author: DIAMANTIS, GEORGE N., Associate Judge.

text:
    Wayne RIVELLO, Appellant, v. COOPER CITY, a Municipal Corporation, and John Harrington, individually, jointly and severally, Appellees.
    No. 74-1291.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.

      •Charles T. Whitelock and Martin H. Cohen of Hurth & Whitelock, Fort Lauder-dale, for appellant.
    Richard A. Sherman of Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellee, Cooper City.
    Ray Sandstrom of Sandstrom & Hodge, Fort Lauderdale, for appellee, John Harrington.
   DIAMANTIS, GEORGE N., Associate Judge.

The Appellant-Wayne Rivello, who was the plaintiff below, appeals a final order dismissing his amended complaint against the appellees, City of Cooper City and John Harrington, who was the City’s Municipal Judge.

The appellant’s amended complaint seeks to charge the appellee, John Harrington, in three counts, with 1) negligence, 2) false imprisonment, and 3) malicious prosecution. The amended complaint seeks to charge the City with these three (3) claims based upon the theory of respondeat superior.

In summary, the amended complaint alleges that the appellant was sentenced by Judge Harrington to twenty (20) days in jail and a three hundred ($300.00) dollar fine, which was suspended on the condition that the appellant be placed on ninety (90) days probation during which time he was required to pay the sum of fifty ($50.00) dollars to a third party as restitution; that appellee-Harrington, in violation of statutory duty, did not place the appellant under the supervision of the Parole and Probation Commission; that after his probationary period was completed, Judge Harrington revoked the appellant’s probation for having failed to comply with the condition of paying the fifty ($50.00) dollars restitution and issued an order of commitment, imprisoning the appellant for a period of twenty (20) days; that he was never advised of his right to have counsel and that the appellees did not furnish him counsel when he demanded the same; that he was incarcerated for a period of time until he was released upon a writ of habeas corpus issued by the circuit court; and that he was damaged in excess of twenty five hundred ($2500.00) dollars.

The first Count, which charges negligence, basically alleges that the appellees had an initial duty to place the appellant under supervised probation for the period of ninety (90) days and not on unsupervised probation; that Judge Harrington had a duty to inform the appellant of the length of his probation; and that once the ninety (90) day probationary period had expired, the appellees had a duty to release the appellant, all of which duties were breached by the appellees resulting in injury to the appellant.

In Count II, which claims false imprisonment, the appellant, in essence, alleges that these acts of the appellees were committed unlawfully without power which resulted in the false imprisonment of the appellant.

In Count III, which charges malicious prosecution, the appellant basically claims that the probation revocation proceeding was unlawful or maliciously instituted by appellee-Harrington, and the subject habeas corpus issued by the circuit court terminated these proceedings in favor of the appellant.

The crucial point in this appeal involves the question of whether Judge Harrington is immune from suit under the long established doctrine of judicial immunity.

In Florida, “a judge of a court of superior or general jurisdiction is not civilly liable for his judicial acts in excess of his jurisdiction when such acts involve affirmative decisions of the fact of the jurisdiction of such court, even though such decisions may be-wholly erroneous, provided there is not a clear absence of jurisdiction.” McDaniel v. Harrell, 81 Fla. 66, 87 So. 631, at page 632.

Interestingly, in McDaniel v. Harrell, supra, the Florida Supreme Court held that a plea of judicial immunity was good to a declaration alleging the plaintiff was arrested, convicted and thereafter imprisoned upon failing to pay a fine for violating a city ordinance which was declared unconstitutional and void in a subsequent habeas corpus proceeding filed by that plaintiff. The Court, at page 634 of 87 So., pointed out that the defendant, who was mayor and municipal judge, had a jurisdiction of the person and subject-matter “when the case giving rise to this action was under consideration.”

The Florida Supreme Court in McDaniel v. Harrell, supra, cites with approval the landmark United States Supreme Court opinion of Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872). The Bradley decision, in which a plea of judicial immunity was upheld, involved a suit by an attorney against the judge presiding at the trial of one John H. Suratt for the murder of Abraham Lincoln. The trial judge, at the conclusion of that murder trial, without hearing and notice, directed that an order be entered in the court’s records striking the name of the plaintiff-attorney from the roll of attorneys practicing in that court because of the attorney’s rude conduct during a recess in that murder trial. Bradley, the apparent focal point of all discussion regarding judicial immunity, gave the following example of judicial conduct, which, although excessive, would still be considered immune from damages.

“But if, on the other hand, a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged’ with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked.” Bradley v. Fisher, supra, 80 U.S. (13 Wall.) at page 352.

The California case of Ceinar v. Johnston, 134 Cal.App. 166, 25 P.2d 28 (Cal.App.1st 1933), which we have found, is analogous to the fact situation in the case at bar. In that case, the defendant, who was a justice of the peace, suspended the plaintiff’s sentence indefinitely after he plead guilty to a charge of disturbing the peace, and the defendant entered a judgment to the effect that the plaintiff’s sentence shall take full force at any time that the plaintiff failed to make certain monthly payments of child support to his wife. The plaintiff made these payments for approximately three or four months and then approximately four months after the plaintiff ceased making the support payments, the defendant, as justice of the peace, executed an abstract of the proceedings theretofore commenced against the plaintiff and endorsed thereon a commitment of the plaintiff. In Ceinar v. Johnston, supra, the California Appellate Court, citing Bradley, upheld a defense of judicial immunity to a false imprisonment action and at page 29 of 25 P.2d the court stated as follows:

“If, however, the justice of the peace acquires jurisdiction of the person and jurisdiction of the subject-matter, his acts thereafter will be considered as judicial, and for which he will not be held civilly liable. 35 C.J. 471. In Bradley v. Fisher, 13 Wall. (80 U.S.) 335, 354, 20 L.Ed. 646, Mr. Justice Field, writing the opinion of the court, said: ' . . . . Against the consequences of their erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort. . . . ’
>(« jji ‡ s|i ‡ ‡
“If it be asserted that the defendant had lost jurisdiction at the time he rendered the sentence, the rule is the same. In other words, having acqtdred jurisdiction of the subject-matter and of the person, the jtidicial officer is not liable merely because his order was made too late. Horton v. Auchmoody, 7 Wend. (N.Y.) 200.” (Emphasis supplied).

Further, three Federal Court of Appeals’ decisions, which we have also found, are pertinent to the case at bar. See Williams v. Sepe, 487 F.2d 913 (5 Cir. 1973); Jacobson v. Schaefer, 441 F.2d 127 (7 Cir. 1971); Gay v. Heller, 252 F.2d 313 (5 Cir. 1958).

In Williams v. Sepe, supra, the Fifth Circuit upheld a summary judgment in favor of Judge Sepe based upon the plea of judicial immunity. In that case, Williams had apparently misrepresented himself as Judge Sepe’s law clerk and the Judge had him committed for an indirect contempt of court. Williams was not given “written notice of the criminal contempt charged” as required by Rule 3.840 of the Florida Rules of Criminal Procedure, 34 F.S.A., before he was ordered arrested by Judge Sepe. Williams contended that this deviation from the statutory procedure resulted in an absence of subject matter jurisdiction and that the judge, therefore, was not shielded by judicial immunity. The Fifth Circuit, in Williams v. Sepe, rejected these contentions and upheld the defense of judicial immunity and cited Bradley where at page 914 of 487 F.2d, the Court stated:

“While it may be true that the procedural irregularities would necessitate a reversal of a conviction if one had been obtained on the facts of this case, see, e. g., State ex rel. Giblin v. Sullivan, 1946, 157 Fla. 496, 26 So.2d 509, the test for the abrogation of judicial immunity is whether there is a clear absence of all jurisdiction over the subject matter. Bradley v. Fisher, 1872, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646. The policy underlying the doctrine requires that its application not depend on the determination of ‘nice questions of jurisdiction.’ Sullivan v. Kelleher, 1 Cir. 1968, 405 F. 2d 486, 487. The defects in the procedure employed in this case will not support a conclusion that there was a clear absence of all jurisdiction.”

In Jacobson v. Schaefer, supra, the plaintiff was arrested and charged with having violated certain Wisconsin marijuana and narcotic drug laws and the defendant, who was a county judge, set bond at three thousand ($3,000.00) dollars and appointed counsel for the plaintiff. Subsequently, the plaintiff retained his own counsel and posted the three thousand ($3,000.00) dollars bond. The defendant then issued an order requiring the plaintiff to appear in person in open court to answer why he was unable to pay the fees of his court appointed counsel ; why he was free on bail and why he was now able to employ his own counsel. Plaintiff and his retained counsel appeared and explained that the bail money had come from plaintiff’s father and that plaintiff’s fiancee (who later became his wife) financially helped to retain new counsel. When the plaintiff’s father refused to have any of the three thousand ($3,000) dollars bond money used to pay attorneys’ fees, the defendant ordered that $675.00 (the exact amount of the court-appointed attorney fees) of the three thousand ($3,000.00) dollars be refunded and then ordered inasmuch as there was no longer three thousand ($3,000.00) dollars on deposit, the plaintiff would be committed to the county jail and no further bail would be accepted without the defendant’s specific approval.

The Seventh Circuit, in Jacobson v. Schaefer, supra, termed the conduct of the defendant-county judge “shocking” and without “justification” and observed it was for the purpose of using “his jurisdiction to coerce the reimbursement of allegedly owed legal fees” to the court-appointed counsel which was a “clear abuse of power.” 441 F.2d 127, at pages 128 and 130. However, the Seventh Circuit, having previously cited Bradley, upheld the defense of judicial immunity and affirmed a dismissal of the plaintiff’s suit. The court at page 130 of 441 F.2d stated as follows:

“We have found nothing in the Wisconsin Statutes which expressly grants to judges in criminal cases the authority to attach conditions to bail that do not directly relate to assuring the criminal defendant’s appearance at trial. However, we think that, in terms of a judge’s ‘general jurisdiction over the subject matter’, the defendant judge here probably had minimal jurisdiction to attach at least some conditions to bail. See: Wis.Stat. Sec. 253.12 (County Court Criminal trial jurisdiction), Sec. 954.16, 954.30, Whitty v. State, 34 Wis.2d 278, 149 N.W.2d 557 (1967). Moreover, the defendant judge did have jurisdiction to control substitution of attorneys in his court. Wis.Stat. Sec. 256.27(3). Obviously, the use of his jurisdiction to coerce the reimbursement of allegedly owed legal fees was a clear abuse of power, especially when other channels existed for recovery of any such fees which might have been owed. Wis.Stat. Sec. 957.263 Recovery of legal fees paid for indigent defendants. But the fact that an abuse occurred did not destroy the defendant judge’s original jurisdiction as that term has been defined in the judicial immunity cases.”

The case of Gay v. Heller, supra, arose out of federal civil rights and diversity of citizenship actions for damages and in-junctive relief against the estate of a deceased attorney, a circuit judge and a court appointed curator. In that case, the plaintiff alleged that one McCaughan, who later became deceased but whose estate was a party defendant, advised the plaintiff to file a petition for a curator for her grandmother and misled the plaintiff as to the applicable Florida law as to her standing to file such a petition; that the defendant, Judge Holt, knowing of its invalidity appointed the co-defendant Heller as curator and McCaughan attorney for the curator; that the defendants conspired to liquidate a $60,000.00 estate of plaintiff’s grandmother for $5,300.00, which amount was divided between the said curator and attorney; and that the judge entered void orders or judgments adjudging the plaintiff’s grandmother to be domiciled in Florida when she was a permanent resident of New Jersey in order to get control of certain income from a New Jersey trust, awarding personal judgments totaling $10,000.00 against the plaintiff for additional attorney’s and curator’s fees, and holding the plaintiff in contempt of court and ordering her committed for 60 days, all without personal notice and an opportunity for a hearing. Plaintiff further alleged that she did not serve any of the 60 day sentence since she left Florida with her grandmother before the contempt proceedings had been brought, but that this judgment of commitment and the personal judgments totaling $10,000.00 were still unsatisfied as against her. The trial court dismissed the complaint as to all of the defendants, and the Fifth Circuit Court of Appeals, on the basis of judicial immunity, affirmed the dismissal order as to the curator and the circuit judge and at page 316 of 252 F.2d, the Appellate Court stated as follows:

“These allegations do not add up . . . to permit a trial court, on a collateral attack, to find that the acts of the circuit court judge were ‘without the scope and limits of his jurisdiction.’ Rammage v. Kendall, 168 Ky. 26, 181 S.W. 631, L.R. A.1916C, 1295 as quoted in Farish v. Smoot, supra [58 So.2d 538].”

Under the provisions of Florida Special Acts, 59-1195, Section 6(29) Volume II, at page 911, and Section 27 Volume II, at pages 941-944, the Municipal Court of the appellee-City has the authority to impose suitable penalties for a violation of any City ordinance, rule, or regulation by fine not exceeding five hundred ($500.00) dollars or imprisonment not exceeding ninety (90) days, or both, and the authority to suspend any sentence imposed by that court.

In this case, under Florida Special Acts 59-1195, Judge Harrington had jurisdiction to suspend the appellant’s ninety-day sentence and had minimal jurisdiction over the subject matter to place the appellant on probation for such ninety-day period with the condition that he make restitution and possessed such minimal jurisdiction to enforce this condition. Even if the enforcement of this condition of probation some time subsequent to the expiration of the ninety (90) day period was in excess of the judge’s jurisdiction, such act was not in “clear absence of all jurisdiction over the subject matter.” See Bradley v. Fisher, supra, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872). In other words, having initially acquired jurisdiction of the subject matter and of the person, that judicial officer is not liable for having possibly acted in excess of his jurisdiction and because he did not timely take action to revoke appellant’s probation for his failure to make restitution of fifty ($50.00) dollars as required by the terms of his probation. In the case at bar, there was not a clear absence of all jurisdiction over the subject matter which is necessary before judicial immunity can be abrogated.

We further hold that even assuming arguendo that Judge Harrington should have placed the appellant on supervised probation under the jurisdiction of the Florida Parole and Probation Commission, appointed counsel for him and advised him of the exact period of his probationary period, these alleged errors were at most irregularities attending the exercise of the municipal judge’s original jurisdiction after he had acquired jurisdiction of the subject matter and person and were within the scope and limits of his jurisdiction.

The cases relied upon by the appellant can readily be distinguished. In Waters v. Ray, 167 So.2d 326 (Fla.App. 1st 1964), the plaintiff was testifying in the defendant-municipal judge’s courtroom regarding charges of failing to have his vehicle under control and causing an accident when the defendant asked that the plaintiff produce his driver’s license which the plaintiff did produce. Upon seeing it was a New York license, the defendant had the plaintiff immediately -arrested for not having a valid driver’s license. In that case, there clearly was no such offense of failure to have a valid driver’s license and no proceedings or charges had been instituted regarding this alleged failure to have a valid driver’s license. It was evident that the defendant-municipal judge, without any proceedings, formal or informal, having been instituted, had the plaintiff arrested for an offense which clearly did not exist. In Farish v. Smoot, 58 So.2d 534 (Fla. 1952), the defendant-municipal judge ordered the plaintiff rearrested after he had been released under a writ of habeas corpus issued by the circuit court upon the posting of a $500.00 bond, which the plaintiff posted, and the defendant was fully aware of the facts regarding the habeas corpus proceeding and the posting of the necessary bond. In other words, jurisdiction of the municipal court in that case had been superseded or completely suspended and had vested in the circuit court and the defendant was fully aware of these facts.

Consequently, in both Waters v. Ray, supra, and Farish v. Smoot, supra, the municipal court was wholly or totally without any jurisdiction over the subject matter.

Consequently, we hold that the trial court correctly dismissed the instant action, as to Judge Harrington, based upon judicial immunity. The public policy underlying this doctrine is obvious. Without such immunity, all judges’ decisions could be collaterally attacked in suits brought against them and the finality of judicial decisions would be impaired. Further, without judicial immunity, there would certainly be a chilling effect upon the independent decision making role of the judiciary and upon the willingness of qualified individuals to serve in judicial positions.

Additionally, our research has revealed another reason that this suit should be dismissed as to the appellee-City. A municipality has sovereign immunity regarding the judicial or quasi-judicial acts of its officials. See Hargrove v. Town of Cocoa Beach, 96 So.2d 130, at page 133 (Fla.1957); Middleton v. City of Fort Walton Beach, 113 So.2d 431 (Fla.App. 1st 1959).

In Hargrove v. Town of Cocoa Beach, supra, Justice Thornal, at page 133 of 96 So.2d, stated the following rule regarding the sovereign immunity of a municipality in relation to the judicial acts of its officials:

“We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions as illustrated in such cases as Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049, and Akin v. City of Miami, Fla.1953, 65 So.2d 54.”

As a caveat to this opinion, we would observe that the appellant had various available ' remedies, including the one of habeas corpus of which he did avail himself. Finally, we would state that nothing in this opinion is intended to pass directly or inferentially on the ultimate validity of the probation given the appellant and the procedural aspects and events regarding its imposition and revocation.

Accordingly, the final order appealed from is affirmed.

Affirmed.

OWEN and MAGER, JJ., concur.

      . Attorney General’s Opinion 072-377 (pages 647-648) dated October 30, 1972, indicates that a person convicted for violating a municipal ordinance cannot be placed under the supervision of the Parole and Probation Commission.

      . Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) which required counsel, was decided subsequent to the events which have given rise to this present action.

      . If the result reached by the trial court is proper on any theory, this court must affirm. Braren v. Lawyers’ Realty Abstract Co. of Sarasota, 196 So.2d 244, at page 245, and cases cited therein (Fla.App.2nd 1967), cert. discharged 206 So.2d 385 (Fla.1968).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David MALDONADO, a minor, et al., Appellants, v. JACK M. BERRY GROVE CORPORATION et al., Appellees.
    No. 74-957.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1975.

      Larry S. Stewart and Ira H. Leesfield of Frates, Floyd, Pearson, Stewart, Proen-za & Richman, Miami, for appellants.
    James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   PER CURIAM.

This is an appeal from an order granting a final summary judgment to Jack M. Berry Grove Corporation (Berry) and its insurance carrier.

This action resulted from an accident involving David Maldonado, a three-year old child. David had accompanied his parents, who were citrus pickers, to Berry’s grove. At the grove, David’s parents put him in a large tub while they filled other tubs with fruit. The citrus picking operation called for the tubs to be picked up by a piece of equipment known as a “goat” which travels through the grove and lifts the tubs with a hydraulic device. On this occasion, the goat driver, while operating the goat in reverse, struck David and severely injured him.

Berry had entered into an oral contract with Carl Wilburn, a contract fruit harvester, for the picking of the fruit. Wilburn provided all of the equipment and pickers necessary to accomplish the job. Wilburn owned the goat as well as the other equipment being used in the picking. Wilburn obtained the pickers by contracting with Romero Guiterrez to provide a picking crew. The driver of the goat was one of Gniterrez’s crew. David and his parents brought suit against Berry and Wilburn and Stoney’s High Lift, the manufacturer of the goat, as well as the respective insurance carriers for these parties.

At the outset, it should be noted that the theory of the plaintiff’s cause of action is not that of attractive nuisance. Hence, the liability of a landowner to young children under this doctrine is not applicable. See Crutchfield v. Adams, Fla.App. 1st, 1963, 152 So.2d 808. Berry had tried to discourage the several harvesters with whom it dealt from permitting their pickers to bring children to the groves. Nonetheless, Berry was aware that the practice was continued, at least to some extent. Therefore, the child could not be considered a trespasser. Cf. Libby v. West Coast Rock Company, Inc., Fla. App.2d, 1975, 308 So.2d 602. On the other hand, he could hardly be termed an invitee in the sense of the child who was injured in Burdine’s, Inc. v. McConnell, 146 Fla. 512, 1 So.2d 462, 1941. For purposes of classification, the child, David, would appear to fall most nearly within the category of an uninvited licensee as defined in Wood v. Camp, Fla. 1973, 284 So.2d 691. The duty owed to a licensee is to refrain from wanton negligence or wilful misconduct which would injure him, to refrain from intentionally exposing him to danger and to warn him of a defect or condition known to the landowner, but not open to ordinary observation by the licensee. Post v. Lunney, Fla.1972, 261 So.2d 146. Clearly there is no showing that Berry failed to carry out this duty.

However, the plaintiffs contend that there was an issue of fact regarding Berry’s exercise of control over the operator of the goat so as to create a master-servant relationship. This contention cannot be sustained. The record reflects that there were two types of crews picking fruit for Berry, one being a contract crew and the other known as the company crew. A contract crew was paid a higher rate per box because the contract harvester provided his own equipment, his own gas, his own repairs, and his own pickers. Since the company crew used Berry’s equipment, used Berry’s gas and oil, and had available to them Berry’s repairs, they were paid a lower rate per box for the fruit picked. Wilburn’s pickers were a contract crew.

Neither Wilburn, Guiterrez, nor the pickers was Berry’s employee. Berry made no payroll deductions for Wilburn or for any of the pickers. Berry paid Wilburn according to the number of boxes picked. Wilburn, in turn, paid Guiterrez according to the number of boxes his crew picked. Berry required Wilburn to carry liability insurance as a condition to permitting him to pick the grove. Berry had a supervisor who would tell Wilburn which grove he wanted picked and check periodically to see that the pickers were not damaging the trees. However, he exercised no supervision over the pickers themselves. The ultimate distinction between an employee and an independent contractor is whether the person is free from control with regard to the details of the engagement. Collins v. Federated Mutual Imp. & Hdwe. Ins. Co., Fla.App. 4th, 1971, 247 So. 2d 461. There is no doubt that Berry’s control over these pickers only related to the result. lean M. Light Interviewing Services, Inc. v. State, Fla.App.3d, 1971, 254 So.2d 411.

The plaintiffs also contend that even if Wilburn were an independent contractor, Berry had a nondelegable duty to see that his activities were carried out in a nonnegligent manner. Thus, in Florida Power and Light Co. v. Price, Fla. 1964, 170 So.2d 293, the court held that the work of constructing and energizing an electrical power distribution system was so inherently dangerous that a power company could not escape responsibility for injuries to third parties caused by the negligence of an independent contractor in the perform-anee of the work. The court held that the determination of whether a particular kind of work is to be regarded as inherently or intrinsically dangerous depends upon whether the danger “ ‘. . . inheres in the performance of the work. . . Despite the fact that accidents may happen from time to time, we cannot say that the picking of citrus fruit is inherently dangerous work. Likewise, the fact that Berry knew that the pickers sometimes brought their children to the grove does not bring this case within the principle that where an employer gains knowledge of a dangerous situation created by an independent contractor, it may incur liability through its failure to halt the operation or otherwise remove the danger. See Maule Industries, Inc. v. Messana, Fla.1953, 62 So.2d 737; Peairs v. Florida Publishing Company, Fla.App. 1st, 1961, 132 So.2d S61.

Since there were no genuine issues of material fact with respect to the liability of Berry, the judgment is

Affirmed.

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


text:
    Owen VINING, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y—151.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Upon considering the briefs and record, the final judgment is affirmed.

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


text:
    George G. VANDENBERGHE, Appellant, v. Samuel E. POOLE, Jr., Appellee.
    No. 74-731.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
    Rehearing Denied Dec. 12, 1975.
    H. Eugene Johnson, Tampa, for appellant.
    Edward C. Flood, Bartow, for appellee.
   PER CURIAM.

We have carefully reviewed the record on appeal and the respective briefs filed by the parties and find that the appellant has not shown reversible error in the order appealed. The order appealed comes to this court clothed with the presumption of correctness. The eminent trial judge was correct in his rulings of law and the findings of the trial judge are supported by competent, substantial evidence.

Affirmed.

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


text:
    Oliver EDWARDS, III, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-226.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1975.
    Richard W. Ervin, III, Public Defender, David J. Busch and Judith J. Dougherty, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record, the final judgment is affirmed.

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


author: PEARSON, Judge.

text:
    William E. WALKER, O.D., Petitioner, v. FLORIDA STATE BOARD OF OPTOMETRY, Respondent.
    No. 75-195.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 1975.
    Robert M. Brake, Coral Gables, for petitioner.
    Frederick B. Karl, Tallahassee, for respondent.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

William E. Walker, an optometrist, brings this petition to review a decision of the Florida State Board of Optometry which found him guilty upon two counts of a complaint alleging violations of § 463.11 (2)(a), Fla.Stat. and the rules of the Board and suspended him from the practice of optometry for one year, placed him on probation for five years and fined him the sum of $500.00. The two rules which Walker was found to have violated are 21q-1.290 and 21q-1.291. The evidence before the Board viewed in the light most favorable to its decision was that Walker maintained an office adjacent to that of an optician and that after having purchased the optician’s business, he did not, for a period of nearly two months, have an advertisement removed from the yellow pages of the telephone directory giving the name of the former optician’s office and that he did not secure the removal of the name of the optical business from two office directories posted at the building. The evidence shows affirmatively that the advertisement in the yellow pages could not have been withdrawn inasmuch as the period for the issuance of the telephone directories had not yet expired but that the listed telephone was disconnected and no reference number given. In addition, the evidence affirmatively shows that Walker had requested the building manager to remove the name of the purchased business from the office directory signs and further that Walker himself had physically removed the name of the purchased business from the door of the office.

Inasmuch as the gravamen of the offense charged was the securing of an advantage of the association by way of advertising, or other such business methods, with an optician and inasmuch as the offense charged was not simply that of being adjacent to an optician, we hold that the evidence in this case does not meet the requirement that the evidence must be clear and convincing in order to deprive a professional man of his means of livelihood. See The Florida Bar v. Rayman, Fla.1970, 238 So.2d 594; see also Zachary v. State, 1907, 53 Fla. 94, 43 So. 925, and State ex rel. The Florida Bar v. Bass, Fla.1958, 106 So.2d 77.

For the reasons stated, the petition for certiorari is granted and the order of the Florida State Board of Optometry finding petitioner guilty is quashed.

It is so ordered.

      . Section 463.11(2) (a), Florida Statutes, provides :
      “(2) ‘Unprofessional conduct’ for the purposes of this chapter is defined as any act or conduct that deceives or defrauds the public or any individual and includes, but is not limited to:
      “(a) The solicitation of practice by any means or in any manner (Emphasis added)

      . Rule 21q-1.290 dealing with “unprofessional conduct” states that “an optometrist shall be guilty of unprofessional conduct if he or she authorizes contracts for displays or contracts for any advertising in violation of the law or these rules.” Rule 21q-1.291 expands the definition of “unprofessional conduct.”


author: PER CURIAM. WALDEN, Chief Judge

text:
    Dalton WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1138.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Rehearing Denied Dee. 10, 1975.

      Larry Klein, of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, and Joseph Tomberg, Boynton Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and DOWNEY, JJ., concur.

WALDEN, C. J., dissents, with opinion.

WALDEN, Chief Judge

(dissenting):

Based on the facts of this case I would reverse and remand for resentencing.

Appellant was charged by information wth nine counts of buying, receiving or aiding in the concealment of stolen property, to wit: a heifer. At trial the owner was able to identify only seven of the nine heifers and the judge accordingly dismissed Counts Eight and Nine. The jury acquitted appellant of six of the seven remaining counts, finding him guilty of Count Seven.

The issue raised on appeal in generated by the interaction of Fla.Stat. §§ 811.16 and 811.17 (1973) Buying, receiving or aiding in the concealment of stolen property is a felony regardless of the value of the property received, Fla.Stat. § 811.16 (1973). However, Fla.Stat. § 811.17 (1973) , provides :

“Receiving stolen goods; punishment when offender makes satisfaction.— Upon a first conviction under § 811.16, and when the act of stealing the property is not by law a felony, if the party convicted of buying, receiving or aiding in the concealing of such stolen property, makes satisfaction to the party injured to the full value of the property stolen and not restored, he shall be guilty of a misdemeanor of the first degree, punishable as provided in § 77S.082 or § 775.-083.”

At trial there was expert testimony that the heifers in question ranged in value from $55, this amount constituting petit larceny, a misdemeanor, to over $100, amount required to prove grand larceny, a felony. The appellant contends on appeal that he should have been sentenced according to the lessened penalty provisions of Fla.Stat. § 811.17 (1973), inasmuch as it was impossible to determine the value of the property that he was convicted of illegally receiving due to the failure of the state to match each heifer to a corresponding count, When a defendant has been convicted of grand larceny and an appellate court determines that the proper monetary amount was not proven the correct procedure is to remand for resentencing for petit larceny, see Bornstein v. State, 54 So.2d 519 (Fla.1951). Analogously, I would reverse and remand for resentencing according to the lessened penalty provisions of Fla.Stat. § 811.17 (1973).

      . Fla.Stat. § 812.031 (Supp.1974) effective July 1, 1975.

      . Repealed effective July 1, 1975, Ch. 74-383, § 66, Laws of Florida (1974).


text:
    SOUTHERN AMERICAN FIRE INSURANCE COMPANY, a Florida Corporation, Appellant, v. Stanley SPITZER et al., Appellees.
    No. 75-82.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    John L. Hartnett, Coral Gables, for appellant.
    Courshon & Courshon, Miami Beach, Lapidus & Hollander and Robert J. Schaf-fer, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Southern American Fire Insurance Company appeals a judgment based upon a jury verdict. The judgment upon a policy of fire insurance, provided for separate recoveries to Stanley Spitzer and Washington Federal Savings and Loan Association. Stanley Spitzer was the beneficial owner and Washington Federal was the named mortgagee and loss payee. The judgment also included attorney’s fees.

Southern contends that its named insured, Virginia Stilphen, did not have an insurable interest and that, therefore, it was not liable on its policy. Stilphen was the nominee of Spitzer, who provided all the money for the purchase of the apartment. Stilphen held title and had assumed the mortgage on the premises. The court correctly held the insurance policy enforceable. See Cincinnati Insurance Company v. Palmer, Fla.App.1974, 297 So.2d 96; Spindler v. Kushner, Fla.App.1973, 284 So.2d 481.

Southern also urges that the attorney’s fees allowed Washington Federal and Spitzer were unauthorized under Fla.Stat. § 627.428. We cannot agree. See All Ways Reliable Building Maintenance, Inc. v. Moore, Fla.1972, 261 So.2d 131; see also Hoffman v. White, Fla.App.1973, 277 So. 2d 290; and cf. Travelers Insurance Company v. Tallahassee Bank and Trust Company, Fla.App.1961, 133 So.2d 463.

Appellant’s remaining points do not present reversible error.

Affirmed.


author: NATHAN, Judge.

text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Frank G. MURPHY and Paul H. Laufer, Appellees.
    No. 75-172.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    Stuart Simon, County Atty. and St. Ju-lien P. Rosemond, Asst. County Atty., for appellant.
    Simon, Hays & Grundwerg, Miarni, for appellees.
    Before HENDRY and NATHAN, JJ., and HALL, VINCENT T., Associate Judge.
   NATHAN, Judge.

This is an appeal by Dade County, the respondent, from a final order in a certio-rari proceeding, which granted a petition for certiorari filed by petitioners Frank G. Murphy and Paul H. Laufer, and quashed a resolution .of the Dade County Commission denying an application for a special exception to resubdivide and reface lots 113 through 119 of Biscayne Gardens, Section F, Part I, recorded in Plat Book 44 at Page 46 of the Public Records of Dade County, Florida.

Petitioners Murphy and Laufer are the owners of the aforedescribed property comprising 7 lots in Biscayne Gardens, Section F, measuring 700 feet x 515 feet, or 8.28 acres. The petitioners have owned this property since 1969 and one of the petitioners resides thereon. At all times material to this action, up to and including the present, the zoning on the land was RU-1 (single family residential) which permits building lots of 75 feet x 100 feet or larger. The existing use of the land would permit only 7 single family homes. The petitioners seek to subdivide the 7 lots into 23 lots, each larger than the minimum required. In the surrounding area, there are 75 x 100 foot lots and in nearby Biscayne Gardens subdivision there are existing lots smaller than those proposed by Laufer and Murphy. The County Zoning Department had determined that lots of 75 feet x 100 feet were the appropriate size for this land. The County Planning and Zoning Directors reviewed the application and recommended approval.

In February of 1974, the plat for 23 lots, was submitted to the county with an application for public hearing. It was heard by the Zoning Appeals Board and denied with prejudice. An appeal was then taken to the County Commission which sustained the decision of the Zoning Appeals Board. The petitioners sought review by filing a petition for certiorari in the circuit court. The petition was granted. In its order, the court made a finding that the County Commission acted arbitrarily and unreasonably in denying the application of the petitioners, forming the subject matter of the resolution, and that the petitioners were entitled to a special exception for resubdivision and refacing of the lots. The order directed Dade County to grant petitioners Murphy and Laufer the special exception sought in their application for public hearing to resubdivide and reface the property in question into 23 residential lots.

On appeal, Dade County contends that the trial court erred in granting the petition for certiorari and awarding the relief sought therein since the petitioners did not meet the guidelines for a special exception in that they failed to carry the burden of demonstrating that the County Commission’s affirmance of the denial by the Zoning Appeals Board is not fairly debatable.

We find that the facts presented in Dade County v. Williams, Fla.App.1973, 278 So. 2d 634, are similar to the facts presented in the instant case. In both cases, the trial court directed Dade County to grant a special exception allowing the appellee landowner to divide his property in accordance with the then existing RU-1 zoning, where the proposed subdivision includes lots compatible in size with other lots in the neighborhood. Although some lots in the neighborhood are larger than those proposed, there are also some which are smaller. As in the Williams case, the trial judge’s determination that the size of the proposed lots is compatible is supported by the record. The lot size sought by the proposed platting was as large or larger than that required by the existing RU-1 zoning.

In this case, as in the Williams case, supra, the issue is not fairly debatable since refacing the larger lots into smaller lots would be compatible with the area and is within the requirements of the existing RU-1 zoning.

Dade County’s contention of error based on procedural matters is not well taken.

Affirmed.


author: SCHEB, Judge.

text:
    Mike A. NEVILLE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1469.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1975.
    Rehearing Denied Dec. 15, 1975.

      R. M. Mannen, of Heth & Mannen, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The judgments are affirmed. A single sentence of 6 months to 4 years was imposed for both offenses: sale and possession of marijuana. Normally this would be an impermissible general sentence, however, in this particular case as the lower court was undoubtedly aware only one sentence was proper. Accordingly, we construe the judgment to impose a sentence of 6 months to 4 years for sale of marijuana.

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

      . Darden v. State, Fla.App.2d 1975, 306 So.2d 581.

      . Yost v. State, Fla.App.3d 1971, 243 So.2d 469.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Nancy D. Beach BENTON, individually and William Benton, as the husband of Nancy O. Beach Benton, Appellees.
    No. 75-190.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.

      Talburt, Kubicki & Bradley, and James K. Clark, Miami, for appellant.
    Gilbert, Silverstein & Heilman, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and HALL, VINCENT T., Associate Judge.
   PER CURIAM.

This is an appeal by the no-fault insurance carrier from an order of equitable distribution entered pursuant to Fla.Stat. § 627.736(3) (b). The order will be affirmed. This opinion is written to express our view as to the record ordinarily necessary to support such an appeal.

The insured received no-fault payments, then received a settlement after filing suit against the negligent party. The insured thereupon filed a “Petition for Equitable Distribution,” and served the petition on her no-fault insurance carrier together with a notice of hearing for the trial judge’s motion calendar. The insured and the carrier appeared at the time and place specified. There was no objection of any kind by the carrier to the procedure employed. The petition set out facts which, if proved, would have supported the discretion of the trial judge to make an award in the amount represented by the order appealed. The insurance company offered no evidence of any kind and, therefore, the cause was submitted upon the oral argument presented. The order appealed was entered and this appeal followed.

The burden of the carrier’s argument here is that the trial court departed from the guide lines set forth in State Farm Automobile Insurance Co. v. Hauser, Fla.App.1973, 281 So.2d 563, and Hartford Accident & Indemnity Co. v. Diaz, Fla. App.1974, 296 So.2d 504. We are unable to determine that question upon the record before us. The carrier argues that it is the duty of the moving party in the trial court to make a record that will justify the equitable distribution. See Liberty Mutual Insurance Company v. Guillet, Fla.App. 1974, 294 So.2d 1. This is true. Nevertheless, when we are presented with a record showing a petition alleging facts sufficient to support the discretion of trial judge in making the award and showing no objection to the procedure employed and revealing no effort by the party subsequently appealing the award to object or offer any evidence, then we hold that the dissatisfied party is estopped to object on appeal to the procedure employed. See Marsh v. Sarasota County, Fla.App.1957, 97 So.2d 312, and Paul v. Ranter, Fla. App.1963, 155 So.2d 402.

Affirmed.

      . The local rule of the Eleventh Judicial Circuit, approved by the Supreme Court, provides for a limited hearing on the motion calendar. Rule 3 is in part as follows:
      “All motions and other pleadings that cannot be summarily disposed of ex parte but require not more than five minutes to be heard, and not justifying a special appointment, shall be heard on Motion Days and after due notice (not less than 3 clear days) is given to the adverse party or his attorney of record.”
      *****

      . The petition if relying on matters outside the record should be verified.


text:
    Joshua GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1717.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    Phillip A. Hubbart, Public Defender, and Stanley M. Newmark, Sp. Asst. Public Defender, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See West v. State, Fla.App. 1971, 249 So.2d 505.


text:
    Doyle Lee WILKINSON, and Daniel H. Van Galder, Appellants, v. The STATE of Florida, Appellee.
    No. 75-232.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.

      Quinn & Payne, Key West, for appellants.
    Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Appellants appeal their convictions and sentences entered pursuant to a jury verdict finding them guilty of breaking and entering with intent to commit aggravated assault and aggravated assault. Van Galder was sentenced to five years and Wilkinson to fifteen years.

On the evening of April 25, 1974, Donald Mohler and Robert Black locked up their apartment and retired for the night. During the early hours of the following morning, they were awakened at knife-point by the appellants. Mohler and Black were tied and gagged. The appellants made known to them that they had come for some motorcycle parts in Black’s possession, which were formerly owned by the appellant, Wilkinson. The appellants threatened to kill Mohler if they didn’t get the parts. Thereupon Black was untied and he and Van Galder went to the home of Black’s parents to get the parts. Black’s mother was awakened by Black and Van Galder, and Black told her to get the police. Black and Van Galder returned to Black’s apartment. Shortly thereafter the police arrived and arrested the appellants. On May 15, 1974, the appellants were charged with breaking and entering a dwelling with intent to commit aggravated assault and aggravated assault. On June 28, 1974, they moved for a speedy trial; trial was set for August 5, 1974. When the case was called for trial, the appellants allegedly pleaded guilty to both counts in exchange for a one year County sentence for Van Galder and five years for Wilkinson. On August 8, 1974 the appellants, by way of a letter to the trial judge, moved to withdraw their guilty pleas, claiming coercion by the public defender. No further action was taken until October 31, 1974, when the public defender refused to move to withdraw the pleas and moved to withdraw as counsel. On November 20, 1974, the public defender’s motion was granted and present counsel was appointed. On December 20, 1974, a second motion to withdraw the pleas was filed; the motion was denied on December 30, 1974. Thereafter, the trial judge sua sponte withdrew the pleas. On January 13, 1975, the appellants moved for discharge pursuant to Rule 3.191 CrPR, alleging denial of speedy trial. The motions were denied and trial commenced on January 15, 1975, resulting in the judgments and sentences appealed.

On appeal, the appellants have contended that the evidence was insufficient to prove the offenses charged; that they should have been discharged under the speedy trial provisions of Rule 3.191 CrPR; that the difference in the sentences given them denied Wilkinson of equal protection of the laws; that the sentences given were a result of punitive judicial reaction to their withdrawal of their pleas; and that it was error to deny the appellants’ request to charge the jury on conditional threat.

A review of the record on appeal shows all points to be without merit. The record contains substantial competent evidence from which the jury could find the appellants guilty of the crimes charged. Crum v. State, Fla.App. 1965, 172 So.2d 24; Finney v. State, Fla.App.1969, 220 So.2d 673.

The appellants’ guilty pleas waived all non-jurisdictional defects. They were tried within a very short period after they were permitted to withdraw their guilty pleas. The guilty pleas and withdrawal thereof, in effect, delayed the appellants’ trial from the time of the original request by virtue of the appellants’ conduct.

In the instant case, the sentences are within the limits prescribed by law, and the propriety thereof cannot be reviewed on appeal. Chavigny v. State, Fla.App. 1959, 112 So.2d 910; Infante v. State, Fla. App. 1967, 197 So.2d 542; Weathington v. State, Fla.App.1972, 262 So.2d 724; Cole v. State, Fla.App.1972, 262 So.2d 902. Sentencing is within the discretion of the trial judge. The appellants interpret Slater v. State, Fla.1975, 316 So.2d 539 as holding that co-defendants being found guilty of the same crime must be given the same sentence in all cases. Slater v. State, supra, is a unique situation and must be limited to the facts therein. In death penalty cases the sentence is subject to appellate review by statute. This is not true of the crimes involved in the instant appeal. See: § 921.141(4), Fla.Stat.

The appellants’ assertion that the sentences were increased above that allegedly bargained for because of prejudice of the trial judge is just that: an assertion, with no factual support in the record. Cole v. State, supra; Lucio v. United States, 5th Cir. 1968, 394 F.2d 511; Baker v. United States, 5th Cir. 1969, 412 F.2d 1069; Hart v. Henderson, 5th Cir. 1971, 449 F.2d 183.

A review of the jury charges given in this case demonstrates the jury was correctly charged on the law and that the appellants were not prejudiced by the jury charges. See: Goswick v. State, Fla. 1962, 143 So.2d 817; Albright v. State, Fla.App. 1968, 214 So.2d 887; § 918.10(3), Fla.Stat., Rule 3.390(c), RCrP.

Therefore, the convictions, adjudications, and sentences be and the same are hereby affirmed.

Affirmed.


text:
    James MITCHELL, Appellant, v. The STATE of Florida, Appellee.
    No. 75-494.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    James Mitchell, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

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


text:
    Harvey Lee OUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 74-795.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    David F. Cerf, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HA-VERFIELD and NATHAN, JJ.
   PER CURIAM.

Harvey Lee Outler was indicted for the crime of second degree murder, tried by jury, found guilty of manslaughter and sentenced to 12 years in the state penitentiary. This appeal ensued.

The pertinent facts, briefly, are that in 1964, and thereafter, Outler was keeping company with Mabel. Mabel became quite possessive over the years. After she threatened to see “Outler dead rather than with another woman” and had made.several attempts to harm him with ice picks, knives and lye, Outler began to carry a gun to “protect himself.” In 1973, Mabel accosted Outler while he was seated in his automobile outside a liquor bar. Outler pulled a gun to scare her away from the door of the car. Mabel grabbed his arm, at which time the gun discharged, hilling Mabel.

Of the seven issues raised on appeal, we are of the opinion that three merit discussion: (1) That the court committed reversible error in permitting testimony of a collateral crime committed by Outler against Mabel, the decedent. (2) That the court erred in excluding expert and lay testimony about the reasonability of Outlets belief in voodoo. (3) That the evidence was insufficient to support a conviction of manslaughter.

As to the first issue, the record reflects that the prosecution asked Outler whether he had committed the crime of an assault on Mabel on November 26, 1970. Outler first denied it, then admitted to pleading guilty to the charge of assault and battery on Mabel. He was sentenced to time already served in jail. To this testimony Outler objected. An exception to the general rule of exclusion of collateral evidence which tends to suggest the commission of an independent crime is where the evidence sought to be adduced tends to prove that the act charged was not the result of accident, mistake or inadvertence. Williams v. State, Fla. 1959, 110 So.2d 654 and Andrews v. State, Fla.App.1965, 172 So.2d 505. Since Outler had committed a previous crime of assault and battery against Mabel and then was charged in this case with killing Mabel, it is apparent that the evidence of a prior offense was admissible.

Next, it is contended that Mabel had put a voodoo curse on Outler and, therefore, it was error to exclude expert and lay testimony in this regard. There is no question that Outler has the right to hold his religious and spiritual views. However, he does not contend, nor does the record reflect, that the shooting of Mabel was in self-defense. He consistently contended that it was accidental. Therefore, a reasonable fear of a curse, if proved, would be immaterial. There was ample evidence that Outler had reason to fear Mabel and, therefore, a reason to possess a gun.

Finally, a review of the entire record discloses that there was sufficient evidence for the jury to return a verdict finding Outler guilty of manslaughter. Roberts v. State, Fla. 1925, 90 Fla. 779, 107 So. 242; Dolan v. State, Fla. 1956, 85 So.2d 139.

Affirmed.


text:
    Robert L. COCHRAN, Appellant, v. FIRST INTERNATIONAL REALTY INVESTMENT CORPORATION, a Florida Corporation, formally known as First National Realty Investment Corp., Appellees.
    No. 75-888.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    Storms, Pappas & Krasny, Melbourne, for appellant.
    Wolf & Schoninger and David R. Weissman, Miami, for appellees.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on authority of First International Realty Investment Corporation v. Cochran, Fla.App. 1975, 314 So.2d 214.


author: HENDRY, Judge.

text:
    John Joseph CAPOFERRI, and Aetna Casualty & Surety Co., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 74-1644.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Preddy, Haddad, Kutner & Hardy, Miami, for appellants.
    Adams, George, Wood, Lee, Schulte & Thompson, Jeanne Heyward, Miami, for appellee.
    Before BARKDULL, C. J., HENDRY, J., and PIERCE, WILLIAM C., Associate Judge.
   HENDRY, Judge.

Appellants, defendants below, bring this appeal from a final summary judgment entered in favor of appellee, third party defendant below.

On March 10, 1973, appellant John J. Capoferri was driving, with express permission, an automobile owned by Vanessa Gordon. Upon leaving the Gulfstream Race Track in Broward County, Florida, Capoferri was involved in an automobile accident with another vehicle driven by Charles Dimon. As a result of that accident, Capoferri was charged with careless driving and later pleaded guilty to the charge in Traffic Court.

Following the accident, Capoferri reported the event to appellee Allstate Insurance Company and to appellant Aetna Casualty & Surety Company. Allstate had in full force and effect an insurance policy covering the automobile Capoferri was driving at the time of the accident, and Aetna had in full force and effect an automobile liability insurance policy covering Capoferri personally.

On May 21, 1973, Charles Dimon, plaintiff below, filed a complaint against Capo-ferri alleging that he willfully assaulted Dimon by deliberately driving his automobile into the automobile driven by Dimon, and asked for both compensatory and punitive damages. Allstate’s investigator took a sworn statement from Capoferri, in which he stated the mishap was caused by his foot accidentally slipping off the brake pedal and striking the accelerator and not by any willful act on his part.

’ Allstate initially undertook to represent Capoferri in the lawsuit as to any claims for compensatory damage, but not for punitive damages. Later, Allstate advised Capoferii by letter that the Allstate insurance policy specifically excluded bodily injury or property damage caused intentionally by the insured. This letter further advised Capoferri that the attorneys for Allstate would no longer represent him and that he should obtain his own counsel.

On January 29, 1974, Capoferri’s attorney filed an answer to Dimon’s complaint and filed a third party complaint against Allstate for breach of their insurance contract, seeking attorneys fees and expenses for defending the main action and prosecuting the third party complaint, and also indemnity from any judgment rendered against Capoferri as -a result of Allstate’s breach of contract.

The trial of Dimon’s claim against Ca-poferri took place on April 24, 1974, and the jury returned a verdict for Capoferri. Subsequently a final judgment was entered on his behalf.

On July 19, 1974, Allstate filed a motion for summary judgment on the third party complaint. The motion was granted and a summary final judgment for Allstate was entered on November 7, 1974. From this judgment, appellants bring their appeal.

Appellants contend that the trial court erred in entering its summary final judgment because an automobile insurance company cannot lawfully withdraw coverage and refuse to continue in the defense of an insured, based upon the bare allegations of a complaint charging the insured with assault and battery, when the company has substantial evidence from its own investigations to show that the lawsuit is groundless.

Appellee contends that the trial court was correct in entering summary final judgment in its favor, because Dimon’s sworn complaint alleged only an intentional act and Allstate’s policy specifically excluded coverage for bodily injury caused intentionally by the insured.

In Florida, the generally recognized rule is that the insurer is under a duty to defend a suit against an insured only where the complaint alleges a state of facts within the coverage of the policy.

A liability insurance company has no duty to defend a suit where the complaint upon its face alleges a state of facts which fails to bring the case within the coverage of the policy. Consequently, the company is not required to defend if it would not be bound to indemnify the insured even though the plaintiff should prevail in his action. Consolidated Mutual Insurance Company v. Ivy Liquors, Inc., Fla.App.1966, 185 So.2d 187; C. A. Fielland, Inc. v. Fidelity & Cas. Co. of New York, Fla.App.1974, 297 So.2d 122; Garden Sanctuary, Inc. v. Insurance Co. of No. Amer., Fla.App.1974, 292 So. 2d 75; St. Paul Fire & Marine Insurance Co. v. Thomas, Fla.App.1973, 273 So.2d 117; and Bennett v. Fidelity & Casualty Company of New York, Fla.App.1961, 132 So.2d 788.

Here, the only cause of action alleged in the Dimon’s complaint was one for intentional acts by Capoferri. The record reflects that intentional acts by the insured were not within the coverage of the Allstate automobile liability policy. Even if Dimon had proved all of the allegations in his complaint and taken a judgment against Capoferri, based on the rule set forth above, Allstate would have been under no obligation to indemnify Capoferri. Therefore, since Allstate had no duty to defend in this matter, the trial court properly granted judgment for Allstate on its motion for summary judgment.

Further, the initial entry of appearance by Allstate’s attorneys for appellant Capoferri does not of itself constitute a waiver of a defense to it under the policy it has issued. The company is entitled to a reasonable time in which to investigate and determine whether it desires to avail itself of any defense that may be found to exist. It appears to us that Allstate and its attorneys acted reasonably prompt in making its disclaimer and withdrawing from the action below. See Consolidated Mutual Ins. Co. v. Ivy Liquors, Inc., Fla. App.1966, 185 So.2d 187.

We have considered the record, all points in the briefs and arguments of counsel in the light of the ■ controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final summary judgment appealed is affirmed.

Affirmed.


text:
    Barbara HOLTEN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-465.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before Barkdull, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See: State v. Medlin, Fla. 1973, 273 So.2d 394.


text:
    Richard SHEPPARD, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1225.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, and Thomas G. Murray, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The defendant, Richard Sheppard, was found guilty by - a jury of second degree murder. He was sentenced to life imprisonment. On this appeal he urges: (1) that the trial court did not make a specific finding of the voluntariness of his confession, (2) that a statement given by him to the police was improperly admitted into evidence, (3) that one of his character witnesses was improperly excluded from testifying, (4) that the evidence of self-defense was sufficient as a matter of law to require a judgment of acquittal, and (5) that the trial court erred in failing to give a requested instruction.

There is no dispute based on this record that Sheppard, a seventeen year old male, was told to leave the victim’s “The Friendly Food Market,” and that having left, he thereafter returned to the store and shot the storekeeper dead. The defense countered with Sheppard’s own testimony that when he returned to the store, the victim opened fire on him and he returned the fire in self-defense.

Sheppard’s statement to the police was made the same day as the shooting when he went with his mother to the police station. At that time, a full recital of his constitutional rights was read to him and his mother before he made a statement. Mrs. Sheppard testified that she told the officer that she intended to get a lawyer for her son and that he should not make a statement before she got one. Later, when separated from his mother, Sheppard made a statement identical to that made upon the stand. In this statement, he did not confess to a crime but reported the shooting as he and his mother intended. He stated that he had shot the storekeeper in self-defense.

The defendant moved to suppress his statement given to the police upon the ground that it was taken in violation of his right to counsel. His mother also alleged that his written and oral statements “were not freely and voluntarily given.” A hearing was held upon defendant’s motion to suppress. There was conflicting evidence as to whether defendant’s mother requested that the defendant make no statement until she had procured a lawyer for him. There was no evidence that the defendant did not voluntarily make the statement. The trial judge denied the motion to suppress. We find no error in the ruling.

The defendant claims error because the trial judge did not make a separate finding that the statement was voluntarily given as required by McDole v. State, Fla. 1973, 283 So.2d 553. We hold that the McDole requirement is inapplicable in this case because (1) the statement to the police was not a confession but was a short report to the police accompanied by a statement that the shooting was justified at law, and (2) the only ground argued in the trial court was that the police had violated the defendant’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

The argument that the statement was inadmissible because of a violation of the Miranda holding is not supported by the record. The evidence is clear that after the explanation of defendant’s right not to make a statement until a lawyer was provided, Sheppard proceeded with the statement of his own free will. Cf. Brisbon v. State, Fla.App.1967, 201 So.2d 832.

The record also shows that the witness who did not testify as to defendant’s character was subpoenaed as a possible material witness by the State for deposition and did not appear. When the witness did not appear, defense counsel stated that he would “try to get the witness in.” The statement as to the witness’s proposed testimony was that he would primarily be a character witness. The testimony would have been cumulative and the court was acting within its discretion in excluding the witness. See Holley v. State, 1925, 89 Fla. 70, 102 So. 829.

Our examination of the record convinces us that there is no error under appellant’s point (4) above. Finally, we find that appellant’s point (S) above does not present reversible error based upon this court’s opinion in Bolin v. State, Fla. App.1974, 297 So.2d 317.

Affirmed.

      . The substance of the statement is as follows :
      “So the man looked out the door and he saw me so he say, ‘You’re back,’ and I said yes, like that. And I was fixing to leave and he reached up under the counter, grabbed his pistol and I grabbed mine, so we started exchanging fire.”


text:
    D & L HARROD, INC., successor in interest to Harrod Brothers Trucking, Inc., Appellant, v. U. S. PRECAST CORPORATION, Appellee.
    No. 74-1732.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    John P. Bond, Miami, for appellant.
    Worley, Gautier & Sams, Miami, for ap-pellee.
    Before BARKDULL, C. J., HENDRY, J., and PIERCE, WILLIAM C, Associate Judge.
   HENDRY, Judge.

Appellant, plaintiff in the trial court, seeks reversal of a final judgment entered against it in an action for damages.

In August, 1973, the predecessor in interest to appellant, Harrod Brothers Trucking, Inc., entered into a contract with appellee, defendant in the trial court, for the local truck hauling, i. e., hauling within the State of Florida, of appellee’s manufactured products. Harrod Brothers Trucking, Inc., began operating and hauling pursuant to said contract. Subsequently, in December, 1973, a new contract was entered into between appellant and appellee for the same services. This new contract was identical to the first contract, except the corporate name of Harrod Brothers Trucking, Inc., was changed to D. & L. Harrod, Inc., appellant herein, which continued hauling operations for appellee.

The record indicates that an application was filed by Harrod Brothers, Inc., with the Florida Public Service Commission pursuant to Chapter 323, Fla.Stat., F.S.A., for a contract carrier’s certificate to authorize it to engage in the hauling operations contracted for with appellee. The record further indicates that the State of Florida has not issued such certification to appellant.

The gravamen of appellant’s action for damages in the trial court was that appel-lee had breached its contract with appellant by failing to give the 160 day cancellation notice, as required by the contract. Appellant sought damages for the loss of profits for the 160 day period. It is from the judgment of the trial court denying the claim for damages that appellant appeals.

The basic question for this court to decide is whether or not the contract between the parties is contrary to the public policy of this state and therefore unenforceable. This question we answer in the affirmative.

When a statute declares it to be unlawful to perform certain acts without first obtaining a license permitting the performance of such acts and imposes a penalty for the violation thereof, or where the statute prohibiting certain acts is enacted for the protection of the public, contracts made for the performance of such acts without first obtaining the appropriate license, are unenforceable. Edwards v. Trulis, Fla.App.1968, 212 So.2d 893; 30 A.L.R. 834. The contract sub judice is one for transporting manufactured products by motor vehicle over the roads and highways of the State of Florida, the authorization for which is subject to the approval by certification of the Florida Public Service Commission under Chapter 323, Fla.Stat., F.S. A. Here, such certification was never obtained by appellant. In fact, appellant was arrested on at least two occasions for operating without such certification.

The enactment of Chapter 323, Fla.Stat., F.S.A., was for the protection of the public. State ex rel. Fohl v. Karel, Fla.1937, 180 So. 3; § 323.25, Fla.Stat., F. S.A. Section 323.35, Fla.Stat., F.S.A., provides that violation of the provisions of Chapter 323 constitutes a misdemeanor of the first degree.

In our opinion, since appellant was not properly certificated by the State Public Service Commission to engage in the trucking activities contracted for with ap-pellee, the contract sought to be enforced by appellant is contrary to the public policy of this state and therefore unenforceable. There is no legal remedy for that which is illegal itself. Local No. 234, etc., v. Henley & Beckwith, Inc., Fla.1953, 66 So.2d 818; Citizens Bank & Trust Co. v. Mabry, 1931, 102 Fla. 1084, 136 So. 714; Robert G. Lassiter & Co. v. Taylor, 1930, 99 Fla. 819, 128 So. 14; Gonzalez v. Trujillo, Fla. App.1965, 179 So.2d 896.

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

Affirmed.


text:
    Raymond SCARBOROUGH, d/b/a Sunny South Realty, Appellant, v. Claude C. LEMON et al., Appellees.
    No. 74-1653.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.

      'Weintraub & Weintraub, Miami, for appellant.
    Miller & Russell, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff below, brings this appeal from an order granting appellees’, defendants below, motion for summary judgment.

Appellant, a real estate broker, on behalf of appellee Claude C. Lemon, as guardian for minors Charles Buck Lemon and Claudia Gay Lemon of Lawrence County, Indiana, negotiated a deposit receipt agreement between appellee Claude C. Lemon and a purchaser for the sale of real property owned by the minors in Dade County, Florida. The agreement provided that the sale was subject to the approval of the Lawrence County Circuit Court, Indiana, in the Guardianship of the minor Lemons. The agreement also provided for a $6,000 commission to be paid to appellant for finding the purchaser.

Upon a petition to sell the property filed by appellee Claude C. Lemon as guardian, the Lawrence County Circuit Court entered an order denying the petition because the proposed sales price was for less than the appraised value of the property. Based on this order, appellant filed a bill of complaint in Dade County Circuit Court against appellees alleging basically that Claude C. Lemon caused appellees James H. Anderson and Edna J. Anderson to be appointed as appraisers to value the minors’ property knowing that they were not qualified to act as appraisers and their appraisal would be false and for the purpose of obtaining an order from the Lawrence Circuit Court precluding the sale and depriving appellant of its commission. Appellant also alleged that the Andersons acting in concert with appellees improperly appraised the property and were not impartial in their appraisal.

The parties then filed pre-trial stipulations and prior to trial the Dade County Circuit Court granted appellees’ motion for summary judgment. From the judgment, appellant brings this appeal.

Appellant contends that the trial court erred in entering summary judgment because there existed genuine issues of material facts. Appellees contend to the contrary.

After a careful review of the record in a light most favorable to appellant, we hold that no genuine issues of material fact existed and that, pursuant to Rule 1.510, Florida Rules of Civil Procedure, 31 F.S. A., summary judgment was properly granted.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authority cited, the summary judgment appealed is affirmed.

Affirmed.


text:
    The ROBERTS CO., INC., Appellant, v. P. B. O. LTD., Appellee.
    No. 75-335.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Lionel Barnet, Miami Beach, for appellant.
    Sam Daniels, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, J J.
   PER CURIAM.

The Roberts Co. Inc., appeals an order granting defense motion to strike count'll of its complaint for wrongful interference with a contractual relationship.

Plaintiff filed a three count complaint against P. B. O. Ltd. seeking compensatory and punitive damages based upon the breach of an alleged oral agreement by P B O to sell to the plaintiff the Playboy Plaza Hotel. P B O responded with a motion to strike all three counts, and the trial judge entered an order striking counts I and II.

Plaintiff argues that although the trial judge was correct in striking count I for breach of the alleged oral contract for sale of realty as same was barred by the Statute of Frauds, it was error to strike count II alleging tortious interference with a contractual relationship.

The contractual relationship with which defendant allegedly interfered consisted of the favorable arrangements plaintiff had made with Investors Diversified Services, a well established financier of real estate transactions, for financing the purchase of the hotel.

The tortious conduct alleged in count II is predicated upon defendant’s breach of an oral promise to convey realty and the Statute of Frauds has been held to bar such tort actions and, in essence, these actions are an attempt to recover for breach of an unenforceable contract. See Canell v. Arcola Housing Corp., Fla.1953, 65 So. 2d 849, 850; Neveils v. Thagard, Fla.App. 1962, 145 So.2d 495; Ashland Oil, Inc. v. Pickard, Fla.App.1972, 269 So.2d 714, 721.

In addition, the existence of a cause of action for wrongful interference with contractual rights is recognized only when the interference is by a third person. See Days v. Florida East Coast Railway Company, Fla.App.1964, 165 So.2d 434, 436. P B O allegedly having breached its contract with the plaintiff, this breach of contract may not be converted into a tort by allegation of wrongful interference with a favorable financial relationship.

Affirmed.


text:
    Allen STEARNS, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 75-79.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Eugene P. Spellman and Denis Dean, Miami, for appellant.
    Stuart Simon, County Atty., and Alan T. Dimond, Asst. County Atty., for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Stradley v. Andersen, 8th Cir. 1973, 478 F.2d 188; Burback v. Goldschmidt, Or.App.1974, 521 P.2d 5. Also see Dwen v. Barry, E.D.N.Y.1971, 336 F.Supp. 487, Reversed on other grounds; Greenwald v. Frank, 1972, 40 A. D.2d 717, 337 N.Y.S.2d 225; Cupit v. Baton Rouqe Police Department, La.App.1973, 277 So.2d 454.


text:
    Sumner ARONSON, Appellant, v. Roy AHRINGER et al., Appellees.
    No. 75-301.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.

      Gunn, Venney & Buhler, Miami, for appellant.
    Manker, Schenerlein & Stafford, Miami, for appellees.
    Robert V. Shea, Coral Gables, receiver.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiff takes this appeal to review an order directing him as principal and Travelers Indemnity Company as surety to pay a $4,000 receiver’s fee.

Sumner Aronson filed a complaint against the defendants Roy Ahringer and Metal Craft Awning and Shutter Company, Inc., to foreclose a chattel mortgage and prayed for an appointment of a receiver to take charge of the assets of the defendant company. A receiver was appointed and Aronson as principal and Travelers Indemnity Company as surety posted a $10,000 bond which reads in pertinent part:

“THE CONDITION OF THIS BOND is that if Plaintiff shall pay all costs and damages that Defendant sustains in consequence of Plaintiff improperly obtaining appointment of a receiver in this action, then this bond is void; otherwise, it remains in force.”

Having arrived at a tentative settlement of his dispute with the defendants, Aronson filed a motion to relieve the receiver of further duties. This motion was granted and the receiver was ordered to turn over the balance in his operating account to the defendants. After hearing the petition for final receivership fees, the trial judge awarded the receiver $4,000 and entered an amended order directing that the $4,000 receiver fee be paid from the assets of the defendant company or Aronson’s bond with Travelers Indemnity Company. Defendants and the receiver made demand upon Aronson for payment of the fee, but he refused. Defendants moved to order Aronson’s surety to pay the final receiver’s fee. After a hearing on this motion, the trial judge entered the appealed order directing Aronson and Travelers Indemnity Company to forthwith pay the final receiver’s fee. We reverse.

The general rule is that a surety is not bound beyond the scope of his engagement as limited by the instrument establishing his liability. See 30 Fla.Jur. Suretyship and Guaranty § 30 (1974).

The bond in the case at bar is conditioned very clearly upon all costs and damages that defendant sustains as a consequence of plaintiff improperly obtaining appointment of a receiver.

In the order discharging the receiver and awarding final receivership fees, the trial judge made no finding that the obtaining of the appointment of a receiver by the plaintiff was improper. This condition of the bond not having been met, the trial judge erred in entering the order directing plaintiff as principal and Travelers Indemnity Company as surety to pay the $4,000 receiver’s fee.

Reversed.


text:
    Fate CLARK, Appellant, v. The STATE of Florida, Appellee.
    No. 75-420.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.

      Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an adjudication of guilty of robbery.

Defendant contends the trial court erred in denying his motion to suppress his confession on the grounds that it was made while he was unlawfully under arrest. During the investigation of a robbery of a Zayre department store, the defendant’s name came up and two officers of the Dade County Public Safety Department went to the defendant’s home and advised him that although he did not have to comply, they requested him to accompany them to the police station to be photographed and fingerprinted for investigative purposes. The defendant voluntarily complied with the officers’ request. Upon arriving at the station, the defendant was read and read himself a pre-arrest form which he voluntarily signed waiving his right to refuse to be fingerprinted or photographed prior to arrest. The defendant was photographed and asked if he would submit to questioning. The defendant indicated his willingness, signed a constitutional rights warning form and waived his rights. After being interrogated for approximately two hours, defendant was placed under arrest and made a transcribed confession which was received into evidence at trial over defendant’s objection.

Defendant basically argues that for all practical purposes at the time he arrived at the police station he was under arrest, which he maintains was illegal because the police officers misrepresented their purpose in persuading him to accompany them to the police station. We cannot agree.

The elements of an arrest are (1) a purpose or intention to effect an arrest under a real or pretended authority; (2) an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) a communication by the arresting officer to the person whose arrest is sought of an intention or purpose then and there to effect an arrest; and (4) an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him (or her). Melton v. State, Fla. 1954, 75 So.2d 291.

We find that none of the above elements are present in the cause before us. First, when defendant was asked to accompany the officers to the police station, the defendant did so voluntarily in spite of the fact that he was informed that he did not have to go. Second, the officers testified at trial that they had no intention of placing the defendant under arrest when they went to his home. Third, upon arriving at the station, defendant read and signed a pre-arrest form which indicated that because he was not under arrest at that juncture he could refuse to be photographed or fingerprinted. Last, we note that defendant after being read his constitutional rights, voluntarily waived them and consented to the interrogation. In the alternative, defendant argues that if he was not lawfully under arrest at the time he made his written confession, there is nothing in the record to indicate that his oral statements during the interrogation were incriminating and, therefore, there was no probable cause to arrest him at the conclusion of the interrogation. We disagree, for the only reasonable conclusion which can be drawn from the defendant’s transcribed statement is that the same admissions were made orally to the officers during the course of the interrogation.

Affirmed.


text:
    Clarence BAKER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-598.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer and Karen Gottlieb, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty.Gen., and J. Robert Olian, Asst.Atty.Gen., and Diane E. Leeds, Legal Intern, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See McRae v. State, 1912, 62 Fla. 74, 57 So. 348; and the rule in United States v. Gaviria, 471 F.2d 1181 (5th Cir. 1973).


text:
    The STATE of Florida, Appellant, v. Dorothy Lillian OLIVER, Appellee.
    No. 75-521.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Richard E. Gerstein, State’s Atty., and John Lipinski, Asst. State’s Atty., for appellant.
    Essen & Essen and Benjamin R. Alter, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The State of Florida appeals an order of dismissal for failure to comply with defendant’s request for discovery.

Defendant was informed against for possession of cannabis [§ 893.13, Fla.Stat.]. At a hearing on December 2, 1974, defendant moved that the State fully comply with her request for full discovery and furnish her a copy of the affidavit for search warrant and the search warrant. The trial judge ordered the State to produce and deliver these documents within 15 days to the defendant. The State failed to produce the documents and on January 13, 1975, defendant filed a motion to dismiss which was granted by the trial judge after hearing argument of counsel. This appeal follows. We affirm. The State having failed to comply with the court order and the rules of criminal procedure (RCrP 3.-220(a) (1) (ix), it is within the discretion of the trial judge to dismiss the cause as a sanction [RCrP 3.220(j) ] and we find no abuse of discretion in granting defendant’s motion to dismiss in the case sub judice.

Affirmed.


text:
    ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellant, v. Arlyne FLICKINGER et al., Appellees.
    No. 75-475.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.

      Adams, George, Wood, Lee & Schulte, and David L. Willing, Miami, for appellant.
    Papy, Levy, Carruthers & Poole, Coral Gables, and Sheridan Weinstein, Engel & Mishkin, and Mitchell D. Aronson, Miami, for appellees.
    Before BARKDULL, C. J., HENDRY, J., and PIERCE, WILLIAM C., Associate Judge.
   HENDRY, Judge.

This is an interlocutory appeal by Allstate Insurance Company, defendant in the trial court, from a partial summary judgment entered on February 25, 1975. Ap-pellee Arlyne Flickinger was the plaintiff in the trial court, and appellees Guy Trapi-ni and Samuel Morse were defendants in the trial court along with appellant Allstate. The partial summary judgment on liability held that appellee Guy Trapini was an insured under the liability sections of a homeowner’s insurance policy issued by Allstate to Samuel Morse.

This case was instituted in the trial court when appellee, Arlyne Flickinger, as plaintiff filed a suit for bodily injuries. In her complaint, among other things, ap-pellee Flickinger alleged that on or about August 26, 1972, appellee Trapini was a guest in the home of appellee Morse. Flickinger also alleged that at the same time she was a guest in the Morse residence. The complaint further alleged that she and Trapini were dancing and that he danced so carelessly and negligently with her that he lost his balance, fell on top of her and caused her to strike the floor.

Concerning Allstate, Flickinger alleged that at the time of the accident an Allstate homeowner’s insurance policy was in effect ; that the policy insured Morse for his liability to her; and that pursuant to Florida law, she was a third party beneficiary of the Allstate homeowner’s policy. Our reading of the record shows that at no time did any party claim that Trapini was insured under the Allstate homeowner’s policy.

After a hearing before the trial court on appellee Flickinger’s motions for summary judgment, the court entered its partial summary judgment finding as a matter of law that there was coverage under the Allstate homeowner’s policy for Trapini. It is from this judgment that appellant brings its appeal.

Rule 1.510(c), Florida Rules of Civil Procedure, 31 F.S.A., provides, inter alia, that a summary judgment, interlocutory in character, may be rendered on the issue of liability alone, if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact.

We have considered the record, all points in the briefs and arguments of counsel in light of Rule 1.510(c) and the controlling principles of law, and have concluded that, at the present posture of the case in the trial court, it was premature for the trial judge to grant the partial summary judgment. Further, we are not passing upon the question of coverage for Trapini under the Allstate homeowner’s policy and that question may be further litigated in the trial court. See Wells v. Thomas, Fla.1956, 89 So.2d 259; Seaview Awning Shutters v. E. M. Disfield Inc., Fla.App.1958, 106 So.2d 597; 19 Fla.Jur. Judgments and Decrees, § 7; and 30 Fla. Jur., Summary Judgment, §§ 12 and 29. Therefore, for the reasons stated and upon the authorities cited, the partial summary judgment appealed is reversed and remanded for further proceedings.

Reversed and remanded.


author: HAVERFIELD, Judge.

text:
    Herman ROSENWASSER, Trustee, Appellant, v. Michael H. FRAGER and Marian Frager, his wife, et al., Appellees.
    No. 75-1170.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    See also Fla.App., 307 So.2d 865.
    Herman Rosenwasser, in pro per.
    Weissenborn, Burr & Hyman, Miami, for appellees.

      Before HENDRY, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Defendant condominium developer seeks review of an order granting plaintiffs’ motion to join additional parties plaintiff in this action for damages and rescission of a condominium recreational lease on the grounds of fraud, deceit and misrepresentation.

In May 1974 eight condominium unit owners as a class action filed suit against Herman Rosenwasser, the developer of their condominium and the lessor of a 99 year recreational lease. Plaintiffs’ complaint alleged that they were induced to purchase their individual units in reliance on representations made in a written brochure depicting lakeside swimming, sandy beaches and courtesy bus service, none of which has been provided. The complaint further alleged that plaintiffs were induced to enter a 99 year lease of recreational facilities ; nevertheless, to date defendant developer had taken no steps to construct these facilities. Plaintiffs prayed for damages, compensatory and punitive, and rescission of the lease. Defendant filed a motion to dismiss the complaint for failure to state a cause of action in that the suit was not maintainable as a class action. The motion was denied and on appeal this court reversed the denial and remanded the cause to the trial court to proceed as an action by the named plaintiffs. Upon remand, plaintiffs filed a motion to join additional parties which was granted. Defendant appeals from the granting of this motion and argues that the trial court abused its discretion by permitting the joinder of over 30 condominium unit owners as plaintiffs in a complaint based on fraud and deceit, when each unit owner entered into a separate and independent purchase agreement. We cannot agree.

Generally, multifariousness occurs when distinct and disconnected subjects, matters, or causes are joined in the same complaint or when parties, either as defendants or plaintiffs, who have no common interest in the subject matter of the litigation or connection with each other insofar as the issues in the litigation are concerned join in the same litigation. Carbonell v. American International Pictures, Inc., Fla.App.1975, 313 So.2d 417.

The joinder of the additional plaintiffs in the case sub judice does not make the complaint multifarious. All plaintiffs are condominium unit owners in the condominium complex which was developed by the defendant Rosenwasser, and each entered into a sales contract which has the identical provision pertaining to the lease of the recreational facilities which they allege defendant has not provided. Likewise, with respect to the fraud and deceit count, the complaint states that all plaintiff unit owners, as an inducement to purchase their units, relied upon the representations made in copies of the same sales brochure shown to each of them. Thus, it cannot be said that plaintiffs in the case at bar have no common interest in the subject matter of the litigation or no connection with each other insofar as the issues in the litigation are concerned.

Affirmed.

      . Rosenwasser v. Frager, Fla.App.1975, 307 So.2d 865.


text:
    Jerry Joseph BREMSER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-587.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Phillip A. Hubbart, Public Defender, Bennett H. Brummer and Karen Gottlieb, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The defendant appeals the denial of his motion for post-conviction relief filed pursuant to CrPR 3.850. The ground urged on the motion is that the court failed to determine the factual basis of defendant’s guilty plea. The judge who denied the motion was the trial judge in the cause. The record clearly reflects the voluntariness of the plea and the fact that the defendant understood the nature and consequences of his plea agreement; there is no showing of prejudice or manifest injustice. Therefore, the denial of the motion is affirmed upon authority of Williams v. State, Fla.1975, 316 So.2d 267.

Affirmed.


text:
    Alfred C. PICKETT, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1218
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Alfred C. Pickett, in pro per.
    Robert L. Shevin, Atty. Gen., for ap-pellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

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


text:
    Charles Cleve UNION, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-130, 74-131.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 1975.
    James A. Gardner, Public Defender, and Richard W. Seymour, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Charles Cleve Union appeals from separate convictions for robbery and using a firearm in the commission of a felony and consequent consecutive sentences.

From a careful review of the record herein we conclude that appellant has failed to make reversible error clearly to appear as regards the convictions herein. Accordingly, the judgments of guilt should be and they are hereby affirmed.

It is apparent, however, that the consecutive sentences are violative of the “single transaction” rationale confirmed in Cone v. State. In view whereof, the sentence for the robbery being proper as having been imposed on the higher offense, the cause must be remanded to the trial court with directions that he vacate and set aside the consecutive sentence for the separate offense of using a firearm in the commission of a felony.

Affirmed in part, reversed in part and remanded with directions.

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

      . (Fla.1973), 285 So.2d 12.