source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of THE FLORIDA BAR, Petitioner, re Petition to Amend the Code of Professional Responsibility and the Integration Rule of The Florida Bar.
    No. 46652.
    Supreme Court of Florida.
    April 30, 1975.
    liehearing Denied Sept. 11,1975.
    James A. Urban, President of The Florida Bar, Orlando, Samuel Stuart Smith, Miami Beach, and Howell L. Ferguson, Tallahassee, Counsel; and Norman A. Faulkner, Tallahassee, Staff Counsel, for petitioner.
   PER CURIAM.

This matter came before us on petition of The Florida Bar to amend the Integration Rule of The Florida Bar and the Code of Professional Responsibility. We have jurisdiction pursuant to Article V, section IS of the Florida Constitution.

The Florida Bar has asked us to adopt five proposals relating to our governance of attorneys and the delivery of legal services. Four of these — extending the law school practice program to approved legal aid organizations, allowing attorneys in practice for less than five years to serve on the Bar’s unauthorized practice of law committees, eliminating the requirement that professional service corporations file charters and annual reports with the Bar, and authorizing sole practitioners to form professional service corporations — are approved.

The Bar has also proposed amendments relative to plans for group legal services. We approve the Bar’s suggestion that the administration of these plans should not be confined to nonprofit entities. We do not approve The Bar’s proposal to shift from the Court to the Bar’s Board of Governors the administrative responsibility for regulating these plans. No compelling reason has been presented to support the Bar’s request, and we are reluctant to relinquish direct regulatory authority over this emerging area of legal responsibility. In light of this determination and section 5 of Article XIX of the Integration Rule, we do not pass on the Bar’s proposed ByLaws relative to the governance of group legal services plans.

The following amendments to the Integration Rule, the Code of Professional Responsibility and the By-Laws of The Florida Bar are approved.

1. Sections 1, 3 and 5 of Article XV, Integration Rule, are amended as follows:

“1. Professional service corporations organized under Florida Statutes chapter 608 purstiant to Florida Statutes chapter 621 to practice law pursuant to the provisions of The Professional Service Corporation Act are authorized to engage in the practice of law in Florida but only while all shareholders of such corporation are active members of The Florida Bar in good standing and only while such corporation and all of its shareholders, officers, directors, agents and employees comply with the provisions of The Professional Service Corporation Act and the applicable provisions of the Integration Rule and By-Laws of The Florida Bar.
3.No person shall serve as a director of a professional service corporation engaged in the practice of law except an active member of The Florida Bar in good standing. No person shall be elected or shall serve as an executive officer of any such corporation except a person who is a shareholder in such corporation. For this purpose the term 'executive officer' shall not include the secretary of a professional service corporation having only one shareholder.
in 4. A lawyer who, while acting as a shareholder, officer, director, agent or employee of a professional service corporation engaged in the practice of law, violates or sanctions the. violation of the provisions of The Professional Service Corporation Act or the Integration Rule or By-Laws of The Florida Bar specifically relating thereto shall be subject to disciplinary action.”

2. Section 4 of Article XV, Integration Rule, is deleted in its entirety.

3. Section 2 of Article XVI, Integration Rule, is amended as follows:

“2. The Florida Bar, as an official arm of this Court, is charged with the duty of investigating matters pertaining to the unauthorized practice of law. The Board of Governors of The Florida Bar shall establish a Standing Committee on Unauthorized Practice of Law and shall establish not less than one unauthorized practice of law committee in each judicial circuit. The standing committee shall supervise and be responsible for each of the circuit committees. The circuit committees shall -fen the gu-r-pose ©f ■receiving complaints and conducting receive complaints and conduct preliminary investigations of reported unauthorized practices. The membership, appointment, eligibility, terms, officers, oath, removal, quorum and vote of each -s-ach circuit committee shall be in accordance with the provisions of subsections (c) through (h) inclusive of Rule 11.03(2) in Article XI of this Rule, except that members of The Florida Bar who have been members for less than five years may serve on unauthorized practice of law committees.”

4. Section. VIII of Article XVIII, Integration Rule, is amended as follows:

“VIII. Continuation of Practice Program After Completion of the Law School Program or Graduation.
A. A law student who has completed the law school practice program and whose certification has been withdrawn by the law school dean or has graduated from a law school approved by the American Bar Association, may appear in Court pursuant to this rule if the attorney general, a state attorney, ©f a public defender or a supervising attorney of a legal aid organization approved by the Supreme Court:
1. Files a certification in the same manner and subject to the same limitations as that required to be filed by the law school deam The attorney general a -state attorney; ©f a pafehe defender- may withdraw.- This certification may be withdrawn in the same manner as provided for the law school dean’s withdrawal of his certification. The maximum term of certification shall be computed from the date of original certification by the law school dean and for those graduates who have not participated in the law school program, the maximum term shall be twelve (12) months from graduation.
2. Further certifies that he will assume the duties and responsibilities of the supervising attorney as provided by other provisions of this rule.”

5.Section 2 of Article XIX, Integration Rule, is amended as follows :

“2. Every application for approval hereunder shall affirmatively demonstrate compliance with each requirement of Disciplinary Rule 2-103(D)(5), and shall further affirmatively demonstrate compliance by that each lawyer performing or to perform legal services in conncctien with saeh appheatien shall execute an agreement with the organization; which agreement shall fee filed with By-Laws of the Board of Governors of The Florida Bar and which shah deseeibe the general nature ef fee legal services fe fee performed and provide feafet with the follozving conditions :
(a) Any person eligible to receive legal services under the arrangement may obtain legal services independently of the arrangement from any attorney of his choice;
(b) No unlicensed person will provide legal services under the arrangement ;
(c) Neither the organization nor any member thereof shall interfere or attempt to interfere with the lawyer’s independent exercise of his professional judgment;
(d) The person to whom the legal services are rendered, and not the organization, is the client of the lawyer;
(e) In providing legal services, the lawyer must comply with the Code of Professional Responsibility, including without limitation those provisions relating to the setting, charging, and collecting of fees, and relating to advertising;
(f) Any publicity disseminated by the organization to its members will not describe the lawyer beyond giving his name, address and telephone number, and such other information as may be required to facilitate the access of a member of the services of the lawyer;
(g) Any publicity disseminated by the organization to nonmembers will not identify the lawyer by name;
(h) No organization shall advertise or otherwise make representations to the public or its members regarding the cost of legal services which may be provided by attorneys serving members of the organization. The cost of legal services depends upon varying conditions and circumstances which preclude determination of the fee to be charged for a required service prior to the time the attorney is retained;
(i) The agreement authority of the or-ganisation under this Article will be terminated in the event of any substantial violation of the provisions of the Code of Professional Responsibility or the Integration Rule or the by-laws promulgated thereunder.
(j) Any publicity that is going to be disseminated by the organization must first be approved by The Florida Bar.”'

6. Disciplinary Rule 2-103 (D)(5) of the Code of Professional Responsibility is amended to read:

“(5) Any organization that has procured the approval of the Board of Governors of The Florida Bar to provide group legal services pursuant to Article XIX of the Integration Rule of The Florida Bar and any By-Laws promulgated thereunder.”

7. Pursuant to our deletion of Section 4 of Article XV of the Integration Rule, Article XVI of the By-Laws under the Integration Rule is deleted in its entirety and By-Laws Article XVII is renumbered to be Article XVI.

ADKINS, C. J., ROBERTS, OVER-TON and ENGLAND, JJ., and AGNER and PATTERSON, Circuit Judges, concur.

      . 32 Fla.Stat.Ann. 497, as amended.

      . 32 Fla.Stat.Ann. 129 (Pocket Part 1974).

      . Italics indicate new material. Materials interlineated are deleted.


author: SUNDBERG, Justice.

text:
    The STATE of Florida, in the relation of the SCHOOL BOARD OF MARTIN COUNTY, Florida, Relator, v. The DEPARTMENT OF EDUCATION, State of Florida, a State Agency, and Gerald Lewis, Comptroller, State of Florida, Respondents.
    No. 47475.
    Supreme Court of Florida.
    July 16, 1975.
    Rehearing Denied Sept. 10, 1975.

      James Elliott Messer and Robert M. Rhodes, Thompson, Wadsworth & Messer, Tallahassee, for relator.
    Robert L. Shevin, Atty. Gen., and Larry Levy, Asst. Atty. Gen., for Dept, of Ed., and Howard Horowitz, Gen. Counsel, Miami, and William B. Corbett, Jr., Asst. Gen. Counsel, Tallahassee, for Gerald A. Lewis, respondents.
   SUNDBERG, Justice.

The jurisdiction of this Court was properly invoked under Art. V, § 3(b)(5), Florida Constitution, and Rule 4.5, subd. b.(l), Florida Appellate Rules, for issuance of an alternative writ of mandamus directed to the respondents. Although several constitutional attacks have been made upon the position of the relator by the respondents, we deem the question raised in these proceedings, simply stated, to be: Has the Department of Education misconstrued the provisions of § 236.081, Florida Statutes, as amended by Ch. 74 — 227, Laws of Florida, so that the Department of Education has, in fact, failed properly to perform a ministerial duty incumbent upon it, thereby depriving relator of a clear legal right?

The factual background out of which the dispute arises is as follows: The Legislature on May 31, 1974, enacted Ch. 74-227, Laws of Florida, amending, inter alia, § 236.081, Florida Statutes, dealing with apportioning or allocating state school funds to the credit of the county district school boards in administering the Florida Education Finance Program (FEFP). By Ch. 74-227, § 236.25, Florida Statutes, also was amended to place an 8 mill limitation on millage by school districts in order for a district to participate in the FEFP. Ch. 74-227, Laws of Florida, became effective July 1,1974.

On May 31, 1974, the Legislature also enacted Ch. 74-535, Laws of Florida, Special Acts of 1974, whereby, subject to public referendum, a millage roll back was directed for taxing entities in Martin County, Florida. This act became effective after approval at a public referendum held in Martin County on November 6, 1974.

The budget for relator for the school year 1974-1975 was submitted to the Department of Education on August 15, 1974, and approved by ■ the department on December 3,1974.

Although pursuant to Chapters 193 and 194, Florida Statutes, the tax assessor in each county is required to complete his assessment of the value of all property no later than July 1 of each year and the assessment roll is required to be submitted to the executive director of the Department of Revenue for review on or before the first Monday in July in each year, due to a comprehensive reappraisal of the real property in Martin County, the tax assessor, instead of submitting the tax roll to Martin County in July did not submit it until December 5, 1974, and it was approved on January 8, 1975. The Department of Revenue was authorized to extend the assessment date for good cause shown. Relator thereafter established its millage on February 12, 1975, at 6.3373 mills, the “required local effort” as previously established by the Department of Education pursuant to § 236.081(5), Florida Statutes, as amended by Ch. 74-227, Laws of Florida. The tax collector of Martin County prepared and transmitted tax bills to the public on March 10, 1975.

The general counsel for the Department of Education advised the Commissioner of Education by letter dated January 16, 1975, that the Martin County school district’s entitlement to state funds should be computed on the basis of the millage allowed in the local act (Ch. 74 — 535, Laws of Florida, Special Acts of 1974) which, in the opinion of the general counsel for the Department of Education, established a “maximum allowable nonvoted millage” of 6.794 mills, said amount being 15% greater than the 5.-908 millage figure ultimately certified by the county tax assessor on December 5, 1974, pursuant to the “roll back” mandate.

On March 10, 1975, the Secretary of the Department of Administration challenged the general counsel’s interpretation and requested the opinion of the Attorney General. At that time, the Department of Education was allocating and distributing to Martin County FEFP funds based-upon a “maximum allowable nonvoted millage” of 6.794 mills, and the Department of Administration requested-the Department of Education not to distribute additional funds to the School Board of Martin County based on that interpretation of the law.

By letter dated April 14, 1975, the Director of the Division of Public Schools of the Department of Education notified the Superintendent of Schools for Martin County that, because of the action of the Department of Administration, the Department of Education must consider the district’s tax roll at 8 mills for purposes of FEFP “no-loss computation,” resulting in an overpayment to the district; therefore, the director requested a refund to the department of $455,468.00.

On May 2, 1975, the Attorney General issued Opinion 075-125, opining that the distribution of FEFP funds should be based on the provisions of general law, § 236.081(7) (b), subd. 4, par. b., Florida Statutes, and not based upon a “maximum allowable nonvoted millage” of 6.4538 mills computed pursuant to Ch. 74 — 535, Laws of P'lorida, Special Acts of 1974. Thereafter, on June 3, 1975, the petition for mandamus herein ensued, praying, inter alia, that the Department of Education be compelled to disburse withheld FEFP funds to relator based upon an asserted maximum allowable nonvoted millage of 6.454 mills. After oral argument on June 4, 1975, an alternative writ was issued. In response to the alternative writ the respondents filed their returns, which include a counterclaim for recoupment of the alleged overpayment to the Martin County school district.

When one pierces the multiple assertions and contentions of the parties set forth in their respective pleadings and briefs, this dispute devolves down to a question of statutory construction, more particularly a discernment of the intent of the Legislature as expressed in Ch. 74 — 227 and Ch. 74-535, Laws of Florida. The provisions of Ch. 74-227, Laws of Florida, at issue are set forth basically in § 236.081(7), Florida Statutes, 1974 Supplement, which recites the formula for allocation of FEFP funds to each district for current operation and establishes the “minimum level of funding” for each district for the 1974-1975 fiscal year. It should be noted at the outset that all school districts in the state participate in a single, finite appropriated fund so that the amount allocated to one district has an effect upon each of the other districts unless the amount appropriated by the Legislature exceeds the cumulative requirements of all of the school districts in the state. This is made clear by the following language contained in subsection 236.081 (7)(a):

“(a) ... If the funds appropriated for the purpose of implementing this subsection are not sufficient to pay the requirements in full, the Department of Education shall prorate the available funds on a percentage basis. If the funds appropriated for the purpose of implementing this subsection exceed the amount necessary to pay the requirements in full, the excess appropriation shall be transferred to, and become a part of, the appropriation for the comprehensive school construction and debt service program and shall be allocated by the department in the manner prescribed by s. 236.084. ...”

After formularizing the net annual allocation of FEFP funds to each district in subsection 236.081(7)(a), the Legislature proceeded in subsection 236.081 (7) (b) to establish the concept of “guaranteed minimum level of funding” and formularized it as follows:

“(b) The amount thus obtained shall represent the net annual state allocation to each district; however, notwithstanding any of the provisions herein, each district shall be guaranteed a minimum level of funding for the 1974-1975 fiscal year in the amount and manner prescribed belozu:
"1. The department shall determine the value per full-time equivalent student for the 1973-1974 fiscal year for each district as follows: Divide the total number of full-time equivalent students included in the 1973-1974 Education Finance Program into the sum of:
“a. The 1973-1974 state allocation for: Current operation, as provided in s. 236.081(6) (a) and (b); student transportation, as provided in s. 236.083(7); elementary school counselors, as provided in s. 236.086; occupational specialists, as provided in s. 236.085; and tax loss resulting from the additional homestead exemptions, as provided in s. 196.-031(4); and
“b. The calculated yield of the actual nonvoted millage levied by the district during the 1973-1974 fiscal year on 95 percent of the 1973 calendar-year nonexempt assessed valuation of the district for school purposes, as determined pursuant to the provisions of * * * [subsection (5)].
“2. The value per full-time equivalent student determined in subparagraph 1. Shall be increased by 10 percent.
"3. The amount determined in sub-paragraph 2. shall be multiplied by the number of full-time equivalent students included in the final estimated computation of the 1974 — 1975 Education Finance Program.
“4. The amount determined in sub-paragraph 3. shall be the minimum level of funding for each district for the 1974 — 1975 fiscal year. Such amount shall include the following:
“a. The state allocation for current operation, as provided in paragraph (a), exclusive of all categorical programs, with the exception of student transportation, elementary school counselors, and occupational specialists and placement specialists; and
“b. The calculated yield of the allowable nonvoted millage during the 1974-1975 fiscal year on 95 percent of the 1974 calendar-year nonexempt assessed valuation of the district for school purposes aj prescribed in s. 236,25.
“5. In my district in which the amount determined in subparagraph 3. does not equal or exceed the * * [sum of the] sources specified in subpar-agraph 4., the state share of this total shall be increased in an amount suffi cient to assure that each district receives the amount determined in- subparagraph 3.
“6. If the millage levy proposed by the district school board in conjunction with state funding as provided in subpar-agraph 4.a. is calculated to produce an amount in excess of the amount determined in subparagraph 3., the district school board shall advertise such fact and the proposed millage levy in the manner prescribed in s. 200.065(3) and (4).” (Emphasis supplied.)

The Special Act, Ch. 74 — 535, provides in its pertinent parts:

“Section 1. Method of fixing millage.
“(1) After the tax assessment rolls have been prepared on the basis as required by law, the board of county commissioners, the school board, and all other governing boards or governing authorities of all other taxing districts in Martin County including municipalities, whose taxes are assessed on the tax roll prepared by the county assessor, shall reduce the millage to be levied by each such governing authority from what it was in the preceding year proportionate to the increase of the general level of assessed value over the preceding year, unless otherwise required by law to maintain a higher millage level in' order to participate in state revenue sharing, or any other matching formula for funding of state or local governmental programs or projects. .
“(2) In the event any budget making authority determines that, due to impending emergencies, the authority will require funds in excess of those anticipated, and that unless additional funds are made available the operation of the authority in meeting its legal duties and obligations will be seriously impaired and provided that such budget making authority has requested and obtained a ten percent (10%) increase as set forth in subsection (1) herein, the budget making authority may apply for an additional increase not to exceed five percent (5%) of the millage as reduced by subsection (5), in the millage required to meet the budget for operating funds in the following manner:
* * * * * *
“Section 4. Local taxing authorities shall maintain a millage level necessary to participate in state revenue sharing, maintain the local required effort under the Florida education finance program or any other matching formula for funding of state or local governmental programs or projects.”

Additionally necessary to our inquiry is subsection 236.25(1), Florida Statutes 1974 Supplement, which reads:

“ * 236.25 District school tax.—
“(1) Each school board desiring to participate in the state allocation of funds for current operation as prescribed by s. 236.081(5) shall levy no more than 8 mills of tax on the nonexempt assessed valuation for school purposes of the district, exclusive of millage voted under the provisions of ss. 9(b) and 12 of Art. VII of the State Constitution.”

It is our obligation, if possible, to harmonize Ch. 74-227 and Ch. 74-535, since it is obvious that both chapters relate to the subject matter of the FEFP. See Orlando Transit Co. v. Florida Railroad & Pub. Util. Comm’n, 160 Fla. 795, 37 So.2d 321 (1948); Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234 (1944); Arnold v. State ex rel. Mallison, 147 Fla. 324, 2 So.2d 874 (1941). To follow relator’s argument to its logical conclusion, we would be obliged to ignore the last phrase of § 236.081(7) (b), subd. 4, par. b., Florida Statutes, as amended, reading: “ . . . as prescribed in s. 236.25.” This, in effect, would lead to the repeal of that phrase, by implication, insofar as the Martin County School Board is concerned. In our judgment such implied repeal is not called for in that the statutes can be read together with effect being given to both. As was stated for this Court by Mr. Justice Parkhill in Curry v. Lehman, 55 Fla. 847, 47 So. 18, at p. 21 (1908):

“ . . . It is to.be presumed that different acts on the same subject passed at the same session of the Legislature are imbued by the same spirit and actuated by the same policy, and they should be construed each in the light of the other. The legal presumption is that the Legislature did not intend to keep really contradictory enactments in the statute books, or to effect so important a measure as the repeal of a law without expressing an intention to do so. An interpretation leading to such a result should not be adopted, unless it be inevitable. The rule of construction in such cases is that if courts can, by any fair, strict, or liberal construction, find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation upon the subject, it is their duty to do so.”

Accord, City of St. Petersburg v. Pinellas County Power Co., 87 Fla. 315, 100 So. 509 (1924); State ex rel. Luning v. Johnson, 71 Fla. 363, 72 So. 477 (1916). See also 82 C.J.S. Statutes § 292, p. 497.

A plain reading of subsection 236.-081 (7) (b), subd. 4, par. b., Florida Statutes, 1974 Supplement, makes it clear that an essential element of the formula for calculating the “hold harmless” contribution by the state is the “calculated yield of the allowable nonvoted millage during the 1974-1975 fiscal year ... as prescribed in s. 236.25.” (Emphasis supplied.) Section 236.25, as amended, clearly refers to 8 mills of tax on the nonexempt assessed valuation for school purposes of the district, exclusive of millage voted under the provisions of ss. 9(b) and 12 of Art. VII of the State Constitution. No other conclusion can be reached but that the “allowable nonvoted millage” referred to in subsection 236.081(7) (b), subd. 4, par. b., Florida Statutes, 1974 Supplement, is 8 mills. Relator contends that “allowable nonvoted millage” as applied to it is 6.454 mills due to the operation of Ch. 74-535. To concur in this assertion would be to impliedly repeal that portion of subsection 236.081(7) (b), subd. 4, par. b., which refers to section 236.25, Florida Statutes, 1974 Supplement. Such an interpretation, we believe, ignores the express exclusionary language of subsection (1) of § 1 of Ch. 74-535. Subsection (1) mandates a roll back in millage “ . . . unless otherwise required by law to maintain a higher millage level in order to participate in state revenue sharing, or any other matching formula for funding of state or local governmental programs or projects.” It is the position of relator that such exclusion is limited by § 4 of Ch. 74 — 535, which refers only to maintaining the “local required effort under the Florida education finance program.” A more appropriate construction of the special act is that subsection (1) of section 1 creates an absolute exclusion within the area of its operation, leaving it to the local decision of relator in establishing millage to qualify for state aid, whereas section 4 is directive in requiring that relator “ . . . [shall] maintain the local required effort under the Florida education finance program . . . .”

This analysis is borne out by reference to subsection 236.02(6), Florida Statutes, which sets forth the criteria for participation in the FEFP by adoption of the concept of “minimum required effort”. In short, Ch. 74-535 mandates that relator shall meet the “minimum required effort” imposed by subsection 236.02(6), Florida Statutes, but by subsection (1) of § 1 leaves to local option in Martin County the decision of whether to levy the 8 mills necessary to meet the “allowable nonvoted millage” test of subsection 236.081(7) (b), subd. 4, par. b. Such an interpretation of Ch. 74— 535 completely harmonizes it with Ch. 74-227. To reach a contrary result would not only create an irreconcilable conflict between the two laws, but would distort what was surely intended by the Legislature to be a uniform scheme of support to all school districts in the state.

Relator asserts that under all circumstances it was guaranteed a 10% increase in the 1974-1975 fiscal year over the fiscal year 1973-1974 FTE allocation. With its proposition we disagree. Subsection 236.081(7) (b) did not guarantee absolutely a 10% increase, but rather guaranteed that the state would “plug the gap” between the 10% increase stated in subsection 236.081 (7) (b), subd. 3., Florida Statutes, 1974 Supplement, and the sum of the sources set forth in subsection 236.081(7) .(b), subd. 4., which are:

a. The state allocation set forth in subsection (a) of section 236.081(7), excluding the enumerated items; and
b. The “calculated yield of the allowable nonvoted millage ... as prescribed in s. 236.25.” (Emphasis supplied.)

To conclude otherwise would be to give no effect whatsoever to the phrase “ . as prescribed in s. 236.25.”

We cannot attribute to the Legislature an intention to leave to the 67 school districts in the State of Florida the effective application of the complicated formula devised to allocate equitably among the school districts in Florida the state aid appropriated for that purpose. This conclusion is buttressed by that portion of § 236.081(7) (a), Florida Statutes, 1974 Supplement, which provides that if the funds appropriated are not sufficient to pay the requirements in full of the several districts, the Department of Education shall prorate the available funds on a percentage basis. Inherent in this provision is the concept of a tender balance being struck so that the FEFP can be fairly administered.

As a result of 'the foregoing conclusions reached in construing the interrelationship between Ch. 74-227 and Ch. 74-535, it is not necessary for us to pass upon the additional points raised by the parties.

Relator’s application for peremptory writ of mandamus is denied and the alternative writ heretofore issued is discharged.

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

      . There is an unexplained discrepancy among the opinion of the general counsel for the Department of Education (6.794 mills), the opinion of the Attorney General (C.4538 mills) and the statement of counsel for the relator in its petition (6.454 mills) with regard to the “maximum allowable nonvoted millage” calculated under Oh. 74-535, Laws of Florida, Special Acts of 1974, but resolution of such discrepancy is not essential to the result reached in this opinion.

      . In their return, the respondents assert a counterclaim for funds allegedly distributed to relator by mistake and inadvertence. There being no provision in Rule 4.5, subd. b.,' Florida Appellate Rules, for such relief in a mandamus proceeding and it appearing obvious that factual issues necessarily would have to be framed to adjudicate such claim for relief, this Court will not entertain the asserted counterclaim; such ruling, however, is without prejudice to the right of any of the parties hereto to have such alleged claim adjudicated in a court of competent jurisdiction.


text:
    ORKIN EXTERMINATING COMPANY, INC., Petitioner, v. Frank C. GIRARDEAU, Respondent.
    No. 46437.
    Supreme Court of Florida.
    May 9, 1975.
    Rehearing Denied Sept. 5, 1975.
   Certiorari denied. 301 So.2d 38.

ADKINS, C. J., and ROBERTS, DE-KLE and OVERTON, JJ., concur.

BOYD, McCAIN and ENGLAND, JJ., dissent.


text:
    Nicholas P. YIANILOS, etc, et al., Petitioners, v. Sophia P. ARGEROS et al. Respondents.
    No. 46456.
    Supreme Court of Florida.
    June 20, 1975.
    Rehearing Denied Sept. 4, 1975.
   Certiorari denied. 301 So.2d 519.

ROBERTS, BOYD, OVERTON, and ENGLAND, JJ, concur.

ADKINS, C. J, dissents.


text:
    Ralph Lamar HIGHTOWER, Petitioner, v. STATE of Florida, Respondent.
    No. 46509.
    Supreme Court of Florida.
    June 23, 1975.
    Rehearing Denied Sept. 5, 1975.
   Certiorari denied. 301 So.2d 504.

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


text:
    LAKE JESSAMINE PROPERTY OWNERS ASSOCIATION, et al., Petitioners, v. DRAGE-GROTHE, LTD., et al., Respondents.
    No. 46881.
    Supreme Court of Florida.
    June 26, 1975.
    Rehearing Denied Sept. 4, 1975.
   Certiorari denied. 304 So.2d 504.

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


text:
    Janice BECKER, Petitioner, v. Dorothy D. KING, Respondent.
    No. 47093.
    Supreme Court of Florida.
    July 28, 1975.
   Certiorari dismissed. 307 So.2d 855.


text:
    Jesse D. EDDINGS, Appellant, v. CITY OF ST. PETERSBURG, Appellee.
    No. 47746.
    Supreme Court of Florida.
    July 28, 1975.
   Cause dismissed, sua sponte.


text:
    Gary HUBBARD, Appellant, v. STATE of Florida, Appellee.
    No. 47583.
    Supreme Court of Florida.
    July 28, 1975.
   Appeal dismissed.


text:
    Stanley Waldrof MOULDING, Petitioner, v. STATE of Florida, Respondent.
    No. 47428.
    Supreme Court of Florida.
    July 28, 1975.
   Certiorari denied. 312 So.2d 256.

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


text:
    James L. CAIN, M.D., Petitioner, v. Donald L. AMES, M.D., P.A., Respondent.
    No. 47098.
    Supreme Court of Florida.
    July 29, 1975.
   Certiorari denied. 308 So.2d 202.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, TL, concur.


text:
    Roberto GARCIA, Jr., Petitioner, v. The STATE of Florida and the Honorable Gene Williams as Judge of the Circuit Court, Criminal Division, in and for Dade County, Florida, Respondent.
    No. 47090.
    Supreme Court of Florida.
    July 29, 1975.
   Certiorari denied.

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

BOYD, J., dissents.


text:
    Millard Howard GRIFFITH, Petitioner, v. STATE of Florida, Respondent.
    No. 47167.
    Supreme Court of Florida.
    July 29, 1975.
   Certiorari denied. 308 So.2d 575.

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


text:
    Simon Willie JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 47361.
    Supreme Court of Florida.
    July 29, 1975.
   Certiorari denied. 311 So.2d 761.

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


text:
    William Ronald BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 47257.
    Supreme Court of Florida.
    July 30, 1975.
   Certiorari denied. 310 So.2d 71.

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


text:
    DUVAL PRODUCTIONS, INC., etc., Petitioner, v. CITY OF TAMPA, etc., et al., Respondents.
    No. 47029.
    Supreme Court of Florida.
    July 30, 1975.
   Certiorari denied. 307 So.2d 493.

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


text:
    Melvin Anthony EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 46798.
    Supreme Court of Florida.
    July 30, 1975.
   Certiorari denied.

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


text:
    Johnnie Lee HAMPTON, Petitioner, v. STATE of Florida, Respondent.
    No. 47212.
    Supreme Court of Florida.
    July 30, 1975.
   Certiorari denied. 308 So.2d 560.

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


text:
    Carmen MONTESANO, Petitioner, v. GANNETT FLORIDA CORPORATION, Respondent.
    No. 47176.
    Supreme Court of Florida.
    July 30, 1975.
   Certiorari denied. 308 So.2d 599.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J,, dissents.


text:
    PRINCESS PROPERTIES INTERNATIONAL, LTD., etc., Petitioner, v. GATEHOUSE INVESTMENTS, LTD., et al., Respondents.
    No. 47067.
    Supreme Court of Florida.
    July 30, 1975.
   Certiorari denied. 308 So.2d 659.

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


text:
    Bertha SALZMAN, Petitioner, v. CITY OF SOUTH MIAMI, Respondent.
    No. 47329.
    Supreme Court of Florida.
    July 30, 1975.
   Certiorari denied.

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


text:
    Benjamin Franklin TAYLOR, Jr., et al., Petitioners, v. Doris R. AKINS, Respondent.
    No. 47703.
    Supreme Court of Florida.
    July 30, 1975.
   Certiorari dismissed.


text:
    BREWER, Pearl, Petitioner, v. APALACHICOLA NORTHERN RAILROAD COMPANY, etc., Respondent.
    No. 46767.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied. 303 So.2d 652.

ADKINS, C. J., and BOYD, OVER-TON, JJ., and DREW, J. (RETIRED), concur.

ENGLAND and SUNDBERG, JJ., dissent.


text:
    ADVERCOLOR PRESS, INC., et al., Petitioners, v. GRAPHIC SALES INNOVATORS, INC., et al., Respondents.
    No. 47121.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied. 307 So.2d 899.

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


text:
    Frank P. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 47091.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied. 307 So.2d 896.

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


text:
    CALDER RACE COURSE, INC., Petitioner, v. BOARD OF BUSINESS REGULATION, etc., et al., Respondents.
    No. 47775.
    Supreme Court of Florida.
    July 31, 1975.
   Cause denied.

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


text:
    Frankie Lee CLEMENTS, Petitioner, v. STATE of Florida, Respondent.
    No. 47294.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied. 310 So.2d 420.

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


text:
    501 CORPORATION d/b/a Moulin Rouge, Petitioner, v. DIVISION OF BEVERAGE, etc., Respondent.
    No. 47143.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied.

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


text:
    Robert Oliver GILLIARD et al., Petitioners, v. STATE of Florida, Respondent.
    No. 47743.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari dismissed.


text:
    Leo LANE et al., Petitioners, v. HOLLYWOOD BEACH HOTEL DEVELOPMENT CO. et al., Respondents.
    No. 47145.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied.

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


text:
    Dennis A. MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 47182.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied.

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


text:
    James P. O’HARA, Petitioner, v. RIVERSIDE BAPTIST CHURCH et al., Respondents.
    No. 47186.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied.

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


text:
    Robert Marvin PIERCE, Petitioner, v. STATE of Florida, Respondent.
    No. 47239.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied. 309 So.2d 206.

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


text:
    Gene Edward WINTERS, Petitioner, v. STATE of Florida, Respondent.
    No. 47183.
    Supreme Court of Florida.
    July 31, 1975.
   Certiorari denied.

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


text:
    Sally SIMON, Appellant, v. Charles SIMON, Appellee.
    No. 74-1692.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 11, 1975.
    Heller & Kaplan, Miami, for appellant.
    Jack D. Burris, Miami Beach, for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The defendant, Sally Simon, appeals a summary final judgment which enjoined her from proceeding with actions against her former husband, Charles Simon, in the courts of the State of Pennsylvania. The trial judge correctly determined that under the facts before him upon the pleadings and affidavits submitted and the law of the case as established in Simon v. Simon, Fla.App.1974, 293 So.2d 780, the plaintiff was entitled to the injunction sought.

Affirmed.


author: NATHAN, Judge.

text:
    Frederick HILTON and Fish and Game Improvement Corporation, Petitioners, v. Sergio FLORIO et al., Respondents.
    No. 75-349.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 11, 1975.

      Philip G. Nourse, Ft. Pierce, for petitioners.
    Bernard H. Butts, Jr., and Anthony Die-guez, Hialeah, for respondents.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is a petition for writ of certiorari by Frederick Hilton and Fish and Game Improvement Corp., defendants in the trial court, seeking review of an order of the circuit court sitting in its appellate capacity, affirming an order of the county court denying the defendants’ motion to set aside final judgment of damages and foreclosure and writ of execution.

On October 26, 1973, Sergio Florio and Portmart, Inc., respondents herein, filed their claim against Hilton and Fish and Game in the county court, seeking damages for breach of contract, account stated, and foreclosure of mechanics lien for work and services performed on a boat. A pretrial conference was held on January 31, 1974. Florio and Portmart, the plaintiffs, were represented by counsel; Hilton and Fish and Game, the defendants, were not. The court advised them to retain counsel, which they did. On April 15, 1974, defense counsel filed an answer with affirmative defenses and a counterclaim for damages in excess of $2,500. Several days later, plaintiffs filed a motion to dismiss the counterclaim. On May 15, the county court, without notice to defendants’ counsel, granted the motion to dismiss the counterclaim, and on May 23, the court entered ex parte, a final judgment of damages and foreclosure. A few days later, plaintiffs’ counsel mailed a copy of the final judgment, together with a copy of the order of May 15, dismissing the counterclaim, to defendants’ counsel. Defendants then filed a motion to set aside the final judgment which the county judge denied. In the order of denial, however, the court made a finding of fact, “That the plaintiff did not notify the Defendant of the hearing date on the Plaintiffs’ Motion to Dismiss the Counterclaim.” The defendants filed an appeal in the circuit court and filed a supersedeas bond. The circuit court affirmed the county court’s order and this petition for writ of certiorari ensued.

Based upon the above-stated facts, the petition for certiorari is granted. We find that the circuit judge, acting in his appellate capacity, departed from the essential requirements of law in affirming the trial court’s order dismissing the counterclaim since the defendants were given no notice of hearing on the motion to dismiss, which is not a motion to be entertained by the court ex parte. See Rule 1.-090(d), RCP. The Rules of Civil Procedure are applicable herein since Summary Procedure Rules apply only to actions not exceeding $1,500. Rule 7.010, RSP.

Therefore, the order of the circuit court affirming the trial court is quashed and the orders dismissing the counterclaim and denying the defendants’ motion to set aside final judgment are hereby reversed.


author: BOYER, Chief Judge.

text:
    Mary McCLURKIN, Appellant, v. PARRISH VOLVO, INC., a corporation, Appellee.
    No. X-59.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1975.
    Rehearing Denied Sept. 11, 1975.
    William H. Folsom, Jr., Powers, Folsom & Adams, Jacksonville, for appellant.
    Ellis T. Fernandez, Jr., Hazard & Fernandez, Jacksonville, for appellee.
   BOYER, Chief Judge.

We are here presented with a novel factual situation relative to construction or interpretation of Rule 1.130 RCP.

Appellant, plaintiff in the trial court, purchased a vehicle from appellee. Her attorney thereafter wrote a letter to appel-lee purporting to be a “notice of revocation” in which he enumerated in detail various alleged defects in the vehicle and various problems alleged to have been experienced incident to the operation thereof. Suit was thereafter filed “for revocation of acceptance with relief as provided in Florida Statute Chapter 672.” Plaintiff attached a copy of the above mentioned letter to the complaint, marking same as an exhibit. The complaint contained an allegation that plaintiff had experienced “the problems listed in plaintiff’s attorney’s notice of breach of warranties letter * * * a copy of which is attached hereto and marked Plaintiff’s Exhibit B”. The defendant, appellee here, filed a motion to strike and a motion to dismiss. At the hearing the learned trial judge announced his intention to rule that the matters contained in the exhibit should have been pled in the complaint and that accordingly the motion to strike the exhibit would be granted and the complaint dismissed with leave to amend by reciting in the amended complaint those matters contained in the stricken exhibit. Plaintiff’s attorney took the position that the attachment of the exhibit, to be considered as a part of the allegations of the complaint, was in accordance with Rule 1.130 RCP and stubbornly refused to amend the complaint, whereupon the trial judge entered the following order:

“This cause having come on to be heard after due notice on the motion of the defendant to dismiss and to strike and the court having heard argument of counsel and the court having announced its intention to rule that the matters contained in exhibit B should have been pled in the complaint and that, accordingly, exhibit B should be stricken and the complaint amended, and plaintiff’s counsel having announced he did not wish leave to amend but preferred that, instead, any order of dismissal be with prejudice, it is upon consideration thereof
“ORDERED AND ADJUDGED that:
“Plaintiff’s complaint and this cause of action be, and the same are hereby, dismissed with prejudice.”

Although it appears to us that the plaintiff would have been on safer grounds, much time and expense would have been saved and this appeal (which has been carefully and exhaustively briefed and argued) would have been rendered unnecessary had appellant’s counsel followed the simple expediency of retyping his complaint, and setting forth therein the allegations of the stricken exhibit, nevertheless appellant’s point has been preserved and properly presented to us, albeit expensively in time, money and judicial labors, and she is entitled under the laws of this State to have the point resolved by this Court.

The exact point here presented appears never to have been heretofore ruled upon by any appellate court in this State. Research reveals that there are numerous cases considering the effect of failure to attach exhibits and at least three cases have dealt with the responsibility of the trial court to consider exhibits attached to the complaint. However, no case has been found directly passing upon the propriety of attaching exhibits containing relevant information but not constituting the basis of the cause of action.

It is not contended by appellant that the stricken exhibit is the' document forming the basis of a cause of action and therefore required to be attached pursuant to the first sentence of Rule 1.130(a) RCP; nor does appellee contend that the recitations in the stricken exhibit are irrelevant or immaterial. Further, apparently the trial judge did not consider those recitations to be immaterial or irrelevant otherwise he would not have announced his intention to rule that the matters should have been pled in the complaint.

Thus, the exact question presented is whether a plaintiff may set forth pertinent, relevant and material matters in an exhibit and then incorporate such matters in the complaint by attaching the exhibit and making reference thereto. We answer in the affirmative.

Although the above mentioned rule does not specifically provide for the attachment of such exhibits, neither does it specifically prohibit same. To permit such practice appears to us to be in keeping with the spirit and intent of modern pleading practices. It has been held that the object of the cited rule is to apprise the defendant of the nature and extent of the cause of action alleged so that such defendant may plead thereto with greater certainty.

We do not here hold that impertinent, irrelevant or immaterial documents may be annexed to a complaint as an exhibit, nor do we hold that a trial court is without power to strike exhibits which contain, in addition to pertinent, relevant and material matters additional matters which are redundant, immaterial, impertinent or scandalous.

Determining, as we do, that the exhibit was improperly stricken from the plaintiff’s complaint and there being no contention that had the allegations of that exhibit been contained in the complaint, same would have been fatally defective, it follows that dismissal was error.

Reversed and remanded for further proceedings consistent herewith.

MILLS, J., and MELVIN, WOODROW M., Associate Judge, concur.

      . Hunter v. Tyner, Sup.Ct.Fla.1942, 151 Fla. 707, 10 So.2d 492; Dade County v. Harris, Sup.Ct.Fla.1956, 90 So.2d 316; and Harry Pepper é Associates, Inc. -v. Lasseter, Fla. App. 3rd 1971, 247 So.2d 736.

      . Please see first sentence of Rule 1.130(a) RCP.

        . United States Rubber Products v. Clark, Sup.Ct.Fla.1941, 145 Fla. 631, 200 So. 385; Sachse v. Tampa Music Co., Fla.App. 2nd 1972, 262 So.2d 17, appeal after remand 289 So.2d 785.

      . Rule 1.140(f) ROP.


text:
    Douglas KING, Appellant, v. STATE of Florida, Appellee.
    No. W-193.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1975.
    H. Randolph Fallin, of Millar, Fallin & Lally, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen. for appellee.
   PER CURIAM.

We have carefully examined the record on appeal and briefs filed by able counsel. We find therefrom that each point here presented has been heretofore determined by decisions of the Appellate Courts of Florida, including the Supreme Court of Florida. Nothing would be added to the jurisprudence of this State by again discussing those points here.

Appellant having failed to demonstrate prejudicial error, the judgment and sentence appealed are

Affirmed.

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


author: MILLS, Judge.

text:
    Eddie Collier ALLEN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-20.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1975.

      Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

After denial of his motion to suppress evidence, Allen pled nolo contendere to a charge of possession of heroin; he was- adjudicated guilty and sentenced to timé in the state prison. The question before us is whether the trial court erred in denying the motion to suppress.

While patrolling a high drug traffic area, police officers Rein and Smith saw a registered heroin addict, previously known to them, hand Allen an undetermined amount of money. The addict and Allen were standing next to and were facing a building wall. Later, the officers saw Allen remove a paper bag from his pants pocket and start to hand it to the addict. At this stage, the officers believed a drug transaction was taking place. As the officers approached the addict and Allen, Allen returned the bag to his pocket and the addict and Allen rapidly walked away. Officer Rein stopped Allen and placed him’ under arrest for possession or sale of narcotics. During a pat down, a struggle took place between Officer Rein and Allen; Allen removed the bag from his pocket and threw it to the ground. He then picked up the bag and again placed it in his pocket. After subduing Allen, Officer Rein searched him and found the bag which contained heroin.

Allen contends the search was invalid because there was lack of probable cause to arrest him.

Probable cause to make an arrest is determined from a totality of the facts and circumstances existing at the time of the arrest as viewed by a prudent and cautious police officer. State v. Profera, 239 So.2d 867 (Fla.App. 4th, 1970).

We are of the opinion that the totality of the evidence heard by the trial court was sufficient to constitute probable cause for arrest of Allen. The arrest being valid; the subsequent search was valid, and the trial court properly denied Allen’s motion to suppress the evidence.

Affirmed.

BOYER, C. J., and McCORD, J., concur.


text:
    C. B. WILLIAMS, Jr., and Dollie M. Williams, his wife, Petitioners, v. ENVIRONMENTAL SYSTEMS PLANNERS, INC., Respondent.
    No. Y-73.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1975.
    J. Marshall Gifford, Tallahassee, for petitioners.
    F. E. Steinmeyer, III, Folsom & Stein-meyer, Tallahassee, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is denied. See Wertman v. Tipping, 166 So.2d 666 (1 Fla.App.1964).

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


text:
    J. E. R., a minor, Appellant, v. STATE of Florida, Appellee.
    No. Y-158.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1975.
    James Ron Shelley, Public Defender, Nancy Richardson, John W. Fleming, and Ernest L. Cotton, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

The Circuit Court, in withholding adjudication of delinquency and placing this minor on probation after he admitted to breaking and entering with intent to commit petit larceny, assessed $100 in court costs against the minor and his parents in order, apparently, to impress upon them the seriousness of his misconduct. However well-motivated and effective that assessment may be, it was forbidden by the Legislature. Sec. 39.19, F.S.1973. Insofar as the order from which the appeal was taken assesses court costs, it is

Reversed.

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


text:
    Perrin SHAPPLEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Y-318.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1975.
    James Ron Shelley, Public Defender; Reagan Ptomey, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed on- authority of Tucker v. State, 316 So.2d 297, First District Court of Appeal, Opinion filed June 30, 1975.

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


author: MILLS, Judge. McCORD, Judge

text:
    Allen JENKINS, Jr., and Leon Jenkins, Appellants, v. STATE of Florida, Appellee.
    No. U-169.
    District Court of Appeal of Florida, First District.
    Aug. 27, 1975.
    Robert A. Harper, Jr., Gainesville, for appellants.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Appellants-defendants were indicted for first degree murder. They pled not guilty. Following a jury trial, they were found guilty of second degree murder. They appeal from the judgment adjudicating them guilty of second degree murder, and sentencing them to life in prison.

Defendants contend the following errors were committed by the trial court:

1. Permitting the state to comment in closing argument on the failure of defendant Allen Jenkins, Jr., to use his common law wife as an alibi witness;

2. requiring the presence of two deputy sheriffs, equipped with two-way radios, in the courtroom during the trial;

3. making a prejudicial statement in ruling on the admissibility of certain evidence ; and

4. giving the standard jury instruction on “defendant not testifying”, hut refusing to change or amend the phrase “failure to take the witness stand” appearing therein, as requested by defendants.

We find no error and affirm.

In his opening statement, counsel for defendant Allen Jenkins, Jr., stated that the common law wife of this defendant would be called upon to testify that she and this defendant took their children to his mother between 8:00 P.M. and 8:30 P. M. on the evening of the alleged murder, and then proceeded to Cunningham’s Country Club where they met with four individuals at approximately 9:00 P.M., the time of the alleged murder. The common law wife was present in the courthouse throughout the trial. In closing argument, the attorney for the State was permitted, over objection of this defendant’s counsel, to comment that this defendant failed to produce his common law wife to testify as his counsel promised.

Alibi was the crucial defense in this case. If a witness knows material facts which will be helpful to a defendant in making his defense, and the witness is competent and available, the defendant’s failure to produce the witness is properly a subject of comment by the prosecutor. This is particularly true if the witness is the spouse of the defendant. 23A C.J.S. Criminal Law § 1099 b, page 181; 5 A.L.R.2d 930.

The record presented to us fails to demonstrate that defendant’s right to a fair trial was affected by the presence of two deputy sheriffs, equipped with two-way radios, in the courtroom during the trial.

During the trial, the following colloquy took place:

“THE COURT: Was he asked what Tony said?
“MR. HEBERT: He was about to say what was said in the presence of the Defendants.
“MR. HARPER: He’s saying it’s in the presence of the Defendants and I move it be striken.
“THE COURT: The evidence shows all this transpired, I believe, in the presence of the Defendants, which takes it out of the Exclusionary Hearsay Rule.”

Defendants immediately moved for a mistrial, which was denied. However, the trial court properly instructed the jury to disregard the remarks of the State’s attorney as well as his remarks. This was sufficient as the remarks were not prejudicial to the substantial rights of the defendants. Perry v. State, 146 Fla. 187, 200 So. 525 (1941).

Defendants requested the trial court to give standard criminal instruction 2.12(h), “defendant not testifying”, but after it was given objected to the reading of the phrase “failure to take the witness stand”, which appears in two places in the standard instruction. This contention is without merit.

Affirmed.

BOYER, C. J., concurs.

McCORD, J., concurs specially.

McCORD, Judge

(concurring specially).

I agree under the facts of this case that there was no error in the prosecutor’s comment on closing argument as to the failure of defendant to produce his wife as a witness to his alibi. But insofar as the majority opinion may leave an inference that comment regarding a wife’s failure to testify would' always be proper, I add the caveat that such would be error if the wife’s testimony would involve a privileged communication with her husband and if defense counsel had not opened the door for it by stating in his opening statement that she would be put on the stand to testify to the communication. See Ross v. State, Fla.App. (1st), 202 So.2d 582 (1967).


text:
    Herman Marvin SPELL, Appellant, v. STATE of Florida, Appellee.
    No. 74-770.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 1975.
    James A. Gardner, Public Defender, Sarasota, and Harold H. Moore, Asst. Public Defender, and Steven H. Denman, Legal Intern, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. On the authority of Thomas v. State, Fla.App.3d 1975, 317 So.2d 450.

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


text:
    CITY OF CORAL GABLES et al., Appellants, v. Cathy M. LOGAN, etc., Appellees.
    No. 74-927.
    District Court of Appeal of Florida, Third District.
    June 24, 1975.
    Rehearing Denied Sept. 8, 1975.

      Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellants.
    Adams, George, Wood, Lee & Schulte, Miami, Lawrence Spiegel, Hialeah, for ap-pellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The City of Coral Gables, defendant in the trial court, appeals from an order denying a motion for a judgment notwithstanding the verdict and granting the plaintiff’s motion for a new trial, and from a final judgment against it entered pursuant to a jury verdict on special interrogatories on the remaining portion of the claim in an action for wrongful death filed on behalf of the two children and the estate of the decedent.

On July 28, 1972, the decedent, who was riding a motorcycle, collided with a City of Coral Gables flatbed truck driven by Herman Clarke, at the intersection of Ludlam Road and 36th Street. The truck, proceeding east on 36th Street on its way back from a regular run to the incinerator, stopped at the stop sign and then proceeded into the intersection and began a left turn. There was testimony that the decedent, traveling north on Ludlum, at a speed of 70 or 75 miles per hour, passed a vehicle on the right just before reaching the intersection, and then ran into the rear passenger side of the truck. The evidence revealed that the intersection was dangerous but that the City never instructed its drivers as to a route to travel to and from the incinerator and never advised them not to use this intersection. During the trial, the defendants moved unsuccessfully for a directed verdict at the end of the plaintiff’s case and at the close of all of the evidence. The jury was given special interrogatories and returned a verdict for each child in the amount of $50,000, but nothing for the decedent’s estate. The jury found that the decedent was 85 per cent negligent, that Clarke, the truck driver, was not at all negligent and that the City of Coral Gables was 15 per cent negligent for failing to warn or instruct the driver not to use that intersection. After the trial, the City of Coral Gables moved for a judgment notwithstanding the verdict and the plaintiff moved for a new trial. The court denied the defendant’s motion and granted the plaintiff a new trial on the issue of damages to the estate. Final Judgment was entered on the jury verdict, awarding $7,500 damages to each child based on adjustment to the percentage of negligence attributable to the City.

The appellees contend that municipalities have a duty to instruct employees as to which streets to use in the performance of their work. We do not agree. In Florida Motor Lines v. Ward, 1931, 102 Fla. 1105, 137 So. 163, 167, it was- held that, “The right of a citizen to use the highways, including streets of the city or town, for travel and to transport his goods, is an inherent right which cannot be taken from him . . .” Analogizing the City of Coral Gables to a citizen for this purpose, it follows that the City has the right to use the streets just as anyone else does. We find no reason to hold the City to a higher degree of care than any other person in selecting the use of streets it has a right to use. “. . . (T)he tort liability of municipal corporations may now be equated with that of private corporations.” Modlin v. City of Miami Beach, Fla.1967, 201 So.2d 70, 73. Certainly, private corporations are not burdened with a duty to select among various streets open to their use based on their anticipated degree of safety to other highway users.

In Hutchins v. City of Hialeah, Fla.1967, 196 So.2d 741, 743, it was held “. . . that recovery against the City cannot exceed that against its employee.” By the same token, the master cannot be held liable for torts to third parties where, as here, the servant has not been shown to be negligent. 21 Fla.Jur., Master and Servant, § 76. Therefore, we find that the court erred in failing to grant the City of Coral Gables’ motions for directed verdict and for judgment notwithstanding the verdict once the jury cleared Clarke, the driver, of negligence.

Accordingly, the final judgment and the order granting a new trial are reversed and the caused is remanded with directions to the trial court to grant the defendant’s motion and enter a judgment notwithstanding the verdict.

Reversed and remanded with directions.


text:
    KRESTVIEW NURSING HOME, INC., et al., Appellants, v. Helen SYNOWIEC, etc., Appellee.
    No. 74-1251.
    District Court of Appeal of Florida, Third District.
    June 24, 1975.
    Rehearing Denied Sept. 8, 1975.
    Horton, Perse & Ginsberg, Preddy, Had-dad, Kutner & Hardy, Miami, for appellants.
    Weintraub & Weintraub, Miami, for ap-pellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

The appellant, Krestview Nursing Home, Inc., was a defendant in the trial court. The appellee, Helen Synowiec, individually as widow of Frank Synowiec and as ad-ministratrix of the estate of Frank Syno-wiec, was the plaintiff. The plainiff received a jury verdict against the defendant and final judgment was entered thereon. This appeal is from the judgment.

Frank Synowiec suffered from a physical condition described as cerebral vascular insufficiency and organic mental syndrome. Both of these conditions are incident to what is commonly described as senility. Because of these conditions, he was placed in the Krestview Nursing Home, a “locked” nursing home where patients are not permitted to leave. Mr. Synowiec was housed on the third floor where patients who required special attention were housed. Krest-view, through its doctors and nurses, recognized that patients like Mr. Synowiec have a tendency towards wandering, forgetfulness and loss of mental acuity.

Krestview sent Mr. Synowiec to Jackson Memorial Hospital for treatment without giving the hospital instructions for his special supervision. While at the hospital, he wandered off and was missing for several days until he was found dead from lack of attention.

The appellant has presented two points; the first urges that the final judgment is not supported by any proof of negligence on the part of Krestview, because no proof establishes “that the decedent had a tendency to wander and that the defendant was, therefore, guilty of any breach of duty.” This point had been ably and extensively argued. In its end result it calls upon us to assess the record in the cause in order to determine whether, as a matter of law, it appears that a recovery cannot be had upon any view of the facts which the evidence reasonably tends to establish. See Mercy Hospital Inc. v. Larkins, Fla.App.1965, 174 So.2d 408. Our review of the record shows the following facts which, if found by the jury, support the jury’s finding that' Krestview knew or should have known that the decedent had a tendency to wander:

(1) Mr. Synowiec was an elderly man who suffered from senility.
(2) Mr. Synowiec had deteriorated in his behavior to the point where he had to put in a “locked” nursing home.
(3) Mr. Synowiec was known to have ailments which render a patient incapable of caring for himself and which often involve wandering.
(4) Mr. Synowiec was recognized by the nursing home staff as a man who had at least a minor tendency to wander.
(5) Mr. Synowiec’s entire behavior put him at the very least on the border line of a category of patient known as a “watch patient.”
(6) Krestview had a history on Mr. Synowiec and knew that he was placed in the nursing home partly because Mrs. Synowiec had been unable to curb his wandering out into the street.
(7) Although Krestview did not send accompanying medical data to Jackson Hospital concerning Mr. Synowiec’s senility, expert medical testimony revealed that it would have been good practice to do so because such information should accompany such .a patient.
(8) Krestview recognized that Mr. Syn-owiec was the type of patient that required constant care and observation.

It is our conclusion that the trial judge properly submitted the cause to the jury and that the conflicting facts have been decided by that jury. We ought not substitute our judgment thereon. See Crews v. Warren, Fla.App.1963, 157 So.2d 553.

Krestview’s second point urges error because the trial judge sustained plaintiff’s objections to Krestview’s proffered exhibits A-l and A-2. These exhibits were two reports made by the director of the outpatient clinic of Jackson Memorial Hospital. These reports were intra-hospital memo-randa and did not contain facts stated from the personal knowledge of the director but were rather his conclusions from investigations made after the event. These exhibits were not competent evidence upon the rule stated in Dusine v. Golden Shores Convalescent Center, Inc., Fla.App.1971, 249 So.2d 40.

Affirmed.


author: RAWLS, Acting Chief Judge.

text:
    Thomas Price ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. Y—115.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1975.
    James Ron Shelley, Public Defender, Albert Grinsted and Nancy T. Richardson, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   RAWLS, Acting Chief Judge.

The controlling question before this Court is: Did the trial court err in setting aside appellant’s not guilty plea ?

Appellant Allen was informed against in Okaloosa County for grand larceny, i. e., stealing roof shingles, in a value in excess of $100.00. Allen initially plead not guilty, but thereafter appeared in court accompanied by his public defender lawyer and told the judge that he wished to withdraw his plea of not guilty and enter a plea of guilty. Allen’s public defender and the assistant state attorney at this time told the judge that the plea of guilty was pursuant to plea negotiations, in which the state had agreed it would recommend probation and that if after a presentence investigation the court could not see fit to grant Allen probation, that the court would allow Allen to withdraw his guilty plea. The court asked Allen to state to the court what had happened on the day of the alleged incident. Allen replied, “I don’t know, your honor. I am charged with it, but I wasn’t in it,” Thereafter the judge had the assistant state attorney recite the facts which the state was prepared to prove at trial. After this recitation, Allen responded that those were the facts to which he was offering to plead guilty. The court then accepted Allen’s plea of guilty and ordered a presen-tence investigation.

When the day for sentencing arrived, the trial judge informed Allen that he was concerned about matters contained in the presentencing report which revealed that Allen had a long record as a juvenile, had been placed on probation and had repeatedly violated his terms of probation. In addition, the trial judge told Allen that he found in the presentence investigation that Allen had plead nolo contendere to passing a worthless check between the time he had plead guilty to the grand larceny charge and the date of the sentencing. At this juncture, Allen stated that he was not guilty of the grand larceny offense and that the only reason he had plead guilty was to get the matter over with and get his life straightened out. The trial judge responded by telling Allen that he was going to give him the opportunity to withdraw his plea and enter a plea of not guilty and set the matter for trial. Allen made no response, and the trial judge postponed the whole matter until later in the afternoon. When court reconvened that afternoon, the trial judge set the grand larceny charge for trial beginning at 9:00 a. m. on March 5, 1975.

When the trial date arrived, the assistant state attorney moved to reinstate Allen’s guilty plea on the basis that no grounds had been shown for withdrawing the negotiated plea of guilty. Allen was not consulted about this motion nor did he, through his attorney, join in the move to reinstate the guilty plea. The trial judge reinstated Allen’s guilty plea and placed Allen on five years probation with the stipulation that he make restitution to the victim, that he pay the public defender for his services, and, in addition, that each weekend during the first year of probation in which Allen was not working that he report to the Okaloosa County Jail to be confined.

Allen, argues here that the trial judge erred on the day of trial in setting aside his plea of not guilty. We agree. It is within the discretion of the trial judge to determine whether he will accept a change of plea from not guilty to guilty. In accepting a plea of guilty there must be shown a factual basis to support the plea. In this case, Allen consistently contended when he was before the trial judge that he was not guilty of the crime charged. With the lack of factual basis to support the plea of guilty, the trial judge did not abuse his discretion when he withdrew Allen’s plea of guilty. Where the trial judge erred was entertaining the state’s motion to reinstate Allen’s plea of guilty.

Appellant Allen has a constitutional right to insist upon being tried by .a jury of his peers, arid if the -end result is a harsher consequence than the one tendered by the trial judge, it is a decision for Allen alone to make, not the judge. We commend this trial judge for the compassion he displayed on behalf of Allen; however, the law requires this Court to reverse the judgment appealed with directions that the trial judge reinstate appellant Allen’s plea of not guilty.

Reversed.

MILLS and SMITH, JJ., concur.

      . Williams v. State, Fla., 316 So.2d 267, opinion filed June 23, 1975.


author: McCORD, Judge.

text:
    Arthur M. TELLIER, Appellant, v. STATE of Florida, Appellee.
    No. W-121.
    District Court of Appeal of Florida, First District.
    July 30, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant was charged with a number of offenses and as the result of plea bargaining he pled guilty to four offenses and the remaining charges were nolle prossed. Appellant’s convictions were of (1) grand larceny (2) sale of marijuana (3) possession of in excess of five grams of marijuana and (4) sale of phencyclidine. He appeals from the convictions and sentences.

Appellant contends that in accepting his guilty pleas to the charges numbered (2), (3) and (4) above, the trial court erred in failing to establish a factual basis for the guilty pleas. We find this contention to be without merit. Appellant has not shown either prejudice or manifest injustice resulting to him from the trial court’s failure to establish such factual bases. See Williams v. State, Fla., 316 So.2d 267, opinion filed June 23, 1975 and Hall v. State, Fla., 316 So.2d 279, opinion filed June 23, 1975.

Appellant also contends that the court erred in accepting his guilty plea to the charge of grand larceny in that he did not in fact plead guilty to grand larceny. The record shows that at the time of entering the aforesaid guilty pleas, appellant made the following statement as to the charge of grand larceny (of an outboard motor) :

“Your Honor, that motor, we’ve had it appraised and it’s only worth the value of $25. We had it appraised by a man from Marineland Outboard Motors, and he said it was worth only $25.”

The court made no comment regarding appellant’s above-quoted statement and accepted the guilty pleas which included the guilty plea to grand larceny. Such was error as to the grand larceny charge as the only factual basis shown by the record for that plea appears to be a factual basis for a plea of petit larceny.

Appellant’s aforesaid convictions and sentences other than for grand larceny are affirmed.. As to the grand larceny conviction and sentence, the cause is remanded for further inquiry by the trial court and to receive evidence pursuant to the recent opinion of the Supreme Court in State v. Lyles, Fla., 316 So.2d 277, opinion filed June 23, 1975.

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


text:
    Joseph Jude WARD, Appellant, v. STATE of Florida, Appellee.
    No. 74-1445.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
    Richard L. Jorandby, Public Defender, Elliot R. Brooks, Asst. Public Defender, and Maureen L. McGill, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. As to point two, see, Castle v. State, 305 So.2d 794 (4th DCA Fla. 1974).

OWEN, MAGER and’ DOWNEY, JJ., concur.


text:
    DI-COM CORPORATION and Fidelity and Deposit Company of Maryland, Appellants, v. KRUEGER PLUMBING, INC., a Florida Corporation, and Jack P. Schlieffer, Appellees.
    No. 74-1539.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
    Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for appellants.
    Lee E. Muschott of Brennan, McAliley, Albury & Hayskar, Fort Pierce, for appel-lee-Krueger Plumbing, Inc.
   PER CURIAM.

Affirmed. See Midway Shopping Mall, Inc., v. Corky Corp., Fla.App. 1972, 257 So.2d 905.

MAGER and DOWNEY, JJ., and BER-ANEK, JOHN R., Associate Judge, concur.


text:
    Douglas Timothy Ten BROECK, Appellant, v. STATE of Florida, Appellee.
    No. V-48.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1975.
    Richard W. Ervin, III, Public Defender,for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Appellant-defendant seeks reversal of his conviction, entered pursuant to a plea of guilty, for breaking and entering with intent to commit a misdemeanor, and a four-year sentence thereon. The sole ground for reversal is that the trial court erred in accepting defendant’s plea of guilty without determining that there was a factual basis for the plea as required by Rule of Criminal Procedure 3.170(j).

Violation of a procedural rule does not call for reversal of a conviction unless the record discloses that noncompliance resulted in prejudice to the defendant. Richardson v. State, 246 So.2d 771 (Fla.1971).

A defendant has the burden of proving prejudice or manifest injustice. Defendant here does not contend nor does the record show that he was prejudiced or manifest injustice resulted.

The record presented to us clearly reflects :

1. defendant voluntarily entered the plea;
2. defendant understood the consequences ;
3. pursuant to plea bargaining, the trial court agreed to and did impose a four-year sentence though the maximum penalty was five years.

Affirmed on authority of Williams v. State, 316 So.2d 267 (Fla.1975).

BOYER, C. J., and McCORD, J., concur.


author: OWEN, Judge.

text:
    SEARS, ROEBUCK AND CO., Appellant, v. Yvonne Carol PHELPS, a minor, by and through her guardian ad litem, et al., Appellees.
    No. 75-458.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
    Michael B. Davis, West Palm Beach, Carey A. Randall and S. O. Carson, Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellant.
    Howard Todd Jaffe, Kaplan, Jaffe & Associates, Hollywood, and Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellees—Douglas C. Kaplan, Marlene Kaplan, Ray A. Schlichte, Jr., and Mary T. Schlichte.
   OWEN, Judge.

Defendant in a negligence suit appeals from an order denying its motion for leave to file a third party complaint. The order appealed is an interlocutory order, not a final judgment. Because the order is not one reviewable under Rule 4.2 F.A.R., this court lacks jurisdiction of the appeal. We decline to treat the matter as a petition for certiorari. The appeal is dismissed without prejudice.

Dismissed.

MAGER and DOWNEY, JJ., concur.


author: BOARDMAN, Judge.

text:
    Bruce C. KIXMILLER et al., Appellants, v. CITY OF NAPLES, a Municipal Corporation, et al., Appellees.

    No. 75-295.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 10, 1975.

      Judson Freeman, Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellants.
    Charles K. Allan, City Atty., Naples, for appellee City of Naples.

        Editor’s Note: The opinion of the District Court of Appeal of Florida, Fourth District, in Humphries v. State, filed August 22, 1975, and published in the advance sheets at this citation (317 So.2d 101), was withdrawn from bound volume publication at the request of the court.

   BOARDMAN, Judge.

This timely appeal involves the propriety of the dismissal with prejudice by the trial court of appellants’ complaint seeking an injunction against the appellees. Appellants, individually, and as residents and taxpayers of Collier County, Florida, (some of whom live within the City of Naples and some of whom live outside the City) brought this suit against the City of Naples, and the Board of County Commissioners of Collier County (County) as the ex-officio governing body of Collier County Water-Sewer District (District) to enjoin the City, County and District from expending tax revenues in furtherance of an alleged illegal agreement entered between said governing bodies dated April 12, 1971.

The complaint alleged that pursuant to the agreement attached to the complaint as an exhibit, the District had illegally executed and delivered to the City certain leases purporting to lease to the City for a term of 99 years facilities constructed and to be constructed by the District within the District for the furnishing of water and sewerage services to residents of the District. The Collier County Commissioners filed their answer to the complaint. However, the City of Naples moved to dismiss the said complaint on the ground that it did not state a cause of action and assigned as reasons in support of its motion that appellants failed to show irreparable injury; that the complaint contained conclusions and opinions of law; that the appellants lacked standing to institute this litigation; and laches. Following a hearing and the submission of briefs, the court entered an order dismissing the cause with prejudice.

Assuming the truth of the allegations pled, we hold that the complaint stated a cause of action. The leasing of the water and sewer systems to the City appears to violate the provisions of Fla.Stat. § 153.-62(3) and (8) (1973) which requires the District to exercise exclusive jurisdiction, control and supervision over its water and sewer systems. Likewise, that portion of the agreement which permits the City to establish rates for the water and sewer services provided from the facilities under the leases appears to constitute an illegal delegation of rate fixing powers which are vested in the District pursuant to Fla.Stat. § 153.62(6) (1973) and § 153.64(1) (1973).

We hasten to point out that we are not passing on any defenses which the City may raise.

Reversed and remanded.

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


text:
    STATE of Florida, Appellant, v. Arthur Gene CANNON et al., Appellees.
    No. 74-1441.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
    Abbott M. Herring, State’s Atty., and Norman A. Tharp, Asst. State’s Atty., Ti-tusville, for appellant.
    Daniel S. Ciener, Merritt Island, for ap-pellees-Cannon and Hollingsworth.
    Kenneth A. Studstill, Titusville, for ap-pellee-Miller.
   OWEN, Judge.

The State contends, and we think correctly so, that the trial court erred in granting appellees’ motions to suppress certain tangible evidence seized by the arresting officers at the time of the arrest.

Two officers of the Brevard County Sheriff’s Department received information at midnight from a reliable confidential informant that one Charles Miller (whom the police officers knew to be widely reputed as a heroin dealer in Brevard County) had just sold the informant twenty-five dollars worth of heroin, and that Miller had left his residence promising to return at 6 a. m. with an additional amount of heroin. The informant also stated that Miller would be riding in a late model car.

The officers set up surveillance of the residence. A few minutes after 6 a. m. a late model car arrived occupied by Charles Miller, whom one of the officers recognized. The officers approached the car. In plain view between the legs of the passenger on the front seat was a cellophane bag containing a brown powdery substance which one of the officers recognized as a type of heroin known as “Brown Mexican Mud”. Miller and the two passengers, the appellees herein, were placed under arrest. After removing all three from the car, the vehicle was searched and an additional quantity of heroin was discovered under the seat and in the glove,compartment.

The orders granting the motions to suppress reflect that they were granted solely because the court felt that- since the officers had sufficient time, between midnight and 6 a. m. the following morning, to have obtained either an arrest warrant or a search warrant, the officers failure m this respect made the search illegal. In so holding the trial court erred.

Appellees’ arrest without a warrant was lawful under the provisions of Fla.Stat. § 901.15(3) (1973), probable cause having been shown on the basis of the tip from the reliable confidential informant corroborated by the officers’ personal observations made immediately preceding the arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Even if it could be said that the officers had sufficient probable cause to make an arrest based solely upon the tip from the reliable informant (without the corroboration from their personal observations), the officers’ failure to obtain an arrest warrant though there was sufficient time to do so does not invalidate the arrest. See State v. Rameriz, 284 So.2d 241 (4th DCA Fla. 1973). The arrest was valid and under the facts of this case the search of the automobile was a valid search incident to the arrest.

The orders granting the motions to suppress are reversed.

CROSS and DOWNEY, JJ., concur.


text:
    Alfred PEROTTA et al., Appellants, v. TRI-STATE INSURANCE COMPANY, etc., Appellees.
    No. 74-1428.
    District Court of Appeal of Florida, Third District.
    June 24, 1975.
    Rehearing Denied Sept. 8, 1975.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and William Bruce Harper, Jr., Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Alfred Perotta and Marie, his wife, appeal from an adverse summary judgment terminating a personal injury lawsuit against William Sawyer and Edith, his wife, and the Sawyers’ insurance carrier, Tri-State Insurance Company.

The ultimate issue presented is whether the trial court erred in finding there was no genuine issue of material fact and, therefore, as a matter of law, the Sawyers and their insurance company were entitled to a summary judgment in their favor. The facts are not materially in dispute. The Perottas were invited and attended a wedding reception at the Sawyers’ home in honor of the Sawyers’ daughter. Also invited were Mr. and Mrs. Salvatore who brought with them their two and one-half year old daughter, Terri. There was no express invitation extended to the Salva-tores’ daughter, although there were older children on the premises. The wedding reception was being held in the afternoon. To accommodate the guests, all of the areas of the house were opened which included a screened patio/pool area with tables nearby for such guests. The pool itself, which was inside the screened area, had a string of fish net between two posts along the length of the pool on the side closest to the house. The two ends of the pool had no barriers. For some length of time Terri was supervised in the patio/pool area by her parents and grandparents; however, during a lapse of attention by the parents, Mrs. Salvatore observed Terri walking precariously on the coping tile at the edge of the pool. Mrs. Salvatore “yelled a warning to Terri.” Then Terri started to run, slipped and fell into the pool. Alfred Perotta, observing the incident, ran to little Terri’s rescue, & jumped into the pool to save her, but unfortunately he landed in the shallow end thereof, causing injuries to himself. Terri was extricated, unharmed from the pool by Perotta.

The rescue doctrine, herein involved, generally is that one who is injured m reasonably undertaking a necessary rescue, may recover for his personal injuries from the person whose negligence created the peril necessitating the rescue. 57 Am. Jur.2d, Negligence, § 227 et seq. There may well be an issue of fact as to whether Terri was a social guest or uninvited licensee. Assuming she was a social guest, the Sawyers owed a duty of reasonable care under the circumstances and a duty to maintain the premises in a reasonably safe condition. In any event, irrespective of the duty herein involved, in order for the Sawyers to be liable for the injury of Per-otta, it must be shown that the Sawyers’ negligence was the proximate cause of the injury. Perotta does not complain of any visible or latent defect in the pool or pool area, but contends that the Sawyers should have barricaded the pool. We do not agree. Here the parents’ failure to control and supervise their two and one-half year old child when they placed the child in the pool area, which they not only observed on the day of the incident but knew was there before they brought the child on the premises, constituted an active and efficient intervening cause. 59 Am.Jur.2d, Parent and Child, § 14, p. 97 states:

“A parent in the immediate control of a child of tender years who is too young to be capable of exercising any self-reliant care for its own safety is responsible for its preservation from hazards, and it is the parent’s duty to watch over such child and to guard it from danger. In such case, the parent may be regarded in a sense as a repository of a trust to nurture and protect his offspring. Parents are, of course, not required to do the impossible in caring for their children. As a rule, however, they are bound to provide such reasonable care and protection as an ordinarily prudent person, solicitous for the welfare of his child, would deem necessary.”

Under the facts in this case and in view of the active and efficient intervening cause, we find that the question of proximate cause was a proper one for the court to determine. Kwoka v. Campbell, Fla.App. 1974, 296 So.2d 629. We are of the opinion, therefore, that there is no genuine issue of material fact raised and that the trial court was correct in entering summary judgment as a matter of law.

Affirmed.


author: HENDRY, Judge.

text:
    AETNA LIFE INSURANCE COMPANY and Aerodex, Inc., Appellants, v. Dominick DeANGELIS, Jr., and Paul Bergman, Appellees.
    Nos. 75-93, 75-99, 75-112.
    District Court of Appeal of Florida, Third District.
    June 24, 1975.
    Rehearing Denied Sept. 8, 1975.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Paul & Thompson and Sanford L. Bohrer, Miami, for appellants.
    Nachwalter, Christie & Falk, Kelly, Black, Black & Kenney, Miami, for appel-lees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Appellants, defendants below, take these consolidated interlocutory appeals from two orders, one denying appellant Aerodex, Inc.’s motion for a summary judgment de-' nying class action and the other styled “Order Directing Notice to the Class.”

The trial court treated appellant Aero-dex’s motion for summary judgment as a second motion for rehearing, and following a motion to dismiss these appeals filed by the appellees and subsequent motions for clarification, this court directed by order of March 26, 1975 that the appeals would be limited to review of the order directing notice to the class.

Therefore, appellant’s contentions that a class action is not properly brought in this case is not before us at this juncture because the appellants did not timely appeal the trial court’s order of July 5, 1973 determining this cause to be a proper class action. It follows that the subsequent order denying what in effect was a second motion for rehearing is not an ap-pealable order. Southwest Electric Supply, Inc. v. Banfield, Fla.App. 1974, 302 So.2d 810; Florida Living for Retired v. Retirement Hotel Assoc., Fla.App.1964, 167 So.2d 83.

We do not imply, of course, that the trial court may not reconsider the propriety of class action status to this proceeding at a later time. The order of July 5, 1973 indicates the court’s intention to reconsider this issue at any time during the course of the case.

The only real issue remaining for our consideration is the definition of the class formulated by the court in its order directing notice.

Appellants argue that the definition is too broad extending to class members who were not damaged.

Appellees as representatives of a class of employees of Aerodex, Inc. filed a complaint against the company and the appellant Aetna Life Insurance Company.

The¡ complaint read together with ap-pellees’ brief filed in this case reflects that the appellant Aerodex is charged with misappropriating funds withheld from its employees’ paychecks as insurance premiums and allocating the funds to general corporate working expenditures.

Appellees further charge that Aetna knew of this misappropriation and cooperated with Aerodex. Both appellants are accused of a breach of a fiduciary duty to the employees and with fraudulent concealment of material facts.

It is contended that this scheme existed from approximately April 1967 through September 1971, which time period is included in the trial court’s definition of the class.

While it may be true that the trial court has defined the class too broadly, we do not think' the appellants have demonstrated an abuse of discretion. Cf., Paulino v. Hardister, Fla.App. 1974, 306 So.2d 125. We agree with appellees’ suggestion that the court in its discretion might later determine that its original definition (which perhaps was devised primarily to fulfill notice requirements as broadly and fairly as possible) is too broad and accordingly modify it.

Therefore, for the reasons stated, the orders under review are affirmed.

Affirmed.


author: PER CURIAM. PEARSON, Judge

text:
    CENTURY ELEVATOR CO., INC., Appellant, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, LOCAL UNION NO. 71, Appellee.
    No. 75-103.
    District Court of Appeal of Florida, Third District.
    June 24, 1975.
    Rehearing Denied Sept. 8, 1975.
    Alley, Alley, Rock, Dinkel & Blue, Miami and James G. Brown, Tampa, for appellant.
    Kaplan, Dorsey, Sicking & Hessen, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed.

PEARSON, Judge

(dissenting).

It has been uniformly held by the courts of this state that in actions brought under statutes possessing their own special venue provisions, the question of venue will be governed by those special provisions to the exclusion of the general venue statutes. See Stewart v. Carr, Fla.App.1969, 218 So.2d 525.

The present action is one brought under the Florida Arbitration Code, Fla.Stat., Ch. 682, which possesses its own venue provision, Fla.Stat. § 682.19. This provision is different from Florida’s general venue statute as to corporations, Fla.Stat. § 47.-051, which statute appellee would have us hold is applicable here. Despite the general rule excluding the applicability of such general statutes, appellee contends that the use of the word “may” in Fla.Stat. § 682.-19 (“Any application under this law may be made . . . ”) instead of the use of the word “shall,” indicates that this provision was intended by the legislature to supplement and not replace the general venue statute in actions brought under Fla.Stat., Ch. 682. Appellee bases this belief on the meanings of the word “shall” as being mandatory in nature and the word “may” as being permissive in nature.

I would hold that appellee has not provided us with an adequate showing of facts, law or theory to overcome the general rule stated above. I agree with appellee that the word “shall” is mandatory in nature, but I heartily disagree that the word “may” is necessarily a word of permissiveness in all, or even most, instances where used by common law legislative bodies.

Under the general venue statute, Fla. Stat. § 47.051, actions against corporations are to be brought only in the county

1.) where the defendant corporation’s office for customary business transactions is located,
2.) where the cause of action accrued, or
3.) where the property in litigation is located.

Under the Florida Arbitration Code, the venue provision therein (Fla.Stat. § 682.-19) provides that application may be made

1.) to the court of the county in which the other party resides or has a place of business, or
2.) to the court of any county if the other party has no residence or place of business in Florida.

In terms of appellee’s assertion that the two venue statutes (the general and the special) are both applicable here, I would hold that this cannot be so and could not have been the intention of the Florida legislature inasmuch as that body must be assumed to have realized that the first choice of venue as set out above under Fla.Stat. § 47.051 and the first choice of venue as set out above under Fla.Stat. § 682.19 are hardly compatible. If appellee wishes us to consider the venue options under the Florida Arbitration Code as merely appendages to the general venue statute for cases arising under Chapter 682 of the Florida Statutes, then he has failed, in my opinion, to provide us with any understanding of why Fla.Stat. § 682.19 does not adopt similar language to that found in Fla.Stat. § 47.051 or provide us any indications, other than the use of the word “may” (triggering appellee’s desired inferences) that the two statutes are to be read in para ma-teria for purposes of venue. In the only portions of the two venue statutes where there is an overlap of subject matter, the general venue statute speaks of “an office for transaction of customary business” while the special venue statute speaks of “place of business.” The word “may” in the context of its use in Fla.Stat. § 682.19 simply is not important enough to overcome this difference in language as well as the necessarily incident differences in meaning and interpretation arising out of the two statutes. I cannot see any way in which these statutes can be viewed as providing alternative options for purposes of choice of venue. I would reverse.


text:
    Ruth WINSTON and George Winston, Appellants, v. DURA-TRED CORPORATION and Joseph Abelow, Appellees.
    No. 74-997.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Rehearing Denied Sept. 10, 1975.
    Shalle Stephen Fine, Miami, for appellants.
    Nicholson, Howard, Brawner & Lovett, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant George Winston and the appellee Joseph Abelow were stockholders of the appellee corporation which transacted business under a franchise initially owned by Winston and assigned by him to the corporation. By the judgment appealed from, the trial court determined the rights of the parties with respect to disputes between them arising from certain complicated dealings and transactions incident thereto. On consideration of the arguments presented, in the light of the record and briefs, we hold no reversible error has been shown.

Affirmed.