author: BOYER, Chief Judge. SMITH, Judge

text:
    The SCHOOL BOARD OF MARION COUNTY, Florida, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. Y-398.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Rehearing Denied May 18, 1976.

      John P. McKeever, Pattillo, MacKay & McKeever, Ocala, for petitioner.
    Curtis L. Mack, Tallahassee, for respondent.
   BOYER, Chief Judge.

The instant action involves the interpretation of certain provisions of the Public Employees Relations Act (PERA), Chapter 447, Florida Statutes. The specific issue is whether the Public Employees Relations Commission (PERC) acted properly in determining whether certain employees were “managerial and /or confidential” and thus not public employees entitled to the right of collective bargaining.

The proceedings began when the Marion Education Association (an employee organization registered with PERC as a bargaining agent) filed a “Recognition-Certification Petition” pursuant to Rule 8H-2.5, FAC, wherein it was alleged that The School Board of Marion County (Petitioner in this proceeding) had voluntarily recognized the association as bargaining agent for certain of the School Board’s employees. The “Recognition-Certification Petition” specifically defined the bargaining unit for which recognition was sought, that unit having been determined appropriate by both the Marion Education Association and the School Board. Within five days of the filing of the “Recognition-Certification Petition” by the Association, the School Board filed a “Petition for Determination of Managerial and Confidential Employees” pursuant to Rule 8H-2.10, FAC, requesting a determination that some 61 positions in the Marion County School System be designated as “managerial” and therefore exempt from operation of Chapter 447, Florida Statutes. None of the alleged “managerial” employees were in the bargaining unit defined in the association’s pending “Recognition-Certification Petition”. PERC considered both petitioner’s petition as well as the Association’s petition at its March 28, 1975 meeting.

PERC’s conclusions are embodied in two separate orders. In its order of April 9, 1975, it certified the bargaining unit recognized by the School Board, but included in that unit certain positions (five in number) found in the School Board’s petition for determination of managerial' and confidential employees and which had not been included in the unit originally agreed upon by the Marion Education Association and the School Board. The second order, which is dated April 22, 1975, designated as managerial six of the 61 positions identified by the School Board as managerial but denied managerial classification to the remaining 55 positions. Petitioner (the School Board) has filed a petition for writ of certiorari directed to the latter order but has chosen not to contest the former order.

As a threshold matter, petitioner argues that PERC did not have jurisdiction to enter its April 22, 1975 order which purports to classify employees as “managerial” or “non-managerial” where no question of collective bargaining by the employees so classified was properly before respondent. We initially look to Chapter 447, Florida Statutes, in order to determine what authority PERC has to designate employees as managerial or confidential. Clearly, it must, at some point, make such a determination. The provisions of PERA apply only to public employees. (F.S. 447.03, 447.201) According to F.S. 447.203(3), “ ‘public employee’ means any person employed by a public employer except: . (d) Those persons who are designated as managerial or confidential employees pursuant to criteria contained herein upon application of the public employer to the piiblic employees relations commission.” (Emphasis added) Unfortunately, the legislature did not specify in Chapter 447 the precise moment in the collective bargaining process at which the “Managerial-Confidential Employee Petition” was to be presented to PERC.

Stepping into the breach made by the legislative draftsmen, PERC promulgated Rule 8H-2.10, FAC, which applies solely to instances where the employee organization and the public employer agree as to the appropriateness of the bargaining unit and where the employee organization petitions PERC for certification. See F.S. 447.-307(1). Where the public employer refuses to recognize the employee organization, a different procedure is required. (F.S. 447.307(2)) PERC has not formulated the equivalent of 8H-2.10 in situations where a petition is filed pursuant to F.S. 447.-307(2), apparently feeling that F.S. 447.307 (3) adequately describes the proper procedure. Essentially, PERC’s position is that F.S. 447.203(3) (d) implicitly mandates that it do more than merely approve or reject a proposed bargaining unit in considering voluntary recognition petitions.

The pertinent statutory provisions fail to support PERC’s argument. In unmistakable terms, F.S. 447.307(1) states, “The commission shall review only the appropriateness of the unit proposed by the employee organization. If the unit is appropriate according to the criteria used in this part, the commission shall immediately certify the employee organization as the exclusive representative of all employees in the unit.” The foregoing language does not permit PERC to enlarge, reduce, or redefine a bargaining unit which has been agreed upon by an employee organization and a public employer. (See City of Titusville v. Florida Public Employee’s Relations Commission, et al., Fla.App.1st 1976, 330 So.2d 733, Opinion filed March 26, 1976.)

It is helpful to contrast the wording of F.S. 447.307(1) with that of F.S. 447.-307(3), which is applicable to non-voluntary certification petitions described in F.S. 447.-307 (2). According to F.S. 447.307(3) (a)l., once PERC finds that the “petition” is sufficient, it shall immediately define the proposed bargaining unit. Had the legislature intended PERC to have the authority to define or alter the proposed bargaining unit in voluntary recognition situations, it would have so stated. To the contrary, however, the legislature desired PERC to review “only the appropriateness of the unit proposed by the employee organization,” in considering a voluntary recognition petition.

PERC claims that illogical and disastrous results will ensue if its authority regarding certification of bargaining units pursuant to 447.307(1) is reduced to either approval or disapproval. The most obvious response to such a parade of horribles is that it is not for respondent any more than it is for this Court, to rewrite- a statutory scheme. Where the legislature has clearly expressed itself, the courts are without authority to alter the expression of legislative will. Moreover, the purported “parade of horribles” should not necessarily come to pass. Hopefully, in any order which concludes that the proposed bargaining unit is inappropriate, PERC will notify the parties in what respect the unit is deficient. (See City of Titusville v. Florida Public Employees Relations Commission, supra) The parties may then either incorporate PERC’s findings in a new proposed bargaining unit, or if no agreement is possible, may proceed under the election provisions of F.S. 447.-307(2) and permit PERC to define the proposed bargaining unit under F.S. 447.-307(3) (a) 1.

PERC further urges that the School Board is estopped from urging objections to PERC’s jurisdiction to make managerial/confidential determinations because the School Board voluntarily requested a ruling by PERC by filing a Managerial/Confidential Petition and subsequently failed to appear at the hearing regarding the petition. Generally, when a party subjects itself to the jurisdiction of an agency, it places itself in an untenable position when it subsequently objects to the jurisdiction of the agency whose aid it originally and voluntarily sought. (Ganaway v. Henderson, Fla.App.1st 1958, 103 So.2d 693) However, in the instant case, we cannot say that petitioner’s Managerial/Confidential Petition was filed “voluntarily”. PERC had held in a previous order that failure to comply with Rule 8H-2.10, FAC, in filing a Managerial/Confidential Petition constitutes a waiver of the right to subsequently raise the managerial/conf idential issue. (Northwest Florida Police Benevolent Ass’n., Inc. and Panama City, Order No. 75-181 (May 5, 1975)) Petitioner, therefore, had little choice but to file a Managerial/Confidential Petition in order to preserve its right to raise the issue. Petitioner should not now be penalized for taking an action which a prior order of respondent forced it to take.

Although we find that PERC had no authority to alter the unit and certify it as changed, as it did by its order of April 9, 1975, review of that order has not been sought and is therefore not affected by our decision in this case. However, the “managerial/confidential” order dated April 22, 1975 was appealed. We hold that for the reasons herein recited, that order was entered without authority and is therefore reversed. Further, Rule 8H-2.10 exceeds the statutory authority pursuant to which it was purportedly promulgated (F.S. 447.307(1)) and is therefore invalid.

Our resolution of the propriety of the April 22, 1975 order renders it unnecessary for us to resolve the remaining issues raised by the parties. There are, however, two other aspects of this case which merit comment. First Rule 8H-2.10, FAC, which has been extensively discussed above and held invalid, appears to be deficient in an additional respect. We are concerned that the rule, which embodies the procedure by which certain State employees are excluded from the collective bargaining process by their designation as confidential or managerial, purports to do so without affording the affected employees minimal due process protection. The right of an employee to participate in collective bargaining is an important one, whether it be considered fundamental (see NLRB v. Jones and Laughtlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937)), constitutional (see Section 6, Art. 1, Constitution of the State of Florida), or statutory in nature (see Chapter 447, Florida Statutes). Any rule which permits the exclusion of employees from the collective bargaining process should, at some point, give to the affected employees or their representative the opportunity to contest their designation as managerial and/or confidential.

Another troublesome aspect of the case lies in PERC’s “recognition-certification” order of April 9, 1975, whereby it determined to certify the bargaining unit agreed upon by petitioner and the Marion Education Association, but included in that unit five additional positions listed in the School Board’s petition for determination of managerial/confidential employees. Because that order has not been challenged, we are unable (as already recited) to directly consider it. However, we do note that the inclusion of the additional employees in the unit was clearly beyond PERC’s authority.

The writ of certiorari is granted and respondent’s order of April 22, 1975 is reversed, and the cause remanded for further proceedings consistent with this opinion.

SACK, MARTIN, Associate Judge, concurs.

SMITH, J., dissents.

SMITH, Judge

(dissenting):

The majority equates the Commission’s lawful determination of the School Board’s petition for managerial and confidential employee designations with a prohibited reidentification of the bargaining unit agreed on by the School Board and Marion Education Association, the employee organization. The Court has therefore vacated, not simply as erroneously decided but as void for lack of power, a ruling made by the Commission in response to a School Board petition which explicitly sought determination of an essential matter committed to the Commission by § 447.-203(3) (d), F.S.1975. Commission Rule 8H-2.10, Fla.Adm.Code, which advances the purposes of §§ 447.203(3) (d) and 447.-307(1), and which has survived legislative scrutiny under § 447.607, is also a casualty of the majority decision.

Florida’s Public Employee Relations Act, ch. 74-100, Fla.Laws, implemented the constitutionally-secured right of public employees to bargain collectively by establishing two approaches to the certification of employee organizations: the public employer and employee organization may agree on the constituency of an employee bargaining unit and on the organization’s representation, whereupon the Commission “review [s] only the appropriateness of the unit proposed . . . ,” § 447.307(1), F. S.; or, absent voluntary recognition, an employee organization having requisite support of employees in the proposed unit may petition the Commission to define the unit, identify the public employer and order an election, § 447.307(2), (3).

In considering the appropriateness of a proposed bargaining unit described in a petition for certification, whether the employer has voluntarily recognized an organization or not, the Commission’s duty is to evaluate the proposed unit by criteria listed in § 447.307(4), F.S., which include principles of efficient administration, the number of representatives and bargaining units with which the employer might have to negotiate, the community of interest among employees in the proposed unit, and the like. It seems clear, therefore, that the legislature charged the Commission with responsibility for the proper formulation of employee bargaining units in the public sector regardless of any agreements that may be struck by particular employers and employee organizations.

We have held that the Commission cannot unilaterally reconstitute the membership of a proposed unit when a petition for certification follows voluntary recognition of an organization under § 447.307(1); City of Titusville v. Florida Pub. Empl. Rel. Com., 330 So.2d 733, (Fla.App. 1st, 1976). That stricture assures that a relationship voluntarily assumed by an employer, its employees and their organization will not without their consent be materially transformed by the Commission. The Commission may either disapprove the proposed unit, if it is fundamentally unacceptable, or notify the parties wherein the unit is inappropriately defined and await an amended submission after notice to affected employees. See McGuire, supra n. 3, 1 FSU L.Rev. at 69, n. 213. Thus, although § 447.307(1) protects the integrity of voluntary agreements, the Commission retains power to define, directly or indirectly, all bargaining units.

It is inevitable that any Commission investigation of the appropriateness of a proposed unit will inquire whether employees have been included in the unit despite their conflicts of interest with others and whether employees have been excluded notwithstanding their community of interest with those included. Sec. 447.307(4)(c), (f), F.S. The proposed bargaining unit may be found to include “managerial” or “confidential” employees, who plainly are excluded from labor’s side of the bargaining table. Sec. 447.203(3) (d), (4), (5), F.S. Similarly, the agreed-upon unit may be found to exclude, as managerial or confidential, classifications of employees who plainly do not stand in that relation to the employer. Regardless of such agreements, the Commission has power and the duty to prevent purposeful or inadvertent abuses of the Act.

Rule 8H-2.10, Fla.Adm.Code, permits the employer to petition for a Commission determination of managerial and confidential employees coincidentally with the organization’s filing of a certification petition following voluntary recognition. The Commission has thereby recognized that its determination of the appropriateness of a proposed unit may impinge the statutory initiative granted to public employers in the identification of managerial and confidential employees:

“(3) ‘Public employee’ means any person employed by a public employer except :
“(d) Those persons who are designated as managerial or confidential employees pursuant to criteria contained herein upon application of the public employer to the public employees relations commission.” Sec. 447.203(3), F.S.197S (Emphasis added).

The Rule simply anticipates that in a voluntary recognition situation the commission will take care that no managerial or confidential employees are inadvertently included in the proposed unit and invites the public employer to participate in the process by timely identifying its employees considered to be managerial or confidential. The Rule does not imply that such an employer petition will be received only when there is also pending a question of certification; the Rule does not forbid an employer from seeking Commission approval of its concepts of managerial and confidential positions whenever such a determination may be useful; the Rule simply identifies one occasion on which the Commission will surely be concerned with the subject and invites the employer, whose views might not otherwise be made known, to participate in the determination as contemplated by Sec. 447.203(3) (d), F.S.

In this case, the School Board responded to the invitation of the Rule by submitting data identifying 61 employee job classifications, involving 350 employees, as managerial or confidential. The School Board thus petitioned for a determination that would exclude those employees from the proposed bargaining unit, consisting principally of classroom teachers, and from all other units which might later be formed of School Board employees. Taking a more restrictive view of the matter, the Commission determined that six of the employee classifications described by the Board are in fact of a managerial or confidential nature, that five have a community of interest with the classroom teachers classification predominating in the proposed bargaining unit and should therefore be included in the unit, and that the remaining fifty employee classifications, though not kindred to the proposed bargaining unit, should be made eligible to bargain collectively rather than classified managerial or confidential.

As the majority indicate, the Commission acted irregularly when it unilaterally placed in the proposed unit five employee classifications for which the Board sought managerial status. Sec. 447.307(1), F.S: The Board thus impermissibly abrogated the agreement between employer and employee organization and bypassed the beneficial provisions of its own Rules, including Rule 8H-2.04, supra n. 4, requiring notice to affected employees of the constituency of the proposed unit. But that error in the Commission’s unappealed order certifying Marion Education Association as representative of the revised bargaining unit does not vitiate either Rule 8H-2.10, pertaining to the determination of managerial and confidential employees on petition by an employer, or the Commission’s determination that fifty-five of the sixty-one classifications described by the School Board are neither managerial nor confidential.

Finding no basis for the majority’s sweeping invalidation of the Commission’s Rule and proceedings, I would reach and decide the merits of the School Board’s contention that the Commission applied inappropriate standards to identify managerial and confidential personnel among the Board’s employees.

      . Rule 8H-2.10 provides: “Determination of managerial or confidential employee. Whenever a public employer recognizes an employee organization pursuant to Part 2 of the rules and regulations of the commission, the public employer may .file a petition with the commission seeking a designation of managerial and confidential employee classifications. Such petition shall be filed within five (5) days after the service of the recognition-certification petition and shall contain a list, of all classifications to be excluded, and the facts necessary to make a finding that they are managerial or confidential employees excluded under the act.”

      . “Any employee organization which is designated or selected by a majority of public employees in an appropriate unit as their representative for purposes of collective bargaining shall request recognition by the public employer. The public employer shall, if satisfied as to the majority status of the employee organization and the appropriateness of the proposed unit, recognize the employee organization as the collective bargaining representative of the employees in the designated unit. Upon recognition by a public employer, the employee organization shall immediately petition the commission for certification. The commission shall review only the appropriateness of the unit proposed by the employee organization. If the unit is appropriate according to the criteria used in this part, the commission shall immediately certify the employee organization as the exclusive representative of all the employees in the unit.”

      . While there is no express provision in F.S. 447.307(3) stating that its provisions apply exclusively to F.S. 447.307 (2), the sections detailing the method of election of an employee organization clearly indicate that 447.-307(3) does exclusively apply to F.S. 447.-307(2).

      . In its Order No. 75-181, dated May 5, 1975, respondent ruled that Panama City’s Application for Determination of Managerial and Confidential Status of Employees, filed on April 10, 1975, was untimely and should have been filed on or before the date of the hearing (March 26, 1975) at which a hearing officer heard evidence concerning the appropriateness of the proposed bargaining unit.

      . The parties discussed two other issues, to wit: (1) Whether the managerial/confidential order was based on an erroneous interpretation of Section 6, Article I, Constitution of the State of Florida; and (2) Whether respondent, in formulating the managerial/confidential order, failed to consider the statutory criteria for “managerial employees” but instead erroneously employed different criteria.

      . The statute provides in part:
      “In the absence of legislative action to the contrary, all rules shall have full force and effect upon their approval by the commission.” Rule 8H-2.10 was not among those rescinded by the Commission upon objection by the Joint Administrative Procedures Committee of the Legislature.

      . “The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.” Art. I, § 6, Fla.Const.

      . “In the public sector, ... an inappropriate determination [of a bargaining unit] will not necessarily create immediate problems for the public employer, and consequently his self-interest might not dictate an objection to such units if they are requested by the employee organization. But inappropriate unit determinations, while they might not have an immediate adverse impact on the employer, can create havoc within a given governmental unit, ultimately costing the taxpaying public serious losses in funds and services.” McGuire, Public Employee Collective Bargaining in Florida — Past, Present and Future, 1 FSU L.Rev. 26, 68 (1973).

      .Commission Rules require that, before or simultaneously with an organization’s submission of a petition for certification, the employer post at “conspicuous locations where employees would be reasonably apprised” copies of the employer’s written acknowledgment of an employee representative, including “an adequate description of the unit for which recognition is being granted.” Rules 8H-2.03, 2.04, Fla.Adm.Code. If the constituency of the proposed bargaining unit is changed to meet Commission objections, re-compliance with these notice requirements would seem necessary.

      . While § 447.307(4) (a) and (b) discourage fragmentation of an employee force by proliferating bargaining units, the Act plainly recognizes that communities of interest may require more than one bargaining unit for a single employer. See. 447.307(4) forbids, except by mutual consent, the marriage in a single unit of professional and nonprofessional employees.


source: Caselaw Access Project

author: SACK, MARTIN, Associate Judge. BOYER, Chief Judge

license: Public Domain

text:
    Harrington CHANDLER and Altamease Chandler, his wife, Appellants, v. Annie D. CHANDLER, Appellee.
    No. Y-6.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Rehearing Denied May 18, 1976.

      Ray D. Helpling, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Langdon & Helpling, Gainesville, for appellants.
    S. David Cox and Don Peters, Gaines-ville, for appellee.
   SACK, MARTIN, Associate Judge.

The instant case concerns certain real property located in Bradford County. The issue is whether the trial court erred in basing its final judgment on an issue not raised in the pleadings.

In their complaint in ejectment, appellants alleged that they, rather than appellee owned the land in question. Appellee’s answer asserted that she was the true owner of the property by virtue of her husband’s purchase of the land from appellants and raised adverse possession as an affirmative defense. At trial, while the great bulk of the evidence presented by appellee related to her adverse possession defense, appellee testified that appellant Harrington Chandler told her sometime after her marriage to Harrington’s brother in 1968, that she and her husband could remain on the property until they were both 100 years old, so long as they paid the taxes. Appellant Harrington Chandler denied making the aforesaid promise to appellee and her husband. Further, Lily Chandler testified that after appellee’s husband died, appellee confided to her that Harrington Chandler was the owner of the disputed property and that Harrington was going to put her out if she did not pay rent.

In its final judgment, the trial court denied appellants’ complaint for ejectment as well as appellee’s claim for title by adverse possession, but did grant appellee a life estate in the property, because of appellee’s reliance on appellant Harrington Chandler’s representation to appellee and her late husband that they could live on the land until they were 100 years old so long as they paid the taxes. The trial court concluded that since appellants had failed to refute appellee’s testimony regarding the alleged representation, “it would be unconscionable to do other than equity under the circumstances and the facts as presented in this-case.”

The general rule is that a judgment based upon a matter entirely outside of the issues made by the pleadings cannot stand. Cortina v. Cortina, Sup.Ct.Fla.1957, 98 So.2d 334. Clearly, the defenses raised by appellee in her answer (title by adverse possession and/or through purchase of the property) did not include the defense of title based on reliance by appellee on representations made to her by appellant. Appellee relies on Rule 1.190(b), RCP, which provides that failure to amend the pleadings to conform to the evidence shall not affect the result of the trial of issues not raised by the pleadings but tried by express or implied consent of the parties. Thus, appellee claims that since the facts tending to show a life estate in appellee were litigated without objection by appellants and with their express or at least their implied consent, the final judgment should not be disturbed.

The crucial question is whether the “life estate” issue was tried by the express or implied consent of the parties. Our examination of the record reveals that it was not. From the outset, appellee sought fee simple absolute title to the property in question on the theories of prior purchase and adverse possession. While little effort was made to establish the prior purchase theory, a great deal of testimony was presented to prove the theory of adverse possession. Since the statement by appel-lee regarding appellant Harrington Chandler’s promise to let appellee and her husband stay on the land until they were 100 years old tended to disprove the adverse possession theory, it is not surprising that appellants failed to object at the time the statement was uttered. As indicated in their motion for rehearing before the trial court, appellants were understandably surprised when evidence apparently favorable to their case was used against them. We appreciate the well-meaning attempt of the trial judge to “do equity”. However, the final judgment in the instant case must be reversed because it is premised upon an issue not expressly or impliedly tried by both parties. See Neveils v. Thagard, Fla.App. 1st 1962, 145 So.2d 495.

Accordingly, the final judgment is reversed with directions that judgment be entered in favor of appellants.

MILLS, J., concurs, and BOYER, C. J., concurs specially.

BOYER, Chief Judge

(specially concurs).

I concur that reversal is required because the final judgment is based upon issues outside the pleadings and that under the facts recited in the majority opinion it cannot be said that the parties either expressly or impliedly agreed to try those issues,' though not framed by the pleadings.

However, in my view, it is not necessary for us to base our decision upon a strict construction of the pleadings. Even if the pleadings had raised the issue regarding a life estate owned by appellee and her late husband, the evidence would not support the conclusion reached by the trial court. The precise testimony of appellee relied upon by the trial court in awarding the life estate is: “He (appellant Harrington Chandler) said, ‘Annie D.,’ he said, ‘you can live on this land until you get to be 100,’ he said, ‘but I can’t deed it to you. You just keep up the taxes.’” While the above-quoted testimony is perhaps sufficient to establish an estate for years, it is insufficient as a matter of law to establish a life estate. An estate for years entitles one to the possession of land for some determinate period but is not a freehold estate, while a life estate is a freehold interest in land which may be sold, mortgaged, or otherwise encumbered. See 31 C.J.S. Estates §§ 12 and 30. Therefore, under no construction of the evidence may a life estate in appellee be sustained.


author: HENDRY, Judge.

text:
    Joseph B. REISMAN, Trustee and Lynwood E. Pounds, Appellants, v. Mario FERRO, Appellee.
    No. 75-700.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.

      Rosenberg, Rosenberg, Reisman & Glass, Miami, for appellants.
    Caidin, Rothenberg, Kogan, Kornblum & Benjamin, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Appellant, Joseph B. Reisman, trustee, defendant and counter-plaintiff below, and appellant Lynwood E. Pounds, defendant below, appeal a final summary judgment of the trial court granted in favor of appellee, plaintiff and counter-defendant below.

This action was commenced in the circuit court on October 8, 1974, when appel-lee filed a complaint for refund of a deposit paid under a deposit receipt agreement. Appellee’s complaint alleged the existence of a certain condition, i. e., a building moratorium preventing the issuance of a building permit, against which appellant Reisman had warranted, as grounds for rescission of a land sales contract and refund of the deposit paid under a deposit receipt agreement.

Appellants answered appellee’s complaint admitting, with some exceptions, the allegations concerning the transactions between the parties, but denied the existence of any building moratorium preventing the issuance of a building permit at the time set for closing. Appellant Reisman counterclaimed for specific performance of the land sales contract and, in the alternative, for damages for breach of the land sales contract.

Subsequently, on February 24, 1975, ap-pellee filed a motion for summary judgment supported by various affidavits, exhibits, and depositions. Thereafter, appellants filed an affidavit with exhibits in opposition to appellee’s motion. After a hearing, the trial court on April 16, 1975. entered a final summary judgment in favor of appellee and dismissed with prejudice appellant Reisman’s counterclaim. From the final judgment, appellants bring this appeal.

Appellants contend that the trial court erred in entering the final summary judgment because the evidence created a genuine issue of a material fact, i. e., whether a building moratorium existed which prevented the issuance of a building permit. Ap-pellee contends that there was no genuine issue of any material fact and he was entitled to judgment as a matter of law.

Rule 1.510, Florida Rules of Civil Procedure, 31 F.S.A., provides, inter alia, as follows :

“The judgment sought shall be rendered forthwith 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 and that the moving party is entitled to a judgment as a matter of law.”

In light of this rule, we have carefully reviewed the record and agree with the trial court’s finding that no genuine issue of material fact existed. Absent such issue, appellee was entitled to a judgment as a matter of law. See, e. g., Woroner v. Sochet, Fla.App.1971, 251 So.2d 296; Shafer & Miller v. Miami Heart Institute, Fla.App. 1970, 237 So.2d 310; 2 Fla.Jur., Appeals § 307, and 30 Fla.Jur., Summary Judgment § 12.

We have considered the record, all points in the briefs, and arguments of counsel in 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 summary final judgment appealed is affirmed.

Affirmed.


author: PER CURIAM.

text:
    John FLYNN, Appellant, v. Mary FLYNN, Appellee.
    No. 75-1394.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 26, 1976.
    Heller & Kaplan, Miami, for appellant.
    Quinton, Leib & Lummus, Miami, for ap-pellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

The appellant was found in contempt for failure to comply with certain features of an order entered in a domestic relations case. The order related to temporary alimony and child support.

The appellant contends he is entitled to a reversal because the order failed to make a specific finding that the appellant wil-fully disobeyed a prior ruling of the trial court, citing Ratner v. Ratner, Fla.App. 1974, 297 So.2d 344. This court has reexamined Ratner v. Ratner, supra, in light of the recent opinion by the Fourth District Court of Appeal in Garo v. Garo, Fla.App.1974, 327 So.2d 845 (1976). We have come to the conclusion that the opinion in Garo v. Garo, supra, sets forth the ' proper test to be made in a case of this matter and, following an examination of the appeal papers, we affirm the order of contempt here under review. Anything to the contrary found in this court’s opinion in Ratner v. Ratner, supra, be and the same is hereby receded from.

Therefore, the adjudication of contempt here under review be and the same is hereby affirmed.

Affirmed.-


author: BY THE COURT.

text:
    ATLANTIC INTERNATIONAL INVESTMENT CORPORATION, a Florida Corporation, Appellant (Defendant), v. Charles RUSSELL, Appellee (Plaintiff). ATLANTIC INTERNATIONAL INVESTMENT CORPORATION, a Florida Corporation, Appellant (Defendant), v. Alex HOUSLEY, Appellee (Plaintiff).
    Nos. AA-401, AA-402.
    District Court of Appeal of Florida, First District.
    April 19, 1976.
    Rehearing Denied May 18, 1976.
    Leon Stromire of Stromire, Westman, Lintz & Baugh, and Guyte P. McCord, III, and Sam Spector, Tallahassee, for appellant.
    James R. Dressier, Cocoa Beach, for ap-pellee.
   BY THE COURT.

Interlocutory appeals dismissed.

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


author: RAWLS, Acting Chief Judge.

text:
    John PEARCE, Petitioner, v. STATE of Florida, Respondent.
    No. BB-221.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Rehearing Denied May 18, 1976.
    Betty Owen Stinson, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., and Harold Stirling Richmond, Tallahassee, for respondent.
   RAWLS, Acting Chief Judge.

On the 15th day of January, 1976, the State Attorney for the Second Judicial Circuit filed an amended information charging that John Pearce (petitioner), Ronald Brooks and David Pfaff, on the 22nd day of September, 1973, in the County of Liberty, State of Florida, “did knowingly, unlawfully and feloniously agree, conspire and confederate one with the others to commit a felony of perjury in a judicial proceeding”. (emphasis supplied) Defendants Brooks and Pfaff stood trial and were acquitted. Subsequent to the acquittal of Brooks and Pfaff, petitioner Pearce sought dismissal of the foregoing information predicated upon the legal impossibility of convicting a single individual of conspiring with himself. The trial judge denied petitioner’s motion to dismiss citing Platt v. State, 143 Neb. 131, 8 N.W. 2d 849 (1943). Upon consideration of Pearce’s petition for writ of common law certiorari, and finding that a strong prima facie case had been alleged that the trial court had departed from the essential requirements of law, this court, in exercising its discretion, issued the writ.

The Nebraska case of Platt v. State, supra, does not support the trial court’s order. There, Platt and another named defendant were charged with conspiring with each other and with other persons in defrauding the state. Platt was tried separately and convicted. Subsequently, the other named party was acquitted. Platt contended that the subsequent acquittal of the other named conspirator mandated that his conviction be set aside. In rejecting this contention, the Nebraska court stated: “There can be no question that there must be a degree of dependent criminality between coconspirators to violate a criminal statute in order for a conviction to stand.” The Nebraska court then reasoned that a subsequent acquittal of a coconspirator would not vitiate Platt’s conviction. However, such is not the case here presented.

The gravamen of the offense in criminal conspiracy is the agreement between two or more persons. With whom is Pearce charged with conspiring? Clearly, it is Brooks and Pfaff. And just as clearly Brooks and Pfaff have been adjudged not guilty. The verdicts as to Brooks and Pfaff vitiate the very essence of the conspiracy: the combination or agreement of two or more persons. The rule in this jurisdiction was succinctly stated by Judge Hobson, speaking for the Second District Court of Appeal in Filer v. State, 285 So.2d 669 (Fla.App.2nd 1973), viz:

“But where the information or indictment alleges that the defendant and other individuals named as co-defendants were the sole perpetrators of the conspiracy, and the other individuals were acquitted, conviction must be reversed. Herman v. United States, 5th Cir. 1961, 289 F.2d 362; Romontio v. United States, 10th Cir. 1968, 400 F.2d 618; cf. Lubin v. United States, 9th Cir. 1963, 313 F.2d 419; United States v. Cabrera, 5th Cir. 1971, 447 F.2d 956; United States v. Sparrow, 10th Cir. 1972, 470 F.2d 885.”

Certiorari is granted with directions that the trial court grant the subject motion to dismiss.

MILLS and SMITH, JJ., concur.


author: McCORD, Judge.

text:
    William Lewis LAWLEY, Appellant, v. STATE of Florida, Appellee.
    No. Y-150.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Rehearing Denied May 18, 1976.

      C. Wayne Alford, of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals his conviction of robbery. He and codefendants Mains and Johnson were charged with robbery of a drug store and on the morning of the trial, Mains and Johnson pleaded guilty. The only evidence tying appellant to the crime was the testimony of a witness that appellant was the driver of the get-away car. Statements of this witness prior to trial did not implicate appellant and were in a number of respects inconsistent with her testimony.

At the trial, appellant took the stand in his own defense and in addition called Mains as a witness. He asked Mains a series of questions, some of which were for the purpose of attempting to show the jury that Mains would be a willing witness but could not testify because of a plea bargain agreement entered into between him, his attorney, Robert E. Tanner, Jr., co-defendant Johnson and his attorney, Gary C. Pajcic, the assistant state attorney, Julian F. Broome, Jr., and approved by the trial judge. This plea bargain agreement was stated on the record and appears in the transcript as follows:

“MR. PAJCIC: My name is Gary Pajcic. I represent James Johnson who is charged with robbery;.
He is going to enter a plea for IS years in the State prison per negotiations, and the negotiations are that he will not testify either for or against Mr. Lawley or for or against the State, and if subpoenaed to testify he has informed me he would be inclined to take the Fifth Amendment because any further testimony may lead to additional crimes being charged against him as a result of any testimony he may give.
THE COURT: All right.
MR. TANNER: I’m Robert E. Tanner, Jr-
I represent Charles Hobart Mains.
Mr. Mains will enter a plea of guilty as charged pursuant to negotiations with the State for a IS year sentence.
MR. BROOME: Recommendation.
MR. TANNER: As part of this plea and negotiation Mr. Mains states that he will not testify for or against Mr. Lawley, the co-defendant.
This term of years is part of the negotiation based solely upon this additional negotiation.
THE COURT: All right.
Let me make it very clear if either one of these gentlemen testify in the trial against Lawley—
MR. BROOME: Ór for Mr. Lawley.
THE COURT: For Mr. Lawley or against Mr. Lawley, then the Court is not limited in the sentence that it will mete out to these two individuals, Mr. Mains and Mr. Johnson.
Now, the thing that occurs to the Court, however, is suppose he is subpoenaed and he has waived his right not to testify.
MR. PAJCIC: Your Honor, Mr. Johnson could be charged with assault to murder and possession of a firearm by a convicted felon, as could these other individuals, and it would effect their — they would have to take the Fifth.
THE COURT: That’s what I want to find out; if there is another charge.
MR. BROOME: The State would submit it could file additional charges against all three of assault to murder and other charges.
The State would feel like if they plead guilty and have been sentenced, they are still charges that could be brought, and, if not, their cases have not been finalized and I think certainly they would have a right not to testify and get involved if more charges could be brought against them, and I think they could be and it wouldn’t be double joepardy.
MR. PAJCIC: All are convicted felons.
THE COURT: The only thing I was concerned with is suppose Mr. Edwards subpoenas them and announces he wants to inquire only into the robbery, or his client’s involvement in the robbery.
MR. BROOME: Well, the assault to murder came out of the robbery.
THE COURT: Then they would be entitled to claim the Fifth.
MR. BROOME: Yes, sir.
THE COURT: Okay.
Is that the agreement?
MR. PAJCIC: Yes sir.
MR. TANNER: Yes sir.
THE COURT: All right.
One at a time.
Is there anything you want to say?
MR. EDWARDS: Yes Your Honor.
Fifteen minutes ago I learned that the pleas would be entered by Mr. Johnson and Mr. Mains and it is my intention at this late hour to subpoena both of them, to call them as witnesses on behalf of Lawley.
I would object to any pressures by the State on the defendants not to testify on behalf of my client due to the fact of subjecting them to additional penalties.
Both of them have a 15 year sentence that has been worked out for them.
As soon as we can get a break I will issue subpoenas for the two gentlemen in question, Mr. Mains and Mr. Johnson.
THE COURT: As I understand it, Mr. Edwards, part of the negotiations for these two individuals included they would not testify.
Is that right?
MR. BROOME: Yes, Your Honor.
MR. EDWARDS: I believe it’s an illegal subject to negotiate because it’s jeopardizing witnesses for my client.
MR. BROOME: Let me say this:
I think if they did, based on what the State has, if they did take the stand and testify for Lawley, if Lawley put pressure on them to testify that he didn’t have anything to do with the robbery, I think they would be subjecting themselves to possible perjury, and it would be the advice of their attorneys, I think, not to testify one way or the other because of possible subjection to a perjury charge which would be filed by the State, even though they did plead guilty in this case.
MR. BROOME: Your Honor, as far as the negotiations the State has made with the attorneys, including Mr. Tanner, the attorney for Mr. Mains, the recommendation of the State is on Mr. Mains’ plea of guilty the State would be prepared to recommend a sentence of IS years in the State prison.
It is further negotiated between Mr. Tanner and the State that in the event that the co-defendant, Mr. Lawley, goes to trial and as a defendant subpoenas Mr. Mains as a witness for Mr. Lawley, it is understood by the State that Mr. Tanner will, and also Mr. Mains will, invoke the Fifth Amendment, that is, not to testify, because I have informed Mr. Tanner that Mr. Mains and Mr. Johnson are still subject to further charges by the State, to-wit: Assault to murder, the victim being the police officer, and the State would not file anymore charges against Mr. Mains or Mr. Johnson if they took the Fifth or didn’t testify one way or the other.
MR. BROOME: Your Honor, additionally the State could charge — legally charge Mr. Mains, who I believe has a prior felony conviction, with possession of a firearm by a convicted felon, in addition to the robbery which carries 15 years, and the State would not file this on Mr. Mains.
MR. TANNER: It’s my understanding part of the negotiations are that Mr. Mains will not testify for or against Mr. Lawley; that he will take the Fifth in the event that he is subpoenaed in any trial that may involve Mr. Lawley, and it is also my understanding this is part of the negotiations.
THE COURT: You have advised your client to testify would subject him to additional charges by the State, and, therefore, he would be entitled to claim the Fifth Amendment?
MR. TANNER: Yes, sir, Your Honor.
MR. BROOME: Your Honor, the basic negotiations between myself and Mr. Pajcic are essentially this: Based upon his plea of guilty as to the information of robbery the State would be prepared to recommend a sentence of 15 years in the State penitentiary.
It is further negotiated between myself and Mr. Pajcic that in view of the fact that the State could under the facts file an information on Mr. Johnson for assault to murder, even though-he says he didn’t shoot at him, but the State has testimony to the contrary, and based upon this other contrary information the State could legally file an information against Mr. Johnson for assault to murder, and also, I' believe, he is a convicted felon, and the State could file an information on him for possession of a firearm by a convicted felony, the State will not do this based upon the negotiations and his plea of guilty.
However, I have informed Mr. Pajcic if in the event he, Mr. Johnson, is subpoenaed by Mr. Lawley, if Mr. Lawley, goes to trial, as a witness, that if — Mr. Pajcic would inform his client to take the Fifth Amendment, and I believe he has agreed to do that, because if he does give testimony the State could and probably would file an additional charge of assault to murder and possession of a firearm by a convicted felon, even though he had plead guilty to robbery, and those are two different crimes and he could be prosecuted as such, and I have been informed by Mr. Pajcic he essentially would not testify'for Mr. Lawley based upon his possible subjection to new charges.
MR. PAJCIC: Your Honor, what Mr. Broome says is correct, and he will plead the Fifth Amendment if he is subpoenaed to testify because there is a possibility of incrimination as to possession of a firearm by a convicted felon and assault to murder, and he would be forced to take the Fifth Amendment and I would advise him to do that.
THE COURT: I want to make it clear that the sentence part of the negotiation, if there is a violation of the agreement between the State and the defendant’s counsel, then the court will not be bound by any sentencing limitation placed on it by the negotiations.”

In a nutshell, by the above plea bargain agreement approved by the court, the state agreed to let the co-defendants plead guilty and receive a IS year sentence, provided that after pleading guilty they would invoke the Fifth Amendment to the U. S. Constitution and not testify in appellant’s case. In addition the state agreed that if the co-defendants lived up to the agreement, the state would not prosecute them on other crimes. Also, the trial judge told them that he would not be bound by the 15 year sentence if they testified in appellant’s case.

In his defense, appellant called co-defendant Mains to the stand and asked him a series of questions, the answers to some of which would have tended to incriminate him and others of which would not. He was not allowed to answer any questions.

At the initial announcement of the plea bargain, appellant’s attorney, as above quoted stated:

“I believe it’s an illegal subject to negotiate because its jeopardizing witnesses for my client.”

He was correct. The public policy of this state as set forth in § 918.14, Florida Statutes 1973, provides in part as follows:

“(1) It is unlawful for any person, knowing that an official proceeding or investigation by a duly constituted prosecuting authority is pending, to endeavor or attempt to induce or otherwise cause a witness to:
* * *
(b) Withhold any testimony, information, document, or thing.
(2) If any person violates the provisions of this section by the use of force, deception, threat, or offer of pecuniary benefit to induce any conduct described in subsection (1), the violation shall constitute a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. In all other cases, a violation shall constitute a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.”

To suppress testimony is an improper condition of a plea bargain. Witnesses have a right to either invoke or not invoke the Fifth Amendment. It is a right that is personal to the witness and may be waived by him. For the state to coerce a witness to invoke his Fifth Amendment right and not give testimony which may be exculpatory of another defendant under the threat of the court imposing a greater sentence in a case pending against him or under the threat of prosecution of the witness for other crimes amounts to suppression of evidence by the state. Also, under § 914.04, Florida Statutes, the state can grant immunity to compel a witness to give testimony that would incriminate him, but it prostitutes justice for the state, by a plea bargain agreement, to promise a witness immunity from prosecutions on condition that he not testify in a case.

We of course, have no way of knowing whether the co-defendants would have given, or would in the future give, exculpatory testimony in appellant’s behalf had they not been coerced by the plea bargain agreement not to do so. Thus, this is not error for which this case can be remanded for a new trial as the improper plea bargain which the state has made with the two co-defendants and which the trial judge approved would infect a new trial to the same degree that it has infected this one.

Reversed with directions that appellant be discharged.

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

      . The parties have not raised any question here as to whether or not a guilty plea waives the privilege against self-incrimination. We have neither found nor been cited any Florida authority on this point and authority is divided elsewhere. See Annotation, 9 A.L.R. 3rd 990. It is not necessary that such question be resolved in this case.


author: MILLS, Judge. McCORD, Judge

text:
    Alberto PIZARRO, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-423.
    District Court of Appeal of Florida, First District.
    April 30, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

Pizarro appeals from a judgment of conviction based on a jury verdict finding him guilty of assault to commit involuntary sexual battery by use of threats or violence likely to cause serious personal injury, and from a sentence of fifteen years imprisonment.

We are called on to construe Section 775.011(3), Florida Statutes, which became effective on 1 October 1975, and provides:

“(3) In any case pending on or after October 1, 1975, involving an offense committed prior to such date, the provisions of the code involving any quasi-procedural matter shall govern, insofar as they are justly applicable, and the provisions of the code according a defense or mitigation or establishing a penalty shall apply only with the consent of the defendant.”

The offense for which Pizarro was convicted occurred on 29 March 1975. The jury returned its verdict on 25 July 1975, and he was adjudicated guilty by the trial court on the same date. He was sentenced on 4 September 1975. On 16 September 1975, he filed a notice of appeal to this Court.

The offense for which Pizarro was found guilty was prohibited by Section 784.06, Florida Statutes. However, this statute was repealed effective 1 July 1975. On that date, Section 775.011(2), Florida Statutes, became effective. It provides:

“(2) Except as provided in subsection (3), the code does not apply to offenses committed prior to July 1, 1975, and prosecutions for such offenses shall be governed by the prior law. For the purposes of this section, an offense was committed prior to July 1; 1975, if any of the material elements of the offense occurred prior thereto.”

Pizarro argues that if only the provisions of Section 775.011(2), Florida Statutes, were applicable, the court correctly adjudicated him guilty and sentenced him. But, because of the provisions of Section 775.011(3), Florida Statutes, the trial court erred, because his case was pending in this Court after 1 October 1975, and after that date there was no provision for a penalty for the offense of which he was found guilty.

“Pending”, as used in the statute, refers to trial and not to appeal. This legislative intention can be gathered from the use of the words, “defense”, “mitigation”, and “establishing a penalty”, used in the latter part of the statute. These words are applicable to the trial level only, not the appellate level. Therefore, this case was not pending in the trial court after 1 October 1975.

The statute uses the words “justly applicable”. To give these words their usual meaning, we are compelled to conclude that the legislature did not mean for a defendant to escape punishment for a crime of which he was convicted because the criminal code overlooked providing a penalty.

The Court did not err in sentencing Piz-zaro to fifteen years imprisonment, because his case was not pending in the trial court after 1 October 1975; therefore, the adjudication and the penalty imposed by the court were governed by Section 775.-011(2), Florida Statutes.

The judgment of conviction and sentence are affirmed.

BOYER, C. J., concurs.

McCORD, J., concurs specially.

McCORD, Judge

(concurring specially).

I agree with Judge Mills’ opinion and will add that to construe Section 775.-011(3), Florida Statutes, otherwise would render it in violation of Article X, § 9 of the Constitution of Florida which provides :

“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”

See also Castle v. State, Fla., 330 So.2d 10. Opinion filed March 17, 1976, not yet reported.


author: PEARSON, Judge.

text:
    VAC DEVELOPMENT CORPORATION, a Florida Corporation, Appellant, v. Luis ABELLEIRA et al., Appellees.
    No. 75-1457.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Bernarr C. Cowan, Miami, for appellant.
    Taylor, Brion, Buker & Greene, Miami, and Arnaldo Velez, Hialeah, for appellees.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

VAC Development Corporation brought suit against Cecilio Castillo seeking a judgment of rescission of a,, mortgage given by VAC to Castillo to cover advances. Castillo counterclaimed seeking a judgment of foreclosure. The trial judge, in an attempt to settle the equities between the parties, granted the following relief: (1) “can-celled’’ the mortgage which secured an indebtedness stated to be $200,000.00, and (2) found that the corporation owed Castillo in the amount of $112,411.80, for which he declared that Castillo had a lien” upon all the assets of VAC Corporation. The plaintiff VAC Corporation has appealed urging as error that the court improperly conducted a partial accounting of outstanding debts between the parties and declared a lien outside of any mortgage upon all corporate assets. The defendant-counter-claimant Castillo has cross-appealed urging as error that the court, having determined that money was due him, should have foreclosed the mortgage for that amount.

Castillo owns one-third of the stock of VAC. He has advanced money and transferred land to the corporation. The affairs of the corporation and Castillo’s advances have been handled in an unbusi-nesslike manner. There is evidence in the record that the face amount of the mortgage note does not accurately represent the amount advanced by Castillo. In addition, it is clear that Castillo has defaulted on at least one of his undertakings, which was included as an advance to the corporation in determining the amount of the mortgage indebtedness.

The efror in this case consists of a failure to limit the evidence to matters concerning the mortgage which was in issue. See Cortina v. Cortina, Fla.1957, 98 So.2d 334; Cravero v. Florida State Turnpike Authority, Fla.1956, 91 So.2d 312; and Rine v. Rine, Fla.App.1970, 240 So.2d 655. It is clear from the judgment entered that it does not attempt to settle all the equities between the parties but it is unclear whether the $112,411.80 found to be due ■ Castillo from the corporation is only for the indebtedness due on the mortgage. A judgment of foreclosure that is “vague and indefinite in its terms” may require a reversal by the appellate court. See Guaranty Co. v. Luning, 95 Fla. 103, 116 So. 9 (1928). If that amount is due upon the mortgage indebtedness, then the lien of the mortgage covers the property encumbered by the mortgage and not the general assets of the corporation. If that amount is due to Castillo for debts outside of the indebtedness for which the mortgage was executed, then a general accounting for all debts between the parties must be had. A third possibility exists, that is, that the court may find, as it apparently did, that Castillo is equitably estopped to foreclose the mortgage. If that is true, then the lien of the mortgage is discharged and the indebtedness would be subject to judgment and execution unless there are countermanding equities.

Accordingly, the judgment appealed is reversed and the cause remanded for the determination of the issues set forth.

Reversed and remanded.

      . Execution was not authorized.

      . It appears from the briefs and argument in this court and the judgment appealed that the remaining parties appellee have only a nominal interest in the subject matter.

      . Neither party asked for a general accounting in its pleadings, nor does it clearly appear that it was had by common consent.


text:
    Robert Earl TILLER, Appellant, v. STATE of Florida, Appellee.
    No. Z-488.
    District Court of Appeal of Florida, First District.
    April 30, 1976.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

We are bound to agree with Tiller’s assertion that the marijuana seized by officers in a search of Tiller’s wrecked vehicle should have been suppressed as evidence in his prosecution for possession of more than five grams of the substance. That, however, does not avail Tiller, who appeals from a judgment entered on his plea of nolo contendere, reserving only the right to assign error in the trial court’s denial of his motion to suppress the marijuana found in his automobile.

The record also shows that other marijuana was found by officers at the wreck scene in circumstances permitting an inference that Tiller possessed it in the automobile before the wreck. Tiller made no motion to suppress the use of that material as evidence and the record contains no representation by the state which would permit us to find that Tiller’s prosecution was predicated entirely on the fruits of the illegal search. The conviction, entered on a plea which did not contest Tiller’s possession of the marijuana exceeding five grams, will be affirmed.

We are authorized to decide contested questions of law, such as the Fourth Amendment question presented here, when the trial court determines to accept a plea of nolo contendere from an accused who wishes to reserve appellate rights concerning that question of law. State v. Ashby, 245 So.2d 225 (Fla.1971). This case demonstrates that the remedy of appeal cannot be afforded such an accused when the search and seizure question he seeks to reserve for appellate determination is not dispositive of the case. The record at the time of the tender of the plea of nolo con-tendere should show clearly that the state’s case against the accused cannot succeed without use of the evidence sought to be suppressed. Otherwise, appellate courts will be placed in the untenable position of rendering advisory opinions and the disposition of criminal cases will be unacceptably delayed.

AFFIRMED.

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


text:
    John DREW, Appellant, v. INSURANCE COMMISSIONER AND TREASURER, Appellee.
    No. X-427.
    District Court of Appeal of Florida, First District.
    April 30, 1976.
    Robert B. Staats, of Staats & Nabors, Panama City, for appellant.
    Robert B. Lester, III, Quincy, S. Strome Maxwell, and Raymond F. Behling, for appellee.
   RAWLS, Acting Chief Judge.

John Drew, a licensed insurance agent, seeks review of an administrative order entered by the Insurance Commissioner imposing an administrative fine of $2,250.00 and placing him on probation for a period of two years.

Drew is licensed by the Insurance Commissioner as a general lines and an ordinary life, including disability, insurance agent. He was employed either as a “direct lines agent”, or an “independent agent” and his earnings were based upon a percentage of the insurance premium, usually fifteen percent in the case of automobile insurance, which is the only type of insurance involved in this appeal. At some point in time, Drew decided the premium commissions he received from various insurance companies were not sufficient to compensate him for certain overhead expenses, such as long distance telephone calls, time and clerical help in servicing policies, losses on bad checks in which he not only loses his commission but loses the entire premium, and time spent for selling policies for which he is unable to collect commissions when the policies are subsequently cancelled. Drew, after consulting his attorney, initiated a charge to his customers of a “contingency fee” of $10.50. In May, 1974, Drew met with a deputy commissioner of the Insurance Department, who advised him that he was of the opinion that the contingency fee was illegal. Drew immediately ceased collecting any such fee. Nevertheless, in August of 1974, the Insurance Commissioner filed formal charges against Drew alleging that on seven different occasions he had, in procuring the sale of automobile insurance, extracted from the purchaser of the insurance a premium plus a contingency fee of $10.50. The Insurance Commissioner contended that on each occasion this collection by Drew was unlawful in that:

Count I: (a) He knowingly collected as a premium a sum in excess of the charge applicable to such insurance (F.S. 626.-970[2]);
(b) He collected a service fee (F.S. 626.970 [2]);
(c) He willfully used his license to circumvent the requirements of the insurance code (F.S. 626.611 [4]) ;
(d) He demonstrated lack of fitness or trustworthiness to engage in the business of insurance (F.S. 626.611 [7]);
(e) He committed fraudulent or dishonest practices (F.S. 626.611 [9]) ;
(f) He misappropriated money belonging to others in the conduct of business under his license (F.S. 626.611 [10]) ;
(g) He violated a provision of the insurance code in the dealing under his license (F.S. 626.621 [2]); and
(h) He failed to properly account for funds belonging to insurers or others (F.S. 626.561).
Count II: In explaining to a customer and charging a contingency fee of $10.-50, Drew violated Florida Statutes 627.-403, 626.611(4), 626.611 (7), 626.611(9), 626.611(10), 626.621(2) and 626.561. “Charge I” is fully incorporated by reference.
Counts III, IV, V, VI and VII charge Drew with similar transgressions except each count names a specific individual. These counts also incorporated by reference “Charge I”.

Distilling the charges into the essence of Drew’s alleged transgressions, it is that he collected from seven named individuals a contingency fee of $10.50 each, which he candidly admitted. It appears, to use an appropriate colloquilism, that the Insurance Commissioner “threw the book at him”.

The first point raised by Drew is that the hearing procedure afforded did not comport with elemental principles of “due process”, because he' was subject to “house justice”. The administrative process utilized did not, as a matter of law, deprive Drew of a fair and impartial hearing. However, the transcript of the proceedings discloses a total lack of impartiality on the part of the hearing examiner. Drew called one witness other than himself. On direct examination that witness’s testimony encompassed six and one-half pages. The commissioner’s trial counsel’s cross examination of this witness is reported in three and one-half pages. The “impartial” hearing examiner then proceeded to cross examine the witness and, in many instances, badgered her for a total of fourteen pages. Similar conduct is reflected in the examiner’s extensive cross examination of Mr. Drew. An administrative proceeding should provide a citizen with a fair, open, and impartial hearing. Such was not allowed Mr. Drew in the instant proceeding.

At the outset of the hearing, Mr. Drew stipulated that he sold insurance to the persons named in each charge, that he collected the premiums from each of these persons as alleged in each charge, and that he collected a contingency fee in addition to the premium in each charge. Thus, the evidence in this case is unquestionably sufficient to support the examiner’s finding that Mr. Drew was guilty of violation of Chapter 626, Florida Statutes, by charging and collecting a contingency fee of $10.50 from each of the seven named purchasers of automobile insurance.

Upon fully reviewing this record, we address ourselves to a consideration of the severity of the punishment meted out to Mr. Drew. As in Rogers v. King, Mr. Drew consulted with his attorney prior to instituting the contingency fee charge, and upon being advised by the deputy commissioner that in his opinion such constituted a violation, Drew immediately desisted from such practices. Upon the authority of Rogers, supra, we modify the order of the Insurance Commissioner. Paragraph one, requiring Mr. Drew to pay an administrative monetary fine of $2,250.00; paragraph two, placing Mr. Drew on probation; and paragraphs three (a) and four, specifying certain terms and conditions of probation, are hereby quashed. Paragraphs three (b) and three (c), requiring Dr. Drew to refund the contingency fee to each customer from whom the fee was collected, and paragraph three (d), requiring Dr. Drew to cease and desist from violating insurance rules, regulations and laws, are affirmed.

MILLS and SMITH, JJ., concur.

      . See Florida Statutes 626.611(4), (7), (9) ; 626.621(2); and 626.970(2). .

      . The order recites: “. . . (such amount represents administrative monetary fines of $250.00 each as to Charges I, III, V, VI, VII and $500.00 each for Charges II and IV)

      . At the hearing, Drew stated: “.
      Another thing is if a person came in and tendered me with a bad cheek in payment and I sent in my agency cheek which I did and if this check was fraudulent then the company not only kept my check, they sent my money back to the individual unless I could get a power of attorney requesting the money come to me which was difficult. So I not only worked for free in some occasions, I contributed to the company’s welfare with no return whatsoever, as a matter of fact, it’s a loss to myself.”

      . Drew had his customers sign the following document:
      “Agent Sales Commission is earned at point of sale. The minimum earned contingency is $10.60 or at an earned rate of $10.50 per hour, whichever is greater.

        “CANCELLATION

      “No flat cancellation after inception. When policy cancellation is requested by the producer, premium finance company, or by the named insured, the effective date of cancellation will be no earlier than 12:01 A.M. on the date of postmark of cancellation request. If cancelled, the minimum agency cancellation charge will be $10.50 or 17% percent of the total premium refund amount, whichever is greater. This cancellation charge is applicable to all policies, regardless of term, and to each item insured. Cancellations for ANY reason other than at the Producer’s or at the Insuring Company’s request are short rate. Original policy, lost policy release, or written request of the insured is necessary where requested by insuring company.”

      .The notice and charges which encompassed six legal size pages have been summarized.

      . The hearing examiner was an employee of the Insurance Commissioner as was the trial counsel.

      . Buchman v. State Board of Accountancy, 273 So.2d 122 (1 Fla.App.1973).

      . At one point, the examiner stated to Mr. Drew: “You’re doing yourself no good and I’ll put it on record by not trying to answer question, running around in circles.”

      . State v. Seaboard Air Line Ry. Co., 111 So. 391 (Fla.1927) ; See also Ford v. Bay County School Board, 246 So.2d 119 (1 Fla. App.1970) ; and Buchman v. State Board of Accountancy, 300 So.2d 671 (Fla.1974).

      . Rogers v. King, 161 So.2d 258 (1 Fla. App.1964), cert. discharged 176 So.2d 65 (Fla.1965).


author: MAGER, Judge.

text:
    In re ESTATE of Stanton GRIFFIS, Deceased (two cases).
    Nos. 75-1403, 75-1434.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.

      Coe & Broberg, Palm Beach, and Chester Bedell of Bedell, Bedell, Dittmar & Zeh-mer, Jacksonville, for appellant.
    I. Ronald Horowitz, New York City, Cromwell, Remsen, Pfaffenberger, Gordon & Dahlmeier, Riviera Beach, and Edwin O. Simon of Redfearn & Simon, Miami, for appellee.
   MAGER, Judge.

The issues to be determined in this appeal involve the validity of the revocation of two codicils by the testator and the legal effect of such revocation (if valid) upon a former will and codicil thereto, i. e. was there a revival or re-establishment.

At the outset it should be noted that a new Florida Probate Code has been adopted, effective January 1, Í976. Specific provisions of the new Code address themselves to the issues involved in this appeal, but such provisions not being operative until after January 1, 1976, are not dispositive of this case (see in particular §§ 732.506 and 732.508, F.S.). Our disposition, therefore, is based upon particular facts of this case and the application to those facts of the law existing at the time of the death of the testator.

In the instant situation the testator executed a will on January 15, 1974, paragraph G, article second of which provided certain monetary benefits to his wife; on February 5, 1974 testator executed a codicil which changed a part of his will and specifically substituted a new paragraph G increasing the benefits to his wife. On April 3, 1974 testator executed a second codicil in which he revoked the February 5, 1974 codicil in its entirety and revoked the increased benefits contained in paragraph G of article second.

On April 5, 1974 testator went to the office of his attorney indicating that his circumstances had changed with regard to his marital situation and he now desired to revoke the codicil of April 3, 1974 and reinstate all the provisions of his will including the codicil of February 5, 1974. Testator was advised that this could be accomplished by physically destroying the second codicil and such was done in the presence of his attorney and another; notation of the destruction was made on the xerox copy of the destroyed codicil.

On April 19, 1974 the testator executed a third codicil with (revoking) provisions identical to those contained in the second codicil requesting his attorney to retain the codicil in his files. On April 23, 1974 testator returned to his attorney’s office indicating that his marital situation had improved and that he now desired to destroy the third codicil and reinstate the will and earlier codicil of February 5. Again, testator physically destroyed the third codicil in the presence of his attorney and another with notation that such destruction had been made on the photo copy.

Testator died on April 29, 1974 and thereafter the will of January 15, 1974 and the first codicil of February 5, 1974 which were still intact were admitted to probate. However, it was the position of the executor below that the subsequent codicils could not be revoked by physical destruction and that in any event such destruction did not revive the pertinent language in the original will and the first codicil thereto.

The trial court entered a summary final judgment concluding that under the provisions of then sections 731.13 and 731.14(1), F.S., the codicils of April 3, 1974 and April 19, 1974 were destroyed and revoked. The trial court further concluded that under the provisions of sec. 731.15, F.S., the destruction of the second and third codicils did not re-establish or revive the February 5, 1974 codicil or paragraph G of article second of the will; the trial court was of the opinion that section 731.18, F.S., required the testator to re-execute and republish the pertinent provisions of the will and codicil with the same formalities required by law for the execution of wills.

The parties agree that there are no genuine issues of material fact and it is undisputed that at the time of the destruction of the codicils the testator orally expressed his intention that such destruction was with the intent to reinstate the February 5, 1974 codicil and paragraph G of article second.

Upon review and consideration of the specific factual circumstances and the law applicable thereto we are of the opinion that the trial court correctly concluded that the codicils of April 3, 1974 and April 19, 1974 were effectively revoked by the testator’s physical destruction thereof; however, we are of the opinion that the trial court erred in concluding that such destruction did not re-establish or revive the February 5 codicil and paragraph G of article second of the will.

We arrive at this decision on a ■basis differing from that relied on by the trial court. We are not unmindful that the provisions of sections 731.13 and 731.14(1), F.S., support the conclusion herein reached on the issue of the validity of the revocation; nor are we unaware that section 731.-15, F.S., may facially appear to conflict with our determination on the issue of revival and re-establishment. However, it is our view that these provisions are concerned with the revocation and revival by revocation of a will and not a codicil, hence they are not directly applicable. See, for example and compare sections 732.506 and 732.508, F.S.

While it may be necessary for a “will or any part thereof to be revoked by a subsequent writing”, sec. 731.13, supra, a codicil to a will is not a “part thereof” for the purposes of revocation so as to require a written instrument in order to effectively revoke such codicil. See section 2.07, Red-fearn Wills and Administration in Florida, 4th ed. 1971; see also Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (1947). The language of sec. 731.13, F.S., does not prevent a revocation of the second and third codicils by means of the physical destruction of such codicils. Absent specific language in the Probate Code prohibiting (or even relating to) the revocation of a codicil by the physical destruction thereof and the effect of such destruction on a prior will or codicil we conclude that the common law rules may be resorted to and are applicable. See sec. 2.10, F.S.

Under the common law a will (or a codicil) can be revoked by physical destruction of such instrument, i. e. burning, canceling, tearing, defacing or obliterating, and that the destruction has the effect of reviving the prior will (or codicil). See Schaefer v. Voyle, 88 Fla. 170, 102 So. 7 (1924). See also Redfearn, supra, sec. 805. The foregoing proposition coupled with the undisputed record reflecting the circumstances surrounding the revocation clearly demonstrates that the testator intended this method of revocation to constitute a reinstatement of his earlier will and codicil thereto. See In re Will of Schild, 72 Misc.2d 225, 338 N.Y.S.2d 770 (1972); see also Annotation: Revocation of Will as Affecting Codicil and' Vice Versa, 7 A.L.R. 3d 1143-1154.

In summary, we conclude that the codicils of April 3, 1974 and April 19, 1974 were effectively revoked by the testator’s physical destruction thereof; that such revocation re-established and revived the February 5, 1974 codicil and. paragraph G of article second of the will. This determination not only comports with the common law rule (now substantially reflected in sections 732.506 and 732.508(2), supra) but is also consistent with the expressed intention of the testator.

If the law is such as to permit an interpretation and application resulting in accomplishing the intent of the testator, surely it is the duty of the courts to so hold. Rhetorically, is not justice thereby done both to the spirit and letter of the law and to the parties in the cause?

Accordingly, the summary final judgment entered in favor of the executor, Nixon Griffis, is vacated and set aside and the cause remanded to the trial court with directions to enter such further orders as are consistent herewith.

REVERSED AND REMANDED WITH DIRECTIONS.

CROSS, J., and TROWBRIDGE, C. PFEIFFER, Associate Judge, concur.

      . “731.13 Revocation by mitten instrument.

      A mil or any part thereof may be revoked or altered ■ by a subsequent written will, codicil or other writing, declaring such revocation or atleration; provided, that the same formalities required for the execution of wills under this law are observed in the execution of such will, codicil or other writing.
      “731.14 Other revocation.—
      (1) A will may be revoked by the testator himself or by some other person in his presence and by his direction, by burning, tearing, canceling, defacing, obliterating or destroying the same, with the intent and for the purpose of revocation.”

      . “731.15 Revival by revocation.

      The revocation of a will expressly revoking a former will shall not revive the former will, even though such former will is in existence at the date of the revocation of the subsequent will.”

      . “732.506 Revocation, by act—
      A mil or codicil is revoked by the testator, or some other person in his presence and at his direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation.”
      “732.508 Revival by revocation

      (1) The revocation by the testator of a will that revokes a former will shall not revive the former will, even though the former will is in existence at the date of the revocation of the subsequent will.
      (2) The revocation of a codicil to a will does not revoke the will, and, in the absence of evidence to the contrary, it shall he presumed that in revoking the codicil the testator intended to reinstate the provisions of a will or codicil that were changed or revoked by the revoked codicil, as if the revoked codicil had never been executed.”


text:
    David KOMINSKY, Appellant, v. STATE of Florida, Appellee.
    No. Z-446.
    District Court of Appeal of Florida, First District.
    April 30, 1976.

      Richard W. Ervin, III, Public Defender and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Pursuant to a jury verdict, appellant was found guilty of possessing more than five grams of cannabis. The trial judge withheld adjudication and placed appellant on probation for a period of five years and appointed appellant’s parents as probation advisers. At the same time, the trial judge imposed two special conditions of probation by restricting appellant’s driving to a maximum speed of 35 miles per hour and requiring that appellant pay $10 per month to the Escambia County Fine and Forfeiture Fund.

Notice of appeal was timely filed, and subsequently the trial judge appointed the public defender to represent appellant on appeal. At the same time, the trial judge modified appellant’s probation by. imposing a third special condition that appellant observe an 8:00 p. m. to 6:00 a. m. curfew; consistent with his earlier statement (see note 1), the judge also raised the amount to be paid the Escambia County Fine and Forfeiture Fund from $10 per month to $30 per month.

It is appellant’s position that the trial court erred in imposing the special conditions of probation subjecting appellant to a curfew, restricting his driving speed, and raising the amount to be paid the Escambia County Fine and Forfeiture Fund. We agree.

The trial court is vested with broad discretion in determining the conditions of probation; however, such discretion is not unbridled. The purpose of probation is primarily to rehabilitate and not primarily to punish. A special condition of probation which is so punitive that is unrelated to rehabilitation cannot be imposed in lieu of a sentence.

It is our view that the curfew restriction is so harsh that it will counteract the concept of rehabilitation through the means of probation. The instant probation order as to curfew is amended to read from 11:00 p. m. until 6:00 a. m. That part of the modification order raising the amount to be paid into the Escambia County Fine and Forfeiture Fund from $10 to $30 per month, which followed upon the trial court being advised that appellant desired to appeal, cannot be sustained. The trial court clearly violated the opinion of the U. S. Supreme Court in North Carolina v. Pearce by penalizing appellant for exercising his constitutional right to appeal. The remaining special condition, restricting appellant’s driving speed to a maximum of 35 miles per hour, cannot stand. The minimum speed permitted on the interstate highway system is 40 miles per hour. As a result of the trial judge’s restriction of appellant’s driving speed to 35 miles per hour, appellant would be required to violate the minimum speed requirement while driving on an interstate highway. It is conceded by appellee that a more proper condition of probation is that appellant obey and observe all traffic laws, rules and regulations, and we agree.

The judgment appealed is reversed with directions that the trial court amend its probation order in accordance with the views expressed in this opinion.

MILLS and SMITH, JJ., concur.

      . At the sentencing proceeding the following transpired:
      “MR. WILSON [appellant’s attorney] : Judge, Mr. Kominsky [appellant] was asking would it have any effect on the judge’s ruling if he were to get a public defender to appeal the decision of the jury?
      “THE COURT: No, not at all. I think we will just raise his cost on the supervision. He has already cost the state about a thousand or so dollars, trials. Probation runs over thirty dollars a month and we are letting him off for ten dollars a month. He hasn’t got a snowball’s chance on an appeal, I can tell him right now. I sat on the case and listened. As far as an appeal is concerned, it would be an idle gesture

        . Roy v. State, 207 So.2d 52 (2 Fla.App. 1967).

      . North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

      .Florida Statute 316.183(2) (e).


author: HOBSON, Judge.

text:
    Eduardo COALLA, Appellant, v. Marilyn S. COALLA, Appellee.
    No. 75-1109.
    District Court of Appeal of Florida, Second District.
    April 21, 1976.
    Rehearing Denied May 19, 1976.

      Mark Hawes, Tampa, for appellant.
    William M. Holland, Jr., Tampa, for ap-pellee.
   HOBSON, Judge.

The appellant husband appeals a final judgment of dissolution of marriage, attacking the permanent alimony awarded to appellee wife; the awarding to the wife the sole and exclusive use of the marital home owned by the entireties “so long as she may reside there, or until she remarries or dies”; and the awarding of child support to the two minor children “until they each respectively reach the ages of eighteen (18) years. Thereafter, said child support shall continue so long as the respective children continue in school or college, or until the 22nd birthday of each re-, spective child.”

We affirm the award of permanent alir mony to the wife; however, the other two points raised must be reversed.

On the question of the award to the wife of the sole and exclusive use of the marital home held in the entireties so long as she resides there, or remarries or dies, we held-in Saviteer v. McAdoo, Fla.App.2d 1975, 310 So.2d 28, at page 29:

“The granting of exclusive possession of entireties property to one of the parties in a final judgment of dissolution is, we think, anathema unless it either takes the form of a lump sum alimony award or is so awarded to a wife and mother of minor children of whom she has custody so as to enforce the husband-father’s obligation to support and maintain the children. Neither was the case here. Likewise, if it were intended by the final judgment herein that the husband be given a life estate, which both parties seem to think but with which we disagree, it is equally ineffective." We are aware of no rule of law which would authorize the granting of a life estate under the circumstances here absent a finding of special equity. No such finding was made.
“In any case, whatever interest was awarded husband, we think it propitious to say here, and we so hold, that the final judgment did not change the statutory legal effect of the judgment of dissolution on the aforesaid entireties property. That is to say, upon the judgment of dissolution the parties owned the same as tenants in common.

On the question of the award of child support after the 18th birthday of the minor children, we held in Kowalski v. Kowalski, Fla.App.2d 1975, 315 So.2d 497, at page 498:

“. . . He raises only one meritorious point on appeal, that relating to an award of child support in the sum of $60.00 per week for his son John, who was then seventeen and one half years of age, ‘until the child reaches the age of twenty-one (21) or completes or discontinues his college education, whichever shall first occur.’
“While some of us may wonder why a father would expend the time, money and effort to complain to us because of an order compelling support of his son while the son attempts to secure a college education, we are nevertheless unaware of any authority in this state to enter such an order absent an agreement to that effect on the part of the father.

Accordingly, the judgment is hereby modified to the extent that the husband shall not be obligated for child support after the children become eighteen years old, and the right of the wife to the exclusive use of the marital home shall exist only so long as at least one child under the age of eighteen years shall be living with her in such home. In all other respects the judgment is affirmed.

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

      “i. 689.15, F.S.”

      “i. Cf. Perla v. Perla (Fla.1952), 58 So.2d 689; White v. White (Fla.App.1st, 1974), 296 So.2d 619 and cases cited therein.”.


text:
    Richard Stephen LANGDON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1197.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb and Thomas A. Willis, Special Asst. Public Defenders, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY, J. and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was charged with the crime of rape. He was admitted to a mentally disordered sexual offender program, pursuant to § 917.19, Fla.Stat. Following completion of the program, he was returned to face the criminal charges, pursuant to § 917.20 Fla.Stat., whereupon he entered a plea of guilty. After extensive hearing and examination of the records before him, the trial judge sentenced the defendant to life. He appeals and contends that this is an illegal sentence because of the following two reasons: (1) That in imposing sentence, the trial court abused its discretion in failing to consider § 921.18, Fla.Stat. as a possible alternative sentence. (2) The life, sentence imposed, following the appellant’s rehabilitation, constituted cruel and unusual punishment in violation of the 8th Amendment to the Constitution of the United States and Art. I, Section 17 of the Constitution of Florida.

We find neither of these to have merit; the sentence was a legal one. Appellate courts of Florida are only authorized to reverse a sentence when it is an illegal sentence. See: 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; Wilkinson v. State, Fla.App.1975, 322 So.2d 620. There is nothing in this record to show the trial judge did not exercise his discretion in imposing the sentence, which was a legal sentence under the statute; it was in conformity with § 917.20, Fla.Stat., supra, which recognized that following successful completion of a rehabilitative program the sex offender would be returned to face the criminal charges and thereby would be subject, upon conviction, to appropriate sentence in accordance with the crime charged.

Counsel has also pointed out that the trial judge may not have been aware that he could have sentenced the appellant to an indeterminate sentence, pursuant to § 921.18, Fla.Stat. It is not clear from the record whether this is the actual case. However, if it is, this is a matter that may be corrected by the trial court upon a motion to mitigate filed subsequent to the mandate of this court, pursuant to Rule 3.800 (b), RCrP.

Therefore, the final judgment and sentence here under review be and the same is hereby affirmed.

Affirmed.


text:
    Joyce C. KOKEN and James N. Koken, her husband, Petitioners, v. AMERICAN SERVICE MUTUAL INSURANCE COMPANY, INC., a Foreign Corporation, Respondent.
    No. 75-1399.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Baxter, Friedman, Robbins & Fischer, North Miami Beach, for petitioners.
    Robert W. Hervey, Coral Gables, for respondent.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Petitioners Joyce and James Koken by way of certiorari seek review of an order granting defendant insurer’s motion for protective order in an action for bad faith in failing to settle a personal injury action within policy limits.

Having sustained injuries as a result of an automobile accident, Llewellyn Price filed suit against Joyce and James Koken and their liability insurer , American Service Mutual Insurance Company, and received a jury verdict for $18,750 which was $8,750 in excess of petitioners’ policy limits. Thereafter the Kokens filed the instant action against their insurer American Service Mutual, the respondent, for allegedly exercising bad faith in refusing to settle within the $10,000 policy limit. During discovery petitioners served a subpoena duces tecum for deposition on respondent’s attorney who also represented the petitioners in the litigation with Pierce. The subpoena requested the entire file pertaining to the claim of Pierce v. Koken, Case No. 73-25230 including all papers furnished by the adjuster of the respondent insurer and all correspondence, recommendations, etc. contained in the attorney’s file relating to the Pierce-Koken lawsuit. Pursuant to RCP 1.280(c) respondent insurer filed a motion for protective order on the grounds, inter alia, that the materials sought by petitioners are privileged pursuant to the attorney/client relationship and constitute work product. After hearing, the trial judge entered an order requiring the production of all carbon copies in the attorney’s file that were mailed to persons, firms or corporations other than the respondent insurer. With respect to the remaining items in the file, the trial judge after an in camera inspection entered the following protective order which reads in pertinent part:

“ORDERED AND ADJUDGED that Defendant’s Motion for Protective Order is hereby granted as to communications and correspondence contained in Defendant’s file between the attorney of record ' for Defendant and the Defendant in Case No. 73-25230, Pierce v. Koken, et al; as such papers pertain to the work product of said attorney and are not calculated to lead to discovery of admissible evidence.”

Petitioners filed the instant petition for writ of certiorari for review of this protective order.

The recently established rule in this jurisdiction is that in an action for bad faith against an insurance company for failure to settle a claim within policy limits, because of its very nature and the posture of the parties involved, all materials, including documents, memoranda, and letters contained in the insurance dompany’s file, up to and including the date of judgment in the original litigation, should be produced. Stone v. Travelers Insurance Company, Fla.App.1976, 326 So.2d 241. See also Boston Old Colony Insurance Company v. Gutierrez, Fla.App.1976, 325 So-.2d 416; State Farm Mutual Automobile Ins. Co. v. Barczak, Fla.App.1974, 296 So.2d 493; Bell v. Commercial Insurance Co. of Newark, N. J., 280 F.2d 514 (3rd Cir. 1960) and Annot., 22 A.L.R.2d 659 (1952).

Accordingly, the protective order- herein appealed is reversed and the cause remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded.

      . Pierce v. Koken, Case No. 73-25230.