text:
    The LADOGA CANNING CORPORATION, etc., Appellant, v. Sydney H. McKENZIE, III, etc., Appellee. L & P ENTERPRISES, INC., etc., Appellant, v. Sydney H. McKENZIE, III, etc., Appellee.
    Nos. 53505, 53506.
    Supreme Court of Florida.
    May 3, 1979.

      Bruce L. Randall, Fort Lauderdale, for appellants.
    Sydney H. McKenzie, III, in pro per.
    Philip S. Shailer and Thomas J. Ansbro, Jr., Fort Lauderdale, for appellee.
    Terry L. DeMeo, South Miami, Richard Yale Feder, Miami, and M. David Gelfand, pro hac vice, Coral Gables, for American Civil Liberties Union Foundation of Florida, Inc., amicus curiae.
   SUNDBERG, Justice.

The issue in this case is whether the entry of an injunction pursuant to section 847.-011(8), Florida Statutes (1977), restraining a bookseller in futuro from disseminating any printed materials or other merchandise which violate the provisions of section 847.-011(l)(a), Florida Statutes (1977), absent a judicial determination that the particular materials or merchandise are obscene, constitutes an impermissible prior restraint proscribed by the first amendment to the United States Constitution.

Appellants are operators of “adult” bookstores located in the City of Fort Lauder-dale. Appellee, as city attorney for the City of Fort Lauderdale, instituted civil proceedings against appellants in the Circuit Court for Broward County, Florida, by filing a complaint seeking injunctive relief pursuant to section 847.011(8), Florida Statutes (1977). In each case appellee submitted eight magazines which had been purchased at appellants’ stores on various occasions by a Fort Lauderdale police officer. Appellee requested a determination that the eight magazines were obscene and an injunction to bar their sale or distribution. He further sought to enjoin the dissemination of any other printed materials or other merchandise which violated the provisions of section 847.011(l)(a).

Appellants filed identical motions to dismiss appellee’s complaints, arguing, in relevant part, that: (1) the injunctive relief sought constituted a prior restraint upon the dissemination of materials which had not been judicially determined to be obscene, in contravention of the first amendment to the United States Constitution; and (2) that the injunction requested did not refer to any specific material and, therefore, was vague and overbroad.

After hearings, the respective circuit judges denied appellee’s motions to dismiss. In identical orders granting temporary injunctions, the judges held section 847.011 constitutional on its face and as applied to appellants. Further, the eight magazines submitted by appellee were found to be obscene and their continued sale or distribution was enjoined until final hearing or further order of the courts. Appellants were also directed to refrain from selling or offering for sale any printed materials which violated the provisions of section 847.011(l)(a). After a second hearing, orders granting permanent injunctions were entered by the circuit judges, which were identical in all material respects to the previously entered orders granting temporary injunction.

Appellants appealed to this Court, raising the issues previously considered in their motions to dismiss below. Because the orders of the circuit judges directly and initially ruled upon the constitutionality of section 847.011, Florida Statutes (1977), we have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Appellants properly concede that the utilization of civil injunctive proceedings to control the dissemination of obscene materials is not unconstitutional per se. See McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189, 47 L.Ed.2d 387 (1976); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). Further, this Court has confirmed the facial validity of section 847.011, Florida’s civil injunction statute relating to obscene materials. Johnson v. State, 351 So.2d 10 (Fla.1977); State ex rel. Gerstein v. Walvick Theatre Corp., 298 So.2d 406 (Fla.1974); State v. Papp, 298 So.2d 374 (Fla.1974).

Appellants argue, however, that section 847.011 has been unconstitutionally applied in the case at bar. This is so because, in addition to proscribing sale of the eight magazines which the circuit court found to be obscene, the injunctions also prohibited the distribution of “other printed materials which violate the provisions of Florida Statute 847.011(l)(a).” These “other printed materials” were not specifically identified in the court orders, nor was the issue of their alleged obscenity determined by the court prior to issuance of the injunctions. Rather, the orders set forth the test for obscenity enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 513 (1973), and enjoined the sale or offer for sale of materials which depicted eleven specific actions or poses, apparently finding that materials depicting this specific conduct were obscene under the Miller standard. Appellants submit that the injunctions, as written, constitute an impermissible prior restraint upon first amendment expression. We agree.

While we intimate no judgment with respect to the status of the eight magazines which the circuit judges found to be obscene, we conclude that the civil injunction process as to the balance of the materials mentioned in the orders was not conducted in a procedurally proper manner. The injunctions afforded appellants inadequate notice of what “other printed materials” fell within their ambit. Further, these unspecified materials were not judicially declared to be obscene prior to the issuance of the injunctions restraining their dissemination. Consequently, with the exception of that portion of the orders relating to the eight specific magazines, the injunctions are violative of appellants’ first amendment rights. Appellee argues that inclusion of the Miller standard for obscenity and recitation of the eleven actions or poses which the lower courts determined were obscene under that standard sufficed to protect these constitutional rights of appellants. In support of his position appellee cites For Adults Only, Inc. v. State ex rel. Gerstein, 257 So.2d 912 (Fla.3d DCA 1972), wherein the District Court of Appeal, Third District, upheld a blanket injunction similar to the ones before us:

[Defendant says the permanent injunction was too broad, vague and ambiguous and is, therefore, invalid. This permanent injunction did not prohibit the sale of “obscene” literature. It named specifically eleven different displays, poses, or actions which defendants were prohibited from selling, distributing, or advertising. We have examined the permanent injunction and are of the opinion that it is sufficiently specific to direct defendants as to what they are required to do under its requirements.

Id. at 914. The error of this holding is demonstrated by the other case upon which appellee relies to support the validity of his injunctions — the decision of the United States Supreme Court in Miller v. California. The Miller Court made it clear that the portrayal of sexual conduct, without more, does not render a publication obscene. The determination of obscenity must be based upon an examination of the work as a whole, rather than of isolated passages. Accord, Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Consequently, we must disapprove the above-quoted holding of the district court in For Adults Only, Inc. v. State ex rel. Gerstein as being in irreconcilable conflict with these decisions of the United States Supreme Court.

Appellee alternatively contends that the “other printed materials” were identified with the requisite precision and a prior express determination with respect to their status was not required because the eight magazines which were judicially determined to be obscene were representative of other materials sold by appellants. This Court rejected a similar argument in Mitchem v. State ex rel. Schaub, 250 So.2d 883 (Fla. 1971), and invalidated a blanket injunction prohibiting the sale of “ ‘obscene or pornographic publications in violation of F.S.A. 847.011’ ” :

[W]e also find that the presentation of Exhibits 1, 2 and 3 below as “representative” of the contents of the Store was deficient . . . . Unless a defendant is willing to stipulate that particular exhibits are absolutely representative of the stock offered the public, one copy of each item sought to be suppressed must be entered into evidence.

250 So.2d at 886 (citations omitted). Appel-lee has conceded that appellants made no such stipulation in the court below.

Appellee finally posits that the injunctions enabled appellants to discern which materials fell within their ambit. Thus, appellants could separate from their inventories those publications which contained the enumerated actions or poses and then, applying the Miller standard, decide whether they were obscene when taken as a whole. This argument, however, is not consistent with the mandates of our organic document. Only a judicial determination that the works sought to be enjoined are in fact obscene, and an injunction specifically and solely directed to those publications, will effect a constitutionally permissible balance between the first amendment protections concerning the distribution of published materials and the right of a state to regulate obscene materials. As reflected in the concurring opinion of Mr. Justice Brennan in McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189, 47 L.Ed.2d 387, the burden of self-censorship cannot be placed upon the bookseller:

“Instead of requiring the bookseller to dread that the offer for sale of a book may, without prior warning, subject him to a criminal prosecution with the hazard of imprisonment, the civil procedure assures him that such consequences cannot follow unless he ignores a court order specifically directed to him for a prompt and carefully circumscribed determination of the issue of obscenity.” Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442 [, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469, 1474] (1957). “[S]uch a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation.” Paris Adult Theatre I v. Slaton, supra, 413 U.S. at 55 [93 S.Ct. at 2634, 37 L.Ed.2d at 455]
. A civil procedure that complies with the commands of the First Amendment and due process may serve the public interest in controlling obscenity without exposing the marketer to the risks and the stigma of a criminal prosecution, and thus protect, by minimizing the risk of marketer self-censorship, the right to the free publication and dissemination of constitutionally protected literature.

424 U.S. at 679, 683, 96 S.Ct. at 1195, 1197. To require appellants to guess at their peril which of their publications are not obscene under the criteria set forth in the injunctions results in a chilling effect upon their first amendment freedoms which will not be countenanced by our Constitution.

It is well established that obscenity is not afforded protection by the first amendment and is properly subject to regulation by the state under section 847.011. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 513; Johnson v. State, 351 So.2d 10 (Fla.). However, the right of the bookseller to a prior judicial determination of the status of and a clear identification of each item whose distribution is sought to be enjoined may not be circumvented through either a blanket injunction which prohibits, in essence, the sale of “all obscene materials” or which places the burden of making this determination upon the vendor. Moreover, because the test for obscenity requires that the finding be based upon the work taken “as a whole,” a publication may not be suppressed merely because it contains certain poses or actions.

Approval of this overly broad portion of these orders would place the imprimatur of this Court upon an unconstitutional application of section 847.011, Florida Statutes (1977). That we will not do. If appellee wishes to prevent the distribution of appellants’ materials which are in fact obscene, he may utilize the proper judicial procedures, thereby effecting a constitutionally permissible balance between the first amendment protections of the sellers and the right of the state to regulate obscene materials.

Accordingly, with the exception of that portion of the orders finding the eight exhibits to be obscene and enjoining their sale, the orders granting permanent injunctions issued by the Circuit Court for Broward County, Florida, are dissolved, the circuit court rulings as to the constitutional application of section 847.011, Florida Statutes (1977), are reversed, and these causes are remanded to that court for proceedings not inconsistent with this opinion. Further, the decision of the District Court of Appeal, Third District, in For Adults Only, Inc. v. State ex rel. Gerstein, 257 So.2d 912, is hereby disapproved to the extent of its inconsistency with the decision of this Court today.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, HATCHETT and ALDERMAN, JJ., concur.

BOYD, J., dissents.

      . § 847.01 l(l)(a), Fla.Stat. (1977), provides:
      A person who knowingly sells, lends, gives away, distributes, transmits, shows or transmutes, or offers to sell, lend, give away, distribute, transmit, show or transmute, or has in his possession, custody, or control with intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise in any manner, any obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing, paper, card, picture, drawing, photograph, motion-picture film, figure, image, phonograph record, or wire or tape or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character; or any article or instrument of indecent use, or purporting to be for indecent use or purpose; or who knowingly designs, copies, draws, photographs, poses for, writes, prints, publishes, or in any manner whatsoever manufactures or prepares any such material, matter, article, or thing of any such character, or who knowingly writes, prints, publishes, or utters, or causes to be written, printed, published, or uttered, any advertisement or notice of any kind, giving information, directly or indirectly, stating, or purporting to state, where, how, of whom, or by what means any, or what purports to be any, such material, matter, article, or thing of any such character can be purchased, obtained, or had; or who in any manner knowingly hires, employs, uses, or permits any person to do or assist in doing, either knowingly or innocently, any act or thing mentioned above, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A person who, after having been convicted of a violation of this subsection, thereafter violates any of its provisions, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Pursuant to Fla.R.Jud.Admin. 2.030(a)(2)(B)(ii), these cases have been consolidated for the purpose of appellate review.

      . Because appellants have not assailed the correctness of the trial judge’s finding that these eight magazines are obscene, that issue is not preserved for review on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Pedro TOMAS, Appellee.
    No. 53950.
    Supreme Court of Florida.
    May 3, 1979.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellant.
    No appearance for appellee.
   PER CURIAM.

In this case the state appeals a trial court order dismissing the charges against appel-lee, each of which was based on section 812.019(1), Florida Statutes (1977), on the ground that the statute is unconstitutional. Although the trial judge did not elaborate on his reasons for invalidating the law or specify the particular features of the provision which he found to be fatally defective, it is apparent from the motion to dismiss that his conclusion was predicated on a finding that section 812.019(1) is overly broad in that it permits the criminal prosecution of conduct that is essentially innocent. We reverse.

Section 812.019(1) provides:

Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree .

An examination of this enactment reveals nothing to support the conclusion that persons could be convicted under its provisions for conduct that is essentially innocent in nature. The terms “traffic” and “stolen property” are defined in section 812.012(6) and (7), from which it is clear that the statute applies only to certain acts relating to the disposition of “property that has been the subject of any criminally wrongful taking.” The term “endeavors” has recently been construed by us in the context of a closely related provision to mean “an overt act manifesting criminal intent.” State v. Allen, 362 So.2d 10, 12 (Fla. 1978).

Finally, the phrase “knows or should know” is entirely consistent with our recent pronouncement concerning the requisite proof of knowledge as to the stolen character of property in Barket v. State, 356 So.2d 263 (Fla. 1978). See also State v. Graham, 238 So.2d 618 (Fla. 1970), discussing the necessary quantum of proof required to establish guilty knowledge under the predecessor to this provision, which encompassed both the receipt and disposition of stolen property. We see no indication of any legislative intent to alter the existing standard of proof for these offenses, other than the substitution of the term “should know” for the more lengthy but essentially synonymous phrase employed in the now repealed section 812.031(1), Florida Statutes (1977)— “under such circumstances as would induce a reasonable man to believe that the property was stolen.” To eliminate any doubt as to that intent, we now hold that the standard of proof of guilty knowledge under section 812.019(1) is the same standard that existed under the predecessor statute as defined by the controlling decisional precedents of this Court.

In accordance with the foregoing analysis, we conclude that section 812.019(1) is not unconstitutionally overbroad, but is sufficiently confined in its applicability so as not to reach conduct that is essentially innocent. It follows that the order of the trial court dismissing the charges against appel-lee is reversed.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    Gloria WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 54416.
    Supreme Court of Florida.
    May 3, 1979.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

In this case Gloria Williams appeals a trial court order denying her motion to dismiss the information against her and upholding the constitutionality of the statute under which she was charged, section 812.-014(1), Florida Statutes (1977).

Williams here raises three points for our consideration. The first of these — that section 812.014 is unconstitutionally vague— was recently rejected by the Court in State v. Allen, 362 So.2d 10 (Fla. 1978). See also State v. Belgrave, 364 So.2d 1225 (Fla. 1978); State v. Lewis, 364 So.2d 1223 (Fla. 1978); Dunnigan v. State, 364 So.2d 1217 (Fla. 1978).

Second, Williams asserts that the statute violates article III, section 6 of the Florida Constitution in that the statute’s title does not adequately apprise a person of average intelligence of the statute’s contents. We disagree. The title of a statute need not index all of the statute’s contents. The proper test is whether the title is so worded as not to mislead a person of average intelligence as to the scope of the enactment and is sufficient to put that person on notice and cause him to inquire into the body of the statute itself. Pruitt v. State, 363 So.2d 552 (Fla. 1978); Mayo v. Polk Co., 124 Fla. 534, 169 So. 41, appeal dismissed, 299 U.S. 507, 57 S.Ct. 39, 81 L.Ed. 376 (1936); Butler v. Perry, 67 Fla. 405, 66 So. 150 (1914), aff’d, 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672 (1916). Measured by this rule, the title to section 812.014 meets the constitutional requirements.

Third, Williams asserts that the information against her is deficient as it does not contain a specific averment of some overt act constituting criminal attempt. In State v. Allen, 362 So.2d 10, 12 (Fla. 1978), the Court construed the term “endeavors” as meaning “an overt act.” Since the challenged information expressly charged Williams with endeavoring to obtain or use a wallet and money, the information was sufficient.

Having considered the points raised, we affirm the order of the trial court denying Williams’ motion to dismiss.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    GATOR FREIGHTWAYS, INC., and Crown Motor Lines, Inc., Petitioners, v. Paula F. HAWKINS, Chairman, William T. Mayo, and Robert T. Mann, as and constituting the Florida Public Service Commission, Respondents, and M. R. & R. Trucking Company, Intervening Respondent.
    No. 55274.
    Supreme Court of Florida.
    May 3, 1979.

      James E. Wharton, Orlando, for petitioners.
    Prentice P. Pruitt, Chief Staff Counsel, and M. Robert Christ, Staff Counsel, Tallahassee, for respondents.
    Thomas F. Panebianco of McKenzie & Panebianco, Tallahassee, for M. R. & R. Trucking Co., intervening respondent.
   PER CURIAM.

By petition for writ of certiorari, we are asked to review Order No. 14409 of the Public Service Commission, approving the transfer of certain service routes from one truck line to another. We have jurisdiction to review the commission’s order. Art. V, § 3(b)(3), Fla.Const.; § 350.641, Fla.Stat. (1977). Petitioners contend that the commission erred in its findings that the service authority involved was not dormant and that the transfer was not contrary to the public interest. We have examined the record of these proceedings and find that the commission’s findings are supported by competent evidence and that the order does not depart from the essential requirements of the law.

Accordingly, the petition is denied.

ADKINS, Acting C. J., and BOYD, OVERTON, HATCHETT and ALDERr MAN, JJ., concur.


text:
    THE FLORIDA BAR, Petitioner, v. Lewis Marion WILLIAMS, Respondent.
    No. 55913.
    Supreme Court of Florida.
    May 3, 1979.
    Paul A. Gross, Branch Staff Counsel, The Florida Bar, Miami, James P. Hollaway, Asst. Staff Counsel, The Florida Bar, Tallahassee, for petitioner.
    Mark King Leban, Miami, for respondent.
   ORDER

PER CURIAM.

This disciplinary proceeding is before the court on the petition of Lewis Marion Williams to modify suspension and the response of The Florida Bar, pursuant to Florida Bar Integration Rule, article 11, Rule 11.07(2).

The respondent was convicted on a number of felony counts in a court of the State of Florida. Florida Bar Integration Rule, article 11, Rule 11.07(2) provides that if a judgment of guilt is entered against an attorney, “the convicted attorney shall stand suspended as a member of The Florida Bar on the 11th day following the entry of the judgment unless he shall before that day file a petition with the Supreme Court to modify or terminate such suspension as elsewhere provided.”

Before the eleventh day following the entry of the judgment against the respondent, he filed a petition to modify suspension, asking that suspension be deferred pending appeal of his felony convictions. This petition, due to its timeliness under the rule, had the effect of deferring the automatic suspension until ruled on by this court. The Florida Bar filed a response and also a separate petition seeking the respondent’s suspension based on his felony convictions. On February 13, 1979, the court denied the petition to modify the automatic suspension and that denial effectively suspended the respondent as of that date.

The respondent has filed a petition for clarification asking that the court rule on The Florida Bar’s petition for suspension based on felony convictions and that he be allowed a period of time in which to conclude pending legal business. The petition for clarification is denied. The respondent stands suspended from the practice of law as of February 13, 1979.

It is so ordered.

BOYD, Acting C. J., and OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Walter STOCKMAN, Respondent.
    No. 56388.
    Supreme Court of Florida.
    May 3, 1979.
    David G. McGunegle, Branch Staff Counsel, and John A. Boggs, Asst. Staff Counsel, Tallahassee, of The Florida Bar, for complainant.
    Walter Stockman, in pro. per.
   PER CURIAM.

This matter is before the Court on Motion for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On March 15, 1979, The Florida Bar filed its motion alleging:

1. By letter dated May 5, 1978, a Mr. McKenzie filed a complaint with The Florida Bar. After investigation by the Eighteenth Judicial Circuit grievance Committee “B” probable cause was found which report dated November 20, 1978 was received by The Florida Bar on November 30, 1978. .
2. In November 1973 the Respondent was hired to prosecute a claim on a real estate contract for Mr. McKenzie. He filed suit but very little else was done on the case which was ultimately dismissed for lack of prosecution in November 1976. In October 1974 the client indicated that Respondent should attempt to settle the case for $900 to $1,000 due to the client’s then pressing medical expenses. At that time, the Respondent advised him the case was awaiting a court date and that settlement for this figure range was doubtful due to a previously referred lower offer. Thereafter the client heard nothing further from Respondent Stock-man until he finally wrote him about the case in August 1977. Respondent then advised him by letter dated August 9, 1977 the case had been dismissed in November 1976. Along with this letter to his client, he enclosed five fabricated letters addressed to the client which could have explained his handling of the case subsequent to October 1974. Those letters all indicated that the case was a “loser” and would probably be dismissed at trial. Mr. McKenzie, of course, had received none of them. .
3. When Mr. Stockman was contacted by the Bar Investigator on September 12, 1978, he initially denied he had fabricated the letters. After further investigation the investigator and the grievance committee member responsible for the case had a meeting with Mr. Stockman who then admitted that he had panicked and fabricated the letters in an attempt to cover his own negligence. Thereafter he agreed to a finding of probable cause without the necessity for a hearing and has cooperated fully with the Bar. The grievance committee found probable cause for violations of the following disciplinary rules of The Florida Bar’s Code of Professional Responsibility: 1-102(A)(4), 1-102(A)(6), 6-101(A)(3) and 6-102.
4. Respondent Stockman also has voluntarily entered into a settlement with Mr. McKenzie tendering a total of $2,069.04 for his failure to prosecute the damage claim.
5. The Respondent submitted a Conditional Guilty Plea to the grievance committee report and record on February 9, 1979. The plea calls for Respondent to be suspended for a period of 60-days [sic] with automatic reinstatement pursuant to Fla.Bar Integr.Rule, art. XI, Rule 11.-10(3) and payment of costs now totaling $100. . . .
6.The executive committee of The Florida Bar has approved acceptance of Respondent’s conditional plea and recommends it to this court as final disposition of this case.

The Motion for Approval of Conditional Guilty Plea is granted, and Respondent, Walter Stockman, is hereby suspended for a period of sixty days, effective June 11,1979, with automatic reinstatement pursuant to Florida Bar Integration Rule, article XI, Rule 11.10(3). This opinion shall be published in the Southern Reporter.

Costs in the amount of $100.00 are hereby taxed against the Respondent.

It is so ordered.

BOYD, Acting C. J., and OVERTON, HATCHETT and ALDERMAN, JJ., concur.

SUNDBERG, J., dissents.


author: DOWNEY, Chief Judge. DAUKSCH, Judge,

text:
    Ruth RAISEN, Appellant, v. Philip RAISEN and Insurance Company of North America, Appellees.
    No. 77-1058.
    District Court of Appeal of Florida, Fourth District.
    July 19, 1978.
    Lawrence B. Friedman of Friedman & Robbins, North Miami Beach, for appellant.
    Joseph S. Kashi of Druck, Grimmett, Scherer & James, Fort Lauderdale, Florida, for appellees.
   DOWNEY, Chief Judge.

The individual parties to this appeal are husband and wife and the issue involved is the application vel non of the interspousal immunity doctrine.

The appellant wife sued appellee husband for damages arising out of his operation of an automobile in such a negligent fashion as to injure the wife. The trial court sustained a motion to dismiss the complaint on the grounds of interspousal immunity and a final judgment was entered for appellees.

Appellant contends the trial court erred in dismissing this cause because 1) the allegations of the complaint demonstrate that the interspousal immunity doctrine is not applicable to this case, and 2) application of the interspousal immunity doctrine in such a way as to prohibit appellant from maintaining this suit violates her constitutional rights of due process and equal protection.

The complaint alleged, among other things, that the parties have lived together as husband and wife for thirty-seven years and will continue to do so; the maintenance of this suit will not disrupt the peace and harmony of their home and marriage; the parties have not conspired to promote a fraudulent or collusive claim; the suit is not trivial but a result of severe injuries inflicted upon plaintiff; and the defendant insurance company is the real party in interest.

Appellant contends that on motion to dismiss the well pleaded allegations of her complaint must be taken as true. Thus, appellant argues that the traditional reasons giving rise to the concept of inter-spousal immunity are not existent in this case and that the complaint states a cause of action entitling appellant to relief. Appellant concludes by citing Prosser and numerous other authorities which suggest the doctrine is an anachronism which has long outlived its time.

Be that as it may, we are constrained to follow respectable precedent which indicates the doctrine of interspousal immunity is still viable in Florida. Any such change in the law as appellant urges is more properly the function of the Legislature or the Supreme Court. However, inasmuch as the question is a constantly recurring one and is one of great public interest, we certify the following question to the Supreme Court of Florida as one of great public interest:

Does the doctrine of interspousal immunity preclude a tort action between husband and wife in all cases or will such an action lie if it is alleged and proven that none of the traditional reasons supporting interspousal immunity are applicable?

The judgment for which this appeal is perfected is affirmed.

AFFIRMED, question certified.

MOORE, J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

I concur with the court’s opinion as announced by Judge Downey and add my thought that it may be time our Supreme Court reconsider the entire interfamilial immunity doctrine in light of social development and change over the years since it was last considered. .

      . Prosser, Law of Torts, § 122 (4th Ed.1971); Bonner v. Williams, 370 F.2d 301 (5th Cir. 1966); Klein v. Klein, 58 Cal.2d 692, 26 Cal. Rptr. 102, 376 P.2d 70 (1962).

      . Bencomo v. Bencomo, 200 So.2d 171 (Fla. 1967); Horton v. Unigard Ins. Co., 355 So.2d 154 (Fla. 4th DCA 1978); Blanton v. Blanton, 354 So.2d 430 (Fla. 4th DCA 1978).


author: DOWNEY, Chief Judge.

text:
    AETNA INSURANCE COMPANY and Insurance Company of the State of Pennsylvania, Appellants, v. WACO SCAFFOLD & SHORING COMPANY, INC., etc., et al., Appellees.
    No. 76-2299.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.

      Larry Sands of Larry Sands, P. A., Day-tona Beach, for appellants.
    Leonard N. D’Aiuto of D’Aiuto, Walker & Buckmaster, Orlando, for appellee — Waco.
   DOWNEY, Chief Judge.

This case involves a claim by one insurance carrier against two other carriers for contribution arising out of a judgment for damages. Waco Scaffold and Shoring Company, Inc., for the use and benefit of Waco’s excess carrier, Lloyds of London, sued Aet-na Insurance Company and Insurance Company of the State of Pennsylvania to require contribution from them toward the payment of a judgment obtained against Waco. From a final judgment finding that appellee Waco was entitled to contribution, the appellant insurance carriers have appealed.

An understanding of the factual background is essential to a resolution of the issue between the parties. From a stipulation of facts presented to the trial court it appears that in 1968 American Pecco Corporation (Pecco) sold all of its shoring and beam assets, including literature pertaining to their use, to Waco Scaffold and Shoring Company (Waco). As part of the transaction Pecco provided products liability insurance coverage for Waco by having Waco added to Pecco’s existing products liability policy as an additional insured as a vendor. This primary coverage was written by Aet-na Insurance Company with Insurance Company of Pennsylvania (Pennsylvania) writing the excess coverage.

Following acquisition of these products from Pecco, Waco delivered certain shoring, beams and layout plans to McDonough Construction Company (McDonough) under a rental contract. McDonough was using the Pecco products to form a shoring structure to receive a concrete pour for an 8 inch slab roof on a Sears store that McDonough was constructing in Melbourne, Florida. On or about March 28, 1968, during one of the stages of pouring this roof, the shoring and beams collapsed causing one of McDon-ough’s employees, Juliana R. Mason, to sustain severe and crippling injuries. As a result of this accident, a complaint was filed by Mason against Waco, Pecco and others, alleging alternative or concurrent acts on the part of Waco and the other defendants, charging that through either negligence or breach of implied warranties of its product Mason sustained injuries and damages. Waco’s initial defense was provided by another insurance carrier, Aetna Life and Casualty Company (Aetna Life), which provided primary coverage for all claims being asserted by Mason against Waco up to $100,000. Lloyds of London provided excess coverage for Waco in the sum of $1,000,000.

Pecco was also sued by Mason and was being defended by counsel provided by Aet-na Insurance Company. During pre-trial preparation, Waco, through counsel provided by Aetna Life, made demands upon Aet-na Insurance Company and Pennsylvania to acknowledge coverage and provide a defense to Waco based upon the certificate of insurance adding Waco as an additional insured under the Aetna Insurance Company policy issued to Pecco.

Counsel for Waco, with authority from Waco and Aetna Life, agreed to defend the products claim on behalf of Aetna Insurance Company and Pennsylvania and did so through trial and verdict. During the course of the trial evidence was submitted against both Waco and Pecco on theories of negligence and breach of implied warranties of the product, and the jury was duly instructed upon those theories of liability. The trial judge refused all defense requests for special verdict findings on the theories presented and a general verdict was returned in favor of Pecco and against Waco for $1,000,000. Following the rendition of this general verdict, Aetna Insurance Company, through its attorney representing Peeco, discharged counsel retained to defend Waco on its behalf, and denied coverage for payment of any part of the judgment to be rendered against Waco and any obligation for additional cost of the defense to be incurred in connection with post-trial motions or appeals. Judgment ultimately was rendered against Waco for $1,000,000, and plaintiff’s costs were taxed against Waco in the sum of $21,103.74. Waco unsuccessfully sought review in both the Fourth District Court of Appeal and the Supreme Court of Florida. The final judgment plus interest and costs was paid in full on behalf of Waco by Aetna Life and Casualty Company making a payment of $141,-732.77, and by Lloyds of London making a payment of $1,085,661.19. In the case at bar the trial court entered a final judgment finding among other things that 1) appellants Aetna Insurance Company and Pennsylvania acknowledged coverage for part, but not all, of the liability alleged in Mason’s complaint, 2) the general verdict against Waco did not indicate the basis upon which the jury found liability against Waco, 3) coverage was afforded for bodily injury arising out of the named insured’s products, so that it was the condition of the goods that determined coverage and not the theory upon which recovery might have been sought (citing Sears Roebuck & Company v. Travelers Insurance Company, 261 F.2d 774 (7th Cir. 1958), 4) Count II alleged negligence by Waco in manufacturing and furnishing plans and specifications and directions when it should have known the weight of the concrete would cause the shoring to give way and injure Mason, 5) since some of the claims were admittedly covered by appellants’ policy, the appellants were required to defend the insured against claims not covered and to pay any judgment against the insured until such time as the claims against the insured were limited to those not covered by the policy (citing Sears, supra, and Lee v. Aetna Casualty & Surety Company, 178 F.2d 750 (2nd Cir. 1949)), 6) the burden of proving that some or all of the claims upon which the verdict was based were not within the coverage of the policy was upon the appellants and that they failed to carry that burden.

In view of those findings and holdings the trial court held the appellants were liable to appellee for contribution to the extent of Vfe of the judgment which Mason obtained against Waco. It is this judgment which is being appealed.

Appellants admit that they afforded coverage to Waco under their products liability coverage as a vendor of Pecco’s products, but they contend that this coverage does not extend to the independent negligence of Waco. Appellants point to the Mason complaint which they concede alleged in Count I a cause of action covered by their policies for defects in the Pecco products which Waco furnished to McDonough. Count II, however, alleged a cause of action against Waco solely for Waco’s negligence. In view of those allegations of the complaint, appellants admit they had an obligation, which they fulfilled, to defend the entire case. On the other hand, appellants maintain that, based upon the evidence adduced at trial, the issues presented to the jury and the verdict returned, it is clear that the wrong for which Waco was found liable was not covered by appellants’ policies.

We find appellants’ arguments persuasive. First, it is evident that Mason charged Waco with some theories of liability which were covered by appellants’ policies and some theories of liability which were not covered thereby. Hence, based upon those allegations of Mason’s complaint, appellants were obligated to defend Waco. Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1976). However, the fact that appellants had a duty to defend under these circumstances does not necessarily mean that they were obligated to pay any judgment recovered. That question is determined by the facts established at trial. As the court stated in Stevens, supra:

“The first issue to be determined is whether USF&G had a duty to defend plaintiff’s second amended complaint on behalf of the union and the individual members. On this issue, Florida law is clear that an insurer’s duty to defend an action against its insured by a third person is determined by the allegations of the complaint. . . . Moreover, where only portions of a complaint fall within the coverage of the insurance policy and other portions fall outside the policy, the insurer has a duty to defend the entire suit. .
******
“The Court having found that USF&G had a duty to defend the union, it does not necessarily follow that it has a duty to indemnify. While the duty to defend turns on the allegations of the complaint, the duty to indemnify is based upon the facts established at trial, and the possible application of any exclusionary clauses contained in the insurance agreement.” (Citations omitted.) (Emphasis supplied.) 325 So.2d at 461, 462.

In the Mason trial the court submitted issues to the jury, supported by evidence, which would have justified a verdict against both Pecco and Waco based upon either Count I or Count II; the jury found for Pecco and against Waco. Thus, it must be concluded that on the issues arising out of Count I and any direct negligence charged against Pecco in Count II the jury found for Pecco. The elimination of any liability of Pecco leaves only Waco’s independent negligence charged in Count II as a basis for the jury verdict against Waco. To conclude that Waco was found solely liable on any other claim contained in Counts I and II would render the verdict inconsistent because, except for the claim based upon Waco’s independent negligence, Pecco would be equally liable but the jury found Pecco was not liable.

We find that the coverage afforded Waco by the appellants did not include coverage for any independent negligence of Waco. The foregoing being true, the liability found against Waco was not within the coverage provided by appellants.

There is another theory upon which appellee’s claim for contribution must fail. Even if one could not deduce the theory of liability which inheres in the verdict, it would still be incumbent upon the party claiming coverage in this suit to prove that the basis of liability was an exposure covered by the insurer’s policy. As the court stated in Universal Underwriters Insurance Corp. v. Reynolds, 129 So.2d 689, 691 (Fla. 2nd DCA 1961):

“The decision of Clark vs. Globe Indemnity Co., supra, is illustrative of the majority rule in the United States, that where a judgment includes elements for which an insurer is liable and also elements beyond the coverage of the policy, the burden of apportioning these damages is on the party seeking to recover from the insurer. That it is impossible for the plaintiff to do so in the case at bar does not change the basic predicament in which he finds himself.” (Citations omitted.)

Here, appellee sued Aetna Insurance Company and Pennsylvania alleging that they provided coverage for the Mason claim and thus must contribute to payment of the Mason judgment. Regardless of the fact that under the Mason complaint appellants were required to defend the suit, the burden of proving the allegations regarding coverage is upon appellee and appellee failed to prove that appellants’ policies covered the liability upon which the verdict and judgment were founded.

For the foregoing reasons the appellee was not entitled to contribution from the appellants and accordingly, we reverse the judgment appealed from and remand the cause with directions to enter judgment for appellants.

REVERSED AND REMANDED with directions.

LETTS and BERANEK, JJ. concur.

      . Arjen Motor Hotel Corporation v. General Accident Fire & Life Assurance Corporation, Ltd., 379 F.2d 265 (5th Cir. 1967); Morris v. Western States Mutual Automobile Insurance Company, 268 F.2d 790 (7th Cir. 1959); Bogardus v. United States Fidelity & Guaranty Co., 269 App.Div. 615, 58 N.Y.S.2d 217 (S.Ct.1945).


text:
    TALBOTT & DRAKE, INC., William F. Talbott, Paul P. Drake and Helen C. Drake, Petitioners, v. FLORIDA REAL ESTATE COMMISSION, an agency of the State of Florida, Respondent.
    No. 78-1590.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Charles Holcomb of Law Offices of Holcomb & Theriac, Cocoa, for petitioners.
    Howard Hadley, Orlando, for respondent.
   PER CURIAM.

Petitioners seek review by petition for common law certiorari of a non-final agency order denying their motion to quash an administrative complaint filed against petitioners by the Florida Real Estate Commission. Petitioners allege that the petition is presented pursuant to Fla.R.App.P. 9.100 and that this court has jurisdiction pursuant to Fla.R.App.P. 9.030(b).

As we view petitioners’ contentions they are all such as can be fully treated upon plenary appeal after final agency action has been taken. Thus they are not properly subject to review by common law certiorari. Section 120.68, Florida Statutes (1977). Accordingly, the petition for certiorari is

DENIED.

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


author: BERANEK, Judge.

text:
    MONARCH INSURANCE COMPANY OF OHIO, INC., Appellant, v. Arthur OKEY and Bobby Okey, his wife, Appellees.
    No. 78-818.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.

      A. Craig Cameron of Gosney, Cameron & Parsons, P. A., Daytona Beach, for appellant.
    Robert D. Melton, Professional Association, Orlando, for appellees.
   BERANEK, Judge.

This is an interlocutory appeal from a summary judgment of liability in favor of the plaintiff. Plaintiff sued the defendant on a fire insurance policy. The trial court granted summary judgment in plaintiff’s favor and defendant appeals. We reverse.

There was abundant circumstantial evidence that the plaintiff had recently over-insured the residence which was destroyed by fire when plaintiff was away on vacation. A member of plaintiff’s family was seen at the home immediately before the fire. It is agreed by all that the fire was the result of arson. Gas and oil cans were located in the home, and the Fire Department Inspectors were of the opinion that the fire had been started by the pouring of these substances on the walls. The family member at the scene was driving a truck and a gas can was found in the back of the truck immediately after the fire. There was circumstantial evidence that the family member was instrumental in starting the fire. Plaintiff was in dire financial straights, the home had been recently insured, and the circumstances of the plaintiff’s absence on vacation appeared contrived. Under all of these circumstances, there was at least an inference which prevented summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Summary judgment below is reversed and the matter is remanded for further proceedings consistent herewith.

DOWNEY, C. J., concurs.

ANSTEAD, J., concurs in conclusion only.


text:
    Robert E. DOOLEY and Ann M. Dooley, Petitioners, v. Charles H. CULVER, Respondent.
    No. 78-1880.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.
    Robert E. Dooley, Fort Lauderdale, for petitioners.
    Peter N. Hanna, Fort Lauderdale, for respondent.
   OPINION ON MOTION

PER CURIAM.

Petitioners filed their Petition for Writ of Certiorari. A motion to dismiss the petition was filed which we determined to be moot, as we did an additional motion to dismiss. They were moot because we did not issue an order to show cause under Florida Rules of Appellate Procedure 9.100(f) and of course declined to issue the writ. Respondent then filed a “Request for Attorney’s Fees” which failed to comply with Florida Rules of Appellate Procedure 9.400(b) because it did not “state the grounds upon which recovery is sought.” For that reason we must deny the request. We add however that the rules provide the procedure by which one seeks a writ of certiorari and how one defends against the issuance of the writ. It is clear that a motion to dismiss for lack of jurisdiction is unnecessary. If we have no jurisdiction then that can be raised by the respondent if we issue the order to show cause. Florida Rules of Appellate Procedure 9.100(f).

Request for attorneys fees DENIED.

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


author: DOWNEY, Chief Judge. DOWNEY, Chief Judge.

text:
    LE CHATEAU ROYAL CORPORATION, Appellant, v. Emil PANTALEO, Appellee.
    No. 77-326.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    On Rehearing Jan. 31, 1979.

      Jerry E. Rose, of Davis, Smith & Rose, West Palm Beach, for appellant.
    Walter B. Hutcheson, Jr., of McGee, Johnson, Jordan, Hutcheson & Young, Lake Worth, for appellee.
   DOWNEY, Chief Judge.

This case involves an alleged violation of Florida Sale of Securities Act, Ch. 517, Florida Statutes (1973).

In May and June 1973 appellee entered into three contracts with appellant for the purchase of three condominium apartments which appellant was in the process of constructing. Among other things, the contracts provided that appellee would purchase the described apartments contingent upon appellee’s obtaining a mortgage loan from Home Federal Savings and Loan Association of Palm Beach. A closing date was specified and in the event of default appellant was entitled to retain the deposits totalling $24,700. Appellee refused to close; appellant refused to return the deposits, and this suit to .recover the deposits ensued.

Appellee testified that he entered into the contracts in question at the insistance of appellant’s Sales Director, Kravetz, who agreed with appellee that he would not be required to close the sales because appellant would sell the apartments for appellee for a profit prior to appellee’s closing date. Ap-pellee also secretly agreed with Kravetz to pay him a 1% commission on the sale of appellee’s apartments. In view of these assurances appellee signed the contracts, paid the deposits and awaited appellant’s re-sale of the apartments and receipt of appellee’s profit. However, appellant was unsuccessful in selling the apartments for appellee and after some months, and with Kravetz’ consent, appellee himself sought to make a sale, also without success. Finally, closing time came and appellee refused to close. Because of Kravetz’ assurances, ap-pellee never applied to the Federal Savings and Loan Association for a mortgage loan.

The only witness at trial for appellant was the corporate secretary who had nothing to do with sales at this condominium. He admitted that Kravetz was the Sales Director and Agent of appellant and that he was acting within the scope of his authority when he contracted to sell these apartments to appellee. However, the Secretary denied that Kravetz had any authority to make the oral agreement for resale to which the appellee testified. On this issue the appellee offered in evidence the admission of Gus King, President of appellant corporation, in which Mr. King admitted that appellant’s sales personnel, such as Kravetz, were encouraged to promote the sale of apartments by stating to potential purchasers that the price being paid was a fair price and that the apartment would likely increase in value, and if the purchaser decided to sell the apartment the appellant would cooperate in effecting a re-sale. King denied, however, that appellant’s sales people were authorized to guarantee the apartments would be resold for a profit and he denied that the representations made constituted a sales promotion “scheme.”

The trial court found that Kravetz, an employee of appellant, was acting within the scope of his employment when he represented to appellee that appellee never need close on the units and that appellant would resell them for appellee at a profit prior to closing. Based on this finding the trial court found the contracts to be investment contracts and a violation of the Sales of Securities Act in that the contracts constituted unregistered securities within the purview of that Act. Thus, the trial court rendered judgment for appellee for the recovery of his $24,700 deposit.

The main thrust of appellant’s argument on appeal is that the contracts in question were not securities requiring registration because they did not constitute investment contracts in that they did not involve the investment of money in a common enterprise nor were the profits to come solely from the efforts of others. Secondly, appellant contends that the contracts were not binding upon appellant because the salesman was not acting within the scope of his employment in making such representations.

Section 517.07, Florida Statutes (1973), prohibits the sale of any securities within the State (except those exempt under 517.05 or unless sold in an exempt transaction under 517.06), unless they have been registered as required by law. A security is defined in Section 517.02(1) as including, among other things, an investment contract. The most widely accepted test to determine whether a particular contract is an investment contract is that contained in Securities and Exchange Commission v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). There the United States Supreme Court held that:

“[A]n investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise.” 66 S.Ct. at 1103.

There is no question in this case that appel-lee made an investment of money. However, appellant contends that appellee’s evidence does not satisfy the other two elements constituting an investment contract because the evidence does not show that there was an investment in a “common enterprise” nor that the profits were to come solely from the efforts of others. The latter contention is based upon the fact that appellee testified that, when appellant was not successful in selling the units for him, Kravetz allowed him to try to sell them himself. However, the original contract was that appellant’s sales force would sell the units for appellee and it was only when appellant failed to sell them that appellee tried to do so. In addition, as the court pointed out in Securities and Exchange Commission v. Koscot Interplanetary, Inc., 497 F.2d 473 (5th Cir. 1974), in defining “solely from the efforts of others,” the remedial purposes of the act and the language and derivation of the test require that courts not take a literal approach. The court concluded the efforts made by those other than the investor must be the significant ones in comparison to those made by the investor. Appellee’s efforts were insignificant compared to appellant’s and therefore this element of the test is met.

The more serious contention regarding the applicability of the Sale of Securities Act is appellant’s argument that this was not a common enterprise because only two persons were involved, appellant and appellee. We have just recently held in Brown v. Rairigh (1978), Fla.App., 363 So.2d 590, that the common enterprise envisioned in an investment contract requires more than one investor, and some interaction between the investors or a showing that the success of the enterprise would be dependent upon obtaining a number of investors. As we view the evidence in this case there is an insufficient showing of any of the aforementioned criteria to warrant a finding that the arrangement here was an investment contract, or any other arrangement which would constitute a security controlled by Chapter 517, Florida Statutes (1975).

Accordingly the judgment appealed from is reversed and the cause remanded with directions to enter judgment for the appellants.

CROSS and DAUKSCH, JJ., concur.

ON PETITION FOR REHEARING

DOWNEY, Chief Judge.

After a non-jury trial the trial court entered judgment for plaintiff-appellee for the reason that the Deposit Receipt contract entered into between the parties constituted a security within the meaning of the Sale of Securities Act, Section 517.02, Florida Statutes (1973), and that said act was violated by defendant-appellant’s failure to register said security. We reversed that holding by opinion filed November 8, 1978, and remanded the cause with directions to enter judgment for the defendant-appellant.

By petition for rehearing appellant has called our attention to the fact that the case was tried below on multiple issues, serveral of which could have resulted in a favorable judgment for appellant — however, the trial court ruled upon the one issue only. Thus, appellant suggests we should modify our opinion and remand the case for further consideration by the trial court of the other issues which were tried.

Our consideration of the pleadings, pretrial statements and transcript of the trial proceedings indicate to us that appellant’s suggestion has merit. Accordingly, the petition for rehearing is granted and our opinion filed November 8, 1978, is modified to provide that the cause is remanded to the trial court with directions to consider and rule upon the other issues tried by the parties.

CROSS and DAUKSCH, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    BREVARD COUNTY, Florida, Appellant, v. John H. MOORE, Edward Czajka, Agatha Doerer, Robert Fritz, and Nancy Huey, Individually and as the City Commissioners of the City of Cocoa Beach, Florida, on behalf of the taxpayers of Cocoa Beach, Florida, Appellees.
    No. 77-1760.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.
    On Rehearing Feb. 28, 1979.
    Robert L. Nabors of Nabors, Potter, McClelland & Griffith, P. A., Titusville, for appellant.
    William E. Weller of Rose & Weller, Cocoa Beach, for appellees.
   PER CURIAM.

AFFIRMED.

CROSS, ANSTEAD and LETTS, JJ., concur.

ON REHEARING GRANTED

PER CURIAM.

By petition for rehearing the appellant has called to our attention the fact that our previous affirmance of the trial court’s order denying motions to dismiss and strike, while in substantial compliance with the recent Supreme Court decision in Manatee County v. Town of Longboat Key, 365 So.2d 143 (Fla.1978), also leaves intact a claim for money damages for dual taxes allegedly collected in past years. In Manatee the Supreme Court held that municipal property owners may properly challenge the right of the county to tax municipal property to pay for services rendered exclusively to unincorporated areas of the county. Art. VIII, § 1(h), Fla.Const.; § 125.01(6)(a), (b), Fla.Stat. (1977). However, the Supreme Court also held:

To hold that a legislative enactment providing alternative methods of relief may be enforced against a county for future tax years is far different from holding that a court may enter a money judgment against a county for past tax years. We find no authority under our constitution, the statutes, or legal precedents which support a money judgment against a county because of dual taxation problems in past years.

Accordingly, the petition for rehearing is granted and our opinion of December 13, 1978, is hereby modified to the extent that those portions of the order of the trial court denying the motions to dismiss and strike the appellees’ claim for money damages for past taxes are reversed. In all other regards we adhere to our previous decision.

CROSS, ANSTEAD and LETTS, JJ., concur.


text:
    Wilmott PLATT, Jr., Joseph Scott, Beatrice Israelite and Joseph Pennella, Appellants, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, a special tax district of the State of Florida in the matter of alteration of regulation schedule for Conservation Area 2A, Appellee.
    No. 78-2423.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1978.
    Edna L. Caruso, West Palm Beach, and Kim Douglas Sherman, Fort Lauderdale, for appellants.
    Robert Grafton, Thomas J. Schwartz, John H. Wheeler and Stephen A. Walker, West Palm Beach, for appellee.
   OPINION ON MOTION TO STAY

BERANEK, Judge.

This is an appeal from an order entered by the South Florida Management District on October 20, 1978. The effect of this order is to begin a draw-down as of October 31, 1978, of conservation area 2A. The described area contains 173 square miles and incorporates a significant portion of the original Florida Everglades. A decision to substantially reduce the water level in this vast Everglades area is obviously of great ecological magnitude and we note that the undesirable condition which the District now claims the area to be in, has evolved slowly over a sixteen-year period and is not a sudden happening. The District claims only that absent a remedy the area will “eventually” become a lake system rather than the present Everglades ecosystem.

The appellants previously sought a temporary restraining order before the Circuit Court of Broward County in Platt v. South Florida Water Management District, Case No. 77-18803. The instant appeal is not directed to the actions of the Broward County Circuit Court. However, the Circuit Court found that the plaintiffs had standing to bring this appeal and that the contemplated draw-down would cause irreparable injury if an injunction was not granted. The Circuit Court enjoined the South Florida Water Management District from drawing down the 2A area until a date certain. Prior thereto, this Court granted an emergency motion to stay pending a response from the appellee, South Florida Water Management District. We have now received appellee’s response, along with appellee’s emergency motion to dismiss the appeal filed November 17, 1978, and two motions to strike filed by the appellants on December 4, 1978.

Based upon our review of the record at this time, we see no compelling emergency if the District’s order is not carried out pending the outcome of this appeal and, therefore, the appellant’s motion to stay is granted pending final disposition of this case before this Court. The order of the South Florida Water Management District dated October 20, 1978, is, therefore, stayed until further order of this Court.

We are aware that the motions to dismiss and strike, along with the responses of the parties, raise the issue of the standing of the appellants before this Court. This issue is not here resolved. Accordingly, the motions referred to in this paragraph are reserved pending further order of this Court. The pendency of these motions shall not affect the progress of this appeal and all parties shall promptly proceed.

ANSTEAD and LETTS, JJ., concur.


text:
    Catherine GERACI and Charles Geraci, her husband, Appellants, v. Alex KOZLOSKI and Anna Kozloski, his wife, Appellees.
    No. 78-325.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    James R. Holmes, Jr. of Zamer & Holmes, Oakland Park, for appellants.
    Brian L. Kimber of Allsworth, Doumar, Schuler, Padula & Laystrom, Fort Lauder-dale, for appellees.
   PER CURIAM.

OPINION ON MOTIONS

We have for consideration another series of motions by the parties to this appeal. In an effort to restore this appeal to the right track we have heard oral argument on said motions and dispose of them as follows: appellees’ motions to consolidate and to dismiss this appeal are denied; appellees’ motion for extension of time to file their brief in this case (No. 78-325) is granted and they shall have 15 days from date hereof to file said brief; appellants have withdrawn their motion for sanctions filed November 15, 1978.

The focal point of the problems giving rise to the excess of motions filed in this case is that some of the exhibits admitted at trial have been lost by the clerk’s office. We heretofore relinquished jurisdiction to the trial court and requested counsel and the trial judge to meet and reconstruct the record. A brief hearing was held and the trial judge asked counsel to furnish stipulations and a proposed order. What has transpired since demonstrates that counsel have been unable without the direction and supervision of the trial judge to reproduce the necessary exhibits. Thus, it appears to this court that it will be necessary for the trial judge to hold a hearing with counsel and personally direct them in their efforts to reconstruct the record vis-a-vis the lost exhibits.

Accordingly, we extend the relinquishment of jurisdiction in this case until January 10, 1979, and once again request that counsel make every effort with the direction and assistance of the trial judge to reconstruct the necessary exhibits admitted into evidence during the trial of this cause. As so reconstructed, the trial judge is requested to certify that record and deliver same to the clerk of the circuit court for inclusion in the record on appeal.

Any further recalcitrance on the part of counsel to make every reasonable effort to reconstruct the record as directed may result in either a reversal of the judgment appealed from for a new trial or in dismissal of the appeal.

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


author: PER CURIAM. DAUKSCH, Judge, PER CURIAM. DAUKSCH, Judge,

text:
    Donald FORD and William Ford, Appellants, v. STATE of Florida, Appellee.
    Nos. 77-1624, 77-1753.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Rehearing Denied March 7, 1979.
    Dauksch, J., filed a dissenting opinion and also filed a dissenting statement on motion for rehearing.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Kenneth R. Barba, Asst. Public Defenders, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and MOORE, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

The public defender was appointed to represent these two appellants for trial. Due to inadequate preparation for trial the lawyer did not discover until after the trial had begun that a conflict of interests existed. His representation of the two accused persons prevented at least one of the accused brothers testifying about his involvement, or alleged lack thereof, in the crime. In my opinion, justice requires a reversal and a new trial for both appellants. It is noted the same public defender who failed below urges his failure here. I wonder if he can be as objective on appeal as another lawyer might be. The continuing conflict might have caused this appeal not to have been argued as strenuously as it could have been. All of this goes to a constitutional right to effective assistance of counsel and a constitutional right to procedural due process before a valid conviction.

ON MOTION FOR REHEARING

PER CURIAM.

Motion for rehearing is DENIED.

CROSS and MOORE, JJ., concur.

DAUKSCH, J., dissents.

DAUKSCH, Judge,

dissenting:

The opinion in this case is in conflict with Wilson v. State, 348 So.2d 10 (Fla. 4th DCA 1977) and Baker v. State, 202 So.2d 563 (Fla.1967) and that is why I dissented and why I think we should grant rehearing and grant a new trial.


text:
    Mary Jane Chalke DAVIS, Earl Cosgrove and James Michael Wiley, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a Foreign Corporation, and Allstate Insurance Company, a Foreign Corporation, Appellees.
    No. KK-207.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1979.
    Rehearings Denied June 6, 1979.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denny & Search, P. A., West Palm Beach, and Frank G. Howatt, St. Augustine, for appellants.
    William R. Swain and Douglass E. Myers, Jr., of Webb, Swain & Watson, P. A., for Nationwide, and Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, for Allstate, ap-pellees.
   PER CURIAM.

Appellants appeal from an order granting a motion to dismiss with prejudice their complaint against appellee insurance companies for bad faith dealings. They contend that under the circumstances of this case an allegation of an offer to settle within policy limits was not a prerequisite for their suit against the insurer for an excess verdict. We agree and reverse.

Appellants were involved in an automobile accident. Davis, the negligent driver, was insured by Nationwide for $25,000; Cosgrove, the owner of the car, was insured by Allstate for $15,000; and Wiley was the injured party. Appellants alleged that both insurance companies were represented by the same attorney, Tygart, and that he deceived all of the parties concerning the extent of coverage under the insurance. They contend that he assisted in preparing answers to interrogatories which stated that the insurance coverage was only the $15,000 on the Allstate policy and also stated the limits as $15,000 in a pre-trial stipulation concerning the liability coverage. Since there was a medical lien of $18,000, appellants allege that this misrepresentation and deceit on the part of the attorney and the insurance companies foreclosed settlement negotiations and prevented an offer of settlement. They claim that only after a judgment was entered for $240,000 and the insurance companies limited their liability to $40,000 did any of the plaintiffs in this action know of the additional $25,000 coverage.

Appellants brought suit against the attorney and the insurance companies alleging bad faith dealings and asked for punitive damages. The complaint acknowledged that Wiley had never made a settlement offer and claimed Tygart made it clear that Allstate would not be interested in accepting any demand for settlement or in making any offer of settlement. Further, they claim that Tygart told the insurance companies, but not the insureds, of the substantial injuries and of the potential excess verdict. Further, they allege that had the insurance companies and the attorney disclosed that the insurance limit was $40,000 instead of just $15,000, an amount below even the medical lien, the plaintiff in the prior action, Wiley, would have entered into settlement negotiations and that this would have benefitted all of them. The insurance companies filed a motion to dismiss on the grounds that there was no allegation of a demand to settle by Wiley and the court granted the dismissal with prejudice.

The trial court was correct in determining that the general rule under the case law of this state is that insurance companies will not be liable for an excess verdict if there is no offer of settlement within the policy limits. Cheek v. Agricultural Ins. Co. of Watertown, 432 F.2d 1267 (5th Cir. 1970); Seward v. State Farm Mutual Automobile Insurance Co., 392 F.2d 723 (5th Cir. 1968); Bush v. Allstate Insurance Company, 296 F.Supp. 368 (S.D.Fla.1969), aff’d, 425 F.2d 393 (5th Cir.), cert. den. 400 U.S. 833, 91 S.Ct. 64, 27 L.Ed.2d 64; Chastain v. Federal Insurance Co., 338 So.2d 214 (Fla. 3d DCA 1976), cert. den., 352 So.2d 169; Beck v. Kelly, 323 So.2d 667 (Fla. 3d DCA 1975); American Fidelity Fire Insurance Co. v. Johnson, 177 So.2d 679 (Fla. 1st DCA 1965). However, we believe the facts of this case are distinguishable because of the alleged misrepresentation of the insurance coverage. We agree with the holding in Thomas v. Western World Insurance Company, 343 So.2d 1298 (Fla. 2d DCA 1977), that under some circumstances the offer of settlement is not a prerequisite to excess liability.

In view of the allegations that the attorney represented both companies, that he misrepresented the coverage, and that there would have been an offer of settlement had the true liability limits been revealed, we consider that the complaint states a cause of action sufficient to withstand a motion to dismiss.

Reversed.

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


author: DAUKSCH, Judge.

text:
    Bernard Kendall WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 78-2602.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1979.
    Bernard Kendall Williams, pro se.
    No appearance by respondent.
   DAUKSCH, Judge.

Petitioner has filed with the court a request for injunctive relief. He urges the illegality of Section 944.291, Florida Statutes (1977), which requires his release before the expiration of his full sentence if he has earned gain time deductions and extra good time allowances. This statute is a part of the Mandatory Conditional Release provision governing state prisoners. The allowance of gain time for good conduct and extra good time allowances are meant to reward those prisoners who have made an effort to conduct themselves in a manner the prison authorities deem proper during incarceration. The legislature has provided a method by which the benefits can be computed and if the prisoner properly conducts himself then the prison must release him before he has served the sentence the court ordered. Petitioner complains that he is not really released from the control of the state because the statute requires that he be under the supervision of the Department of Offender Rehabilitation as if on parole until the expiration of the period of time he would have served in prison had he not been given credit for his gain time and good time. He urges he is being subjected to double jeopardy which we assume he means he is being punished twice for the same crime. This is not so. Petitioner was sentenced to a term in prison and he has the opportunity to be released before his sentence actually expires if he complies with prison regulations and performs the labor required to obtain statutory benefits. He has the alternative, however, of not performing the labor and not behaving himself which will result in his being permitted to serve his entire sentence in prison instead of receiving the benefits of the Mandatory Conditional Release. Petitioner is serving only one sentence, a portion of which is in prison and the remainder of which is in freedom, subject to his being under the supervision of the state as if on parole.

The petition for permanent injunction which we treat as a petition for habeas corpus is DENIED.

MOORE and BERANEK, JJ., concur.


text:
    Kathy Dianne NEWMAN, Petitioner, v. James Russell HORNSBY and Melvin Coleman, Sheriff of Orange County, Florida, Respondents.
    No. 79-83.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1979.
    James A. McCauley, Fort Lauderdale, for petitioner.
    Michael E. Hamlin, Orlando, for respondent.
   PER CURIAM.

In her petition for writ of habeas corpus petitioner seeks our writ to compel the father of the natural child of the parties to have the said child before the Circuit Court of the Seventeenth Judicial Circuit of Florida for the purpose of determining entitlement to custody. Although we make no determination at this time of the ultimate issues involved in this jurisdictional dispute between two different circuit courts we feel that petitioner has failed to demonstrate to our satisfaction that the child is being illegally detained by the natural father or that the child’s presence in either court is necessary for the trial court’s determination of custody entitlement. Accordingly, the petition for writ of habeas corpus is denied.

Respondent’s counter-petition for our writ of prohibition against a party who has not been served and is not a party to this cause is denied without prejudice.

HABEAS CORPUS DENIED; PROHIBITION DENIED WITHOUT PREJUDICE.

ANSTEAD, LETTS and MOORE, JJ., concur.


text:
    Joseph SCHEUER and Harriet Rubin, Petitioners, v. Richard P. WILLE, Sheriff of Palm Beach County, Dale Allen, and William F. Howard d/b/a Howard Funeral Home, Respondents.
    Nos. 78-1896, 78-2112.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.
    Timothy J. Hmielewski of Nason, Gildan, Yeager & Lubin, P. A., West Palm Beach, for petitioners.
    No appearance for respondents.
   BERANEK, Judge.

In this civil action the trial court granted a defense motion to strike the plaintiffs’ prayer for punitive damages. The case remains pending on the issue of actual damages. Plaintiffs seek review by way of consolidated petitions for common law cer-tiorari. To establish jurisdiction plaintiffs allege:

“To proceed to trial only on the issue of actual damage might allow for appealing all issues ultimately, but the end results would be a waste of Plaintiffs’ and the Courts’ time and expense in resolving all of the issues of the ease.”

The 1977 Rules of Appellate Procedure have not enlarged the certiorari jurisdiction of this Court. Mere expediency will not form a basis for jurisdiction for review by certiorari. It is short sighted to assume that immediate appellate review of every interlocutory order would save everyone’s time, trouble and money. Had the trial court ruled differently and let the punitive damages count stand, the defendant would certainly have sought relief if expediency is the measure of jurisdiction. Indeed, almost every interlocutory order would be reviewed and more rather than less time would be expended.

By refusing certiorari review and returning this matter to trial, we are not unmindful of the plaintiffs’ problems. This issue was specifically addressed in Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975). Plaintiffs herein probably have no real desire to try the case solely on compensatory or actual damages. However, it is certainly not impossible that such a trial would finally resolve this case. Plaintiff may not prevail in the case before the jury on compensatory damages or the parties may in some fashion settle their differences and all issues will then be removed from the Court’s consideration.

Rule 9.130 of the 1977 Revision of the Florida Appellate Rules deals with non-final orders. This Rule replaces the prior Rule on the subject and limits rather than broadens review of non-final orders. The Advisory Committee’s notes state:

“It is anticipated that since the most urgent interlocutory orders are appeala-ble under this rule, there will be very few eases where common law certiorari will provide relief.”

This Court’s recent opinion in Professional Medical Specialties, Inc, v. Renfroe, 362 So.2d 397 (Fla. 4th DCA 1978), states the position clearly. Therein, the Rule announced in Siegel v. Abramowitz, supra, was reaffirmed.

In the instant case it is clear that plaintiffs will be able to accomplish full and adequate review of the contested order on appeal after final judgment. Therefore, this Court does not assume jurisdiction to review this matter by common law certiora-ri, and the petitions therefore, are denied.

ANSTEAD and LETTS, JJ., concur.


text:
    HALE MANUFACTURING COMPANY and Employers Casualty Company, Appellants, v. Kathleen G. BAUDO, Hartford Accident & Indemnity Company and Steven B. Stratton, Appellees.
    No. 77-1835.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.
    Ronnie H. Walker of D’Aiuto, Walker & Buckmaster, Orlando, for appellants.
    Sidney H. Parrish of Troutman, Parrish & Weeks, P. A., Winter Park, for appellee Baudo.
   PER CURIAM.

This is a appeal from an order granting a new trial to the appellee, Kathleen G. Bau-do. In this personal injury action the jury returned a verdict against the defendants, Steven B. Stratton and Hartford Accident & Indemnity Company, and in favor of the plaintiff-appellee, for $750,000.00. The jury also returned a verdict in favor of appellants, Hale Manufacturing Company and Employers Casualty Company, who were additional defendants in the court below. In the order granting a new trial on both liability and damages the trial court stated that the verdict as to appellants was against the manifest weight of the evidence. We conclude that this order does not sufficiently set out the reasons why the motion was granted so as to allow proper appellate review. In Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978) the Supreme Court stated:

Although an order for new trial need not ineant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. See Thompson v. Williams, 253 So.2d 897 (Fla.3d DCA 1971). Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused. (Id. at 435)

Also see Fla.R.Civ.P. 1.530(f), which requires that orders granting new trials set out the specific reasons therefor. The ap-pellee, Baudo, has also cross-appealed the trial court’s order denying her motions for directed verdict. We find no error in such rulings.

Accordingly, jurisdiction is hereby relinquished to the trial court in accordance with the provisions of Fla.R.Civ.P. 1.530(f) for a period of 30 days so that the trial court may enter an order specifying the grounds for granting the new trial.

ANSTEAD and LETTS, JJ., and JOHNSON, TOM, Associate Judge, concur.


text:
    Joshua A. FREEDMAN, Petitioner, v. STATE BOARD OF ACCOUNTANCY, State of Florida, Respondent.
    No. 77-2386.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Michael B. Small, of Small, Oakes, Vosko, Clark & Meyer, Palm Beach, for petitioner.
    James S. Quincey and Samuel Hankin, of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for respondent.
   BERANEK, Judge.

Petitioner here seeks review of a final order of the Florida State Board of Accountancy denying him a reciprocal certificate of accountancy.

The petitioner attended Temple University in Philadelphia at night over a period of five years earning a total of 56 semester hours. Approximately 124 semester hours are required for a bachelor’s degree. He was issued a certificate of accountancy from Temple in 1945 and took a two-part CPA exam in Pennsylvania in 1947 and 1949 receiving passing grades of 75 and 69. Petitioner practiced a number of years in Pennsylvania and moved to Florida in 1973. He sought a reciprocal certificate of accountancy here in Florida from the State Board of Accountancy in 1976. This was denied.

The Board based its denial upon the statutory requirement that an applicant for reciprocal certificate be “a graduate of at least a four-year accredited college or university course.” § 473.08(l)(c), 473.201(1)(b) Fla.Stat. After this denial, petitioner requested a hearing pursuant to § 120.57 Fla. Stat. An order was subsequently entered allowing the Board to amend its denial to include a second basis — failure to obtain a score of 75 on the second part of the Pennsylvania exam. After hearing, a recommended order was entered by the Hearings Officer and subsequently adopted by the Board in the final order here challenged. This order denied petitioner a reciprocal certificate based on lack of a baccalaureate degree and the score on part II of the Pennsylvania exam. This petition for cer-tiorari challenges these two grounds for denial and additionally challenges the timeliness of the Board’s final order.

Freedman alleges that the requirement of a baccalaureate degree is not specifically contained in the statutes; thus the Board’s denial was arbitrary and improper. Florida Statute § 473.08 provides that an applicant for taking the CPA exam must be:

“(c) A graduate of at least a 4-year accredited college or university;
“(d) At the time of application, has qualified for a degree with a major in accounting or has completed such courses as would constitute a major in accounting as determined by the board . .

The statutes further provide that applicants for reciprocal certificates must meet all the requirements in effect, at the time of application, for applicants to take the Florida exam. § 473.201(l)(b) Fla.Stat. Petitioner maintains that “degree” doesn’t mean bachelor’s degree or, at least, that such a definition is not specified in the statutes. It is, of course, a basic rule of' statutory construction that words of common usage, when used in an enactment, should be used in their plain and ordinary sense. Tatzel v. State, 356 So.2d 787 (Fla.1978). The common ordinary meaning of “graduate of a four year college” and “qualifying for a degree in accounting” would seem to require a bachelor’s degree in accounting. This petitioner did not have.

Petitioner relies upon a recent case from the First District, Wasserman v. Florida State Board of Architecture, 361 So.2d 792 (Fla. 1st DCA 1978). Wasserman found unconstitutional the statute governing the admission to practice architecture. The Board of Architecture in denying Mr. Wasserman’s application to practice found that he did not possess a degree from an “approved” school as required by statute. F.S. 467.08. In a lengthy opinion by Judge Boyer, the statute is held unconstitutional for permitting unbridled discretion on the part of the Board in deciding whether a school is approved. This discretion amounted to an unlawful delegation of legislative authority. Here, the statute regulating accountant qualification allows the Board considerable discretion by providing:

“(4) The board shall have the authority to establish the standards for determining and shall determine:
(a) What educational institutions offer a 4-year accredited college or university course.” 473.08 Fla.Stat.

The accreditation of Temple University, petitioner’s school, was never at issue nor questioned by the Board. The controversy centered not on who granted the degree but on whether, in fact, there was a “four year degree” at all. While the statute regulating accountants may indeed suffer from some of the same constitutional infirmities as did the statute in Wasserman, we need not and specifically do not decide this issue. It is another basic rule of construction that courts should not pass upon the constitutionality of a statute if the ease may be effectively disposed of on other grounds. Singletary v. State, 322 So.2d 551 (Fla. 1975). Here, the petitioner was neither a “graduate of a four year institution” nor “qualified for a degree with a major in accounting” as those words are commonly understood and defined.

Petitioner also questions the Board’s discretion in determining what constitutes a passing score on an exam taken in another state. We are not required to reach this issue in deciding the case. Petitioner also asserts error regarding the Board’s timely issuance of a written final order. We have considered this point and find it to be without merit.

Accordingly, the petition for certiorari is hereby denied.

LETTS and MOORE, JJ., concur.


text:
    ZUCKERMAN & VERNON CORPORATION, a Florida Corporation, Appellant, v. Ronald MOTCHKAVITZ and Joan Motchkavitz, his wife, L. C. Boggs Industries, Inc., and Theodore Faber, an Individual, Appellees.
    No. 78-1973.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellant.
    J. Patrick Floyd of Pyszka, Kessler & Adams, Miami, for appellee L. C. Boggs Industries, Inc.
   PER CURIAM.

Before us is a motion to dismiss an appeal commenced by one co-defendant who seeks review of a final judgment exonerating another co-defendant from liability. On the authority of Christian et al. v. Popovich et al., 363 So.2d 2 (Fla. 1st DCA 1978) and Sol Walker & Co. v. Seaboard Coast Line R. Co., 362 So.2d 45 (Fla. 2d DCA 1978) the motion to dismiss is denied.

In so ruling we hold that the right of one co-defendant to appeal a judgment which exonerates another co-defendant is inherently implied in Florida’s Contribution Act, Section 768.31, Florida Statutes (1977).

LETTS, MOORE and BERANEK, JJ., concur.


text:
    SOUTH PUERTO RICO SUGAR COMPANY and Aetna Casualty & Surety Company, Appellants, v. TEM-COLE, INC., Talismans Sugar Corporation and Home Insurance Company, Appellees.
    No. 78-1308.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.

      Edna L. Caruso and Schuler & Wilkerson, West Palm Beach, for appellants.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellees.
   PER CURIAM.

Before us is a motion to dismiss an appeal commenced by one co-defendant who seeks review of a final judgment exonerating another co-defendant from liability. On the authority of Christian et al. v. Popovich et al., 363 So.2d 2 (Fla. 1st DCA 1978) and Sol Walker & Co. v. Seaboard Coast Line R. Co., 362 So.2d 45 (Fla. 2d DCA 1978) the motion to dismiss is denied.

In so ruling we hold that the right of one co-defendant to appeal a judgment which exonerates another co-defendant is inherently implied in Florida’s Contribution Act, Florida Statutes (1977) § 768.31.

CROSS, LETTS and MOORE, JJ., concur.


text:
    Frederick Lee LEARY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1237.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Mary E. Mars-den, Asst. Attys. Gen., West Palm Beach, for appellee.
   ON PETITION FOR REHEARING

BERANEK, Judge.

By opinion of this Court published November 1, 1978, the judgment and conviction below were reversed and remanded for entry of a proper judgment because the judgment failed to recite the element of knowledge on the defendant’s part of the stolen character of certain property. Defendant had been charged with the crime of receiving stolen property with the knowledge that it was stolen, but the eventual judgment did not recite defendant’s knowledge of the stolen character of the property. We have reconsidered the matter and conclude that the above ruling was incorrect. We observe an inconsistency between the prior decisions of this Court in Brinson v. State, 345 So.2d 780 (Fla. 4th DCA 1977) and Russo v. State, 340 So.2d 1273 (Fla. 4th DCA 1976). We conclude that Russo v. State, supra, is the correct statement of the law on this issue and hereby recede from the holding in Brinson v. State, supra.

Accordingly, our opinion published November 1, 1978, is withdrawn to the extent mentioned above and confirmed in all other respects.

DOWNEY, C. J., and CROSS, J., concur.

      . Newman v. State, 361 So.2d 731 (Fla. 4th DCA 1978) demonstrates this conflict and holds with the view expressed in Russo v. State, 340 So.2d 1273 (Fla. 4th DCA 1976).


text:
    Samuel M. FEINSTEIN, D. O., Petitioner, v. Mary BROWN, Individually and as surviving spouse, Respondent.
    Nos. 77-1761, 77-1832.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    A. J. Toothman and T. E. Scott of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for petitioner.
    Edward A. Perse of Horton, Perse & Ginsberg and George Telepas, Miami, for respondent.
   ON PETITION FOR REHEARING

PER CURIAM.

On petition for rehearing petitioner has focused our attention on the fact that no hearing commenced within six months from the date claim was filed in this medical mediation liability proceeding. We grant the petition for rehearing and the petition for writ of certiorari, withdrawing our decision of October 4, 1978 wherein we denied the petition for writ of certiorari.

On June 17, 1976 respondent filed her claim for medical mediation against the Community Hospital of South Broward and unknown physicians. On September 27, 1976 the judicial referee permitted respondent to amend her claim to add petitioner, Dr. Feinstein, as a defendant. Thus, as to Dr. Feinstein, the claim was filed on September 27, 1976. On January 12, 1977 the judicial referee extended the time for commencement of the final hearing. The final hearing thereafter commenced on June 28, 1977, approximately nine months after the claim was filed against Dr. Feinstein.

Even though a timely extension for the final hearing is granted by the judicial referee, that hearing still must commence within six months after the mediation claim is filed. See, Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978); Mellor v. Arakgui, 359 So.2d 36 (Fla. 4th DCA 1978); Stanton v. Community Hospital of South Broward, 359 So.2d 37 (Fla. 4th DCA 1978). No hearing having commenced within six months from the date the claim was filed the medical mediation panel thereupon lost jurisdiction and its finding of negligence with respect to Dr. Feinstein should be quashed.

Accordingly, our previous order of October 4, 1978 is hereby withdrawn, rehearing is granted, and the petition for writ of certiorari is granted with directions to quash the finding of the medical mediation panel as it pertains to the petitioner, Dr. Feinstein.

DAUKSCH, LETTS and MOORE, JJ., concur.


text:
    Joseph BELMONT, Appellant, v. STATE of Florida, Appellee.
    No. 77-688.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1979.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

ON MOTION FOR CLARIFICATION

At the request of the appellant we relinquished jurisdiction of this cause to the trial court for a period of thirty days so that a written order could be entered setting forth the sentence imposed by the court and the terms and conditions of probation. Some question has arisen and appellee has requested a clarification of the reason for our relinquishment of jurisdiction. It seems to be appellee’s contention that the probation order need not be in writing and there was no reason to relinquish jurisdiction.

A judgment and sentence, or order of probation, should be reduced to writing. The appellate courts generally only review judgments and orders which have been rendered, and rendition is effected by “the filing of a signed, written order with the clerk of the lower tribunal,” Fla.R. App.P. 9.020(g). Florida Rule of Criminal Procedure, 3.700 does not obviate the necessity of said judgments or orders being reduced to writing. That rule simply provides for additional clerical duties in the sentencing procedure.

Accordingly, the relinquishment of jurisdiction of this cause is extended for an additional 30 days and the trial court is requested to reduce the sentence imposed on appellant, including the terms and conditions of probation, if any, to writing so that such written order can be included in the record on appeal.

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