author: SUNDBERG, Justice.

text:
    John E. HARRIS, Appellant, v. BENEFICIAL FINANCE COMPANY OF JACKSONVILLE, a Florida Corporation, Appellee.
    No. 48198.
    Supreme Court of Florida.
    July 30, 1976.
    Rehearing Denied Nov. 9, 1976.

      Alan A. Alop, Jacksonville, for appellant.
    W. Douglas Childs and Bruce S. Bullock of Bullock, Sharp & Childs, Jacksonville, for appellee.
   SUNDBERG, Justice.

In this appeal from an interlocutory order entered by the Circuit Court in and for Duval County, our jurisdiction derives from the fact that the trial judge passed upon the constitutionality of portions of Chapter 559, Florida Statutes. While this order does not constitute a final judgment, it can be reviewed in this Court through certiorari. Article V, Section 3(b)(3), Florida Constitution.

As appears from Appellant’s pleadings in the trial court, on October 1, 1973, Beneficial Finance Company of Jacksonville, a Florida corporation, extended a consumer loan to John E. Harris. Harris made payments on this loan through June, 1974, when he found he could no longer make such payments. On or about September 3 and September 27, 1974, agents of the finance company, without his permission, contacted Harris’ employer, Western Auto Company, in Jacksonville, Florida, regarding the overdue debt. On both of these occasions, Beneficial’s agents communicated with Harris’ employer in an effort to collect the outstanding obligation.

In January, 1975, Harris filed an action in the Circuit Court for Duval County, alleging that the defendant had violated the provisions of the Consumer Collection Practices Act (CCPA), Section 559.72(4), Florida Statutes:

“In collecting consumer claims, whether or not licensed by the division, no person shall:
“(4) Communicate or threaten to communicate with a debtor’s employer prior to obtaining final judgment against the debtor, unless the debtor gives his permission in writing to contact his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that his employer will be contacted if a final judgment is obtained.”

The original complaint was dismissed upon motion of the defendant, Beneficial. Thereupon, plaintiff filed his amended complaint. Ultimately Beneficial filed an amended motion to dismiss the amended complaint, challenging the validity of Section 559.72(4), Florida Statutes, as an unconstitutional infringement of the right of free speech guaranteed by the First Amendment. Also in its amended motion to dismiss, Beneficial contended that Section 559.77(1), Florida Statutes, the remedy provision of the CCPA which allows successful plaintiffs to recover either actual damages or $500, whichever is greater, constituted an unconstitutional deprivation of defendant’s property without due process of law.

In an opinion and order dated September 24, 1975, the trial court rejected Beneficial’s free speech attack on Section 559.72(4), Florida Statutes, but declared the minimum damage award provision of Section 559.-77(1) to be unconstitutional on due process grounds. Plaintiff Harris appeals the latter decision, while defendant Beneficial has filed a cross-appeal on its unsuccessful free speech challenge to the statute.

After carefully considering Beneficial’s constitutional challenge to Section 559.72(4), Florida Statutes, we have concluded that it must be rejected. The trial court properly applied the “commercial speech” doctrine to the facts of the instant case. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (commercial handbill); Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (sexually-segregated want ads). Communication directed solely to the collection of a debt is purely commercial. While calling communication “commercial” does not serve to strip it of all constitutional guarantees, communications such as the one at issue here may more readily be curbed in the public interest than can speech which conveys political, social or religious thought. See generally Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

Bigelow struck down a Virginia law under which a newspaper editor had been convicted for advertising the availability of legal medical abortions in New York. The Court rejected the Commonwealth’s argument that the statute was constitutional because it could be applied only to commercial speech. The reason for this decision is instructive:

“The legitimacy of appellant’s First Amendment claim in the present case is demonstrated by the important differences between the advertisement presently at issue and those involved in Chres-tensen and Pittsburgh Press. Portions of its message, most prominently the lines, ‘Abortions are now legal in New York. There are no residency requirements,’ involve the exercise of the freedom of communicating information and disseminating opinion.” Bigelow at 2232.

Adding that “the advertisement conveyed information of potential interest and value to a diverse audience” and was newsworthy, the Court found that the speech involved “pertained to constitutional interests,” and was protected under the First Amendment.

The United States Supreme Court recently revisited the “commercial speech” doctrine in Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (Opinion filed May 24, 1976). Consumers of prescription drugs sued the State Board of Pharmacy challenging the constitutionality of a Virginia statute declaring it to be unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. Reasoning that “speech which does ‘no more than propose a commercial transaction’ ” does not lack all First Amendment protection, the Court held the statute to be unconstitutional. In so doing, Mr. Justice Blackmun, writing for the majority, emphasized the value of the type of speech at issue — the price of prescription drugs — to the recipient of such information:

“As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate. Ap-pellees’ case in this respect is a convincing one. Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent. When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities.
“Generalizing, society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely ‘commercial,’ may be of general public interest. The facts of decided cases furnish illustrations: advertisements stating that referral services for legal abortions are available, Bigelow v. Virginia, supra; that a manufacturer of artificial furs promotes his product as an alternative to the extinction by his competitors of fur-bearing mammals, see Fur Information & Fashion Council, Inc. v. E. F. Timme & Son, 364 F.Supp. 16 (S.D.N.Y.1973); and that a domestic producer advertises his product as an alternative to imports that tend to deprive American residents of their jobs, cf. Chicago Joint Board v. Chicago Tribune Co., 435 F.2d 470 (C.A. 7 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1662, 29 L.Ed.2d 138 (1971). Obviously, not all commercial messages contain the same or even a very great public interest element. There are few to which such an element, however, could not be added. Our pharmacist, for example, could cast himself as a commentator on store-to-store disparities in drug prices, giving his own and those of a competitor as proof. We see little point in requiring him to do so, and little difference if he does not.” Id. at 764, 96 S.Ct. at 1826.
(Emphasis supplied) (Footnote omitted)

The Court concluded that while “commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way. Some forms of commercial speech regulation are surely permissible.” Justice Blackmun specifically mentioned the continuing validity of time, place and manner restrictions. Id. at 4692.

Careful perusal of Virginia State Board of Pharmacy convinces us that the instant statute is yet constitutional. As noted above, the Supreme Court found the dissemination of prescription drug prices, like other advertising information, to be “a matter of public interest.” We doubt that Harris’ credit problems can be so denominated. Furthermore, the potential recipients of the information sought to be conveyed in the Board of Pharmacy case had a striking and obvious interest in acquiring such knowledge. It is difficult for us to believe that Harris’ employers have any similar interest in the information they received from Beneficial’s agents.

In conclusion, we can discover in the collection procedures of appellee/cross-appellant finance company no significant public interest of the type found by the Bigelow and State Board of Pharmacy Courts. Thus the proper test in considering this statute is to weigh the individual’s interest against the government’s interest. Bigelow, supra, at 2234-35. We hold that the public interest in proscribing harassment of a debtor through contact with his employer about an obligation to a third party simply transcends a finance company’s interest in choosing this particular means of collecting a debt. We note, furthermore, that the statute is restricted by its terms to those communications made “in collecting consumer claims,” and so we reject Beneficial’s argument that the Act is void for overbreadth.

Beneficial argued successfully before the trial court that the minimum damage provision of Section 559.77(1), Florida Statutes, is unconstitutional as a denial of due process of law. We disagree. The instant statute is sustainable as providing for liquidated damages in an area of the law in which ascertainment of the dollar amount of actual damages sustained in most instances will be extremely difficult, if not impossible, to achieve — a classic situation for application of liquidated damages. The United States Supreme Court has repeatedly upheld double damage awards against due process challenges. See, e. g., Lindsey v. Normet, 405 U.S. 56, 78, 92 S.Ct. 862, 877, 31 L.Ed.2d 36, 53 (1974); Missouri Pac. Ry. Co. v. Humes, 115 U.S. 512, 6 S.Ct. 1130, 29 L.Ed. 463 (1885). In Overnight Motor Trans. Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942), a double damage provision under the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.) was sustained against a due process challenge as providing “liquidated damages” of a compensatory nature. See also Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973) (either provable damages or $100, whichever is greater, for violations of Federal Truth-in-Lending Act, 15 U.S.C. § 1601 et seq.). A case upon which Beneficial relies, Missouri Pac. Ry. v. Tucker, 230 U.S. 340, 33 S.Ct. 961, 57 L.Ed. 1507 (1913), is clearly distinguishable because there the actual dollar damages sustained by the injured party were readily ascertainable, thus making the imposition by statute of liquidated damages in lieu thereof a denial of due process.

To Harris’ assertion that the minimum award under the statute also may be sustained as a form of punitive damages, Beneficial responds that such a provision would be duplicative because the statute expressly provides for punitive damages in the court’s discretion. We concur with Harris that the minimum award reasonably can be construed as providing a penalty designed to dissuade consumer collection agencies from engaging in the conduct proscribed, even where the legal standard of malice is not met. In enacting Section 559.-72(4), supra, the Legislature prohibited a course of conduct which until then apparently was widely followed by consumer finance companies and collection agencies. The existence of this industrywide standard of practice would ordinarily be a defense against the imposition of punitive damages based on malicious intent. In the exercise of its police powers the Legislature chose this method of deterring wilful violations of the protective legislation it had enacted. The fact that the Act also authorizes a punitive damage recovery for the traditional case involving malice does not alter characterization of the $500 minimum award as punitive. Had the Legislature failed to include a traditional punitive damages measure, aggrieved consumers might well have been precluded from receiving any award of punitive damages where malice is evident. See Teamsters Local 20 v. Morton, 377 U.S. 252, 260-61, 84 S.Ct. 1253, 1258-59, 12 L.Ed.2d 280, 286-87 (1964). We believe that the Legislature intended to preserve common-law punitive remedies while expanding the type of damages available to injured parties under the Act so as to include the separate, statutory measure of damages at issue here.

In short, the minimum award afforded by the statute exhibits aspects of both liquidated and punitive damages. It clearly appears to have been the intent of the Legislature to provide a remedy for a class of injury where damages are difficult to prove and at the same time provide a penalty to dissuade parties such as Beneficial from engaging in collection practices which may have been heretofore tolerated industrywide. Neither objective is without the purview of proper legislative action. The Consumer Collection Practices Act is a laudable legislative attempt to curb what the Legislature evidently found to be a series of abuses in the area of debtor-creditor relations. The legislation provided neither criminal penalties nor administrative enforcement. The minimum damage award and the civil suits it encourages constitute the only means by which the legislative purpose may be vindicated. We decline to strip the CCPA of the only self-enforcing mechanism it possesses.

The judgment of the circuit court is affirmed in part and reversed in part, and the cause is remanded for further proceedings not inconsistent herewith.

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

      . “A debtor may bring a civil action against a person violating the provisions of this part in the circuit court of the county in which the alleged violator resides or has his principal place of business or in the county wherein the alleged violation occurred. Upon adverse adjudication, the defendant shall be liable for actual damages or five hundred dollars, whichever is greater, together with court costs and reasonable attorney’s fees incurred by the plaintiff. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper, including enjoining the defendant from further violations of this part. If it appears to the court that the suit brought by the plaintiff was ill-founded or brought for purposes of harassment, the plaintiff shall be liable for court costs and reasonable attorney’s fees incurred by the defendant.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 47599.
    Supreme Court of Florida.
    Sept. 30, 1976.
    William Hutchinson, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This cause is before us on direct appeal to review the convictions of Thomas Knight on two counts of murder in the first degree and sentence to death. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellant was indicted for the first degree murder of Lillian and Sydney Gans in that he did kill and murder them from premeditated design by shooting them with a rifle. Briefly the facts leading up to the murder and defendant’s apprehension by the authorities are as follows. Upon arriving at his place of business and parking in his designated space, Mr. Gans was approached by the defendant who was carrying an automatic rifle and was told to reenter his automobile, to drive home and get Mrs. Gans, and to drive to the bank and get $50,000. While inside the bank, Mr. Gans informed the president about the abduction. The police and FBI were alerted. Mr. Gans then returned to his car with the money. He and his wife, shortly thereafter, were found shot to death, the fatal shots — perforating through their necks — having been fired from the rear seat of the vehicle. Thereafter, appellant was apprehended and taken into custody in a weeded area about 2,000 feet from the Gans’ vehicle. Underneath him buried in the dirt was an automatic rifle and a paper bag containing $50,-000. There were blood stains on his pants.

After an extensive trial, the jury returned verdicts of guilty of both counts of murder in the first degree and, after separate hearing on sentencing, recommended the death penalty be imposed. The trial judge agreed that under the circumstances the death penalty was the appropriate sentence and wrote his order on sentence carefully evaluating the mitigating and aggravating circumstances, stating in part:

“1. That the aggravating circumstances found by the Court to be present and listed by the Court with the lettering as set forth in Florida Statute 921.141(5), are as follows:
“(d) That the capital felonies were committed while the defendant was engaged in the commission of or in flight after committing the crime of kidnapping of Lillian Gans, and/or the robbery of Sidney Gans.
“(e) That the capital felonies were committed for the purpose of avoiding or preventing a lawful arrest.
“(f) That the capital felonies were committed for pecuniary gain.
“(h) That the capital felonies were especially heinous, atrocious or cruel.
* * * * * *
“It might be considered a close question as to whether these murders were especially heinous, atrocious or cruel, because of the fact that when the defendant actually killed the victims, death was almost instantaneous. However, the Court is of the opinion that the hours preceding the actual killings constituted exceedingly cruel treatment of the victims. Mr. Gans was continually under severe strain, not only thinking of his own life but that of his wife. Mrs. Gans was also under continuous strain. Mr. and Mrs. Gans proceeded to follow the directions of the defendant hoping to escape death, although probably fearing for their lives at every instant. When it became apparent to them that the defendant was forcing them to a deserted area, it probably also became apparent to them they were going to be murdered. This feeling no doubt continued up to the actual moment of the deaths. Mr. Gans’ actions were particularly noteworthy. After the initial danger, he could have escaped when directed by defendant to the bank. However, Mr. Gans, with commendable courage, attempting to save the life of his wife, again voluntarily submitted himself to the control of the defendant, only to lose his life together with his wife. All of these circumstances constitute particularly cruel, heinous and atrocious actions by the defendant when he finally shot the victims.
“3. That as to mitigating circumstances, the Court finds as follows:
“(a) the defendant has a history of prior criminal activity.
“(b) the defendant was not under the influence of extreme mental or emotional disturbance when the capital felonies were committed.
“(c) the victims were not participants in the defendant’s conduct nor did they consent to his acts.
“(d) the defendant was not an accomplice in the capital felonies committed by another person and his participation was not relatively minor.
“(e) the defendant did not act under extreme duress or under the substantial domination of another person.
“(f) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law' was not substantially impaired.
“(g) the age of the defendant at the time of the crime was 23 years. The Court finds age not to be a mitigating circumstance. The Court finds that the defendant is of at least average intelligence and experience as an adult.
* * * * * *
“. . . The Court finds, as did the jury, that the defendant is legally sane, knows right from wrong, knows the nature and consequences of his actions and did at the time of the commission of the two murders.”

Twenty three points have been stated as points on appeal by appellant although not all of these points are argued. Careful review of the briefs and voluminous transcript of record reveal that none of these contentions constitutes reversible error.

Appellant urges error in the trial court’s denial of his challenge for cause as to the impartiality of a juror. Preliminarily, it must be noted that the record does not reveal any challenge for cause of Juror Hochstadt. The record examination of Jur- or Hochstadt does not indicate any showing of partiality toward the State. In fact, the record evidences that the subject juror had formed no opinion as to the guilt or innocence of the defendant and would be completely impartial.

The trial court did not err in denying appellant’s motion for additional peremptory challenges because of pervasive pre-trial publicity. He expressly determined that no showing of prejudice had been made. Additionally we note that the record clearly shows that the trial judge was extremely liberal in excusing jurors for cause in order that an impartial trial would be secured.

Appellant’s argument that the court erred in denying his motion for change of venue is without merit. He has failed to prove that he did not receive a fair and impartial trial and that the setting of his trial was inherently prejudicial. Recently, in Dobbert v. State, 328 So.2d 433 (Fla. 1976), this Court restated the requirements set out by the Supreme Court of the United States in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), relative to a fair and impartial trial, as follows:

“The constitutional standard of fairness requires that a defendant have ‘a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, supra, 366 U.S. [717], at 722, 81 S.Ct. [1639], at 1642, [6 L.Ed.2d 751]. Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
“ ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ Id., at 723, 81 S.Ct. [1639] at 1642.
“At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ Ibid.
“The voir dire in this case indicates no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside. Some of the jurors had a vague recollection of the robbery with which petitioner was charged and each had some knowledge of petitioner’s past crimes, but none betrayed any belief in the relevance of petitioner’s past to the present case. Indeed, four of the six jurors volunteered their views of its irrelevance, and one suggested that people who have been in trouble before are too often singled out for suspicion of each new crime — a predisposition that could only operate in petitioner’s favor.”

Appellant submits that the introduction of the testimony of Mr. Gill, the bank president, to the effect that Mr. Gans, the deceased victim had told him that he had been kidnapped and his wife was being held for $50,000 ransom and describing what had occurred thus far, into evidence was error as it was not within the res gestae of the crime charged. The testimony given by Mr. Gill was admissible as being within the res gestae of the crime of kidnapping, one of the felonies enumerated in the felony murder statute, section 782.04(l)(a), Florida Statutes. The crime for which appellant was charged was murder in the first degree, and he could be tried and convicted under the indictment if the killing was committed by him in the perpetration of any robbery or kidnapping. The trial court properly held this evidence admissible as res gestae, an exception to the hearsay rule. Cf. State v. Williams, 198 So.2d 21 (Fla. 1967), Campbell v. State, 227 So.2d 873 (Fla. 1969).

We find appellant’s allegation that the court erred in allowing the State to prosecute the charges under a theory of felony murder when the indictment charged premeditated murder to be absolutely contrary to established precedent. In Larry v. State, 104 So.2d 352 (Fla.1958), this Court explained:

“Furthermore, we think there was ample evidence to sustain a verdict for murder in the first degree committed in the perpetration of a robbery. The trial judge instructed the jury on this phrase of the law. His instruction was warranted by the evidence and in such a case premeditation is presumed as a matter of law. Leiby v. State, Fla., 50 So.2d 529. Proof of a homicide committed in the perpetration of the felonies set forth in § 782.04, Florida Statutes, F.S.A., may be shown under an indictment charging the unlawful killing of a human being from a premeditated design. Killen v. State, Fla., 92 So.2d 825; Everett v. State, Fla., 97 So.2d 241.” (emphasis supplied)

Subsequently in Barton v. State, 193 So.2d 618 (Fla.App.2d 1967), authored by Justice Adkins while temporarily assigned to the District Court as an Associate Judge, that court opined and we agree:

“The indictment was in the usual form charging murder to have been committed with a premeditated design to effect the death of Corbin. The appellant argues that he should have been furnished with a bill of particulars specifying whether the State would proceed on the theory of felony murder or premeditated murder. Without being apprised of the specific theory under which the State was electing to proceed, appellant says he was placed at a burdensome disadvantage by being forced to prepare defenses to each, which defenses necessarily are inconsistent. Appellant contends that forcing such a burden upon him constituted a denial of due process.
“The allegations of the indictment were sufficient to charge murder in the first degree, regardless of whether the murder was committed in the perpetration of any of the felonies mentioned in F.S.A. § 782.04 or was committed with a premeditated design. Southworth v. State, 98 Fla. 1184, 125 So. 345. Under such a charge evidence under either theory may be introduced and defendant may be convicted either on the theory that the killing was carried out as a result of a premeditated design to effect death or on the theory of felony murder. Larry v. State, 104 So.2d 352 (Fla.1958).”

Cf. Hargrett v. State, 255 So.2d 298 (Fla. App. 3, 1971).

Having carefully evaluated all other points raised on appeal by appellant, we find none of them meritorious as to constitute reversible error.

We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence in the record, sub judice, does not reveal that the ends of justice require that a new trial be awarded.

Furthermore, we find appellant’s position that the death penalty is not warranted under the particular facts of this ease to be untenable. The atrocious, cruel, and heinous nature of the crimes committed by the appellant was carefully explained by the trial judge in his written findings of fact relative to the sentencing portion of this cause. Review of the record and consideration of the enumerated aggravating and mitigating circumstances support the conclusion that the death sentence recommended by the jury and imposed by the judge is appropriate under the particular facts of this cause.

Accordingly, no reversible error appearing, the judgments and sentence of the Circuit Court here under review are affirmed.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, SUNDBERG and HATCH-ETT, JJ., concur.

ENGLAND, J., took no part in the consideration of this case.


text:
    In the Matter of THE FLORIDA BAR, Petitioner.
    No. 49495.
    Supreme Court of Florida.
    Sept. 30, 1976.
    Edward J. Atkins, President-Elect, Miami, William A. Foster, Chairman, Disciplinary Procedure Committee, West Palm Beach, and Norman A. Faulkner, Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
   PER CURIAM.

By Petition for Amendment of the Integration Rule, The Florida Bar recommends several changes to Article XI, Rule 11.04, Integration Rule, to provide for a single formal evidentiary hearing in grievance proceedings.

The suggested amendments proposed by the Bar for our consideration are as follows:

“PROPOSED CHANGES TO RULE 11.04 WITH DELETIONS LINED THROUGH AND ADDITIONS UNDERLINED

“(3) The accused. The accused may be required to testify and to produce evidence as any other witness unless he claims a privilege or right properly available to him under applicable federal or state law, and when so required he may be accompanied by counsel. Before any finding of probable cause or private reprimand is made the accused shall be advised in general terms the nature of the conduct which is being investigated, and he shall be given an opportunity to make a statement to the investigating1 member of the committee or Bar counsel personally or by counsel, verbally or in writing, sworn or unsworn, explaining, refuting or admitting the alleged misconduct. Unless-found to-be-impraetical-by the chairman of the grievance committee duo to unreasonable-delay or other good causo, the accused^ shall be granted the right to bo present at any-grievance committee hoaring when evidence is to -be-presented to the committee, to face his-aecuser, to call witnesses, and to-oross examine subject to reasonable limitation. Before a finding of probable cause or private reprimand is made the grievance committee shall allow the accused attorney an opportunity to appear and make a statement to or answer questions from the committee even though the accused has previously made a statement or testified before the investigating member or Bar counsel.

“(4) Testimony of witnesses; contempt. Unless he claims a privilege or right properly available to him under applicable law, the accused attorney or any other person who is subpoenaed to appear and give testimony or produce books, papers or documents, and who refuses to appear or produce such books, papers or documents before the grievance committee investigating member or Bar counsel or who, having been duly sworn to testify, refuses to answer any proper question, may be cited for contempt of this court. Any contempt proceedings instituted or prosecuted during the progress of an investigation or trial covered by the confidential rule shall be conducted in a manner consistent with such rule and shall not be made public except under conditions prescribed in such rule.

“(5) Complainant or complaining witness. The complainant or complaining witness is not a party to the disciplinary proceeding and shall have no right to be present during the grievance committee proceedings except when called to give evidence before the grievance committee investigating member or Bar counsel and when so called may be accompanied by counsel. Neither the complainant nor his counsel shall have the right of confrontation or cross-examination of the accused or any other witness. Neither unwillingness nor neglect of the complaining witness to cooperate, nor settlement, compromise, nor restitution will excuse the completion of an investigation. The complaining witness shall have no right of appeal.”

The Bar explains that pursuant to the proposed changes, grievance committees would no longer hear evidence but rather would vote probable cause, no probable cause or recommend a private reprimand for minor misconduct on the basis of a presentation to the committee by the investigating member of bar counsel; and the accused would be permitted to make a statement to the committee but would not have the right of confrontation, the right to cross-examination, the right to be present during hearing of evidence or the right to present evidence which rights were extended to the accused attorney by order of this Court in In Re The Florida Bar, 297 So.2d 10 (Fla.1974), approving recommended changes by The Florida Bar to the Integration Rule on June 26, 1974.

The Bar readily admits that the aforecit-ed rights afforded the accused pursuant to Rule 11.04(3) were suggested by the Bar to provide greater protection at grievance committee investigation in view of the Bar’s requested amendment to the Integration Rule adding Rule 11.12(5) which permits waiver of confidentiality of pending grievance proceedings after probable cause finding has been made. In its June 26, 1974, order, this Court added Rule 11.12(5) which provides:

“(5) Additional waiver or confidentiality in matters involving commission of a crime, unfitness to practice law and great public interest. Notwithstanding the rules of confidentiality elsewhere stated in the Integration Rule, confidentiality of disciplinary proceedings shall be waived commencing with the filing of the formal complaint contemplated by Rule 11.05 after the probable cause finding by a grievance committee or the Board of Governors as therein set forth, in cases involving:
(a) A felony or other serious crime, or
(b) Conduct by an accused which constitutes a general unfitness to practice law, or
(c) Where the public interest clearly demands and the constitutional guaranties of the accused will not be thereby violated or denied; provided, however, that, prior to any waiver of confidentiality, the accused shall have 15 days to petition the full Board of Governors to maintain confidentiality for good cause shown, after notice of probable cause is served on him by certified mail with return receipt personally signed by the accused or by other means of personal service. Such letter of service shall advise that confidentiality shall be waived under the Rule unless such petition to the Board is timely filed and favorably considered. Upon such petition being filed, confidentiality shall be maintained until disposition of such petition. Once waiver is effected it will include the formal complaint and all subsequent proceedings thereon unless it is thereafter determined for good cause by the Board of Governors to re-invoke confidentiality.”

to the Integration Rule.

We do not feel the rights afforded the accused attorney by Rule 11.04(3) should be sacrificed for the mere purpose of expediency in the processing of his charges.

Accordingly, the Petition of the Bar requesting the above-stated amendments to Rule 11.04 is hereby denied without prejudice to reconsider when there is total review of the entire disciplinary structure.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, SUNDBERG and HATCH-ETT, JJ., concur.

ENGLAND, J., concurs in result only.


text:
    Eugene H. McCORMACK, Appellant, v. STATE of Florida, Appellee.
    No. 75-1298.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
    William H. Kilby, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, for appellee.
   ON MOTION TO REVIEW ORDER DENYING BAIL PENDING APPEAL

PER CURIAM.

This matter is before this court upon motion to review an order of the trial court denying bail pending appeal pursuant to Rule 6.15(d), F.A.R.

Appellant was tried and convicted of maintaining a gambling house in violation of § 849.01, F.S.1973. Notice of appeal was filed, appellant applied to the court for an order setting bail pending appeal, which was denied. The trial judge entered a written order in which in pertinent part he said:

“THIS CAUSE coming on this day to be heard on the motion of the above named defendant-appellant to set bail pending appeal of the final judgment of conviction in the above cause and the Court having considered said motion and Rule 6.15, Florida Appellate Rules and the principles laid down in Younghans v. State, [Fla.] 90 So.2d 308, to-wit: ‘the character of the case, the trial, and the assignments of errors’, as well as the habits of the individual as to respect for the law, his local attachments to the community, by way of family ties, business, or investments, and the possible punishment for the offense, as well as other circumstances relevant to the question of whether or not the defendant would be tempted to remove himself from the jurisdiction of the Court, and argument of counsel and finding that the defendant failed to give good and sufficient reasons to this Court why such bail on appeal should be granted and that said motion should be denied, now, therefore, it is,
“ORDERED AND ADJUDGED that the defendant’s motion for bail pending appeal be, and the same is hereby denied.”

Both Rule 3.691(a), RCrP, and Rule 6.15(b), F.A.R., direct the courts to apply the principles enunciated in Younghans v. State, Fla.1956, 90 So.2d 308, in exercising their discretion in granting or denying bail pending appeal. The foregoing order indicates the trial judge followed the rule in that respect. However, when the trial court denies bail in the exercise of its discretion, subsections (b) and (c), respectively, of those rules require the trial court to state in writing its reasons for the denial. It would seem the obvious purpose is to pinpoint the reason for the trial court’s action which facilitates appellate review thereof. Surely, a mere verbatim recital of the considerations of Younghans will not suffice to fulfill the requirements of the rules. When an order of the trial court denying bail reaches this court for review it is presumed the trial court followed the rules and considered the Young-hans principles. What this court is really interested in is why the trial court denied bail so as to determine if he abused his discretion.

We are sympathetic to the plight of the trial courts m this state, especially in the criminal divisions where the dockets are crowded with cases. However, we do believe that a diligent effort to comply with the spirit as well as the letter of tile rules of procedure will result in a more orderly disposition of cases and facilitate the work ot both trial and appellate courts.

Accordingly, this cause is remanded to the trial court with the request that the order of July 17, 1975, be vacated and a new order be entered in compliance with the foregoing rules.

CROSS, OWEN and DOWNEY, JJ., concur.


text:
    Lawrence ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1012.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied Sept. 20, 1976.

      Phillip A. Hubbart, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst, Atty, Gen., and Mitchell Luber, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant was tried by jury and convicted of buying, receiving or aiding in the concealment of stolen property [§ 811.16, Fla.Stat.]. He appeals the judgment.

In one of his points on appeal defendant urges as reversible error the fact that the verdict form signed by the jury fails to allege that he knew the goods were stolen. We find this point well taken.

Although the judgment of conviction states that the defendant had been regularly tried and convicted of unlawfully buying, receiving or aiding in the concealment of stolen property, well knowing the same to be stolen, the jury’s verdict was simply a finding of guilty of buying, receiving or concealing stolen property. In a criminal case the judgment of the trial court must conform to the verdict of the jury and, thus, we find the judgment to be improper. See Holloman v. State, 140 Fla. 59, 191 So. 36 (1939). We further find that the jury’s verdict is defective in that it failed to recite knowledge on the defendant’s part which is an essential element of the crime charged. See Myers v. State, 115 Fla. 627, 155 So. 797 (1934); Spurlock v. State, Fla.App.1973, 281 So.2d 586 and cases cited therein. The verdict being a nullity, the judgment of conviction is reversed and the cause remanded for a new trial. See Myers, supra, at 798.

We find the defendant’s remaining points on appeal to be without merit.

Reversed and remanded.


text:
    In re ESTATE of Bernard J. HERSKOWITZ, Deceased. Marvin J. HERSKOWITZ, as Executor of the Estate of Bernard J. Herskowitz and as Trustee under his will, Appellant, v. Samuel S. SMITH, guardian ad litem of Robert Herskowitz and Mark Herskowitz, minor children of the Decedent, et al., Appellees.
    No. 75-1380.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied Oct. 6, 1976.

      Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Simon, Hays & Grundwerg, Miami, for appellant.
    Samuel S. Smith, Miami Beach, Richard Mandell, Miami, for appellees.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, executor and testamentary trustee, appeals an order directing partial distribution to the testamentary trust and commencement of support payments to the beneficiaries.

In 1974 Bernard Herskowitz left an estate in excess of $500,000 willed to a testamentary trust for the benefit of his minor children Robert and Mark. The will named Bernard’s brother, Marvin, executor of the estate and trustee and waived any requirement for him to qualify as trustee pursuant to Fla.Stat. Chapter 737. Upon Bernard’s demise, his former wife and mother of Robert and Mark, Judy Her-skowitz, moved into Bernard’s residence and was appointed guardian over the boys’ person. The will was admitted to probate and Sam Smith, Esq. was appointed guardian ad litem of the boys. After the full family allowance of $4,200 was expended, Smith filed a petition asking the probate court to require qualification of the trustee and/or funding of the trust to require the trustee to make reasonable support payments for the boys on the ground that the trust is a support trust necessitating the payment of such funds by the trustee. Marvin filed objections alleging that Bernard’s will grants sole and absolute discretion in him as trustee for the payment of trust funds and this exercise of discretion is beyond the jurisdiction of the court. On final hearing the court found that (1) the decedent’s will manifests an intention to create a support trust for the two boys; (2) the estate is liquid and sufficient to pay all costs of administration and creditors; (3) Marvin’s refusal to make support payments constitutes arbitrary and capricious conduct and “nothing more than a strategical ploy to wear down the guardian of the persons and natural mother.” Thereupon, Marvin as executor and trustee was ordered to make a sufficient monetary partial distribution to himself as trustee and then to commence paying $323 monthly support payments for the use of the boys, to assume the mortgage payments on the residence and to make a $500 deposit towards possible medical necessities. These payments were to be temporary and subject to review.

Marvin basically contends the court lacked jurisdiction to require him, as executor, to make a partial monetary distribution from the estate to the trust and then require him, as trustee, to make support payments where the trust had not come into being, was not funded and was not registered or had come into being under Florida law [Florida Statutes Chapter 737], We cannot agree.

First, we find that the registration provision of § 737.101 is not mandatory and, thus, it is not necessary that the testamentary trust be registered for the probate court to acquire jurisdiction over it. In addition, we note that the will specifically waives the requirements in Chapter 737. Second, § 737.201, Fla.Stat., F.S. A. gives the court jurisdiction to determine trust matters such as questions of the construction of trust instruments [§ 737.-201(1)(c), Fla.Stat.]. The guardian ad li-tem requested that the court determine the nature of the trust and this matter was well within the jurisdiction of the court to decide. Third, by filing a notice of intention of service as trustee and objections to the petition for partial distribution and by appearing at the final hearing, Marvin submitted himself to the jurisdiction of the court. As to the argument that the trust had not come into being, we find to the contrary. It is well established that to constitute a valid trust there must be indication of an intention to create a trust, property to which the trust may and does pertain and a certain and ascertained object. See 33 Fla.Jur. Trusts § 10-22 (1960) and Bay Biscayne Co. v. Baile, 73 Fla. 1120, 75 So. 860 (1917). There is no question that a valid trust with an identifiable corpus has been established in the instant case especially in view of the finding that the estate is liquid and sufficient to pay all costs of administration, creditors and taxes. We also considered Marvin’s contention that the record is devoid of any bases upon which the court determined the amount of support payments and find it lacking in merit. In conclusion, we hold that the court, upon finding Marvin’s conduct was capricious and arbitrary, properly exercised its powers pursuant to § 737.201, Fla.Stat.

Affirmed.

       through counsel


text:
    ROSE PRINTING COMPANY, INC., Appellant, v. Vincent D’AMATO, Appellee.
    No. 75-2017.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied Oct. 6, 1976.

      David Block, Coral Gables, and Thomas F. Pepe, Miami, for appellant.
    Joseph Ferrara, Coral Gables, for appel-lee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, Rose Printing Company, Inc., appeals an order denying its motion to compel production of defendant, Vincent D’Am-ato’s, complete Federal income tax returns which would reveal sources of income.

In order to execute final judgment against defendant for $44,030.18, plaintiff engaged in discovery and on August 12, 1975 filed a request for production of defendant’s income tax returns. Defendant furnished copies of his 1973 and 1974 returns (filed jointly with his wife, Dolores). Whereupon plaintiff filed a motion to compel defendant to produce his returns for the years 1965-1974 and on November 25 the trial judge denied the motion. On December 22 defendant moved to correct the November 25 order as it was the court's ruling therein that since Mrs. D’Amato was not a party to the litigation, her deposition could be taken or interrogatories could be sent to her and then if it appeared as though the production of the tax returns was necessary, plaintiff could file its motion. On January 14, 1976 the judge entered the following corrected order:

* * * * * *
“ORDERED AND ADJUDGED that the order entered by this Court on November 25, 1975, shall be corrected as follows:
“1. That Dolores D’Amato the wife of the defendant, VINCENT D’AMATO, is not a party to this litigation.
“2. That the Motion to Compel Production of the Plaintiff is hereby denied as to those portions of the Federal Income Tax Returns that would reveal sources of income of the wife of defendant, VINCENT D'AMATO.”
******

As plaintiff failed to lay a proper predicate for discovery, i. e. deposition of Mrs. D’Amato under RCP 1.280 and subpoena duces tecum under RCP 1.410, the trial judge did not abuse his discretion in denying the motion to compel production.

Affirmed.


author: HAVERFIELD, Judge.

text:
    Josephine CHASTAIN, Individually and as Administratrix of the Estate of William Wilbur Chastain, Deceased, Appellant, v. FEDERAL INSURANCE COMPANY, Appellee. ALLSTATE INSURANCE COMPANY, Appellant, v. FEDERAL INSURANCE COMPANY, Appellee.
    Nos. 75-1039, 75-1129.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied Oct. 14, 1976.
    George Schwartz, Miami Beach, for Chastain.
    Weissenborn, Burr & Hyman, Miami, for Allstate.
    Carey, Dwyer, Austin, Cole & Selwood and Steven Berger, Miami, for Federal.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HAVERFIELD, Judge.

Plaintiffs appeal a final judgment in favor of defendant Federal Insurance Company in an action to recover the excess over the policy limits of the judgment on the alleged ground that Federal exercised bad faith in refusing to settle the claim for the policy limits.

On December 1, 1967 William Wilbur Chastain was driving an automobile owned by Jack Rhodabarger and insured by Allstate Insurance Company, one of the appellants, when it was struck by an automobile driven by Julio Sanchez and owned by Maximino Jorge who was uninsured. Sanchez, however, had an automobile liability insurance policy with $10,000/20,000 limits issued by Federal. As a result of the collision, William Chastain was fatally injured and his wife Josephine, a passenger in the car and the other appellant, sustained serious bodily injury. On behalf of herself and as administratrix of her husband’s estate, she filed suit against Sanchez and Jorge. Federal undertook to defend Sanchez, but concluded it afforded no coverage to Jorge. Subsequently, Mrs. Chastain settled with Federal as to Sanchez for $19,500. She also obtained a $70,000 default judgment against Jorge and then successfully pursued a $20,000 uninsured motorist claim against Allstate (because Jorge had no liability coverage). Thereafter Mrs. Chastain and Allstate, as sub-rogee, filed the instant bad faith action for Federal’s alleged failure to settle on behalf of Jorge. The cause came on for final hearing and the trial judge entered judgment in favor of Federal. Allstate and Josephine Chastain appeal. We affirm.

The established law in Florida is that in cases where recovery of the excess over policy limits of a judgment against the insured is sought from his insurer upon the ground that the insurer’s conduct in failing to effect a settlement within the policy limits amounts to bad faith, there can be no liability in the absence of an offer by the person claiming against the insured to settle within the policy limits. Beck v. Kelly, Fla.App.1975, 323 So.2d 667 and cases cited therein.

It affirmatively appearing from a review of the record that Josephine Chastain made no offer to settle as to Jorge, the trial judge was eminently correct in entering judgment for Federal Insurance Company.

Affirmed.


author: HODGES, JOHN G., Associate Judge.

text:
    The FLORIDA BOARD OF REGENTS OF the DEPARTMENT OF EDUCATION, DIVISION OF UNIVERSITIES, and Florida State University, a division of the Board of Regents of the State of Florida, Appellants, v. John S. HARRIS, Appellee.
    No. AA-46.
    District Court of Appeal of Florida, First District.
    July 13, 1976.

      Charles E. Miner, Jr., Gen. Counsel, Herbert D. Sikes, Tallahassee, for appellants.
    O. Earl Black, Jr., Tallahassee, for ap-pellee.
   HODGES, JOHN G., Associate Judge.

Stripped of legalistic adornment, the appeal in this case exposes for initial Florida appellate cognition and resolve the precise and deceptively simple question of whether or not common law removal of disability capacitates a minor to establish the required residence for tuition-paying classification at our state universities. The question is important because, under present law, Florida students pay considerably smaller entrance fees than do those classified as non-state residents.

The trial court answered the limited query affirmatively. Cogent reasons impel us to a different opinion.

Material facts are not disputed. The litigating student, John G. Harris, unmarried, left New Jersey, where he was born on September 6, 1952, and reared by his parents, and came to Florida for the first time in September, 1970. He entered Florida State University during the school terms of 1970-71 and 1971-72, and worked during the summers, both in Florida and New Jersey. On March 30, 1972, when he was 19 years old, he filed a declaration of domicile and citizenship, under Section 222.17, Florida Statutes. Further demonstrating his intention to become a domiciliary of Florida, he registered to vote and established a bank account in Leon County, and also obtained a Florida driver’s license.

The plaintiff applied for but was denied status as a Florida resident at F.S.U. for the terms of school commencing in September, 1973, January, 1974, and April, 1974, and was not qualified and accepted as a Florida student for tuition purposes until September, 1974.

A stipulation by the opposing parties that the plaintiff had met the requirements of emancipation by common law was fashioned from somewhat amorphous and desultory testimony given by him on deposition. In recording the factual composite on which our opinion is brought to bear, we shall assume but do not necessarily agree that the trial court was correct in giving judicial sanction to the stipulation and in establishing the time disabilities were removed as being at some date prior to September, 1972.

The events upon which the appeal was adjectively constructed began when the plaintiff, John Harris, filed his supplemental complaint in the cause on September 10, 1975, against the Board of Regents and Florida State University for a declaration of his rights and a return of that part of the tuition which he had paid for the terms mentioned in excess of fees paid by Florida students for the same periods.

After hearing, the lower court granted the relief sought in the plaintiff’s complaint, in findings not only that the disability of non-age of the plaintiff had been removed by common law emancipation sometime prior to September, 1972, but that he had shown an intent to remain in Florida as early as March 22, 1972. The Court further found that since September, 1973, Harris should have been qualified as a Florida student for tuition purposes and that the fees for out-of-state students should not have been exacted from him. Judgment was entered against the defendants for the total excess fees claimed, plus costs. This final judgment is the subject of our review.

A proper opinion in the case hinges upon a correct interpretation of the specific provisions of determinative Rule 7.6, Florida Board of Regents’ Operating Manuál, the validity of which has been clearly established in Weitzel v. State, Fla.App. (1st), 306 So.2d 188 (1975). The pivotal rule reads as follows :

“A. For the purpose of assessing registration fees, students shall be classified as Florida and non-Florida. A Florida student is a person who shall have resided and had his domicile in the State of Florida for at least twelve (12) months immediately preceding the first day of classes of the current term.
1.In applying this policy ‘student’ shall mean a person admitted to the institution. If such person is a minor, it shall mean parents, parent, or legal guardian of his or her person.
2. The word ‘minor’ shall mean a person who has not attained the age of 18 and whose disabilities of minority have not been removed by reason of marriage or by a court of competent jurisdiction.
3. The word ‘domicile’ for fee-paying purposes shall denote a person’s true, fixed, and permanent home and place of habitation. It is the place where he intends to remain, and to which he expects to return when he leaves without intending to establish a new domicile elsewhere.” (Emphasis added)

It is quickly apparent from the plain language of the Rule that a duality of conditions must be met by one qualifying as a Florida student for fee-paying purposes. Domicile must not only be established but further evidenced by a dura-tional residence of twelve months. Authority of the Regents to impose these specific prerequisites for Florida student designation was confirmed in Weitzel, supra, and, of course, is not contested.

We think that provisions of the rule are also unequivocal in pronouncing that emancipation from infant disability for the establishment of the required domicile may be accomplished only by reaching the age of majority, marriage, or order of a competent court.

In line with the sound and equable view that a state has power to define a resident for tuition purposes differently from a resident for other purposes, [Thompson v. Board of Regents of University of Nebraska, 187 Neb. 252, 188 N.W.2d 840 (1971); Arizona Board of Regents v. Harper, 108 Ariz. 223, 495 P.2d 453, 56 A.L.R.3d 627 (1972)], relevant decisions in other states and one Florida per curiam opinion clearly demonstrate that a state statute or rule which reasonably classifies students as residents or nonresidents for tuition-paying- purposes at its educational institutions should be strictly construed and kept unfettered and free of any legislatively unintended exception or modification engrafted by judicial decision. [See Kirk v. Board of Regents of University of California, 273 Cal.App.2d 430, 78 Cal.Rptr. 260 (1969); Hancock v. Regents of University of Wisconsin, 61 Wis.2d 484, 213 N.W.2d 45 (1973); Pelletreau v. Savage, D.C., 381 F.Supp. 582; Potter v. Board of Regents of Division of Universities of Dept. of Ed., Fla.App. (1st), 311 So.2d 202 (1975).] Our attention has not been directed by the plaintiff to authoritative judicial persuasion to the contrary and our review of an unbroken line of decisions confirming strict construction of similar provisions has led us to none.

The language of the basic rule of the Regents is so definite and clear in its requirements that it simply cannot be reasonably interpreted to include emancipation at common law as a means of granting capacity to establish required domicile for student classification for fee paying purposes.

The plaintiff has also argued throughout, however, and the lower court apparently agreed, that even without the fact of common law emancipation, the plaintiff should be considered to have established the required domicile and residence because Rule 7.6A.2 applies to a person who has not attained the age of 18 years; he further correctly says that on the date in question, September, 1972, he was 20 years of age and claims that in September, 1973, he had completed the twelve months dura-tional residence requirement, thereby entitling him to the Florida resident classification as provided by law.

But, however semantically anomalous our holding that a 21 year old common law emancipated domiciliary of Florida, who has resided in the state for three years', is not a Florida resident for tuition purposes may appear to be, its equation with the singular chronological facts concerning plaintiff’s majority and the prospective operation of the Florida law, which changed the age of majority from 21 to 18 years, should give full credence and understanding to what we believe to be the sound legal effect of our decision.

The basic rule, Rule 7.6 of the Florida Board of Regents’ Operating Manual, was amended to conform to Section 743.07, Florida Statutes, which became effective on July 1, 1973, reducing in Florida the age of majority from 21 to 18 years.

Section 743.07(3) reads as follows:

“(3) This section shall operate prospectively and not retrospectively and shall not affect the rights and obligations existing prior to July 1, 1973.” (Emphasis ours.)

Florida decisions have uniformly and without exception adhered to the prospective operation of the statute.

It is crystal clear, therefore, that the plaintiff was a minor, even though he was 20 years of age, and could not have been emancipated by attaining the age of majority until July 1, 1973. Prior to that date, he lacked legal capacity to establish a Florida domicile separate and apart from his parents. To establish a domicile, a person must have the legal capacity to do so. Beekman v. Beekman, 53 Fla. 858, 43 So. 923 (1907); Riley v. Holmer, supra, and an unemancipated minor cannot, of his own volition, select or change his domicile, Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694 (1929); also see 28 C.J.S. Domicile § 12 (1941); In re Hall’s Guardianship, 235 N.C. 697, 71 S.E.2d 140, 32 A.L.R.2d 856 (1952). This being so, Harris could not have met the durational residence requirement of twelve months until July 1, 1974, two months prior to his registration at Florida State University for the 1974 term.

Our holding that the Regents’ rule should be legally construed to mean what it says is comforting to the judicial conscience because we also believe it to be conceptually valid and consonant with practicality and good public policy. The rule is unambiguous and not subject to further interpretation or construction.

A contrary ruling would presage for those charged with classification an almost insuperable task of establishing and evaluating facts relating to disability removal by common law standards for each student who claims emancipation by that means. A laborious process with extruding uncertain and undesired results and complicated legal ramifications naturally involved in the chore could be expected.

We also envision that a holding for the plaintiff might promote temptation and mischief and place a premium on deception by those prospective young students from foreign states bent on escaping the higher tuition fees which the courts have invariably held to be valid under similar classification. During the years when a student is entering and attending college his plans for future residence are usually vague and uncertain and sometimes fanciful. Questionable reliance can be placed on any statement of his intent when he knows he will realize a substantial reduction in tuition by being classified as a bona fide resident.

A ruling for the plaintiff would permit one over the age of 18 to acquire the indi-cia of domicile and immediately be entitled to registration as a Florida student. It would also allow a 17 year old student to move to Florida and, upon reaching his 18th birthday, demand to be classified as a Florida resident for tuition fee purposes.

It seems to us that the rule, strictly applied, provides a reasonable, definite and practical way to discover which university students are genuine Florida residents entitled to the favored classification which is legitimately related to equalization between those who have contributed to the state’s weal and its educational revenues through payment of taxes, and those who have not. As to contribution, the same reasoning would apply, of course, in the case of a student capacitated for adequate residence through the domicile of his parent or guardian because the latter is the benefactor of the state in that instance.

The desideratum implicit in the reasons we have bracketed in our opinion is the final impellent toward our firm conclusion that the judgment of the Circuit Court should be and is, therefore,

Reversed.

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

      . In view of Chapter 73-21, Laws of Florida, which removed disability of non-age for persons 18 and older, the procedure in Section 62.011, Florida Statutes, for general removal of disability no longer obtains, which means that, at the present time, in order to become a Florida student for fee paying purposes, the student must be married or at least 18 years of age and a domiciliary who has resided in Florida for at least twelve months after attaining his or her majority.

      . What legal effect, if any, statutory provisions with respect to removal of disability of non-age persons may have upon common law emancipation generally or what appears to be some conflict between decisions of the Supreme Court of Florida and the District Courts of Appeal as to whether statutory provisions for non-age disability removal are exclusive for other purposes, such as entitlement to wages, exclusion of property and wages from claims of creditors, obtaining licenses, paying taxes, etc., [See Ison v. Florida Sanitarium and Benevolent Asso., Fla. App. (4th), 302 So.2d 200 (1974), and cases cited therein; Owen v. Owen, Fla.App. (1st), 234 So.2d 165 (1970) ; Meehan v. Meehan, Fla.App. (2d), 133 So.2d 776 (1961) ; Jackson v. Citizens’ Bank & Trust Co., 53 Fla. 265, 44 So. 516 (1907) ; Riley v. Holmer, 100 Fla. 938, 131 So. 330 (1930) ; Meehan holds that emancipation of a minor in Florida was unknown to the common law] are not relevant to our holding and we, of course, venture no opinion in that regard in the present milieu of this case.

      . Rule 7.6, Florida Board of Regents’ Operating Manual (now Rule 6c-7.05, Florida Administrative Code), was amended, on June 5, 1973, reducing the age of majority to 18 years to comply with the provisions of Chapter 73-21, Laws of Florida, which became effective, as did Section 1.01(14), Florida Statutes, on July 1,1973.


text:
    EMPRESA GUATEMALTECA de AVIACION, a/k/a Aviateca Guatemala Airways, a Guatemalan Corporation, Appellant, v. Marshall ADER et al., Appellees.
    No. 75-1245.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Sept. 15, 1976.
    Wheeler & Evans, Miami, for appellant. Kurtz & Cooper, Miami, for appellees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Popkin v. Crispen, Fla.App.1968, 213 So.2d 445, 446 and compare Rapport v. Weisberg, Fla.App. 1975, 316 So.2d 73.


author: WALDEN, Judge.

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF MENTAL HEALTH, SOUTH FLORIDA STATE HOSPITAL, and James V. Diodato, M. D., Superintendent, Appellants, v. STATE of Florida, Appellee.
    No. 75-728.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Rehearing Denied Nov. 10, 1976.

      Mary E. Clark, Tallahassee, for appellants, State of Florida Dept, of Health and Rehabilitative Services.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Judge.

Appellants, Department of Health and Rehabilitative Services, Division of Mental Health, South Florida State Hospital and James V. Diodato, M. D., Superintendent, were adjudged to be in criminal contempt of court for violating the terms of a court order. They appeal. We reverse.

This appeal has to do with the problems generated by Arthur Harold Robinson and the attempts of those in authority to solve or ameliorate them.

Robinson was charged in 1972 with two counts of lewd, lascivious or indecent assault or act upon or in the presence of a child. He has never been tried or convicted and the charges are still pending.

Wé pick up the history of this case from the trial court order, dated December 13, 1974:

“The history of this case is as follows:
“On January 2nd, 1973 the Circuit Court declared Arthur Harold Robinson a mentally disordered sex offender within the meaning of Florida Statute 917.12 and committed him to the custody of the Division of Mental Health for care, treatment and rehabilitation.
“In 1974 the Court received a report from the Division of Mental Health dated July 17th reflecting that further hospitalization was not necessary for Mr. Robinson and that he had been found to be not a menace to others and was ready for return to Court.
“On August 14th, 1974 the Circuit Court ordered the return of the defendant to Palm Beach County and appointed Drs. Jose Almeida and McKinley Cheshire to reexamine the defendant.
“The attorneys were unwilling to stipulate to the Court considering and ruling on the written reports so the hearing of December 6th, 1974 was conducted. At that hearing, Drs. Cheshire and Almeida testified and the Court also received the testimony of Dr. B. Rivers Ogburn who is the supervisor of the Florida State Hospital at Chattahoochee’s Forensic Psychiatric Program.
“The testimony of all three physicians was in basic agreement and harmony. All agreed that Mr. Robinson had an organic brain syndrome which contributes, in part, to a disposition to molest children. They also agreed that hospitalization was no longer of any use.
“Most importantly, they all stated that if Arthur Harold Robinson is supervised, he is not a menace to others or to children; if he is unsupervised, he is a menace. Dr. Almeida testified that the supervision he had in mind was comparable to that of a child of five years. He meant, he testified, not that Mr. Robinson had the intelligence of a five-year old child, but that one must supervise him and be aware of where he is at all times as one would supervise a child of five years.
“The State’s basic position is that for the psychiatrists to testify in this qualified and conditional language that Mr. Robinson is no longer a menace to others is the equivalent of saying that he continues to be a menace to others inasmuch as the Court has no administrative or supervisory resources to insure that such supervision occurs. The State also admitted, with commendable candor, that prison was hardly the place to provide the supervision that Arthur Harold Robinson needs.
“This Court finds that Arthur Harold Robinson continues to be a menace to other children. This Court also finds that the type of supervision contemplated by the testimony of the psychiatrists is not available. Pursuant to the case of Powell v. Don Genung, et al., Florida Supreme Court, 306 So.2d 113, 1974, this Court has the authority to recommit the defendant.
“The Court notes that it is not critical of the efforts of the Florida State Division of Mental Health and that the dilemma posed by this case is attributable to the fact that our society has not provided the institutions, manpower or resources to supervise human beings who are in need of the type of supervision indicated in this case.
“It is therefore,
“ORDERED AND ADJUDGED that the defendant will be transported to the appropriate Florida State Hospital and committed, confined, detained and treated by the Division of Mental Health until the further Order of the Court and, in the event that the defendant shall cease to be manifestly dangerous to others, said fact shall be reported to the Court for further Order. It is noted further that the defendant has relatives who reside in Bro-ward County. The Court requests the Division of Mental Health to house Mr. Robinson at South Florida State Hospital if that is possible." (Emphasis supplied.)

In procedurally proper contempt proceedings, appellants were charged with violating the December 13th order by releasing Robinson on “furlough.” The appealed order found that appellants in the hospital “treatment” of Robinson had indeed released Robinson on several home furloughs. The trial court limited its gaze to the terms of the December 13th order providing that Robinson be “committed, confined, detained” and construed this to mean “to restrict within the limits of the hospital borders.” The trial court rejected the undisputed testimony and the appellants’ position that the furloughs were a necessary and proper part of Robinson’s medical treatment and ignored the fact that the December 13th order required them to “treat” Robinson.

The facts showed that Robinson had received furloughs to visit his wife in West Palm Beach for short periods. He had honored the terms of such furloughs; had committed no new offenses; and had returned to the hospital as and when required.

We hold that the order, in using the terms “confined” and “treated” in combination was at the most contradictory and at the least confusing.

The appellants were obliged to afford Robinson treatment by the very words of the trial court order, plus by statute and case law. Fla.Stat. §§ 394.459(2), (4) (1975), and O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). Further, and properly so, a circuit court is not empowered to direct a hospital to provide any certain method of medical treatment. State ex rel. Dept. of Health & Rehab. Serv. v. Sepe, 291 So.2d 108 (3rd DCA Fla. 1974).

All circumstances considered, it is our view that the trial court erred in adjudicating the appellants to be in criminal contempt. There was a total absence of evidence that the alleged disobediences of the court order were wilful, see 6 Fla.Jur., Contempt § 10. Further, the court order said to have been violated was confusing and ambiguous in its operation, thus requiring proof of contemptuous intent. Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185 (1932); Harper v. State, 217 So.2d 591 (4th DCA Fla.1968).

REVERSED.

CROSS, J., and CALHOUN, JAMES P., Associate Judge, concur.


text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Victoria MOREJON et al., Appellees. Charles "Bebe” REBOZO, Appellant, v. Victoria MOREJON et al., Appellees.
    Nos. 75-1395, 75-1376.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Rehearing Denied Oct. 6, 1976.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Podhurst, Orseck & Parks, Miami, for appellants.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

These are consolidated appeals by Charles “Bebe” Rebozo and United States Fire Insurance Company, defendants in the trial court, from adverse summary judgments in favor of the plaintiff, Victoria Morejon, United States Fire also appeals a summary judgment against it in favor of Rebozo.

On April 17, 1971, plaintiff Morejon was injured in a laundromat owned and operated by Washwell, Inc., which has since been dissolved. At the time of the injury, Rebo-zo was an officer, director and sole stockholder of Washwell and both Rebozo and Washwell were insured under a liability policy issued by Royal Indemnity with limits of $100,000. Morejon filed suit against Washwell prior to its dissolution, and recovered a judgment in the amount of $385,000. On appeal, this court ordered a remittitur to $150,000. Washwell, Inc. v. Morejon, 294 So.2d 30 (Fla.3d DCA 1974), cert. den. 310 So.2d 734 (Fla.1975). Royal Indemnity paid the $100,000 limit of its liability, leaving $50,000 outstanding.

Morejon then brought the instant action, alleging that she had obtained a prior judgment against Washwell, and that Rebozo, as director, sole stockholder and holder of the proceeds from the dissolution of Washwell, was indebted to her. She further alleged that United States Fire was liable to her by reason of a one million dollar “Comprehensive Personal Catastrophe Liability Policy” which it issued to Rebozo as the sole named insured. The policy provides for United States Fire

“to pay on behalf of the insured the ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay as damages because of personal injury or property damage . . . ” (emphasis added)

Rebozo answered and counterclaimed against United States Fire alleging that the policy was applicable to the dissolved corporation as an excess policy.

Following extensive discovery, plaintiff Morejon moved for summary judgment against Rebozo and United States Fire, and Rebozo moved for summary judgment against United States Fire. The trial court granted summary final judgments in favor of Morejon against Rebozo and United States Fire Insurance Company, and in favor of Rebozo against United States Fire Insurance Company. The appeals therefrom were consolidated by this court.

We find no error in the trial court’s entry of the judgment against Rebo-zo individually because after plaintiff’s accident, but prior to the judgment against Rebozo, Rebozo liquidated Washwell and as sole stockholder, received all of the assets. Pursuant to Section 608.30, Florida Statutes (1975), Rebozo must maintain a sufficient amount of the dissolved corporation’s assets in order to pay the claims of creditors. The properties of the corporation constitute a fund for the payment of the corporation’s debts, and the surviving directors are charged with managing such fund for the interest of the creditors. See Guaranty Trust and Savings Bank v. United States Trust Company, 89 Fla. 324, 103 So. 620 (1925); Kyle v. Stewart, 360 F.2d 753 (5th Cir. 1966). The judgment against Rebozo is affirmed.

We consider the primary issue on appeal to be whether the judgment against Rebozo is within the scope of coverage of the United States Fire Insurance Company policy. Rebozo contends that the United States Fire policy which provides coverage for Rebozo for claims arising out of “personal injury,” includes a judgment in a personal injury action such as that obtained by plaintiff Morejon in the initial action. United States Fire Insurance Company contends that the judgment against Rebozo is in the nature of the collection of a corporate debt and does not directly stem from “personal injury” as covered by the policy. We agree with the latter contention and reverse. The United States Fire Comprehensive Personal Catastrophe Liability Policy by its terms insured only Rebozo. The terms of the policy are clear, unequivocal and unambiguous. It is a personal catastrophe policy. It insures the liability of no corporate entity. Neither Washwell nor any entity other than Rebozo is mentioned in the contract of insurance, directly or indirectly.

A court may resort to construction of a contract of insurance only when the language of the policy in its ordinary meaning is indefinite, ambiguous or equivocal. If the language employed in the policy is clear and unambiguous, there is no occasion for construction or the exercise of a choice of interpretations. In the absence of ambiguity, waiver or estoppel, contravention of public policy or positive law, it is the function of the court to give effect to and enforce the contract as it is written. These general rules are set forth in Rigel v. National Casualty Company, 76 So.2d 285 (Fla. 1954), wherein it is stated at 286, that,

“We acknowledge the rules that if the language is plain and unambiguous, there is no occasion for the Court to construe it . ; that if uncertainty is present, the instrument should be construed against the insurer . . . ; that the Court should not extend strictness in construction to the point of adding a meaning to language that is clear . . . ; and that the Court should construe the contract of insurance to give effect to the intent of the parties . . . (citations omitted)

Accord: Oren v. General Accident Fire and Life Assurance Corporation, 175 So.2d 581 (Fla. 3d DCA 1965); Rakoff v. World Insurance Company, 191 So.2d 476 (Fla. 3d DCA 1966); Winter Garden Ornamental Nursery, Inc. v. Cappleman, 201 So.2d 479 (Fla. 4th DCA 1967).

Florida courts adhere to the principle that a court should not rewrite a contract of insurance extending the coverage afforded beyond that plainly set forth in the insurance contract. See for example, Aetna Casualty & Surety Company v. Cartmel, 87 Fla. 495, 100 So. 802, 35 A.L.R. 1013 (1924); Goldsby v. Gulf Life Insurance Company, 117 Fla. 889, 158 So. 502 (1935).

There is no basis in law or in fact for the court to rewrite the contract of the parties or to extend the coverage of the personal catastrophe liability policy issued to Rebozo to the judgment against a non-insured corporate entity, Washwell, Inc.

Affirmed in part and reversed in part.


text:
    Robert Barry OLSEN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-47.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Rehearing Denied Nov. 1, 1976.

      Bailey & Brown, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

The appellant was found guilty by a jury of second degree murder and sentenced to life imprisonment. On this appeal, the main point urged is that the trial court erred in denying the public defender’s withdrawal as counsel for the defendant, thereby forcing the defendant to proceed without the effective aid of counsel. Other points directed to other portions of the trial have been raised and will be considered.

The disposition of this criminal appeal has been delayed in this court by the fact that the defendant has received the services of the public defender’s office and has also filed motions in his own behalf. He has been granted the right to a file a brief in his own behalf. Finally, he was represented by a private attorney through the filing of a reply brief and in oral argument.

The defendant was indicted for first degree murder on May 16,1974. An affidavit of indigency was filed and a public defender was appointed to represent him. Approximately one month before trial, the appointed public defender moved the court for permission to withdraw on the grounds that the defendant had filed his own legal pleadings in the cause without consulting appointed counsel and had expressed a lack of trust in the public defender, thereby undermining the fiduciary attorney/client relationship. The court conducted a hearing on the motion with the defendant present. The court earnestly sought to determine whether the allegations of the motion were true. The court inquired of the defendant whether the actions alleged had affected the ability of the public defender’s office to proceed with its representation of him. The defendant, in response to repeated questioning, refused to say that he wanted substitute counsel or that he wanted to represent himself. The record reveals that it was obviously defendant’s position that should error be induced into the record, he was not going to do anything to prevent it.

The cause proceeded in an orderly manner and the record of the trial convinces us that the defendant received more than adequate representation. Counsel made a genuine attempt to urge the positions advanced by the defendant in his own defense.

The proof of defendant’s guilt was clear and evident. The defenses presented were attacks upon procedure of the police and the court. The circumstances that led up to the indictment occurred during the late evening hours, on May 11, 1974. On that evening, William Kenney was walking south on the right-hand side of U.S. Highway 1, in the area of West Summerland Key when he heard a girl’s voice screaming for help. He walked to the nearest house, knocked on the door, and asked the man who answered to call the police. He and the man then drove to where Kenney had heard the screams. At this time, he observed a maroon Corvette parked in the area. Though they looked at the bushes with headlights, they saw nothing and decided to wait for the police.

Deputies Pipher and Sadler were dispatched to the scene and arrived somewhere between 9:45 and 10:00 p. m. They met Kenney and the three of them drove over to the area and down a dirt road that leads into a park. Again, they all saw the Corvette parked alongside the dirt road. A tag check was run on the car, which indicated it was not stolen. The officers then searched the area with the headlights of their vehicle, but didn’t see anything. They next drove across U.S. 1 and searched the Gulf side of the road, but again saw nothing. As they returned to U.S. 1, Deputy Sadler spotted a light near the vehicle. They drove back and saw the defendant kneeling by the car with a lit match.

Deputy Pipher asked defendant what he was doing; the defendant replied he was searching for his car keys. Deputy Pipher went for a flashlight, and he and Deputy Sadler started to help defendant look for his keys. Pipher didn’t find any keys, but he did find a couple of partial, false teeth, which defendant claimed he had dropped, and which Pipher returned to the defendant. While searching, they talked and the defendant said he had not heard anyone screaming in the area, that he was alone, and that he stopped to go swimming and sober up.

Deputy Pipher then walked down the path toward the beach to see whether perhaps the defendant had dropped his keys between the beach and the car. He saw some drag marks, and thinking that somebody might be camping illegally, shined the flashlight in the direction of the marks. It was then that he discovered the nude body of the victim. He examined the body, but could find no pulse, though the body was still warm. The victim had scratch and cut marks all over her body, her face was badly beaten, and her hands were tied with a T-shirt.

At this point, Deputy Pipher remembered the physical characteristics of the defendant, who was wearing cut-off jeans and no shirt, and who had marks on his left side. Both Sadler and Kenney had also noticed the defendant was scratched. Pipher recalled the one sandal which was lying just outside the car. Pipher immediately returned to the car. When he returned, he saw the defendant sitting in the front seat of the Corvette looking through the “stuff” he had in the car. Defendant was placed under arrest at that time.

The defendant was removed to the patrol car and read his rights. Pipher then roped off the area.

Detective Valdes arrived at about 11:14 p. m., which was about 45 minutes to an hour after defendant’s arrest. The deputies turned over the crime scene and transported defendant to the substation at Marathon Key.

Detective Valdes examined the scene and discovered the sandal and what appeared to be brown human hair underneath the car. It was this hair which became State’s Exhibit 8. Detective Valdes collected the sandal and the hair and sealed them in small evidence bags. The • Corvette was then sealed with a sheriff’s sticker and transported to the substation at Vaca Key.

The detectives began processing the Corvette at 4:10 a. m. that same night. A number of items were seized during the search which were admitted into evidence at the trial.

Appellant’s point claiming error upon the court’s denial of the public defender’s motion to withdraw as defendant’s counsel is dependent upon some showing in the record of a conflict between defendant and his appointed counsel sufficient to raise a reasonable possibility that because of the conflict, through an absence of effective communication or otherwise, defendant was denied the effective assistance of counsel. This record does not show such reasonable possibility. The burden should be on the defendant to show that he required substitute counsel. See Stepp v. Estelle, 524 F.2d 447 (5th Cir. 1975). Cf. United States v. Burkeen, 355 F.2d 241 (6th Cir. 1966). In this case, as in Gagnon v. State, Fla.App. 1971, 243 So.2d 219, the record does not show an allegation of incompetency or inadequacy and, indeed, it is argued only obliquely in the briefs. Appellant’s position is that the very filing of the motion for withdrawal by the public defender shows a “failure to communicate.” We cannot agree; the motion and the hearing thereon show that it was occasioned by defendant’s filing of pro se motions. If defendant did not communicate with his court-appointed counsel, this was so because he chose not to do so. We hold that no error appears under this point.

The appellant has filed a pro se brief in addition to the brief of the public defender and the reply brief of his privately-retained counsel. Because of the peculiarities of this case and the nature of the main point presented, we have considered the points raised in the pro se brief. They are: (1) the search of defendant’s automobile was illegal and the evidence seized was, therefore, inadmissible at trial; (2) the judge erred in failing to disqualify himself; and (3) the court erred in denying the defense’s request for further psychiatric examinations.

As to the first point above, we hold that the search was legal. See Gagnon v. State, Fla.App.1968, 212 So.2d 337; and Sessions v. State, Fla.App.1968, 213 So.2d 614. These holdings are in accordance with federal standards. See Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). As to the second point, we note that the trial judge was not presented with a motion to disqualify himself pursuant to CrPR 3.230. See Wilson v. Renfroe, Fla.1956, 91 So.2d 857. Finally, defendant’s sanity was determined by the court pursuant to CrPR 3.210(a). No abuse of discretion is shown. See Child v. Wainwright, Fla.1963, 148 So.2d 526; and Brown v. State, Fla.1971, 245 So.2d 68. Defendant seems to argue that because the State provided him with the means for his defense, he was entitled to more than other defendants. We reject this proposition and hold that defendant was entitled to, and did receive, a fair trial under the rules of court and the applicable law.

Affirmed.


text:
    Francisco CHURRUCA et al., Appellants, v. MIAMI JAI-ALAI, INC., et al., Appellees.
    No. 75-838.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Rehearing Denied Nov. 2, 1976.

      Heller & Kaplan, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and Ira H. Leesfield, William R. Dawes, Miami, Subin, Shams, Rosenbluth & Moran, Orlando, J. Riley Davis, Tallahassee, Robert L. Shevin, Atty. Gen., Joseph M. Murasko, Fern Park, for appellees.
    Before HENDRY, HAYERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiffs appeal an order dismissing with prejudice their second amended complaint in an action for tortious conspiracy.

In 1968 plaintiffs, professional jai-alai players, formed a union and attempted to receive higher wages and increased benefits from the defendant jai-alai frontons by striking and refusing to honor their player contracts for the 1968-1969 season which caused their replacement by other players. Plaintiffs then sought re-employment for the 1969-1970 and ensuing seasons at the prevailing wages and conditions being offered to other jai-alai players; but because employment by a fronton is a prerequisite, they were unable to obtain licenses from defendant State Department of Business Regulation. In 1971 plaintiffs filed suit against the frontons for intentional interference with an advantageous relationship and conspiracy to deprive them of their right to earn a livelihood. The case was dismissed for failure to state a cause of action and the dismissal was affirmed by this court, 279 So.2d 107. A writ of certio-rari to the Florida Supreme Court was discharged “without prejudice to whatever rights, if any, petitioners may have for tor-tious conspiracy, if any, occurring subsequent to the 1968-69 jai-alai season.” See Churruca et al. v. Miami Jai-Alai et al., Fla.1974, 289 So.2d 395. Thereafter plaintiffs filed this action against the defendant frontons and Department of Business Regulation alleging a conspiracy on the part of all defendants in that they conspired not to employ plaintiffs. Their original and amended complaints having been dismissed, plaintiffs filed a second amended complaint which was dismissed with prejudice. Plaintiffs seek review of this dismissal. We affirm.

The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy which results in damage to the plaintiff. Thus, it is generally held that an act which does not constitute a ground of action against one person cannot be made the basis of a civil action for conspiracy. Liappas v. Augoustis, Fla.1950, 47 So.2d 582; Loeb v. Geronemus, Fla.1953, 66 So.2d 241; Ocala Loan Company v. Smith, Fla. App.1963, 155 So.2d 711. Further, general allegations of conspiracy are inadequate; the allegations must be clear, positive and specific. Gair v. Lockhart, Fla.1950, 47 So.2d 826; Renpak, Inc. v. Oppenheimer, Fla.App.1958, 104 So.2d 642; Stringfellow v. Breidegam, Fla.App.1962, 138 So.2d 75; Kutner v. Kalish, Fla.App.1965, 173 So.2d 763.

The allegations of the second amended complaint are legally insufficient to state a cause of action for conspiracy as there was no allegation that there were positions available for the plaintiffs who had been replaced. Plaintiffs also admitted that they refused to honor their contract for the 1968-1969 season and it follows that each defendant fronton has the right to hire players other than plaintiffs. Each defendant fronton exercised its right to refuse plaintiffs employment and the fact that the defendants were alleged to have acted in combination instead of individually has not effected a result different from anything that could have been accomplished separately.

We find the allegations of the instant complaint substantially the same as the allegations in the complaint filed in 1971 which was dismissed for failure to state a cause of action.

Affirmed.


text:
    Eric PARKER, Appellant, v. Green MARTIN, Jr. and Metropolitan Dade County Transit Authority, Appellees.
    No. 75-1593.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Rehearing Denied Nov. 3, 1976.
    Wolfson, Appel & Maram and E. W. Frank, Miami, for appellant.
    Stuart Simon, County Atty. and Thomas F. Valerius, Asst. County Atty., for appel-lees.
    Before HENDRY and HAVERFIELD, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

Plaintiff-appellant seeks review of a final judgment awarding him $250 in this negligence action.

Plaintiff, Eric Parker, sued the County after sustaining injuries while a passenger on an MTA bus. At trial, two of the three physicians that treated him testified. The $145 bill of Dr. Jordan Davis, one of the testifying physicians, was initially admitted into evidence, but later withdrawn by the trial judge apparently on the ground that Davis was an “examining physician” in contrast to a “treating physician” the jury retired to deliberate and then requested Dr. Davis’ bill. The judge advised that he had withdrawn the bill and it was not to be considered by the jurors. Subsequently, a verdict for $250 in favor of the plaintiff was returned and judgment was entered therefor.

Plaintiff contends the trial judge erred in withdrawing Dr. Davis’ bill. We find this point well taken.

Dr. Davis testified that he prescribed medication for the plaintiff after examining him. Thus, we find that Dr. Davis was a “treating physician.” Cf. Steiger v. Massachusetts Casualty Insurance Co., 253 So.2d 882 (Fla.3d DCA 1971). The testimony of Dr. Davis being admissible and a proper foundation having been laid for the introduction of his bill into evidence, the trial judge erred in withdrawing the bill from the jury’s consideration. See Marine Exploration Company, Inc. v. McCoy, 308 So.2d 43, 44 (Fla.3d DCA 1975).

Accordingly, the judgment is reversed and the cause remanded for a new trial.