F.2d 173 (5th Cir. 1978).


text:
    BOSTON INVESTMENTS, INC., Appellant, v. Bernard H. HOROWITZ and Shirley J. Horowitz, his wife, United States of America, Humberto Suarez, Fred A. Jones, Jr., James M. Raskin, Tony Pitch Travel Services, Inc., and Airko Service, Inc., Appellees.
    No. 78-928.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 23, 1979.
    Mark Silverstein, Miami Beach, for appellant.
    Ben Cohen and Albert George Siegel, Miami Beach, for appellees.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Peacock v. Carver, 315 So.2d 214 (Fla. 1st DCA 1975); 3 Fla.Jur.2d Appellate Review §§ 347, 348 (1978) and cases cited therein; and 4 Fla.Jur.2d Attorneys At Law § 155 (1978).


author: LETTS, Judge.

text:
    Heather Lynne DIGGETT, a minor, By and Through her parents and next friends, Ernest A. Diggett and Sandra Diggett, and Ernest A. Diggett, Individually, and Sandra Diggett, Individually, Petitioners, v. Honorable Virgil B. CONKLING, Circuit Judge of the 18th Judicial Circuit, Brevard County, Florida, Angel Quinones, M.D., et al., Respondents.
    No. 78-1878.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Rehearing Denied March 26, 1979.

      David J. White of Beckham, McAliley & Proenza, P. A., Miami, for petitioners Dig-gett.
    Jon E. Johnson of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for respondents Quinones, Mangone, Clarke & Sandberg, P. A., and Wood.
   LETTS, Judge.

This case involves a petition for certiorari based on a ruling that jurisdiction is preserved if the judicial referee by himself, and without the other two members of the panel, commences a final hearing under the medical mediation procedure, within six months from the claim filing date.

It is true that the appellants stipulated “. . . to this medical mediation claim simply being commenced . . . before the judicial referee . . ..” The appellants having done so, it is unpalatable for us now to have to uphold their contention that one referee doesn’t make a panel, even when these very same appellants stipulated that he did. Nonetheless we neither wrote the statute nor the rules and we see nothing we can do to remedy the appellants, heads-we-win-tails-you-lose, result.

Section 768.44(2), Florida Statute (1977) provides:

“. . . Each hearing, as hereinafter provided for, shall be before a three-member panel, hereinafter referred to as the ‘panel’, . . . .” (Emphasis added)

Furthermore, under the Rules of Medical Mediation Procedure set forth at 348 So.2d 547 (Fla.1977), Rule 20.170 clearly contemplates that hearings shall be before “panel members.” More significantly these same rules also say:

The Clerk shall send to all parties a notice of termination of the proceedings when any of the following events have occurred: . . ..(c) An extension order has been entered by the Judicial Referee but the hearing has not been commenced within six months from the date of the filing of the claim;
Termination for any of the foregoing reasons terminates the JURISDICTION of the panel. Such termination is FINAL and cannot be extended, MODIFIED or reinstated by the panel, the judicial referee or BY AGREEMENT OF THE PARTIES. (Rule 20.190, emphasis supplied)

In view of all of the foregoing, we hold that a hearing before a 3 member panel was mandatory and jurisdictional. This being so we are without authority to make exceptions and this medical mediation panel has lost jurisdiction and can proceed no further.

Accordingly this petition for certiorari is granted and all orders not in accordance herewith quashed.

CERTIORARI GRANTED.

DAUKSCH, J., concurs.

ANSTEAD, J., dissents without opinion.


text:
    Patricia A. LEWIS, Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF SOCIAL AND ECONOMIC SERVICES, Respondent.
    No. JJ-22.
    District Court of Appeal of Florida, First District.
    Feb. 26, 1979.

      Charles R. Colbrunn, Orlando, for petitioner.
    James G. Mahorner, Tallahassee, for respondent.
   PER CURIAM.

Petitioner has filed her challenge to the validity of certain agency rules adopted by the Division of Social and Economic Services alleging that such “rules” were improperly adopted and therefore are invalid. She alleged that she was a recipient of public assistance under the Aid to Families With Dependent Children program and was adversely affected by the use of a manual by the social workers alleging that the use of such manual made the same a “rule”.

We have reviewed the record and briefs filed in this cause and have determined that the petition for review is without merit and the same should be and is hereby DENIED.

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


text:
    Aldore James ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-153.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied March 23, 1979.
    Aldore James Anderson, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rules of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rules of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is not entitled to relief, the denial of the motion is affirmed.

Affirmed.


text:
    Lewis D. WADE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1258.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1979.

      Richard L. Jorandby, Public Defender, and Harvey R. Schneider and Michael Du-biner, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Lewis D. Wade has raised four points on appeal from his conviction of two counts of sexual battery, only one of which we determine has merit. Appellant was convicted of two separate violations of Section 794.-011(4)(b), Florida Statutes (1975), for a single attack upon the victim. We determine that the attack constituted only a single violation of the statute, and accordingly vacate the sentences on both convictions and remand the cause to the trial court for resentencing for a single violation of the statute. The appellant does not have to be present at resentencing.

Remanded for further proceedings consistent with the views herein expressed.

CROSS, DAUKSCH and MOORE, JJ., concur.


text:
    MAGERAS PAINTING CORPORATION, Appellant, v. GENERAL ACCIDENT AND LIFE ASSURANCE CORPORATION, LTD., Appellee.
    No. 77-2119.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1979.
    David T. Young of Moss, Young, Denman & Sawyer, Cocoa, for appellant.
    Janet R. DeLaura and Barbara Kane of Smalbein, Eubank, Johnson, Rosier & Bus-sey, P. A., Rockledge, for appellee.
   PER CURIAM.

We have examined the record in this case and determined that appellant has failed to demonstrate error.

AFFIRMED.

DOWNEY, C. J., MOORE, J. and FAR-RINGTON, OTIS, Associate Judge, concur.


text:
    Norbert McFALL, Appellant, v. LEATHERBY INSURANCE COMPANY, Appellee.
    No. 77-2317.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1979.

      Paul J. Culp, Boynton Beach, for appellant.
    Michael B. Davis of Walton Lantaff Schroeder Carson & Wahl, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Maine v. Hyde, 350 So.2d 1161 (Fla. 2d DCA 1977).

ANSTEAD and DAUKSCH, JJ., and SCHOONOVER, JACK R., Associate Judge, concur.


text:
    Murray SLATNICK and Elsie Slatnick, his wife, Eddie Starr and Frieda Starr, his wife, Samuel Heichman and Kitty Heichman, his wife, Al Epstein and Edith Epstein, his wife, Bill Goldman and Bella Goldman, his wife, Joe Broad and Ethel Broad, his wife, Murray Arkin and Rose Arkin, his wife, Sydney Slate and Sylvia Slate, his wife, Louis Gavhev and Millie Gavhev, his wife, Jules Welsh and Bonnie Welsh, his wife, Henry Gottlieb, William Spada and Betty Spada, his wife, John Procida and Marie Procida, his wife, Samuel Rosen and Esther Rosen, his wife, Bernard Lieberman, Louis Buckberg, Phillip Greene, Harry Lasky and Bea Lasky, his wife, Sam Carmasin and Ethel Carmasin, his wife, Seymour Herman and Thelma Herman, his wife, Phillip Davis, Morris Verbluth and Rose Verbluth, his wife, Saul Silverman and Mildred Silverman, his wife, Jack Berger and Ruth Berger, his wife, Paul Eisnitz and Ann Eisnitz, his wife, Eugene Popkin and Rose Popkin, his wife, Abraham Appel and Hilda Appel, his wife, Maurice Berman and Ruth Berman, his wife, Edward Fox and Ida Fox, his wife, Nathan Cohen and Ray Cohen, his wife, Abraham Morenfeld and Jean Morenfeld, his wife, Abraham Leven and Mary Leven, his wife, Harry Stoloff and Francine Stoloff, his wife, Eric Kahn and Rita Kahn, his wife, Max Frieder and Yetta Frieder, his wife, Milton Skulnik and Sylvia Skulnik, his wife, Jack Waldman and Anne Waldman, his wife, Edward Weinstein and Anna R. Weinstein, his wife, Aaron Scheier and Florence Scheier, his wife, Herman Kurtz and Rebecca Kurtz, his wife, Herman Graybow and Rose Graybow, his wife, Louis Schultz and Mary Schultz, his wife, Individually and on behalf of all those similarly situated, Lime Bay Condominium, Inc., Lime Bay Condominium, Inc., # 2, Lime Bay Condominium, Inc., # 3 and Lime Bay Condominium, Inc. # 4, Appellants, v. LEADERSHIP HOUSING SYSTEMS OF FLORIDA, INC., a Florida Corporation, Leadership Housing, Inc., a Delaware Corporation, and Cerro Corporation, a foreign corporation, Howard J. Brafman, Robert J. Lunny and James Howell, all Individually and as agents of Leadership Housing Systems of Florida, Inc., LHI Recreation Company, a Florida Corporation, City of Tamarac, Florida, a municipal corporation, and the Chief Building Official of the City of Tamarac, Florida, Daniel Salvucci, Appellees.
    No. 77-2364.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1979.

      Deborah Bovarnick of Becker, Poliakoff & Sachs, P.A., Fort Lauderdale, for appellants.
    Gilbert A. Haddad and Myles J. Tralins of Haddad & Josephs, Miami, for appellees.
   LETTS, Judge.

The appellant, by interlocutory appeal, here protests the action of the trial court in sustaining objections to propounded interrogatories. We affirm.

The propounded interrogatories are composed of 2,300 legal size pages in small type (without excessive space between questions) and include such choice samples as:

“State fully and in detail the load carried by each steel pipe column located within [each] apartment separations walls or state fully and in detail the equation method used by designers stated in answer to prior interrogatories to calculate that loan.” Page 13, interrogatory 2.15 (emphasis and brackets added)

This question alone, relative to 18 condominium buildings, might take a week to answer. It is difficult to imagine how the author of these particular interrogatories could have possibly conjured up a more oppressive and burdensome collection.

Rule 1.280(b)(1) of the Fla.R. of Civ.P. permits discovery regarding any matter reasonably calculated to lead to the discovery of admissible evidence. The contents of the subject interrogatories are in our opinion unreasonable.

The petitioner also contends that the trial judge was in error, because he failed to consider the merits of each and every one of the interrogatories separately, and cites Watkins v. Mother’s Auto Sales, Inc., 264 So.2d 439 (Fla. 3d DCA 1972) as authority that each must receive separate consideration. It is true that in Watkins the court stated that it had meticulously reviewed all the interrogatories, but we do not construe this as a holding that it must always do so. For the trial judge, in this instance, to review and hear argument on all these interrogatories would be impossible, unless he were to accept it as an exclusive line of work for weeks.

A third argument advanced, is that the case of Continental Mortgage Investors v. Village by the Sea, Inc., 252 So.2d 833 (Fla. 4th DCA 1971) mandates that answers to interrogatories can only be avoided by moving for a protective order under Fla.R. of Civ.P. 1.280(c). However, both the case (Continental) and the rule use the verb “may” and we do not believe that a filed written objection is an unacceptable substitute. Indeed, such a method was upheld in Cabrera v. Evans, 322 So.2d 559 (Fla. 3d DCA 1975).

Florida Rule 1.340 is essentially an embodiment of Federal Rule 33 and as such, federal case law is highly persuasive in this area. One of the few U. S. Court of Appeals’ decisions addressing itself to the issue of objections to interrogatories, sustained the district court’s findings that the questions were oppressive and burdensome. In affirming the lower court’s decision the court commented:

“That rule does not, however, permit a plaintiff to ‘go fishing’ and a trial court retains discretion to determine that a discovery request, is too broad and oppressive.” Marshall v. Westinghouse Electric Corp., 576 F.2d 588, at 592 (5th Cir. 1978).

Thus the court, armed with judicial discretion, may determine that the matter at issue does not require such extensive discovery and that for counsel or the court to have to examine and specify each irrelevant, repetitious, or immaterial question would constitute an undue burden and would be an extraordinary waste of judicial time and effort. Accordingly, we adopt the reasoning of the U. S. District Court in Blanchard Lumber Co. v. S. S. Polyrover, 224 F.Supp. 601 (1963):

“The excessive number of interrogatories of a drag-net nature, which not only are unduly burdensome and oppressive, but seek information irrelevant to the fundamental issue in this suit, constitute an abuse of the interrogatory Rule. They are inconsistent with the spirit and purpose of the Rules.”

See also: Krantz v. United States, 56 F.R.D. 555 (W.D.Va.1972).

Finally, in the hearing held on the objections, the moving party offered to open up his records to the appellants’ attorney and let her go to the warehouse, where they are stored, to obtain the answers for herself, pursuant to Rule 1.340(c). We agree this might be an acceptable alternative, however the task may prove as arduous as cleaning the Augean stables (see the Seven Labors of Hercules).

AFFIRMED.

DOWNEY, C. J., concurs.

DAUKSCH, J., concurs in conclusion only.

      . They are divided into several sets, many of which are duplicative.


text:
    John V. SMITH and Lucy L. Smith, Appellants, v. BRANDON, PEACOCK, JONES AND SANDALL, P. A., a professional association, and Howard Peacock, Appellees.
    No. 77-2426.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1979.
    Robyn Greene of Greene & Cooper, Miami, and Maurice Fixel of Meyer, Leben, Fixel & Cantor, Hollywood, for appellants.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellees.
   PER CURIAM.

The summary judgment in this case is reversed on the authority of Chambers v. Gaul, 365 So.2d 213 (Fla. 4th DCA 1978); Jones v. North Dade Hospital, Inc., 359 So.2d 56 (Fla. 3d DCA 1978) and Enfield v. Held, 357 So.2d 772 (Fla. 2d DCA 1978); and this cause is remanded for further proceedings.

REVERSED and REMANDED.

DAUKSCH and MOORE, JJ., and FAR-RINGTON, OTIS, Associate Judge, concur.


author: BERANEK, Judge.

text:
    CITRUS CENTRAL, Employer, Appellant, v. Wayne E. DETWILER, Claimant, and Florida Department of Commerce, Board of Review, Appellees.
    No. 78-942.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1979.

      Norman F. Burke, of Van Den Berg, Gay & Burke, Orlando, for appellant.
    Kenneth H. Hart, Jr., Gen. Counsel, and Ollie Evans, U. C. Claims, Tallahassee, for appellees.
   BERANEK, Judge.

This is a petition for certiorari which we treat as a direct appeal pursuant to Rule of Appellate Procedure 9.110(a)(2) and Rule 9.040(c). The appellant was the employer and the appellee was an individual who was fired from his job and subsequently sought unemployment compensation benefits. These benefits were denied by a claims examiner based on a finding that the employee/appellee had been terminated in his employment due to misconduct connected with his job. The employee sought review before the statutory appeals referee [F.S. 443.07(4)] who also found that the employee was terminated due to misconduct connected with his job. On review before the Board of Review of the State of Florida Department of Commerce, Industrial Relations Commission, the decision was reversed. The Board of Review determined the employee had not been fired due to misconduct connected with his employment. The employer now seeks judicial review before this Court pursuant to F.S. § 443.-07(4)(e). It is our conclusion that the Board of Review erred in reversing the finding of the appeals referee.

The facts in this case are actually undisputed. The employee was a fork lift operator. He worked for an employer working either the day shift or the night shift, depending upon the needs of his employer. Over his history of employment, he worked for periods and was laid off for periods. He preferred to work the day shift rather than the night shift. At one point he was extremely dissatisfied with having to continue working the night shift. He repeatedly expressed this dissatisfaction to his superiors. Upon returning from a three-day absence due to illness, the employee learned that he had been transferred from the shipping department to the assembly department. He did not like this transfer because he knew very little about the assembly department. He again expressed his dissatisfaction to his foreman who told him to continue working and not to leave the job site. The employee again complained loudly and stated his desire to further discuss the transfer with a higher company official. The job foreman specifically advised him to continue working and that he could discuss the matter with a higher company official at some time when he was off duty. The foreman stated that if he left the job he would be suspended. Instead of waiting for a work break, the employee intentionally disobeyed the foreman’s order and disregarded his threat of suspension by leaving his job and going to the main office to talk to a higher company official. He was fired for this direct disobedience. Although the employee did not like it, his work history with the employer showed he was often transferred from department to department and from shift to shift.

The claims examiner and the appeals referee found that this conduct constituted misconduct connected with employment. The Board of Review agreed with the factual findings but simply decided that such acts could not constitute misconduct. We rule that flagrant and intentional disobedience to a valid work order by a superi- or on the job should indeed be characterized as misconduct on the job and that the ruling of the Board of Review to the contrary is not in accord with the law. There was certainly adequate evidence to support the findings of the lower tribunal in this respect. White v. C. H. Lyne Foundry and Machine Co., 74 So.2d 538 (Fla.1954). The appellate administrative tribunal cannot and apparently did not reweigh the evidence. O’Neil v. Pallot, 257 So.2d 59 (Fla. 1st DCA 1972). Misconduct has been defined in Varig Brazilian Air. v. Fla. Dept. of Commerce, 354 So.2d 921 (Fla. 3d DCA 1978) as:

“Conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee.” Supra at 922.

The order of the Board of Review is hereby reversed and the matter is remanded with instructions to reinstate the order of the appeals referee.

REVERSED AND REMANDED.

DOWNEY, C. J., concurs.

RIVKIND, LEONARD, Associate Judge, dissents without opinion.


text:
    Clinton David ROBINSON, Petitioner, v. The Honorable Humes T. LASHER, Judge of Circuit Court of 17th Judicial Circuit in and for Broward County, Florida, Respondent.
    No. 78-2070.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1979.
    Louis Vernell, Miami Springs, for petitioner.
    Patti Englander, Asst. State’s Atty., Seventeenth Judicial Circuit, Fort Lauderdale, for respondent.
   PER CURIAM.

The petitioner claims he is entitled to discharge under the speedy trial rule, Fla.R. Crim.P. 3.191. Petitioner was arrested and charged with reckless driving on January 25, 1978, as a result of an accident in which a passenger in petitioner’s automobile was killed. On August 9, 1978, 196 days after his initial arrest, an information was filed charging the petitioner with manslaughter as a result of the same incident giving rise to the previous arrest. On August 24, the reckless driving charge was nolle prossed by the state. In response to this court’s order to show cause, the respondent did not reply to petitioner’s arguments on the merits and sought relinquishment of jurisdiction to rule on a pending motion for discharge. That request was granted and the respondent entered an order thereafter simply denying petitioner’s motion for discharge. The respondent has not shown cause why the petition should not be granted. In the recent case of State v. Thaddies, 364 So.2d 819 (Fla. 4th DCA 1978), this court noted:

In similar circumstances this court has held that although earlier charges arising from the same incident are dropped, speedy trial time on charges later filed, but based on the same incident, is still measured from the date of arrest on the earlier charges. Clark v. State, 318 So.2d 513 (Fla. 4th DCA 1975). (Id. at 820)

Here, the state had 180 days from January 25 to try the petitioner. That time had expired by August 8 when the manslaughter charge was filed. The alleged victim of the manslaughter died on January 25, 1978. Hence, all of the circumstances giving rise to the charges of reckless driving and manslaughter occurred on January 25. The state could not enlarge the time for speedy trial by the untimely filing of the manslaughter charge or by its nolle prosequi of the reckless driving charge, Thaddies, supra ; and the respondent has alleged no other basis for extending the time for speedy trial. The petitioner is entitled to be discharged.

Accordingly, the petition for writ of prohibition is granted and the respondent is hereby directed to discharge the petitioner.

DOWNEY, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    STATE of Florida, Appellant, v. R. D. B., Jr., a child, Appellee.
    No. 78-1954.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Bar-tow, and William I. Murphy, Asst. Public Defender, Tampa, for appellee.
   PER CURIAM.

Reversed. See State v. J. A., Jr., 367 So.2d 702 (Fla. 2d DCA 1979).

GRIMES, C. J., and BOARDMAN and RYDER, JJ., concur.


text:
    Kevin R. HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-137.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 1979.
   PER CURIAM.

Affirmed without prejudice to seek delayed appellate review pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969).

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


text:
    The EDWARD J. DeBARTOLO CORPORATION, Pinellas Square Associates, Pinellas Square, Inc., and J. C. P. Realty, Inc., Appellants, v. DRYVIT SYSTEMS, INC., Appellee.
    Nos. 78-269, 78-293 and 78-294.
    District Court of Appeal of Florida, Second District.
    March 2, 1979.
    Malcolm V. McKay of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellants.
    Frederick A. Higham, Jr. of Law Offices of John J. Divito, St. Petersburg, for appel-lee.
   PER CURIAM.

We reverse the trial court’s order of February 22, 1978, vacating the judgment entered January 19, 1978, on ground the court was without jurisdiction since notice of appeal from that judgment was filed on February 20, 1978.

We affirm the judgment of January 9, 1978, as amended by the judgment of January 19, 1978.

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


author: BOARDMAN, Acting Chief Judge.

text:
    Anna Horn GARCIA, as Executrix of the Estate of Gordon M. Phillips, Deceased, Appellant, v. PROEFKE-NIELSON CONSTRUCTION COMPANY and Reliance Insurance Company, Appellees.
    No. 78-1305.
    District Court of Appeal of Florida, Second District.
    March 2, 1979.
    William T. Keen and Thomas J. Hanlon, Tampa, for appellant.
    H. Vance Smith, Tampa, and Susan R. Whaley, Clearwater, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
   BOARDMAN, Acting Chief Judge.

Appellant/plaintiff Anna Horn Garcia, executrix of the decedent’s estate, appeals the final summary judgment entered in favor of appellee/defendant Proefke-Nielson Construction Company. We reverse.

After review of the record and briefs filed herein, we hold that a genuine issue of material fact exists as to whether Burns International Security Services, Inc., decedent’s employer, was a subcontractor of ap-pellee, a general contractor. Appellee has failed to conclusively resolve this question in its favor because there are reasonable inferences to the contrary which may be drawn in favor of appellant. Accordingly, the summary judgment entered by the trial court on the pleadings should be reversed and the cause remanded for further proceedings consistent with this opinion. E. g., Belghaus v. Polcar, 356 So.2d 44 (Fla. 2d DCA 1978).

REVERSED and REMANDED.

SCHEB and DANAHY, JJ., concur.


text:
    Ricky Allen ENGLUND, Appellant, v. STATE of Florida, Appellee.
    No. 78-1433.
    District Court of Appeal of Florida, Second District.
    March 2, 1979.
    Ronald C. Hogue, Naples, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Ricky Allen Englund appeals his conviction for battery of a law enforcement officer. We hold that the circuit court lacked jurisdiction over the offense because the information charged only simple battery, a misdemeanor offense.

On November 10, 1977, Englund participated in a brawl at a bowling alley in Naples. He was arrested and taken to the Collier County Sheriff’s Department for booking. He was then taken to the hospital by sheriff’s deputies. After Englund was treated, Deputy Schultz, who was at the hospital on other business, assisted other officers in placing Englund in a patrol car for transportation back to the sheriff’s office. At this point Englund allegedly struck Deputy Schultz. It was this incident which gave rise to the charge against him.

Prior to trial the appellant unsuccessfully moved to dismiss the charges because the information was insufficient. The information stated that on the 10th day of November, 1977 the appellant:

Did unlawfully commit a battery upon DEPUTY JAMES SCHULTZ, a law enforcement officer, while the said JAMES SCHULTZ was engaged in the lawful performance of his duties, by striking the said person against his will and in violation of Florida Statute 784.07. (emphasis supplied)

This language tracked Section 784.07(2), Florida Statutes, except that it substituted the word “unlawfully” for the word “knowingly.” Because of this defect the information failed to allege knowledge, an essential element of the crime of battery of a law enforcement officer. The information did sufficiently charge the misdemeanor offense of battery, but fell short of alleging the felony offense of battery on a law enforcement officer. Therefore, the circuit court did not acquire jurisdiction over the subject matter, and the judgment and sentence against appellant are void. See Waters v. State, 354 So.2d 1277 (Fla. 2d DCA 1978); Radford v. State, 360 So.2d 1303 (Fla. 2d DCA 1978).

The judgment and sentence are vacated and the cause reversed and remanded for further proceedings consistent with this opinion.

GRIMES, C. J., and HOBSON and SCHEB, JJ., concur.


author: BOOTH, Judge.

text:
    The CITY OF NEWBERRY, Appellant, v. The SCHOOL BOARD OF ALACHUA COUNTY, Appellee.
    No. JJ-8.
    District Court of Appeal of Florida, First District.
    March 6, 1979.

      Allison E. Folds, of Fagan, Crouch, Anderson & Folds, Gainesville, for appellant.
    James F. Lang of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from final judgment of the Circuit Court in a suit for declaratory and injunctive relief. The judgment sought to be reviewed requires the City of Newberry to allow the School Board of Alachua County to connect two public schools, one located inside and one located outside the City limits, to the City’s central sanitary sewer system, without payment of front foot assessments. The basis of the trial court’s decision is Florida Statute section 235.34, (1975) which provides in pertinent part as follows:

“School boards ... of the state are authorized to expend funds ... by contract or agreement ... for the maintenance or improvement of the property of any public school or of any facility on such property. Expenditures may also be made for sanitary improvements . upon or in the vicinity of any existing or proposed public school site Payment by a school board for any improvement set forth in this section shall be authorized in any amounts agreed to by the school board. Any payments so authorized to be made by a school board shall not be mandatory unless the specific improvement and its costs have been agreed to by the school board prior to the improvement’s being made. The provisions of any law, municipal ordinance, or county ordinance to the contrary notwithstanding, the provisions of this section shall regulate the levying of assessments for special benefits on school districts and the directing of the payment thereof. Any municipal ordinance or county ordi-' nance making provision to the contrary is void and shall be of no effect.”

The trial court in the instant case ruled that there was no agreement by the School Board with regard to the specific improvement and its cost, as contemplated by the foregoing statute, and therefore the School Board property could not be subjected to assessment for the improvements. The court further holds that both the elementary school outside the City limits and the high school located within the City limits can connect to the City’s central system without payment of any front foot assessment for the sewer system. We disagree, and reverse.

The purpose of Florida Statute section 235.34 is to prevent the levy of special assessments against school property without agreement of the school board. Obvious dictates of the school board’s budget require, as the legislature has recognized, that local governmental entities planning improvements which will affect the school board’s property consult with, and obtain the approval of the school board as to the proposed improvement and its cost before special assessments can be levied. Hence the language of the above-quoted statute that “the specific improvement and its cost have been agreed to by the school board prior to the improvements being made,” are a condition precedent to the levy of assessments for special benefits on school districts. The legislature, however, did not intend in the enactment of the statute in question to exempt school board property from assessment for the construction of an improvement directly sought by the board, thereby casting an unconscionable additional burden of assessment on other property owners within the City limits.

The facts of this case are that the school board was aware of the proposed improvement and its cost, and actively sought to be included within the service provided. It was for that reason that the City extended lateral lines to provide service to both schools and the school board, for its part, constructed a pump and lift station and connecting line to the perimeter of the elementary school property.

The option was with the school board to be serviced by the central system or not and the choice was made. The school board could have elected to construct a sewage treatment facility at the new elementary school outside the City limits and to continue to operate the already existing independent sewer treatment facility at the high school property but has chosen not to do so.

Planning for the City’s central system began in 1970. Financing of the central sewer system was by grant and loan from the Farmer’s Home Administration. The commitment for funding, obtained on May 30, 1973, specifically provided for assessment charge of $5.00 per front foot, and included the school board property located within the City limits. User charges and special assessments were pledged for repayment of the revenue bond issued to finance the system.

The parties to this suit negotiated with each other for more than two years concerning the sewer service to be provided to the schools. The board contends that the party or parties negotiating on its behalf were without authority to bind it in terms of section 235.34 as to any agreement to pay a front foot assessment. The court below was apparently of the view that the school board had to formally agree to the front foot assessment charge before its property could be assessed for its share of the cost of the improvement. The statute, however, does not require that the school board’s agreement to, and approval of, the specific improvement and its cost be reduced to writing or formalized in any manner. Here the facts of record establish the Board’s agreement within the meaning of the statute and are sufficient to subject the Board’s property to special assessment for the improvement in question.

Accordingly, the judgment below is REVERSED and the cause REMANDED for further proceedings consistent herewith.

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

      . The order of the Court that the school board pay customary hook-up fee and monthly user charges is uncontested in these proceedings.


text:
    Steven Allen BLAIR, Appellant, v. STATE of Florida, Appellee.
    No. MM-240.
    District Court of Appeal of Florida, First District.
    March 6, 1979.
    Steven Allen Blair, in pro. per.
    No appearance for appellee.
   PER CURIAM.

The record in this court from appellant’s previous appeal, Blair v. State, 362 So.2d 411 (Fla.1st DCA 1978), clearly demonstrates that there is no merit to the allegations contained in appellant’s Rule 3.850 motion. The order denying appellant’s motion without evidentiary hearing is accordingly affirmed.

McCORD, C. J., and ERVIN and BOOTH, JJ., concur.


author: PEARSON, Judge.

text:
    Carmen Z. ARAGON, as administratrix and personal representative of the Estate of Juan Aragon, Deceased, Appellant, v. FLORIDA EQUIPMENT COMPANY OF MIAMI, INC., a Florida Corporation, Paul Melotto, Consolidated Mutual Insurance Company, a Foreign Corporation, Terminal Transport Company, Inc., a Foreign Corporation, Sarkie James Krikorian, Continental National American Insurance Company, a Foreign Corporation, John Nash, F. S. DeGroff and Cosmopolitan Mutual Insurance Company, Appellees.
    Nos. 77-2056 to 77-2059.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Horton, Perse & Ginsberg, Charles R. Lipcon, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PEARSON, Judge.

The plaintiff, Carmen Z. Aragon, as ad-ministratrix of the estate of Juan Aragon, deceased, brings these consolidated appeals from final judgments for defendants Florida Equipment Company of Miami, Inc., and Paul Melotto and their insurer Consolidated Mutual Insurance Company; Terminal Transport Company, Inc., and Sarkie James Krikorian and their insurer, Continental National American Insurance Company; John Nash and F. S. DeGroff and their insurer, Cosmopolitan Mutual Insurance Company. A summary final judgment was entered for defendants Cosmopolitan Mutual Insurance Company and a judgment on directed verdict for defendants F. S. De-Groff and John Nash, but the cause was tried before a jury on the issues between the plaintiff and Krikorian, Terminal Transport Company, Inc., and Continental National American Insurance Company. Although a separate notice of appeal was filed from each judgment, the appellant’s brief presents five points. Each point concerns the trial of the cause wherein the appellant was plaintiff and Florida Equipment Company of Miami, Inc., Sarkie James Krikorian and Continental National American Insurance Company were defendants.

Two of appellant’s points, directed to the instructions given to the jury, in our opinion, present reversible error. We do not consider the other points raised, but reverse and remand the cause for a new trial with regard to the last-stated defendants. With regard to all other defendants, the judgments are affirmed.

There was extensive and conflicting evidence before the jury on the question of liability. Clear cut, factual issues' were presented on whether the defendants and the deceased plaintiff were negligent in their actions immediately preceding the accident. At the charge conference, the plaintiff, in writing, requested Instruction 5.1(b) of the Standard Jury Instructions. This instruction deals with concurring negligence and was proper under the factual situation in this case. Although the trial court indicated it would give the instruction, it failed to read the instruction to the jury. The record shows that the plaintiff objected at the end of the court’s charge and attempted to call to the court’s attention its oversight, but the oversight was not corrected.

The court also erred in giving the following instruction in this comparative negligence case:

“This case will result in your deciding either a verdict all the way for the plaintiff or a verdict all the way for the defendants.”

This instruction introduced confusion and was improper.

Therefore, upon a holding that the court’s instruction as a whole was improper and misleading, the cause is remanded for a new trial. See Florida Power & Light Company v. McCollum, 140 So.2d 569 (Fla.1962); and see generally the principles of law in Sirmons v. Pittman, 138 So.2d 765, 770 (Fla. 1st DCA 1962).

Affirmed in part, reversed in part and remanded.


text:
    Rhea SCHWARTZ and Herman Schwartz, Appellants, v. M. J. M. CORPORATION, a Florida Corporation, d/b/a Waldorf Towers Hotel, Appellee.
    No. 77-2187.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Stephen G. Fischer, Miami, Friedman & Robbins, North Miami Beach, for appellants.
    Rentz, McClellan & Haggard and L. Edward McClellan, Jr., Miami, for appellee.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from a final judgment entered after a jury trial by the trial court in a personal injury action. We reverse.

Among the points raised by appellants on appeal is one which, in our opinion, requires reversal of the final judgment appealed. In this point, appellants contend that the trial court erred by granting appellee’s motion to exclude the testimony of their expert witness, a safety engineer, and by refusing to allow the expert to testify.

Our review of the record in this case leads us to the conclusion that it constituted reversible error for the trial court to exclude the testimony of appellants’ expert witness. The apparent basis of the trial court’s exclusion of the expert’s testimony was based upon the premise that because appellant could not testify as to which step on a stairway caused her to fall the expert could not testify as to the condition of the stairway. In our opinion the condition, etc., of the stairway was a proper subject upon which the expert could testify in this case, and that it was error for the trial court to exclude his testimony. See, e. g., Cromarty v. Ford Motor Company, 341 So.2d 507 (Fla.1976); Goldring v. Escapa, 338 So.2d 871 (Fla. 3d DCA 1976); Fletcher v. Petman Enterprises, Inc., 324 So.2d 135 (Fla. 3d DCA 1975); Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla. 2d DCA 1959), and Millar v. Tropical Gables Corp., 99 So.2d 589 (Fla. 3d DCA 1958). Accordingly, the final judgment appealed is reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: HENDRY, Judge.

text:
    Jorge O. MARTINEZ, Aurelio O. Martinez De Castro and American Bankers Insurance Company of Florida, Appellants, v. Hector GONZALEZ, Individually and as Personal Representative of the Estate of Mirella Gonzalez and Bertha Manzo, Appellees.
    No. 78-543.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Helliwell, Melrose & DeWolf and William E. Sadowski, Miami, for appellants.
    Roy W. Allman & Associates, Fort Laud-erdale, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Affirmed. Under provisions of the Uniform Contribution Among Tortfeasors Act, Fla.Stat. § 768.31 (1975), specifically subsection (5)(b), settlement with one of two or more joint tortfeasors discharges the settling tortfeasor from all liability for contribution to other tortfeasors, Seaboard Coast Line Railroad Company v. Gordon, 328 So.2d 206 (Fla. 1st DCA 1976).

But see, cogent discussion of the effects of the settlement and release provisions, 30 U. Miami L. Rev. 713 (Spring 1976). The comment points out the inherent inequities and inconsistencies of the said provisions with the spirit of the pre-Act case of Hoffman v. Jones, 280 So.2d 431 (Fla.1973).


text:
    Luisa RODRIGUEZ, Appellant, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellee.
    No. 78-689.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Stabinski, Funt, Levine & Vega, Miami, for appellant.
    Steel, Hector & Davis and John M. Bark-ett, Miami, for appellee.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Alvarez v. John Hancock Mutual Life Ins. Co., 362 So.2d 360 (Fla. 3d DCA 1978); Brown v. Gulf Life Ins. Co., 343 So.2d 91 (Fla. 3d DCA 1977); Moylan v. State Farm Mutual Automobile Ins. Co., 343 So.2d 56 (Fla. 4th DCA 1977); Reliance Mutual Life Ins. Co. of Illinois v. Booher, 166 So.2d 222 (Fla. 2d DCA 1964).


text:
    Urban J. GUTJAHR, Appellant, v. Lyda GUTJAHR, Appellee.
    No. 78-1022.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Bernard A. Wieder, Miami Beach, for appellant.
    George P. Sampas, Miami Beach, for ap-pellee.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the respondent below from the order entered by the trial court after this court affirmed a judgment of dissolution of marriage. We hold no reversible error has been shown, and affirm.

On November 8, 1976, the final judgment of dissolution of marriage was entered in which property rights of the parties were determined. Therein the husband was ordered to transfer to the wife title to a certain automobile and his interest in a membership in the Jockey Club. In addition, the husband was ordered to transfer to the wife his interest in certain listed stocks and bonds. The wife was ordered to assign to the husband her interest in membership of Vacation Tours, and her interest in certain described bonds in the aggregate face value of $50,000.00. The judgment further provided that the husband should indemnify and hold harmless the wife from the obligation of a bank loan the parties had made of $46,000.00 to Barnett Bank of Bay Harbour Islands “for which the Petitioner pledged various stocks and bonds as collateral”, and with respect thereto ordered that the husband “shall endeavor to do all things necessary to release and return to the Petitioner all her stocks and bonds so pledged.”

The husband filed an appeal from the judgment, and this court affirmed without opinion. A mandate thereon was filed in the trial court on January 12, 1978.

Thereafter on February 2, 1978, the wife filed a petition in the trial court, designated as a petition for clarification wherein she called attention to the provision of the judgment by which the husband had been ordered to take the steps necessary to obtain the release and return to the wife of her securities that had been pledged for the above mentioned loan. In that petition the wife listed and described pledged bonds which included three $5,000.00 bonds of Dade County Port Authority, and alleged that all the bonds listed in said petition, other than one $5,000.00 Dade County Port Authority bond were her property. Petitioner then alleged that the respondent had failed to comply with the order to him in the judgment to take the steps necessary to release and return to petitioner her said securities pledged for said loan, and was contesting her right thereto and had prohibited the bank from paying to the petitioner the income therefrom to which he was entitled.

That petition of the wife, although styled as one for clarification, was a petition to enforce the provision of the judgment requiring the husband “to do all things necessary to release and return to the petitioner all her stocks and bonds so pledged.” Thereafter the court entered the order appealed from. Therein it was recited that the court had reviewed the file and heard argument of counsel for the respective parties, and the order again directed the husband “to do all things necessary to release and return to the Petitioner all her stocks and bonds so pledged.”

As noted above, final judgment had listed certain securities which were jointly owned, and as to which the parties had been ordered to transfer his or her interest to the other. The securities which were listed in the wife’s subsequent petition as being those belonging to her which had been pledged for the bank loan were different and did not include any of those above mentioned as having been listed in the final judgment.

In ordering the husband to obtain the release and return of the pledged securities to the wife the final judgment had directed the return to her of “all her stocks and bonds so pledged.” In the order entered on the hearing on the wife’s subsequent petition, the court held that the bonds claimed by the wife to have been pledged for the bank loan, and the income therefrom, were the property of the wife. There was no contrary pleading or evidence.

On this appeal the husband contends the order entered by the court on the wife’s petition was a change or modification of the judgment, and that the court was without jurisdiction to enter such order after the appeal and affirmance of the judgment. We hold that contention is without merit in the circumstances of this case.

This was not an instance of a party, claiming entitlement to other property, after a dissolution judgment which dealt with the property rights of the parties, for which the court would not have jurisdiction. See Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (Fla.1948); Vandervoort v. Vandervoort, 277 So.2d 43 (Fla. 3d DCA 1973); Simon v. Simon, 293 So.2d 780 (Fla. 3d DCA 1974). This order related to securities which the judgment had dealt with as being the wife’s property that had been pledged for the bank loan. With or without a reservation of jurisdiction, the court had jurisdiction to make such order as appeared to be necessary and proper to enforce the provision of the judgment for disengagement of such securities from the bank loan and their return by the husband to the wife. See Hoover v. Scott, 44 So.2d 657 (Fla. 1950); Golub v. Golub, 336 So.2d 693 (Fla.2d DCA 1976). The subsequent order declaring her to be the owner of the pledged securities claimed by her was an appropriate order to accomplish the enforcement of the judgment.

Affirmed.


text:
    Michael DeBOLD, Appellant, v. The OCEAN REEF CLUB, INC., et al., Appellees.
    No. 78-1073.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    William M. Alper, Greene & Cooper and Marc Cooper, Miami, for appellant.
    Rentz, McClellan & Haggard and L. Edward McClellan, Jr., Miami, for appellees.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

We find no merit in any of the points the plaintiff-appellant presents for reversal of the judgment entered against him upon a jury verdict for the defendant-appellee. As to the first, the trial court did not err, in the light of the officer’s expert qualifications, in admitting the investigating state trooper’s estimate of the plaintiff’s speed at the time of the accident. Kerr v. Caraway, 78 So.2d 571 (Fla.1955); Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978); Waller v. fraud, 301 So.2d 127 (Fla. 3d DCA 1974). In any event, the testimony was no more than cumulative to other, indeed, massive evidence of the plaintiff’s negligence which was properly admitted at the trial. Bryant v. Haarala, 245 So.2d 644 (Fla. 1st DCA 1971); Myers v. Korbly, 103 So.2d 215 (Fla. 2d DCA 1958).

We hold also that the plaintiff’s substantial rights were not adversely affected by the denial of two requested jury charges, since the record shows that, as actually given, the court’s instructions fully and accurately covered the subject matter involved. Florida East Coast R. Co. v. Lawler, 151 So.2d 852 (Fla. 3d DCA 1963). Finally, we do not agree, as the appellant argues, that the court’s response to a question asked by the jury during the course of its deliberations was in any way incorrect.

Affirmed.


text:
    Maria CABALS, Appellant, v. Ricky G. ELKINS, Robert Q. Strait, Old Reliable Fire Insurance Co., South Carolina Insurance Co., and Volkswagen South, Inc., Appellees.
    No. 78-1101.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Martell, Blanco & Villalobos, Coral Gables, for appellant.
    Walton, Lantaff, Schroeder & Carson and James Knight and David K. Tharp, Miami, for appellees.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

This appeal brings up for review the question of the correctness of the trial court’s final order dismissing appellant’s action against appellee, Volkswagen South, Inc.

The complaint charged that appellee was negligent in failing to provide a barrier or necessary buffer zone around its premises which border on U. S. 1 at the intersection of S. W. 160th Street, Miami, Florida, and as a result thereof appellant was injured by a motorcycle which was negligently operated on S. W. 160th Street so as to run onto the appellee’s place of business and cause serious injuries to appellant while she was on its premises shopping for an automobile.

The determinative point on appeal is whether the trial court erred in granting appellee’s motion to dismiss for failure to state a cause of action. We hold that the order of dismissal was correct and affirm. Schatz v. 7—Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA 1961); Krispy Kreme Doughnut Co. v. Cornett, 312 So.2d 771 (Fla. 1st DCA 1975).

Affirmed.